JUDGMENT
Surinder Sarup, J.
1. The petitioner was convicted under Section 457, I.P.C. as also under Section 380 I.P.C. by the Court of Sri R.B. Rai, Judicial Magistrate, Ist Class, Giridih. He was sentenced to undergo rigorous imprisonment for 3 years under Section 457 I.P.C. and one year rigorous imprisonment under Section 380 I.P.C.
2. He then filed an appeal against his conviction and sentence aforementioned, which was heard and decided by Smt. Shakuntala Sinha, 2nd Addl. Sessions Judge, Giridih. While maintaining the conviction of the petitioner by the trial court for the aforesaid offences, the learned lower appellate court, modified the sentence under Section 457, I.P.C. by reducing it from three years to one year. Against the said order, the petitioner has come up in revision before this Court.
3. The prosecution case against the petitioner is that between, the night of 15th and 16th June, 1974, at about 11 p.m., while the informant, Jodha Mahto was sleeping in his ‘Aangan’, he heard some sound and got up. He saw that some thieves were removing his paddy. He tried to catch the thieves, but two, out of three of them, succeeded in running away and one of them was caught hold by the informant. He was identified in the light of the lantern and turned out to be the petitioner, Nunuman Kahar. The informant raised ‘Hulla’ and on hearing the same other persons also arrived there. The informant along with his son went to the police station and lodged the F.I.R. After registration of the case, the petitioner was alleged to have been arrested by the police next morning from the house of the informant.
4. There are some glaring facts in this case, which meet the eye. The occurrence is alleged to have taken place in the year 1974. Thereafter the trial remained pending for five years before it concluded on 18th December, 1979, by the judgment of conviction recorded by the learned Magistrate on the same day. The appeal was preferred before the learned lower appellate court in the beginning of 1980, which remained pending for about 7 years, before it was decided on 20m August, 1987. Thereafter this revision was filed in the same year before this Court and has ultimately come up for final hearing in the year 1995. In other words, the case dragged on for about 2.1 years, despite the fact that the alleged offence involving the petitioner was theft of paddy of the informant. This is therefore, a classic case of justice delayed and justice denied.
5. The matter does not rest there. It is apparent from the judgment of the lower appellate court that neither the counsel for the appellant nor the public prosecutor on behalf of the State were present before the learned 2nd Addl. Sessions Judge, Giridih, when she recorded the judgment against the petitioner, maintaining his conviction and modifying the sentence under Section 457, I.P.C. as aforementioned.
6. Learned Counsel for the petitioner has cited 1986, P.L.J.R. 52 (S.C.). That was a case where the criminal appeal was decidded confirming the order of conviction and sentence without hearing the appellant of his counsel and the Hon’ble Supreme Court set aside that order by holding that in criminal matters convicts must be heard before their matters are decided on merits i.e., after hearing the appellant or his counsel and where the counsel for the appellant is not present, the Court should appoint a counsel on State costs to argue on behalf of the appellant. In view of the law Laid down by the Supreme Court, the judgment of the lower appellate court is illegal. Normally, the case should have been remanded to the lower appellate court to decide the appeal of the petitioner in accordance with law as laid down in 1986 PLJR 52 (SC) (Supra), but considering the fact that the case is hanging fire for about 21 years, I have heard the learned Counsel for the petitioner on merits.
7. He has referred to the statement of the informant before the trial court, as PW 6, where specific question was put to him to the effect that when the I.O. was taken by the informant to the house of the petitioner, whether the petitioner was present in his house or not. The reply of the informant to this question was that the petitioner was present in his house. This belies the prosecution version that the petitioner was arrested from the house of the informant, where he was alleged to have been kept for the whole night after his apprehension by the informant and others, before the police arrived in the morning. The son of the informant, PW 3, Ishwari Mahto has started in paragraph 4 of his evidence before the trial court, that he had gone along with his father to the police station at 2.30 a.m. in the night. PW 3 has further stated in paragraph 4 that at that very time their statements were recorded. On the other hand, the prosecution case is that the F.I.R. was recorded in the morning of 16th June, 1974. In this connection the evidence of the informant in paragraph 8 before the trial court is to the effect that at the time when the F.I.R. was recorded the sun had come out. In other words according to him, when he went to the police station, it was broad day light on 16th June, 1974. He has further stated that at that time he had given his statement before the police. In these circumstances, the learned Counsel for the petitioner is right in-submitting that their being two versions regarding the time of recording of the F.I.R., it cannot be ruled out that the original F.I.R. was substituted by another one and these, circumstances vitiates the prosecution case as well as the conviction of the petitioner. I find force in this submission.
8. As a result of the above discussion, I find that the prosecution case against the petitioner has not been proved beyond all reasonable doubts and giving him benefit of the same, he is entitled to be acquitted.
9. For the reasons recorded above, this revision is allowed and the judgment of the lower appellate court is set aside being illegal in view of the law Laid down by the Supreme Court in 1986 PLJR 52 (S.C.) (supra). The order of conviction and sentence passed against the petitioner are set aside and he is hereby acquitted of the charges and is discharged from the liability of the bail bonds.
