Jharkhand High Court
Tuleshwar Dangi & Ors. vs State Of Jharkhand on 22 June, 2017
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (SJ) No. 369 of 2003
Against the judgment of conviction and order of sentence dated 18.02.2003,
passed by Sri Indra Deo Mishra, Additional Sessions Judge, F.T.C.I, Chatra in
Sessions Trial No. 243 of 1991.
1. Tuleshwar Dangi @ Tuleshwar
2. Suresh Prajapati
3. Kanhai Sao..................... Appellants
Versus
State of Jharkhand..................... Respondent
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For the Appellant : Mr. Pramod Kumar, Advocate
For the RespondentState : Mr. Vijay Kr. Gupta, A.P.P.
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P R E S E N T
The Hon'ble Mr. Justice Ananda Sen
J U D G M E N T
By Court. This appeal is directed against the impugned judgment of
conviction and sentence passed on 18.02.20103 by the Additional Sessions Judge, F.T.CI, Chatra in Sessions Trial No. 243 of 1991, whereby all the appellants have been found guilty for committing an offence under Section 392 of the Indian Penal Code and, whereby, they have been sentenced to undergo rigorous imprisonment for two years.
2. The prosecution case, in brief, is that on 24.11.1988 at about 2 p.m. the informant (PW8) while was going to his sister's house, in the midst of the way, these three appellants intercepted him. They sat and consumed tobacco together. When the informant proceeded further after one kilometer these three appellants again came and intercepted him. It is alleged that appellant no. 2 Suresh Prajapati brandished a knife and the other appellants had taken away HMT Wrist Watch of the informant and snatched a cash amount of Rs. 2.90/ from his pocket. The informant thereafter, went and informed the matter to the village Chaukidar Bodha Yadav (PW9). On this, the village Chaukidar and others went to the house of these appellants and it is alleged that these appellants returned his wrist watch and cash amount of Rs. 2.90/. Thereafter, the informant and these three appellants were taken to the police station alongwith the 2 materials which were seized by the police and seizure list was prepared.
3. On this allegation, a F.I.R being Chatra P.S. Case No. 118 of 1988 was registered under Sections 392, 397 & 411 of the Indian Penal Code.
4. After investigation, charge sheet was submitted by the Investigating Officer. Cognizance was taken and the case was committed to Court of Sessions.
5. After framing of charge, the prosecution, in order to substantiate its case, examined 13 witnesses.
6. After closure of the evidence, the appellants were examined under Section 313 of the Code of Criminal Procedure. No evidence was led by the defence.
7. The trial court after analyzing the evidences and after hearing the arguments of the parties, convicted the appellants for the offence under Section 392 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for two years. However, the appellants were acquitted of the charges under Section 397 and 411 of the Indian Penal Code.
8. Being aggrieved by the said judgment of conviction and order of sentence, the appellants have preferred the instant appeal.
9. Learned counsel appearing for the appellants submits that the prosecution has miserably failed to prove their case. He further submits that the informant and the accusedappellants were known to each other from before and there was dispute existing between them. He further submits that this fact has also come in the evidence of the witnesses and thus, there is doubt about the veracity of the prosecution case. He submits that recovery from the possession of appellant no. 2 Suresh Prajapati is also doubtful as there is nothing on record to suggest that the materials, which were recovered, belongs to this informant and there is no 3 identification mark on any of the materials, which have been recovered. He further submits that the HMT Wrist Watch and the amount of Rs. 2.90/, which had been recovered, are most common article. In the evidence of the witnesses, it has come that most of the persons in the village were wearing HMT watches and are carrying money in their pockets. Thus, recovery of the article and money from the possession of the appellants, cannot be related with the informant.
10. On the other hand, learned APP supporting the impugned judgment of conviction and sentence, submits that the evidences are consistent and in fact, voluntarily these appellants had handed over the materials to the Chaukidar, who is PW9 and thereafter, the appellants were taken to the police station alongwith the materials where the seizure list of the materials was prepared. He further submits that the evidence of PW8 is consistent and there is no discrepancy in the evidences of other witnesses. Thus, the conviction and sentence need not to be interfered with by this Court.
11. After hearing the parties, I find that 13 witnesses have been examined in this case by the prosecution. The Investigating Officer has not been examined. The witnesses of the occurrence are PW 8 the informant, PW9 the Chaukidar (who recovered the materials) and PW10 another Chaukidar.
12. PW8 informant in his evidence, has stated that while he was going to his sister's house, these appellants intercepted him and, thereafter, they sat and consumed tobacco together. After consuming tobacco when he proceeded further, after some distance these appellants again came and intercepted him and snatched his HMT wrist watch and cash amount of Rs. 2.90/ from his pocket on the point of knife. After the occurrence, he went to the Chaukidar of the village and complaint about 4 the incident to him. Thereafter, the Chaukidar and others went to the house of these appellants and the wrist watch and cash amount of Rs. 2.90/ was recovered by the Chaukidar, which was handed over to the police. He, in his evidence, has stated that the accused persons were known to him. This fact has also reflected in the fardbeyan of the informant.
13. PW5 is the hearsay witness, who heard about the occurrence. He stated that earlier there was some dispute between the parties. He also stated that wrist watch and the money was handed over to the Chaukidar by the accused persons (appellants) in his presence. PW9 the Chaukidar has stated in his evidence that the informant came and informed him about the occurrence and, then he went to the house of the appellants alongwith others. Appellant no. 3 Kanhai Sao returned the wrist watch and the money to the Chaukidar. This fact is also corroborated by PW1.
14. PWs 1, 5, 6 & 7 have deposed that the informant (PW8) had informed them about the occurrence and they also corroborated that these appellants returned the wrist watch and the money to PW9 in their presence.
15. Thus, from the evidence gathered, I find that the appellants had taken away the wrist watch and a cash amount of Rs. 2.90/ from possession of the informant. This fact stands proved. Now, the question remains whether these appellants can be convicted under Section 392 I.P.C. To convict a person under Section 392 IPC, the ingredient of Section 390 IPC must be present. The main ingredient of Section 390 IPC is that the offender should voluntarily cause or attempts to cause to any person death or hurt or wrongful restrain, or put the persons in fear of instant death or of instant hurt, or of instant wrongful restrain. From the evidence, I find that there is nothing to suggest that the ingredient of 5 Section 390 IPC is present in the instant case. None of the witnesses including the informant has stated that the informant was threatened of instant hurt or death. From the evidence, I find that at best the act of the appellants would come within the purview of Section 384 of the Indian Penal Code. I find from the evidence that there are ingredients that the appellants have put the informant in fear of injury and thereafter forced him to deliver his wrist watch and Rs. 2.90/. Thus, there is ingredient of Section 383 IPC, present in this case for which punishment is prescribed under Section 384 IPC.
16. Thus, in view of the evidence, which has been gathered by the prosecution, the prosecution has able to establish that the appellants have committed the offence punishable under Section 384 of the Indian Penal Code. Thus, I convert the conviction of the appellants under Section 392 IPC to Section 384 IPC and sentenced them to undergo rigorous imprisonment for one month. This sentence of one month is imposed considering the fact that the persons were known to each other from before and the materials were returned to the informant by them and there was earlier dispute between the parties. Since the appellants have already served the sentence of one month in custody, it is not necessary to send them in custody any further, if not wanted in any other case. The appellants, who are on bail, are discharged from the liabilities of their bail bonds.
17. In the result, this criminal appeal is dismissed with the aforesaid modification in conviction and sentence.
(Ananda Sen, J) Jharkhand High Court, Ranchi Dated the 22nd June, 2017;
NAFR/Mukund/c.p.3