Allahabad High Court
State Of U.P. vs Shyamlal & Others on 17 January, 2014
Bench: Amar Saran, Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- GOVERNMENT APPEAL No. - 4951 of 2004 Appellant :- State Of U.P. Respondent :- Shyamlal & Others Counsel for Appellant :- Govt. Advocate Counsel for Respondent :- V.S. Parmar,Vivek Singh Hon'ble Amar Saran,J.
Hon'ble Mrs. Sunita Agarwal,J.
This Government Appeal arises from the judgement of the Additional Sessions Judge, Fast Track Court No. 7, Banda, dated 4.6.2004 acquitting the accused-respondent Shyam Lal under sections 409, 420, 411 and 201 I.P.C. and section 5/13 of the Prevention of Corruption Act.
We have heard Sri Anand Tiwari, learned A.G.A. for the State-appellant and Sri V.S. Parmar, learned counsel for the accused-respondent.
The prosecution case was based on a report (Ext Ka-1) lodged by Godhani Devi, (P.W.1) on 9.9.1994 at 2.30 p.m. at P.S. Kamasin, Banda, alleging that on 30.8.1994, she had been sanctioned a loan of Rs.15000/- in her favour. However, she had been given an amount of Rs.7000/- as the first instalment. When she was proceeding to her home, the accused-respondent snatched her bag outside the post office, and issued threats to her. Bhaiya Lal and Vijai Singh were also present at that time. Initially, the F.I.R. was lodged under section 392 IPC at Case Crime No. 187 of 1994 by Shishu Pal Singh, P.W. 5, the Investigating Officer.
In her evidence in Court P.W. 1 Smt. Godhani deposed that on the date of incident she was to be paid Rs.7000/-, but she was only given Rs.4000/- as Rs.3000/- had been snatched from her. She further stated that she had received Rs.7000/- at about 2 p.m. on the first date of incident, and when she was passing the Post Office, then the accused-respondent snatched her bag. The day after she lodged her F.I.R., the Police Officer had caught hold of the accused-respondent in front of the house of Dr. Jagat Narain. At that time he recovered Rs.3000/- from Smt. Godhani and also from the witnesses and the accused. In all, he recovered Rs.15,000/- which was mentioned in the recovery memo, (Ext. Ka-2).
It may be noted that the said recovery memo which was drafted by P.W. 4 SI Yogendra Kumar Rai and bore the signature of the I.O. P.W. 5 Shishu Pal Singh and also of the witnesses P.W. 2 Vijai Singh and P.W. 3 Bhaiya Lal and the right thumb impression of PW 1 Smt. Godhani Devi clearly specifies that from Godhani Devi 60 notes of Rs.50/- each i.e. a total of Rs.3000/- were recovered. Similar notes totalling the same amount were recovered from Bhaiya Lal and Vijai Singh. They were kept in envelops bearing their names, which were also recovered by the police. There were two other envelopes in the names of Shanti Devi and Brahm Dutt, which also contained the same amount in similar notes, which were recovered from the accused-respondent Branch Manager.
P.W. 2 Vijai Singh has deposed that a loan of Rs.15,000/- had been sanctioned in his favour. The first instalment was of Rs.7000/-. Out of the said amount, Rs.4000/- had been given to him in an envelop and Rs.3000/- has not been given, but an entry of Rs.7000/- has been made in his pass book. The accused-respondent had been arrested in front of the house of Dr. Jagat Narain, when the envelops with notes had been recovered from him, and the witnesses whose recovery memo had been prepared in the presence of this witness and also bore his signature. He had gone along with Godhani Devi to lodge the report on the date of incident, but only the report of Godhani Devi was taken down.
P.W. 3 Bhaiya Lal reiterated the same version as P.W. 2.
P.W. 4 S.I. Yogendra Kumar Rai has deposed that he had arrived at the time, when the accused-respondent was apprehended on 10.9.1994 along with the envelops with currency notes. He gave the description of the notes in the envelop in the same manner as has already been described above.
P.W. 5 S.I. Shishu Pal Singh was the first Investigating Officer of this case, who admitted that he had registered the case initially under section 392 I.P.C. On 10.9.1994, when he had met the accused-respondent, he had obtained the list of beneficiaries, who were sanctioned a loan from the accused-respondent, (Ext. Ka-6), who had handed over the same to him. He had apprehended the accused-respondent at 2.15 p.m. in front of the house of Dr. Jagat Narain in Kasba Kamasin. At that time, the accused-respondent was talking to Smt. Godhani Devi, Bhaiya Lal and Vijai Singh. Smt. Godhani and Bhaiya Lal who had envelops in their hands, which contained 60 notes of Rs.50/- each Rs.3000/- each which had been handed over to them by the accused respondent.
The names of Godhani, Bhaiya Lal, Vijai Singh, Shanti Devi and Brahma Dutta were written on the envelops in the handwriting of the accused respondent as was admitted by him before the I.O. The accused-respondent stated that as the witnesses were complaining against him, hence he had returned the money to them. However, in Court, when the material exhibit was opened, it was found there was only a single packet of 150 notes of Rs.100/- although the accused admitted that each of the 5 envelops, which were seized by him, contained 60 notes of Rs.50/-, but the said envelops and notes were not present. In one envelop, there were two pass books of Bhaiya Lal and Vijay Singh which were marked as (Ext. Ka7). He also prepared the site plan on the pointing out of the witness Bhaiya Lal regarding the place of arrest of the accused and recovery of the notes (exhibit Ka-2).
