High Court of Jharkhand affirmed conviction for theft but, due to advanced age after a decade-long trial, granted probation under Section 360 CrPC instead of immediate sentence execution.
Sentence set aside; petitioner directed to execute probation bond of Rs.10,000/- with two sureties for one year.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 774 of 2008
Nimai Chandra Das
Nimai Chandra Das … … Petitioner Versus The State of Jharkhand … … Opposite Party CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
----- For the Petitioner : Mr. Arun Kumar, Advocate For the State : Mr. Anand Kumar Pandey, A.P.P. -----
Order No. 06 Dated: 01.05.2019
The present revision application has been directed against the judgment dated 18.06.2008 passed in Cr. Appeal No. 137 of 2004 by the learned Sessions Judge, Dhanbad by which the appeal preferred by the petitioner has been dismissed and the judgment of conviction and the order of sentence dated 19.05.2004 passed by the Judicial Magistrate 1st Class, Dhanbad in connection with Chirkunda (Galfarbari) P.S. Case No. 52 of 1997, corresponding to G.R No. 778 of 1997 convicting the petitioner under Sections 379/411 I.P.C. and sentencing him to undergo R.I for two years for the offence punishable under Section 379 I.P.C, but no sentence was passed for the offence under Section 411 I.P.C. has been affirmed. 2. The factual background of the case as stated in the fardbeyan is that on 02.04.1997 at about 10.00 am, the informant along with his relative namely, Habu Ghosh started journey from his village “Agiarkund” to his relative’s place at “Nautungram” on a Trekkar. At about 11.00 am, when he reached near Laikdih Colliery, he saw that one unknown person was going with his two buffaloes and three calves of buffalo (kara). After identifying his buffaloes, he caught the said person who disclosed his name as Nimai Chandra Das. The informant brought the petitioner to “Galfarbari out-post” and the said buffaloes were brought there by one “Paresh”. It was further stated in the fardbeyan that on way to “Gulfarbari out-post”, the accused confessed that the buffaloes had been taken from “Kapasara Colliery” while they were grazing and the same were being taken to “Kashipur Hatia” for sale. According to the informant, the total value of the said five buffaloes was Rs. 20,000/-.
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3. On the basis of the fardbeyan, Chirkunda (Galfarbari) P.S. Case No. 52/97 was registered under Sections 379/411 I.P.C. against the petitioner and after investigation, the police submitted chargesheet against him. The charge was framed against the petitioner under Sections 379/411 and he was tried.
4. Altogether four witnesses were examined by the prosecution and the trial court passed the judgment of conviction and order of sentence dated 19.05.2004 convicting the petitioner under Sections 379/411 I.P.C. and sentencing him as detailed hereinabove. Aggrieved thereby, the petitioner preferred appeal before the sessions court being Criminal Appeal No. 137/2004, however, the same was dismissed.
5. The learned counsel for the petitioner submits that there is absolutely no evidence either oral or documentary to show that the cattle were being stolen or held by the petitioner except that the cattle were seen on the road near “Babuldanga More” and the court below should not have accepted such insidious act of the prosecution. All the witnesses examined by the prosecution were interested witnesses who even hopelessly contradicted themselves by making absurd statements. The case of the prosecution was totally based on conjecture and surmises and not on facts. The cattle in question were not recovered from the conscious possession of the petitioner, rather those were found on the road and there is no valid and cogent evidence that the cattle allegedly stolen were recovered from his possession at the relevant point of time. It is further submitted that no person of the area from where the alleged recovery was made was examined or anyone came forward to support the prosecution case. The court below has grossly overlooked that the investigating officer of the case neither visited the place of recovery nor examined any person of the locality and thus came to an erroneous finding without applying the judicial mind. It is further submitted that all the prosecution witnesses have accepted during cross-examination that they never saw the petitioner committing theft of the cattle and as such, there is no evidence on the point of theft of the cattle in question. The so called cattle were allegedly produced before the
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police by one “Paresh”, but he was not examined by the prosecution. The court below should have considered the said serious lapse on the part of the prosecution.
6. The learned APP appearing for the State of Jharkhand submits that the prosecution witnesses have consistently proved the factum of the recovery of the stolen cattle from the possession of the petitioner and the defence failed to contradict the material part of their evidence. Even if there is some inconsistency in their evidence, the same is not vital so as to completely falsify the case of the prosecution. The fardbeyan and the seizure list of the seized cattle were also proved by the prosecution witnesses. The courts below have given concurrent finding of fact on the basis of the materials brought on record and there is no such illegality in the impugned orders so as to interfere with the same.
7. Heard the learned counsel for the parties and perused the L.C.R. In the present case, the informant has been examined as PW-2 who proved his signature on the fardbeyan as Ext. 1. He deposed that he along with PW-3 was going to his relative’s house and on way, he found that the petitioner was going with his two buffaloes and three calves of buffalo (kara) and as such, they caught the petitioner and brought him at “Galfarbari out-post”. The cattle were brought at the said police station by one “Paresh”. PW-2 deposed that the said cattle were missing since 10 o’clock and after an hour, the petitioner was caught with those cattle. PW-3 Habu Ghosh deposed that he was going with the informant and on way, they caught the petitioner who was taking away the said cattle. He further proved his signature on the seizure list which is marked as Ext. 2. PW-1 Vikash Mandal, though did not claim to have seen the occurrence, yet he deposed that he had seen that the accused was brought along with those animals. Thus, he supported the recovery of the stolen cattle from the petitioner. The investigating officer has been examined as PW-4. He proved the handwriting of Amrendra Narayan Kumar on the fardbeyan marked as Ext. 3. He further proved the seizure list exhibited as Ext. 4. On perusal of the record, I find that the courts below have passed the judgments of conviction on the basis of the evidence available on
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record and I thus see no illegality/irregularity so as to make interference in the revisional jurisdiction. The conviction of the petitioner is therefore affirmed.
8. So far the sentence part is concerned, on perusal of the judgments impugned, I find that there was nothing on record to show that the petitioner was not the first offender. However, the courts below have not given the benefit of Probation of Offenders Act in terms with Section 360 of the Code of Criminal Procedure to the petitioner. In the present case, I find that the petitioner has been facing the criminal proceeding for more than 10 years for the offence of committing theft of buffaloes at the young age of 24-25 years.
9. In the facts and circumstances of the case, I find no reason for denying the benefit of Section 360 of the Code of Criminal Procedure to the petitioner. Accordingly, the order of sentence passed against the petitioner by the Judicial Magistrate 1st Class, Dhanbad affirmed by the Sessions Judge is hereby set aside. The petitioner is directed to execute a probation bond of Rs.10,000/- along with two sureties of the like amount each for keeping peace and to maintain good behavior for a period of one year and in violation of the same, to receive the sentence if called upon during the said period. The petitioner is directed to appear in the court below for executing the probation bond within a period of two months, failing which the court below shall cancel the bail bond of the petitioner and issue process against him compelling his attendance for executing the bond. 10. The present criminal revision is partly allowed on the point of sentence.
(Rajesh Shankar, J.)
Manish/AFR
2 issues framed by the court
Whether the conviction should be affirmed in light of lack of cogent evidence regarding possession.
Whether the benefit of probation under Section 360 CrPC should be extended to an elderly first-time offender.
3 provisions across 2 enactments
Nimai Chandra Das
The State of Jharkhand
RAJESH SHANKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court