High Court
Case Details
Cr. Appeal (S.J.) No. 146 of 2020 (Against the judgment of conviction and order of sentence dated 29.01.2020 passed by learned Additional Sessions Judge-IV, Hazaribag in S.T. No. 216 of 2016, arising out of Sadar P.S. Case No. 132 of 2016, corresponding to G.R. No. 326 of 2016) Tausif Jawed ……Appellant ---- The State of Jharkhand Versus ---- ...Respondent PRESENT : HON’BLE MR. JUSTICE DEEPAK ROSHAN ---- : Mr. Shailendra Jit, Advocate : Mr. Praveen Kumar Appu, A.P.P ---- For the Appellant For the State By Court Heard Mr. Shailendra Jit, learned counsel appearing for the appellant and Mr. Praveen Kumar Appu, learned A.P.P 2. This appeal is directed against the judgment of conviction and order of sentence, both dated 29.01.2020, passed by Additional Sessions Judge-IV, Hazaribag in S.T. No. 216 of 2016, arising out of Sadar P.S. Case No. 132 of 2016, corresponding to G.R. No. 326 of 2016; whereby the sole appellant has been convicted for the offence punishable under Sections 414 of I.P.C and sentenced to undergo R.I for three years; however, he has been acquitted from the charge under Section 413 I.P.C 3. The prosecution case is that on 03.02.2016 during patrolling the S.I received secret information that the accused- appellant dealing with stolen motorcycle was coming from Pelawal to Hazaribag in black colour Hero Honda Splendor Motorcycle. Thereafter, the police force reached at Kallu Chowk and signal was given to stop the motorcycle. On seeing the police party, the appellant tried to run away and fell down and was apprehended by the police and he disclosed that he along with his associates steal the motorcycle from Hazaribag and its neighboring places and they sell it outside. The accused also disclosed that the said motorcycle was stolen motorcycle. 4. Pursuant thereto; after investigation charge-sheet has been submitted on 31.03.2016 under Section 413 & 414 of I.P.C and the cognizance was taken and charges were framed under Section 1 413 and 414 of I.P.C against the sole accused, to which the accused appellant pleaded not guilty and claimed to be tried. 5. In order to prove the charges, the prosecution has examined altogether five witnesses and several documents were exhibited. P.W. 1 has stated about the time of occurrence. He further deposed that he along with one Ashok Ram and other police force went on patrolling, they were told to go to Kallu Chowk. When they reached Kallu Chowk at about 11 pm, then they saw a person was coming from Pelawal on a black motorcycle and after seeing the police party, he took U-turn and tried to flee away, but he was apprehended. During cross-examination, nothing adverse came to give benefit to the appellant. P.W.2, is also part of patrolling party. In his cross- examination, he has deposed that he did not remember the day of occurrence. However, the other manner of occurrence and time of occurrence has been indicated in his cross-examination. He categorically stated in his cross-examination that there was no number plate on the said motorcycle and bunch of key was recovered. P.W. 3 is the informant, who had stated that the incident took place on 03.02.2016 at 11:00 pm near Kallu Chowk, Hazaribag. When they reached the place of occurrence, they received secret information that a person; appellant who is habitual thief of vehicle is coming from Pelawal. Therefore, they went to the place of occurrence and the moment they reached the place of occurrence i.e., Kallu Chowk, they saw a person coming from Pelawal on a motorcycle and on seeing the police party, motorcycle rider took U- turn and tried to flee away; however in course of turning he fell down and received injury. With the help of raiding party he was apprehended. In his cross-examination, he had deposed that Kallu Chowk is a market place and also admitted that the resident of the appellant is near to the place of occurrence i.e., Kallu Chowk. Other prosecution witnesses are also part of raiding party. 6. Learned counsel for the appellant at the outset submits that the appellant has been acquitted from the charge under Section 413 I.P.C and there is no theft report in the instant case; as such no 2 case under Section 414 I.PC is made out in the instant case. He further contended that the recovery of the seized vehicle was from Kallu Chowk and as admitted by the informant himself that the residence of the appellant is near Kallu Chowk and though it is a market place as admitted by the informant himself, but no independent witness came forward to support the prosecution case. He further reiterated that since there is no case of assisting in concealment of stolen property, there cannot be any case of theft and the prosecution witness has admitted this fact in their cross-examination that they are unable to find the real owner of the vehicle. As a matter of fact, the prosecution was duty bound to find out the real owner of the vehicle and for no offence the appellant has been convicted under the charge for assisting in concealment of stolen property, in spite of fact that no F.I.R has been lodged against the appellant; as such he may be acquitted from the charges.
