…. Lal Chandra Mandal The State of Jharkhand v. …
Case Details
-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 613 of 2017 …. Lal Chandra Mandal The State of Jharkhand Versus …… Petitioner …… Opp. Party With Cr. Revision No. 437 of 2017 …. Sarban Sonkar The State of Jharkhand Versus …… Petitioner …… Opp. Party …. Present HON'BLE MR. JUSTICE SANJAY PRASAD …. For the Petitioners: Mr. J. N. Upadhayay, Advocate ( in both cases) For the State : Mr. Subodh Kr. Dubey, A.P.P. (in both cases) C.A.V. on 17/08/2022 Pronounced on 20/03/2023 …… JUDGEMENT Both these Criminal Revisions i.e. Criminal Revision No. 613 of 2017 and Criminal Revision No. 437 of 2017 are being heard together and are being disposed of by this common order as these Criminal Revisions are arising out from the same impugned judgment and order passed by the learned Court below. 2. Criminal Revision No. 613 of 2017 has been filed on behalf of the petitioner- Lal Chandra Mandal and Criminal Revision No. 437 of 2017 has been filed on behalf of the petitioner- Sarban Sonkar challenging the judgment dated 01.03.2017 passed in Criminal Appeal No. 06 of 2014 and Criminal Appeal No. 10 of 2014 and Criminal Appeal No. 11 of 2014 by the learned Additional Sessions Judge-II, Seraikella whereby learned Additional Sessions Judge-II, Seraikella has allowed in part Criminal Appeal No. 10 of 2014 and Criminal Appeal No. 11 of 2014 by acquitting the petitioner- Lal Chandra Mandal [Criminal Revision No. 613 of 2017] and the -2- petitioner- Sarban Sonkar [Criminal Revision No. 437 of 2017] for the offences under Section 379/461 of the Indian Penal code
Legal Reasoning
and has affirmed the conviction under Section 411 of the Indian Penal Code and has affirmed the sentences of the learned Trial Court for the offence under Section 411 of the Indian Penal code to undergo R. I. for a period of one (1) year. Although, vide the judgment of conviction and order of sentence dated 10.01.2014
Legal Reasoning
passed by Sri Syed Matloob Hussain, learned Chief Judicial Magistrate, Seraikella in connection with Adityapur P. S. Case No. 109 of 2008 corresponding to G. R. No. 414 of 2008 [T.R. No. 864 of 2013] convicting the petitioner- Lal Chandra Mandal [Criminal Revision No. 613 of 2017] and the petitioner- Sarban Sonkar [Criminal Revision No. 437 of 2017] and one another person Rakesh Kumar Singh for the offence under Section 379/461/411 of the Indian Penal code and sentenced them to undergo R.I. for a period of one (1) year each for the offence under Section 379 of the Indian Penal code and sentenced them to undergo R.I. for a period of one (1) year each for the offence under Section 411 of the Indian Penal code and sentenced them to undergo R.I. for a period of one (1) year each for the offence under Section 461 of the Indian Penal code respectively. However, the learned Additional Sessions Judge, - II, Seraikella has allowed the Criminal Appeal No. 06 of 2014 by acquitting one person namely Rakesh Kumar Singh for the offence under Section 379/461/411 of the Indian Penal Code. 3. The prosecution, in brief, as per the written report of the informant Uma Shankar Singh is that he was posted as works in-charge in Presisan Cups Pvt. Ltd. Industrial Ara Adityapur Phase-VI. It is alleged that on 16/06/09 at about 4.00 A.M. he received telephonic call from his company that parts have been stolen from the company from vehicle 407 which -3- have been seized by the police. On said information he reached in the company and came to know there that Rakesh Singh, Security Guard, who was on duty opened the rear gate of the company and committed theft of parts from the company in connivance of the thieves and loaded the same on the said 407 truck. On inquiry by the informant in the company it was found that R. R. No. 109 automotive small, Eagle MIC, Eagle forgings were found in less number in the company premises. It is also alleged that it has come in the notice of the informant that the theft was committed in the night hours at about 3:30 A.M. Thereafter, he went near the seized truck and found that the articles stolen from the factory were lying there and one accused apprehended by the police who told his name as Mosin Mandal and who had disclosed that Anil Mandal has conspired to commit the occurrence in connivance with the guard Rakesh Singh and owner of the Truck bearing registration no. BR18- 7345 namely Sharban of Jugslai. In the written report the informant has specifically mentioned the name of person who were arrested from the spot. It is further alleged that accused persons committed theft from his said factory and caught red handed by the police. 