Dhaneshwar Mahto Vs. State of Jharkhand - Court Judgment

Cr. Revision No. 61 of 2005 --- Against the judgment dated 30.09.2004, passed by the learned Additional District & Sessions Judge, Fast Track Court VI, Hazaribagh in Cr. Appeal No. 309 of 1998. ----- Dhaneshwar Mahto, Son of Prayag Mahto, Resident of Village-Bihari, P.S. Barhi, District-Hazaribagh. ......Petitioner Versus The State of Jharkhand. …….Opposite Party --- For the Petitioner : Mr. Deepak Kumar, Advocate For the State :Mr. Shekhar Sinha, APP ----- PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- 05/10/07/2017 Heard the parties. This application is directed against the judgment dated 30.09.2004, passed by the learned Additional District & Sessions Judge, Fast Track Court VI, Hazaribagh in Cr. Appeal No. 309 of 1998, whereby and whereunder judgment and order of conviction and sentence dated 8.12.1998, passed in Barhi P.S. Case No. 186 of 1993 convicting the petitioner for the offence under section 414 of the Indian penal Code and sentencing him to undergo R.I. for two years and 6/2 months has been affirmed. An FIR was instituted on the allegation that an information was received by the police that petitioner had kept a stolen Moped in his house. Pursuant to the same, house of the petitioner was searched and a Moped was recovered. Petitioner could not produce documents with respect to the Moped. It was disclosed by the petitioner that he has purchased the vehicle from one Raghu Mahto for a sum of Rs.1200/- but the papers were never given to him. After investigation resulted in submission of chargesheet, cognizance was taken by the learned court below for the offence under section 414 of the Indian Penal Code and after framing of charge, trial proceeded. Since the prosecution had been able to establish its case beyond all reasonable doubt, petitioner was convicted for the offence under section 414 of the Indian Penal Code and was sentenced to undergo R.I. for two years six months. Petitioner preferred an appeal being Cr. Appeal No. 309 of 1998, which however was dismissed by the learned Additional District & Sessions Judge, Fast Track Court VI, Hazaribagh on 30.9.2004. -2- It has been submitted by the learned counsel for the petitioner that no offence under section 414 of IPC is made out in view of the fact that there is no theft report of the Moped in question. It has further been submitted that seizure list witnesses having turned hostile the seizure was never proved. It has also been submitted that P.Ws 4 to P.Ws. 8 all are members of the raiding party and their testimony cannot be believed. Learned counsel submits that petitioner was residing in a joint family property along with his parents and brothers and therefore the petitioner cannot be pinpointed to be the person who had kept the said stolen property. Learned counsel has referred to paragraph 5 of the evidence of the Investigating Officer to suggest that never was there any report of theft with respect to Moped in question. Learned counsel submits that informant himself is the Investigating Officer, which is not permissible under the law and that Ext-A, which is the receipt showing purchase of the vehicle was never properly appreciated by the learned court below. Learned A.P.P has opposed the prayer made by the learned counsel for the petitioner. In course of trial, eight witnesses were examined by the prosecution. P.W-1-Dewani Mahto was declared hostile by the prosecution. P.W-2-Phool Chandra Mahto is a seizure list witness, who was also declared hostile by the prosecution. P.W-3-Upendra Thakur has also been declared hostile by the prosecution. P.W-4-Wali Ullah Khan is the informant as well as the Investigating Officer, who has supported the recovery of Moped from the house of the petitioner This witness has also admitted that petitioner does not have any criminal antecedent. He has also stated that petitioner stays in a big house along with his family members which includes his parents as well as brother. P.W-5-Prahalad Paswan is a member of raiding party who had supported the recovery of Moped from the house of the petitioner. Similar is the statement of P.W-6-Anuj Kumar and P.W-7-Hari Narayan Singh as well as P.W-8-Birju Ram, who all are the members of the raiding party. It appears from the oral evidence that P.W-4 to P.W-8 are -3- members of the raiding party who had supported about the raid conducted in the house of the petitioner, which was in his joint possession and from the house, a Hero Majestic Moped was recovered. The Investigating Officer who happens to be the informant as well had sought to collect from various places report with respect to theft of the seized vehicle but no report had come that the said vehicle was a stolen property. Learned counsel for the petitioner has relied on the evidence of the Investigating Officer by submitting that since the subject matter of the case was not proved to be a stolen property, no case under section 414 of IPC is made out against the petitioner. Petitioner in support of his claim that he had purchased the vehicle for which Ext-A has been brought on record but the seller namely Mahesh Prasad was never examined to suggest the said claim. It is indeed difficult to pinpoint as to from where the vehicle was stolen and all concerted efforts were made by the Investigating Officer but he was unsuccessful in locating any report, which would suggest theft of motorcycle. Petitioner had although brought on record Ext-A as well as some other documents but the authenticity and veracity of Ext-A is itself doubt as nothing has been brought on record by the defence to show that the vehicle in question was registered under the M.V. Act. The document also does not prove registration number in the name of so called seller-Mahesh Prasad or in the name of the petitioner. Ext-A thus seems to have been prepared only by way of a defence and its reliability is clearly doubtful. The Investigating Officer has stated that the petitioner was staying in a joint family property but it has been admitted by the petitioner himself that vehicle in question was purchased by some Mahesh Prasad and therefore it is virtually an admission on the part of the petitioner that the vehicle was kept by him. The petitioner having unable to prove the ownership of the vehicle is a sufficient reason to believe that the same was a stolen property. Evidences of the witnesses are mostly confined with respect to recovery of stolen Moped from the house of the petitioner. Although it was strenuously argued by the learned counsel for the petitioner that the seizure list has not been proved but in view of Ext-A, which is the defence of the petitioner, non examination of the seizure list witnesses is hardly of any significance as the recovery of Moped from the house of the petitioner has -4- virtually been admitted by the petitioner himself by bringing Ext-A on record. Such circumstances have rightly been considered by the learned trial court while convicting the petitioner for the offence under section 414 of the Indian Penal Code and sentencing him accordingly. Appellate court also based on the materials available on record affirmed the judgement of conviction passed by the learned trial court. There being no reasons to conclude otherwise, judgement of conviction passed by the learned trial court and affirmed by the learned appellate court is hereby sustained. However, with respect to the sentence, which has been imposed upon the petitioner, it appears that subject matter is a stolen Moped, for which the petitioner is facing rigors of prosecution case since the year 1993. Petitioner has also remained in custody for about four months. Such circumstances definitely entitles the petitioner to reduction in sentence awarded to him. Accordingly, the sentence imposed upon the petitioner is reduced to the period already undergone. This application stands dismissed with the aforesaid modification in sentence. (Rongon Mukhopadhyay,J) Jharkhand High Court, Ranchi Dated 10th July, 2017 Rakesh/NAFR