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2020 DIGILAW 1116 (JHR)

Meena Devi v. State of Jharkhand

2020-11-27

ANUBHA RAWAT CHOUDHARY

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ORDER : Anubha Rawat Choudhary, J. Through Video Conferencing 1. Heard Mr. Sanjay Kumar, learned counsel appearing on behalf of the petitioners in both the cases. 2. Heard Ms. Nehala Sharmin and Mr. Sanjay Kumar Shrivastava, the learned A.P. Ps. appearing on behalf of the Opposite Party-State in Cr. Rev. No. 286 of 2014 and Cr. Rev. No. 1394 of 2016 respectively. 3. The learned trial court, vide judgment of conviction and the order of sentence dated 27.09.2013 passed by the learned Judicial Magistrate, 1st Class, Bokaro in G.R. Case No. 1363 of 2011/T.R. Case No. 360 of 2013, had convicted the petitioner-Meena Devi for the offence under Section 411 of the Indian Penal. Code and had sentenced her to undergo Rigorous Imprisonment for one year and had directed that the period already undergone in custody by her shall be set off. The learned trial court had convicted the petitioner-Raju Bansfore along with one Barka Dome for the offence under Sections 380 and 457 of the Indian Penal Code in the light of presumption drawn under section 114(A) and had sentenced them to undergo Rigorous Imprisonment for three years with fine of Rs. 1,000/- for the offence under Section 380 of the Indian Penal Code and to further undergo Rigorous Imprisonment for three years with fine of Rs. 1,000/- for the offence under Section 457 of the Indian Penal Code and in default of payment of fine, to undergo simple imprisonment for one month and had directed that both the sentences shall run concurrently and the period already undergone in custody shall be set off. 4. Being aggrieved by and dissatisfied with the judgment of conviction and the order of sentence passed by the learned trial court, petitioner Meena Devi and Barka Dome jointly preferred Criminal Appeal No. 171 of 2013 and the petitioner-Raju Bansfore preferred Criminal Appeal No. 172 of 2013. 5. The learned appellate court, vide common judgment dated 14.02.2014 passed by the learned Sessions Judge, Bokaro, held that the charge under Section 411 of the Indian Penal Code is proved against the present petitioners and accordingly, convicted the present petitioners under Section 411 of the Indian Penal Code and sentenced them to undergo Simple Imprisonment for two years under Section 411 of the Indian Penal Code. The learned lower appellate court was of the considered view that petitioner-Raju Bansfore along with one Barka Dome could not have been convicted for the offence under Sections 380 and 457 of the Indian Penal Code by way of presumption drawn under section 114(A) of the Evidence Act under the facts and circumstances of this case. Since there was no recovery from Barka Dome, the learned appellate court found that the only material against Barka Dome was the disclosure statement which cannot be basis for conviction under Section 411 of the Indian Penal Code and accordingly, set aside the judgment of conviction and sentence passed against Barka Dome and the appeal preferred by Barka Dome was allowed. Thus, ultimately the conviction of the present petitioners was sustained only under section 411 of Indian Penal Code due to recovery of mobile phones of the informant from their possession. 6. Both these criminal revision petitions are directed against the common judgment dated 14.02.2014 passed by the learned Sessions Judge, Bokaro in Criminal Appeal No. 171 of 2013 and Criminal Appeal No. 172 of 2013 preferred by the petitioners respectively. Arguments on behalf of the petitioners 7. The learned counsel for the petitioners submitted that from both the petitioners, one mobile each was recovered for which, they have been ultimately convicted under Section 411 of Indian Penal Code only. 8. Learned counsel appearing on behalf of the petitioners further submitted that Meena Devi (petitioner in Cr. Rev. No. 286 of 2014) was convicted by the learned trial court for offence under Section 411 of Indian Penal Code and was sentenced for a period of 1 year only, but while dismissing her appeal, the learned appellate court held that the sentence of the petitioner-Meena Devi would be for two years. He submitted that this happened because of the reason that the co-accused in the present case namely, Raju Bansfore (petitioner in Cr. Rev. No. 1394 of 2016) was sentenced by the learned trial court for a period of three years and while partly allowing his appeal, he was ultimately convicted only under Section 411 of Indian Penal Code and his sentence was reduced to two years. Rev. No. 1394 of 2016) was sentenced by the learned trial court for a period of three years and while partly allowing his appeal, he was ultimately convicted only under Section 411 of Indian Penal Code and his sentence was reduced to two years. He submitted that ultimately both the petitioners stood convicted for offence under Section 411 of Indian Penal Code and punishment of the petitioner namely, Raju Bansfore has been reduced from three years to two years and the punishment of Meena Devi has been enhanced from one year to two years without assigning any reason and without there being any petition for enhancement of sentence He submitted that the learned appellate court had no jurisdiction to enhance the punishment of the petitioner-Meena Devi in an appeal filed by her that too without assigning any reason. 