Partly allowed

Suresh Chaudhary Alias Nanhku v. the State of Jharkhand

Jharkhand HC3 Aug 2021Cr.Rev./438/2012

Case brief

AI extract

What is this about?

In a criminal revision, this Court upheld the conviction of the petitioner for dishonestly receiving stolen property under Section 411 IPC. Finding no perversity in the conviction but considering age, lack of antecedents, and custody served, the Court modified the sentence to the period undergone and imposed a fine.

What did the court decide?

Sentence modified to the period already undergone; fine of Rs. 30,000 imposed; bailors discharged upon payment of fine.

Suresh Chaudhary Alias Nanhku Vs the State of Jharkhand — Cheating and Forgery | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 438 of 2012

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Suresh Chaudhary @ Nanhku @ Nanku @ Nanhak, S/o Ganesh Chaudhary, R/o Village – Kalyanpur, P.O. + P.S. – Chainpur, District – Palamau, (Jharkhand).

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Versus-

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The State of Jharkhand … … Opp. Party ---

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY ---

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Through: Video Conferencing

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09 /03.08.2021

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1. Heard Mr. Md. Faruque Ansari, learned counsel appearing on behalf of the petitioner.

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2. Heard Mr. Arup Kumar Dey, learned counsel appearing on behalf of the opposite party-State.

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3. This criminal revision application has been filed challenging the judgment/order dated 15.05.2012 passed by the learned Additional Sessions Judge-I, Palamau at Daltonganj in Cr. Appeal No. 45/2011, whereby the judgment/order of conviction dated 25.02.2011 passed by the learned Judicial Magistrate 1^st Class, Palamau at Daltonganj in connection with G.R. Case No. 645A/2003 (Trial No. 557/2011A) was upheld and the appeal was dismissed. The learned trial court convicted the petitioner for offence under Section 411 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one and a half year, period undergone, if any, was directed to be set-off.

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Arguments of the petitioner

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4. Learned counsel for the petitioner has confined his argument on the point of sentence. The learned counsel has submitted that he has inspected the records and has found that the petitioner has remained in judicial custody for a

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period of about 50 days; out of which, forty days were at the stage of trial and 10 days were at the stage of revision. He submits that at the stage of revision, the petitioner had surrendered on 09.07.2012 and was directed to be released on bail by this Court vide order dated 19.07.2012. He has also submitted that as per the provisions of Section 411 of Indian Penal Code, if a person found guilty, he shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. He submits that there is no minimum sentence, as such, prescribed under Section 411 of IPC.

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5. During the course of argument, learned counsel for the petitioner submits that the petitioner has been convicted for offence under Section 411 of the Indian Penal Code for recovery of certain electronic items, which as per the FIR, was worth of Rs. 25,000/-. He submits that the theft had happened in the house of the informant on 17.05.2003 and the petitioner was taken into custody when the stolen articles were recovered from his house. The learned counsel also submits that though the alleged recovery is from the house of the petitioner, but it is not from the conscious possession of the petitioner. He further submits that the petitioner does not have any criminal antecedent and considering the fact that the present age of the petitioner is about 55 years and the First Information Report was lodged as back as on 17.05.2003 and more than 18 years have elapsed from the date of occurrence, the sentence be modified to the period already undergone by the petitioner in custody in connection with the present case and some fine amount be imposed.

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Arguments of the opposite party-State

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6. Learned counsel appearing on behalf of the opposite partyState, on the other hand, while opposing the prayer has

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submitted that there is no scope for interference in concurrent findings recorded by the learned courts below, so far as the conviction of the petitioner is concerned. However, on the point of sentence, he submits that it is for the court to take a call considering the facts and circumstances of this case.

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Findings of this Court

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7. As per the prosecution case, the informant had lodged a written report in Chainpur Police Station that some days ago, he had gone to his native village along with his family and his tenant had also gone to his native village. When he returned to his residence on 17.05.2003 at about 7:00 a.m., he found that household articles from his house as well as from the house of the tenant were missing and the theft was allegedly committed in the preceding night by some unknown thieves causing him a loss of Rs. 25,000/-.

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8. On the basis of the written report, Chainpur P.S. Case No. 52/2003 dated 17.05.2003 was instituted for offence under Sections 457 and 380 of Indian Penal Code against unknown miscreants. During the course of investigation, two persons, namely, Ranjit Pathak and Raju Dom were apprehended and on the basis of their confessional statements, the investigating officer of the case recovered the stolen articles from the house of the petitioner-Suresh Choudhary on 21.05.2003 and some stolen articles were also recovered from the house of co-accused Raju Dom on the same day.

