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2019 Supreme(Pat) 2085
IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI, J.
Cri. Appeal (SJ) No. 532 with 494 of 2016
(17.10.2019)
Janki Mandal (in 532)
Sujit Khaira @ Sujit Kr. Khaira
@ Jagdish Kora (in 494) – Appellants
vs.
State of Bihar – Respondents
(in both)
For the Appellants : Mr. Prabhat Ranjan Singh, (in 532, 494).
For the Respondents: M/s Zeyaul Hoda, (in 532); Bipin Kumar, (in 494).
Headnote:
Indian Penal Code, 1860 – Sections 395/34, 412 and 307/34 – Arms Act, 1959 – Section 27(1-A) – Unlawful Activities (Prevention) Act, 1967 – Section 43 – Bank dacoity and attempt to murder – Common intention – Conviction and sentence – There happens to be no proper allegation attributed against appellants that they fired and so, finding with regard to Sections 307/34 of IPC is not at all found, duly substantiated – Mere fleeing could not be considered to be putting hurdle/obstruction in due discharge of public duty – In likewise manner, there happens to be no conclusive evidence that appellants were members of dacoits who committed dacoity at Bank nor their identification has been as one of members of dacoits – None of Bank officials have been made witness nor any of them has been examined and so, Section 395 of IPC would also not be attracted – So far recovery of money is concerned, again there happens to be no evidence to connect that it happens to be booty – Mere possession of cash would not justify culpability even unexplained unless and until possession is prohibited in eye of law – Possession of money irrespective of quantum is not prohibited even unexplained would be subject to I.T. Act – So far, criminal prosecution is concerned, there must be connectivity – Institution of other case relating thereto did not justify finding of lower court on that score, even under garb of Section 300 of Cr.P.C. as well as Article 20(2) of Constitution of India – Besides, neither there happens to be investigation by Dy.S.P. as provided under Section 43 of Unlawful Activities (Prevention) Act, 1967 nor there happens to be sanction in accordance with Section 45 of Act – However, prosecution has succeeded in substantiating its case beyond all reasonable doubts relating to Section 25(1-A) of Arms Act and for that, finding so recorded by lower court concluded and affirmed – In likewise manner, sentence so inflicted by lower court is also duly approved as possession of AK-47 rifle as well as carbine speak a lot about culpability of appellants – Appeals partly allowed. (Paras 23 to 27)
Aditya Kumar Trivedi, J. – Criminal Appeal (SJ) No.494 of 2016 wherein Sujit Khaira @ Sujit Kumar Khaira @ Jagdish Kora is the appellant and Criminal Appeal (SJ) No.532 of 2016 of 2016 wherein Janki Mandal is the appellant have been heard analogously and are being disposed of by a common judgment as, both the appeals arise out of common judgment of conviction and order of sentence.
2. Both the appellants namely, Janki Mandal as well as Sujit Khaira @ Sujit Kumar Khaira @ Jagdish Kora have been found guilty for an offence punishable under Section 395/34 of the IPC and they each has been sentenced to undergo R.I. for 10 years as well as to pay fine appertaining to Rs.20,000/- and in default thereof to undergo S.I. for one year additionally, under Section 412 of the IPC and each one has been sentenced to undergo R.I. for 10 years as well as to pay fine appertaining to Rs. 20,000/- and in default thereof to undergo S.I. for one year additionally, under Section 307/34 of the IPC and each one has been sentenced to undergo R.I. for 10 years as well as fine of Rs.10,000/- and in default thereof to undergo S.I. for one year additionally, under section 353/34 of the IPC and each one has been sentenced to undergo R.I. for two years and under Section 25(1-A) of the Arms Act and each one has been sentenced to undergo R.I. for 10 years as well as to pay fine appertaining to Rs. 20,000/- and in default thereof to undergo S.I. for one year additionally, with a further direction that the sentences shall run concurrently vide judgment of conviction dated 30.4.2016 and the order of sentence dated 2.5.2016 passed by the learned Sessions Judge, Jamui in Sessions Trial No.457 of 2013/U.A.P). Case No.53 of 2015 arising out of Chandramandih P.S. Case No.25 of 2013.
3. Before coming to main track, certain salient feature of the present scenario appears necessary to be discussed. While the informant along with other police personnel, as directed by the S.D.P.O., Jhajha had gone to watch over the activity of the members of the outfit organization (Maowadi) they were informed regarding commission of dacoity at the State Bank of India, Nawadih Silphari Branch whereupon, the informant Hare Ram Sah informed the Police Station with a request to rush along with additional police force while he along with his team proceeded towards Nawadih Silphari. During midst of way, they met confrontation with the criminals, who were returning on five motorcycles after commission of dacoity at the State Bank of India, Nawadih Silphari Branch and during course thereof, there was cross firing and during course of hot chase, these two appellants were apprehended while the remaining managed to escape.
It is further evident that on the written report of the Manager of the State Bank of India, namely, Praveen Kumar Chandramandih P.S. Case No. 24 of 2013 was registered against unknown wherein only these two appellants got remanded, chargesheeted, prosecuted and convicted under Sessions Trial No.449 of 2013 and two separate appeals on their behalf are pending which are also going to be heard soon after the judgment. It is needless to say that after arrest as well as recovery of prohibited fire arms, ammunition, wireless set, cash, on the self statement of a police official namely, Hare Ram Shah this case bearing Chandramandih P.S. Case No. 25 of 2013 has been registered wherein both the appellants have been charge-sheeted keeping investigation pending against others, faced trial, met with conviction and these two appeals arise therefor.
As submitted at the end of the learned counsel for the appellants, during the course of investigation an effort was taken at the end of the appellants to have both the cases amalgamated and for that, they have also moved up to this Court (High Court) but in vain and that happens to be the origin of sailing of two cases independently with independent conclusion and, the chapter is found finally closed.
The prosecution case which originates on the self st
