Patna High Court
Sheo Balak Singh & Anr vs State Of Bihar on 5 March, 2013
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court CR. APP (SJ) No.175 of 2001 dt.28-02-2013 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.175 of 2001
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1. Sheo Balak Singh, S/O-Late Dwarpalik Singh of village Simri, P.S.- Palunawan
District-East Champaran
2. Chitranjan Prasad, S/O-Late Bhup Narayan Prasad of village Kumaha Visanpur
P.S.-Sitamarhi, District-Sitamarhi
(Accused).... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 196 of 2001
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Naiyar Alam, S/O-Late Syed Kamrool Alam of Amalapatti, P.S.-Motihari (T)
District-East Champaran
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 208 of 2001
===========================================================
Dr. Janardan Narayan Prasad, S/O-Late Babu Jagat Narayan Prasad, resident of
Madho Behari Lane, Salimpur (Chapra) P.S.-Town Thana, District-Saran
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
===========================================================
Appearance :
(For the Appellant/s : Mr. Ansul (Advocate)
For the Vigilance : Mr. Ramakant Sharma (Sr. Advocate)
For the State : Smt. Abha Singh (A.P.P.)
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
Date: 05 -03-2013
CAV JUDGMENT
1. All the above named four appellants were convicted
by Sri Jitendra Mohan Sharma, Special Judge, (Vigilance) North
Patna High Court CR. APP (SJ) No.175 of 2001 dt.28-02-2013 2
Bihar, Patna in Special Case No. 25 of 1989 for the offences
punishable under Sections 120 B, 420, 467/34, 468/34 of the Indian
Penal Code and Section 5(1) (d) read with Section 5 (2) of Prevention
of Corruption Act, 1947 and sentenced them to undergo rigorous
imprisonment for one year under Section 120 B of the Indian Penal
Code, to undergo rigorous imprisonment for one year under Section
420 of the Indian Penal Code, to undergo rigorous imprisonment for
one year under Section 467/34 of the Indian Penal Code, to undergo
rigorous imprisonment for one year under Section 468/34 of the
Indian Penal Code and to undergo rigorous imprisonment for one year
under Section 5(1) (d) read with Section 5(2) of Prevention of
Corruption Act, 1947 and furthermore, all the appellants were also
fined of rupees five hundred each for the offence punishable under
Section 5(1) (d) read with Section 5(2) of Prevention of Corruption
Act, 1947 and in default of payment of fine, they were ordered to
undergo rigorous imprisonment for one month by the impugned
judgment of conviction and sentence order dated 25.05.2001.
However, all the sentences were ordered to be run concurrently. Since
all the aforesaid appeals have arisen out of the aforesaid common
judgment of conviction and sentence order, all the above stated
criminal appeals were heard together and a common judgment is
being passed in all the above stated criminal appeals.
Patna High Court CR. APP (SJ) No.175 of 2001 dt.28-02-2013 3
2. The brief fact giving rise to file these criminal
appeals is that P.W.8, Rameshwar Nath Mishra, the Police Inspector,
Cabinet (Vigilance Department Investigation Bureau), Patna gave
written report to officer in charge of Cabinet (Vigilance) Department,
Police Station, Bihar, Patna on 11.10.1982 stating therein that
preliminary enquiry against appellant Dr. Janardan Narayan Prasad,
the then in charge of Medical Officer, State Hospital, Raxaul, was
conducted and prima facie it came to light that he, in collusion with
rest appellants, misappropriated government money amounting to Rs.
530/- after showing the same as distributed amongst 19 patients and
15 motivators in vasectomy operations which were actually not
performed and the amount was distributed amongst them after forging
the documents. He further stated in his written report that the thumb
impressions of patients and motivators were examined by the expert
and thumb impressions of 19 patients and 15 motivators were found
similar.
3. On the basis of aforesaid written report, formal first
information report for the offences punishable under Sections 409,
420, 467, 468, 471, 120 B of the Indian Penal Code and 5(2)/5(1) (d)
of Prevention of Corruption Act, 1947 was prepared against the
appellants. The matter was investigated and after completion of
investigation, charge sheet for the aforesaid offences was submitted
Patna High Court CR. APP (SJ) No.175 of 2001 dt.28-02-2013 4
against the appellants. The cognizance was taken in usual way and all
the appellants were put on trial and accordingly, appellant, Dr.
Janardan Narayan Prasad was, separately, charged for the offences
punishable under Sections 409, 465, 471 of the Indian Penal Code and
5(2) of Prevention of Corruption Act, 1947 whereas rest appellants
along with appellant Dr. Janardan Narayan Prasad were jointly
charged for the offences punishable under Sections 467/34, 468/34,
120 B of the Indian Penal Code and section 5(1) (d) read with Section
5(2) of Prevention of Corruption Act.
4. In course of trial, altogether, ten prosecution
witnesses were examined and besides the oral evidence, prosecution
also got exhibited signature of P.W.2 on seizure list as Exhibit-1,
signature of P.W.7 on seizure list as Exhibit 1/1, sanction orders as
Exhibit-2 series, verification report of P.W.8 as Exhibit-3 series,
entries in vasectomy register as Exhibit-4 series, expert report of
Director Finger Print, CID, Bihar, Patna as Exhibit-5 and formal first
information report as Exhibit-6. The statements of appellants were
recorded under Section 313 of the Cr.P.C. in which they denied the
prosecution story. Two defence witnesses were also examined on
behalf of the appellants.
5. Learned trial court having relied upon the testimony
of P.W.8 coupled with Exhibit-3, Exhibit-4 series, Exhibits 5 and 6
Patna High Court CR. APP (SJ) No.175 of 2001 dt.28-02-2013 5
convicted and sentenced the appellants in the manner as stated above.
