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2020 DIGILAW 109 (JHR)

Md. Mofil Khan v. State Of Jharkhand

2020-01-17

RAJESH KUMAR

body2020
JUDGMENT 1. Heard learned counsel for the appellant and learned counsel for the State. 2. This appeal is directed against the judgment of conviction and order of sentence dated 03.06.2006 passed by Sri Ram Babu Gupta, Addl. Sessions Judge, (F.T.C.), Latehar in Sessions Case No. 495A of 1993 whereby and whereunder the appellant has been convicted for the offence under Sections 379 and 414 of the Indian Penal Code and Section 4/21 of the M.M. (R.D.) Act. The appellant has been given benefit of Probation of Offenders Act and a fine of Rs. 1,00,000/- has been imposed upon him. 3. Chandwa P. S. Case No. 111 of 1991 has been registered on written report submitted by Raghav Nandan Prasad, Assistant Mining Officer, Latehar (P.W.-2). As per the allegation during course of inspection, it has been found that illegal mining is being carried on and accordingly, Truck No. BIN-9406 and Truck No. BHM-3461 has been intercepted, the driver of Truck No. BIN-9406 and twenty five labourers fled away, driver of Truck No. BHM-3461 has been apprehended on the spot. The Trucks were carrying fire clay. He further alleged that Truck No. BHM-3461 loaded with fire clay and Motor Cycle No. BHH-6086 were seized, but Truck No. BIN-9406 could not be seized as its driver fled away. The cost of fire clay has been assessed as Rs. 6,25,000/-. On enquiry, the informant has come to know that this illegal mining is being done in the name of Mitra Enterprises by using forged challan. The real person behind the illegal mining is this appellant as has been informed by the villagers and labourers. 4. On the basis of the above FIR, investigation has been conducted and on completion of investigation, the appellant has been charge sheeted under the above Sections. Cognizance was taken and the case was committed to the Court of Sessions. Charge was framed under Sections 379 and 413 of the Indian Penal Code and Section 4/21 of the M.M. (R.D.) Act against the appellant, to which he pleaded not guilty and claimed to be tried. 5. On conclusion of the prosecution case, statement of the accused under Section 313 of the Cr. P. C. was recorded, in which his defence was denial. 6. Being aggrieved, the present appeal has been filed. 7. To substantiate the charges, altogether five witnesses have been examined by the prosecution. 5. On conclusion of the prosecution case, statement of the accused under Section 313 of the Cr. P. C. was recorded, in which his defence was denial. 6. Being aggrieved, the present appeal has been filed. 7. To substantiate the charges, altogether five witnesses have been examined by the prosecution. P.W. -1, Nand Kumar Singh, the then Chainman Mining Department, has testified regarding illegal mining by truck involved in the present case. P. W. -2, Raghav Nandan Prasad, the then Assistant Mining Officer, Latehar and informant of the case, has supported the allegation as disclosed in the FIR. P. W. -3, Yogendra Badaik, the then Mining Inspector, has supported the prosecution story, P. W. -4, Suresh Prasad Singh, Assistant Sub- Inspector of Police, has proved the signature on Ext.-1 and Challan relating to the material Ext. as Ext. - 4 and P. W. -5, Ajay Kumar Singh, has proved signature on the FIR as Ext. -8. Investigating Officer of the case has not been examined. 8. It has been argued by the learned counsel for the appellant that prosecution has only able to prove regarding commission of offence, but there is no evidence on record connecting the appellant with the offence. It has further been argued that only the testimony available on record is the testimonies of the officials of the Mining Department and as per their testimonies, they were informed by the Labourers and Villagers that the present appellant is the person involved in the illegal mining, but no such persons have been produced as witness, who have informed the official regarding the involvement of this appellant in the said offence. Thus no evidence is available on record suggesting involvement of the appellant. 9. Per contra learned counsel for the appellant has supported the judgment of conviction and argument has been advanced that prosecution witness P. Ws.-1, 2, 3 and 4 have stated that on enquiry, it has been found that the mining was being done in the fake name of Mitra Enterprises by using forged challan. Independent persons have informed the Officials of the Mining Department, which has been testified by the Officials of the Mining Department. 10. Heard learned counsel for the parties. From perusal of the record, it appears that commission of offence has been proved by leading sufficient evidence, but there is no admissible evidence against the appellant connecting him with the offence. Independent persons have informed the Officials of the Mining Department, which has been testified by the Officials of the Mining Department. 10. Heard learned counsel for the parties. From perusal of the record, it appears that commission of offence has been proved by leading sufficient evidence, but there is no admissible evidence against the appellant connecting him with the offence. The only statement of the official witnesses are to the effect that they have been informed by the villagers and labourers, but no persons have been examined, who have informed the Officials of the Mining Department. No witness has been produced to that effect connecting the appellant with the crime. It is trite that a person can be a witness of a fact, which has been received by his senses. In the present case the witness of prosecution can be at best hearsay witness and conviction of the accused on the testimony of hearsay witness cannot be sustained in the eyes of law. 11. In view of the above discussion and considering the material available on record, this Court finds that prosecution has failed to prove the charges beyond all reasonable doubt. Accordingly, the appellant is acquitted from the charges of under Sections 379 and 414 of the Indian Penal Code and Section 4/21 of the M.M. (R.D.) Act and the judgment of conviction and order of sentence dated 03.06.2006 passed by Sri Ram Babu Gupta, Addl. Sessions Judge, (F.T.C.), Latehar in Sessions Case No. 495A of 1993 is, hereby, set aside and the appeal stands allowed.