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2018 DIGILAW 2010 (JHR)

Sajanlal Jayaswal v. State Of Jharkhand

2018-09-04

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - By Court: - The instant Criminal Appeal has been preferred against the judgment of conviction dated 19.04.2004 and order of sentence dated 21.04.2004, passed by learned Additional District & Sessions Judge, Fast Track Court No. V, Dhanbad, in Sessions Trial No. 193 of 2002, whereby the appellants have been convicted for the offence committed and punishable under Section 412 of the Indian Penal Code and have been awarded rigorous imprisonment for three years With a fine of Rs. 5,000/- each and in default of payment of fine amount, to undergo simple imprisonment for six months. By the same impugned judgment, the learned Trial Court has acquitted the appellants of the Charge under Section 395 of the Indian Penal Code. 2. The prosecution case is based upon written report submitted by B.K. Sinha, Deputy Chief Mining Engineer, Incline Mine, Sudamdih, before the Officer-in-Charge, Sudamdih Police Station on 13.12.1994, alleging therein, that dacoity has been committed at Old Incline during night shift of 12.12.1994 at about 01.00 A.M. and looted articles, costing nearly Rs. 50,000/-. The informant has further alleged, that 10-12 persons entered through gate no. 2 of Incline Mine capturing the persons, WhO were discharging their duty there and have taken five electrical motors, bearing nos. :- (1) Sl. No. 19420922/ 4C0429 (2) Sl. No. 19420930/ 4C0427 (3) Sl. No. 19420930/ 4C2780 (4) Sl. No. BEC-22652 (5) Sl. No. 85311187. The informant has further alleged that, Shankar Turi, guard was deputed at Gate No. 2, Kanhaiya Singh, driver was sitting along with guard, Khetu Rewani, T.R.W. (Incline) and Nizam Meah, T.R.W. (Incline), were on duty, when this offence was committed by the unknown accused persons. In the meantime, two driver of dumpers namely Ambika Yadav and Jagdish Roy, reached there, who were also caught by the dacoits. The dacoits were trying to load rubber belt and aluminium cable but they could not succeed in doing so. The offence was committed for 30 minutes causing a loss of approximately Rs. 50,000/-. 3. On the basis of the written report of Deputy Chief Mining Engineer, Incline Mine, Sudamdih, police has registered Sudamdih P.S. Case No. 417 of 1994, dated 13.12.1994, under Section 395 of the Indian Penal Code. 4. After investigation, the police submitted Charge sheet Vide no. 75, dated 14.03.1995, under Section 395/412 of the Indian Penal Code against seven accused persons. 5. 4. After investigation, the police submitted Charge sheet Vide no. 75, dated 14.03.1995, under Section 395/412 of the Indian Penal Code against seven accused persons. 5. The cognizance of the offence has been taken Vide order dated 04.04.1995 and the case has been committed to the Court of Sessions Vide order dated 21.03.2002. 6. The Charge has been framed against the present appellants on 25.07.2002, under Sections 395 and 412 of the Indian Penal Code, where the appellants have denied their involvement and have stated that they have been falsely implicated in this case, thus, the appellants were put under trial. The other four Charge sheeted accused have been declared absconder by the learned trial court. 7. The prosecution, to prove its case, has examined altogether five witnesses and also exhibited a number of documents up to Exhibit- 6/3. Kanhaiya Singh, dumper driver, has been examined as P.W. 1, Shankar Turi, Security Guard, has been examined as P.W. 2, Nizam Mian, employee of the BCCL has been examined as P.W. 3, Hriday Kumar Lala, Advocate Clerk, has been examined as P.W. 4 and has been declared hostile by the prosecution, Pratap Dhari Sinha, Officer-in-Charge and investigating officer of the case has been examined as P.W. 5. Signature of Hriday Kumar Lala on the four seizure lists have been proved and marked as Exhibit- 1 to 1/3, forwarding letter of the written report has been proved and marked as Exhibit- 2, signature of Shailendra on the First Information Report has been proved and marked as Exhibit- 3, endorsement of the Officer-in-Charge on the First Information Report has been proved and marked as Exhibit- 4, confessional statement of Bablu Kumar Singh (absconded accused) has been proved and marked as Exhibit- 5, four seizure lists have been proved and marked as Exhibits- 6 to 6/3. 8. After Closure of the prosecution evidence, the statement of the accused/appellants have been recorded under Section 313 Cr.P.C., 1973 on 24.03.2004, where they have categorically stated that they have not committed such offence nor anything has been recovered from their possession but they have not adduced any oral evidence except they have proved that statement of the seizure witness Hriday Kumar Lala (P.W. 4) recorded under Section 164 Cr.P.C., 1973 which has been proved and marked as Exhibit-A on behalf of the defence. 9. 9. