Nand Kishore Mandal Vs The State Of Jharkhand

2. This criminal revision has been filed against the judgment dated 29.07.2016 passed by the learned 3^rd Additional Sessions Judge, Deoghar in Criminal Appeal No.60/2011 whereby and whereunder the appeal filed by the petitioner has been dismissed and the judgment of conviction and the order of sentence dated 16.08.2011 passed by the learned Judicial Magistrate, 1^st Class, Madhupur, Deoghar in G.R. No.280/1994, T.R. No. 05/2011 arising out of Palajori P.S. Case No.64/1994 has been affirmed. The learned trial court has convicted the petitioner under Section 414 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 3 years.

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3. A supplementary affidavit has been filed on behalf of the petitioner which is taken on the records of the case.

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4. The learned counsel for the petitioner submits that the petitioner was detected Brain Tumor and he has undergone surgery in the year 2023 at Christian Medical College, Vellore and the movement of the petitioner is completely restricted and he has completely lost eye sight of his one eye. After operation, the petitioner has visited to Christian Medical College, Vellore twice for chemotherapy and for radiation. He has also submitted that for the purposes of the treatment of the

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petitioner at Christian Medical College, Vellore, the State Government has also sanctioned and disbursed an amount of Rs.01 lac. The supplementary affidavit has been sworn by the son of the petitioner.

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5. The learned counsel for the petitioner has confined his arguments on the sentence of the petitioner.

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6. The learned counsel submits that the case was instituted in the year 1994 and the petitioner has remained in custody for a period from 20.10.2016 to 10.01.2017 during the pendency of this revision application and a few more days must have been taken by the petitioner to furnish his bail bond after the order passed by this Court on 10.01.2017. Since the petitioner was arrested on the spot, he must have remained in custody for some days.

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7. The learned counsel for the petitioner has further submitted that considering the long-drawn litigation which the petitioner has faced since 1994, some sympathetic view may be taken. He also submitted that medical condition of the petitioner has been brought on record by filing a supplementary affidavit today. He submitted that the petitioner has been convicted for the offence under Section 414 of the Indian Penal Code and the other co-accused are either absconding or they are dead. He has also submitted that there is no minimum sentence as such prescribed under Section 414 of the Indian Penal Code and the sentence prescribed is up-to three years or fine or both.

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8. By further referring to the records, the learned counsel for the petitioner submits that the petitioner has been convicted on the basis of evidence of only one witness, whereas the seizure list witnesses and other charge-sheeted witnesses have not been examined. However, he has reiterated that he confines his argument to the point of sentence of the petitioner and no more.

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9. The learned counsel for the petitioner further submitted that there is no other criminal case against the petitioner which is apparent from the order passed by the learned trial court. He submits that the maximum punishment has been awarded to the petitioner.

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10. Upon going through the records of this case, this Court finds that the prosecution case is based on the self-statement of S.I. Arun

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Kumar Ray (PW-1) of Palajori P.S. alleging that on 25.06.1994, when the Informant alongwith police team was in patrolling duty, he received information regarding loading of theft coal in a truck at Raghuwadih. Thereafter, the Informant alongwith the police team reached at Raghuwadih and intercepted one truck at 04:30 P.M. going towards Palajori and stopped the truck and found six persons including the driver. On enquiry, the driver disclosed his name as Parmeshwar Sah and the rest persons disclosed their names as Mukesh Yadav, Nandkishore Mandal, Paramod Pandey, Anil Singh and Bomshankar Rai. The Informant found the Truck No.BR-36H-0321 loaded with 10 tons of steam coal. When the Informant demanded papers of the coal from them, they failed to produce any paper. Thereafter, the truck and the coal were seized and a seizure list was prepared and all the six persons including the petitioner were arrested and the truck loaded with coal was brought to the police station.

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11. On the basis of the self-statement of the Informant, the case was registered as Palajori P.S. Case No.64/1994 dated 25.06.1994 under Section 414 of Indian Penal Code. After completion of investigation, charge-sheet was submitted against all the six accused persons under the same section and on 16.08.1994, the learned S.D.J.M., Madhupur took cognizance of the offence in the case under the same section. Thereafter, on 23.09.2003, charge under Section 414 of the Indian Penal Code was framed against the petitioner and Bomshankar Rai which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

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12. In course of trial, the prosecution examined only one witness namely, Arun Kumar Rai as PW-1 who is the Informant of the case. PW-1 in his examination-in-chief deposed that on 25.06.1994, he was posted as the Officer-in-charge of Palajori police station and on the basis of secret information regarding loading of illegal coal at Raghuwadih, he alongwith the police team reached Raghuwadih and after sometime, he intercepted one truck loaded with coal. Six persons including the driver were present in the truck. When he demanded the papers of the coal, they did not produce any paper. Thereafter, he

