Sandeep Kumar Gupta and Anr. Vs the State of Jharkhand

2. The instant criminal revision is directed against the judgment dated 06.08.2015 passed by learned District & 1^st Additional Sessions Judge, Latehar in Criminal Appeal No. 57 of 2013, whereby and whereunder the appeal filed by the petitioners against the judgment of conviction and order of sentence dated 07.10.2013 passed by learned Judicial Magistrate, 1^st Class, Latehar in G.R. No. 296 of 2012 / T.R. No. 05 of 2013, whereby the petitioner no. 1 has been held guilty for the offence under Section 381 of the I.P.C. and sentenced to undergo S.I. for 3 years and also to pay a fine of Rs. 5,000/- and petitioner no. 2 has been held guilty for the offence under Section 411 of the I.P.C. and sentenced to undergo S.I. for 2 years and also to pay fine of Rs. 3000/- with default stipulation, has been dismissed.

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3. The factual matrix giving rise to this revision is that on 16.05.2012 at about 1:30 A.M. the informant was informed by Home Guard Manoj Oraon and Upendra Oraon that on instruction of accused Sandeep Kumar Gupta, they have loaded two tyres of Tata 407 vehicle into another Tata 407 vehicle, which has been sold by the Sandeep Kumar Gupta to somebody in Mahuwadanr Market and in that place two old tyres have been replaced in the Tata vehicle. The informant inspected the site and found that two old tyres have been kept in place of new tyres. He inquired with the accused Sandeep Kumar Gupta, then he disclosed that he has sold the aforesaid two tyres of Tata 407 vehicle for Rs.4000/- to the co-accused person Abishekh Kumar, resident of Mahuwadanr Market.

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On the basis of above information, the informant raided the house of co-accused Abishekh Kumar in the presence of two independent witnesses Mumtaj Ansari and Kailash Prasad and both tyres were recovered and seizure list was prepared. The disclosure statement of co-accused Abishekh Kumar was recorded on strength of which Rs.4000/- (500 x 8) were recovered from co-accused Sandeep Kumar Gupta. Both were arrested and first information report was registered for the offence under Sections 381, 411, 406 and 409 of the Indian Penal Code.

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4. After completion of investigation, charge-sheet was submitted against the petitioners for the aforesaid offences, both the accused persons have denied the charges and claim to be tried.

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5. In the course of trial, as many as 11 witnesses were examined by the prosecution. Apart from oral testimony of witnesses, following documentary evidences were adduced.

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Exhibit 1 is the seizure list of two tyres of government owned Tata 407 vehicle.

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Exhibit 1/1 and 1/2 are the signatures of witnesses Mumtaj Ansari and Kailash Prasad, respectively.

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Exhibit 2 is the seizure list of Rs.4000/- (500 x 8).

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Exhibit 2/1 and 2/2 are the signatures of seizure list witnesses, Mumtaj Ansari and Kailash Prasad, respectively in Exhibit-2.

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Exhibit 3 is the written report.

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Exhibit 3/1 is the endorsement made on written report.

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Exhibit 4 is the first information report.

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No material exhibits seized in this case have been produced and proved during the trial.

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6. The case of defence is denial from occurrence and false implication under conspiracy with the Home Guard and Anchal officials. No oral and documentary evidence adduced by the defence. 7. The learned Trial Court, after considering the evidence available on record, held the petitioner no. 1 guilty for the offence under Section 381 of the I.P.C. and sentenced him to undergo S.I. for 3 years and also to pay a fine of Rs. 5,000/- and petitioner no. 2 guilty for the offence under Section 411 of the I.P.C. and sentenced

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him to undergo S.I. for 2 years and also to pay fine of Rs. 3000/- with default stipulation.

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8. Petitioners have filed criminal appeal challenging the aforesaid judgment of conviction and order of sentence passed by the learned trial court before the Sessions Judge, Latehar, which was heard and disposed of by Additional Sessions Judge-I vide judgment dated 6^th August, 2015, whereby the appeal of the petitioners was dismissed and impugned judgment of conviction and order of sentence passed by the Learned trial court was upheld and confirmed, which has been assailed in this revision.

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9. The learned counsel for the petitioners has pointed out the perversity in the impugned judgments and order passed by both the Courts below which goes to the root of the case and suffers from material illegality.