6. Learned counsel appearing for the appellants assailed
the impugned judgment of conviction and sentence order arguing that
the learned trial court passed the impugned judgment of conviction
and sentence order on the basis of surmises and conjectures
particularly, in the circumstance when P.W.8 admitted in his
deposition that he had not made any enquiry from the patients and
motivators whose name appeared in vasectomy acquaintance roll. He
further submitted that verification reports of P.W.8 (Exhibit-3 series)
are based on report of finger print expert and the finger print expert
based his report on the basis of photographs of thumb impressions
supplied to him but the aforesaid finger print expert was not examined
by the prosecution and similarly, the photographer, who had taken the
photographs of thumb impressions, was also not examined nor the
negatives of the aforesaid photographs of thumb impressions were
produced before the trial court and, therefore, the report of finger print
expert is not admissible in evidence.
7. On the other hand, learned Additional Public
Prosecutor supported the impugned judgment of conviction and
sentence order submitting that Exhibit-4 series as well as Exhibit-5
clearly established this fact that forged thumb impressions were made
on vasectomy acquaintance roll and on the basis of aforesaid forged
Patna High Court CR. APP (SJ) No.175 of 2001 dt.28-02-2013 6
thumb impressions money was withdrawn.
8. As I have already sated that, altogether, ten
prosecution witnesses were examined, out of whom, P.W.2 is a
witness on seizure list whereas P.W.4 has been tendered by the
prosecution. Similarly, P.W.5 proved the signatures on sanction order
whereas P.W.6 is a typist who had typed sanction order.
9. P.W.1, Yogendra Jha was posted as sanitary inspector
at State Hospital, Raxaul at the relevant time. He stated that after
vasectomy operation, the appellant, Chitranjan Prasad used to
distribute the amount on the basis of identification made by the
appellant, Janardan Narayan Prasad.
10. P.W.7 stated that on 12.09.1983 he was posted as
Civil Surgeon, Motihari and on that very date the officials of vigilance
department had seized some documents from his office.
11. P.W.8 is the informant of this case. This witness
stated that on 24.05.1976, on the basis of complaint of Dr. P.D. Sinha
vigilance department directed him to enquire into the aforesaid
complaint and after making enquiry he submitted his enquiry reports.
He further stated that he seized two registers from Raxaul State
Dispensary. He further stated that he sent thumb impressions of 114
persons out of those registers to finger print expert of C.I.D, State
Government and he proved the enlarged photographs of left thumb
Patna High Court CR. APP (SJ) No.175 of 2001 dt.28-02-2013 7
impressions as material Exhibit-1. This witness also proved the report
of finger print expert as Exhibit-5. He further stated that he submitted
his last report on 31.05.1982 in which he mentioned that thumb
impressions of 19 patients and 15 motivators were of the same person
and it was found that Rs. 530/- was defalcated. He further stated that
after submission of last verification report, he was directed by the
higher officials of vigilance department to lodge case and after that he
prepared written report and submitted the said written report to police.
On being cross examined, he admitted at para 23 of his cross
examination that he submitted his report on the basis of documents
available before him. He also admitted at para 24 of his cross
examination that he had not recorded the statement of any patient or
motivator.
12. P.W.9 and P.W.10 are investigation officers and
they simply stated that they did investigation and after completion of
investigation submitted charge sheet.
13. Exhibit-5 is report of finger print expert who
reported that thumb impressions marked as A/1, A/2 and A/3 were
similar and similarly, thumb impressions of vasectomy acquaintance
roll marked as A/4, A/5 and A/6 were also similar. The finger print
expert also mentioned in his report that thumb impressions marked as
A/7, A/8, A/9, A/10 etc. were also similar.
Patna High Court CR. APP (SJ) No.175 of 2001 dt.28-02-2013 8
14. From perusal of Exhibit-5, it appears that at the
time of comprison of thumb impressions, enlarged photographs of the
aforesaid thumb impressions were produced before the finger print
expert and on the basis of aforesaid enlarged photographs of thumb
impressions, the finger print expert came to the above stated
conclusion. Admittedly, the negatives of aforesaid enlarged
photographs of thumb impressions were not exhibited nor produced
before the trial court. Furthermore, it is an admitted position that
photographer, who had taken the aforesaid photographs, was also not
examined before the learned trial court and, in my opinion, non
examination of the photographer, who had taken the photographs of
thumb impressions, is fatal to the prosecution case because it is only
the photographer, who can say that he had taken the photograph of
thumb impressions from the seized registers of the concerned hospital
and furthermore, it is only the photographer, who can say that he had
prepared the material Exhibit-1 from the negatives which had been
taken by him from the seized registers. Admittedly, the finger print
expert based his finding after comprison of enlarged photographs
(material Exhibit-1) but prosecution could not succeed to prove this
fact that material Exhibit-1, the enlarged photographs of thumb
impressions, were taken from the seized registers and, therefore, in
my opinion, the appellants are entitled to get the benefit of doubt on
Patna High Court CR. APP (SJ) No.175 of 2001 dt.28-02-2013 9
account of above stated lacuna of the prosecution case.
15. On the basis of aforesaid discussions, all the
above stated criminal appeals are allowed and accordingly, the
impugned judgment of conviction and sentence order dated
25.05.2001are, hereby, set aside. The appellants are on bail. They are discharged from the liabilities of their respective bail bonds.
Patna High Court (Hemant Kumar Srivastava, J) Dated the 5th of March, 2013 SHAHZAD/A.F.R.