Allowed
Akhilesh Kumar v. State of Chhattisgarh
Chhattisgarh HCCRR/194/2012
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from the order text
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NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR…
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NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR…
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2024:CGHC:41481
NAFR
Digitally signed by PRAKASH KUMAR Date: 2024.10.23 17:09:46 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 194 of 2012
... Applicant
versus
... Respondent
For Applicant : Mr. Shrawan Agrawal, Advocate For State : Ms. M. Asha, Panel Lawyer
Hon’ble Shri Justice Radhakishan Agrawal,
Judgment on Board
(21/10/2024)
1. The present appeal is against the judgment dated 29.02.2012 passed by the Additional Sessions Judge, Dhamtari, District - Dhamtari, Chhattisgarh in Criminal Appeal No.03/2012 arising out of judgment of conviction and sentence dated 06.01.2012 passed by Judicial Magistrate First Class, Dhamtari (C.G.) in Criminal Case No.172/2011 wherein the applicant has been convicted under Section 420 (two counts) of the Indian Penal Code, 1860 (in short ‘the IPC’) and sentenced him rigorous imprisonment for one year each with fine of
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Rs.500/- each, in default of payment of fine, 20 days additional rigorous imprisonment. Both the sentences were directed to run concurrently. The learned Appellate Court affirmed the judgment of conviction and sentence. Hence, this revision.
2. Case of the prosecution, in brief, is that complainant Keshav Kumar (PW-1), Santosh Kumar (PW-2) and applicant-accused were working as a daily wages worker in Mines and Mineral Department, Dhamtari as a Barrier Men ( nakedar/peon). It is alleged on that on 23.10.2008, the applicant met with Keshav Kumar and Santosh Kumar and allured them for providing permanent job as he is having relation with officers of the department. On the assurance of permanent job, Keshav Kumar and Santosh Kumar had given Rs.1,50,000/- each (total Rs.3,00,000/-) to the applicant. When the complainant did not get the job, then on 10.05.2011 lodged an F.I.R. (Ex.P-1) against the applicant-accused. On 10.05.2011 Nazri Naksha vide Ex.P-2 was prepared and Arrest Memo vide Ex.P-3 was issued against the applicant. During investigation, statement of the witnesses were recorded under Section 161 of Cr.P.C. and charge-sheet was filed before the competent Court. The applicant abjured the charges and pleaded non-guilty.
3. The prosecution in order to bring home the offence, examined as many as 6 witnesses in support of its case and exhibited 3 documents connecting the accused to the crime in question. However, in defence, accused has examined three witnesses, but exhibited 8 documents i.e. Exs.D-1 to D-8.
4. Learned trial Court, after appreciation of oral and documentary evidence, convicted and sentenced the applicant as mentioned in
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paragraph 1 of this judgment. The said judgment was challenged by the applicant in criminal appeal, however, the Appellate Court vide judgment dated 29.02.2012 affirmed the conviction and sentence of the applicant. Hence, this revision.
5. Learned counsel appearing for applicant submits that the applicant is innocent and has wrongly been convicted by the learned trial Court. It has been alleged by the prosecution that the applicant is said to have obtained total Rs.3,00,000/- but prosecution has failed to prove the source of said money. He further submits that there is delay of about 2 ½ years in lodging the FIR against the applicant and no satisfactory explanation has been given in this regard by the prosecution. It has further been contended that there is no documentary evidence available on record regarding selling of cycle shop by complainant Keshav (PW-1) and mortgaging of land by Santosh (PW-2) and the same has not been proved by the prosecution. Further, the applicant himself lodged a complaint on 30.03.2011 against the complainant in Khaniz Department and enquiry has been initiated as per Exs.D1 to D8 wherein the complainant during enquiry has not stated anything with respect to giving money to the applicant for providing permanent job. Further, the investigating officer S.L. Soni (PW-06) in his crossexamination has categorically accepted that he has not examined about the cycle shop and the mortgaged land, further, he has not enquired the matter in respect of inducement of money. There are omissions and contradictions in the statements of the witnesses. He further contended that even if the allegations against the applicant is
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taken at the face value, the basic ingredients of Section 420 of the IPC is not made out against him. Thus, the appeal is liable to be allowed.