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10. Elucidating his arguments, learned counsel for the petitioners submits that it is a case of theft of two government tyres of Tata 407 vehicle from the premises of Circle Office, Mahuwadanr. The informant is Chowkidar (Watchman) on duty, deputed at Circle Office, Mahuwadanr. According to informant, two new tyres were loaded on another vehicle at the instruction of petitioner (Sandeep Kumar Gupta), who has sold the same to another co- accused Abishekh Kumar. Admittedly, the tyres were seized from the house of co- accused Abishekh Kumar and prosecution has miserably failed to proof that the recovered tyres were fitted in the Tata 407 vehicle of

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the Anchal Office and were new. In the F.I.R. itself no description of tyres has been mentioned. The seized material was never produced before the trial court and never put under test identification parade to be identified by the Chowkidars, who have loaded the same on the Tata 407 vehicle at the instruction of Sandeep Kumar Gupta. Similarly, the currency notes are eight in numbers of Rs. 500/denomination each have also not been produced during trial. These notes are alleged to be recovered from the possession of accused Sandeep Kumar Gupta, but seizure list does not bear his signature and no copy of the seizure list was provided to the accused. Not only this, the seized currency notes were not produced at the time of trial and it is still under suspense as to where seized currency notes are lying at present. The petitioners Sandeep Kumar Gupta as well as Abishekh Kumar have been put no incriminating questions in their statement under Section 313 Cr.P.C. about any recovery from their possession and the preparation of seizure list.

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11. The prosecution story has not been supported by the seizure list witnesses. P.W. 8 Kailash Prasad and P.W. 9 Mumtaz Ansari who have proved their signature only on the seizure list and have deposed that they have put their signature on seizure list at the instance of police, but admitted in clear terms in their examinationin-chief itself that nothing was seized and recovered in their presence and the accused persons were also not arrested in their presence,

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then, what remains to prove the prosecution case against the petitioners.

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12. It is argued that both the Courts below have swayed through examination-in-chief of witnesses examined by prosecution without evaluating the credibility of witnesses in view of totality of deposition of witnesses and arrived at wrong conclusion. Petitioners are law abiding citizens, having no criminal background and their false implication have been well proved by the prosecution evidence itself. Therefore, impugned judgments and order are fit to be set aside, allowing this revision and petitioners deserve to be released from the charge levelled against them.

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13. On the other hand, learned A.P.P. properly examined and scanned the evidence available on record and has submitted that there is no infirmity in the impugned judgments and order of the trial court as well as appellate court, calling for interference by way of Cr. Revision, which is fit to be dismissed.

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14. I have gone through the records of the case and perused the impugned judgments and order of learned trial court as well as the appellate court in the light of contentions raised on behalf of both the sides and grounds of objections raised against the conviction of petitioners. It appears that prosecution has levelled accusations against the petitioner Sandeep Kumar Gupta for commission of theft of two new tyres of Tata 407 vehicle from the premises of Circle Office, Mahuwadanr with the assistance of Chowkidars on duty. The

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said Chowkidars immediately informed to A.S.I., Brij Bhushan Sharma (Informant) about the said incident. The further allegation of prosecution is that the said tyres were recovered from the house of co-accused Abishekh Kumar and Rs. 4000/- (500 x 8) were recovered from the possession of accused Sandeep Kumar Gupta, who happens to be the driver of Government vehicle.

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15. From perusal of record as well as impugned judgments, it is quite obvious that seizure list witnesses have not corroborated the prosecution story as regards the factum of recovery and arrest of accused-persons either of the tyres or currency notes. Surprisingly, these witnesses have not been declared hostile by the prosecution.

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16. It is also obvious that seizure list of currency notes from the accused Sandeep Kumar does not bear his signature and the same was never produced at the time of trial. It is also apparent that the description of tyres alleged to be sold has not been mentioned in the F.I.R. nor the prosecution has succeeded to prove that the tyres allegedly recovered from the house of Abishekh Kumar were loaded by the Chowkidars on the vehicle of accused Sandeep Kumar, as such the main ingredient of theft regarding moving of movable property and its identity has not been proved by the prosecution beyond all reasonable doubt.

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17. Similarly, the recovery of sale proceeds of Rs. 4000/- has also not been proved through cogent and reliable evidence. The money is

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still kept in abeyance and seizure list is also not bearing the signatures of the accused.

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18. Considering the aforesaid glaring infirmities in the prosecution evidence, none of the offences either 381 of I.P.C. or 411 of I.P.C. Is constituted and proved against the petitioners. The judgements and order of both the courts below suffers from perversity and non-consideration of material evidence available on record. Therefore, impugned judgments and order passed by the learned trial court as well as appellate court are set aside and this revision is allowed.

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19. Petitioners are on bail, as such, they shall be discharged from the liability of bail bond and sureties shall also be discharged.

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20. Let a copy of this judgment along with trial court record be sent to the court concerned for information and needful.

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(Pradeep Kumar Srivastava, J.)

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Jharkhand High Court, Ranchi Dated : 24/06/2024 Sunil/-NAFR

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Sandeep Kumar Gupta and Anr. v. the State of Jharkhand

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Sandeep Kumar Gupta and Anr. v. the State of Jharkhand

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