Jharkhand High Court
Jila Tigga @ Jagmohan Oraon @ Zila Tigga vs The State Of Jharkhand ... Opp. Party(S) on 19 December, 2019
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.Rev. No. 799 of 2019
Jila Tigga @ Jagmohan Oraon @ Zila Tigga ... Petitioner(s).
-Versus-
The State of Jharkhand ... Opp. Party(s).
------
CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
------
For the Petitioner(s) : Mr. Kripa Shankar Nanda, Advocate.
For the State A.P.P.
ORDER
Order No. 05/ Reserved on: 11.11.2019 Pronounced on:19/12/2019 By way of filing this petition, the petitioner has challenged the judgment of conviction and order of sentence dated 26.3.2018 passed by the learned Chief Judicial Magistrate, Simdega, in G.R. No. 62/2012, arising out of Kolebira P.S. Case No. 13/2012, whereby, the petitioner has been convicted for the offence under Sections 392, 411, 414 of the Indian Penal Code and Section 25(1-B)a 26/35 of the Arms Act and sentenced him to undergo R.I. for 5 years and fine of Rs.5,000/- under Section 392 IPC and undergo R.I for 03 years along with fine of Rs.2,000/- under Section 411 and 414 IPC and undergo R.I for 03 years along with a fine of Rs.5,000/- under Section 25(1-B)a/35 of the Arms Act and undergo R.I. For 5 years along with a fine of Rs.5,000/- under Section 26/35 of the Arms Act and in default of payment of fine, the petitioner has further been directed to undergo R.I for six months in default of payment of fine separately as well as for setting aside the judgment of confirmation passed in Cr. Appeal No. 25/2018 by the learned Principal Sessions Judge, Simdega.
2. The prosecution case is based upon fardbeyan of one Rajendra Prasad, recorded by Officer-in-Charge, Kolebira Police Station on 11.2.2012 stating therein that when he went to Larwa Market and was purchasing mahuwa and Urad, at about 11:30 a.m, three miscreants came to him riding on one black colour Hero Honda Passion Pro motorcycle without having any registration number, one of the miscreants pointed pistol on his temple and demanded money bag from him, due to fear he handed over money bag to them containing Rs.4,000/-.The miscreants started fleeing away towards Ranchi. Police came and chase was made. During chase, the miscreant lost balance of the motorcycle and dashed in a tree. All three miscreants fell down. Two of them started fleeing away in injured condition towards Aghrma. One miscreant died on the spot. On search one loaded country made pistol of 12 bore was recovered from the possession of accused Somra Mahto and cash of Rs.4,410/- of different denomination and one live cartridge of 12 bore was also recovered from the possession of the present petitioner. Thereafter a seizure list was prepared.
3. After closure of the investigation, the chargesheet was filed. The Court below took the cognizance for the offence under Sections 392, 411, 414, 279 and 304-A of the IPC and Sections 25(1-B) a/26/35 of the Arms Act. As the petitioner claiming not guilty, he along with others were put on trial after framing of charge. The prosecution has examined altogether 11 witnesses, which are as follows;
P.W.1- Rajendra Prasad: This witness is the informant of this case, who deposed that the occurrence took place on 11.2.2012 when he was in Larwa Market. He claimed to identify the miscreants. He has proved his signature on statement which was marked as Ext. 1. In TIP he identified the looted plastic bag containing money.
P.W.2- Madhusudan Biswal: This witness is a hearsay witness, who heard that Rajendra Prasad was looted by some miscreants in Larwa Market. P.W.3- Sheikh Aslam, P.W.5- Damodar Biswal and P.W.8- Marwari Singh:
These witnesses have deposed that they have no knowledge about the alleged occurrence and they have been declared hostile.
