Calcutta High Court (Appellete Side)
Jitendranath Biswas vs State Of West Bengal on 6 March, 2020
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon'ble Justice Madhumati Mitra
C.R.A. No. 14 of 2011
Jitendranath Biswas
-Versus-
State of West Bengal
Advocate for the Petitioner :: Mr. Amartya Ghosh
Mrs. Rituparna Ghosh
Advocate for the Opposite Party : Mr. Binoy Panda
Mr. Subham Bhakat
Judgment on : 06.03.2020
Madhumati Mitra, J. :
This appeal is presented by the convicted accused/Appellant against the Judgment dated 18.11.2010 and the sentence dated 19.11.2010 passed by the Learned Judge Special 4th Court, Burdwan in special Case No.4 of 2006 convicting the present appellant for committing the offence under Section 409 of the Indian Penal Code and sentencing him to suffer simple imprisonment for three years and also to fine him of Rs.1000/- i.d. simple imprisonment for three months.
The case of the prosecution in brief is that the appellant was the Head Master of A.C,M. High School at Shibloon, Burdwan. On the basis of the First Information Report lodged by one Tapan Kumar Kisku, Ketugram Police Station Case No. 63 of 2004 dated 24.08.2004 was initiated against the appellant for commission of the alleged offence punishable under Section 409 of the Indian Penal Code. It was alleged in the said First Information Report that an amount of Rs.850/- out the Government - grant received by the said school for disbursement to Scheduled Caste and Scheduled Tribes students, for the purpose of purchase of books was defalcated and thereby the appellant abused his official position in the capacity of a public servant.
After completion of investigation charge-sheet was submitted against the appellant. Learned Judge, Special Court framed charge against the appellant/accused for commission of alleged offence punishable under Section 409 of the Indian Penal Code.
Accused/Appellant pleaded innocence and claimed to be tried. Defence case as it appeared from the trend of cross-examination of prosecution witnesses and the examination of the accused/appellant under Section 313 of the Code of Criminal Procedure was that he was falsely implicated in the criminal case.
During trial the prosecution examined as many as 18 witnesses and relied on Ext. Nos. 1 to 14.
Learned Trial Judge upon evaluation of the materials on record convicted the appellant/accused for committing the offences punishable under Section 409 of the Indian Penal Code.
Learned Counsel appearing for appellant has assailed the impugned judgment of conviction on the ground the Learned Judge failed to take into consideration the discrepancies in evidence of prosecution witnesses. Learned Counsel has argued that the Learned Judge overlooked the contradictions of the evidence of prosecution witnesses which went to the root of the prosecution case and rendered the prosecution story unbelievable. It has been forcefully contended by the Learned Counsel for the accused/appellant that the Learned Judge mainly relied on the extra judicial confession to record the conviction which was totally inadmissible in evidence. He has continued to argue that the alleged confession was made before a superior officer who was a person in authority and such that alleged confessional statement was not free from threat, inducement and coercion. According to his contention the conclusion arrived at by the Learned Judge regarding the guilt of the accused/Appellant was not justified. Learned counsel for the accused/appellant has laid stress on the ground that the accused subsequently retracted and as such the Learned Judge was not justified to place reliance on alleged extra judicial confession.
During the course of hearing Learned Counsel for the accused/appellant has forcefully contended that there was allegation in the First Information Report against the accused/appellant for defalcation of funds and the prosecution totally failed to prove beyond reasonable doubt that the accused/appellant defalcated the book grant of the students. He has further submitted that the prosecution failed to prove by cogent evidence that signatures of the students were forged by the accused/appellant being the Head Master of the school. Learned Counsel for the accused/appellant has contended that the impugned judgment of conviction and order of sentence are not sustainable in law and liable to be set aside.
In refutation of the contention and submissions made by Learned Counsel for the appellant/accused, the Learned Counsel for the State has argued that the Learned Trial Court rightly passed the impugned judgment and sentence. He has contended that from the evidence of prosecution witnesses it appears that the accused/appellant received the book grant for the Scheduled Caste and Scheduled Tribes students and said amount was subsequently misappropriated by forging the signatures of the students. Learned Counsel for the State has further argued that from the evidence adduced by the prosecution during trial it appears that the appellant/accused made confessional statement before the sub- Divisional Officer and moreso he deposited the defalcated amount with the Bank. According to the Learned Counsel for the State the deposit of defalcated amount with the bank and confessional statement clearly indicated the involvement of the accused/appellant in the commission of alleged crime. He has also submitted that there were no major discrepancies or contradictions in the evidence of prosecution witnesses and the prosecution proved the guilt of the accused/appellant beyond all reasonable grounds. According to the contention of Learned Counsel for the State, the contractions of the evidence of prosecution witnesses were minor in nature and did not go to the root of the case, Learned Counsel for the State has submitted that appeal is devoid of merit and liable to be set aside.
