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2017 DIGILAW 1511 (JHR)

Ganesh Sao v. State of Jharkhand

2017-08-24

RONGON MUKHOPADHYAY

body2017
ORDER : Heard Mr. Binod Kumar Dubey, learned counsel for the petitioner and Mrs. Vandana Bharti, learned A.P.P. for the State. 2. This application is directed against the judgment dated 9.6.2005 passed by the learned Additional Sessions Judge, FTC-I, Hazaribagh in connection with Criminal Appeal No. 107 of 2003 whereby and whereunder the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Hazaribagh in G.R. No. 2471 of 1998 convicting the petitioner under Section 414 of I.P.C. and sentencing him to undergo R.I. for 2 years has been affirmed. 3. It has been submitted that the seizure has not been proved in view of the fact that the seizure list witnesses P.W. 1 and 2 have not supported the seizure. The entire prosecution case is based on the evidence of P.W. 1-informant. He further submitted that the petitioner deals in scrap. He further submits that there is no theft report and since the basic ingredients of Section 414 of I.P.C. is lacking and such circumstances has not been considered by either the learned trial court or by the learned appellate court. He also submitted that the judgment of conviction and sentence passed by the learned trial court and affirmed by the learned appellate court thus deserves to be quashed and set aside. An alternative argument has been put forward by the learned counsel for the petitioner that if this Court is not inclined to interfere with the judgment of conviction, the period of sentence imposed upon the petitioner be substantially reduced considering the fact that the petitioner is facing the rigors of prosecution case since the year 1998 and has remained in custody for about 6 months. 4. Learned A.P.P. for the State has opposed the prayer. 5. It appears from the allegation made in the FIR that on confidential information, the house of the petitioner was raided and it was found that some wires have been melted and on being asked about any document, no satisfactory explanation has been given. On further inquiry, the petitioner has disclosed his name and thereafter seizure list was prepared of Aluminium wires as well as melted wire. Based on the aforesaid allegation, G.R. No. 2471 of 1998 was instituted. Investigation culminated in submission of charge-sheet and after cognizance, trial proceeded. 6. In course of trial, 3 witnesses were examined. On further inquiry, the petitioner has disclosed his name and thereafter seizure list was prepared of Aluminium wires as well as melted wire. Based on the aforesaid allegation, G.R. No. 2471 of 1998 was instituted. Investigation culminated in submission of charge-sheet and after cognizance, trial proceeded. 6. In course of trial, 3 witnesses were examined. P.W. 1-Sakhi Chand Sah is the informant of the present case who has stated that he has raided the house of the informant and found melting of aluminium wire and on asking he did not give any satisfactory explanation with respect to the wire which was in his possession. He has further stated that the seizure was made in presence of 2 independent witnesses who were examined as P.W. 2 and 3. P.W. 2-Sunil Kumar Gupta is the seizure list witness, who has also not supported the seizure, but had accepted the fact that he himself has written on the seizure list that the police has searched and seized the materials from the petitioner. PW. 3-Ehsan Ahmed has not supported the factum of seizure. Therefore, the prosecution case rests upon the evidence of P.W. 1 who has conducted the raid and found the petitioner melting aluminium wire and on asking no satisfactory explanation could be given. Although in the evidence of P.W. 2 there appears to be some discrepancy, but on careful perusal of that same it reveals that a seizure was indeed made at the time when the raid was conducted in the house of the petitioner. Although certain witnesses were not examined by the prosecution, but the evidence of P.W. 1 was supported to some extent by P.W. 2 which thus suggests that the prosecution has able to prove its case beyond all reasonable doubt. In the circumstances the learned trial court has rightly convicted the petitioner under Section 414 of I.P.C. which was subsequently affirmed in appeal. There being no reason to conclude otherwise, the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court are hereby sustained. 7. However, with respect to the sentence which has been imposed upon the petitioner, it appears that the petitioner is facing rigors of the prosecution case since the year 1988 and has also remained in custody for 6 months. 8. 7. However, with respect to the sentence which has been imposed upon the petitioner, it appears that the petitioner is facing rigors of the prosecution case since the year 1988 and has also remained in custody for 6 months. 8. Considering the incarceration of the petitioner and the long pendency of the case, the sentence imposed upon the petitioner is modified to the period already undergone by him in custody. 9. This application stands dismissed with the aforesaid modification.