Chanchal Bhogta vs State Of Jharkhand

The instant application is directed against the judgment dated 05.10.2013, passed by the learned 8th District & Additional Sessions Judge, Hazaribag in Criminal Appeal No.126 of 2013, whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence dated 31.07.2013, passed by the learned Judicial Magistrate 1st Class, Hazaribag in G.R. No.2095/2008, arising out of Gola P.S. Case No.58/2008, whereby the petitioner has been convicted for the offence under Section 411 of the Indian Penal Code and was sentenced to undergo RI for 2 years, has been affirmed.

The learned Amicus vehemently argued that prosecution has failed to prove its case beyond all shadow of reasonable doubts inasmuch as that the recovery of stolen motorcycle was from the public place and the petitioner was standing beside the motorcycle so it cannot be said that it was recovered from his specific possession. She further submits that person who seized the motorcycle has not been examined by the prosecution. She further contended that admittedly there is no eye witness to the occurrence of theft and the entire case lies on seizure of the motorcycle and the person who seized the motorcycle has not been examined then it can not be said that the prosecution has proved its case. None of the ingredients enshrined under Section 411 IPC has been satisfied in this case. She made an alternative argument to the effect that the petitioner is not a habitual offender and this is a first case in which he has been convicted and he is young and sending him back to custody will ruin his entire career and his entire family will face consequences. As such, some leniency may be granted by this Hon'ble Court.

Per contra, the learned APP opposed the prayer for acquittal. He contended that as per the deposition of P.W.4, it is clear that the number plate of the motorcycle was tampered therefore, it can be easily inferred that the same was done with some ulterior motive. It is true that the person who seized the motorcycle has not been examined but at the same time non-examination of that witness will not be so vital that it will prejudice the entire prosecution case. Admittedly, the accused was standing beside the motorcycle. However, he fairly admitted that there is no criminal antecedent of the petitioner.

Heard learned counsel for the petitioner and the learned APP for the State.

After going through the impugned orders including lower court records and keeping in mind the submissions of the learned counsel for the petitioner and also the scope of the revision jurisdiction, I am not inclined to interfere with the finding of the courts below and as such the judgment of conviction passed by the learned trial court and upheld by the learned appellate court is, hereby, confirmed.

However, so far as sentence is concerned, it is apparent from record that the incident is of the year 2008 and almost 12 years have elapsed and the petitioner must have suffered the rigors of litigation for the last 12 years and also remained in custody for 320 days. It is not stated that the petitioner has ever misused the privilege of bail. Further, the incident does not reflect any cruelty on the part of the petitioner or any mental depravity.

In a situation of this nature, I am of the opinion that no fruitful purpose would be served by sending the accused person back to prison rather interest of justice would be sufficed if the sentence is modified in lieu of fine.

Thus, the sentence passed by the Court below is, hereby, modified to the extent that the petitioner is sentenced to undergo for the period already undergone, subject to the payment of fine of Rs.5,000/-.

It is made clear that the petitioner shall pay the aforesaid fine of Rs.5,000/- within a period of 3 months from today before the Secretary, DLSA, Hazaribag.

With the aforesaid observations, directions and modification in sentence only, this revision application is disposed of.

The petitioner shall be discharged from the liability of his bail bonds, subject to fulfillment of aforesaid condition.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s) for this case. She shall be paid as provided under the Notification dated 23.11.2017.

Let the lower court record be sent back to the court concerned forthwith.

Let the copy of this order be communicated to the court below, the petitioner-Chanchal Bhogta and the Secretary, DLSA, Hazaribag.