Pasupati Nath Gupta vs State Of Jharkhand

The instant application is directed against the judgment dated 27.08.2002 passed by the learned 7th Additional Sessions Judge, Dhanbad in Criminal

Appeal No. 136 of 1998, whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence

dated 3rd September’1998 passed by the learned Judicial Magistrate, IInd Class, Dhanbad in G. R. Case No. 1632 of 1996 (T. R. No. 797 of

1998), whereby the petitioner has been convicted under Sections 411 and 461 of the Indian Penal Code and was sentenced to undergo RI for one year

each for each offence and both the sentences were directed to run concurrently, has been affirmed.

The prosecution case in brief is that the informant - Bhogendra Jha, who was a night guard, gave a written report to the Officer-In charge-Dhansar

Police Station alleging therein that on 23.03.1999 when he was on duty in the night from 10:00 P.M. to 06:00 a.m., at about 03:00 a.m., when he

happened to reach at Bera colliery godown along with P. W. â€" 2 - Basu Rai, who was also on duty, he heard some sound coming out from the

godown. Then, on suspicion, he peeped inside and he saw a person inside the godown. At that time the police patrolling party also reached there and

with the help of the police patrolling party the godown was surrounded. When they entered the godown, they saw the petitioner-accused and they

apprehended him with three pieces of cable wire of 30’/35’ in length and he was taken out from the godown and he was also identified, since

he was also a fan khalasi of Bera Colliery. On being asked, the petitioner-accused told that he entered into the godown with the help of Bamboo

ladder by scaling over the boundary wall of the godown from Eastern side.

On the basis of the written report, a first information report was drawn up and a case was registered under Sections 379, 411 and 461 of the Indian

Penal Code. After investigation, the charge-sheet was submitted and cognizance was taken. The petitioner pleaded not guilty and claimed to be tried.

On the basis of documents, oral and documentary, available before him, the learned trial court convicted the petitioner under Sections 411 and 461 of

the Indian Penal Code.

Being aggrieved, the petitioner challenged the aforesaid order before the learned appellate court in Criminal Appeal No. 136 of 1998 and the learned

appellate court after discussing the evidences placed before him and argument canvassed by the parties refused to interfere with the judgment and

order passed by the learned trial court.

The learned counsel for the petitioner submits that this is a fit case in which the petitioner should be acquitted and the learned trial court as well as the

learned appellate court has committed a gross error in law inasmuch as, the property in question was not seized from the possession of the petitioner

and as a matter of fact the petitioner was on duty on that night and further his house was just 100 yards from the place of occurrence. It was due to

the union rivalry between the two groups, the petitioner has been falsely implicated in this case. He further draws the attention of this Court to the

Exhibit â€" 3 which is production-cum-seizure list in which at serial no. 4 the name of P.W. â€" 1 was mentioned whereas as per the deposition of the

Investigating Officer, the seized articles were seized by the police themselves. By referring Exhibit â€" 3 and the deposition of P.W. â€" 3, the learned

counsel contended that when the police has already seized property in question then how an Exhibit â€" 3, which is production-cum-seizure list, name

of Bhogendra Jha-informant is appearing. He further submits that this aspect of the matter has not been taken care by the learned trial court as well

as the learned appellate court which makes the order perverse.

In the instant case, when the seizure list was prepared at the place of occurrence by the patrolling party who seized the articles then how production-

cum-seizure list was prepared (Exhibit â€" 3) and how P.W. â€" 1, Bhogendra Jha, has produced articles before the police station. He further submits

that the deposition of P.W. -1 and P.W. â€" 2 corroborates each other indicating the fact that the ladder which was of the electricity board and the

same was regularly kept at the place of occurrence. Therefore, convicting the petitioner on mere surmises and conjecture is not sustainable in the

eyes of law. He further submits that since the petitioner belongs to one union and the prosecution witness nos. 1 and 2 belong to other union, the

petitioner has falsely been implicated in this case. There is no eye-witness to the occurrence and the entire order of the leaned trial court is perverse in

nature and the learned appellate court has committed the same error in not appreciating the contention of the petitioner rather, concurred with the

finding of the learned trial court without giving any reasoning.