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9. The investigating officer of the case after completion of investigation submitted charge-sheet dated 16.07.2003 against five accused persons including the petitioner for offence under Sections 457, 380 and 411 of IPC. The coaccused-Raju Dom on the basis of Juvenility faced the enquiry in the court of learned Additional Chief Judicial Magistrate, Palamau at Daltonganj and one co-accused,

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namely, Bigan Bhuiyan was declared absconder on 15.05.2007. The accused-Ranjit Pathak faced the trial in the case and he was acquitted vide judgment dated 22.05.2009. The case of accused-Bijay Bhuian was separated as he was declared absconder and this was done vide order dated 02.12.2010. The sole accused-Suresh Choudhary (petitioner) faced the trial and was convicted by the learned trial court on 25.02.2011 for offence under Section 411 of IPC.

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10. This Court finds that the prosecution has examined altogether eight witnesses. P.W.-1 is Krishna Choudhary, P.W.-2 is Rajendra Ram, P.W.-3 is Ramkesh Choudhary, P.W.-4 is Dhirendra Kumar Tiwari (informant), P.W.-5 is Dharmendra Prasad (T.I.P. witness), P.W.-6 is Suraj Prasad Gupta (seizure list witness), P.W.-7 is Mukhtar Ansari and P.W.-8 is Dinesh Jha (Investigating Officer of the case). Several documents were exhibited before the learned trial court and the seized articles were also exhibited as material exhibits. Ext.1 is the written complaint of the informant, Ext.2 is the signature of the informant on T.I.P. Chart, Ext.2/1 is the signature of witness Dhiraj Prasad (P.W.5), Ext.2/2 is the signature of witness Mukhtar Ansari on T.I.P. Chart, Ext.2/3 is the entire T.I.P. Chart itself, Ext.3 is the formal FIR, Ext.4 is the seizure list dated 21.05.2003 at 11:30 hours, Ext. 4/1 is the seizure list dated 21.05.2003 at 12:45 hours, Ext.5 is the confessional statement of accused Ranjit Pathak, Ext.5/1 is the confessional statement of accused Raju Dom.

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11. Upon perusal of the judgment passed by the learned trial court, it appears that the learned trial court has appreciated all the evidences on record both oral and documentary and has also considered the defence witnesses. It has also come on record that P.Ws.-1, 2 and 3 were hostile witnesses. The

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learned trial court recorded its finding at para-14 of the judgment, which reads as under: -

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“ 14. Heard both sides and perused the case record. P.W.4 is informant of this case. It has consistently come in evidence that when he returned to his residence at Chainpur he found that the door of inside his house were unlocked and some household articles were scattered on the ground. Thereafter he found one wall clock, some VCDs, jewellery etc. were stolen away from his house. The informant was also put on before TIP wherein he identified his stolen articles. P.W.5 and 7 are witnesses of the T.I.P. and they have categorically stated that T.I.P. was conducted in their presence and they had put their respective signatures on the TIP chart. P.W.6 although is not witness of T.I.P. but he has visited the house of the informant after the occurrence and found some household articles were scattered in his house and he came to know that TV, VCDs were stolen away from the house as well as from the tenant. P.W.8 is I.O. of this case. Since the F.I.R. was registered against unknown miscreants and it is the I.O. who has come with the case of stolen articles which were recovered from the house of the accused, his evidence is of paramount importance. He has categorically stated before the court that on the basis of confessional statement of coaccused Raju Dom and Ranjit Pathak he had conducted search in the house of the accused and on 21.05.03 at 12.45 he recovered stolen articles from the house of the accused in constructive possession of the accused. The seizure list relating to the seizure of the stolen articles recovered from the house of accused has been marked as Ext. in this case.”

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12. The learned trial court also found that although witness Sharvan Paswan, about whom it was said that the theft was also committed in his house, as well as the Circle Officer who had conducted the T.I.P., were not examined in the case as witness, but there was ample, cogent and consistent evidence on record showing the complicity of the petitioner in the alleged crime beyond shadow of all reasonable doubts and was of the view that non-examination of the aforesaid two witnesses was not fatal to the prosecution case. The learned trial court while considering the ingredients of the

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evidences found that there was no evidence on record showing involvement of the petitioner in committing theft in the house of the informant or in breaking open into the house of the informant and accordingly, was of the view that the prosecution has failed to establish the charge under Sections 457 and 380 of IPC against the petitioner. However, on the basis of cogent, consistent and trustworthy evidences, the learned trial court found that prosecution has been able to prove that the petitioner was involved in dishonestly receiving or retaining stolen property of the informant which he knew to be the stolen property and accordingly, convicted the petitioner for offence under Section 411 of IPC and sentenced to undergo rigorous imprisonment for one and a half year and the period undergone, if any, was directed to be set-off.

