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Jharkhand High Court · body

2020 DIGILAW 113 (JHR)

Baiznath Yadav v. State of Jharkhand

2020-01-17

DEEPAK ROSHAN

body2020
JUDGMENT : 1. The instant application is directed against the judgment dated 03.01.2014, passed by the learned District and Additional Sessions Judge-II, Chatra, in Criminal Appeal No.62 of 2009, whereby the appeal preferred by the petitioners has been dismissed and the judgment of conviction and order of sentence dated 04.12.2009, passed by the learned Judicial Magistrate 1st Class, Chatra in Simaria P.S. Case No.44 of 2005, corresponding to G.R. No.373 of 2005, T.R. No.376 of 2009, whereby the petitioners have been found guilty for the offence under Section 414 of the Indian Penal Code and were directed to undergo R.I. for 03 years with fine of Rs.2,000/-each and in default of payment of fine, they were further directed to undergo S.I. for three months, has been affirmed. 2. The Prosecution case in short is that one Awadhesh Kr. Singh, Officer-In-charge of Simaria P.S gave an application to the Chief Judicial Magistrate stating therein that on the same day when he along with armed police force, CRPF and Assistant Commandant-Sri Kunal under the leadership of S.D.P.O-Sri Binay Bharti conducted raid against extremist and happened to reach at village Khaira at 8.00 am, they received confidential information that Baidnath Yadav, Sahdeo Yadav, Mahadev Yadav, Puran Singh @ Puran Ganjhu, Bahdhan Ganju, Sarju Sao, Jawahar Sao, Inder Munda @ Soma Munda, Manoj Oraon, Niranjan Urao and Arjun Ganjhu along with 25-30 unknown persons at the instance of the extremist were cutting electric aluminum wire of Gaya-Patratu line and on such information, raids were conducted in the respective houses of Baijnath Yadav, Sahdeo Yadav, Suraj Sao and Mahadev Yadav and on their instance several quintals of Aluminum wires were recovered and seized. Thereafter the police force in presence of two witnesses, namely Arjun Sao and Jagernath Kumar Sao also seized 23 quintals of aluminum wire concealed in the field covered by deep forest. Accordingly, FIR was instituted against 11 accused persons including petitioners. 3. The learned trial court after dealing with the evidences, both oral and documentary, convicted the petitioners for the offence under Section 414 of the IPC and acquitted the co-accused from the said charges. The learned trial court while convicting the petitioners held as under:- “Under such circumstances all the accused persons are not found and held guilty for the offence under Section 379 and 120B of the IPC. Hence, all the accused persons are acquitted thereunder accordingly. The learned trial court while convicting the petitioners held as under:- “Under such circumstances all the accused persons are not found and held guilty for the offence under Section 379 and 120B of the IPC. Hence, all the accused persons are acquitted thereunder accordingly. So far the charges for the offence under Section 39 and 44 of Indian Electricity Act are concerned the materials on record does not show that the accused persons dishonestly abstract, consumes or uses any energy and it is also not proved that the accused person have interfered with the maters or licensee works and for improper uses of energy. According to the provision of both sections the ingredients mentioned in these two sections have not been proved against the accused persons. Hence, I also found that the prosecution did not prove the charges under Section 39 and 44 of Indian Electricity Act against the accused persons. Therefore, all the accused persons are acquitted under these two sections also. Bailer of these six acquitted persons are discharged from the liabilities of their bail bonds. But on the above discussions of the facts I come to the conclusion that the huge quantity of alluminium wire which aare a stolen property have been concealed and kept under the conscious possession of accused Baijnath Yadav and Sahdeo Yadav son of Bhola Yadav and these facts have been proved by the evidence of P.W.-1 who is the member of raiding party and I agree with the view of State that non-examination of the I.O informant and other witnesses did not fatal the case of prosecution, P.W.-2 has also supported the facts of the case. In the circumstances, I find that prosecution has been able to prove the charge under Section 414 of the IPC against these two accused persons. Hence, both the accused persons, namely, Baijnath Yadav and Sahdeo Yadav are found and hold guilty for the offence under Section 414 of the IPC only”. 