Mohd. Rizwan vs State Of Uttarakhand

Sharad Kumar Sharma, J

A criminal prosecution, as against the present revisionist was initiated with the registration of Case Crime Number 67 of 2009, by registration of the FIR at P.S. Thana Kanali Cheena, District Pithoragarh. In the said Case Crime, as registered against the revisionist and other co-accused persons, the revisionist is said to have been engaged in commission of offence under Section 379 and 411 of the IPC. As per the case as projected by the prosecution, it was to the effect that the complainant Chanchal Singh who is Poojari (Priest) of the temple, has registered a complaint with regards to the commission of offence in the night of 29th/30th March 2009, which the complainant could have witnessed for the first time in the morning of 30th March 2009, when he found that when he open the temple of "Khirchana Devi", he found that certain articles; namely the pipe, the copper bells, numbering to about 172 in number, copper plats, two copper lotas, chattar, and other material were recovered from the revisionist and other co-accused persons on 24th April 2009 at about 11:10 a.m. at Kanchanpur gate, when the vehicle i.e. the car on which they were travelling bearing Registration No. UP 21 Z-3515, they were apprehended by the police party and it was then that the police team has recovered the stolen articles from their custody.

The case of the revisionist so as to draw a distinction with regards to his involvement in the commission of the said offence is from the viewpoint that, in fact, he was not the actual person involved in the commission of offence of theft, from the temple in question his case was that, it was the other co-accused persons, who were travelling in the same car of which, the revisionist contends that he was the driver and hence the set of allegation, as levelled in the Case Crime No. 67 of 2009, cannot be directly attributed to the revisionist since being contrary to the evidence on record and even as against the case of the revisionist.

When the trial commenced, the accused persons including the revisionist, in compliance of the provisions contained under Section 207 Cr.P.C., were provided with all the relevant documents in order to protect themselves and place their defence and to enable them to establish their non-involvement or innocence in the commission of the aforesaid offence, which was registered against them. The learned trial Court, after conducting the trial and considering the rival evidence, in fact, after appreciation of the exhibits, particularly the exhibit 5 i.e. fard baramdagi, which was prepared by the police after their apprehension along with the articles, the learned trial Court had proceeded to render the judgement on 11th November 2009, and as a consequence therein, the offence under Section 379 of IPC was held to be not made out and hence the revisionist was acquitted with the offence under Section 379 of IPC.

But, however, since the stolen material, which was reported in the complaint by the complainant priest of the temple, to be stolen as registered against them was recovered from the custody of the revisionist hence it was held out that in view of the statement recorded of the witnesses, particularly, the Pujari of the Temple, the stolen material, which was recovered belonged to the temple diety, itself, which was identified as the same was being often utilised by the Pujari in offering prayers to Deity. However, the revisionist was held to be a convict for the offence under Section 411 of IPC and consequently he was convicted and sentenced to undergo a sentence of one year of rigorous imprisonment and a penalty of Rs. 200/- was imposed upon him.

As against the judgement of the Judicial Magistrate, Didi Haat as rendered on 11th November 2009, a Criminal Appeal was preferred by the revisionist, being Criminal Appeal Number 21 of 2009, Mohd. Rizwan v. State of Uttarakhand, and the Appellate Court too, on appreciation of the evidence, which was adduced before the Court below and particularly on finding that the articles, which constituted to be the part of the fard baramdagi, was in fact found to be recovered from the custody of the accused persons, including the revisionist, who were apprehended by the police, the Appellate Court too held that as far as the act of stealing those articles are concerned, were not established and hence the Appellate Court too exonerated the revisionist for the commission of offence under Section 379 IPC. The Appellate Court too concurrently while agreeing with the finding recorded by the learned trial Court, pertaining to the mode in which the recovery was made has convicted the revisionist for the commission of offence under Section 411, because the articles were recovered from the vehicle in which he was travelling, which the revisionist has tried to draw a distinction that he was not travelling in the car, but rather he was driving the vehicle in which other co-accused persons were travelling as passengers. Thus under the said pretext, he contends that in fact the offence under Section 411 of IPC will also not be made out against him, the philosophy behind the argument was that because merely if the passengers who were travelling in the car belonging to the revisionist, which he was driving in the capacity of a driver, thus the custody of the articles which was being carried therein cannot be treated as to be a custody or the recovery which was made from the revisionist, who was the driver of the car. Hence, he contends that the sentence imposed under Section 411 was erroneous and contrary to the evidence both oral and documentary which has been adduced before the both the Courts below in relation to the commission of offence and the involvement of the revisionist in the offence complained of against him.

