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2017 DIGILAW 1215 (JHR)

Sanjay Koyari v. State Of Jharkhand

2017-07-20

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Mr. Ramakant Tiwari, learned counsel for the petitioners and Mr. Arun Kumar Pandey, learned A.P.P. for the State. 2. Since these applications are from the common judgment dated 22.02.2005, the same are being disposed of by this common order. 3. In these applications, the petitioners have challenged the judgment dated 22.02.2005 passed by the learned Additional Sessions Judge, FTC VI, Dhanbad in Criminal Appeal Nos. 236 of 2004, 241 of 2004 and 242 of 2004 whereby and where-under the judgment and order of conviction and sentence dated 08.09.2004 passed by the learned Judicial Magistrate, Dhanbad in Jharia (Tisara) P.S. Case No. 126 of 2003 corresponding to G.R. No. 1254 of 2003 by which the learned trial court had convicted the petitioners for the offence punishable under Sections 457, 380 & 411 of I.P.C. and sentenced them to undergo R.I. for 2 years has been affirmed. 4. The prosecution story in brief is that on 07.05.2003 the informant was sleeping in his house. At 3 AM he suddenly woke up along with his wife and saw the door of the northern room was broken and the matter was informed to the neighbours. It was found that several articles were scattered and many articles were missing. Based on the aforesaid occurrence, Jharia (Tisara) P.S. Case No. 126 of 2003 was instituted for the offence under Section 457 & 380 of I.P.C. Investigation resulted in submission of charge-sheet under Section 457/380/411 of I.P.C. and after cognizance was taken, charge was framed under the said sections and thereafter the trial proceeded. Since the prosecution has been able to establish its case beyond all reasonable doubt, the learned trial court vide judgment dated 08.09.2004 had convicted the petitioners for the offence punishable under Sections 457, 380 & 411 of I.P.C. and sentenced them to undergo R.I. for 2 years and also a fine of Rs. 1,000/- to each of the petitioners. The petitioners preferred appeals being 236 of 2004, 241 of 2004 and 242 of 2004 which were dismissed by the learned Additional Sessions Judge, FTC VI, Dhanbad on 22.02.2005. 5. It has been stated by the learned counsel for the petitioners that the petitioners have falsely been implicated in the present case. He submitted that seizure list witnesses namely, P.Ws 8, 9 and 10 have not supported the prosecution case and they have been declared hostile. 5. It has been stated by the learned counsel for the petitioners that the petitioners have falsely been implicated in the present case. He submitted that seizure list witnesses namely, P.Ws 8, 9 and 10 have not supported the prosecution case and they have been declared hostile. He further submits that since the seizure itself has not been proved, the complicity of the petitioners could not be proved. It has also been stated that the entire prosecution rests on the deposition of Investigating Officer who has been examined as P.W. 7 and none of the witnesses have supported the prosecution case or the complicity of the petitioner in the offence. 6. Learned A.P.P. for the State opposed the prayer. 7. It appears that the prosecution in course of trial examined as many as 10 witnesses in support of its case. P.W. 1-Ram Chandra Mishra has stated that on 07.05.2003 he had come to know about the occurrence and when he gone to the house of the informant, he had seen some articles scattered in the floor. This witness has stated that he had come to know that several articles of the informant were stolen away. P.W. 2-Pappu Balmiki and P.W. 3-Furchun Hadi have stated that on 07.05.2003 in the night when they had heard the cry of alarm, they had reached the house of the informant and had found various articles scattered on the floor. This witness has disclosed that informant had stated about the various articles having been taken away by the miscreants. P.W. 4-Vinod Kumar Hadi is the son of the informant who has stated that on the date of incident, he was at his in-laws'' place and after hearing the incident when he came to his house, he had come to know that several articles were taken away by the miscreants. P.W. 5-Agnu Hadi is the informant of the case who has told that when he had woken up at 3 AM to answer the call of nature, he had found several articles missing and various articles scattered on the floor. This witness has stated that some articles were recovered and he had identified those articles. P.W. 6-Ram Briksh Prasad is one of the seizure list witnesses. This witness has stated that after the articles were recovered, the petitioner in Cr. Revision No. 326 of 2005 was arrested. This witness has stated that some articles were recovered and he had identified those articles. P.W. 6-Ram Briksh Prasad is one of the seizure list witnesses. This witness has stated that after the articles were recovered, the petitioner in Cr. Revision No. 326 of 2005 was arrested. He has further stated that after the articles were seized he had signed on the seizure list. P.W. 7-Jitendra Kumar Singh is the Investigating Officer of the case who had inspected the place of occurrence and had also recorded the statement of the witnesses under section 161 of Cr.P.C., 1973 This witness has stated that on secret information, he had apprehended accused Sadhu Chauhan who had admitted to have committed the offence and on the basis of his confessional statement, some articles were recovered. He has further stated that they had raided the house of the petitioner in Cr. Revision No. 326 of 2005 and from his house, several articles were recovered which were also seized. He has also stated that thereafter house of another accused was raided and from his house also some articles were recovered. On information about involvement of the petitioner in Cr. Revision No. 512 of 2005, Investigating Officer had gone to Kanchan Jewellers whose owner had disclosed about the said petitioner having brought some jewellery to him and the shop owner had purchased the said jewelleries at the cost of Rs. 6,000/- He has further disclosed that TIP of the materials were made in presence of the Circle Officer and the articles were identified by P.W. 5 (informant). P.W. 8-Kharkha Bhuiyan, P.W. 9-Munna Prasad and P.W. 10-Rajendra Nisad who all have not supported the prosecution case and therefore, declared hostile by the prosecution. 8. It appears that the prosecution case rests upon the evidence of P.W. 5 and P.W. 7. P.W. 7 in very categorical terms has supported about the raid committed in the house of the petitioner in Cr. Revision No. 326 of 2005 and 512 of 2005 and the articles which were recovered from his house were put on TIP and they were identified by P.W. 5. The role of the petitioner in Cr. Revision No. 512 of 2005 who happens to be the father of the petitioner in Cr. Revision No. 326 of 2005 has also been disclosed by the I.O. in respect of the fact that the petitioner in Cr. The role of the petitioner in Cr. Revision No. 512 of 2005 who happens to be the father of the petitioner in Cr. Revision No. 326 of 2005 has also been disclosed by the I.O. in respect of the fact that the petitioner in Cr. Revision No. 512 of 2005 had gone to sell the articles to jewellery shop of Rupesh Agrawal for the price of Rs. 6,000/-. Therefore, the involvement of the petitioner has been sufficiently proved by the P.W. 7 & 5 and therefore the learned trial court has rightly convicted the petitioners under Sections 457/380/411 of I.P.C. The learne dappellate court also on the materials available on record has rightly affirmed the judgment of conviction. 9. There being no reason to conclude otherwise, the judgment of conviction passed against the petitioners by the learned Judicial Magistrate, Dhanbad and affirmed by the learned Additional Sessions Judge, FTC VI, Dhanbad is hereby sustained. 10. However, in respect to the sentence which has been imposed upon the petitioners, it appears that as per the argument advanced by the learned counsel for the petitioners that the petitioner in Cr. Revision No. 326 of 2005 has remained in custody for a period of 1 year whereas the petitioner in Cr. Revision No. 512 of 2005 has remained in custody for 5 months and the petitioners are facing the rigors of prosecution case since the year 2003. Since the petitioners have remained in custody for a considerable length of time in custody and considering the nature of offences as alleged against the petitioners, the period of sentence awarded to the petitioner is modified to the period already undergone. 11. This application stands dismissed with the aforesaid modification in sentence.