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2017 DIGILAW 326 (JHR)

Sushil Mandal v. State Of Jharkhand

2017-02-14

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Mr. Rajesh Kumar, learned counsel for the petitioner and Mr. A.K. Pandey, learned A.P.P. appearing on behalf of the State. 2. This application is directed against the judgment and order dated 05.03.2001 passed by the learned 2nd Additional Sessions Judge, Godda in Criminal Appeal No.56 of 2000 by 18 of 2000 whereby and where-under the appeal preferred by the petitioner against the judgment of conviction and sentence under section 411 of the IPC directing the petitioner to undergo rigorous imprisonment of three years has been dismissed. 3. It appears that the first information report was instituted in which it was alleged that the informant was going to deposit an amount of Rs.2 lacs in the State Bank of India. It is further alleged that when the informant approached the Bank, he was suddenly held back wherein the miscreants had snatched away the amount of cash and thereafter fled away in a motorcycle. Based on the aforesaid allegation, Godda P.S.Case No.150 of 1999 was instituted for the offences punishable under sections 392 and 411 of the IPC. After investigation, the charge-sheet was submitted against the accused persons under sections 392, 411 and 414 of the IPC and after charge was framed, the trial proceeded. In course of trial, since the prosecution had not been able to prove its case, the petitioner was acquitted for the offences punishable under sections 392/414 of the IPC. However, the petitioner was convicted for the offence under section 411 of the IPC and was sentenced to undergo rigorous imprisonment for three years. The petitioner preferred an appeal being Criminal Appeal No.56 of 2000 by 18 of 2000 which was dismissed vide judgment dated 05.03.2001. 4. It has been stated by the learned counsel for the petitioner that no offence under section 414 of the IPC is made out against the petitioner. It has further been stated that nothing was recovered from possession of the petitioner. Learned counsel further submits that TIP was disbelieved in view of the fact that the same was held after 57 days from the date of recovery. It has further been stated that nothing was recovered from possession of the petitioner. Learned counsel further submits that TIP was disbelieved in view of the fact that the same was held after 57 days from the date of recovery. Learned counsel submits in the alternative that if this court is not inclined to interfere in the judgment of conviction, the period of sentence be modified in view of the fact that the petitioner had remained in custody during the trial and after for a period of one year and three months and he is facing rigours of the prosecution case since 1999. 5. Learned A.P.P. appearing on behalf of the State has opposed the prayer made by the petitioner and has supported the impugned order. 6. It appears that the prosecution in course of trial has examined as many as 10 witnesses. P.W-1 is the informant (Santosh Kumar Parsuramha) who had stated about the incident of the miscreants snatching away the bag containing an amount of Rs.2 lacs. This witness has further stated that after recovery, he had identified the seized currency notes. P.W-2 is the brother of the informant who has also stated on similar lines to that of the petitioner. P.W.-3 is another brother of the informant who has stated about the occurrence. P.W-4 is the seizure list witness. P.W-5 has stated that sometimes in the year 1999 the other accused person Rajesh Kumar Bhagat had come to the house and stayed at night when the police had raided the house, an amount of Rs.30,000/- was recovered. P.W. 6 is the another seizure list witness. P.W-7 has stated that while he was sleeping in his roof sometime in the month of May, he was told to put his signature in the seizure list with respect to the recovery of the money. P.W-8 has not supported the prosecution case and was declared hostile. P.W-9 is the Investigating Officer of the case who had Investigated and seized the amount of Rs.76,000/- and had also arrested the accused persons. The Investigating Officer on completion of investigation has submitted charge-sheet against the accused persons. P.W-10 was declared hostile by the prosecution. P.W-8 has not supported the prosecution case and was declared hostile. P.W-9 is the Investigating Officer of the case who had Investigated and seized the amount of Rs.76,000/- and had also arrested the accused persons. The Investigating Officer on completion of investigation has submitted charge-sheet against the accused persons. P.W-10 was declared hostile by the prosecution. Although, the prosecution had tried to harp much during the trial with respect to identification of the petitioner in the TIP but the same was disbelieved by the learned court below thereby resulting in acquitting the petitioner under sections 392 and 414 of the IPC. So far as the conviction under section 414 of the IPC is concerned, it appears that the amount of Rs.40,000/- was recovered from the house of the petitioner inside the paddy sack. Rajesh Kumar Bhagat was also apprehended by the police and from his possession an amount of Rs.30,000/- was recovered. He had also confessed and stated about the name of the petitioner. It therefore appears that the prosecution has been able to prove its case beyond all reasonable doubts, so far as committing an offence under section 411 of the IPC is concerned. The learned appellate court had also properly appreciated the materials available on record before sustaining the order of conviction and sentence. 7. The circumstance enumerated above, therefore, does not entitle the petitioner interference in the judgment of conviction passed against him and as affirmed in appeal. However, as regards the sentence which has been awarded to the petitioner is concerned, the petitioner is facing rigours of the prosecution case since more than 15 years and had remained in custody for a period of one year and three months. Considering the fact that the petitioner has been convicted for the offence punishable under section 411 of the IPC and the period of custody he has already spent during the trail after dismissal of the appeal, the sentence awarded to the petitioner is modified to the period already undergone. 8. This application stands dismissed with the aforesaid modification in sentence.