Bajrangi Prasad Kasera vs The State Of Jharkhand
2023 Latest Caselaw 2068 Jhar

                                                             Cr. Revision No.408 of 2016
                                                                        With
                                                              Cr. Revision No.156/2016
                                      1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr. Revision No. 408 of 2016

 Bajrangi Prasad Kasera                 ...           ...             Petitioner
                               - Versus -
 The State of Jharkhand                 ...         ...           Opposite Party
                            WITH
                 Cr. Revision No. 156 of 2016

 Arun Kumar Srivastava                  ...           ...             Petitioner
                               Versus -
 The State of Jharkhand                           ...    ...      Opposite Party

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CORAM: - HON'BLE MR. JUSTICE AMBUJ NATH

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 For the Petitioner     : M/s. Atanu Banerjee, Advocate
                        (In Cr. Rev No. 408/16)
                        : M/s. M. K. Sinha (2), Advocate
                        (In Cr. Rev No. 156/16)

 For the State         : M/s. S. K. Shukla, A.P.P.
                        (In Cr. Rev No. 408/16)

                        : M/s. Praful Jojo,A.P.P
                        (In Cr. Rev No. 156/16)

                            -----
 C.A.V. on 27.02.2023                               Pronounced on 18.05.2023

 1.    Heard the Parties.

2. Both these revision applications arise out of the common judgment. Accordingly, both these applications are being disposed of by a common order.

3. The petitioner Bajrangi Prasad Kasera (in Cr. Revision No. 408 of 2016) and petitioner Arun Kumar Srivastava (in Cr. Revision No. 156 of 2016) have preferred these applications against the judgment dated 12.01.2016, passed by Sri Mahesh Prasad Yadav, learned Additional Sessions Judge-IV, Dhanbad in Criminal Appeal No. 121/2011 and in Criminal Appeal No. 122/2011 filed by the petitioners, whereby and wherein the learned Additional Sessions Judge-IV, Dhanbad, dismissed the appeal of petitioner Arun Kumar Srivastava (in Cr. Revision No. 156 of 2016) and partly allowed the appeal of Bajrangi Prasad Kasera (in Cr. Revision No. 408 of 2016), Cr. Revision No.408 of 2016 With Cr. Revision No.156/2016

passed by Sri Rajeev Anand, learned Railway Judicial Magistrate, Dhanbad holding the petitioners guilty of offence under Section 3(a) of the R.P.(U.P) Act in connection with R. P. Case No. 105/2005 and thereby sentencing the petitioner Arun Kumar Srivastava to undergo simple imprisonment for a period of two years and petitioner Bajrangi Prasad Kasera to undergo rigorous imprisonment for three years along with a fine of Rs. 5,000/- for the offence under section 3(a) of the R.P.(U.P) Act and in default of payment of fine, he was further directed to undergo rigorous imprisonment for nine months. The petitioner Bajrangi Prasad Kasera was given an enhanced sentence because it was the subsequent offence committed by him. The learned appellate court modified the sentence of petitioner Bajrangi Prasad Kasera to simple imprisonment of two years.

4. The prosecution case was instituted on the basis of the written report of the informant R. B. Singh, Deputy Inspector, Railway protection force Barkakana, alleging therein that on 02.10.2005 at about 9:15 A.M. on the basis of confidential information they had laid an ambush near Phusro Gomia road near Gomia College and intercepted a Bajaj scooter on which two persons were travelling.

5. The accused persons managed to escape. On search 20 kgs of fragmented pieces of catenary wire were recovered from the scooter. The informant identified the accused persons, who managed to escape as Arun Kumar Srivastava and Bajrangi Prasad Kasera, seizure list was prepared at the place of occurrence.

6. In order to prove its case the prosecution has adduced both oral and documentary evidence. The learned court below on the basis of evidence available on the record came to a concurrent finding regarding the guilt of the petitioners.

7. Ram Balak Singh, the informant of this case has been examined as P.W.3. He has stated that on 02.10.2005 at about 09:00 AM an ambush was laid near Gomia College and a scooter was intercepted on which the petitioner Arun Kumar Srivastava and Bajrangi Prasad Cr. Revision No.408 of 2016 With Cr. Revision No.156/2016

Kasera was travelling. They managed to escape. On opening the dickey of the scooter, 20 Kgs of fragmented OHE wire kept in a plastic bag were recovered. The seizure list was prepared at the place of occurrence. In his cross-examination he has stated that the seizure list does not bear the signature of any independent witness. He has stated that he was acquainted with Arun Kumar Srivastava from before. Mahesh Pandey P.W.4 has stated that on 02.10.2005 at about 09:00 A.M., ambush was laid near Gomia College and a Bajaj scooter was seized. Two persons who were travelling on the scooter managed to escape. He has identified Arun Kumar Srivastava and Bajrangi Prasad Kasera, both the petitioners who were involved in several cases relating to theft of railway property. The dickey of the vehicle was opened and 20 Kgs of catenary OHE wire was recovered. He has proved the seized catenary which was marked as material Ext.- (I). In his cross-examination he has stated that he does not remember the number of the scooter. He has also stated that he cannot say as to who opened the dickey. He has also stated that both the petitioners were apprehended earlier by the railway protection force several times.

