Jharkhand High Court
Ganesh Kumhar Son Of Etwar Kumhar vs The State Of Jharkhand ... ... Opp. Party on 22 June, 2021
Equivalent citations: AIRONLINE 2021 JHA 785
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 910 of 2013
Ganesh Kumhar son of Etwar Kumhar, resident of Village
Nalita, P.O. & P.S. Toklo, District-West Singhbhum
... ... Petitioner
-Versus-
The State of Jharkhand ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Sahay Gaurav Piyush, Advocate For the Opp. Party : Mr. Sanjay Kumar Srivastava, A.P.P.
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Through: Video Conferencing
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11/22.06.2021 At the outset, the learned counsel appearing for the petitioner pointed out that the present criminal revision petition was admitted on 06.12.2013 and the Lower Courts Records of the case was called for and the petitioner was directed to be released on bail during pendency of the present criminal revision application, but I.A. No. 8062/2013 filed on behalf of the petitioner on 23.10.2013 for condoning the delay caused in filing the criminal revision petition has not been taken up till now and therefore, he prayed for taking up I.A. No. 8062/2013. Accordingly, I.A. No. 8062/2013 is being taken up first.
I.A. No. 8062/20132. Heard learned counsel appearing for the petitioner and the learned A.P.P. appearing for the State on the limitation petition.
3. The learned counsel for the petitioner has submitted that the petitioner had got the information belatedly regarding dismissal of the criminal appeal by the learned lower appellate 2 court and thereafter, he took proper legal advice and obtained the certified copies of the records of the case including the depositions and the judgment passed by the learned trial court and filed the present revision petition, but in the process, a delay of 40 days has been caused in filing the present criminal revision petition. He further submitted that the reasons for the delay are stated in Paragraph Nos.4 and 5 of the limitation petition and hence, the delay is fit to be condoned for the ends of justice.
4. The learned A.P.P. appearing for the Opposite Party-State has no serious objection regarding condonation of delay.
5. After hearing the learned counsel for the parties, this Court is satisfied that sufficient grounds have been made out for condoning the delay in filing the present criminal revision application. Accordingly, the delay caused in filing the present criminal revision petition is hereby condoned and I.A. No. 8062/2013 is allowed.
Cr. Revision No. 910 of 20136. With the consent of the parties, the matter is taken up on merits.
7. Heard Mr. Sahay Gaurav Piyush, the learned counsel appearing on behalf of the petitioner.
8. Heard Mr. Sanjay Kr. Srivastava, the learned A.P.P. appearing on behalf of the Opposite Party-State.
9. This criminal revision petition has been filed by the petitioner against the Judgment dated 03.05.2013 passed by the learned Sessions Judge, West Singhbhum, Chaibasa in Criminal Appeal No. 57/2009, whereby the learned appellate court affirmed the conviction and sentence of the petitioner and the co-appellant under Section 414 of the Indian Penal Code passed by the learned trial court. The criminal appeal was preferred by the petitioner alongwith co-convict Laxman Jamuda and the 3 learned appellate court acquitted both the appellants from the charges under Sections 25(1-B) a and 26 of the Arms Act but confirmed the conviction under section 414 IPC.
10. The petitioner alongwith Laxman Jamuda and Bablu Bodra were held guilty and convicted under Sections 25(1-B) a and 26 of the Arms Act and Section 414 of the Indian Penal Code vide judgment of conviction and the order of sentence dated 18.11.2009 passed by the learned Judicial Magistrate, 1 st Class, Porahat at Chaibasa in G.R. Case No. 287 of 2008 / T.R. No. 257/2009 (arising out of Chakradharpur (Toklo) P.S. case No.137/2008 dated 16.10.2008). They were sentenced to undergo Rigorous Imprisonment for 03 years and to pay fine of Rs.500/- and in default of payment of fine, to further undergo Simple Imprisonment for one month for the offence under Section 25(1-B) a of the Arms Act.
Rigorous Imprisonment for one year and to pay fine of Rs.500/- and in default of payment of fine, to further undergo Simple Imprisonment for one month has been awarded for offences under Section 26 of the Arms Act.
Rigorous Imprisonment for one year and to pay fine of Rs.500/- and in default of payment of fine, to further undergo Simple Imprisonment for one month for offence under Section 414 of the Indian Penal Code AND it was ordered that all the sentences will run concurrently and the period undergone by the convicts shall be set off against the period of sentence.