4. Being aggrieved, the petitioners challenged the aforesaid order before the learned District and Additional Sessions Judge-II, Chatra, whereby the appeal preferred by them was dismissed and the learned appellate court concurred with the finding given by the learned trial court. 5. Learned counsel for the petitioner submits that out of 20 charge-sheeted witnesses only two witnesses were examined on behalf of the prosecution. 5. Learned counsel for the petitioner submits that out of 20 charge-sheeted witnesses only two witnesses were examined on behalf of the prosecution. Moreover, these two witnesses were also member of the raiding party and further their depositions are full of contradictions. Learned counsel further contended that Investigating Officer has not been examined in this case, as such, it cannot be said that place of occurrence has been proved. The learned trial court further erred in appreciating the fact that even the seizure list witnesses have not been examined. In nutshell, no independent witness has been examined to prove the guilt of the petitioners. It is an admitted case of prosecution that the aluminum wires were recovered from the different places within the periphery of 50 meters. However, only the petitioners have been found guilty and rest of the persons have been acquitted. It has also been contended by the learned counsel for the petitioners that the said aluminum wire has not been proved as stolen property as the alleged theft report has not been proved. He concluded his argument by submitting that though it is a settled principle that non-examination of the Investigating Officer is not fatal to the prosecution case but in the instant case, non-examination of I.O is highly prejudicial to the petitioners. This is clear cut case of acquittal, however, both the courts below have not appreciated the case in correct perspective. 6. Per-contra, learned APP supports the impugned judgments and submits that there was a theft report by Arun Kumar, Assistant Engineer and huge quantity of aluminum wire were recovered from the conscious possession of the petitioners. Learned APP further contended that the petitioners cannot take the ground of equality in a criminal case rather the learned trial court has meticulously appreciated the evidences and acquitted the co-accused and convicted the petitioners only. 7. Heard learned counsel for the petitioners and learned APP for the State. 8. On scrutiny of the entire material on record, I find that the conviction is based on the testimony of two witnesses only, who were the member of raiding party. It is true that there was a report of one Arun Kumar, Assistant Engineer, Electricity Department, who lodged an F.I.R regarding theft of electrical wire, however, the said Arun Kumar has not been examined. It is true that there was a report of one Arun Kumar, Assistant Engineer, Electricity Department, who lodged an F.I.R regarding theft of electrical wire, however, the said Arun Kumar has not been examined. Further, P.W.-1 has categorically admitted that he is not sure whether the seized aluminum wire is in connection of the same F.I.R being Simaria P.S. Case No.6 of 2005. The record further transpires that P.W.-2 has categorically admitted in para-2 of his cross-examination that he is unable to say from which house the articles were seized. Para 2 of the cross-examination of P.W.-2 is quoted herein below. fdl O;fDr ds ?kj ;k LFkku ls cjkenxh gqbZ uke eSa ugha crk ldrkA pkSgn~nh Hkh ugha crk ldrkA rkj ij eksgj ;k igpku ugha FkkA fdlh vfHk;qDr dks ugha igpkurkA The record further transpires that no independent witness has been examined. It is settled principle of criminal jurisprudence that in the case of search and seizure, examination of independent witness is very important. It is true that non-examination of I.O is not fatal to the prosecution case. The Hon’ble Supreme Court in the case of Behari Prasad Vs. State of Bihar reported in 1996 SCC (2) 317 has held that non-examination of Investigation Officer is not fatal to the prosecution case specially when no prejudice is likely to be suffered by the accused. In the instant case it is specific case of prosecution that the aluminum wires were seized from different places within periphery of 50 meters, as such, in the instant case in my considered opinion the non-examination of Investigating Officer does prejudice to the accused specially in the background that the co-accused have been acquitted and articles were seized from different places and under such circumstances, the different