Sirajuddin Ansari @ Pintu vs State Of Jharkhand

Heard learned counsels for the parties.

The instant application has been preferred for setting aside the judgment dated 28.09.2012 passed by the learned Additional Sessions Judge-II, Bokaro in Cr. Appeal No.105/2011, whereby the learned appellate court has dismissed the appeal and confirmed the judgment of conviction and order of sentence, both dated 10.10.2011, passed by the learned SDJM, Bokaro in G.R. No.1119/2006 (T.R. No.497/2011), whereby the learned court below held the petitioner guilty for offence punishable under Section 394 IPC and sentenced him to undergo R.I for 3 years and fine of Rs.5,000/- and in default of payment of fine the petitioner was directed to undergo additional S.I for 6 months.

The case of the prosecution in brief is that the informantUsha Tiwari gave her fardbeyan on 09.10.2006 stating inter alia that on the same day at about 11.05 A.M, she was alone in the house and taking bath. In the meantime, one person came near the door of bathroom and forced the informant to give her wearing jewelleries to him. Thereafter, the accused demanded the key of Almirah and also took away jewelleries and cash of Rs. 25,000/- to 30,000/- respectively which were kept in the almirah. It was further alleged that the accused tightened the informant with rope and pushed her on a bed and fled away after locking the main gate.

On the basis of fardbeyan of the informant, a case under Section 394 of IPC has been registered against the unknown persons and investigation was taken up. After completion of investigation, chargesheet under Section 394/411 IPC has been submitted against the accused persons, namely, Sirajuddin Ansari @ Pintu and Parwej Khan, thereupon cognizance of the offence had been taken against them. Pursuant to that charge was framed under Section 394/411 I.P.C against the accused persons to which they pleaded not guilty and claimed to be tried.

Based upon the evidence of the witnesses and the documents placed before him the learned trial court convicted the petitioner for the charge punishable under Section 394 IPC and sentenced him to undergo 3 years R.I for offence under Section 394 I.P.C and fine of Rs. 5,000/- and in default of payment of fine the petitioner was further sentenced to undergo S.I for six months. The other accused person- Parwez Khan was acquitted by the learned trial court.

Mr. P.S. Dayal learned counsel for the petitioner has vehemently argued the case and submitted that the recovery which has been done by the prosecution is a small purse which is otherwise easily available in the open market. He further argued that the prosecution has failed to justify that when the petitioner was taken into custody on 03.12.2006, why the T.I.P was conducted on 20.12.2006. He further submitted that the delay in conducting the T.I.P cannot be considered to be legal in the eye of law and the learned trial court has failed to take into consideration this aspect of the case. In support of his argument he has referred a judgment of Hon'ble Supreme Court reported in (1980) 1 Supreme Court Cases 479 (Somappa Vaman Appa Madar and Shankarappa Ravanappa Kaddi versus State of Mysore) is hereunder:

"The learned counsel challenged the identification parade held by PW 31 Taluka Magistrate, as being unreliable. The trial Court was of the view that It cannot be said from the evidence on record that the witnesses had no opportunity to see the accused till they identified them in the identification parade held in the jail. There is no evidence worth the name adduced by the prosecution to show that precautions were taken, and if at all any precaution was taken to see that the witnesses either did not see the accused or they had no opportunity to see them before the identification parade. The learned counsel was justified in his comment that the second accused was arrested a few days earlier and that he was in police custody and that he was produced before the Magistrate for remand and that there is nothing in the panchnama prepared by the Taluka Magistrate to show that either he questioned the accused if he was shown to the witnesses or he himself questioned the witnesses if they had seen the accused. The High Court rejected the evidence regarding identification of A-3. Considering all the circumstances we think much reliance cannot be placed on the identification parade regarding the establishment of the identity of the third accused. But so far as A-1 and A-2 are concerned it is clear that both of them were apprehended and the witnesses had ample opportunity to note their features at that time and identify them. The proceedings in the identification parade discloses that A-2 was identified by most of the eyewitnesses. Because of some defects in proceedings relating to the identification parade, we will not be justified in rejecting the evidences of the witnesses regarding the participation of A-2."

He finally concluded his argument by submitted that in view of the legal lacuna as well as contradiction in the prosecution evidences the impugned orders are liable to be set aside.

Per contra the learned APP fully supported the impugned order and submitted that there is no error in the orders passed by the courts below and re-appreciation of evidences cannot be done in revision.

After hearing both the parties and perusing the evidences on record and keeping in mind the limitation of the revisional jurisdiction, I am not inclined to interfere with the findings of the courts below in convicting the petitioner for the offence committed by him.

Revisional jurisdiction is basically supervisory in nature and may be exercised only when there is a glaring defect in procedure or there is an obvious error on a point of law resulting in a blatant miscarriage of justice.

The Hon'ble Apex Court in the case of State of A.P. Versus Pituhuk Sreeinvanasa Rao reported in (2000) 9 SCC page 537 para 4 held as under:

" We have extracted above the very words of the learned Single Judge as nothing more is needed to highlight the hollowness of the order, for, it was without any reference to the evidence on record or the findings entered by the trial court and the appellate court regarding the evidence. If a revision is to be disposed of by upsetting the concurrent findings of two courts below in the aforesaid session it would amount to abdication of the judicial function of the High Court. We are a little perturbed that it has happened like that in certain other cases disposed of by the learned Single Judge. We make the said observation not with a pleasing mind but we hope that this observation would reach the learned Judge so as to help him to remind himself of the need to give reasons for dissenting from the findings concurrently made by the fact- finding courts. It is redundant to remind that revisional jurisdiction is basically supervisory in nature."

The aforesaid view was again reiterated by the Hon'ble Apex Court in the case of State of Haryana versus Rajmal and Another reported in (2011) 14 SCC 326 are as under:

12."In view of this admitted factual position, this Court cannot accept the reasoning of the High Court in its revisional jurisdiction whereby the High Court found that in the absence of any independent local witness the prosecution case is not worthy of credence. The factual conclusion of the High Court is contrary to the evidence on record.

In state of A.P. v. Pituhuk Sreeinvanasa Rao this Court held that the exercise of the revisional jurisdiction of the High Court in upsetting the concurrent finding of the facts cannot be accepted when it was without any reference to the evidence on record or to the finding entered by the trial court and the appellate court regarding the evidence in view of the fact that revisional jurisdiction is basically supervisory in nature.

It has been also held by this Court in Amar Chand Agarwalla v. Shanti Bose that the revisional jurisdiction of the High Court under Section 439 Cr.P.C is to be exercised, only in an exceptional case, when there is a glaring defect in the procedure or there is a manifest error on a point of law resulting in a flagrant miscarriage of justice."

However, so far as sentence is concerned it is apparent that the petitioner Sirajuddin Ansari has remained in custody for about two years. The case is also pending since 2006 and certainly in the last twelve years the petitioner must have suffered rigors of litigation and also remained in custody for a considerable time. In this way, I find that it is expedient in the interest of justice that the sentence already undergone will suffice for the ends of justice for the alleged offence. Thus, the sentence passed by the learned trial court and concurred by the learned appellate court is hereby modified to the extent that the petitioner is sentenced to undergo for the period already undergone. It appears that he has availed the privilege of bail by this Court and as such the petitioner is discharged from the liability of bail bonds.

With the above modification in sentence only, the aforesaid Cr. Revision Applications is dismissed.

Let the lower court records be sent to the concerned court forthwith.