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2017 DIGILAW 690 (JHR)

Ram Das Sao v. State Of Jharkhand

2017-04-12

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – No one appears on behalf of the petitioners. However, Mr. R.P. Singh, learned A.P.P. for the State is present. 2. Since this matter is pending since 2002, the same is being disposed of based on the materials available on record. 3. This application is directed against the Judgment dated 20.08.2002 passed by the learned 4th Additional Sessions Judge, Bermo at Tenughat in Criminal Appeal No. 166 of 1987 whereby and where-under the judgment and order of conviction and sentence passed by the learned Judicial Magistrate 1st Class, Bermo at Tenughat in G.R. Case No. 201 of 1984 (T.R. No. 30 of 1987) convicting the petitioners for the offences punishable under section 380 and 457 of the I.P.C. has been affirmed by modifying and reducing the sentence to the period of one year rigorous imprisonment. 4. A First Information Report was instituted on 29/30.03.1984 by the informant when he came to know from his father that some thieves had stolen two bronze dishes and one bronze utensil from his house by breaking the bolts of the kitchen room. It is alleged that on such information the informant and his colleagues proceeded towards the western side of the village and as they were passing by the side of the house of Bhim Manjhi they heard certain sound and when the flash light was torched inside the courtyard three persons were found sitting there. It is also alleged that the persons started fleeing away but one of them was caught being the petitioner no. 1 who confessed about the theft committed and has also disclosed the name of the other co-accused persons including the petitioner no. 2. Subsequent to his apprehension the petitioner no. 1 was brought to the Police Station and thereafter G.R. Case No. 201 of 1984 was instituted. After investigation culminated in submission of charge-sheet cognizance was taken by the learned Magistrate for the offences punishable under section 380 and 457 of the Indian Penal Code. In course of trial since the prosecution had been able to establish its case beyond all reasonable doubt the petitioners were convicted for the offences punishable under section 380 and 457 of the Indian Penal Code and were sentenced accordingly by the learned Judicial Magistrate 1st Class, Bermo at Tenughat on 20.11.1987. An appeal was preferred by the petitioners being Cr. An appeal was preferred by the petitioners being Cr. Appeal No. 166 of 1987 which however was dismissed by the learned 4th Additional Sessions Judge, Bermo at Tenughat on 20.08.2002 by modifying and reducing the period of sentence to R.I. for one year each under section 380 and 457 of the Indian Penal Code. 5. In course of trial four witnesses were examined on behalf of the prosecution. P.W. 1 (Beldoe Manjhi) has stated that on the date of the occurrence he was sleeping when he had heard some sound and when he woke up he found that the door was closed from outside. An alarm was raised by him. Thereafter his father had told him that the theft has been committed in the kitchen. This witness has also stated that when he had gone near the house of Bhim Manjhi one thief was caught by Naresh Kumar Hansda (P.W.3) and Umesh Chandra Hansda (P.W. 2) who had disclosed his own name as also disclosed the name of the other accused persons. P.W. 2 (Umesh Chandra Hansda) is one of the person who had apprehended the petitioner no. 1 and who had disclosed about the other thieves as well as confessed about committing theft in the house of P.W. 1. P.W. 3 (Naresh Kumar Hansda) is the informant who had stated that when he had returned back after attending a marriage ceremony his father had informed him about the theft and on search near the house of Bhim Manjhi some sound was found emanating from inside and one of the thieves who was sitting there was apprehended whereas the rest managed to escaped. This witness has also stated about the disclosure made by the apprehended accused and the other two accused persons including the petitioner no. 2 was also named by him. P.W. 4 (Shiv Nath Manjhi) has stated that on the date of occurrence his son had gone to attend the marriage ceremony when the incident had occurred. This witness has also stated about the subsequent event by virtue of which the petitioner no. 1 was apprehended by some of the witnesses. 6. It appears that although the petitioner no. 1 was apprehended at the spot on the suspicion of committing theft and save and except the confessional statement of the petitioner no. This witness has also stated about the subsequent event by virtue of which the petitioner no. 1 was apprehended by some of the witnesses. 6. It appears that although the petitioner no. 1 was apprehended at the spot on the suspicion of committing theft and save and except the confessional statement of the petitioner no. 1 there is no material on record including absence of any incriminating articles recovered from his possession. So far as the petitioner no. 2 is concerned he seems to have been arrayed as an accused only on the basis of the confessional statement of the petitioner no. 1. Save and except the confessional statement of the petitioner no. 1 no incriminating article was ever collected by the Investigating Officer to substantiate the claim of the prosecution that the petitioners were involved in the commission of the theft. The learned courts below have totally relied upon the evidences of the witnesses and the fact that the petitioner no. 1 was apprehended when he tried to flee away. This by itself would not point to the guilt of the petitioners in absence of any surrounding facts which would suggest that it was the petitioners who had entered into the house of the informant and committed theft of the articles in question. It further appears that no seizure was made pursuant to the confessional statement of the petitioner no. 1 as no seizure list had ever been exhibited by the prosecution. The entire prosecution thus relied upon the evidence of the P.Ws. 1, 2, 3 and 4. The identification of the petitioners having taken part in the commission of theft has also not been clearly proved by the prosecution. Such circumstance therefore definitely entitles the petitioners to interference in the judgment and order of conviction passed by the learned trial court and affirmed by the learned appellate court. 7. Considering the discussions made here-in-above this application is allowed and the impugned judgment dated 20.08.2002 passed by the learned 4th Additional Sessions Judge, Bermo at Tenughat in Criminal Appeal No. 166 of 1987 and the judgment and order of conviction and sentence dated 20.11.1987 passed by the learned Judicial Magistrate 1st Class, Bermo at Tenughat in G.R. Case No. 201 of 1984 (T.R. No. 30 of 1987), are hereby, set aside. 8. The petitioners are discharged from the liabilities of their bail bonds. 9. This application stands allowed.