4. Heard learned counsel for the petitioners in both the Cr. Revision No. 613 of 2017 and Cr. Revision No. 437 of 2017 and learned counsel for the State in both the Cr. Revision No. 613 of 2017 and Cr. Revision No. 437 of 2017. 5. It has been submitted by the learned counsel for the petitioners that the judgments and order passed by the learned Court below are illegal and not sustainable in the eye of law. It is submitted that the learned Court blow has miserably failed to appreciate the law applicable in this case. It is submitted that the order passed by the learned Court below is illegal and -4- unjustified. It is submitted that the charges framed under Sections 379/411/461 of the Indian Penal code is wholly illegal as the appellant was never found in possession of any iron rod nor there is any evidence to take the materials dishonestly. It is submitted that there is no material to show that the petitioner ever found any stolen iron rod in his possession, so the conviction under section 411 I.P.C. is illegal. It is submitted that the prosecution cannot be allowed to adduce evidence contrary to the charge. It is submitted that the prosecution has failed to establish that the Iron rod were found from the vehicles in joint occupation of the petitioners or upon under the control of any particular petitioner and as such, the judgments and order passed by the learned Court below may be set aside in the interest of justice. 6. On the other hand, learned A. P. P. has submitted that these Criminal Revision Applications are devoid of merit. It is submitted that the learned Trial Court has convicted these petitioners under Sections 379/461/411 of the Indian Penal Code. However, learned Appellate Court below has set aside the conviction of the petitioners under Sections 379/461of the Indian Penal Code, but has affirmed the conviction of the petitioners under Section 411 of the Indian Penal Code. It is submitted that theft articles were found in the joint possession of these petitioners, which were stolen from the factory in connivance with the Guard-Rakesh Kumar Singh. It is submitted that seizure list witnesses have supported the allegation against the petitioner. It is submitted that P.W.-4, Shyamal Soren is the seizure list witnesses and he has supported the recovery of the material from the petitioners. P.W.-5, Uma Shankar Singh is the informant in this case, who has supported the prosecution case. It is submitted that the I.O. has been examined as C.W.-1, -5- Chandradev Paswan in this case, who has supported and corroborated the prosecution case regarding recovery of the seized materials, which was 162 Pieces excel and ‘K’ mark of the company was also put upon those seized materials. It is submitted that Ext.- 5 and 5/1 and Ext.- 2 and 2/1 and Ext.-I and Ext-4 fully supported the involvement of the petitioners in the evidence and as such, these Criminal Revisions may be dismissed. 7. Perused the Lower Court Records and considered the submissions of both the sides. 8. It transpires that P.W.-5, Uma Shankar Singh- the informant has lodged an FIR on 16.06.2008 against eight persons namely Anil Chandra Mandal, Mosin Mandal, Shambhu Mandal, Lalchand Mandal, Adhir Mandal, Nageshwar Sah and Rakesh Singh, Sarban Sonkar and Nageshwar Shah for the offence under Sections 379/461/411 of the Indian Penal Code for committing theft of his articles for carrying in 407 Truck which belongs to the petitioner- Sarban Sonkar and one miscreant Mosin Mandal arrested by the informant in the factory whereas four persons Shambhu Mandal, Lalchand Mandal, Adhir Mandal, Nageshwar Sah were caught by the police after chase, however, Anil Mandal fled away. It is alleged that theft was committed in connivance with the Security Guard Rakesh Singh. 9. It transpires that the petitioner- Sarban Sonkar [Criminal Revision No. 437 of 2017] was not present at the time of occurrence, which is apparent from the FIR lodged on 16.06.2008. 10. It transpires that the police after investigation has submitted charge sheet under Sections 379/461/411 of the Indian Penal Code against the above eight persons on 31.07.2008 and cognizance was taken under Sections -6- 379/461/411 of the Indian Penal Code. After supplying the police papers, charges were framed under Sections 379/461/411 of the Indian Penal Code on 02.03.2009 against the petitioner and one other person and they have pleaded not guilty and claimed to be tried. 