Patna High Court - Orders
Md. Idris vs The State Of Bihar on 20 June, 2013
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.1209 of 2012
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Md. Idris S/O Md. Biran Resident Of Khojeechak, Tola Bhola
Takiya, P.S- Simari Bakhtiyarpur, District- Saharsa.
.... .... Petitioner/s
Versus
The State Of Bihar
.... .... Respondent/s
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with
Criminal Revision No.1227 of 2012
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Bado Mian, son of Late Zaheer Mian, resident of village-Maula
Takia, Khoju Chak, P.S.Bakhtiyarpur, District-Saharsa
.... .... Petitioner/s
Versus
The State Of Bihar
.... .... Respondent/s
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Appearance :
(In CR. REV. No.1209 of 2012)
For the Petitioner/s : Mr. Pramod Kumar Mallick &
Mr. Sanjay Kumar, Advocates.
For the Respondent/s : Mr. Arun Kumar Pandey, APP.
(In CR. REV. No.1227 of 2012)
For the Petitioner/s : Mr. Nafisuzzoha, Advocate.
For the Respondent/s : Mr. Arun Kumar Pandey, APP.
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CORAM: HONOURABLE MR. JUSTICE ADITYA
KUMAR TRIVEDI
ORAL ORDER
5 20-06-2013Cr. Revision No.1209 of 2012 wherein Md. Idris happens to be the petitioner and Cr.Revision No.1227 of 2012 wherein Bado Mian happens to be the petitioner originate from Patna High Court CR. REV. No.1209 of 2012 (5) dt.20-06-2013 2 common judgment dated 20.09.2012 passed by Sessions Judge, Saharsa in Cr.Appeal No.44 of 2012 whereby and whereunder appeal has been dismissed as well as judgment dated 5 th of July, 2012 passed by Sri Dhirendra Kumar, Judicial Magistrate, Ist Class, Saharsa in G.R.Case No.1413 of 1996, Trial No.434 of 2012 whereby both the petitioners, namely, Md. Idris and Bado Mian independently have been found guilty for an offence punishable under Section 411 of the IPC and have been directed to undergo simple imprisonment for two years with a privilege of set of against the period already under gone in terms of Section 428 of the Cr.P.C. Accordingly, with the consent of the parties, both the Cr.Revisions have been heard together and are being disposed of by a common judgment.
2. P.W.5 Harilal Mahto filed written report(not exhibited) on 10.12.1996 disclosing therein that in between night of 17/18.12.1996 he awoke and found his pair of oxen missing. Being apprehensive that the oxen might have been stolen away, they started searching and on the following morning at about 8 A.M., they saw the oxen along with thieves at a lonely place near village Mahishi Naharwar and accordingly both were apprehended, taken to police station, where written report was filed.
Patna High Court CR. REV. No.1209 of 2012 (5) dt.20-06-2013 3
3. On the basis of the aforesaid written report, Sonbarsa Katcheri P.S.Case No.540 of 1996 was registered under Sections 379, 411 of the IPC whereunder chargesheet was also submitted and after having cognizance on that very basis the case was transferred to the court of Magistrate for trial, which ultimately concluded in conviction of both the petitioners under Section 411 of the IPC while were acquitted for an offence punishable under Section 379 of the IPC which is found concurred by the Appellate Court also, hence this revision petition.
4. While challenging the successive judgments passed by the learned lower courts, it has been submitted that in ordinary course, the revisional jurisdiction is found to be ousted unless and until there happens to be apparent error in appreciation of the evidence by the successive courts. It has also been submitted that in the facts and circumstances of the case, petitioners are under obligation to place relevant materials which could nullify the finding arrived at by the learned successive Courts, otherwise instant revision petition would not be entertainable. Under the garb of the aforesaid legal principle, relevant paras of the P.Ws. have been referred to suggest that these evidences which are sufficient for getting the successive Patna High Court CR. REV. No.1209 of 2012 (5) dt.20-06-2013 4 judgments set aside, been ignored by the courts below.
