Binay Kumar Gupta vs State Of Jharkhand

Anubha Rawat Choudhary, J

Heard Mr. Avishek Prasad, learned counsel appearing on behalf of the petitioner.

Heard Mr. Ravi Prakash, learned counsel appearing on behalf of opposite party-State.

This revision application is directed against the order dated 18.07.2013 passed by learned 3rd Additional Sessions Judge, Hazaribagh in Cr. Appeal

No. 33 of 2013, by which the appeal filed by the petitioner was dismissed, which was preferred against the judgment dated 30.01.2013 passed by the

learned Sub-Divisional Judicial Magistrate, Hazaribagh in connection with G.R. Case No. 2766 of 2011 (T.R. Case No. 1077/2013) arising out of

Chauparan P.S Case No. 83/2011, wherein the petitioner has been convicted for the offence under Section 394/34 of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs. 10,000/- and in default of payment of fine, the petitioner has

to serve the sentence of simple imprisonment of six months.

Arguments of the petitioner

Learned counsel for the petitioner, at the outset, submits that similarly situated co-accused, namely, Deepak Yadav had approached this Court

against the impugned judgment in Cr. Revision No. 375/2013 which was disposed of vide order dated 13.12.2019 and this Court was pleased to modify

the sentence of Deepak Yadav by finding from the records that the incident was of the year 2011 and about 9 years had elapsed and the petitioner

must have suffered the rigors of litigation for the last 9 years and also remained in custody for 601 days. The learned counsel submits that as the case

of the petitioner is similarly situated, therefore similar relief may also be granted to the petitioner.

The learned counsel for the petitioner has submitted that there is merit in the present case as well. During the course of hearing, he submits that

Deepak Yadav was apprehended on the spot and it is alleged that the petitioner along with co-accused was handed over the bag of money and they

ran away with the looted money in a motorcycle.

The learned counsel submits that so far as the evidence of P.W.-1 is concerned, he has stated categorically in his cross-examination that he had

gone police station to identify the petitioner twice and accordingly, the learned counsel submits that identification of the petitioner by P.W.-1 cannot be

relied upon. He has further submitted that P.W.-1 who is the informant has sufficiently improved his version in support of the F.I.R. The learned

counsel submits that in view of the aforesaid facts and circumstances, the petitioner is entitled to benefit of doubt and the prosecution has not been

able to prove the case beyond all reasonable doubt against the petitioner. He submits that for the ends of justice, the impugned judgments of conviction

and sentence are fit to be set-aside.

Arguments of the opposite party-State

The learned counsel for the opposite party-State, on the other hand, has submitted that so far as the case of co-accused, namely, Deepak Yadav is

concerned, it was specifically argued by the learned counsel for the petitioner of that case that Deepak Yadav had never misused the privilege of bail

and he was not involved in any offence and there was no criminal antecedent against him. He submits that the Co-ordinate Bench of this Court ,

interalia, considered this aspect of the matter and granted relief to Deepak Yadav.

The learned counsel has referred to the affidavit dated 01.07.2021 to submit that the present petitioner has altogether four criminal cases whose list

has been given at Annexure-A including one case which was Dhanbad P.S. Case No. 116/2009 dated 13.09.2009 under Section 364(A) of the Indian

Penal Code and the same was referred to in the case-diary, where the confessional statement of the petitioner was recorded in connection with the

present case. He submits that accordingly the case of the petitioner is different from that of Deepak Yadav and the present petitioner does not

deserve any sympathetic view of this Court. The petitioner has been involved in a number of serious cases, whose details are as under: -

(i) Chauparan P.S. Case No. 90/2011 dated 19.09.2011 under Section 25(1-b)a/26/35 of the Arms Act.

(ii) Katkamsandi P.S. Case No. 35/2018 dated 26.01.2018 under Section 392 of IPC.

(iii) Dhanbad P.S. Case No. 116/2009 dated 13.09.2009 under Section 364(A) of IPC.

(iv) Jainagar P.S. Case No. 427

On merits, the learned counsel for the opposite party-State has opposed the prayer and submitted that there are consistent findings recorded by the

learned courts below after considering all the materials on record. So far as identification of the petitioner in TIP is concerned, he submits that the

evidence of the eye-witness P.W.-3 is also to be seen, who was admittedly there at the place of occurrence. This witness has identified the petitioner

and he has specifically stated that he was never taken to police station to identify the petitioner at any point of time. He submits that the learned courts

below have found the evidence of P.W.-3 fully reliable. He also submits that there is no scope for re-appreciation of evidences by this Court in

revisional jurisdiction and come to a different finding. He submits that the impugned judgments passed by the learned courts below are based on

concurrent finding and due appreciation of evidences on record. No perversity, irregularity or illegality, as such, has been pointed out by the learned

counsel for the petitioner and therefore, the impugned judgments of conviction and sentence do not call for any interference.

