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2018 DIGILAW 2412 (JHR)

Dilip Nonia v. State Of Jharkhand

2018-10-30

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J. - No one appears for the petitioner. However, Mrs. Lily Sahay, learned A.P.P. for the State is present. 2. As this matter is of the year 2009, the same is being disposed of based on the materials available on record. 3. This application is directed against the judgment dated 05.02.2009 passed by the learned Additional Sessions Judge, FTC III, Dhanbad in Criminal Appeal No. 206 of 2008 by which the judgment and order of conviction and sentence dated 17.07.2008 passed by the learned Judicial Magistrate 1st class, Dhanbad in connection with Katras (East Basuria) P. S. Case No. 298 of 2005 corresponding to G. R. No. 4530 of 2005 convicting the petitioner for the offence under Section 411 of Cr.P.C. and sentencing him to undergo R.I. for one year has been affirmed. 4. The prosecution story in brief is that, on 16.11.2005 the informant had parked his Hero Honda motor-cycle bearing registration no. JH 10G/5945 near his quarter. It has been alleged that in the morning about 3:30 A.M. when he came outside his house, he found his motor-cycle missing which could not be traced out. Based on the aforesaid allegations, Katras (East Basuria) P. S. Case No. 298 of 2005 was instituted against unknown persons. After investigation, charge-sheet was submitted under Sections 379/411 of I.P.C. against the petitioner and after cognizance was taken, charge was framed under Section 379/411 of I.P.C. to which the petitioner pleaded not guilty and claimed to be tried. 5. In course of trial, 10 witnesses were examined on behalf of the prosecution. P.W. 1 - Ramesh Kumar Sharma, P. W. 2 - Sitaram Yadav, P.W. 3 - Sidheshwar Mahato, P.W. 4 - Vakil Ahmad, P.W. 9 - Ram Dular Jaiswara did not support the prosecution case and hence they were declared hostile. P.W. 5 - Ram Bahadur Singh is the Investigating Officer who has stated that after receiving the charge of investigation, he has recorded the statement of the witnesses. He has stated that after few days he has received information about a stolen motor-cycle at Perwaria market at Tituria (West Bengal). The motor-cycle was seized from the possession of this petitioner for which a seizure list was also duly prepared. In cross-examination, he has stated that he has recorded the confessional statement of the accused persons. He has stated that after few days he has received information about a stolen motor-cycle at Perwaria market at Tituria (West Bengal). The motor-cycle was seized from the possession of this petitioner for which a seizure list was also duly prepared. In cross-examination, he has stated that he has recorded the confessional statement of the accused persons. P.W. 6 - Shekhar Kumar Verma has merely stated about the incident of theft. This witness is of no significance in deciding the case. P.W. 7 - Manoj Kumar Chouhan and P.W. 8 - Sanjay Kumar Chouhan are the seizure list witnesses who have identified their signature on the seizure list. These witnesses have stated that they had seen the petitioner with the stolen motor-cycle and subsequently the same was seized. P.W. 10 - Vijay Kumar Chouhan has also supported the fact with respect to the motor-cycle being kept locked in front of the house of the informant, but subsequently it was stolen. 6. Although the FIR was instituted against unknown persons, but subsequently the motor-cycle on being seized from the possession of the petitioner, he was implicated and was subsequently convicted for the offence under Section 411 of I.P.C. The seizure list witnesses being P.W. 7 and P.W. 8 have supported the factum of seizure as well as identified their signatures upon the seizure list. P.W. 5 - Ram Bahadur Singh being the Investigating Officer has also supported the prosecution case and recovery of the motor cycle from the possession of the petitioner. Therefore, P.W. 5, P.W. 7 & P.W. 8 have categorically proved the recovery of the stolen motor-cycle from the possession of the petitioner and in such circumstances, the petitioner was rightly convicted for the offence under Section 411 of I.P.C. The same is hereby sustained. 7. However, with respect to the sentence which has been imposed upon the petitioner, it appears that the petitioner is facing rigors of prosecution case since the year 2005 and he appears to have remained in custody for some time. Regard being had to the aforesaid facts, the period of sentence imposed upon the petitioner is modified to the period already undergone by him in custody. 8. This application stands dismissed with the aforesaid modification in sentence.