5. It has also been submitted that from narration of the occurrence, it is evident that both the petitioners along with pair of oxen was apprehended in its continuity right from having the pair of oxen stolen from the house of the informant. Having the story of theft disbelieved by the learned trial court virtually, dent upon the prosecution version so far case under Section 411 of the IPC is concerned because of the fact that the basic ingredients of Section 411 IPC on that very account found to be negativated by the learned trial court as well as concurred by the Appellate Court. It has further been submitted that both the petitioners have remained under custody for near about a year and taking into account the long pendency of the trial, they be let off accepting the period already undergone.
6. At the other hand, the learned Additional P.P. while supporting the successive judgments of conviction and sentence had categorically stated that the power of revisional court happens to be very limited in case there happens to be concurrent finding of the fact. It has further been submitted that the learned trial court as well as the learned Appellate Court had minutely gone through the evidences and then inferred with regard to presence of ingredients attracting Patna High Court CR. REV. No.1209 of 2012 (5) dt.20-06-2013 5 Section 411 of the IPC whereunder both the petitioners stood convicted and sentenced. As such, the successive judgments need no interference.
7. After having look at the lower court record, it is evident that during course of trial, the petitioners have pleaded innocence and denied the occurrence in toto. They both have claimed the seized oxen to have purchased from Taiyab of village-Orah during course of statement under Section 313 of the Cr.P.C. However, no D.W. has been examined on their behalf nor any document has been exhibited.
8. Prosecution had examined altogether five P.Ws., out of whom, P.W.1 Bulur Mahto, P.W.2 is Madho Das, P.W.3 is Jaikant Sah, P.W.4 is Pankaj Kr. Mahto and P.W.5 is Harilal Mahto side by side also exhibited, Ext-1 signature of informant over written report as well as Ext-2, signature of one of the witnesses over seizure list.
9. True it is, that by catena of decisions, the revisional power to be exercised while adjudicating upon concurrent finding of the learned lower court shown to be limited one unless and until there happens to be glaring defect visualizing from the judgments in connection with the material on record or there happens to be wrong interpretation of law. Taking into Patna High Court CR. REV. No.1209 of 2012 (5) dt.20-06-2013 6 account the aforesaid principle in the backdrop, parallel scrutiny of the judgment rendered by both the Courts along with the evidence available on the record has been done. From the record, it is apparent that initially both the petitioners were charged for an offence punishable under Section 379 of the IPC for the theft of pair of oxen along with Section 411 IPC having in possession of stolen oxen. From the judgment of the trial court, it is evident that the story of theft has been disbelieved and on account thereof both the petitioners were acquitted. The relevant para of the judgment delivered by the learned trial court is quoted below in Para 9%& ^^ vfHk;kstu }kjk izLrqr lHkh lkf{k;ksa us vius lk{; esa dgk gS fd cSy dks pqjkrs geus ugha ns[kk] ,slh ifjfLFkfr esa vfHk;qDrksa dks nks"kfl) ugha fd;k tk ldrk A** Which had further been reiterated under same para :-
^^,slh ifjfLFkfr esa ;g dguk xyr ugha gksxk fd vfHk;kstu us vius okn dks /kkjk 379 Hkk0 na0 fo0 ds lUnHkZ esa ;qfDr & ;qDr lansg ls ijs tkdj lkfcr ugha fd;k gS] ijUrq /kkjk 411 Hkk0 na0 fo0 dks ;qfDr & ;qDr lansg ls ijs tkdj lkfcr fd;k gSA **
10. This finding has got a bearing in the facts and circumstances of the case because of the fact that there happens to be consistent prosecution version that prosecution party after finding pair of bullock missing from their house, rushed in Patna High Court CR. REV. No.1209 of 2012 (5) dt.20-06-2013 7 search thereof and in continuity, the accused along with both the bullocks were apprehended.