6. Per contra, learned State counsel opposed the submission made by learned counsel for the applicant and supported the judgment of conviction and sentence. She further submitted that the learned trial Court as well as the Appellate Court, after proper appreciation of the evidence available on record, have rightly convicted and sentenced the applicant. Hence, the revision deserves to be dismissed.
7. I have heard learned counsel for the parties and went through the records with utmost circumspection.
8. In order to deal with the contentions made by learned counsel for the parties, the statement of the witnesses and other evidence has to be examined thoroughly. The complainant Keshav (PW-1) in his statement has stated that he along with his friend Santosh Kumar (PW-2) and the applicant are temporarily posted as Barrier Men in the Mines and Mineral Department, Dhamtari. Prior to one month of 23.10.2008, the applicant told them that he would make their job permanent if they would pay him Rs.1,50,000/- each. Upon which Keshav (PW-1) and Santosh Kumar (PW-2) agreed to pay the amount to the applicant. He further stated that he sold his cycle shop with all the accessories to one Banshilal Satnami (PW-3) for Rs.1,50,000/- and Santosh sold his half acre land to one Dhanesh Dewangan (PW-4) for Rs.1,50,000/-. Thereafter, they both have given the said amount to the applicant on 23.10.2008 at Ambedkar Chowk. This witness in his cross-examination has admitted the fact that he along with his friend Santosh and applicant were temporarily posted at Mines and Mineral department.
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He further admitted that he did not remember the date on which the applicant had told them that he would make their jobs permanent. He would further admitted that when their jobs were not made permanent, they did not make any complaint nor he has given any notice to the applicant. He further admitted that the cycle shop which he had sold to Banshilal (PW-3) was run by his brother Narendra and not by him. His brother used to purchase the goods items for cycle shop. He was also not able to give description of the goods which are stored in the cycle shop. He further admitted that the agreement to sell the cycle shop was made orally. Thus, on careful perusal of the statement of complainant/Keshav (PW-1), it appears that it is not proved beyond doubt that he was having the cycle shop and also there is no documentary evidence regarding selling of the shop to Banshilal (PW3).
9. Banshilal (PW-3) in his statement has stated that he has purchased the cycle shop from Keshav (PW-1) for Rs.1,50,000/-. This witness in his cross-examination has admitted that though the said cycle shop was in the name of Keshav, but there is no documentary evidence available with him. He further admitted that he had not registered the cycle shop in the Gram Panchayat and had not paid any market tax. With regard to the arrangement of the money, he had admitted that he has arranged Rs.1,20,000/- from selling of paddy and Rs.30,000/- from his in-laws but there is no documentary evidence available in this regard nor any witness were examined in this regard.
10. Santosh Kumar (PW-2) in his statement has deposed that he has also given Rs.1,50,000/- to the applicant to get the job permanent and for
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arrangement of said amount, he has mortgaged his land as security with Dhanesh Dewangan (PW-4) who agreed to give Rs.1,50,000/- to him. It is pertinent to mention here that there is no agreement initiated between Santosh (PW-2) and Dhanesh (PW-4) regarding selling of said land. Thus, prosecution has failed to produced documentary evidence in this regard. Further, Dhanesh Dewangan (PW-4) in his cross-examination has admitted the fact that he do not work as money lender, he has not given loan to anyone and has not mortgaged anyone’s land. He categorically admitted the fact that he has not given loan to Dhenuram (PW-5) and Santosh (PW-2).
11. Dhenuram (PW-5) who is the father of Santosh (PW-2) in his statement has deposed that for arrangement of money, he approached Dhanesh (PW-4) and told him to mortgage his land as security and in lieu of that told him to give Rs.1,50,000/-. On the contrary, Danesh has admitted that he has not given any money to Dhenuram or Santosh.
12. The Investigating Officer, S.L. Soni (PW-6), Sub-Inspector, in his crossexamination has admitted that he has not enquired about the land which was mortgaged by Dhenuram (PW-5) before Dhanesh (PW-4). He further admitted that he had not gone to village nor taken any statement regarding the selling and purchasing of cycle shop. Moreover, this witnesses admitted that he had not recorded the memorandum statement of the accused nor any recovery of money has been made from the accused. Lastly, he has admitted that he has not enquired regarding the source of money.
