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2017 DIGILAW 1281 (JHR)

Mataleb Sekh v. State of Jharkhand

2017-07-27

RONGON MUKHOPADHYAY

body2017
JUDGMENT : Heard the parties. 2. This application is directed against the judgment dated 18.01.2005, passed by the learned IIIrd Additional Sessions Judge, Fast Track Court, Jamtara in Cr. Appeal No. 27 of 2003/9/04, whereby and whereunder judgment of conviction and order of sentence dated 11.8.2003, passed by the learned Sub-Divisional Judicial Magistrate, J amtara in connection with G.R. Case No. 469 of 1995 convicting the petitioner for the offence under Section 411 of IPC and sentencing him to undergo R.I. for one year has been affirmed. 3. It has been submitted by the learned counsel for the petitioner that Investigating Officer of the case has not been examined, which has caused prejudice to the defence. It has further been submitted that there are contradictions amongst the statements of the witnesses. In alternative, an argument has been put forward by the learned counsel for the petitioner that if this Court is not inclined to interfere with the impugned judgment of conviction, at least sentence imposed upon the petitioner be modified considering the fact that petitioner is facing the rigors of prosecution case since 1995. 4. The prosecution story as would appear from the FIR is that the informant, who was chaukidar, had heard the alarm of chor chor from the village Khajuriapalasbani and when he reached the said village he saw that some of the villagers running to the west of the village. It is further stated that informant had come to know that a thief who had removed iron pipe and other parts of the Government Lift Irrigation Plant situated by the side, of the said river, was fleeing away. It is stated that thereafter he accompanied the villagers and all of them overpowered one of the thieves who had stolen parts of the said Plant and on being questioned he disclosed his name as Mataleb Sekh, who happens to be the petitioner. On the basis of his confession, stolen iron hammer was recovered from the bush, which was used to remove parts of the aforesaid Plant. 5. Based on the aforesaid allegations, G.R. Case No. 469 of 1995 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken, charge was framed and trial proceeded. 6. In course of trial, four witnesses were examined on behalf of the prosecution. PW 1-Shivnandan Tudu has supported the prosecution case. 5. Based on the aforesaid allegations, G.R. Case No. 469 of 1995 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken, charge was framed and trial proceeded. 6. In course of trial, four witnesses were examined on behalf of the prosecution. PW 1-Shivnandan Tudu has supported the prosecution case. He had deposed that on the date of occurrence, he was sleeping in his house and he woke up hearing alarm of the co-villagers. This witness had stated that he rushed towards the sound of alarm along with co-villagers and saw that petitioner was running away having a plastic bag on his head and thereafter they caught him red handed and on his confession', a stolen hammer was recovered from the bush. 7. PW 2-Nagendra Tudu has also supported the prosecution case in the same breath specially on the point of apprehending the petitioner. 8. PW 3-Subhash Tudu is a witness to the seizure list and in addition to the fact that the petitioner was caught red handed with stolen articles he has also proved signature of three independent witnesses, which has been marked as Ext-1. 9. PW 4-Sushil Tudu was also one of the witnesses who had taken part in chase of the petitioner. This witness had also supported the recovery made from the possession of the petitioner as well as from the bush. 10. Although Investigating Officer of the case has not been examined but the evidence of witnesses do suggest that the witnesses were eye-witnesses and on the confession of the petitioner stolen articles were recovered and therefore in such circumstances, non-examination of the Investigating Officer is not fatal to the prosecution case. PW 3-Subash Tudu had proved the signature of the eye-witnesses on the seizure list, which was marked as Ext-I. 11. Circumstances indicated above have properly been appreciated by the learned trial Court while convicting the petitioner for the offence under Section 411 of IPC. Learned appellate Court also on proper appreciation of the materials available on record, dismissed the appeal preferred by the petitioner. Circumstances indicated above have properly been appreciated by the learned trial Court while convicting the petitioner for the offence under Section 411 of IPC. Learned appellate Court also on proper appreciation of the materials available on record, dismissed the appeal preferred by the petitioner. There being no reasons to conclude otherwise, the judgment dated 18.01.2005, passed by the learned IIIrd Additional Sessions Judge, Fast Track Court, Jamtara in Cr.Appeal No. 27 of 2003/9/04, whereby and whereunder the judgment of conviction dated 11.8.2003, passed by the learned Sub-Divisional Judicial Magistrate, Jamtara in connection with G.R. Case No. 469 of 1995 convicting the petitioners for the offence under Section 411 of IPC has been affirmed, is hereby sustained. 12. However, with respect to the sentence, which has been imposed upon the petitioner, it appears that petitioner is facing the rigors of prosecution case since 1995 and he has also remained in custody for some time. It further appears that on account of chase, petitioner had suffered fracture injury on his hand. On consideration of such circumstances, period of sentence imposed upon the petitioner, is modified to the period already undergone. 13. This application therefore stands dismissed with the aforesaid modification in sentence.