Before appreciate the rival contentions of the Learned Counsel for the parties, it would be better to consider the impugned judgment and order of conviction along with the facts and the circumstances of the case and the evidence on record.
PW-1 was the defacto complainant. In his examination-in-chief he deposed that on 24.08.2004 as well as on 07.10.2004 he was posted as Project Officer- cum-District Welfare Officer, Backward Classes Welfare, Burdwan. From his examination-in-chief it came out that in the year 2003-2004 a certain amount was allotted to Sibloon, A.C.M, High School towards book grant to the SC/ST students of the school. He also deposed that at the relevant point of time Jitendra Nath Biswas was the Head Master of the school. From his deposition it revealed that the school submitted statement for allotment of funds for payment of book grant to the SC/ST students of the school. Accordingly, bill was raised and sent to the treasury. He also stated that after receiving of the cheque the sum was sent to the head master, Sibloon, A.C.M. High School for encashment and disbursement to the students concerned. In his examination in chief the petitioner no.1 could not say the amount claimed by the school and the amount which was granted to the school for the purpose of book grant to the SC/ST students.
From the deposition of PW-1 it also appeared that a complaint was made before the SDO, Katwa for non-receipt of the book grant amount by S.C./S.T. students and on the basis of that complaint an enquiry was conducted on the initiative of SDO, Katwa.
PW-1 deposed that Dilip Mondal, Inspector, Backward Classes Welfare conducted that enquiry and it was detected that six S.C./S.T. students of the said school did not receive the amount of the book grant and total amount involved was Rs.850/-. In his examination-in- chief, PW-1 specifically deposed that the said amount of Rs.850/- was misappropriated by the Head Master. The enquiry report was submitted before the Project Officer-cum-District Welfare Officer, Backward Classes welfare, Burdwan, by SDO, Katwa. He further deposed that on the basis of the said report he lodged complaint at Ketugram Police Station in writing against the accused/appellant. PW-1 identified his signature on the complaint and the complaint was marked as Exhibit-1. Exhibit-2 was the sanction order of granting a sum of Rs.8960/- in favour of the Sibloon, A.C.M. High School for the financial Year 2003-2004 towards the payment of book grant to the SC students issued by the PW-1. Exhibit-3 series were requisition forms for book grant sent by the Head Master of the school to the authority concerned for payment of book grants for six students which was received by PW-1 in course of official business. PW-1 was subjected to lengthy cross-examination. During his cross-examination the PW-1 expressed his ignorance regarding the procedure for withdrawal of book grant and the disbursement of the same to the students. In his cross-examination PW-1 admitted that there was an over- writing on the amount mentioned in the sanctioned order and there was no initial on the over-written portion. PW-1 also admitted in his cross-examination that the investigating officer did not seize the dispatch register from his office.
PW-2 Kalamoni Kora was a student of Class-VI of Sibloon A.C.M. High School, during the year 2003-2004. She disposed that in that year she prayed for book grants from the Head Master of the school and Rs.50/- was sanctioned in her favour. During her examination-in-chief, she stated that she was allotted book grant but she did not get the amount from the school. She deposed that she demanded that amount from the Head Master of the school and she was told that no amount was received by the school for her. From her deposition it also came out that her father made a complaint in this regard. She also stated that on the earlier occasion she had received money towards the book grant from the Head Master. After receiving the same book grant she had signed on the register. During her examination in chief one signature against entry No.4 regarding disbursement of amount on Rs.50/- in the name of Kalomoni Kora was shown to her and she answered that signature appearing on the register was not her signature.
