Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.764 of 2013 ====================================================== 1. Pankaj Poddar @ Sunday, son of Lal Babu Poddar, resident of village- Laheria Bazar, Ward No.3, Police Station & District-Madhubani. 2. Sumit Kumar @ Time Pass @ Term Pass, son of Manoranjan Prasad @ Mannu, resident of village-Bara Bazar, Ward no.10, Police Station & District-Madhubani. Versus .... .... Petitioner/s The State of Bihar ====================================================== Appearance: For the Petitioner/s : Mr. Rajesh Kumar Mishra, Adv. .... .... Respondent/s Mr. Ratnakar Jha, Adv. For the State : Mr. Md. Arif, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CA.V. ORDER 4. 19-09-2013 Petitioners, Pankaj Poddar @ Sunday, Sumit Kumar @ Time Pass @ Term Pass who have been found guilty for an offence punishable under Section 457 of the Indian Penal Code, 411 of the Indian Penal Code, 380 of the Indian Penal Code and independently directed to undergo S.I. for 2 years, S.I. for 3 years, S.I. for 3 years respectively under each count with a further direction to run the sentences concurrently vide judgment dated
Legal Reasoning
24.12.2012 passed by Sri M.K. Srivastava, Judicial Magistrate, 1st Class, Madhubani, in G.R. No.2964 of 2011 coupled with the judgment dated 14.06.2013 passed by Additional Sessions Judge, IIIrd, Madhubani in Cr. Appeal No.6 of 2013 dismissing the same, challenge the successive judgments under present revision. 2. It has been submitted on behalf of petitioners that they were not at all seen by any of the witnesses during course of -2- commission of burglary and on account thereof, the conviction recorded under Section 380 of the Indian Penal Code as well as 457 of the Indian Penal Code happens to be bad, illegal and not supported with the material having on the record. It has further been submitted that no offence under Section 411 of the Indian Penal Code is made out because of the fact that the articles alleged to have been recovered from the possession of the petitioners did not happens to be subject matter of instant case. It has further been submitted that the prosecution case is suffering from so many improbability. The first and foremost happens to be that in case petitioners were the culprit then remaining at J.N. College Campus having being in their possession to be apprehended was not a digestible one. It has further been submitted that neither petitioners were suspect nor any complain was subsisting since before against them. Then in the aforesaid background, trapping of petitioners at J.N. College Campus appears to be a mysterious circumstance. None of the witnesses have disclosed that they have any sort of grievance against the petitioners. The police official who had apprehended the petitioners have not been examined, therefore the apprehension of petitioners remained unexplained. 3. Continuing with the submission on this score, the learned counsel for the petitioners submitted that police had gone to J.N. College Campus and apprehended petitioner Pankaj Poddar @ -3- Sunday whose name finds place in the written report submitted by Madhuri Devi (PW-6). The written report is completely silent with regard to apprehension of Sumit Kumar @ Time Pass @ Term Pass. However, the seizure list suggests apprehension of both the petitioners as well as recovery there from. This inconsistency clearly suggests false implication. 4. It has further been submitted that as per seizure list seven silver coins, rolled gold ring, chain have been shown to be recovered out of which save and except seven silver coins non happens to be the subject matter of theft because of the fact that the informant had not disclosed theft of rolled gold ornaments rather she had complained with regard to theft of 10 Bhar of gold ornament, two pairs of Payal (Silver) and seven silver coin. Silver coins are easily available in the market and in absence of proper identification mark it is difficult to accept the claim of the informant. 5. It has further been submitted that all the recovered items were before the informant on the date of occurrence itself even before filing of written report and on account thereof, putting it on T.I. Parade was of no consequence. Moreover, the Magistrate who conducted T.I. Parade was not examined. The seized articles have not been produced. Simply by way of seizure list it could be said that for the purpose of recovery a document was made as a -4- corroborative piece of material but without having those materials produced before the court, the genuineness of factum of recovery came under controversy that too in the background of umbrageous prosecution version relating to the same. The evidence of Investigating Officer (PW-2) was not of much relevance as none of the petitioners were apprehended by him nor there was recovery in his presence. 6. It has further been submitted that the learned lower court failed to take into account relevant incriminating material / circumstances visualizing from the evidence of the PWs in proper way against each of the petitioner and on account thereof, petitioners interest are found prejudiced. 7. On the other hand, the learned Additional Public Prosecutor while supporting the concurrent finding submitted that the learned trial court had dealt with all the points minutely and elaborately, hence need no inference. 8. PW-6 had filed written report on 04-11-2011 disclosing therein that on 03-11-2011 she had gone along with her family members to her Maika after putting lock at her house. After arrival on 04.11.2011 at 07:00 A.M. she found all the locks broken, the articles were scattered, Godrej Almirah was broken and on account thereof, she telephonically informed the police who arrived. During intermediary period she detected theft of Rs.10,000/-, Gold -5- ornaments weighing 10 Bhar, two pairs of Payal (silver), seven silver coins. Rs.1000/- having kept by her son removed. Thereafter, the police along with the neighbours who have had assembled there, gone towards J.N. College to apprehend the culprit who was apprehended and who disclosed his identity as Pankaj Poddar @ Sunday. He confessed his guilt. He also disclosed name of his accomplish as Sumit Kumar @ Time Pass @ Term Pass. From his possession seven silver coins, two rolled gold ring and a chain was recovered. After registration of case, the investigation commenced and after concluding the same charge sheet was submitted against both the petitioners who faced the ultimate result having been brought under challenge by instant revision. 