9. The learned counsel for the petitioners further submitted that the petitioner in Cr. Rev. No. 1394 of 2016 has remained in custody from 03.03.2016 to 01.12.2016 i.e. for almost 09 months during the pendency of this revision petition and has also remained in custody from 15.11.2011 to 22.08.2012 (09 months 08 days) at the stage of trial. Accordingly, he prayed that the sentence of Raju Bansfore (petitioner in Cr. Rev. No. 1394 of 2016) may be confined to the period already undergone and if this Court finds proper, some fine amount may be imposed. 10. So far as the petitioner-Meena Devi (petitioner in Cr. Rev. No. 286 of 2014) is concerned, the learned counsel submitted that she has also remained in custody at the stage of trial from 30.11.2011 to 10.01.2012 (01 month 12 days) and also at the stage of revision before this Court from 31.03.2014 to 25.04.2014 (26 days). He further submitted that considering the fact that Meena Devi is a female, some lenient view may be taken and her sentence be modified to the period already undergone by her and if found proper, some fine may be imposed. Arguments on behalf of the Opposite Party-State 11. The learned counsels appearing on behalf of the Opposite Party-State submitted that it is not in dispute that from both the petitioners, one mobile each was recovered. Arguments on behalf of the Opposite Party-State 11. The learned counsels appearing on behalf of the Opposite Party-State submitted that it is not in dispute that from both the petitioners, one mobile each was recovered. They further submitted that it is also not in dispute that Meena Devi was convicted only for a period of one year by the learned trial court, but the learned appellate court sentenced Meena Devi to undergo simple imprisonment for two years. The learned counsels submitted that it appears that since the cases of both the petitioners were taken up together by the learned appellate court, such judgment has been passed. Findings of this Court 12. After hearing the learned counsel for the parties and upon going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case is based on the written report of the Informant namely, Vishal Sinha lodged on 16.10.2011 alleging inter-alia that on 16.10.2011 when he was asleep at his Qr. No. 2111/4F along with his family, at about 01:45 A.M., he and his wife heard the sound of opening of the wooden door of the Almirah. He went to the room of his daughter on which she started crying and said that some thieves had entered into the house and had focused torch on her face, but out of fear, she did not say anything and she saw that the thief took her mobile phone from the table and went away. The Informant found that the grill of the window of the drawing room is broken. Thereafter, the Informant along with his neighbour searched for the thief and in the meantime, he met the police patrolling party. The Informant along with his neighbours and the police patrolling party searched for the thieves and went towards the backside lane and saw the thieves fleeing away and they fled away taking advantage of darkness. The Informant has given the description of the thieves and the description of the stolen articles which include cash of Rs. 15,000/- and three mobile phone sets with SIM cards. 13. On the basis of the written report, the case was registered as Sector IV P.S. Case No. 160/2011 dated 17.10.2011 under Sections 457 and 380 of the Indian Penal Code against unknown thieves. Section 411 of the Indian Penal Code was added vide order dated 15.11.2011. 15,000/- and three mobile phone sets with SIM cards. 13. On the basis of the written report, the case was registered as Sector IV P.S. Case No. 160/2011 dated 17.10.2011 under Sections 457 and 380 of the Indian Penal Code against unknown thieves. Section 411 of the Indian Penal Code was added vide order dated 15.11.2011. On completion of investigation, charge-sheet was submitted against the petitioners and one Barka Dome under Sections 457, 380 and 411 of the Indian Penal Code and thereafter, on 06.02.2012, cognizance of the offence was taken against them under the same sections. 