Arguments on behalf of the petitioner
11. Learned counsel for the petitioner while advancing his arguments submitted that it has been alleged that three persons were riding on the same motorcycle and the motorcycle was alleged to be a theft property. He submitted that the case was lodged against all the three persons under the Arms Act as well 4 as under Section 414 of the Indian Penal Code and the trial court convicted all the three both under the Arms Act as well as under Section 414 of the Indian Penal Code. Out of three persons, the petitioner and another had filed criminal appeal, but the third did not move in appeal. So far as the two persons who filed the criminal appeal including the present petitioner are concerned, their conviction under the Arms Act was set- aside, but their conviction and sentence under Section 414 of the Indian Penal Code was affirmed. The co-appellant has not preferred any revision, but only the present petitioner has preferred the revision petition.
12. The learned counsel for the petitioner further submitted that it has not come in evidence as to who was driving the vehicle and merely because a person was found riding on the vehicle, the same does not indicate that he was in possession of the stolen vehicle. He submitted that considering the totality of the facts and circumstances of this case and in absence of any evidence as to who out of the three was driving the vehicle, the petitioner is entitled to benefit of doubt. He also submitted that no evidence has been brought on record from the side of the prosecution that there was active concealment on the part of the petitioner regarding the stolen property and accordingly, basic ingredients of the offence under Section 414 of IPC are not made out against the petitioner.
13. The learned counsel for the petitioner further submitted that there is also a serious error in the judgment passed by the learned court below that the motorcycle was exhibited, but in fact the motorcycle was never exhibited as a Material Exhibit and it appears that the same was released in favour of the owner. He submitted that vehicle ought to have been exhibited before the learned court below.
514. The learned counsel submitted that these aspects of the matter have not been properly considered by the learned courts below and therefore, the impugned judgments are perverse and are fit to be set-aside.
15. The learned counsel for the petitioner further submitted that the petitioner was in jail custody for more than 06 months from 17.10.2008 to 29.04.2009 during trial and for about 04 months from 12.08.2013 to at least 06.12.2013 when the petitioner was admitted to bail by this Hon'ble Court i.e. for more than 10 months in total and he has been sufficiently punished and therefore, the sentence of the petitioner may be modified and reduced to the period already undergone by him for the ends of justice.
Arguments on behalf of the Opposite Party-State
16. Learned counsel appearing on behalf of the Opposite Party-State submitted that both the learned courts below have recorded concurrent findings of facts with regard to conviction and sentence of the petitioner under Section 414 of the Indian Penal Code and therefore, the Impugned Judgments require no interference under revisional jurisdiction.
Findings of this Court
17. After hearing the learned counsel for the parties and after going through the impugned judgments and the lower court records, this Court finds that the prosecution case is based on the written report dated 16.10.2008 lodged by the informant- Pradeep Kumar, Sub-Inspector of Police and Officer-in-charge, Toklo P.S. alleging inter-alia that on 16.10.2008 at about 13:00 hours, he received a telephonic information from his superior officer that seven miscreants, after committing bank loot, fled away towards Toklo Police Station area on three black coloured motorcycle. After receiving such information, the informant 6 constituted a raiding party alongwith other police personnel and under the leadership of Ramdeo Prasad, Inspector of Police, they proceeded from the Police Station and reached near Village- Kenke and started checking the vehicles on pitch road. At about 14:00 hours, the informant saw a black colour motorcycle coming from Toklo Bazaar and going towards Village- Kenke in high speed, on which, three persons were riding and when they reached near pitch road and noticed the police party, they tried to escape from there, but they fell down with the motorcycle and sustained injuries. Thereafter, the miscreants were apprehended by the police. In the meantime, some villagers also reached there and in presence of two villagers namely, Sidiu Samad (P.W.-12) and Bara Hansda (P.W.-13), the informant made search of their persons. It was alleged that from the possession of Laxman Jamuda, one loaded pistol from left side of his waist, a Nokia mobile and currency notes of Rs.7,000/- were recovered. From the possession of Bablu Bodra, a loaded country made pistol and a mobile set were recovered and from the possession of Ganesh Kumhar (petitioner herein), a knife was recovered. Apart from the above, a Pulsar motorcycle bearing Registration No. JH-05J- 1236 was also recovered from their possession, but they neither produced any valid document in respect of the recovered articles, nor gave any satisfactory reply in respect thereof. Accordingly, the articles were seized and a seizure list was prepared.