From her cross-examination it came out that one Gopi Babu was a clerk of that school and said Gopi Babu used to write their applications towards claim of book grant and thereafter he used to obtain their signatures. From the deposition of PW-2 during her cross-examination it appeared that on the last year when she was a student of Class-V she got Rs.20/- and at that time her name address everything was written in the register and her signature was also obtained. PW-2 in her cross-examination deposed that she was examined by Daroga Babu and she made statement to the investigating officer that the amount was disbursed to many students who were present there. She further deposed that when she had demanded the money from the Head Master she was told that the amount had not yet been received. She specifically deposed she personally did not make any complaint in writing to anywhere for non-receipt of money. During her cross-examination PW-2 specifically deposed that she was told by the Darogababu to go to the Court and tell the Court that the signature appearing on the register was not her signature.
PW-3 Niranjan Kora is the father of PW-2. From his deposition it came out that at the relevant year his daughter was a student of class-VI of Sibloon, A.C.M. High, School, and she made an application before the school authority for getting book grant available to SC/ST students. PW-3 deposed that his daughter did not get any such book grant during that year and his daughter was told by the Head Master that no such book grant was received by the school in the name of his daughter. In his examination-in-chief PW-3 admitted that he made an application before the block office. One Sudhir Prodhan of his village wrote an application as per his instruction and he put LTI thereon. During his cross- examination PW-3 admitted that he was examined by the Daroga Babu and he did not say to the Daroga Babu that Head Master told him that he would pay book grant amount later on. PW-3 deposed in his cross-examination that he did not state to Daroga Babu that the Head Master had told him that no book grant was received.
PW-4 is an EX student of Sibloon, A.C.M. High School. From his deposition it came out that during the year 2003-04 he made an application in the school for getting book grant available to the S.C/S.T. students and he learnt that the amount towards book grant in his name had been received by the school but he did not get the said amount. In his examination in chief he deposed that on being asked he was told by the Head Master that the amount of book grant for him had not been received by the school and the Head Master told him "TOR TAKA MARA PARE GECHHE". In his examination-in-chief the petitioner No.4 further deposed that subsequently he came to know that the amount allotted to him was misappropriated. He made an application before the SDO regarding non-getting of book grant and one Roop Chunari as per his instruction wrote his application. Exhibit-4 was the said application submitted before the SDO. PW-4 identified his signature on the application. During his examination-in-chief one signature against entry no.21 towards disbursement amount of Rs.148/- in the name of the Joydeb Patradhor was shown to him and the witnesses deposed that the signature appeared on the register was not his signature.
During his cross examinion the PW-4 stated that he was admitted in the school in Class-V and he read up to class-VIII. He also admitted that he received book grant from the school during his tenure in school when he was a student of class V, VI, VII. In his cross-examination PW-4 specifically deposed that Gopi Babu a clerk of their school used to fill up the prescribed forms towards book grants. During his school period when he was a student of class-V, VI, VII Gopi Babu used to fill up the requisite forms for book grant amount. The PW-4 also deposed that prior to writing of the application (Exhibit-5) he was at his native village at Lovepur and therefrom he was called and he submitted the application before Block Office.
PW-4 in his cross-examination admitted that in his application he did not mention that the Head Master had misappropriated the book grant amount. He also deposed that he came to know from his friend Aloke Patradhar that the book grant in his name had been received by the school. In the last line of his cross- examination the PW-4 stated that the investigating officer did not obtain his specimen signature.
PW-5 Gopkishore Chatterjee was a clerk of Sibloon, ACM, High School. From his deposition it came out that he was working as clerk since 1977 and during the year 2003-2004 the appellant accused was the Head Master of this School. In his examination in chief the PW-5 deposed that he was acquainted with the handwriting and signature of the Head Master. He deposed that during the year 2003-2004, book grant was received by the school for SC/ST students. He deposed a sum of Rs.8960/- was received by the school towards the book grant for 88 SC students and sum of Rs.450/- was received towards book grant for 4/5 S.T. students. From the deposition of the PW-5 it came out that the school had bank account both in State Bank of India, Katwa Branch and United Commercial Bank, Gangatikuri Branch and the Head Master used to operate both the accounts by himself. In his deposition PW-5 deposed that during the year 2003-2004 he heard from some students that some of the students of their school had not received the book grant money.
From his deposition it came out book grant to the ST/SC students was paid to the students after obtaining their signatures on the Acquittance Roll Register. He deposed that Head Master Jitendra Nath Biswas himself used to pay the book grant to the respective students. In his deposition PW-5 stated that one prescribed form was required to be filled-up and sent to the Government claiming book grant for SC/ST students. He deposed that he filled-up the said prescribed form by his own handwriting. He identified the prescribed form as well as the signatures of the Head Master with official seal thereon. During his examination in chief Acquittance Roll Register of the SC/ST students of Sibloon A.C.M. High School for the period from 1999-2000 to 2003-2004 was placed before him and PW-5 stated that the register was maintained in official course of business. In his examination chief he admitted that all the entries excepting the signature of the students were made by him in his own handwriting. All the entries in the Acquittance Roll Register of the SC/ST students of Sibloon, A.C.M. High School were collectively marked as Exhibit-6/1.