8. Surendra Singh P.W.5 has stated that the occurrence took place on 02.10.2005 at about 09:00 A.M. He was a member of the railway protection force party. On the basis of confidential information ambush was laid near Gomia college and the scooter was seized. Both the petitioners namely, Arun Kumar Srivastava and Bajrangi Prasad Kasera managed to escape. 20 kgs of catenary wire was recovered from the dickey of the scooter. In his cross-examination he has stated that the dickey was not locked and was opened by Mr. Tete.

9. Defence has also adduced oral evidence, Sambhu Srivastava D.W.1, who is brother of Arun Kumar Srivastava has stated that on 24.10.2005, members of railway protection force had initially apprehended him from his house and when he said that he is Sambhu Srivastava, he was released. Thereafter he was asked to call Cr. Revision No.408 of 2016 With Cr. Revision No.156/2016

Arun Kumar Srivastava. At about 7:15 AM, when the petitioner Arun Kumar Srivastava came there, he was taken away by the officers of the railway protection force. In his cross-examination he has stated that Arun Kumar Srivastava signed the documents in his presence. Kedarnath Swarnkar D.W.2 has stated that on 24.10.2005 at about 06:00 A.M., Arun Kumar Srivastava told him that his brother Sambhu Srivastava was taken away by the RPF Barkakana. He inquired and came to know that the railway police force has not apprehended anyone rather they asked Arun Kumar Srivastava to come to the RPF post.

10. Umakant Prasad D.W.3 has stated that on 24.10.2005 at about 5:45 AM, five to six persons had come and they took away Sambhu Srivastava. Thereafter petitioner Arun Kumar Srivastava and other persons went to the Bokaro Thermal Station, where Arun Kumar Srivastava was detained. In the evening, Sambhu Srivastava was released. In his cross-examination he has stated that he had not seen Sambhu Srivastava being taken away by anyone. Other defense witnesses have deposed on the same line that initially Sambhu Srivastava was apprehended and taken away by the officers of railway protection force. Thereafter Arun Kumar Srivastava was called and he was detained while Sambhu Srivastava was released.

11. The oral testimony of the defense witnesses is contradictory to what Sambhu Srivastava D.W.1 have stated. Sambhu Srivastava D.W.1 has stated that initially he was apprehended at his house. Thereafter, in his house itself he was asked to call Arun Kumar Srivastava from where both of them were taken to Barkakana. This is in contradiction to the statement of the other witnesses that Sambhu Srivastava was apprehended and taken to Barkakana. Thereafter, Arun Kumar Srivastava along with another witness went to Barkakana where he was apprehended.

12. From the perusal of the documentary evidence, the seizure list Ext.- 1 it appears that 20 Kgs of OHE catenary wire was recovered from the dickey of the scooter bearing registration number BR-20-

Cr. Revision No.408 of 2016 With Cr. Revision No.156/2016

B-1520 from a place near Gomia College in Phusro Gomia Road.

The petitioners were not given the copy of the seizure list because they had managed to escape from the place of occurrence.

13. Pramod Bihari P.W. 2 has stated that he had examined the catenary wire and it was exclusively used in railway it was not sold in auction. In his cross-examination he has stated that the seized catenary wires were kept in a bag which was not sealed.

14. From the aforesaid facts and circumstances, it is apparent that the prosecution has been able to show that both the petitioners were identified when their scooter was intercepted by the RPF party on 02.10.2005 at about 09:00 A.M. near Gomia College. They managed to escape but they were identified as they were involved in several cases. On search of the dickey of the scooter 20 KGS of fragmented catenary OHE wire used in railway were recovered. The prosecution has also been able to show that the recovered articles were railway property and were not sold in open market. The petitioner Arun Kumar Srivastava had adduced oral evidence to show that he was apprehended prior to the occurrence. However, there is marked contradiction in the statement of the defense witnesses on this point.

15. Considering the aforesaid facts, I' m of the opinion that the prosecution has been able to prove its case against the petitioner's for committing offence under sections 3(a) of the R.P.(U.P). Act beyond all reasonable doubt.

16. Both the learned trial court as well as the learned appellate court has rightly held them guilty for the aforesaid offences.

17. The offence took place in the year 2005. There is nothing on the record apart from the statement of the witnesses that the petitioners were involved in other cases of similar nature. No material has been brought on record to substantiate this allegation so it will be presumed that the petitioners were first offenders.

18. Section 3(a) of the R.P.(U.P.) Act prescribes the sentence for a term which may extend to five years or with fine or with both, but Cr. Revision No.408 of 2016 With Cr. Revision No.156/2016

the imprisonment shall not be less than one year and such fine shall not be less than Rs. 1,000/- for the first offence. Considering the entire gamut of the prosecution case, the sentence of rigorous imprisonment for two years imposed by the learned trial court to the petitioner Arun Kumar Srivastava and rigorous imprisonment for two years as imposed by the learned appellate court to petitioner Bajrangi Prasad Kasera is set aside. The petitioners are directed to pay a fine of ₹20,000/- for the offence under section 3(a) of the R.P. (U.P.) Act. The amount shall be deposited within two months from the date of receipt of copy of this order and in default of payment of fine the petitioners shall undergo simple imprisonment for one year.

19. Both these Criminal Revision Applications are partly allowed with modification of the sentence.

20. Pending I.A., if any, also stands disposed of.

(Ambuj Nath, J.)

Saurabh