place of occurrence ought to have been proved by the I.O. Hon’ble Karnataka High Court in the case of Hirianna Shetty Vs. State of Mysore has held in paragraph-9 and 10 after relying several judgments as under:- “9. Strong reliance was placed upon the decision of this court in P. Rangappa v. State of Mysore Cr. R. P. 397 of 1970 decided on 5-2-1971 (Mys). In the said case Santhosh, J. has observed as follows: It is needless to point out that the right of bringing on record contradictions in the statement of witnesses made before the Investigating officer is a very valuable right of the accused. R. P. 397 of 1970 decided on 5-2-1971 (Mys). In the said case Santhosh, J. has observed as follows: It is needless to point out that the right of bringing on record contradictions in the statement of witnesses made before the Investigating officer is a very valuable right of the accused. It is by showing that the witness has made improvements or given evidence which contradicts his earlier statement, the accused is able to satisfy the court that the witness is not a reliable witness. The non-examination of the Investigating officer is a serious infirmity in the prosecution case which results in Prejudice to the accused. It is clear from the above decision that the examination of the Investigating officer is necessary in order to brine on record the contradictions in the statement of witnesses and that such a right is a valuable right of the accused. Further it is clear that non-examination of the Investigating officer is a serious infirmity in the prosecution, case in so far as it deprived the accused of the opportunity to show to the court that witnesses were not reliable witnesses by proving contradictions in the earlier statement. 10. Thus in my opinion, the non-examination of the Investigating officer in the case is a serious infirmity resulting in prejudice to the accused and therefore, the conviction and sentence passed against him are liable to be set aside”. The other aspect of the matter is that admittedly the seizure list witnesses have not been examined. The Hon’ble Apex Court in the case of M.P. Sharma Vs. Satish Chandra reported in 1954 AIR 300, has held that the provision of Section 100 of Cr.P.C. need to be complied with while exercising search and seizure. Recently, Hon’ble Patna High Court in the case of Ranjan Kumar @ Raju & Ors. Vs. State of Bihar, reported in 2018 (2) PLJR 274 had also held as under:- “non-examination of the seizure list witnesses creates doubt with regard to recovery of firearms from possession of the appellants. The evidence of seizure list witnesses is very crucial for prosecution to prove the genuineness of search and seizure. Moreover, the non-examination of Patna High Court CR. App (SJ) No.20 of 2007 dated 30.11.2017 the seizure list witnesses definitely creates doubt over the prosecution case is required under Section 100(4) of the Cr.P.C”. 9. The evidence of seizure list witnesses is very crucial for prosecution to prove the genuineness of search and seizure. Moreover, the non-examination of Patna High Court CR. App (SJ) No.20 of 2007 dated 30.11.2017 the seizure list witnesses definitely creates doubt over the prosecution case is required under Section 100(4) of the Cr.P.C”. 9. The learned trial court has convicted the petitioners on mere surmises and conjecture and only on the deposition of P.W.-1. The learned trial court should have appreciated that no independent witness has been examined and even the theft report made in Simaria P.S. Case no.06/2005 has also not been proved. In my considered opinion, the learned trial court has committed an error ignoring the settled proposition of law with respect to compliance of Section 100 of Cr.P.C. in the case of search and seizure. Even the learned appellate court failed to appreciate all these issues in concurring with the findings with the learned trial court. 10. In view of the aforesaid facts and discussion and the judicial pronouncement, the judgment dated 03.01.2014, passed by the learned District and Additional Sessions Judge-II, Chatra, in Criminal Appeal No.62 of 2009 and the judgment dated 04.12.2009, passed by the learned Judicial Magistrate 1st Class, Chatra in Simaria P.S. Case No.44 of 2005, corresponding to G.R. No.373 of 2005, T.R. No.376 of 2009, are hereby, set aside. 11. As a result this criminal revision application is hereby allowed. 12. The petitioners are discharged from the liability of bail bonds. 13. Let the lower court record be sent to the court concerned along with a copy of this order forthwith.