11. It transpires that the prosecution has examined as many as five (5) witnesses, which are as follows:- i.) P.W.1- Subhash Prasad, ii.) P.W.2- Saroj Kumar Gope, iii.) P.W.3- Soma Toppo, iv.) P.W.4 Shyamlal Soren, v.) P.W.5 Umashankar Singh, informant of this case. 12. I.O. has been examined as in this case has been examined as C.W.-1 13. Prosecution has proved the following Exhibits, which are as follows:- i.) Ext.1 is Seizure list. ii.) Ext.1/1 is Signature on seizure list. iii.) Ext.2 is the written report iv.) Ext.2/1 is the Endorsement on written report. v.) Ext.3 is the Formal F.I.R. vi.) Ext.4 Seizure list, vii.) Ext.5 to 5/7, Memo of arrest 14. Thereafter, the petitioners and others were examined under Section 313 of the Cr. P. C. on 12.06.2013. 15. Neither any defence witnesses has been examined nor any documents have been marked as Exhibits. 16. Thereafter the learned Trial Court, after considering the material available on record, and after hearing both the sides, convicted the petitioners and others as mentioned above under Sections 379/461/411 of the Indian Penal Code and and sentenced them to undergo R.I. for a period of one (1) year each -7- for the offence under Section 379 of the Indian Penal code and sentenced them to undergo R.I. for a period of one (1) year each for the offence under Section 411 of the Indian Penal code and sentenced them to undergo R.I. for a period of one (1) year each for the offence under Section 461 of the Indian Penal code respectively. 17. Thereafter, a Criminal Appeal No. 06 of 2014 has been filed by the one co-convict Rakesh Singh, Security Guard and the said Criminal Appeal No. 06 of 2014 was allowed by the learned Appellate Court below by acquitting the said Rakesh Singh, Security Guard for the offence under Sections 379/461/411 of the Indian Penal Code. 18. However, the learned Additional Sessions Judge-II, Seraikella has allowed in part Criminal Appeal No. 10 of 2014 and Criminal Appeal No. 11 of 2014 by acquitting the petitioner- Lal Chandra Mandal [Criminal Revision No. 613 of 2017] and the petitioner- Sarban Sonkar [Criminal Revision No. 437 of 2017] for the offences under Section 379/461 of the Indian Penal code and has affirmed the conviction under Section 411 of the Indian Penal Code and also affirmed the sentences of the learned Trial Court for the offence under Section 411 of the Indian Penal code to undergo R. I. for a period of one (1) year. 19. It transpires from the FIR that the petitioner- Lal Chandra Mandal was caught by the police outside the factory premises. The petitioner - Sarban Sonkar was caught in his house. 20. From securitizing the evidence of the prosecution witnesses P.W.1 is Subhash Prasad, who is the worker in the factory of the informant and has stated during his evidence (examination in-chief) that on receiving telephone call, he had gone to the police station and where he seen the articles of the -8- company lying and he has identified 162 piece of articles which were 11-12 items and he has put his signature. During his cross-examination, he has stated that he cannot say the name of the police office, who has recorded his statement. He had met the police personnel at 10 A.M. in the morning in the premises of the police station and he has put his signature in the police station. Thus from scrutinizing the evidence of P.W.1- Subhash Prasad, it is evident that he has put his signature on the seizure list in the police station in absence of the petitioner. He has proved his signature on the seizure list marked as Ext.1 and hence his evidence is not reliable. 21. P.W.2 is Saroj Kumar Gope, who is also a worker in the factory. He has also put his signature on the seizure list marked as Ext. -1/1 and has stated that 162 piece articles/ materials were seized, which were of 10 items of the company. He has identified the marka of the company. During cross-examination, he has stated that he has put signature on the instruction of the police and he learnt about the occurrence on the next date of the occurrence in the morning. Thus, from scrutinizing the evidence of P.W.2- Saroj Kumar Gope, it appears that he has also put his signature in the police station on the instruction of the police and hence his evidence is not reliable. 