During his cross-examination the PW-5 could not say whether all the correspondences sent from the school were entered in the dispatch register or not. From his cross-examination it came out PW-5 was only clerical staff of the school and he had to do all the clerical work of the school. He could not say in his evidence whether the investigating officer seized the said register of the school. From his cross-examination it came out that the bank accounts of the school were opened for joint operation for the Head Master and Secretary of the school. He could not say anything when the cheque of Rs.8960/- for book grant was received by the school. He admitted that he maintained the cash book register of the school as per the direction of the Head Master and it was not maintained on daily basis. After making entry in the cash book register he placed the same before the Head Master. He stated that the cash book register, receipt register and other papers and documents were kept in the almirah of the Head Master. From his cross examination it came out that PW-5 had separate room and the Head Master had also separate room and whenever occasion arose the Head Master used to supply the register for making entry.
PW-6 Asoke Kumar Adhikary was one of the retired teachers of Sibloon A.C.M. High School. From his examination-in-chief it came out that in the year 2004 one meeting of the managing committee of this school was called over the matter misappropriation of book grant money of SC/ST students of the said school for the year 2003-2004. He deposed that in that meeting the appellant/accused told then that some money of the SC/ST students was not disbursed and was lying with him. During his cross-examination PW-6 deposed that at the relevant point of time there was only one clerk namely Gopi Krishna Chatterjee of school and he used to do the clerical job as per instruction of the Head Master. During his cross-examination he expressed his ignorance by stating that he had no knowledge about what actually happened in connection with the case.
PW-7 Utpal Majhi, a student of Sibloon A.C.M. High School deposed that during the year 2004 he did not get any book grant amount. He deposed in his examination-in-chief that he made an application before the SDO, BDO and Officer of Scheduled Casts and Scheduled Tribes. But in spite of that he did not get any book grant money. Exhibit 9/1 and Exhibit 6/1 are the signatures of PW-7. He deposed that he had received book grant money while he was student of class-VI. He also stated that he had collected the book grant amount from the Head Master by putting his signature in the register before Gopi Babu. He could not say anything regarding the contents of the application made by him before the SDO and BDO. From his cross-examination it transpired that he was told by Roop Chunari and Kanan Bihari Ghosh to depose before the Court.
PW-8 is the father of one Utpal Majhi who was a student of class-VI in the year 2003-2004 of Sibloon A.C.M. High School. PW-8 deposed that his son had applied for book grant but he did not get the same. During his cross- examination he could not say anything as to whether the book grant was received by the school or not.
PW-9 Tapamoy Ghosh was the Secretary of the managing committee of Sibloon, A.C.M. High School. He deposed that he had heard that during the year 2003-2004 some students belonging to SC/ST did not get book grant amount from the school inspite of receipt of the book grant by the school from the Government. From his deposition it appeared that he took up the matter from the Welfare Officer at the block level. From his cross-examination it also appeared that Gopi Krishna Chatterjee used to maintain Attendance Register, Receipt and Dispatch Register, Accounts Register etc. He also deposed that there was a joint pass book operated by the Head Master and the secretary of the school. He could not say anything regarding the disbursement and non- disbursement of the book grant.
PW-10 was an EX-student of class-IX of the said school during the year 2003-2004. From his deposition it came out that during 2003-2004 he applied through the Head Master of their school for book grant available for the SC/ST students from the Government. This witness identified his signature on the application for book grant. He deposed that in spite of praying for book grant, he did not get the same. From his deposition it further appeared that he had asked the Head Master regarding non-receipt of the book grant and he was told by the Head Master that no such book grant had been received in his name. During his examination-in-chief the register appearing the signature in the name of Paritosh Hazra was shown to him and he denied that signature. From his cross- examination it appeared that he received book grant money while he was student of class-V and class-VIII on the basis of his application. He also deposed that he had signed on the application before the School clerk Gopi Babu and he was the only clerk of their school. From his deposition it appeared that the Gopi Babu used to disburse the book grant money and the received the book grant money from class-V and class-VIII from him.
