Dinesh Sah @ Raju vs The State Of Jharkhand
2022 Latest Caselaw 1801 Jhar

                                1


IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Cr. Revision No. 463 of 2003
Dinesh Sah @ Raju                           ..... Petitioner
                            Versus
The State of Jharkhand                   .....       Opposite Party
                            ---------
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
                            ---------
For the Petitioner     : Mr. Rajesh Lala, Advocate
For the State         : Ms. Nehala Sharmin, APP
                            --------
                        JUDGEMENT

Reserved on: 07.03.2022 Pronounced on: 05/05/2022 Heard learned counsel for the parties.

2. The instant application is directed against the

judgment dated 28.02.2003, passed by the learned 3rd Additional

Sessions Judge, Bokaro, in Criminal Appeal No. 34 of 1996;

whereby the appeal preferred by the petitioner has been dismissed

and Judgment of conviction and order of sentence, both dated

16.02.1996, passed by the learned Judicial Magistrate 1st Class,

Chas (Bokaro) passed in T.R. No. 6 of 1996, arising out of G.R.

No.1071 of 1992, whereby petitioner was convicted for an

offence punishable under Section 414 of the Indian Penal Code

and was sentenced to undergo rigorous imprisonment for a period

of two years under Section 414 of the Indian Penal Code, has

been sustained.

3. The prosecution case is based on the information

received by the police and an FIR was lodged by the Inspector

of Police, on 30.08.92 and forwarded to the Court of Chief

Judicial Magistrate, Dhanbad and a regular case was registered,

being Balidih (Chas) P.S. Case No.87/92 (G.R. No.1071/92) and

accordingly the same was investigated. The prosecution case, in

brief is that the then Officer-in-charge Balidih Police Station has

spotted out one chocolate colored Maruti van bearing BR-17A-

7161 coming in high speed from Bokaro. That car was used in

looting petrol pumps at Govindpur (Dhanbad) and a petrol pump

at Nimia Ghat (Giridih) on 28.08.1992 and a wireless message

had come to his police station from S.P. Bokaro to remain vigilant

in this regard. On having seen the same number on the said

maruti van, the informant Rama Nand Singh and ASI Devendra

Jha who were going to Bokaro on a car turned back and began to

chase the said van. In course of pursuing they have informed

constable Saleem Khan of Balidih P.S. to follow them with

adequate force of the police station. When the SI came near the

petrol pump Balidih they saw that maruti van no. BR 17A/7161

standing near a sisam tree keeping a distance to 15 to 20 ft. from

the said petrol pump. It was 3.30 p.m. They have also seen three

persons sitting on the back seat of the van and one person sitting

on the driver seat after keeping that van in starting position. His

colleague S.I. Devendra Jha got down from the car and went to a

nearby garage and soon thereafter returned with 15 to 20 persons.

When four miscreants were proceeding towards the cash counter,

the informant along with 15 to 20 numbers of public and ASI

Devendra Jha surrounded them and began to raise alarm. In the

meantime, his other staff SI Naval Kishor Singh, SI B.B. Tiwari,

ASI S.N. Roy along with armed force reached there and they

began to make a close circle and surrounded them.

The further case of the prosecution is that seeing the strong

assemblage of the police and public, those miscreants began to

flee away but the informant hurriedly ran to the Maruti van and

took the key of the van from its driver. All the miscreants then

began to take out loaded revolver and other deadly weapon from

their possession but the police as well as the public came heavily

upon them and all the criminals were caught on the spot.

On having been searched before two independent witnesses,

a huge catch of country made pistol, live cartridges and bombs

were recovered from their possession. Besides that a small bag

containing Rs.6,259/- (Rupees six thousand two hundred fifty

nine) has also been recovered from Maruti van. The said

chocolate colored Maruti van whose engine no. was F 8B-IN-

621076 and chassis No. was S.T-91-IN-873858 has also been

seized and a seizure list has been prepared. On making query, all

the criminals have stated that they have stolen this Maruti van

whose original no. is BR-14A/8403 from Sonda Colliery under

P.S. Bharkunda, District- Hazaribagh and had used this car in

looting the petrol pump at Barbada (Dhanbad) and Suraj Petrol

pump at Nimia Ghat (Giridih).

4. After investigation, the police submitted the charge

sheet and cognizance was taken for the offence under Section 414

of Indian Penal Code against the petitioners and others who

pleaded not guilty and sent up for trial and after trial the learned

trial court convicted them for the offence under Section 414 IPC.

5. Mr. Rajesh Lala, learned counsel for the petitioner

assailed the impugned judgments on following grounds:

 No seizure list witness has been examined as such

alleged seizure of Maruti Van has not been proved.

Further, for the offence under Section 414 IPC, there

has to be a theft report which is absent in the instant

case.

 The alleged Maruti van has not been exhibited.

 Even the Investigating Officer has not been examined

and no explanation for his non-examination has been

given by the prosecution which highly prejudiced the

petitioner, inasmuch as, he could not cross examine

the investigating officer with regard to place and

manner of occurrence.

 Last but not the least, there is no explanation as to why

the prosecution has not framed charge under Section

34 IPC with regard to act done by several persons in

furtherance of common intention.

6. Relying upon the aforesaid contention, Mr. Lala

submits that the impugned judgment of conviction & sentence is

fit to be set aside as the prosecution has failed to prove the case

against the petitioner.

7. Per contra, learned APP supported the impugned

judgments and submits that there is concurrent finding by two

courts, as such no interference is required and under the

revisional jurisdiction the Court cannot re-appreciate the

evidence.

