Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 189 (JHR)

Guljar Ansari v. State of Jharkhand

2020-01-31

DEEPAK ROSHAN

body2020
JUDGMENT : 1. The instant application is directed against the judgment dated 22nd January, 2014, passed by the learned Sessions Judge, Bokaro, in Criminal Appeal No.145 of 2013, whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence dated 13.08.2013, passed by the learned Sub-Divisional Judicial Magistrate, Bokaro in G.R Case No.539 of 2008, corresponding to T.R. No.92 of 2013, whereby the petitioner has been convicted and sentenced for the offence under Section 414 of the IPC and was directed to undergo R.I. for two years with fine of Rs.5,000/-and in default of payment of fine, he was further directed to undergo S.I. for three months, has been affirmed. 2. The prosecution case in brief is that the informant is a CISF personnel having CISF no.801140055 of crime and investigation branch under CISF unit BSL Bokaro. It is stated that on 24.04.2008 at 8.20 hours one CISF personnel Pankaj Kumar Tiwary saw a Maruti Van bearing registration No.JH09A-5952 inside the gate no.5 which was on way to come out from the said gate in suspected situation, then that CISF personnel went near the vehicle and he saw the vehicle loaded with brass and copper materials, thereafter, along with other CISF personnel Asif Eqbal, they made query with the driver of the said vehicle but he could not give a satisfactory reply. The driver was Guljar Ansari, S/O Jamaluddin Ansari of village Tupkadih, P.S. Jaridih, Bokaro who was intercepted along with stolen materials and the materials aforesaid were seized. On further query the accused disclosed that one person namely Kaushal of Sec-8, B.S. City was accompanying him but that fellow was not found there. The prosecution party got the accused medically examined, obtained the property certificate from BSL regarding the theft materials which was seized by Sri Ram Nath Mishra, AGM, BSL and the seized materials were valued approximately Rs.67,100/-. The arrested accused along with seized materials, seizure list handed over to Harla police for registration of FIR and further proceeding. This is the case of the prosecution. 3. On the basis of written report, Harla P.S. Case No.42 of 2008 was registered under Section 414/34 of the IPC against this petitioner and one co-accised, Kaushal. After investigation, police submitted charge-sheet and charge was framed against the petitioner for which he pleaded not guilty and claimed to be tried. 4. This is the case of the prosecution. 3. On the basis of written report, Harla P.S. Case No.42 of 2008 was registered under Section 414/34 of the IPC against this petitioner and one co-accised, Kaushal. After investigation, police submitted charge-sheet and charge was framed against the petitioner for which he pleaded not guilty and claimed to be tried. 4. On the basis of evidences, both oral and documentary placed before him and the trial court hold the petitioner guilty for the offence punishable under Section 414 of the IPC and sentenced him as aforesaid. 5. Being aggrieved the petitioner challenged the aforesaid order before the learned Sessions Judge, Bokaro and the learned appellate court after dealing with the evidences placed before him and after hearing the arguments adduced by the parties sustained the conviction. 6. Learned counsel for the petitioner submits that no case is made out under Section 414 of the IPC. He further submits that as per the deposition of prosecution witness, P.W.-1 who is the seizure list witness, he was not present at the place of occurrence. He further submits that from the deposition of P.W.-2, it transpires that theft has not been proved. As a matter of fact there was no report of any theft as such convicting the petitioner for the stolen property is not sustainable in the eyes of law. From the order of learned trial court in para-15 of its order, it appears that the D.W.-1, Intekhab Ansari, who is said to be owner of the said vehicle had stated that he was having no knowledge as to what material was loaded and from where it was loaded in the said vehicle. The learned trial court only on the basis that the driver of the taxi who is brother of D.W.-1 could not produce a valid paper of the seized property, the petitioner has been convicted. As a matter of fact the prosecution has failed to establish as to whether the seized property was actually the stolen property or not? The finding of the learned trial court i.e. “thus it is presumed that the accused was receiver of stolen property” itself shows that the conviction has been made on mere surmises and conjecture. As a matter of fact the prosecution has failed to establish as to whether the seized property was actually the stolen property or not? The finding of the learned trial court i.e. “thus it is presumed that the accused was receiver of stolen property” itself shows that the conviction has been made on mere surmises and conjecture. He concluded his arguments by submitting that when the theft of the seized article itself has not been proved then the conviction under Section 414 of the IPC is bad in law. 7. Per-contra learned APP supports the impugned order and submits that under the revision jurisdiction the court should not interfere with the finding and the prosecution has proved its case beyond all shadow of reasonable doubts and no interference by this Court is warranted in the instant case. 8. Heard learned counsel for the petitioner and learned APP for the State. 9. After going through the impugned orders and the Lower Court Record, it appears that the P.W.