PW-11 was one of the teachers of Sibloon, A.C.M. High School. From his deposition it revealed that he had no personal knowledge about the alleged incident.
PW-12 deposed on the basis of what he had heard from others.
PW-13 Sri Dilip Kumar Mondal deposed that in the Year 2004 he was attached to the office of SDO, Katwa as Inspector B.C.W. and also in-charge of Inspector B.C.W. of Ketugram-II. From his examination-in-chief it came out that one student namely Jaydeb Patradhar submitted a complaint before the SDO, Katwa stating he was not allotted the money for book grant of SC/ST student. From his evidence it transpired that during enquiry said Joydeb Ptradhar made statement before him that he did not get any amount though it was shown that money was granted to him. During his cross examination he deposed that he did not send any written notice to the school authority or the Head Master before holding the enquiry as directed by the SDO. From his cross-examination it transpired that he took some documents of the school during enquiry and submitted the same to the SDO. He deposed further that he did not receive any document from the school on 24.08.2004 and on 26.08.2004. He called Head Master and he came along with the papers and handed over the same to him.
PW-14 deposed that in the year 2004 he was attached to the Katwa as SDO. He deposed that one Jaydeb Patradhar submitted one complaint to him and he directed their project officer Dilip Mondal for holding an enquiry in respect of the complaint. From his deposition it came out that the father of Kalo Moni Kora another student also submitted a complaint before him. From his examination-in-chief it also came out that one Utpal Majhi also submitted a complaint before him. In his examination-in-chief he stated that he visited the school for holding an enquiry in respect of the other complaints and verified the Acquittance Roll. He stated that on verification of the signatures of the students he found that signatures of the students who received the money and the signatures of the student made in the complaints did not tally with each other. He also deposed that on the basis of enquiry report of Dilip Babu (PW-13) and his own enquiry report he came to the conclusion that there was discrepancy. From his deposition it came out that students did not receive the amount and the total amount involved was Rs.850/- .
In his examination-in-chief the PW-14 deposed that during the course of the enquiry he asked the Head Master (accused) to come to his chamber and accordingly the Head Master within a short period visited his chamber and made confession before him in writing that he did not disburse Rs.850/- to the students. During his evidence PW-14 identified the alleged confessional statement made by the accused and stated that the Head Master signed on the same in his presence. Exhibit-8 is the said alleged confessional statement and Exhibit-8/1 was the endorsement made by the PW-14 on the said alleged confessional statement. Again in his examination-in-chief the PW-14 deposed that he directed project officer to lodge an FIR before the Ketugram police station and he handed over all the documents and papers to the project officer for that purpose. In his evidence the PW-14 stated that the Head Master deposited the amount in question in the bank account of the school. During his examination- in-chief a letter of the chief manager of SBI Katwa Branch, Burdwan was shown to him and he identified the same, Exhibit-10 was that document.
In his cross-examination, the Exhibit-4 i.e. the complaint submitted by Joydeb Patradhar was shown to the witness and the witness stated that the letter of complaint was written in one ink and the signature was put in another ink. In his cross-examination the WP-14 admitted that Exhibit-4 does not contain the name of scribe. He also admitted that Exhibit-4 does not contain the receiving seal. PW-14 clarified that the same was handed over to him personally but he could not remember when it was handed over to him. He further deposed that said complaint was received by his office on 25.08.2004. He could not say anything whether it was brought to his notice was not. During his cross- examination another complaint that is Exhibit-9 written by Utpal Majhi (PW-7) was shown to him and the witness deposed that it did not contain any endorsement made by him and he could not say anything whether it was brought to his notice or not. PW-14 also admitted that Exhibit-9 did not contain the name of the scribe. PW-14 deposed that Exhibit-9 showed his endorsement and he endorsed the same to OC, SC and ST. He could not say the name of the then OC. He also failed to say about the result of the endorsement made by him on that complaint.
PW-14 could not remember the date when he visited the school personally for making the enquiry. He failed to produce official document in support of his personal visit to school. PW-14 could not remember anything as to whether he visited the school before submission of the enquiry report by Dilip Mandal or not (PW-13). PW-14 deposed that he did not put any signature after verification of the acquittance roll and he did not give any amount to the other member of the school managing committee for the purpose of making an enquiry.
PW-15 was retired Inspector of Police. From his examination-in- chief it appeared that he did nothing regarding the investigation of the case.