9. From the evidence of PW-6 as well as Investigating Officer (PW-2), it is evident that no list of ornaments was ever furnished. It is also evident from the written report that before acceptance of written report, Pankaj Poddar was already apprehended and from his possession seven silver coin including the ornaments of rolled gold were seized. As per written report it is evident that till then only one accused Pankaj Poddar was apprehended. Seizure list happens to be Ext.-1. From perusal of the same, it is evident that it is with regard to the items recovered from the possession of Pankaj Poddar @ Sunday as well as Sumit Kumar @ Time Pass @ Term Pass. Then the question arose how -6- apprehension of Sumit Kumar @ Time Pass @ Term Pass was and under what circumstances common seizure list was prepared with regard to recovery having from possession of both the accused. It is also a matter of surprise that what was occasion for the police in not getting the FIR at first instance having his arrival at the place of occurrence. Because of the fact that all the prosecution witnesses are silent over actual time when the police official arrived as well as the aforesaid police official had not turned up for evidence because he was not cited as charge sheet witness the matter remained under mist. The seizure list suggest recovery of seven silver coins, one chain of white metal, ear ring one piece, and one pair of ring from the possession of Pankaj Poddar @ Sunday while from the possession of Sumit Kumar @ Time Pass @ Term Pass ten pieces of moti, two pieces of ring (silver), rolled gold top-two piece, Jhumka two piece, Jitiya three piece, Mala of red moti-one piece. That means to say even the written report did not tally with the items recovered from the possession of Pankaj Poddar @ Sunday. It is also evident that time of filing of written report has not been disclosed in the written report as well as in the evidence of PW-6, the informant. 10. Seizure list witness Ashok Sao is PW-3 while Rajesh Kumar Singh is PW-5. From the evidence of PW-3, it is evident that seizure list was prepared at 12 noon after recovery of seven -7- silver coins, one chain of silver and one piece of Bali (silver) from the possession of Pankaj Poddar @ Sunday as well as ten pieces of Moti, one pair of top, one pair of Jhumka (role gold), two ring and one red moti Har. During cross-examination he had stated in para-2 that police had took him to that place. PW-5 had said another story that there was a rumour with regard to presence of thief at J.N. College over which they, including police, rushed and apprehended two persons. He had stated that from the possession of Pankaj Poddar @ Sunday seven silver coin, one chain (silver) one Bali (yellow colour metal) and one ring was recovered while from the possession of Sumit Kumar @ Time Pass @ Term Pass ten piece of moti, two piece of top, one Jitiya was recovered. During cross- examination at para-3 had stated that he came out from his house at 11:00 A.M. after apprehension of the thief. Search was made and then seizure list was prepared as is evident from para-6 as well as para-7 of his cross-examination. 11. From the evidence of PW-6, informant during chief she narrated the event but at para-18 of her cross-examination she had stated that first of all she had signed over the seizure list thereafter Rajan had signed and then Ashok. In para-10 she had stated that seizure list was prepared at her house. All the seized items were shown to her. She had identified the same (seven silver coin, chain (silver), two rings (silver), two pairs of Payal (silver). -8- 12. PW-2 the Investigating Officer in para-7 of his examination-in-chief had stated that informant had identified during course of T.I. parade seven silver coins, two rings (silver), one chain (white metal), tops two piece of rolled gold in presence of Block Development Officer. In para-6 of his cross-examination he had stated that as per seizure list, seven silver coins, one chain (white metal) Bali one piece, one ring was seized from Pankaj Poddar @ Sunday while from the possession of Sumit Kumar @ Time Pass @ Term Pass, small moti- ten piece, two rings (silver) tops two piece, Jhumka two piece of rolled gold was seized. 13. After having conjoint reading of evidence of all the four witnesses, whose evidence happens to be relevant on the question of search and seizure in consonance with the Ext.-1 the seizure list as well as the written report, it is evident that they are inconsistent on each and every aspect. On account of suspicious conduct of the police as well as that of informant in the background of the fact that the written report was filed after alleged apprehension of one of the petitioner Pankaj Poddar @ Sunday and having the seizure list related with both the petitioners, really makes the prosecution case doubtful. The evidence of PW-6, para-10, as referred above worsen the situation. Virtually the recovery of the items as suggested by the prosecution had led conviction of the accused under Section 380 of the Indian Penal Code, 457 of the Indian Penal Code -9- although none happens to be on this very score. 14. Taking into account the inconsistency with regard to search and seizure as well as mode of identification, the evidence led on behalf of prosecution became unreliable, untrustworthy. The aforesaid inconsistency became death knell of the prosecution by way of withholding production of the material exhibit. Hence, the case of the prosecution is not found proved above board. Consequent thereupon, the conviction and sentence recorded by the successive courts are set aside. Petition is allowed. Both the petitioners namely Pankaj Poddar @ Sunday, Sumit Kumar @ Time Pass @ Term Pass are directed to be released forthwith if not wanted in any other case. (Aditya Kumar Trivedi, J.) PATNA HIGH COURT DATED, THE 19th day of Sep., 2013 PRAKASH NARAYAN/ A.F.R.