P.W.4 Dr. P.M. Bara: He is the Medical Officer who stated that on 12.2.2012 he conducted postmortem over the dead body of the deceased -Vijay. He has been brought and identified by Chowkidars. He opined that the cause of death is cardio respiratory arrest due to brain hemorrhage and the injury. P.W.6 Randhir Kumar: He in his examination in-chief stated that occurrence took place in the month of February 2012. He was called from police station and informed that some miscreants had looted Rajendra Prasad and during this course, one person died.
P.W.7 Abhijeet Kumar Sahu: He has been declared hostile by the prosecution. P.W.9 Anil Kumar Singh: He was posted as Sergeant Major at Simdega and on 24.3.2012 the I.O. Shree Niwas Kumar produced material exhibits of Kolebira P.S. Case No. 13/2012 in sealed condition in white cloth containing one country made pistol along with two cartridges of 12 bore. In cross-examination, he stated that today the said weapon is not present in the court. He stated that his report is not faulty.
P.W.10 S.I. Shree Niwas Kumar: He has supported the case and stated that on 11.2.2012 he was posted in Kolebira Police Station as Officer-in-Charge. On that day, he received information that some miscreants had looted one business man on the point of pistol. He went to the place of occurrence and recorded the fardbeyan of Rajendra Prasad, which is in his writing and signature, which is marked as Ext. 1/1. This witness in totality supported the case of the prosecution.
P.W.11- ASI Jainath Ram: He in his examination -in-chief stated that he was posted in Kolebira Police Station as ASI and by the order of Officer-in-Charge, he appeared before the court with material exhibit challan and material exhibits of Kolebira P.S. Case No. 13/2012. He stated that he got no personal knowledge about this case and he only produced the material exhibit before the court.
4. After closure of evidence of the prosecution, the statement of the petitioner was recorded under Section 313 Cr.P.C in which he stated that he has falsely been implicated in this case.
5. After hearing the parties, the learned Chief Judicial Magistrate, Simdega, passed the judgment of conviction and order of sentence dated 26.3.2018 in G.R. No. 62 of 2012/T.R. No. 79 of 2018, whereby, the appellant and other accused persons are sentenced to undergo 05 years R.I. and fine of Rs.5000/- under Section 392 IPC. They have also been sentenced 03 years R.I. and fine of Rs.2000/- each for sections 414 and 411 IPC. They have further been sentenced 03 years R.I. and fine of Rs.5000/- each for Sections 25(1-B)a/35 of the Arms Act and 05 years R.I. and find of Rs.5000/- each for Section 26/35 of the Arms Act. It has also been ordered that in default of payment of fine, 06 months R.I. extended to the petitioner and other convicts for each sections separately and all sentences shall run concurrently.
6. The said judgment of conviction and order of sentence dated 26.3.2018 was challenged in Cr. Appeal No. 25/2018 and the appeal was dismissed vide order dated 16.3.2019 by the learned Principal Sessions Judge, Simdega, affirming the judgment of conviction and order of sentence dated 26.3.2018.
7. Aggrieved by the judgment of conviction and sentence passed by the trial court and the dismissal of the criminal appeal No. 25/2018, the petitioner herein preferred this revision application.
8. Counsel for the petitioner submits that both judgments passed by the appellate court as well as the trial court are bad as both the courts below have failed to take into consideration that there are serious discrepancies in the evidences. He submits that both the courts below have not apprised the evidence in its correct perspective and have considered the evidences which are non- admissible. He further submits that there are discrepancies in the statements of the witnesses. He further contended that the petitioner was apprehended on the spot and TIP was not conducted properly, which vitiates the entire proceedings. It is also contended that the materials recovered were general articles, which cannot be said the subject matter of the proceed of the crime and this facts have not been taken note of. He also submits that Section 414 IPC has got no application in this case, which has been overlooked by both the courts below.
