IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.370 of 2011 VIJAY KUMAR, SON OF LATE HIRALAL MAHTO, RESIDENT OF VILLAGE TEENLANTEN CHOWK, BETTIAH, P.S. BETTIAH(T) DISTRICT WEST CHAMPARAN …PETITIONER Versus THE STATE OF BIHAR …OPPOSITE PARTY For the petitioner :Mr. Bimlesh Kumar Pandey For the State :Dr. Mayanand Jha, APP ----------- 02. 25.03.2011 Heard both sides. Petitioner is aggrieved by the order dated 11.01.2011, passed by learned Addl. Sessions Judge, F.T.C. IVth, Bettiah, West Champaran on Cr. Appeal No. 80/2010, whereby the conviction and sentence dated 20.08.2010 recorded by learned Judicial Magistrate, 1st Class Bettiah in G.R. No. 2720/09/T.R.No.1217/2010 has been affirmed. Petitioner along with another accused was tried for an offence punishable under sections 392/411 IPC. As per prosecution case, one police personnel while returning back home from railway station was robbed of his belongings at the dead of night. Immediately information was given to the police patrolling party on duty. A chase was offered whereafter two accused persons including the petitioner are said to have been arrested. On search one Khukhari (dagger) and looted cash and other articles were recovered from the possession of co- accused Rustam Ali. From the possession of the petitioner one Khukhari(dagger) is said to have been recovered. Accordingly, after conclusion of investigation charge-sheet 2 was submitted and the petitioner along with aforesaid Rustam Ali was put on trial. At the trial, 09 P.Ws. were examined on behalf of prosecution, besides exhibiting diverse documents in order to prove the prosecution case. It appears that two of the witnesses, namely, P.Ws. 7 and 9 did not support the prosecution case. Learned trial court appraised the materials/evidence on record and found that charges under section 392/411 IPC have been proved. Relevant consideration in this regard has been made in paragraph 17 of the trial court judgment. Accordingly, petitioner was sentenced to undergo R.I. for three years with fine having default clause under each head/count. Aggrieved by the aforesaid order, petitioner preferred appeal being Cr. Appeal No. 80/2010. Another co- convict also preferred appeal vide Cr. Appeal No. 72/2010. Both the appeals were heard and disposed of by the impugned order. Learned counsel for the petitioner submits that based on materials on record charge under section 411 IPC was redundant. It is next submitted that having regard to the facts appearing from records, it would appear that apart from one Khukhari(dagger) which is not stolen article/property, no looted article(s) was recovered from his possession much less conscious possession. Accordingly, based on evidence on record conviction u/s 411 could not be sustained. It is next submitted that having regard to the fact that he is the first convict and that at the time of recording conviction by the 3 trial court, he was assessed only 24 years of age, he deserves a lenient view so far as quantum of sentence is concerned Learned APP, on the other hand supported the impugned judgment. It is submitted that both the courts below have appreciated the evidence/materials on record and found that evidence were adequate to convict the petitioner under section 392 IPC. As about conviction under section 411 IPC is concerned, it is submitted that even if the conviction under section 411 IPC is quashed, the petitioner does not stand to any benefit. The trial court has sentenced him to undergo R.I. for three years with fine having default clause under each count. It is not the prosecution case that any stolen article was recovered from the physical possession of the petitioner. Khukhari is not the stolen article. There is consistent evidence on record that stolen article /cash was/were recovered from the possession of co-convict, namely, Rustam Ali. Having heard the parties and after going through materials on record, this Court is of the view that conviction of the petitioner under section 411 IPC is not sustainable in law. Accordingly that part of the impugned judgment(s) is quashed and set aside. It appears that petitioner had to undergo rigours of trial for over one year. Considering all these facts appearing from records, this Court is satisfied that a lessor sentence under section 392 IPC would subserve the cause of justice. Accordingly, present application is 4 disposed of by the following order: Part of the impugned judgment(s) recorded by learned trial court and affirmed by learned lower appellate court, is set aside wherein the petitioner was held guilty under section 411 IPC. The sentence awarded under section 392 IPC is reduced to R.I. for two and a half years. Other part(s)/condition(s) of sentence shall remain untouched/unaltered. hr ( Kishore K. Mandal )