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prepared a seizure list and arrested all the six persons and brought them alongwith the truck to the police station. He further deposed that Truck No. BR-36H-0321 was loaded with 10 tons of steam coal. He exhibited the seizure list as Exhibit-1. He further deposed that he had taken signature of the arrested persons on the seizure list. He further exhibited the self-statement as Exhibit-2, endorsement on the selfstatement as Exhibit-2/1 and the formal F.I.R. as Exhibit-3. He claimed to identify the accused persons in court. During his crossexamination, he admitted that he had not arrested any person while loading coal and the coal was being loaded on the Raghuwadih road. He further admitted that he had not received any theft report of the seized coal. None of the arrested persons had said himself as the owner of the truck and later on, he had come to know that one Sunil Singh of Khutaha Village was the owner of the truck, but he was not made an accused in the case. He further admitted that there was no prohibition of purchase and sale of coal at the time of the occurrence. He also admitted that the seized coal has not been produced in court.

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13. After closure of prosecution evidence, the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein he simply denied the incriminating evidences put to him and claimed to be innocent. The petitioner did not adduce any oral or documentary evidence in his defence.

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14. After scrutinizing the materials on record, the learned trial court recorded its findings at Para-7 and found that PW-1 is the Informant of the case and Truck No.BR-36H-0321 loaded with coal was seized. In his evidence, he has fully supported the prosecution case and has exhibited the self-statement as Exhibit-2 and seizure list as Exhibit-1. The learned trial court further found that the defence has failed to elicit anything during cross-examination of PW-1 to discredit his evidence and the defence has further failed to bring any oral or documentary evidence on record to show that the seized coal was not stolen property. The learned trial court did not find any reason to disbelieve the testimony of PW-1.

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15. The learned appellate court also examined the materials on record and recorded its findings at Para-9 that PW-1 is the Informant of the case and he has fully supported the averments of the selfstatement and has stated that he had seized the said coal with truck and had prepared the seizure list. He has proved the seizure list as Exhibit1 and the self-statement as Exhibit-2. The learned appellate court further recorded that the prosecution has proved that the said coal is theft property and is recovered from the possession of the petitioner and others. No document of the seized coal was produced by the defence. PW-1 Informant has claimed to identify the petitioner. the prosecution has fairly corroborated the prosecution case and his crossexamination could not yield anything in favour of the defence. The learned appellate court did not find any illegality, infirmity, irregularity and impropriety in the judgment of conviction and sentence of the petitioner and affirmed the same.

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16. After hearing the learned counsel for the petitioner and going through the records of the case, this Court finds that there are concurrent findings recorded by the learned courts with regard to seizure of 10 tons steam coal from the truck and the accused persons including the petitioner were not able to satisfy the authority or the court with regard to ownership of the coal and consequently, the petitioner has been convicted for the offence under section 414 of the Indian Penal Code and so far as the other accused are concerned, as per the records, they are either absconding or dead.

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17. In view of the concurrent findings and after going through the evidence of PW-1, the sole witness in this case, this Court finds that the evidence of the sole witness has remained intact and there are also concurrent findings with regard to the conviction of the petitioner. This Court is of the considered view that so far as the conviction of the petitioner is concerned, the same is justified and does not call for any interference.

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18. However, the petitioner has confined his argument only on the point of sentence. The undisputed fact is that the incident is of the year 1994 and the petitioner has faced the criminal case for a long time and

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as per the records available, there is no other case of conviction against the petitioner. The petitioner has remained in custody for about 03 months during pendency of this criminal revision and he had also remained in custody from 25.06.1994 to 25.07.1994 i.e. for one month during investigation of the case.

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19. This Court also finds that there is no minimum sentence prescribed under Section 414 of the Indian Penal Code. Considering the totality of the facts and circumstances of the case, this Court is of the view that for the ends of justice, the sentence of the petitioner is required to be modified. Accordingly, the sentence of the petitioner is hereby modified and limited to the period already undergone by the petitioner with fine of Rs.25,000/- to be deposited by the petitioner within a period of six months from the date of communication of this order to the concerned trial court.

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20. If the petitioner does not deposit the aforesaid fine amount within the stipulated time , the learned trial court shall take all coercive steps to ensure that the petitioner serves the sentence awarded to him.

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21. Accordingly, this criminal revision petition is disposed of with the aforesaid modification of sentence of the petitioner.

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22. Let the original trial court records of the case be transmitted to the learned court concerned immediately.

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23. Let a copy of this order be communicated to the court concerned through ‘FAX/E-mail’.

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(Anubha Rawat Choudhary, J.)

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Rakesh/-

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Nand Kishore Mandal v. The State Of Jharkhand

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Nand Kishore Mandal v. The State Of Jharkhand

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