22. P.W.3 is Soma Toppo, during his evidence, he has stated that while along with other police personnel were on the patrolling duty on 16.06.2008, arrived near the factory in the 5.45 A. M., then saw that some miscreants were sitting on the vehicle 407 and the said vehicle was stopped on the order of one police officer B. D. Singh, then those persons started fleeing away and eight persons were arrested after hot chase and they -9- found that several articles were looted and thereafter seizure list was prepared. In his cross-examination, he has stated that seizure list was prepared on the place of occurrence on 06.00 A. M. to 06. 15 A. M. after arresting the accused persons, but he had not chased the accused persons as he was not well, but there was other constable, who caught hold the accused persons and it took around 45 minutes to apprehend these accused persons. He further stated during cross-examination that on 16.06.2008 during patrolling at 10.30 P.M. in the night, they had seizued one 407 vehicle and seizued articles were produced before the Court. Thus, from scrutinizing the evidence of P.W.3- Soma Toppo, it is evident that his evidence contradicts the evidence of P.W.- 1 and P. W.- 2, who are the seizure list witnesses, who have stated that they have put their signature on the seizure list in the police station where P.W.-3 has stated that it was prepared at the place of occurrence. Even evidence of P.W.-3 is contradictory because during examination in-chief, he has stated that he had seized 407 vehicle in the morning of 16.06.2008 at 5.45 A. M. in the morning. However, during cross-examination, he has stated that he had intercepted the truck 407 vehicle on 16.06.2008 at night around 10.30 P. M. Thus, from scrutinizing the evidence of P.W.3- Soma Toppo, it transpires that evidence of P.W.3- Soma Toppo is not reliable. 23. P.W.4 is Shyamlal Soren is the other police constable. He has stated that while he along with B. D. Singh, hawaldar, Soma Toppo, P. W.-3 and Driver, Indrawali were on patrolling party at 5.45 P.M. in the morning on 16.06.2008 and while returning from duty at about 5 P. M. in the morning, he -10- had seen one 407 vehicle and they had chased the said vehicle and got to be stopped and thereafter persons started fleeing away and they had apprehended total eight persons. However, during cross-examination he has stated that they had chased 407 vehicle for around ten minutes and after stopping the said 407 vehicle, the persons had started running from the vehicle and after long chase, they were arrested. Thereafter they brought the accused persons to the police station. He had not counted the articles, who were found on the truck. He could not say, who had arrested the which accused persons. Thus, from scrutinizing the evidence of P.W.4 Shyamlal Soren, it is evident that he has given contradictory evidence from the evidence of P.W.-3 on the point of recovery of the seizure listed of the truck and arrest of the accused persons. Apart from this, he has also stated that eight persons were apprehended whereas from the FIR, it is evident that only six persons were apprehended and the petitioner- Sarban Sonkar [Criminal Revision No. 437 of 2017] and Security Guard, Rakesh Kumar Singh were present at the time of evidence. Thus, evidence of P.W.-4 is not reliable. 24 P.W.5 is Umashankar Singh, informant of this case and the work in-charge of the factory in question. During his evidence, he has supported the occurrence and on point of recovery of materials and he has stated that Rakesh Kumar Singh, Security Guard was on duty and Rakesh Kumar Singh had opened the gate of the factory from rear side. Thereafter eight persons were arrested, who were fleeing away from truck and 162 articles having marka ‘K’ were seized and identified by them. He has proved the written application marked as Ext.