- (1.) BY the Court. - This Criminal Revision is directed against the order dated 4.10.2010 recorded by the Additional Sessions Judge -I -cum Special Judge. C.B.I.. Dhanbad in Criminal Appeal No. 103 of 2009 by which the judgment of conviction and order of sentence recorded against the petitioners herein in R.C. Case No.5(S)/94. corresponding to T.R. No. 1084 of 2009 was affirmed and the appeal was dismissed.
(2.) THE petitioners were convicted under Section 120 -B read with 380 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5.000/ - on each count with default stipulation. Their further conviction under Section 380. I.P.C. with similar quantum of punishment and fine was also upheld in appeal. The prosecution story in short was that in the night intervening 4/5.3.1993 at about 3.30 a.m. when the informant Ram Pukar Singh. Sub -Inspector of Police posted at Haria Police Station was on night patrol on his motorcycle with A.S.I. Ajit Kumar as pillion near Basanti More he received confidential information that huge quantity of steel was to be illegally removed from Bokaro Steel Plant with the connivance of the Management of the B.S.L. and the personnel of the C.I.S.F. In the meantime other witnesses Ram Bijay Sao and Isharul Haque Khan. the members of the State Armed Force came to him. All the four proceeded towards Gate No.3 of the Bokaro Steel Limited. It is further stated that when they reached Mahuar More the villagers met them on the way and confirmed the information. At about 4.40 a.m. they witnessed some trucks loaded with some articles coming from the Gate No.3 of the Bokaro Steel Limited which were intercepted by the informant but the drivers of the trucks jumped and escaped. On verification it was found that the Truck No. BRY -5672 was carrying stolen steel slab and that similarly stolen steel slabs were also found in Truck No.BHJ -8601. BRN -7539 and OSC -8916. All the four trucks carrying stolen steel slabs were seized. The informant presumed that the heavy steel slabs were loaded on the respective truck through powerful crane and such crane was available only with the B.S.L. -Management and therefore he had reason to believe the complicity of the Management of the B.S.L. in such illegal act. It was further alleged that as per order of D.I.G. CISF posted in the B.S.L. both the gates of the Bokaro Steel Limited (BSL.) used to be sealed at about 9.30 p.m. which used to be opened at 5.00 a.m., in the following morning therefore it was suspected that the seized steel slabs might have been loaded in the trucks inside the premises of B.S.L. with the connivance of the C.I.S.F. personnel who were deputed on the gates as guards. The informant admitted that about 43 tonnes of steel valued at Rs. 3.00.000/ - (Three lakh) belonging to B.S.L. were being carried illegally after committing theft from the B.S.L. premises. On the basis of the written report of the informant. Harla P S Case No. 22 of 1993 was registered against 19 accused persons. It is relevant to mention that charge -sheet was submitted by the State Police after investigation of the case which was superseded by subsequent charge -sheet which was filed under Section 173 of the Code of Criminal Procedure by the C.B.I. before the S.D.J.M. -cum -Special Judicial Magistrate. Dhanbad wherein cognizance of the offence was taken under Section 120 -B read with Sections 380, 411 and 457 of the Indian Penal Code against different sets of accused persons. During trial 25 prosecutions witnesses were examined. Besides the prosecution proved several documents including the seizure lists and the material exhibits. After trial the S.D.J.M. -cum -Special Judicial Magistrate CBI observed that the prosecution failed to establish the charge under Section 120B read with Section 380 of the Indian Penal Code but there were ample materials for the said charge against the petitioners Khursheed Parvez Siddiqui, Mulkraj Singh and Kalpadrum Apta who were accordingly convicted under Section 120 - B read with Section 380 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5.000/ - with default -stipulation. Each of them was further convicted under Section 380 of the Indian Penal Code with the similar quantum of sentence and fine. The petitioners then preferred Criminal Appeal No. 104 of 2009 before the learned Additional Sessions Judge -I -cum -Special Judge. CBI which was dismissed.
(3.) LEARNED senior counsel Mr. M.K. Dey assailing the judgment impugned recorded by the Additional Sessions Judge -I -cum -Special Judge. CBI in Criminal Appeal No. 104 of 2009 submitted with reference to paragraph No.9 of the Judgment that though the Appellate Court observed that there was no direct and positive evidence showing physical presence of the appellants (petitioners) at the time of occurrence and commission of any overt act and that not a single witness claimed having seen the occurrence however the learned Appellate Court relied upon the statement of the hostile witnesses viz. P.W. 17 and P.W. 21 and upheld the conviction of the petitioners on speculation withe ut any positive evidence relying upon the statement of P.W. 17 Ekbal Singh recorded under Section 161 of the Code of Criminal Procedure before the Investigating Officer during investigation.;