-1 (seizure list witness) in para-5 of its cross-examination has categorically stated that he was not present when the articles were seized and he reached at the place of occurrence when the articles were already seized by the police and he just signed on the paper which was given to him by the police. Further the prosecution witness no.2, who is member of the police party, has categorically admitted in para-9 of his cross-examination that he do not know about the fact that from where those articles have been stolen. He has also admitted that he is not knowing about any report of the theft made by any person. 10. The term stolen property has been defined under Section 410 of the Indian Penal Code and to convict any person under 414 it has to be proved that property must be stolen and the accused have knowledge or reason to believe that it was stolen property. Therefore, under offence of 414 the prosecution is required to establish that the property recovered is stolen and the accused provided help in its concealment/ disposal. 11. The persecution has failed to prove that the accused had any prior knowledge that it was actually stolen goods. In the instant case even the accused has not been put any question under Section 313 Cr.P.C regarding ownership of the goods recovered. 12. 11. The persecution has failed to prove that the accused had any prior knowledge that it was actually stolen goods. In the instant case even the accused has not been put any question under Section 313 Cr.P.C regarding ownership of the goods recovered. 12. After critically going through the evidence in this regard and I find that the prosecution has not produced any material to establish the fact that the property recovered at the instance of the accused which was lying in his taxi which was stolen earlier or that the accused had any prior knowledge that the goods recovered were actually stolen property. In this regard the Hon’ble Apex Court in the case of Kailash Vs. State of Rajasthan reported in (2009) 16 SCC 708 has laid down the law in para-9 as under:- 9. However, in regard to appellant Pukhj Raj, who was Accused 5 in the trial court, the courts below have relied on the recovery made as per Ext.P-30. We have gone through the evidence in this regard and we find that the prosecution has not produced any material to establish the fact that the property recovered at his instance in fact belonged to the jeep which was stolen earlier or that this appellant had any prior knowledge that the goods recovered were actually stolen goods. It is worthwhile to mention in this regard at this stage that this appellant Pukh Raj was questioned under Section 313 Cr.P.C, no specific question in regard to the ownership of the goods recovered was put to him. In these circumstances, we think it not safe to rely on the evidence of the prosecution to convict this appellant of the offence under Section 414 IPC. Therefore, giving benefit of doubt, we allow this appeal and set aside the conviction imposed on him by the courts below. 13. In these circumstances, we think it not safe to rely on the evidence of the prosecution to convict this appellant of the offence under Section 414 IPC. Therefore, giving benefit of doubt, we allow this appeal and set aside the conviction imposed on him by the courts below. 13. In view of the aforesaid reasons and the settled proposition of law, I am of the considered opinion that the learned trial court has committed a gross error in convicting the petitioner without holding that the property was stolen and without asking specific question under Section 313 Cr.P.C. The learned trial court has also erred in ignoring the vital fact that the seizure list witness himself has admitted that seized articles were not recovered on his presence, though Section 102 Cr.P.C mandate that the preparation of seizure list must be in front of independent witness. 14. As a matter of fact, the learned trial court himself held in para 15 that “It is presumed that the accused was receiver of stolen property”. Admittedly there is no any theft report. The Ext-3 which is the property certificate bearing the seal and signature of one Ramnath Mishra, Assistant Manager, SAIL, Bokaro, but he has not been examined by the prosecution, his signature has been proved by Abhay Kumar Singh (P.W.3), who is a CISF personnel but he has not explained as to how he had acquaintance with the signature of said Ramnath Mishra. Therefore this documents has not been duly proved by the author of the document. Under such circumstances, the presumption under Section 114 of the Evidence Act that the seized property was stolen property and was received by accused as such, is bad in law inasmuch as the prosecution has failed to prove that the accused was in possessions of the said seized property “soon after the theft”. Needless to say that it is a settled proposition of law that it is the prosecution who has to establish everything beyond all shadow of reasonable doubts and no person can be convicted on mere presumption. 15. Needless to say that it is a settled proposition of law that it is the prosecution who has to establish everything beyond all shadow of reasonable doubts and no person can be convicted on mere presumption. 15. In view of the aforesaid facts and discussion and the judicial pronouncement held hereinabove the judgment dated 22nd January, 2014, passed by the learned Sessions Judge, Bokaro, in Criminal Appeal No.145 of 2013 and the judgment dated 13.08.2013, passed by the learned Sub-Divisional Judicial Magistrate, Bokaro in G.R Case No.539 of 2008, corresponding to T.R. No.92 of 2013 is hereby set aside. 16. As a result this criminal revision application is hereby allowed. 17. The petitioner is discharged from the liability of bail bonds. 18. Let the Lower Court Record be sent to the court concerned along with a copy of this order forthwith.