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2017 DIGILAW 172 (JHR)

Ram Janki Mistry v. State Of Bihar

2017-01-23

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. Heard learned counsel for the parties. 2. This application is directed against the judgment and order of conviction and sentence dated 19.02.1996 passed by the learned Railway Judicial Magistrate, palamau at Daltonganj in R.P. No. 15 of 1989 by which the petitioners have been convicted for the offence punishable under section 3(a)R.P. (U.P) Act and sentenced them to undergo rigorous imprisonment for two years. A further challenge has been made to the judgment dated 16.02.000 passed by the learned 2nd Additional Sessions Judge, Palamau in Criminal Appeal No. 37 of 1996 by which the judgment passed by learned trial Court has been affirmed. 3. At the outset, it has been submitted by learned counsel for the petitioners that the petitioner no.1 had already died during the pendency of this application. So far as the merit of the case is concerned, learned counsel for the petitioners has submitted that the petitioners have preferred an appeal against the judgment of conviction and sentence but unfortunately rest of the records were transferred from the learned Sessions Judge to the 2nd Additional Sessions Judge, Palamau and the petitioners were not aware of such fact and were not given an opportunity of hearing which resulted in the appeal having been dismissed. 4. Learned counsel submits that even otherwise the trial court judgment is not sustainable in the eye of law as there appears to be several discrepancy and contradiction in the prosecution case with respect to the seizure and the manner of seizure. Learned counsel further submits that the petitioners are facing rigours of this case since 1989 and they have remained in custody for a period of about one and a half month in total. 5. Learned A.P.P. appearing on behalf of the State has opposed the prayer made by the petitioner. 6. It appears that on 30.09.1999, although attendance was produced on behalf of the petitioners but the case could not be heard and subsequently the case having been transferred to the 2nd Additional Sessions, Judge, Palamau, a judgment was passed on 16.02.2000 dismissing the appeal preferred by the petitioner. The appellate court judgment clearly reveals that none had appeared on behalf of the petitioners and the learned appellate court also did not appoint any amicus curiae to represent the petitioner nor did it record any finding that the petitioners were absenting themselves in spite of repeated direction. The appellate court judgment clearly reveals that none had appeared on behalf of the petitioners and the learned appellate court also did not appoint any amicus curiae to represent the petitioner nor did it record any finding that the petitioners were absenting themselves in spite of repeated direction. The appellate court judgment further appears to be a non-est in the eye of law, in view of the fact that no detailed discussion has been made with respect to the evidence of the witnesses. Since the judgment passed by the learned appellate court is not sustainable in the eye of law, this court was inclined to remand the matter back for passing a fresh order in accordance with law after hearing the parties but considering the fact that the petitioners are facing the rigours of the criminal case since 1989, the matter is disposed of at this stage itself without passing any order of remand. The judgment passed by the Railway Judicial Magistrate, Palamau seems to be on proper consideration of evidence on record as 9 witnesses had been examined by the prosecution and in fact exhibit-5 was identified by the PW-5 which showed that the seized property were indeed all railways properties. Petitioners were apprehended with unlawful possession of railways properties as no explanation could be shown by them with respect to such possession as has been stated above. The members of the raiding party were also examined as prosecution witnesses who have categorically stated that all the petitioners were apprehended along with the unlawful railway property. The evidence being consistent on the point of recovery and no explanation being furnished by the petitioners with respect to such possession had led the learned trial Court to give a finding of guilt under section 3(a) R.P. (U.P) Act and had thereby sentenced the petitioners to undergo rigorous imprisonment for two years. 7. Since this case is of the year 1989 and the petitioners are facing rigours of this case for about 28 years, while sustaining the order of conviction passed by the learned trial court, the sentence which has been awarded to the petitioners is modified to the period already undergone. 8. This application stands disposed of with the aforesaid modification in sentence.