Findings of this Court

The prosecution case, in brief, is that the present case has been registered under Section 394 of the Indian Penal Code on the basis of a written

report of Kedar Thakur (P.W-1) against the petitioner and others. It has been stated in the FIR that the informant was working as Cashier in

Singhrawan Petrol Pump. It has been alleged that on the date of occurrence at about 11:15 hours, the informant along with the staff Gautam Ray

(P.W-3) were going to deposit three days sale proceeds of petrol pump amounting to Rs. 7,12,800 keeping in a black bag in Singhrawan State Bank.

In the way, one person came from backside and snatched the same bag containing the money and fled away along with his two associates on Pulsar

motorcycle. The informant raised alarm and due to haste one of the miscreants could not board on the said motorcycle, but the other two managed to

flee away from there with the looted money of the informant. The informant and others wanted to catch the accused, but they pointed pistol upon

them and assaulted the informant by the butt of the pistol, due to which, he sustained injury. In the meantime, the bank choukidar caught one of the

miscreants and handed over him to police along with the pistol. The apprehended accused disclosed his name as Deepak Yadav and he further

disclosed the name of his two associates who took away the looted money as Binoy Mahto (petitioner) and Sahdeo Saw. On the basis of the written

report a case was registered on 19.09.2011 against all the three accused persons.

The learned trial court recorded its finding from paragraph-8 onwards of its judgment. It has been recorded that altogether 11 witnesses have been

examined out of them witness Nos. 1 and 3 are the eye-witnesses of the alleged offence who have fully supported the prosecution case. P.W.-2 is the

person who had met Kedar Thakur (P.W.-1 and the informant of the case) at the police station in an injured condition and has also stated that on the

statements made by Kedar Tharkur, Indradeo Thakur had written the FIR and P.W- 2 was cross-examined only from the side of co-accused Deepak

Yadav and no cross-examination was done from the side of Binay Mahto and Shankar Yadav. It has been recorded that P.Ws. 4, 5, 6, 7 and 8 were

members of police party who had reached the place of occurrence upon receiving the information and they were told that accused Deepak Yadav

was caught along with revolver and when the police party reached the place of occurrence, they arrested Deepak Yadav with revolver and took him

into the police station. P.W.-10 (the Magistrate) deposed that the informant Kedar Thakur had identified the Shankar Yadav in Test Identification

Parade and the witness Gautam Ray (P.W-3) had identified Shakar Yadav as well as Binay Mahto (present petitioner) in TIP. Eye-witness P.W.-3

has identified the petitioner and he has specifically stated that he was never taken to police station to identify the petitioner at any point of time. The

learned courts below have found the evidence of P.W.-3 fully reliable.

The learned trial court after scrutinizing all the evidences on record held that the prosecution has been able to prove the case against the accused

beyond all reasonable doubt and convicted Deepak Yadav for offence under Section 394 of the Indian Penal Code and co-accused, Shankar Yadav

and Binay Mahto (present petitioner) for offence under Section 394/34 of the IPC.

Considering the aforesaid aspects of the matter, this Court finds that the identification of the petitioner that he had looted away the money is not

only based on the evidence of P.W.-1, but also on the evidence of P.W.-3 who was present at the spot and the learned courts below have found that

his evidence is fully reliable.

The learned appellate court also carefully scrutinized the evidences on record and held that the petitioner along with the other co-accused in

furtherance of common intention committed robbery by snatching the bag containing the sale proceeds of the petrol pump amounting to Rs. 7,12,800/-

from the informant.

This Court further finds that the learned courts below have scrutinized the evidences on record and have returned concurrent findings. There is no

scope for re-appreciation of evidences on record and coming to a different finding in revisional jurisdiction in absence of any perversity. The learned

counsel for the petitioner has failed to point out any illegality, irregularity or perversity in the impugned judgement of conviction calling for any

interference.

Considering the aforesaid facts and circumstances of this case, there is no merit in this revision petition.

So far as the sentence is concerned, this Court is not inclined to give any relief to the petitioner. Before the Co-ordinate Bench of this Court, it was

submitted that Deepak Yadav had no criminal antecedent and while giving relief to Deepak Yadav on the point of sentence, this aspect was also

considered.

The State has brought on record that the petitioner is involved in a number of criminal cases. In such circumstances the petitioner does not deserve

any sympathetic view of this Court. His case cannot be said to be in same footing so far as point of sentence is concerned. Accordingly, the prayer

for modification of sentence is also rejected.

Bail bond furnished by the petitioner is cancelled.

Interim order, if any, stands vacated.

Pending interlocutory applications, if any, are closed.

Let the lower courts report be immediate sent back to the court concerned.

Let a copy of this order be communicated to the learned court below through ‘e-mail/FAX’.