Legal Reasoning
Learned counsel for the appellant lastly submits that the appellant was not apprehended from the place of occurrence; rather he has categorically stated in his statement under Section 313 Cr.P.C that he has been arrested from his house. 7. Relying upon the aforesaid argument and evidence, he reiterated that whether the vehicle was stolen property or not is not proved. Accordingly, the conviction under Section 414 of I.P.C is not maintainable and he has also submitted that the appellant remained in custody for about 112 days. 8. Learned A.P.P supports the impugned judgment and submits that since the appellant was apprehended on the spot riding on the seized vehicle; as such the presumption goes against the appellant and it was the appellant who was to prove that he was not riding the motorcycle and all the prosecution witnesses had clearly stated that the appellant has been apprehended while he was riding the motorcycle. He further submits that it is true that the real owner of the vehicle could not be traced out; however this fact will not absolve the appellant from the charge that he was riding the vehicle which does not belong to him; as such there is no error in the impugned judgment. 9. Having heard learned counsel for the parties and after going through the LCR it appears that all the prosecution witnesses 3 have categorically stated even in their cross-examination that the appellant was apprehended while riding the aforesaid vehicle and the said vehicle was without any number. It is true that there is no theft report on record to suggest that the vehicle was of some other person, but the fact remains that even this appellant is not claiming the said vehicle. It further transpires that though Kallu Chowk is a market place; however looking to the time and date of occurrence i.e., 3rd February at 11:00 pm, it cannot be expected in winter season that there will be crowd in the said market place. Further, it is also evident that though suggestion has been posed to prosecution witness that the appellant was not riding the vehicle and he has been apprehended from his house, but the same was denied; as such the finding of the learned trial court that there is a presumption under Section 114 illustration (a) of the Evidence Act that a man who is in possession of stolen goods soon after theft is either the thief or has received the goods knowing them to the stolen, unless he can account for his possession. Since the appellant had failed to give any document with regard to ownership of the property; as such it has rightly been presumed by the prosecution that it was the stolen property. It is true that there is no theft report with regard to that motorcycle, but the fact remains that the said motorcycle does not belong to the appellant and the appellant was found along with motorcycle, which has been proved by the prosecution witnesses. As stated earlier that it was 11:00 p.m in the night; and it would be difficult to find any independent witnesses; as such this Court comes to the conclusion that there is no perversity in the judgment so far as charge under Section 414 I.P.C is concerned, and the conviction under Section 414 I.P.C is hereby sustained. 10. So far as the sentence is concerned; on the point of sentence, looking to the entire facts and circumstances of the case and the fact that the appellant remained in custody for about 112 days and he is not involved in any other criminal activities as informed by learned A.P.P; thus he has a chance to reform. 11. Taking into consideration of mitigating circumstances, this Court is of the considered view that without interfering with the impugned judgment of conviction, the sentence ought to be modified 4 to the extent that the appellant is sentenced for the period already undergone; but subject to payment of fine of Rs.25,000/-. 12. As a result, the sentence as ordered by the learned trial court is hereby modified to the extent that the appellant is sentenced for the period already undergone, but subject to payment of fine of Rs.25,000/- which shall be deposited by him before the Secretary, District Legal Services Authority (DLSA), Hazaribagh, within a period of three months from today. 13. The appellant shall be discharged from the liability of his bail bonds subject to payment of fine amount of Rs.25,000/- as sentenced herein above. 14. With the aforesaid observations, directions and modification in sentence only, the instant criminal appeal stands
Decision
disposed of. 15. Let the Lower Court Record be sent to the court concerned forthwith. (Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated 14.06.2024 jk/ 5