Jharkhand High Court
Md. Mister vs State Of Jharkhand ..... Opposite Party on 10 June, 2022
Author: Deepak Roshan
Bench: Deepak Roshan
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 871 of 2003
Md. Mister ..... Petitioner
Versus
State of Jharkhand ..... Opposite Party
With
Cr. Revision No. 863 of 2003
1. Md. Khalid Anwar @ Bablu
2. Md. Parbez Alam ..... Petitioners
Versus
The State of Jharkhand ..... Opposite Party
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioners : Md. Anisurzzama Khan, Advocate
For the State : Ms. Kumari Rashmi, APP
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07/ 10.06.2022 Heard learned counsel for the parties.
2. Both applications arise out of common judgment and are interconnected, as such same are heard together and dispose of by this common order.
3. Both applications are directed against the judgment dated 27.06.2003, passed by 4th Additional Judicial Commissioner- cum-Spl. Judge-II CBI, AHD, Ranchi in criminal appeal No. 29 of 2002 and 30 of 2002, whereby the appeal preferred by the petitioners has been dismissed and the judgment of conviction and order of sentence dated 12.03.2002, passed in G.R. No.731 of 1999 corresponding to T.R. No. 245 of 2002 by the learned Judicial Magistrate 1st Class, Ranchi, whereby the petitioners were found guilty for the offence punishable under Sections 414/34 of Indian Penal Code and they were convicted to undergo rigorous imprisonment for two years under Section 414 of the Indian Penal Code, has been sustained.
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4. The prosecution case in brief, according to exhibit 6 is that on the basis of confessional statement of accused Md. Mahtab recorded in another Kotwali Hindpiri P.S. Case No.51 of 1999 dated 07.02.1999 under Section 457/ 380 IPC the informant along with other police personnel raided the shop of the accused-Md. Parwej Alam and Md. Khalid Anwar on 07.02.1999. Further, the case is that on search several articles were found. On demand by the police the petitioners failed to show any receipt of purchase. After investigation the chargesheet was submitted and the learned trial court after full-fledged trial convicted the petitioners under Section 414 IPC. Being aggrieved, the petitioners preferred appeal before the learned appellate court which has also been dismissed.
5. Mr. Anisurzzama Khan, learned counsel for the petitioners submits that all the above mentioned old articles which were seized were purchased from several persons. He further submits that there is no report of theft and as such Section 414 IPC for which the petitioners have been convicted will not be attracted; inasmuch as, the basic ingredients of Section 414 IPC is that the person should have in custody of stolen property and since there is no theft report it cannot be said that these are stolen property. In the entire deposition of prosecution witnesses there is no reference of any theft report save and except confessional statement of person who is accused in different cases.
Learned counsel further highlighted the fact that out of 3 five witnesses, P.Ws. 1 and 2 were seizure list witnesses which has been declared hostile, as such the basic crux to prove the stolen articles has not been proved by the prosecution. Moreover, the other witnesses i.e. P.W. Nos. 3, 4 and 5 all were police personnel and they were interested witnesses. More so, the seized articles are never been produced before the Court.
In view of the aforesaid facts and circumstances the conviction has been made mere on surmises and conjecture which cannot be done in criminal proceeding. Relying upon the aforesaid submission, learned counsel submits that the judgment passed by the learned trial court and upheld by the learned appellate court is fit to be set aside.
Further, Learned counsel for the petitioners submits that the incident is of the year 1999 and 22 years have elapsed and the petitioners must have suffered the rigors of litigation for the last 22 years. Further, petitioner in Cr. Revision No.871 of 2003 remained in custody for about 82 days and petitioner No.1 & 2 in Cr. Revision No. 863 of 2003 remained in custody for 162 days and 120 days, respectively, and during entire period of bail they never misused the privilege of bail.
6. Learned APP though supports the impugned judgment however, could not brought on record any statement of the prosecution witness save and except the confessional statement of an accused of other case. There is no any theft report. Learned 4 counsel however submits that since there is concurrent findings as such this Court should not interfere with the impugned judgment looking to the limited jurisdiction in revisional court.
7. Having heard learned counsel for the parties and after going through the documents available on record including the LCR it appears that on the basis of confessional statement of one accused, namely, Md. Mahtab which has been recorded in Kotwali Hindpiri P.S. Case No. 51 of 1999, dated 07.02.1999, registered under Sections 457/380 IPC, informant along with other police personnel reached shop and house of the petitioners in both the cases. On search, they recovered several articles including one Motor of 3 PH induction made by Kirloskar Electric Company Ltd. bearing no.A-1863, 1.5 K.W., one old grinder machine, one old Tulu pump of Bajaj Company bearing No.8705 NE 579, one electrical motor of G.N.C. company, one small Tulu pump, etc. By looking to the seizure list itself it transpires that all are old items. From the entire record there is no chit of paper which can be treated to be a report of any theft. Admittedly, the raid has been conducted on the basis of confessional statement and since these petitioners failed to produce the proper receipt of purchase, they have been held to be liable for keeping stolen property at their possessions.
At this stage, it is pertinent to mention here that in normal course of business for sale and purchase of old items, 5 normally receipts are not issued. The prosecution has also failed to take evidence of any independent person save and except the seizure list witnesses about the factum of seizure and the seizure list witnesses has been declared hostile which makes the entire seizure itself faulty. Section 414 IPC categorically states that person should be held guilty for theft under this Section must be knowing that the property which is in his custody is stolen property. However, there is no independent witness who has proved these articles are the stolen property beyond all shadow of reasonable doubt. Further, there is lacuna in the entire prosecution case, inasmuch as, none of the stolen property has been produced before the court which could have been transpired that all these items were old/stolen property and as stated herein above in normal course of ordinary business, no receipts are being issued for old property.
8. In view of the aforesaid discussion it is clear that both the courts below have committed an error in not going through this aspect of the matter and convicted the petitioners in both these applications on mere surmises and conjecture excepting the statement of police personnel who were interested witnesses.
9. In the case of Aslam Parwez versus Govt. of NCT of Delhi reported in (2003) 9 SCC 141 the Hon'ble Apex Court had held with regard to interested witnesses at para 10 as under:
"10. ............... In view of these features of the case, we are of the opinion that the testimony of three police personnel, namely, PWs 10, 11 and 14 does not inspire confidence and it will be highly unsafe to place reliance upon the same in order to convict the accused specially 6 when the public and independent witnesses did not at all support the prosecution case on any material particular."
10. In view of the aforesaid facts and discussions dealt herein above, both these applications are allowed and the judgment passed by the learned trial court and upheld by the learned appellate court, is hereby, quashed and set aside.
11. The petitioners shall be discharged from the liability of their bail bonds.
12. Let the copy of this order be communicated to the court below and also to the petitioners.
13. Let the lower court record be sent back to the court concerned forthwith.
(Deepak Roshan, J.) Pramanik/