9. Learned A.P.P submits that both the courts below have carefully considered the prosecution case and independently weighed the evidences led by the parties and came to an independent conclusion that the petitioner is guilty of the offence as alleged and thus the trial court convicted the petitioner and the appellate court dismissed the appeal. He further submits that from the prosecution evidence, it is proved that the petitioner is guilty of offence punishable under Section 392 IPC and also under Sections 414 and 411 IPC and thus he has been sentenced accordingly. It was also proved that the petitioner is also guilty of offence punishable under Section 25(1-B) a/35 and 26/35 of the Arms Act and thus, he has also been punished under the aforesaid sections. He further submits that there is no discrepancies in the evidences led by the prosecution. He also submits that both the courts below have taken into consideration that this is not a fit case in which the provisions of Probation of Offender Act can be applied. It is further submitted that this Court cannot re-apprise the evidence as an appellate court. He lastly submits that there being no illegality and irregularity, this revision petition is liable to be dismissed.
10 This revision petition is against the judgment of conviction and order of sentence passed by the trial court and the judgment of affirmation of the appellate court. This Court is sitting in a revisional jurisdiction and is not the appellate court who can re-apprise the evidence. If there are any perversity in the judgments, this Court can look into it but cannot re-apprise the evidence as an appellate court. As a revisional Court, this Court can only look into the correctness, legality or propriety of the judgment of conviction and order of sentence passed by the court below. The Court can also see whether there is any irregularity of any proceeding of the inferior court. This Court in the jurisdiction under Section 397 Cr.P.C cannot sit as a second appellate Court, judging the judgment passed by the trial court and the appellate court. The revisional jurisdiction also does not postulate re-appraisal of evidences, led by the parties.
11. In this case, the lower court records was called for to see as to whether both the trial court and the appellate court have apprised the evidences led by the prosecution or not. After going through the same as well as the judgments passed by the appellate court and the trial court, I find that both the courts below independently have apprised and assessed the evidences led by the prosecution and found the petitioner guilty of offence punishable under Section 392 IPC as well as Section 411 and 414 IPC and Sections 25(1-B)a/35 and 26/35 of the Arms Act. I further find from the judgments and from the record that there is no procedural illegality and irregularity committed by the courts below. TI Parade was also carried in a proper manner and the informant also identified the miscreants in which, this petitioner is one of them. The miscreants tried to flee after committing the crime, and during course of fleeing away, they met with an accident in which, one of them died on the spot and the petitioner and other in injured condition were caught by the police. This fact has been consistently supported by the prosecution witnesses. The robbed materials were also recovered from the possession of the petitioner. Further the informant had supported the case in his evidence. The defence has failed to establish that the informant is not reliable or there is flaw in his statement. His evidence could not be demolished by the defence. Even though, the other witnesses have become hostile, but the informant testimony cannot be brushed aside. The trial court, after considering the aforesaid facts, which stood proved, passed the impugned judgment of conviction and order of sentence. The trial court has also considered as to whether the petitioner can be released under the provisions of Probation of Offender Act or not, but held that this is not a fit case in which, the provisions of said Act can be applied. The court also took into consideration that since the offence is a first offence, three years punishment would suffice and did not impose the maximum punishment prescribed by the statute which is 10 yeas with fine.
12. The fact that the petitioner and others were involved in the offence was established by the evidence led by the prosecution, and the trial court has passed the judgment of conviction and sentence, which has been affirmed by the appellate court also. Thus, I find no error which warrants interference in the judgment of conviction passed by the appellate court and the trial court.
13. The contention of the counsel for the petitioner is that the sentence is too harsh cannot be accepted by this Court as the maximum sentence under Section 392 IPC is ten years whereas, only three years R.I. has been awarded to the petitioner. Further the Hon'ble Supreme Court of India in the recent judgment rendered in the case of Nagpal Traders Vs. Davinder Singh reported in (2017)11 SCC 431 has held that in a revision against the conviction, if there is no illegality in the judgment of conviction; the court cannot interfere with the sentence also. Thus, I find that there is no error in the judgment of conviction and order of sentence, awarded to the petitioner.
14. In view of the aforesaid facts, I find no merit in this petition. Accordingly, this revision petition is dismissed.
Anu/C.P.-3 (ANANDA SEN, J.)