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence. The learned Trial Court has convicted these three appellants under Section 412 of the Indian Penal Code but by the same impugned judgment, all these three appellants have been acquitted of the Charge under Section 395 of the Indian Penal Code by giving benefit of doubt. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, passed by the learned Trial Court, the appellants have preferred the present criminal appeal before this Hon''ble Court, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsel for the appellants, Mr. P.K. Mukhopadhyay, Advocate assisted by Mr. Birendra Kumar, Amicus Curiae. Learned counsels for the appellants have submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsels for the appellants have further submitted, that the learned Trial court has acquitted the appellants under Section 395 of the Indian Penal Code and has wrongly convicted the appellants under Section 412 of the Indian Penal Code. Learned Amicus Curiae has placed reliance upon a judgment as reported in (2002) 6 SCC 247 in the case of K. Venkateshwara Rao @ Venkatal @ I. Rao vs. State rep. by Inspector of Police, A.P. where the Hon''ble Supreme Court has held that: "Onus of proving the knowledge regarding the article to be stolen lay on the prosecution and the prosecution, having failed to discharge this onus on the material on record ", the appellant is entitled for acquittal under Section 412 of the Indian Penal Code. Learned Amicus Curiae has also placed reliance upon a judgment passed by Orissa High Court as reported in (1991) 2 Crimes 726 in the case of Prasad Behera vs. State of Orissa , where the Hon''ble Orissa High Court has laid down five ingredients for constituting an offence under Section 412 of the Indian Penal Code which are as follows: (a) property is stolen property (b) it is connected with dacoity, (C) accused received or retained it; (d) such receipt or retention is dishonest; and (e) Accused knew or has reason to believe that the property received or retained by him from a person who belongs to gang of dacoits. Learned Amicus Curiae has further submitted that appellants have no knowledge that the property alleged to have been recovered from their house is a stolen property, nor the prosecution has proved that these appellants have knowledge about the property recovered from their house to be stolen one. The learned Amicus Curiae has also submitted that the prosecution has failed to prove that these seized electrical motors are connected with the alleged dacoity, on the other hand these appellants have already been acquitted by the learned Trial Court from the charge under Section 395 of the Indian Penal Code. Learned Amicus Curiae has further submitted that the retention of such articles by these appellants was not itself illegal nor the prosecution has proved that these appellants have dishonest intention in retaining these electrical motors which are related to the dacoity and as such, learned Amicus Curiae has submitted that in View of the judgments passed by the Hon''ble Supreme Court and the Orissa High Court, as stated above, the appellants are entitled to be acquitted by giving benefit of doubt. Learned counsel for the appellants, Mr. P.K. Mukhopadhyay has submitted that Kanhaiya Singh (P.W. l) and seizure witness Hriday Kumar Lala (P.W. 4) have been declared hostile by the prosecution. Shankar Turi (P.W. 2) has categorically stated in his examination-inchief, that he has not identified any of the accused. Similar is the statement of Nizam Mian (P.W. 3). Pratap Dhari Sinha, (P.W. 5 - investigating officer of the case) has stated, that in a different case under Section 399 and 402 of the Indian Penal Code read with Section 25 A/ 26 and 35 of the Arms Act, one of the apprehended accused Bablu Kumar Singh has confessed his guilt and the confessional statement of Bablu Kumar Singh in other case, has been proved and marked as Exhibit- 5 in the present case. On the basis of such confession made by Bablu Kumar Singh, in a different case, the recovery of three electrical motor have been made from the house of these three appellants and the seizure list has been prepared, which was signed by Hriday Kumar Lala (P.W. 4), who has been declared hostile by the prosecution and the defence has exhibited his statement recorded under Section 164 Cr.P.C., 1973 which has been proved and marked as Exhibit-A. Coaccused Bablu Kumar Singh is absconding in the present case. Learned counsels for the appellants have further submitted that under the aforesaid background, these appellants cannot be convicted under Section 412 of the Indian Penal Code and hence, they may be acquitted by this Hon''ble Court. 11. Heard, learned counsel for the State, Mr. Hardeo Prasad Singh, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record and the learned Trial Court has rightly convicted these appellants from whose houses three electrical motors, which was subject matter of the dacoity has been recovered and the seizure list has been prepared. Learned counsel for the State has further submitted, that under section 106 of the Indian Evidence Act, it is upon the appellants to disclose that from where they have brought these electrical motors which have been recovered from their house and as such, the impugned judgment of conviction and order of sentence is based on material available on record. 