Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.672 of 2013 ====================================================== Madan Kushwaha S/O Jai Govind Kushwaha Resident Of Village- Padri, Police Station- Chautarwa, District- West Champaran The State Of Bihar Versus .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Md. Nadim Seraj & Zainul Abidin, Advocates. For the Respondent/s : Mr. R.N.Jha, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3 30-08-2013 Heard learned counsel for the petitioner as well as learned Additional P.P. 2. Petitioner is aggrieved by the judgment dated 27.09.2012 passed by the Sub Divisional Judicial Magistrate, Bagaha, West Champaran in G.R.No.495 of 2003 whereby and whereunder he was found guilty for an offence punishable under Sections 379 and 411 of the IPC and was directed to undergo R.I. for three years as well as also slapped with fine of Rs.5,000/-, in default thereof to undergo S.I. for six months independently under both heads which was modified to some extent vide judgment dated 25.04.2013 passed by 2nd Additional Sessions Judge, Bagaha, West Champaran in Cr.Appeal No.118C of 2012 whereby and whereunder the conviction recorded under Section 379 of the IPC was struck off, however, under Section 411 IPC was maintained with modification in sentence whereunder fine was
Legal Reasoning
Patna High Court CR. REV. No.672 of 2013 (3) dt.30-08-2013 2 scrapped.
Legal Reasoning
3. The learned counsel for the petitioner while assailing the successive judgments has advanced his plea that the stolen logs were apprehended while it was being carried away. That means to say, it was continuing one and in the aforesaid background having the offence punishable under Section 379 of the IPC erased by the Appellate Court, then in that circumstance Section 411 of the IPC was not at all applicable because of the fact that Illustration-A of Section 114 of the Evidence Act speaks contrary to it. It has further been submitted that from the written report of P.W.5, the informant, it is evident that he apprehended the tyre-cart in between Majhaua and Babu Parsauni. Therefore, even if taking into account the prosecution version, the recovery was in between Majhaua and Babu Parsauni while from the charge, it is evident that the petitioner was charged for an offence punishable under Section 411 of the IPC for the occurrence(recovery of the stolen sisam logs at village-Parsauni Chawk). In the aforesaid background, it has also been submitted that there happens to be deceptive charge and on account there of, the petitioner was not in a position to defend his case properly and his interest has been prejudiced. It has further been submitted that status of petitioner has itself been recognized by the witness. It has not been brought up on record by the prosecution that he himself was in any way concerned with the stolen logs that too in the Patna High Court CR. REV. No.672 of 2013 (3) dt.30-08-2013 3 background of the fact that Prabhu Sonar who was already occupying the tyre-cart since before, had slipped. The most surprising feature happens to be during course of submission of chargesheet, he was shown innocent and was not sent up for trial nor during course of evidence, though his presence has been, without any grievance against him. In the aforesaid background, the ultimate beneficiary should have been the petitioner and none else. As such, the successive judgments are not at all maintainable. 4. At the other hand, the learned Additional P.P. refuted the argument raised on behalf of the petitioner and submitted that acquittal under Section 379 of the IPC will not exonerate the petitioner from the offence under Section 411 of the IPC because of the fact that there happens to be recovery of stolen logs from his possession. 5. As per prosecution version, the allegation goes to the effect that on 18.06.2003 at about 5 A.M. while the informant had gone to meet nature’s call and during course thereof, had visited his field, he found his three Sisam logs missing. Seeing the print of tyre he followed and then intercepted a tyre-cart being driven by petitioner Madan Kushwaha in between Majhaua and Babu Parsauni which was also occupied by Prabhu Sonar who managed to escape there from. Petitioner along with tyre-cart was taken possession thereof and subsequently, was produced before the police at Parsauni Chawk where the production-cum-seizure list Patna High Court CR. REV. No.672 of 2013 (3) dt.30-08-2013 4 was prepared. After completion of investigation chargesheet was submitted under Sections 379 and 411 of the IPC whereunder the petitioner was found guilty at the trial stage having some sort of relaxation as disclosed above at the appellate stage which had been brought under challenge by filing instant revision petition. 6. Altogether six P.Ws. have been examined. The I.O. has not been examined. Therefore, the place where from Sisam logs were lifted or the place where it was standing since before has not been properly identified. Moreover, out of six witnesses, save and except P.W.2 and P.W.5, all have gone volte face to the prosecution. Now coming to the evidence of P.W.2, he happens to be own brother of P.W.5 Rajesh Giri. He stated that he rushed, arrived there shearing alarm and found Rajesh Giri having apprehended petitioner Madan Kushwaha. Three logs were loaded over tyre-cart. From para-4 of his cross-examination, it is evident that Madan Kushwaha was taken to his house along with tyre-cart and then they have gone to P.S. So from his evidence, the story of informant regarding non-presence of Sisam logs at his field, following the tyre-cart on the basis of tyre mark and apprehending the same in between Majhaua and Babu Parsauni happens to be false. 7. P.W.5 had reiterated the assertion made under written report and by his evidence presence of Prabhu Sonar was there. From his deposition, it is evident that he had failed to divulge the Patna High Court CR. REV. No.672 of 2013 (3) dt.30-08-2013 5 fact that Madan Kushwaha was well aware of the fact that three logs were stolen one which he was carrying. In absence thereof it cannot be said that he was in conscious knowledge of stolen property. Moreover, it is also evident that the act of theft as well as carrying of stolen article was in conjoint effort then in such circumstance disbelieving the story of theft certainly will give adverse impact with regard to finding of the learned Appellate Court relating to Section 411 of the IPC. 8. In the aforesaid background as well as taking into account the status of the petitioner, the judgment of conviction and sentence rendered by the successive Lower Courts are found to be contrary to the factual aspect, consequent thereupon are set aside. The appeal is allowed. Petitioner is under custody, hence he is directed to be released forthwith, if not wanted in any other case. (Aditya Kumar Trivedi, J) B.Kr./-