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2018 DIGILAW 2323 (JHR)

Shyamal Baran Mandal v. State Of Jharkhand

2018-10-23

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J. - No one appear on behalf of the petitioners. However, Mr. Shekhar Sinha, learned A.P.P. for the State is present. 2. As these matters are pending since 2008 the same are being disposed of based on the materials available on record. 3. These revision applications are directed against the judgment dated 29.03.2008 passed in Criminal Appeal No. 8/2008 and Criminal Appeal No. 9/2008, by the learned Sessions Judge, West Singhbhum, Chaibasa, whereby and whereunder the judgment and order of conviction and sentence dated 28.01.2008 passed by the learned Judicial Magistrate, 1st Class, Chaibasa, in connection with Noamundi P.S. Case No. 54 of 2004, corresponding to G.R. Case No 579 of 2004 (T.R. No. 122 of 2008), by which the petitioners have been convicted for the offences punishable under Section 379 of the Indian Penal Code and Section 21 of the M.M.D.R., Act and have been sentenced to undergo R.I. for 2 years under each of the offences has been affirmed. 4. The prosecution story in brief is that on 23.12.2004 the informant received an information from S.D.P.O., Kiriburu that near Noamundi village in a forest Iron Ore was being illegally loaded in a truck. It has been stated that a raid was conducted and a truck bearing registration no. JH-05A-9721 was stopped. It has been alleged that on checking 15-16 M.T., of Iron Ore was found loaded in the truck. The driver of the truck disclosed that after extraction of the Iron Ore the same was loaded on the truck. It has also been alleged that the persons who had loaded the Iron Ore managed to flee away. The driver had also disclosed that on the instruction of one Tiwarijee the Iron Ores were loaded. Subsequently the Iron Ores were seized and a seizure list was prepared. 5. Based on the aforesaid allegation Noamundi P.S. Case No. 54 of 2004 was instituted in which after investigation charge-sheet was submitted leading to taking of cognizance. Charge was framed under Sections 379/411 of the Indian Penal Code and Section 21 of the M.M.D.R., Act. 6. In course of trial six witnesses were examined on behalf of the prosecution. P.W.1 (Jainarayan Rao) was a member of the raiding party who has stated that on 23.12.04 the patrolling party had gone to Kortgarh forest where they found a truck being loaded with Iron Ore. 6. In course of trial six witnesses were examined on behalf of the prosecution. P.W.1 (Jainarayan Rao) was a member of the raiding party who has stated that on 23.12.04 the patrolling party had gone to Kortgarh forest where they found a truck being loaded with Iron Ore. He has stated that the driver disclosed his name as Gopal Prasad and further stated that the Iron Ore was being loaded at the instance of one Tiwarijee. This witness has deposed that the driver had failed to produce any document with respect to the Iron Ore which was seized. P.W.2 (Manoj Kumar) was also a member of the patrolling party who has supported the prosecution case as well as the recovery of 15-16 tonnes of Iron Ore extracted illegally and being transported in a truck. P.W.3 (Subodh Kumar Gautam) was also a member of the patrolling party who had supported the prosecution case. P.W.4 (Sirish Kumar Purty) is a seizure list witness who has been declared hostile by the prosecution as he has not supported the seizure. P.W.5 (Vijay Shankar Prasad) is the Investigating Officer who has stated that after taking over investigation of Noamundi P.S. Case No. 54 of 2004 he had recorded the statement of the witnesses. He has stated that the driver on being asked had failed to produce the document. This witness has described the place of occurrence which is adjacent to a forest near Sunil Khirwal''s crusher. He has also stated that at the instance of Tiwarijee the Iron Ore was loaded in the truck. P.W.6 (Sudhir Kumar Sahu) is the informant who has deposed that on 23.12.04 he was instructed by the S.D.P.O., to prevent the illegal extraction and transportation of Iron Ore. He has stated that the truck which was coming from the forest area was stopped and it was found to be carrying 15-16 M.T. of Iron Ore. He has stated that the driver failed to produce any document and the driver had disclosed that the Iron Ore was loaded at the instance of Tiwarijee and the same was being taken to Chandil. In cross-examination this witness has stated that he cannot disclose the Plot number and Khata number of the place of occurrence. 7. The defence had taken a plea that most of the witnesses are members of the patrolling party and are therefore highly interested witnesses. In cross-examination this witness has stated that he cannot disclose the Plot number and Khata number of the place of occurrence. 7. The defence had taken a plea that most of the witnesses are members of the patrolling party and are therefore highly interested witnesses. It has been stated that no identification was made of Tiwarijee at whose instance the Iron Ore was supposed to have been loaded in the truck. The defence has also taken a plea that the prosecution has failed to prove the theft of Iron Ore. 8. Learned A.P.P., for the State has opposed the prayer made by the petitioners. 9. The petitioner in Cr. Revision No. 314 of 2008 is the owner of the truck bearing registration no. JH-05A-9721 whereas the petitioners in Cr. Revision No. 922 of 2008 are the driver and khalasi of the said truck. P.Ws. 1, 2, 3 and 6 were all members of the patrolling party who have categorically stated about the truck being loaded with illegally extracted Iron Ore and the driver on being apprehended could not produce any documents in support of such extraction and transportation. The place of occurrence has been described to be a Rayati land near Sunil Khirwal''s crusher and without there being any permission from the appropriate authority for extraction of Iron Ore the act of the petitioners therefore was a theft and was definitely an offence punishable under Section 21 of the M.M.D.R., Act as well. The driver and the khalasi of the truck who are the petitioners in Cr. Revision No. 922 of 2008 were apprehended at the spot and the petitioner in Cr. Revision No. 314 of 2008 being the owner of the truck cannot be absolved from an offence as committed since the truck is plied at the instance of the owner and nothing to the contrary has been brought on record by the owner of the truck to suggest that the entire occurrence had taken place without his knowledge. Therefore the complicity of all the petitioners are apparent from the evidence adduced by the prosecution. 10. Therefore the complicity of all the petitioners are apparent from the evidence adduced by the prosecution. 10. So far as the witnesses examined by the prosecution are concerned it further appears that nothing has been brought by way of defence to disbelieve the version of the members of the patrolling party and the prosecution has convincingly proved the theft of Iron Ore and therefore the petitioners were rightly convicted for the offence under Section 379 of the Indian Penal Code and Section 21 of the M.M.D.R., Act. The same is hereby affirmed. 11. However, with respect to the sentence which has been imposed upon the petitioners it appears that the petitioners have remained in custody for sometime and are facing the rigors of the prosecution case for more than a decade. Consideration of the said facts as also the nature of the offence the period of sentence imposed upon the petitioners is modified to the period already undergone. 12. These applications stand dismissed with the aforesaid modification in the sentence imposed upon the petitioners.