8. Having heard learned counsel for the parties and after

going through the documents available on record including the

LCR and the specific contention of the learned APP that this

Court is having limited jurisdiction and there cannot be re-

appreciation of evidence; it is necessary to deal with the said

contention.

9. Recently, the Hon'ble Supreme Court of India in the

case of Anwar Ali & another Vs. State of Himachal Pradesh

reported in (2020) 10 SCC 166 and the decision rendered in

Criminal Appeal No.1420 of 2014 [Mohan @ Srinivas @ Seena

@ Tailor Seena -Versus- The State of Karnataka] has held that the

findings of fact recorded by a Court can be held to be "perverse"

if the findings have been arrived at by ignoring or excluding

relevant material or by taking into consideration

irrelevant/inadmissible material. The finding may also be said to

be "perverse" if it is "against the weight of evidence", or if the

finding so outrageously defies logic as to suffer from the vice of

irrationality.

Further, in the case of "Kuldip Singh Vs.

Commissioner of Police" reported in (1999) 2 SCC 10 it has been

held that if a decision is arrived at on the basis of no evidence or

thoroughly unreliable evidence and no reasonable person would

act upon it, the order would be perverse. But if there is some

evidence on record which is acceptable and which could be relied

upon, the conclusions would not be treated as perverse and the

finding would not be interfered with.

In the case Ram Briksh Singh & Ors. versus Ambika

Yadav & Ors. reported in (2004) 7 SCC 665 it has been held by

the Hon'ble Apex Court that if the Courts have overlooked

material evidence which has resulted in manifest illegality and

gross miscarriage of justice, then interference under the revisional

jurisdiction by the High Court is called for. Para-4 of the said

judgment is quoted herein below:

"4. Sections 397 to 401 of the Code are a group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice."

In view of the above judicial pronouncements and

looking to the facts and circumstances of this case, this Court

holds that it is a perfect case where this court can interfere with

the judgment of conviction.

10. Since the petitioners were convicted u/s 414 of the

IPC, it is pertinent to scrutinise the essential ingredients of the

said offence which are as follows: -

(i) The Property in question is stolen Property;

(ii) The Accused has knowledge or reasons to believe that such

property was stolen property; and

(iii) The Accused voluntarily assisted in concealing or disposing

of or making away with such property.

Thus, in order to establish a case under Section 414 of

IPC, there has to be a theft report in connection with the stolen

property. In the present case such theft report has not been

produced by the prosecution. Further, the Owner of the said

Maruti Van has also not been examined as witness by the

Prosecution. Even the local & independent witnesses have not

been examined by the Prosecution in the present case.

11. In the present case, the "Seizure List Witnesses",

namely (i) Dadan Tiwary & (ii) Bakhe Tiwary have not been

examined and in the said circumstances the alleged seizure of the

Maruti Van cannot be said to be proved and also due to non-

examination of IO, the place of occurrence [i.e., the place of

recovery of alleged stolen Maruti Van] cannot be said to be

proved. This aspect of the matter has not been properly

considered by the learned courts below, which calls for

interference by this Court and the Petitioner deserves benefit of

doubt.

12. Further the alleged stolen Maruti Car has not been

made "Material Exhibit" in the present Case. In this regard it has

been stated by P.W.-3 in Paragraph-12 of his deposition that

whether the said Maruti car is in Balidih Police Station or not, I

cannot say. P.W.4 has stated in Paragraph-18 and 19 of his

deposition that he has not enquired from Bhurkunda about the

theft of said Vehicle. Further in Paragraph-12 he has stated that he

has not contacted the Owner of the said Vehicle and he has no

knowledge whether the said Car has been released by Court.

It is an admitted case that the said Car was never

produced before the Court and it was not marked as "Material

Exhibit" in this Case by the Prosecution. This aspect of the matter

has also not been properly considered by the courts. Further, the

I.O. took no step to verify the registration number of the alleged

Maruti Van by its corresponding chassis number and engine

number from the concerned district authority or from any

government department to establish the fact as to who is the

actual owner of the Vehicle in question and what is the actual

number of the said Maruiti Van. Prosecution has not stated

anywhere in their evidence that how they come to know that the

actual number of the said Maruti Van was BR-14A-8403 and who

was the actual owner of the said Maruti Van.

This aspect of the matter has also not been properly

considered by the Learned Trial Court as well as by the Learned

Appellate Court.

13. In this case, since the Investigating Officer [I.O.] has

not been examined by the prosecution and no explanation for his

non examination has been given by the prosecution; many aspect

remained unexplained in the present Case and thus non-

examination of I.O., has seriously caused prejudice to the

Petitioner.

14. Further, there is no explanation on part of the

prosecution for not framing charge under Section 34 of the IPC

with regard to acts done by several persons in furtherance of

common intention of all, each of such persons is liable for that act

in the same manner as if it were done by him alone.

15. In view of the aforesaid discussions; the impugned

Judgment dated 16.02.1996, passed by the learned Judicial

Magistrate 1st Class, Chas (Bokaro) in T.R. No.6 of 1996, arising

out of G.R. No.1071 of 1992 and judgment dated 28.02.2003,

passed by the learned 3rd Additional Sessions Judge, Bokaro, in

Criminal Appeal No. 34 of 1996; is quashed and set aside.

16. With the aforesaid observation, direction, the instant

criminal revision application stands allowed.

17. The petitioners shall be discharged from the liability of

their bail bonds.

18. Let the copy of this order be communicated to the

court below.

19. Let the lower court record be sent back to the court

concerned forthwith.

(Deepak Roshan, J.)

Jharkhand High Court, Ranchi Dated: 05th May, 2022 Pramanik/ AFR