PW-16 deposed that on August 30, 2004 he was posted at Katwa as chief Manager of SBI. From his deposition it came out that on that date an account was standing in the name of Sibloon A.C.M. High School being No.01100050258 and on that date Head Master Jitendra Nath Biswas deposited Rs.850/- in the said account. During his examination-in-chief the deposit slip was shown to the witness. This witness failed to identify the signature of the depositor. From his deposition it came out that the deposit slip in question was in the custody of the Bank and subsequently it was seized by the police. In his deposition he identified one letter dated August 30, 2004 addressed to him by the SDO, Katwa and on the basis of that letter the bank stopped all the transactions under the said account. That letter was marked as Exhibit-11 in the present case.
During his cross-examination PW-16 admitted that Exhibit-10 did not contain any signature. PW-16 could not say anything in respect of Exhibit-11.
PW-17 was the investigating officer of this case. During his examination- in-chief he deposed that on 7.10.2004 while he was attached to Katwa as SI of Police he was endorsed Ketugram Police Case No.63/04 dated 07.10.2004 for investigation. He deposed that during investigation he visited the place of occurrence and drew rough sketch map along with the index and examined the available witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure. From his cross-examination it transpired that during investigation he recorded the statements of Niranjan Kora and his daughter Kalo Moni Kora. PW-17 admitted that during investigation he did not collect the specimen signatures of the witnesses.
PW-18 was the second investigating officer of this case. From his deposition it came out that during further investigation he seized some documents under seizure list and examined available witnesses under Secion 161 of the Code of Criminal Procedure. Thereafter, he submitted charge-sheet against the accused for commission of alleged offence punishable under Section 409 of the Indian Penal Code. PW-18 was subjected to cross-examination. From his cross-examination it was elicited that he did not issue any notice to the managing committee and did not record the statement of any witness connected with the school under Section 161 of the Code of Criminal Procedure. He admitted he did not verify the documents received by him from the first investigating officer. He admitted that during investigation he did not obtain the specimen signatures of students who submitted the written complaint before SDO and did not send the signatures of the students to the expert for comparison.
No other witness was examined by the prosecution.
The judgement of conviction has been assailed by the Learned Counsel for the appellant/accused on the ground that the Learned Judge recorded the conviction of the appellant/accused on the basis of alleged confessional statement made by him before the SDO that is PW-14 and on the evidence of PW-16 the Chief Manager of SBI, Katwa Branch regarding deposit of the alleged defalcated amount. On the contrary, the Learned Counsel for the State has vigorously argued that the evidence on record particularly the evidence of PW-14,15 coupled with other prosecution witnesses clearly indicated the involvement of the appellant/accused in the commission of the alleged crime. According to his contention the confessional statement that is Exhibit-8 made before the PW-14, SDO, is sufficient to prove the guilty of the accused/appellant.
In the instant case several witnesses had been examined by the prosecution. The allegation against accused/appellant was that he being the Head Master of the school defalcated an amount of Rs.850/- by not disbursing the same to six ST students by forging their signatures on the Acquittance Roll Register. From the FIR lodged by Project Officer-cum-District Welfare Officer, Backward Classes Welfare, Burdwan, to the officer-in-charge of Ketugram Police Station on 05.10.2004 it appears that there was specific allegation against the accused/appellant for misappropriation of book grant for the year 2003-2004 payable to the SC students. The FIR was lodged by way of sending official Memo No. 1366/BCW /BDW dated 05.10.2004 along with various documents of enquiry.
PW-1 the defacto-complainant deposed that a sum of Rs.8960/- was sanctioned in favour of the school during the financial year 2003-2004 towards the payment of book grant to the SC students. He deposed that the said sanctioned order was issued by him and also signed by him. Sanctioned order was marked as Exhibit-2. The said order consisted of two parts. The first part showed that an amount of Rs.8960/- was sanctioned towards the payment of book grant for ST students by Project Officer-cum-District Welfare Officer, Backward Classes Welfare, Burdwan. First portion of the sanction order did not bear the signature of the sanctioning authority. The sanctioned order did not mention the memo number and the date on which the sanction was made. It only mentioned bill No.437/03-04. The year had not been mentioned. The amount inserted on the upper portion of Exhibit-2 did not mention the period in respect of which the sanction order was issued only mentioned '03-04'. The amount was written in the first portion of Exhibi-2 was over-written. The second portion of Exhibit-2 mentioned memo number and the date that i.e. 11.02.2004.