14. On 28.03.2012, charges under Sections 457, 380 and 411 of the Indian Penal Code were framed against the petitioners and said Barka Dome which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 15. In course of trial, the prosecution examined altogether 6 witnesses. P.W. 1 is Vinita Sinha, P.W. 2 is Vishal Sinha who is the Informant of the case, P.W. 3 is Dinesh Prasad Singh, P.W. 4 is Suman Anand, P.W. 5 is Vikram Kumar and P.W. 6 is Awadhesh Kumar Singh who is the Investigating Officer of the case. The prosecution exhibited the written report as Exhibit-1, signature of S.I. Ram Pyare Ram on formal F.I.R. as Exhibit-2 and the Seizure List as Exhibit-3. 16. After closure of the prosecution evidence, the statements of the accused persons including the petitioners were recorded under Section 313 of Cr.P.C. on 22.08.2013 wherein they simply denied the occurrence and claimed to be innocent. The petitioners did not adduce any oral or documentary evidence in their defence. 17. The trial court considered the oral and documentary evidences adduced on behalf of the prosecution and recorded its findings in Para-16 which read as under: "16 After scrutinizing the evidence adduced by prosecution and argument forwarded by the parties I found that P.W. 2 who is informant of the case has fully supported the fact of theft in his house on the date of occurrence. Other witnesses as P.W. 1, P.W. 3, P.W. 4 and P.W. 5 have also supported the statement of informant. There is no eye witness of the occurrence who can say about the involvement of the accused persons. Hence, as per the recovery of the articles and circumstance police has submitted charge-sheet in this case. Other witnesses as P.W. 1, P.W. 3, P.W. 4 and P.W. 5 have also supported the statement of informant. There is no eye witness of the occurrence who can say about the involvement of the accused persons. Hence, as per the recovery of the articles and circumstance police has submitted charge-sheet in this case. As per the statement of the I.O. police party nabbed to the accused Raju Bansfore and Kuldip Dome and one mobile was recovered from the possession of the accused Raju Bansfore. The seizure list about recovery of the one mobile Samsung model 7722 IMEI No. 352550/04/123656/1 is available on record which was stolen from the house of the informant and also mention in written report was recovered from possession of Raju Bansfore. Further as per evidence of the I.O. that on the basis of information given by accused Raju Bansfore another mobile was recovered from accused Meena Devi. The seizure list about recovery of one Black HTC mobile IMEI No. 357758046839538 is available on record which was stolen from the house of informant and recovered from the possession of accused Meena Devi. It is mentioned in the confessional statement of the Meena Devi that the aforesaid mobile was given to her by his brother Barka Ram, the said Barka Ram @ Barka Dome has confessed in his confessional statement that Meena Devi is his sister and he given one mobile phone which was stolen by him along with other from a quarter of Sector-IV F. The confessional statement of Meena Devi from whose possession one stolen mobile was recovered is here corroborated with confessional statement made by the co-accused Barka Dome, hence, the confessional statement of Barka Dome is considerable in this regard. Here, in the instant case recovery of the two stolen mobile phones have been proved by the prosecution, both the mobile phones were produced before the court by police after its seizure and they were also released in favour of the informant by the court. Hence, in the aforesaid circumstance and on the basis of available evidence, theft in the house of informant and recovery of the stolen mobile phones has been proved by the prosecution. So far the involvement of the accuses persons facing trial, involvement of the Meena Devi as receiver of the stolen property is proved as the stolen article was recovered from her possession. So far the involvement of the accuses persons facing trial, involvement of the Meena Devi as receiver of the stolen property is proved as the stolen article was recovered from her possession. Further involvement in the alleged theft is proved in respect of the accused Raju Bansfore from whose possession the stolen article was recovered. The involvement of accused Barka Bansfore is also proved by the prosecution in the light of confessional statement given by Meena Devi and Barka Bansfore himself. On the basis of evidence available on record and facts and circumstances of the case accused Meena Devi is found guilty for the offence u/s. 411 IPC and accused persons Raju Bansfore and Barka Bansfore are found guilty in the light of provision in Sec. 114(A) Evidence Act, for the offences u/s. 380 and 457 IPC as they have committed theft in dwelling house by lurking house trespass in night. On the basis of aforesaid evidence I found that the prosecution is well able to prove its case against the accused persons namely Meena Devi, Raju Bansfore and Barka Dome but same time prosecution has fail to give any cogent evidence in respect of accused Kuldip Dome, hence, he is acquitted from this case and the accused persons namely Meena Devi, Raju Bansfore and Barka Dome are found guilty for the aforesaid offences. They are on bail and their bail bonds stands cancelled and they are taken into judicial custody." 