12. Heard, learned counsel for the appellants, Mr. P.K. Mukhopadhyay, Advocate assisted by Mr. Birendra Kumar, Amicus Curiae and learned counsel for the State, Mr. Hardeo Prasad Singh, Additional Public Prosecutor. This Court has perused the evidence brought on record and the judgment cited by the learned Amicus Curiae. This Court has scrutinized the evidence of Kanhaiya Singh (P.W. 1) and Hriday Kumar Lala (P.W. 4). PW. 1 has categorically stated, that he has not identified any of the accused persons and has been declared hostile by the prosecution. P.W. 4, seizure witness has been declared hostile by the prosecution and his statement recorded under Section 164 Cr.P.C., 1973 has been proved and marked as Exhibit- A by the defence, where he has categorically stated that nothing has been recovered in his presence and he has put his signature on a blank sheet of paper under the coercion of the Sub-inspector of Sudamdih police station. Shankar Tun (P.W. 2) has categorically stated, that he has not identified any of the accused. Pratap Dhari Sinha (P.W. 5- investigating officer of the case) who has arrested a group of accused with arms for which a separate case under Sections 399 and 402 of the Indian Penal Code, read with sections 25 A/ 26 and 35 of the Arms Act has been registered. Pratap Dhari Sinha (P.W. 5- investigating officer of the case) who has arrested a group of accused with arms for which a separate case under Sections 399 and 402 of the Indian Penal Code, read with sections 25 A/ 26 and 35 of the Arms Act has been registered. In that case, one of the accused Bablu Kumar Singh has confessed his guilt and on the basis of that three electrical motors have been recovered from house of these three appellants. From perusal of the evidence laid by the prosecution, it is apparent that prosecution has failed to establish that these appellants have any dishonest intention or knowledge that these articles which were alleged to have been recovered from the house of these appellants are subject matter of the dacoity. The learned trial court has acquitted these three appellants from the charge under Section 395 of the Indian Penal Code. This Court has perused paragraph- 5 of the judgment relied upon, by the learned Amicus Curiae as reported in (2002) 6 SCC 247 (supra), where it has been held by the Hon''ble Supreme Court that: "the onus of proving this knowledge lay on the prosecution and the prosecution having failed to discharge this onus on the material on record, the appellant cannot be held guilty of the offence under Section 412 of the Indian Penal Code". Here the seizure witness, who has been examined in this case has been declared hostile by the prosecution. Under the aforesaid circumstances, this Court is of the opinion that prosecution has not discharged its onus to prove that these appellants have dishonest intention and had knowledge that these electrical motors are subject matter of the dacoity, in the background that the seizure witness, examined in this case has been declared hostile by the prosecution. 13. Considering the discussions made above and from the evidence of the prosecution witnesses, this Court is of the opinion that the appellants deserve to be acquitted of the charge under Section 412 of the Indian Penal Code by giving benefit of doubt. 14. 13. Considering the discussions made above and from the evidence of the prosecution witnesses, this Court is of the opinion that the appellants deserve to be acquitted of the charge under Section 412 of the Indian Penal Code by giving benefit of doubt. 14. In the result, the impugned judgment of conviction dated 19.04.2004 and order of sentence dated 21.04.2004, passed by learned Additional District & Sessions Judge, Fast Track Court No. V, Dhanbad, in Sessions Trial No. 193 of 2002, in connection with Sudamdih P.S. Case No. 417 of 1994, corresponding to G. R. No. 4767 of 1994, is hereby set aside and the appellants are acquitted of the charge and conviction under Section 412 of the Indian Penal Code by giving benefit of doubt. 15. The appellants, who are on bail, are discharged from the liabilities of their bail bonds. 16. Before parting with the judgment, this Court appreciates the assistance rendered by Mr. Birendra Kumar, Amicus Curiae in this case. 17. Accordingly, the present criminal appeal is allowed. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. 19. So far the four absconding accused of this case are concerned, the learned Principle District Judge, Dhanbad is directed to take all coercive steps against those absconded accused persons if they have not faced the trial, by issuing necessary process under law to be executed by Senior Superintendent of Police, Dhanbad within a period of one month from the date of issuance of such process.