13. Sewakram Sinha (DW-2), Assistant Committee Manager, Village Tarsiwan, has deposed that the work of the institution is to purchase
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paddy from farmers and give them agricultural loans, fertilizers, seeds etc. He further stated that he has brought original register of year 2008 and after checking the same, he has deposed that between 20.10.2008 to 23.10.2008, no paddy has been bought by the institution from a person naming Dhanesh Dewangan (PW-4).
14. Rajkumar Sahani (DW-3) in his statement has deposed that the cycle shop of Keshav Kumar (PW-1) is situated in front of his house and for the last five six months, the shop is closed. He further admitted that he is not aware about the selling of the cycle shop. He lastly deposed that when the cycle shop was opened, there were goods items in the shop amounting to Rs.2,000/- Rs.4,000/-.
15. Shri L.K. Yadav (DW-1) in his statement has deposed that the applicant-accused Akhilesh Netam and the complainant Keshav both were temporarily posted in his department as Barrier Men. He further deposed that the accused Akhilesh has made a written complaint against the complainant Keshav (PW-1) which is exhibited as D1-C dated 30.03.2011. On the basis of the said complaint, vide Ex.D2-C dated 30.04.2011, the Collector ordered to conduct inquiry. During inquiry, he took the statement of accused Akhilesh Kumar, Ravi Netam, Vinod Rao, Samaru Ram Yadav and complainant Keshav. In the investigation, he found that complainant Keshav had abused and argued with the accused Akhilesh during work and the investigation report given by him is Ex.D3-C. This witness in his cross-examination has categorically admitted the fact that he was not aware that the accused Akhilesh has taken any money from the complainant Keshav (PW-1) for getting his job permanent.
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16. From perusal of the above evidence, it is quite vivid that there are material contradictions and omissions in the statements of the witnesses. Further, the prosecution has failed to prove the source of money of the complainant Keshav (PW-1), Santosh (PW-2), Dhanesh (PW-4) and other witnesses. The Investigating Officer, S.L. Soni (PW-6) has also not recorded the memorandum statement of the accused, no recovery of money has been made from the accused and he has also not enquired regarding the source of money. Moreover, the applicant has made complaint (Ex.D1-C) dated 30.03.2011 against the complainant Keshav (PW-1) and subsequently, an order was passed by the Collector for enquiry, and in the enquiry report (Ex.D3-C) and in the statement of the complainant Keshav (Ex.D8-C) dated 05.05.2011, no substance is available regarding the demand of money made by the accused from the complainant for making his job permanent. Thereafter, on 10.05.2011, FIR (Ex.P-1) was lodged by the complainant Keshav. Further, there is delay of about 2 ½ years in lodging the FIR and no satisfactory explanation has been given by prosecution, further, the prosecution also failed to prove as to why just after the date of complaint made by the applicant against the complainant, the FIR was lodged by the complainant. It is pertinent to mention here that the burden lies upon the prosecution to prove its case by adducing cogent and clinching evidence, but the prosecution has failed to do so. In that view of the matter, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the Court of JMFC as well as Appellate Court were not justified in convicting and sentencing the applicant for the aforesaid offence, as such, the
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applicant is entitled to be acquitted of the charge under Section 420 of the IPC on the basis of benefit of doubt.
17. For the foregoing reasons, the present CRR is allowed. The impugned judgment of conviction and order of sentence is liable to be and are hereby set aside. The applicant is acquitted of the charge framed against him by extending him the benefit of doubt.
18. It is reported that the applicant is on bail. His bail bonds are not discharged at this stage and the same shall remain operative for a further period of six months in light of Section 437-A of the Cr.P.C.
19. Records of the Court below be sent back along with a copy of this order forthwith for information and necessary compliance.
Sd/-
(Radhakishan Agrawal) Judge
Prakash
1 issue framed by the court
Whether the prosecution has proved its case beyond reasonable doubt in a charge under Section 420 IPC.
1 provisions across 1 enactments
Akhilesh Kumar
State of Chhattisgarh
Radhakishan Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court