Bauna Tirkey vs State Of Jharkhand

Heard Mr. N.K. Sahani, learned counsel appearing on behalf of the petitioner.

Heard Mr. Arun Kr. Pandey, learned counsel appearing on behalf of the opposite party.

This revision application has been filed for challenging the legality, propriety and correctness of the judgment dated 05.08.2009 passed by learned Additional Sessions Judge, F.T.C.I, Bokaro in Criminal Appeal No.70/2009, affirming the judgment of conviction and modifying the order of sentence dated 22.06.09 passed by learned Sub Divisional Judicial Magistrate, Bokaro in G.R. Case No.832/2007 corresponding to T.R. No.1157/09 whereby the petitioner has been convicted under Section 394/411 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for three years with fine of Rs.2,000/-, in default of payment of fine further sentence of two months simple imprisonment.

The learned counsel for the petitioner while assailing the impugned judgment has submitted that the conviction of the petitioner under Section 394 is ex facie perverse in view of the fact that it was not the confessional statement of the petitioner which was leading to recovery of the articles but the confessional statement of the petitioner before police was recorded after he was arrested and accordingly, the same is inadmissible in evidence and for this he refers to Section 25 of the Evidence Act, 1872. The learned counsel further submits that the petitioner has been convicted under Section 394 of Indian Penal Code and there is no allegation of any hurt by the informant and accordingly at best the petitioner could have been convicted under Section 392 of Indian Penal Code. The learned counsel has also submitted that, in case, this Court is not inclined to interfere with the impugned order of conviction, some remission may be granted on the point of sentence, in as much as, the petitioner has remained in custody for a period of about 2 years 4 months and the fine amount has already been deposited by the petitioner before the learned court below.

The learned counsel appearing on behalf of the State on the other hand opposes the prayer and submits that the scope of revisional jurisdiction is very limited. He submits that the petitioner has been rightly convicted under Section 394/411 of Indian Penal Code. He further submits that the recovery was made from the house of the petitioner which was totally unexplained. The learned counsel also submits that there are confessional statement of the co-accused and he refers to Section 30 of the Indian Evidence Act, 1872 to submit that the learned court below has rightly convicted the petitioner even if the confessional statement of the petitioner is not taken into consideration. The learned counsel submits that there is no question of re-appreciation of evidence. He further refers to the impugned orders to submit that the robbery was conducted and it is alleged that the mouth of the informant was pressed by putting a knife at his neck and giving threatening to kill if he would raise alarm. He submits that this act itself brings the case under Section 394 of Indian Penal Code. The learned counsel submits that the learned court below has rightly convicted the petitioner under Sections 394 and 411 of Indian Penal Code which does not call for any interference. On the point of sentence, the learned counsel for the opposite party submits that the nature of offence and the manner in which it has been conducted does not call for any remission. The learned counsel further submits that the learned trial court has elaborately considered the point of sentence and has found that the petitioner is hardened criminal and is charge sheeted in many cases. He further submits that the learned lower appellate court while considering the point of sentence has passed a reasoned order by indicating that the prescribed sentence under Section 394 of Indian Penal Code is imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and also a fine and considering the maximum punishment under Section 394, the learned lower appellate court has found that 3 years rigorous imprisonment under Section 394 read with Section 411 is appropriate and the learned lower appellate court has reduced the fine amount from Rs.10,000/- to Rs.2,000/-. He submits that the petitioner does not deserve any remission in sentence and already a lenient view has been taken by learned court below.

After hearing the learned counsel for the parties and after considering the facts and circumstances of this case, this Court finds that the learned courts below have appreciated the materials on record and have passed a well-reasoned judgment. So far as argument of the petitioner that no case under Section 394 could be made out as no one was hurt, is concerned, the same is fit to be rejected as it is apparent from the impugned judgments that the mouth of the informant was pressed by hand and a knife was put at his neck for the purposes of commission of robbery. This Court further finds that there is consistent finding by the learned court below on the point of recovery of some of the robbed articles from the house of the petitioner.