The prosecution case is that the amount of book grant was not disbursed to six students and the said amount was misappropriated by forging their signatures. PW-2 Kalomoni Kora, PW-4 Jaydeb Patrodhar, PW-7 Utpal Majhi and PW-10 Paritosh Hazra all were ex-students of the school during the year 2003- 2004. All of them deposed in the same line that they applied for book grant but did not receive the amount. During their examination-in-chief Acquittance Roll Register containing the alleged signatures were shown to them but they specifically stated that those were not their signatures. In this connection during his evidence the investigating officer i.e. PW-17 has specifically stated that he did not take step or obtain the specimen signatures of the witnesses to verify the same. In the instant case the specific allegation against the Head Master is that in spite of receipt of book grant the said grant was not disbursed to six students. The Acquittance Roll Register contained the signatures against the names of those six students. In this connection the evidence of PW-14 Subir Kumar chatterjee may be cited. He deposed that one complaint was submitted before him by one Joydeb Ptradhar and as per his direction Project Officer Dilip Mondal conducted an enquiry. He deposed that he verified the Acquittance Roll and found discrepancy regarding non-disbursement of Rs.850/-. He deposed that Head Master (accused/appellant) made confessional statement before him. Exhibit-8 was the said confessional statement.
The alleged confessional statement was in the form of a letter addressed to SDO, Katwa, Sub-division, Katwa, Burdwan. From the alleged confessional statement it appeared that the amount of book grant was not disbursed to 4/5 candidates. It was stated in the said confessional statement that error committed due to oversight and the alleged maker of the confessional statement prayed mercy. During the examination of the accused/appellant under Section 313 of the Code of Criminal Procedure a specific question was put to him whether he made any confessional statement before PW-14. The appellant/accused replied that the alleged confessional statement was false. That means the accused subsequently retracted from the alleged confessional statement. Now the question comes as to whether retracted extra judicial confession can be the basis of the conviction. In various decisions it has been held that without independent corroboration retracted extra judicial confession is of little value. Moreso, it is the duty of the Court while placing reliance on the retracted confessional statement to see whether such statement was made voluntarily or not. In the instant case admittedly, the alleged confessional statement was not recorded by the Judicial Magistrate under Section 164 of the Code of Criminal Procedure. At the time of placing reliance on extra judicial confession court has to see the following aspects:-
1. Whether the accused has close association with the witness to whom the statement was made;
2. Whether the alleged extra judicial confession was made and before making extra judicial confession sufficient time was allowed for reflection to the accused;
3. Whether the extra judicial confession subsequently retracted has been corroborated in material particulars;
4. Whether the extra judicial confession subsequently retracted has been made in confused state of mind.
Now I have to see how much reliance can be placed on the alleged extra judicial confession which was subsequently retracted by the accused/appellant during his examination under Section 313 of the Code of Criminal Procedure. During his examination the PW-14 the then SDO of Katwa, Sub-division, deposed that he went to school for holding enquiry and when he asked the Head Master (present appellant) to come to his chamber and accordingly, the said Head Master within very short period confessed before him in writing that he did not distribute Rs.850/- to the students. From the evidence of PW-14 before whom the extra judicial confession was allegedly made specifically deposed that the Head Master within a very short period confessed before him in writing that he did not distribute Rs.850/-. From the evidence of PW-14 it is clear that the accused/appellant did not get sufficient time for reflection before making alleged confessional statement. From the contents of the said alleged confessional statement it appeared that the person making this statement prayed for mercy. This statement does not mention the amount in question it only mention that the amount of book grant was not given to 4/5 candidates.