18. The learned appellate court also discussed the prosecution evidences in detail, considered the arguments advanced on behalf of the appellants and recorded its findings at Paras-9 and 10 which read as under: "9. Burglary did take place in the house of the informant is not in a shadow of doubt. The written report was lodged without in any delay on the very next morning at 9:30 hours on 17.01.2011. The endorsement of the C.J.M. in the F.I.R., shows that it was received in the court on that very date. The informant who is an Assistant General Manager in BSL and resident of Qr No. 2111, Sector IV/F and his wife PW-1 have clearly stated about the offence in their examination-in-chief. The deposition of the informant has fully corroborated by the F.I.R. in terms of section 157 of the Indian Evidence Act. No question has been put in the cross-examination regarding the factum of incidence. The deposition of the informant has fully corroborated by the F.I.R. in terms of section 157 of the Indian Evidence Act. No question has been put in the cross-examination regarding the factum of incidence. The only question that has been put regarding the identity of the accused, so the factum of theft being committed in the house of the informant is established. This has been corroborated by the independent witnesses, PW-3, PW-4 and PW-5 who were the neighbours of the informant. Regarding the complicity of the appellants in the offence. The I.O. has deposed that the accused persons Raju Bansfore and Kuldeep Dome were arrested and one mobile set was seized from them, which has been marked as Ext.-3. The Seizure list states that the black coloured mobile set was seized from Raju Bansfore. It has been further stated by the I.O. That on the basis of the confessional statement of both the arrested accused persons, another mobile set was recovered from the outhouse of Meena Devi................... 10. Under the aforesaid facts and circumstance, I do not find any reasonable basis to doubt the recovery of one mobile set from Raju Bansfore and another from the outhouse of Meena Devi. Proof beyond reasonable doubt does not mean proof beyond all doubts, as in affairs of men, there cannot be absolute certainty. It has also come in the evidence of informant PW-2 which remain unrebutted in the cross-examination that these mobile sets were received back by the informant. The accused Raju Bansfore and Meena Devi has not accounted for these mobile sets seized from them. The learned court below has drawn a presumption under Section 100(a) of the Evidence Act. But, I am of the view that this is not a fit case for drawing the presumption under this provision. Such a presumption can be drawn only when one is found to be in possession of stolen goods soon after the incidence and not when there is a long time gap between the two. The theft was committed on the night of 17.10.2011 whereas the recovery and seizure was made on 14.11.2011 from Raju Bansfore and on 29.11.2011 from Meena Devi. In view of the time gap, this presumption is not permissible." 19. The theft was committed on the night of 17.10.2011 whereas the recovery and seizure was made on 14.11.2011 from Raju Bansfore and on 29.11.2011 from Meena Devi. In view of the time gap, this presumption is not permissible." 19. This Court finds that the Informant (P.W. 2) has fully supported his version made in the F.I.R. and the fact of theft committed in his house on the date and time of occurrence and P.W. 1, P.W. 3, P.W. 4 and P.W. 5 have fully corroborated the evidence of the informant. From the evidence of the Investigating Officer (P.W. 6), this Court further finds that one mobile set was recovered from the possession of the petitioner-Raju Bansfore and another mobile set was recovered from the outhouse of the petitioner-Meena Devi and both the mobile sets were released in favour of the informant by the learned court below. 