As against the two judgements of conviction, rendered by the learned trial Court and which ultimately stood affirmed by the Appellate Court by an order dated 12th August 2011, the present revision was preferred by the revisionist by filing the same before this Court on 29th August 2011. At the time when the revision was being heard at an admission stage, the same was admitted on 30th August 2011, and the revisionist was released on bail in pursuance to the order of the coordinate Bench of this Court.

The learned counsel for the revisionist in support of his contention submits that the finding and reasoning which has been assigned by both the Courts below for the purposes of convicting the revisionist for the commission of offence under Section 411, in fact, would not be tenable for two reasons that:- (1) the actual recovery of the stolen articles of the temple was not made from the custody of the revisionist; (2) Because he was the driver of the car in which the other co-accused were travelling, the recovery of the stolen material, which was recovered by the police party, from the passengers, who were interrogated also, the accused persons when the vehicle met with an accident and was stationed at the particular place from where the recovery was made by the police, hence too he submits that since revisionist was the driver of the car, the recovery cannot be attributed to be actually made from his custody and hence he will not be liable to be even convicted for the commission of offence under Section 411 IPC. He submits that though not relevant for the purposes of adjudication of the present revision but this Court also cannot be ignorant of the fact, which has been brought on record by the revisionist himself by filing a supplementary affidavit to the effect that subsequent to the filing of the FIR and release of the revisionist on bail on 30th August 2011, an accident chanced and as a consequence of the accident, he got a gunshot injury on his head due to which he has been rendered medically incapacity to perform his routine work and in support thereto, the revisionist has placed on record the CT Scan report, the discharge summary, and the medical certificates in relation to that the gunshot injury was caused on his head, which was fatal, resulting to the permanent physical incapacity of the revisionist to undertake his normal work. Lastly, he submits that during the pendency of the trial and on his ultimate conviction by the impugned orders under challenge, the revisionist has approximately served the major part of sentence for a period of about three months and hence looking to the physical condition which he is now suffering from and the maximum period of sentence imposed, the Court may take a pragmatic view, while exercising its power under Section 397 to be read with Section 401 of CrPC, while considering the aspect for acquitting the revisionist by convicting the revisionist by reducing the sentence on the ground that he has already undergone three months of imprisonment out of the total sentence as in lieu of the total sentence of one year which has been imposed by the impugned order.

But, as far as the finding which has been recorded by both the Courts below concurrently, pertaining to the establishment of the offence under Section 411 CrPC, because as per the report of the police party and as per the finding which has been recorded by both the Courts, the possession of the stolen articles was admittedly made from the vehicle, which was driven by the revisionist and hence it cannot be said that he could be absolutely ignorant of act of stolen articles being convicted in his car so as to be exonerated of his involvement in the commission of offence under Section 411 of IPC, which otherwise stood established in view of the finding recorded by both the Courts below on appreciation of evidence.

But, considering the fact that the revisionist has already undergone a sentence of three months out of total sentence of one year imposed on him, and considering the fact that on account of the subsequent accident, which has taken place, which has rendered him absolutely and totally incapacitated to perform his daily work, as would be apparent from the medical report, which has been placed on record, by way of supplementary affidavit, which has not been controverted, this Court is of the view that taking a considerate view while affirming the conviction imposed by the Court below, the sentence requires to be slightly modified on account of changed circumstances after considering the fact that he has already undergone three months of imprisonment and also considering the fact that since on account of an accident, which has subsequently occurred due to which he has suffered gunshot injury in his head, the sentence as imposed by the Courts below requires to be modified only to the extent that instead of one year of rigorous imprisonment, the sentence is being modified that the revisionist would be directed to serve the sentence of about six months including the period of sentence, which he has already undergone. As far as the penalty, which has been imposed upon him by the Courts below, this Court is not inclined to interfere on that. The said part of the judgement and sentence is affirmed. The revisionist, who has been granted bail, by the coordinate Bench of this Court on 30th August 2011, the revisionist is directed to surrender forthwith after the receipt of the certified copy of this judgement and serve the remaining part of the sentence as modified by this Court, including the period for which the revisionist has already undergone his sentence.

Subject to the above observation, the revision is dismissed with slight modification to the sentence imposed by the courts below by the impugned judgements under challenge.