18. On the basis of the written report, Chakradharpur (Toklo) P.S. Case No. 137/2008 dated 16.10.2008 was registered under Sections 25(1-B)a/26(ii) of the Arms Act and Section 414 of the Indian Penal Code against Laxman Jamuda, Bablu Bodra and the petitioner and investigation was taken up. After completion of the investigation. Charge-sheet was submitted under the 7 same sections by the investigating officer of the case before the learned Sub-Divisional Judicial Magistrate, Porahat at Chaibasa, who took cognizance of the offence under the same sections and transferred the case record to the court of learned trial court for trial and disposal of the case as per law.
19. On 20.03.2009, the charges under Sections 25(1-B) a/26 of the Arms Act and Section 414 of the Indian Penal Code were framed against all the three accused persons which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.
20. In course of trial, the prosecution examined altogether 13 witnesses to substantiate the charges levelled against the accused persons. P.W.-1 is Bhola Ram, Assistant Sub-inspector of Police in Toklo P.S., P.W.-2 is Ramdeo Prasad, Inspector of Police of the Chakradharpur Circle. P.W.-3 is Manan Sah Gour, P.W.-4 is Sunil Kumar Mandi, P.W.-5 is Dhanpati Munda, P.W.- 6 is Narsingh Mundu and P.W.-7 is Rajendra Paswan who are police constables. P.W.-8 is Mahendra Kumar who is the Investigating Officer of this case and P.W.-9 is Pradeep Kumar, Sub-inspector who is the informant of the case. P.W.-10 is Anjani Kumar who is Sergeant Major, P.W.-11 is Basant Singh who is also a police constable, P.W.-12 is Sidiu Samad and P.W.-13 is Bara Hansda who are the seizure list witnesses.
21. The prosecution exhibited the following documents:
Exhibit-1 is search and seizure list, Exhibit-2 is written report, Exhibit-3 is formal FIR, Exhibit-4 is Application submitted by B.P. Srivastava, A.S.I. of Gamharia P.S., Exhibit-5 is forwarding report, Exhibit-6 is application submitted by P.W.-8 for examination of firearms and cartridges, Exhibit-7 is Examination Report of firearms, Exhibit-8 is Sanction Order of D.M., West Singhbhum at Chaibasa, Exhibit-9 & 9/1 are the signatures on seizure list. The prosecution also exhibited the 8 two country-made pistols as Material Exhibits- I and I/1, two cartridges as Material Exhibits- II & II/1, spring fitted knife as Material Exhibit-III, two mobile sets of Nokia company as Material Exhibit-IV & IV/1 and currency notes of Rs. 7,000/- as Material Exhibit-V
22. On 03.10.2009, the statements of the accused persons were recorded under Section 313 of Cr.P.C. wherein the petitioner denied the allegations and claimed to be innocent.
23. This Court finds that the learned trial court appreciated the oral and documentary evidences adduced on behalf of prosecution and found that the informant P.W.-9, Informant has supported the prosecution case in toto and has stated in his evidence regarding recovery of the loaded country made pistols and the stolen Pulsar motorcycle bearing a fake Registration No. JH-05-1236 from possession of the accused persons on pitch road near village-Kenke. The accused persons did not produce any document in respect thereof. P.Ws.- 2, 3, 4, 5, 6, 7 and 11 who were the members of the police party have corroborated the evidence of P.W.-9. P.W.-1, Bhola Ram who was member of other team and was checking vehicles in other place had also seen the accused persons coming on motorcycle in high speed and on being signaled, they did not stop their vehicle.
24. The learned trial court, inter alia, at Para-18 held that motorcycle by which the accused persons were travelling and which was seized by the police was a stolen property. As it appears from the evidence of the investigation officer that during course of investigation, he came to know that said motorcycle was stolen from Gamharia P.S. area for which Gamharia P.S. Case No. 66/08 was instituted. The learned trial court has further held that Exhibit-4 also proves the fact that said motorcycle was stolen from Ganesh Puja Maidan on 03.09.2008 and it has also come in evidence that the accused 9 persons had changed the registration number of the motorcycle and were plying the same with fake registration number, which proves that the accused persons knowing well that the motorcycle was stolen property assisted in concealing the identity of the same by changing its registration number.