20. This Court finds that the learned courts below have given consistent and concurrent finding of facts after considering the entire evidences on record with regard to the factum of theft in the house of the informant and the seizure of mobile sets of the informant from the conscious possession of the petitioners. However, the learned lower appellate court found that there is a long-time gap between the theft committed on the night of 17.10.2011 and the recovery and seizure made on 14.11.2011 from Raju Bansfore and on 29.11.2011 from Meena Devi and held that the presumption in law regarding commission of offence under Sections 457 and 380 of the Indian Penal Code is not permissible in the aforesaid facts. Consequently, the petitioners were convicted only under Section 411 of Indian Penal Code and the co-accused Barka Dome, from whom there was no recovery was acquitted. 21. This Court is of the considered view that there is no scope for re-appreciation of evidences in revisional jurisdiction and there is no illegality or perversity in the impugned judgments, so far as conviction of the petitioners under Section 411 of the Indian Penal Code is concerned. Accordingly, the conviction of the petitioners under section 411 of Indian Penal Code does not call for any interference which is hereby upheld. 22. Accordingly, the conviction of the petitioners under section 411 of Indian Penal Code does not call for any interference which is hereby upheld. 22. This Court finds that the appellate court, while upholding the conviction of petitioner-Meena Devi under section 411 of Indian Penal Code has enhanced the sentence of the petitioner-Meena Devi from one year to two years without any discussion on the point of enhancement of sentence. This happened while dealing with the sentence of both the petitioners together and reducing the sentence of the petitioner Raju Bansfore from three years to two years as he has been convicted only under Section 411 of Indian Penal Code by the appellate court. Admittedly no appeal was filed by the State/victim/informant of the case. Admittedly, no notice was ever issued to the petitioner-Meena Devi for the purposes of enhancement of sentence and there is no discussion in the entire appellate court's judgment on the point of enhancement of sentence except in the operative portion incidentally enhancing the sentence straightaway. This Court is of the considered view that the impugned enhancement of sentence of the petitioner-Meena Devi suffers from grave illegality which cannot be sustained in the eyes of law and calls for interference in revisional jurisdiction of this court to meet the ends of justice. Accordingly, enhancement of sentence of the petitioner-Meena Devi passed by the learned appellate Court is hereby set aside. 23. The fact remains that the one mobile set was recovered from the possession of the petitioner-Raju Bansfore and another mobile set was recovered from the outhouse of the petitioner-Meena Devi and ultimately both were convicted only under Section 411 of IPC. The FIR is of the year 2011 and the petitioners have faced the rigours of the trial for more than 09 years. The petitioner-Raju Bansfore (petitioner in Cr. Rev. No. 1394 of 2016), has already remained in custody for more than 01 year 06 months and the petitioner-Meena Devi has remained in custody for more than 02 months. This Court is of the view that ends of justice would: be served, if sentence of the petitioners are modified to some extent by imposing fine. Accordingly, the sentences of both the petitioners are reduced to the period already undergone by them in judicial custody with fine of Rs. 15,000/- for petitioner-Meena Devi and Rs. 10,000/- for petitioner-Raju Bansfore. 24. The aforesaid fine amount of Rs. Accordingly, the sentences of both the petitioners are reduced to the period already undergone by them in judicial custody with fine of Rs. 15,000/- for petitioner-Meena Devi and Rs. 10,000/- for petitioner-Raju Bansfore. 24. The aforesaid fine amount of Rs. 15,000/- for petitioner-Meena Devi and Rs. 10,000/- for petitioner-Raju Bansfore is to be deposited by the concerned petitioner before the learned trial court within a period of three months from the date of communication of a copy of this order to the learned trial court and half of the fine amount so deposited is directed to be remitted to the informant-victim of the case after due identification. It is also directed that in case the fine amounts are not deposited within the stipulated time frame, the petitioner-Meena Devi would serve the remaining sentence imposed by the learned trial court and the petitioner-Raju Bansfore would serve the remaining sentence imposed by the learned appellate court. 25. Accordingly, with the aforesaid observations, directions and modification in sentence of the petitioners, both the criminal revision petitions are hereby disposed of. 26. Pending interlocutory application, if any, is dismissed as not pressed. 27. Let the lower court records be sent back immediately to the court concerned. 28. Let a copy of this order be communicated to the learned court below through 'e-mail/FAX'.