Ramdas Prasad @ Ranjeet Prasad vs State Of Jharkhand

The instant application is directed against the judgment dated 04.02.2013, passed by the learned Sessions Judge, Bokaro in Cr. Appeal No.5/2011, whereby the appeal against the judgment of the conviction and order of sentence passed by the learned S.D.J.M, Bermo at Tenughat in G.R. No.584/2005/T.R. No.344/2010, whereby the petitioner has been convicted for the offence committed under Section 411 Indian Penal Code and was sentenced for S.I for one year, has been modified.

The learned appellate court while modifying the judgment found the petitioner guilty under Section 379 of IPC and finally sentenced him for one year S.I but acquitted the petitioner from the charge of Section 411 IPC.

The prosecution case as set out in the written report lodged by the Dy. S.P, C.I.S.F, Chandrapura is that on 18.07.2005, during patrolling duty, a person was found to be carrying copper wire about 15 meters and a telephone cable about 6 meters. When he was apprehended, he was unable to produce any document with regard to those articles. He disclosed his name as Ramdas Prasad @ Ranjeet Kumar Prasad-petitioner herein.

Police on investigation found the case true and submitted chargesheet against the accused and charge has been framed against him under Sections 379 and 411 of IPC and he was sent up for trial.

Based upon the evidences and documents placed before him, the learned S.D.J.M, Bermo had found the petitioner guilty for offence under Section 411 of IPC and sentenced him to undergo S.I for one year. However, the petitioner was acquitted from the charge u/s 379 IPC.

Being aggrieved, the petitioner challenged the order passed by the learned trial court before the learned Sessions Judge, Bokaro, who after appreciating the evidences produced before him and the arguments adduced by both the parties came to the conclusion that the matter involves theft of public property which is rampant in that area and further held that prosecution has succeeded to prove the charge under Section 379 IPC. However, the charge under Section 411 of IPC was set aside. So far as the sentence is concerned the same was confirmed by the learned appellate court.

Mrs. Swati Shalini, learned counsel for the petitioner vehemently argued the matter and submitted that no D.V.C official were examined in this case, though, it has been alleged that the concerned wire was of DVC. Further, no independent witness has been examined and all the prosecution witnesses are the patrolling party and in order to show their efficiency, they implicated the petitioner. P.W.4-S.I who has been examined, is not the Investigating Officer in the instant case. She has further submitted that due to non examination of Investigating Officer, the place of occurrence as well as the time of occurrence has not been proved.

She further submits that during trial and in course of evidence, no particular identification mark was shown to show resemblance of recovered article and no value of alleged article were brought on record. Last but not the least, she submits that non of the prosecution witness has seen the petitioner committing theft. She finally concludes her argument by submitting that the learned appellate court has committed a gross error in convicting the petitioner for offence under Section 379 IPC, for which the petitioner was acquitted by the learned trial court.

Per contra, the learned A.P.P opposed the prayer and submitted that the instant matter involves public property which is rampant in the area, as such, the petitioner is not entitled for any relief by this Court. Learned A.P.P further submits that the article was recovered. He further submits during course of evidence Ext.3 was exhibited which clearly transpires that the recovered articles belonged to D.V.C.

Heard the learned counsels for the parties and perused the evidence on record.

From the impugned order it clearly transpires that the learned trial court after appreciating the evidences led before him, acquitted the petitioner from the charge under Section 379 IPC but convicted him for offence committed under Section 411 IPC. It is an admitted fact that against the said order of learned trial court, petitioner filed appeal but the State did not preferred any appeal. As such, the appeal before the learned appellate court was that whether the conviction under Section 411 IPC was good and in accordance with law or not. The appellate court was not supposed to sit in appeal on the acquittal of the petitioner under Section 379 IPC, as the State did not file any appeal against acquittal.

If an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the appellate court and not the acquittal. The power of appellate court is confined to cases of appeal against order of conviction and sentence and cannot be exercised for reversing an order of acquittal passed in respect of an offence charged, while dealing with an appeal preferred before him against the order of conviction in respect of another offence charged and proved.

In the case of Thadi Narayana v. State of A.P reported in AIR 1962 SC 240 the Hon'ble Apex Court has held as under para 7 of the order is quoted herein below:

"7. Section 423 (1) (b) (1) in terms deals with an appeal from a conviction, and it empowers the Appellate Court to reverse the finding and, sentence and acquit or discharge the accused or order a retrial by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial. In the context it is obvious that "the finding" must mean the finding of guilt. The words "the finding and sentence" are corelated. They indicate that the finding in question is the cause and the sentence is the consequence; and so what the Appellate Court is empowered to reverse is the finding of guilt and consequently the order as to sentence. There is no difficulty in holding that S. 423 (1) (b) (1) postulates the presence of an order of sentence against the accused and it is in that context that it empowers the Appellate Court to reverse the finding of guilt and sentence and then to pass any one of the appropriate orders therein specified. In our opinion S. 423 (1) (b) (1) is, therefore, clearly confined to cases at appeals preferred against orders at conviction and sentence, and the powers exercisable under it are therefore conditioned by the sad consideration. It is impossible to accede to the argument that the powers conferred by this clause can be exercised for the purpose at reversing an order of acquittal passed in favour of a party in respect of an offence charged in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. There can thus he no doubt that the order passed by Mr. Justice Naidu cannot be justified under this clause."

The same view has been followed in the case of Appasaheb v. State of Maharashtra reported in (2007) 9 SCC 721 para 12 is quoted hereunder:

"12. Learned counsel for the appellants has also submitted that there is absolutely no evidence either direct or circumstantial to show that Bhimabai committed suicide. He has submitted that the insecticide Thimet is extensively used by the farmers for preservation of crops and is kept stored in their houses and it could be a case where Thimet accidentally got mixed with some food item and was consumed by Bhimabai. It has thus been submitted that no offence under Section 306 IPC is made out against the appellants. We do not consider it necessary to examine this question. As already stated, the appellants were also charged under Sections 498- A and 306 read with Section 34 IPC but were acquitted of the said charges by the learned Sessions Judge, which order has attained finality for the reason that the State did not prefer appeal against the same. The appeal before the High Court and also in this Court has been preferred by the appellants challenging their conviction under Section 304-B read with Section 34 IPC. It has been held in State of A.P. v. Thadi Narayana3 that Section 423(1) (b)(i) of the Code of Criminal Procedure, 1898 [which corresponds to Section 386(b)(i) of the Code of Criminal Procedure, 1973] is clearly confined to cases of appeals preferred against orders of conviction and sentence, the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. Therefore, we have refrained from expressing any opinion as to whether the appellants could be held guilty of having committed the offence under Section 498-A or 306 IPC on the basis of evidence available on record as their acquittal under the aforesaid charges has attained finality and cannot be reversed in the appeal filed by the appellants challenging their conviction under Section 304-B IPC."

In view of the aforesaid discussions, observations and judicial pronouncement, there is apparent error in the judgment of the learned appellate court which led to miscarriage of justice. As a result, this revision application is allowed and the judgment dated 04.02.2013, passed by the learned appellate court in Cr. Appeal No.5/2011, convicting the petitioner for offence under section 379 IPC, is set aside.

It appears that the petitioner has availed the privilege of bail by a coordinate Bench of this Court and as such, the petitioner is discharged from the liability of bail bonds.

Let the LCR be sent back to the court concerned, forthwith.