25. After appreciating all the materials and evidences on record, the learned trial court found that the prosecution has been able to prove the charge under Sections 25(1-B)a and 26 of the Arms Act as well as Section 414 of the IPC levelled against all the accused persons including the petitioner beyond all reasonable doubts.
26. The learned appellate court after considering the entire facts and circumstances of the case was of the view that the prosecution has failed to establish the charge under Section 25(1-B)a and 26 of the Arms Act for the sole reason that the alleged pistol and cartridges were not sealed at the spot and no distinctive mark was given on them at the spot and the I.O. of the case is none, but the member of the raiding party. The learned appellate court found that the prosecution has been able to prove the charge under Section 414 of the Indian Penal Code against the accused persons beyond shadow of reasonable doubt.
27. The learned appellate court further found that the learned trial court has committed no manifest error in coming to the finding of the guilt of the petitioner and Laxman Jamuda for the charge under Section 414 of the Indian Penal Code, whereas the learned trial court has committed manifest error in coming to the finding of the guilt of the appellants for the charges under Sections 25(1-B)a and 26 of the Arms Act and accordingly, the learned appellate court acquitted the petitioner for the charges under Sections 25(1-B)a and 26 of the Arms Act 10 and affirmed the conviction and sentence of the petitioner for the offence under Section 414 of the Indian Penal Code.
28. This Court finds that the petitioner and the co-convicts were apprehended at the spot alongwith the Pulsar motorcycle bearing Registration No. JH-05J-1236, chassis no. MD 2DHDJZZPCE 26800 and engine No. DJGBPE799750 in their joint possession which was seized by the police and the said motorcycle was found to be a stolen property, stolen from Gamharia P.S. area, for which Gamharia P.S. Case No. 66/08 was instituted.
29. This Court further finds that P.W.-9, Informant has fully supported the prosecution case with regard to the recovery of the stolen motorcycle from the joint possession of the petitioner and co-convicts and P.Ws.- 2, 3, 4, 5, 6, 7 and 11 who were the members of the police party have fully corroborated the evidence of P.W.-9 in this respect.
30. This Court finds that both the learned courts below have elaborately dealt with the entire case and have recorded concurrent finding of facts with regard to committing the offence under Section 414 of the Indian Penal Code by the petitioner.
31. Considering the entire facts and circumstances of this case and keeping in mind the scope of revision jurisdiction, this Court finds no illegality or perversity in the conviction of the petitioner under Section 414 of the Indian Penal Code and accordingly, the conviction of the petitioner under Section 414 of the Indian Penal Code passed by the learned trial court and affirmed by the learned appellate court is hereby upheld.
32. So far the sentence of the petitioner is concerned, this Court finds that the petitioner has already remained in jail custody for more than 06 months during trial and for about 04 months during pendency of this criminal revision petition and 11 accordingly, the petitioner has remained in jail custody for 10 months against the sentence of Rigorous Imprisonment for one year and fine of Rs.500/- with default clause for the offence under Section 414 of the Indian Penal Code.
33. This Court further finds that the case was lodged in the year 2008 and the petitioner has faced the rigours of the criminal case for more than 12 years.
34. Considering the aforesaid facts and circumstances of the case, this Court is of the view that the ends of justice would be served, if the sentence of the petitioner is modified to some extent. Accordingly, the sentence of the petitioner for the offence under Section 414 of the Indian Penal Code is modified and reduced to the period already undergone by him and fine imposed by the learned court below to be deposited within a period of two months from the date of communication of this order. On account of non-deposit of the fine amount, the bail bond furnished by the petitioner will be cancelled by the learned court below and the petitioner would undergo simple imprisonment of one month as directed by the learned court below.
35. With the aforesaid findings and modification of the sentence of the petitioner, this criminal revision petition is hereby disposed of.
36. Pending interlocutory application, if any, is dismissed as not pressed.
37. Let the Lower Court Records be immediately sent back to the court concerned.
38. Let a copy of this Judgment be communicated to the learned court below through "FAX/e-mail".
(Anubha Rawat Choudhary, J.) Binit