In the instant case there was allegation that the book grant was not disbursed to six students amounting to Rs.850/-. No evidence had been produced before the Court to hold that PW-14 was closely related to the accused. Moreso, from the contents of the alleged statement as well as the position of the person, before whom, such statement was allegedly made, cannot be considered to be free, for all sort of undue influence or pressure. From the averments of the alleged confessional statement it appeared that the maker stated that due to oversight an error was done by him and he prayed for mercy. The alleged confessional statement coupled with the evidence of PW-14 does not inspire the confidence of the Court that the said statement was made by the accused appellant voluntarily. The another contention of the prosecution is that the accused subsequently deposited the amount in question with the Bank and the deposit of amount in question with the Bank by the accused clearly indicated his guilty mind and an adverse presumption can be drawn against him regarding his guilt in the commission of the alleged offence. Exhibit-11 is the deposit slip with the Bank wherefrom it appeared that Rs.850/- was deposited with the Bank. The name of the depositor had been mentioned as Jitendra Nath Biswas. During the examination of the accused under Section 313 of the Code of Criminal Procedure no question was asked or no clarification was sought for from the accused/appellant regarding the evidence given by PW-16, the Chief Manager of SBI, Ketugram Branch and regarding Exhibit-11. In this connection the Learned Trial Judge observed that on 30.08.2004 the accused deposited Rs.850/- in school Account lying in the SBI, Katwa, in the name of Sibloon A.C.M. High School. When the accused was not asked question in respect of any incriminating evidence during his examination under Section 313 of the Code of Criminal Procedure, generally Court cannot use the same against the accused. In the instant case the prosecution examined many witnesses to prove alleged offence against the accused. In His judgment the Learned Trial Judge observed that the Head Master used to handle all the registers. In his examination under Section 313 of the Code of Criminal Procedure the Head Master himself admitted that he received the book grant and as such on the basis of the evidence of prosecution witnesses particularly the evidence of PW-14, PW-16, PW-13 and Exhibits 8 and 11 the Learned Judge came to his conclusion regarding guilt of the appellant/accused. It is true that during his examination under Section 313 of the Code of Criminal Procedure the accused admitted the receipt of the book grant. If one goes through the entire evidence of the prosecution as a whole then it would be clear to him that one Gopi Babu was the only clerical staff of the school at the relevant point of time. The said Gopi Babu was examined in the instant case as PW-5. The Bank accounts of the school were being operated by Head Master (accused) and the Secretary of the Managing Committee as it appeared from the cross-examination of PW-5 that is Gopi Krisna Chatterjee. PW-16 in his examination-in-chief stated that the Head Master deposited Rs.850/-. The Learned Trial Judge drew an adverse inference on the basis of Exhibit-11 and the evidence of PW-16 by stating that the accused wanted to save himself by depositing the amount in the said account. I have already observed that no question was put in this regard to the accused by the Learned Trial Judge during his examination under Section 313 of the Code of Criminal Procedure. During his cross-examination PW-16, the Chief Manager stated that any person can deposit any amount in the Bank. In the instant case, the investigating officer during his evidence admitted that the alleged signatures on the Acquittance Roll Register were not compared with the admitted signatures of the students who had alleged that they did not get the book grant. The alleged signature on the deposit slip was not compared with the admitted signature of the accused raising a doubt regarding the deposit of the amount by the accused in the bank account. In his cross-examination PW-7 Utpal Majhi, deposed that when he was student of class-VI he received the book grant amount from the Head Master by putting his signature in the register before Gopi Babu. Another student that the PW-10 Paritosh Hazra deposed that Gopi Babu used to disburse the book grant money and he received the book grant money from class-IV to class-VIII from him. In his evidence PW-5 Gopi Krishna Chatterjee deposed that the Head Master Jitendra Nath Biswas himself used to pay the book grant money to the respective students. During his cross-examination PW-4 Jaydeb Patradhar another ex-student of the school deposed that he had received book grant for the said school during the period when he was student of class-V, VI, VII. From his cross-examination it appeared that Gopi Babu PW-5 a clerk of their school used to fill up a prescribed form towards book grant and Gopi Babu used to obtain his signature and paid book grant amount to him. There are discrepancies in the evidence of prosecution witnesses regarding who actually disbursed the amount of book grant to the students after obtaining their signatures on the Acquittance Roll Register. The evidence adduced by the prosecution is not at all sufficient and cogent to hold that the Head Master himself used to disburse the amount. Previously I have observed that the extra judicial confession on which prosecution placed much reliance does not inspire confidence to record the conviction.
The above discussion and observations led me to hold that the prosecution failed to prove the accusation against the accused beyond all reasonable doubts. From the evidence brought on record and in the facts and circumstances of the case, in my view the conviction of the appellant/accused under Section 409 of the Indian Penal Code cannot be sustained. The judgement of conviction and order of sentence are hereby set aside. As a result, the appeal is allowed.
Appellant/accused is set at liberty and be discharged from his bail bonds at once.
Let a copy of this judgment along with LCR be sent down to the Learned Court below immediately.
Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Madhumati Mitra, J.)