-2. However, except Rakesh Singh (i.e. acquitted by the learned -11- Appellate Court in Criminal Appeal No. 06 of 2014), he could not identify the other accused persons including the petitioners before the learned Court below. During cross-examination, he has stated that he cannot say the name of the persons, who had informed him about the occurrence by phone. He also could not say that about the number of articles of his factory. During further cross- examination, he could not say that how many articles were kept in the police station. He also could not say that who was the driver of the vehicle. He has taken the name of the vehicle on the instruction of the Officer In-charge. Thus, from scrutinizing the evidence of P.W.5 Umashankar Singh, it is evident that he has stated about the recovery of the articles kept in the police station. However, he could not identify both the petitioners i.e. Lal Chandra Mandal and Sarban Sonkar during trial before the learned Court below. He also could not say that as to from whom, he learnt about the occurrence. Thus P.W.5 Umashankar Singh has failed to identify the petitioners and hence his evidence is not reliable. 25. C. W.-1, is Chandra Deo Paswan, who is the I. O. of the case and has been examined as C.W.-1 by the order of the Court. He has proved FIR, Fardbeyan, seizure list and has stated that he has recorded the confessional statement of the accused-Rakesh Kumar Singh. However, the said confessional statement has been marked as Ext. He has also proved Ext.-4 seizure list. He has further proved the arrest memo Ext.- 5 to 5/7 respectively of the accused persons including the petitioners. He has stated that after recording the statement of the witnesses, he has submitted the charge sheet under Sections 461/379/411 of the Indian Penal Code against the petitioners and five others. During cross-examination, he admitted the seizure list -12- (Ext.-4 not mentioned in the evidence) has not been prepared before him during para-2 of his evidence. He also admitted that he had not conducted T. I. Parade of any seized articles. He has admitted that he has not taken the Stock Register of the factory as to how many articles were mentioned there. He has also admitted that during the course of investigation he had gone to the factory that Rakesh Kumar Singh, Security Guard was working in the factory and he has not recorded that how many workers were doing work in the factory. Thus, from scrutinizing the evidence of C. W.-1, Chandra Deo Paswan, it is evident that he has made perfunctory investigation and seizure list was not prepared in his presence and thus he appears to have done table work during investigation and while submitting charge sheet. 26. It is further evident from the Ext. -4, which is the seizure list that the same was prepared in the police station by some police officials, but the maker of the seizure list has not been examined by the prosecution. Even C. W.-1, Chandra Deo Paswan i.e. I. O. of this case has admitted that he has not prepared the seizure list. Thus, the seizure list has not been legally proved. 27. It further transpires that T. I. Parade of the articles was not conducted and articles were identified in the police station by the P.W.-5, Uma Shankar Singh, i.e. the informant. 28. It transpires that neither the Owner of the factory nor the Manager of the factory nor any competent authority of the factory has been examined by the prosecution. 29. It further transpires that even the petitioner- Lal Chandra Mandal [Criminal Revision No. 613 of 2017] was arrested after chase and nothing was recovered from his possession. -13- 30. Therefore, in view of the discussion made, it is evident that no article was recovered from the petitioner- Lal Chandra Mandal [Criminal Revision No. 613 of 2017] and the petitioner- Sarban Sonkar [Criminal Revision No. 437 of 2017]. 31. Under the circumstances, the judgment dated 01.03.2017 passed in Criminal Appeal No. 10 of 2014 and Criminal Appeal No. 11 of 2014 by the learned Additional Sessions Judge-II, Seraikella and the judgment of conviction and order of sentence dated 10.01.2014 passed by Sri Syed Matloob Hussain, Chief Judicial Magistrate, Seraikella in connection with Adityapur P. S. Case No. 109 of 2008 corresponding to G. R. No. 414 of 2008 [T.R. No. 864 of 2013] are set aside and the petitioner- Lal Chandra Mandal [Criminal Revision No. 613 of 2017] and the petitioner- Sarban Sonkar [Criminal Revision No. 437 of 2017] are acquitted for the offences under Section 411 of the Indian Penal code and the petitioner- Lal Chandra Mandal [Criminal Revision No. 613 of 2017] and the petitioner- Sarban Sonkar [Criminal Revision No. 437 of 2017] are discharged from the liability of their respective bail bonds. 32. Accordingly, Criminal Revision No. 613 of 2017 and the petitioner- Sarban Sonkar Criminal Revision No. 437 of 2017 are allowed. Kamlesh/N.A.F.R. (Sanjay Prasad, J.)