11. Now coming to the evidence on record, the evidence on its perusal at least gives an impression of having the occurrence committed in different manner because of the fact that the written repot completely silent with regard to information given to the police before filing of the written repot. P.W.1 who happens to be the brother of P.W.5, the informant and who had accompanied the P.W.5 in getting both the bullocks along with both the petitioners apprehended had claimed in his examination-in-chief that Bado Mian and Md. Idris have untied the bullock and while were proceeding, were apprehended along with bullocks in between Maheshi and Naharbar and then thereafter they both along with bullocks were taken to Sonbarsa Katcheri. During cross-examination at para-5 he had stated that a case has been instituted at P.S. with regard to bullocks. One person had gone to P.S. for registering Sanha while remaining had gone in search of bullocks. Police was informed with regard to bullocks. Sanha was given at Sonbarsa Katcheri P.S. which happens to be his police station. In para-6 he had stated that he had proceeded from his house at about 8-8.30 A.M. reached at Sonbarsa Katcheri at 9-10 A.M. Patna High Court CR. REV. No.1209 of 2012 (5) dt.20-06-2013 8 and then filed written report after getting it scribed by Shambhu Mahto. He had mentioned the fact that his bullocks were stolen. He was unable to disclose the Sanha. Then had disclosed in para-7 that he had reached at Naharbar at about 11 A.M. In para-8, he had disclosed that he had apprehended the bullocks. In para-10, he had narrated that he along with 4-5 persons conjointly apprehended the bullocks along with the accused persons. The accused did not flee even after seeing them. When the evidence of P.W.5, the informant is considered at the present context, it is evident from the examination-in-chief itself that he along with his brother only have rushed towards Maheshi Naharbar and found the bullocks along with the accused persons. During cross-examination at para-10, he had mentioned the fact that when they caught bullocks, the accused persons began to flee. One escaped towards western direction and the other towards north direction. Bado Mian escaped towards western direction while Md. Idris towards northern. He along with his brother Bulur Mahto(P.W.1) rushed to apprehend Bado Mian and after covering distance of ten rassi they apprehended Bado Mian. In para-6 he had again mentioned the fact that Bulur Mahto had caught hold Md. Idris. He had not rushed to apprehend Md. Idris. In para-7, he had Patna High Court CR. REV. No.1209 of 2012 (5) dt.20-06-2013 9 stated that he along with his brother proceeded therefrom. He was carrying the bullocks while his brother was carrying both the accused persons. The accused did not try to escape. They both came to P.S. along with them. Taking into account, the evidence of P.W.1 and P.W.5, the evidences of other witnesses that means to say P.W.2, P.W.3 and P.W.4 have become worthless on account of the fact that these two witnesses P.Ws.1 and 5 completely side tracked their presence at that very moment. Moreso, they have also shown their status not to be an eye witness to the occurrence.
12. Admittedly, the investigating officer has not been examined and on account thereof the disclosure made by the P.W.1 in paras-5 and 6 as referred above could not properly brought up on record. The prosecution also did not care to get those documents on the record. Had there been, the present status of the written report would certainly have been changed as being hit by Section 162 of the Cr.P.C. Not only this, the manner as well as genesis of occurrence would have also visualized in a manner being the initial version of the prosecution and withholding the same, really gives a collusive colour of the prosecution version.
13. The aforesaid theme is found further strengthened Patna High Court CR. REV. No.1209 of 2012 (5) dt.20-06-2013 10 from bare perusal of the format of the FIR whereupon there happens to be consistent over writing having in the pen of police official and on account of non-examination of I.O., again the defence has been prejudiced on that very score.
14. Now coming to the judgment rendered by successive Courts, it is apparent that both the Courts had ignored the aforesaid piece of material having on the record.
15. Thus, taking into account the infirmities as discussed above which both the successive Courts had slipped to acknowledge renders the successive judgments ineffective as well as non-sustainable in the eye of law. Consequent thereupon both the successive judgments are set aside. Revision petition is allowed.
16. It has been submitted on behalf of the petitioners that both the petitioners are under custody, hence petitioners, namely, Md. Idris as well Bado Mian are directed to be released forthwith, if not wanted in any other case.
(Aditya Kumar Trivedi, J) B.Kr./-