Per contra, learned A.P.P. for the State supports the impugned orders and submits that the prosecution has proved its case beyond all reasonable

doubts and the learned trial court has rightly convicted the petitioner which has been upheld by the learned appellate court. She further submits that

under revision jurisdiction, the Court should not go to such details and this is a fit case where the application of the petitioner deserves to be dismissed.

Heard learned counsel for the petitioner and the learned A.P.P. for the State.

After going through the impugned orders as well as the lower court record following facts are apparent which creates strong suspicion in the case of

the prosecution:

(i) The house of the petitioner was around 100 yards from the place of occurrence which is apparent from the deposition of the prosecution witnesses.

(ii) P.W. â€" 2 categorically admitted in para-6 of his cross-examination that the petitioner was on duty on the date of occurrence and his duty hours

was from 12:00 midnight till 08:00 am in the morning. This completely falsifies the presence of the petitioner at the place of occurrence.

(iii) P.W. â€" 2 further admitted in his cross-examination that the seizure list was not prepared at the place of occurrence; rather it was prepared in

the residence of “Agent Sahebâ€​.

(iv) As per the seizure list, no instrument for cutting the cable wire was seized. The ladder, which was found, was permanently kept in that place.

(v) There is an admitted union rivalry between two groups of which the petitioner is a member of one of the union whereas the P.W. â€" 1 and P.W.

â€" 2 are the members of the rival union.

(vi) When the seizure list was prepared at the place of occurrence, as alleged by the prosecution, by the patrolling party who seized the articles then

how production-cum-seizure list was prepared (Exhibit â€" 3) in which P.W. â€" 1, Bhogendra Jha, has been shown as the person who produced

articles before the police station. In other words, if the articles were seized by the police then how in the production-cum-seizure list reflects the name

of Bhogendra Jha as a person who produced the seized article before the Police station, because admittedly he is not the police officer rather P.W.

â€" 1. Thus it creates a heavy doubt in the case of prosecution.

(vii) The statement of P.W. â€" 2 clearly transpires that no person was allowed to go inside the godown i.e. the place of occurrence where materials

were seized as such it would be incorrect to say that the petitioner was found with the stolen property.

To constitute an offence under Section 411 and 461 of the Indian Penal Code, the prosecution has to prove beyond doubts that the stolen property has

been found with the accused person/s and the said person/s has opened the close premises by breaking the same with intent to commit mischief. In

the instant the prosecution has failed to prove the charges. After going through the aforesaid facts, it can be safely inferred that the prosecution has

neither proved the charge under section 461 IPC nor under section 411 IPC.

It is a well settled principle that it is the prosecution who has to prove its case beyond all shadow of reasonable doubts. The learned trial court has

committed a gross error in ignoring the vital document i.e. Exhibit â€" 3 read with depositions of prosecution witnesses because on the one hand it has

been stated by the prosecution witness no.2 that the seizure list was prepared at the place of occurrence and the P.W. â€" 1 has signed over it as

witness whereas Exhibit â€" 3 which is a seizure-cum-production list in which at serial no. 4 it has been mentioned that the same has been produced

before the Police station by P.W. -1. When the articles were seized by the police then why P.W. â€" 1 has produced the articles before the police

station. This clearly corroborates the contention of petitioner that it is only due to rivalry between two unions the petitioner has falsely been implicated

in this case.

In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution

and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to

some statutory exceptions. There is no such statutory exception pleaded in the present case.

In view of the aforesaid discussions, I am of the considered opinion that the order of the learned trial court suffers from infirmity making the judgment

perverse in nature and in the interest of justice, it is necessary that the petitioner should be acquitted in this case. As a result, this application is allowed

and the judgment dated 27.08.2002 passed by the learned 7th Additional Sessions Judge, Dhanbad in Criminal Appeal No. 136 of 1998 and the

judgment of conviction and order of sentence passed by the learned Judicial Magistrate, IInd Class, Dhanbad in G. R. Case No. 1632 of 1996 (T. R.

No. 797 of 1998) are, hereby, set aside.

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

The petitioner shall be discharged from the liability of his bail bond.

Let a copy of this order be communicated through FAX to the court concerned.