From perusal of the impugned order passed by the learned lower appellate court, this Court finds that as per the prosecution case, the quarter belonged to the maternal uncle of Informant (P.W.6) and his maternal uncle and aunt had gone to Purulia and the informant was alone in the quarter. It is alleged that on the date of occurrence, in the evening at 7.30 p.m suddenly 3 persons came from balcony side and one of them closed his mouth and put a knife on his neck and gave threatening to kill him if he would raise alarm. Two persons guarded him by keeping him on bed and remaining two persons started looting articles. The learned lower appellate court has recorded a clear finding at para 15 of the impugned judgment that P.W. 6 in his evidence has thoroughly corroborated his F.I.R regarding the manner in which the miscreants had entered the house and taken away the ornaments and other articles by putting him under confinement on the point of knife. In this view of the matter, it cannot be said that no hurt was caused and the term 'hurt' as defined under Section 319 of Indian Penal Code includes causing of bodily pain. The manner in which the occurrence had taken place clearly indicates that the informant was put to bodily pain. In such circumstances, it cannot be said that no case under Section 394 of Indian Penal Code is made out against the petitioner and accordingly the contention of the learned counsel for the petitioner that case under Section 392 of Indian Penal Code was made out is hereby rejected. This is over and above the fact that there is no scope for re-appreciation of evidences on record and coming to different finding when there are consistent findings whereby both the learned courts below have found the petitioner guilty of offence under Section 394/411 of Indian Penal Code after appreciating the materials on record. So far as the recovery of the looted articles are concerned, it has been recorded by the learned trial court that the confessional statement of Shyam Lahiri was recorded and the seizure list of recovery of stolen articles from the house of Shyam Lahiri was also prepared and handed over to Shyam Lahiri in presence of witnesses and further on the clue disclosed by Shyam Lahiri, a raid was conducted at the house of the petitioner and after search of his house some of the articles were recovered, seizure list was prepared and thereafter the confessional statement of the petitioner was recorded and it is not in dispute that the petitioner as well as Shyam Lahiri faced trial together. The learned trial court after thoroughly considering the materials on record clearly held that although the accused persons are not named in the F.I.R, their confessional statement before the police leading to recovery of stolen articles and identification of those looted articles on T.I.P and production of the same material evidences during trial before the learned trial court establishes that the accused were the persons who have committed robbery at the house of the informant and those looted articles were seized from their possession and accordingly charge under Section 394 read with Section 411 was well established. The learned lower appellate court after independently considering the evidences on record, clearly held the petitioner guilty of offence under Section 394 read with Section 411 of Indian Penal Code. Considering the concurrent finding independently recorded by the learned court's below after appreciating the evidences on record and convicting the petitioner under Section 394 read with Section 411, this Court does not find any substance in the argument advanced on behalf of the petitioner that in view of Section 25 of Indian Evidence Act, the petitioner could not have been convicted by the learned court below. Accordingly, this Court does not find any merit in this revision petition which is accordingly dismissed.

Section 30 of the Indian Evidence Act, 1872 clearly provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. In view of the fact that the petitioner as well as the co-accused Shyam Lahiri were tried together and there was a recovery from the house of the petitioner on the basis of confessional statement made by Shyam Lahiri and the confession of Shyam Lahiri as well as the petitioner having been proved before the learned court below, the provision of Section 25 of the Indian Evidence Act, 1872 does not help the petitioner in any manner whatsoever. The confessional statement leading to recovery stands on different footing altogether.

Considering limited jurisdiction of revisional court, this Court does not find any irregularity or perversity in the impugned judgments passed by the learned courts below calling for any interference by this Court. So far as the point of sentence is concerned, considering the serious nature of allegation, this Court is not inclined to modify the sentence of the petitioner and accordingly, the present petition is hereby dismissed. So far as the remission on the point of sentence is concerned, this Court is of the considered view that the learned lower appellate court has considered the point of sentence rightly and the petitioner does not deserve any further remission as per law.

Office is directed to immediately remit the records received from the learned court below to the court of learned District Additional Session Judge 1st cum Special Judge, Bokaro in response to his letter bearing no.1446 dated 19.09.2019 required for the purposes of disposal of the case pending before the learned judge.

The bail bonds furnished by the petitioner are also cancelled. 12. Pending interlocutory application, if any, are dismissed as not pressed.

Let this order be communicated to the learned court below through 'FAX'.