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13. So far as the learned appellate court is concerned, the learned appellate court considered the various ingredients of the offence under Section 411 of IPC. The learned appellate court also considered the evidence of investigating officer who had interalia stated that the informant had not shown him any document relating to the stolen articles which were put on for TIP, but at the same time, the petitioner had not accounted for the seized articles recovered from his house, rather, told that due to enmity someone had thrown it in his house. The petitioner was also examined under Section 311 of Cr.P.C. and he was in complete denial of the entire incident.

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14. Upon perusal of the judgment passed by the learned appellate court, it appears that the finding was considered at para-13 of the impugned judgments, which reads as under:– “13. The appellant-convict Suresh Choudhary has been charged u/s 411 of IPC and the charge against him is that the stolen articles were dishonestly received by the accused

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Suresh Choudhary or the same was dishonestly retained by him, knowing or having reason to believe the same to be stolen property. In order to bring home the guilt to a person under this section, prosecution must prove (i) that the stolen property was in the possession of the accused (ii) that some person other than the accused had possession of the property before the accused got possession thereof, and (iii) that the accused had knowledge that the property was stolen. In order to convict a person of having received stolen property, who knew it to be stolen had reason to believe that it was stolen, two essential ingredients must be satisfied, viz. (i) identity of the property and (ii) its possession by the accused. It must be shown that the receiver had physical possession of the stolen property either himself or through a servant or agent by his authority or with his knowledge or by the thief acting in concert with him. Here, presumption u/s 114(a) of Evidence Act is applicable because here the said convict is found in conscious possession of the stolen property and he could not account for such possession and as such the legal presumption u/s 114(a) of the Evidence Act that the accused is either the thief or receiver of stolen property knowing it to be stolen could be drawned. The learned lower court after considering the entire facts and circumstances of the case, evidence oral as well as documentary and other materials available on record rightly convicted the accused Suresh Choudhary u/s 411 of IPC in view of the legal presumption as stated above. The stolen articles were recovered from the house of the appellant following the confessional statement of other coaccused persons. The said convict did not explain as to how the stolen property were kept in his house and he did not account for his such conscious possession of the articles which were seized from his house. It can be inferred that the said convict was having the stolen property in his possession after dishonestly receiving the same from the other person and this convict had knowledge that the property was stolen. The stolen articles were identified by the informant in the TIP and the court as well. The documentary evidence on record consistently corroborate the prosecution case in its entirety.”

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15. The learned appellate court was of the view that the oral as well as the documentary evidences available on record had been considered by the learned trial court meticulously and found no reason to interfere with the judgment of conviction and sentence.

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16. This Court finds that both the learned courts below considered the materials on record and evidences of the informant of the case as well as the I.O.; stolen articles were recovered from the house of the petitioner; the articles were put under T.I.P. and produced as material exhibits before the learned court below and were identified by the informant in T.I.P. as well as in court. This Court finds that there was sufficient material on record to prove the case against the petitioner for offence under Section 411 of IPC. This Court does not find any illegality or perversity or material irregularity in the impugned judgments of conviction of the petitioner calling for any interference in revisional jurisdiction.

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17. However, so far as the sentence of the petitioner is concerned, it is to be considered that no previous conviction of the petitioner has been pointed out by the learned counsel for the State and the learned counsel for the petitioner submitted that the petitioner does not have any criminal antecedent; the case is of the year 2003 and more than 18 years have elapsed from the date of occurrence; the petitioner is around 55 years of age and has already remained in custody for about 50 days. In view of the aforesaid facts and circumstances of this case, this Court finds that ends of justice would be served, if the sentence of the petitioner is modified. Accordingly, this Court hereby modifies the sentence of the petitioner and limit it to the period already undergone by the petitioner in custody in

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connection with the present case with a fine of Rs. 30,000/to be deposited by the petitioner within a period of two months from the date of communication of this order to the learned court below. Out of the fine amount of Rs. 30,000/-, an amount of Rs. 15,000/- is directed to be remitted to the informant of the case after due identification.

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18. If the fine amount is deposited in the aforesaid time frame, the bailors will be discharged from their liabilities under the bail-bond. In case of non-deposit of fine amount, the learned court below shall cancel the bail bond furnished by the petitioner and the petitioner shall serve the sentence already awarded by the learned court below.

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19. Accordingly, this criminal revision petition is hereby disposed of with the aforesaid direction and modification of sentence.

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20. Pending interlocutory applications, if any, are closed.

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21. Let the lower court records be sent back to the court concerned.

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22. Let a copy of this order be communicated to the learned court below through ‘e-mail/FAX’.

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(Anubha Rawat Choudhary, J.)

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Mukul

Suresh Chaudhary Alias Nanhku v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Suresh Chaudhary Alias Nanhku v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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