The grounds of acquittal in this case were that most of the investigation in this case was conducted by P.W. 5 Sub Inspector Shishu Pal Singh, who was not authorized to investigate the case as in view of section 17 of the Prevention of Corruption Act, no person below the rank of Dy. S.P. could investigate cases under the Prevention of Corruption Act. The second I.O., P.W. 7 C.O. Balwant Rai, and the third I.O. P.W. 8 Dy. S.P. A.B. Singh had simply concluded the investigation and submitted the charge sheet on the basis of the investigation earlier carried out by SI Shishupal Singh and had not conducted any investigation themselves. There was also a violation of section 19 of the Prevention of Corruption Act, as no sanction for prosecuting the accused-respondent had been obtained during trial.
Even on merit, it was observed that it was improbable that a person of the status of a Branch Manager would have committed a robbery on Smt. Godhani in front of the Post Office as was alleged. Furthermore, as per the F.I.R., the Branch Manager is said to have snatched the entire amount that was carried by the informant Godhani Devi, but in her evidence in Court she contradicted herself and has deposed that the accused-respondent had taken away only Rs.3000/- and Rs. 4000/- were handed over to her. P.W. 2 Vijai Singh and PW 3 Bhaiya Lal have also given two contradictory versions, first of being paid only Rs. 4000/- when the first instalment was paid, regarding which entries showing deposits of Rs. 7000/- had been made in their pass books on that date, and thereafter of the Branch Manager accused snatching away Rs. 3000/-. It was observed that it was unlikely that the Branch Manager would have snatched the said amount, if Rs.4000/- had already been paid. It was also pointed out that it was surprising that the police had reached the spot at the precise time on 10.9.1994 at 2.15 p.m., as they had gone to Gharauli and were returning and it is nobody's case that the informant or witnesses had contacted the police earlier, informing them of the plan of the accused to return their money on the date and time of incident. The F.I.R. was unduly delayed by 10 days, as the incident had taken place on 30.8.1994, and the F.I.R. was lodged on 9.9.1994 for which there was no satisfactory explanation. The exhibits containing the 5 envelops with the 50 rupee notes totalling Rs. 3000/- as detailed in the recovery memo, which are said to have been collected by the police, from the witnesses and the accused-respondent Branch Manager were not produced before the Court. There were also contradictions inasmuch as the notes, which were produced in the Court were 150 notes of Rs.100/-each, which also totalled Rs.15,000/-. It was further observed by the Trial Judge that the appellant had been implicated in this crime as alleged at the instance of M.L.A., Baberu, Gayacharan Dinkar, as he was unwilling to grant loans to the persons of the choice of the M.L.A. Learned A.G.A. was unable to raise any contentions to show how the taken by the Trial Judge was perverse or an impossible view which could never have been taken by the trial Court on the evidence that has been adduced in this case. We are therefore unable to reach a conclusion that the judgment of the trial Court needs to be interfered with and the order of acquittal set aside.
However, before parting with the case, we would like to put on record some disturbing facts. This case has ended in acquittal only because of an unfair and incompetent investigation conducted by the investigating officer. We fail to understand how the exhibit (Ka-2), which clearly shows that the 3 sets of 60, 50 rupees notes which were recovered from the three witnesses and two sets of similar notes in envelops which were recovered from the accused-respondent, were made to disappear and to be substituted by the single packet of 150, 100 rupees notes (which would also bring the total to Rs.15,000/-). Apart from this two pass books of the witnesses Vijay Singh and Bhaiya Lal were produced. These are highly suspicious circumstances. The police appears to have colluded with the accused and has indeed succeeded in spoiling the case. We would have ordered an inquiry into the conduct of the police officer concerned, had not such a long period elapsed and the police official must also have retired by now. The witnesses have deposed that immediately after the initial incident they had gone to the police station, but it appears that no report was written down at that time. The report appears to have been lodged only after 10 days. This does suggest some foul play at the hands of the police officer. We again suspect that the police have registered the report under section 392 IPC only to prop up a false case to help the accused, but unfortunately even the Trial Judge has not seriously gone into the bottom of this matter and has failed to cross examine the Investigating Officer for seeking his explanation as to how the 50 rupee notes (as described in Ext. Ka 2) were substituted by 100 rupee notes which were produced in Court, and why he did not lodge the report the first day when approached by the complainant and the witnesses and what were the circumstances for lodging the report under section 392 IPC after 10 days, which appears to be palpably false. The recovery memo (Ext. Ka 2) showing the preparation of 5 envelops containing 60, 50 rupee notes of Rs. 3000 each in the names of the informant Godhani and the two witnesses Vijay Singh and Bhaiya Lal and the 2 other persons Shanti Devi and Brahm Dutt, which were collected from the accused and the witnesses on 10.9.94, does go to suggest that it was not a wholly imaginary or concocted case, set up by the MLA, Baberu, Gayacharan Dinkar, and the accused branch manager of the village co-operative Tulsi bank might quite possibly have tried to return the Rs. 3000 amount that he had wrongly deducted from the first instalment payable to the witnesses after a hue and cry was raised. But due to the mischievous disappearance of the said notes and envelops, and the absence of any probe on these angles we are left with the improbable evidence and the improbable version set up by the prosecution, as depicted in the F.I.R. under section 392 IPC which was irreconcilable with the other facts and circumstances of this case. We have also already noticed above the legal legal loop holes deliberately or incompetently left out by the prosecution. We are thus only left with the painful option of upholding the judgment of the trial Court, as on the evidence that has been (or has been allowed to be) set out the complicity of the accused-respondent in this crime cannot be established.
In this view of the matter, we see no ground to interfere with the order of acquittal. The Government appeal therefore fails and is dismissed.
Order Date :- 17.1.2014 HSM