State Of U.P. vs K.M. 944 Ram Sewak
2022 Latest Caselaw 1181 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 53
 

 
Case :- GOVERNMENT APPEAL No. - 2791 of 2010
 

 
Appellant :- State of U.P.
 
Respondent :- K.M. 944 Ram Sewak
 
Counsel for Appellant :- Govt. Advocate
 
Counsel for Respondent :- Punit Bhadauria
 

 
Hon'ble Om Prakash-VII,J.

Hon'ble Narendra Kumar Johari,J.

This appeal against acquittal by appellant State is directed against the impugned judgment and order dated 8.12.2009 passed by Sessions Judge, Maharajganj in S.T. No. 22 of 2008 (State Vs. Ram Sewak), arising out of case crime no. 83 of 1986, P.S. Bargadwan, district Maharajganj by which the accused respondent has been acquitted of the charges under Sections 409 IPC.

Brief facts of the case, in nutshell, are that informant Nagendra Singh, Circle Officer, Farenda moved a written report with the averments that Arun Kumar Singh brother of Pramod Kumar Singh was posted as Constable at Police Station Bargadwa. On 2.8.1986 on account of holiday, while going to his house, he died in a road accident. He was having arms licence. His gun and licence were deposited on 18.10.1986 at the police station concerned. Brother of the deceased wanted to inherit / transfer the said licence in his name and applied for. For the said purpose, the District Magistrate concerned had demanded certificate regarding deposition of the said licence and the gun. On enquiry the said gun was not available in the malkhana. The said gun was deposited on 18.10.1986 at 11.30 vide rapat no. 14. Entry of the said gun in the G.D. was made by the accused respondent Ram Sewak. It was also revealed that Ram Sewak and Kashi Nath Singh were posted as Head Moharrir but thereafter Kashi Nath Singh was transferred and Head Constable Jagdish Rai handed over the charge of Malkhana. After enquiry in the matter, Head Constable Kashi Nath Singh and Constable Ram Sewak were found responsible and charge sheet against them was submitted. Concerned Magistrate took cognizance.

Accused persons appeared and charge under Section 409 IPC was framed in the trial court against them. Accused have denied the charges framed against them and claimed their trial.

Trial proceeded and on behalf of prosecution, nine witnesses i.e. PW-1 Nagendra Singh, Circle Officer, Farendra, PW-2 Hasan Abbas, the then S.O., Bargadwa, PW-3 S.I. Jagdish, the then Head Constable, Bargadwa, PW-4 Head Constable Paras Nath Mishra, the then Head Constable, Bargadwa, PW-5 Birbali Yadav, Constable Driver, PW-6 Pramod Kumar Singh, PW-7 Rakesh Singh, the then Chauaki Incharge Thuthibari, PW-8 Ramraj Singh, Sub-Inspector and PW-9 S.I. Jagdish Singh, were examined.

After closure of prosecution evidence, statement of accused persons under Section 313 Cr.P.C. was recorded in which they denied the allegations and stated that the witnesses have tendered false statement.

Having heard the learned counsel for the parties and going through the record, the trial court found that the prosecution has fully succeeded in bringing home the charges against the accused respondent Ram Sewak beyond reasonable doubt and convicted and sentenced the accused respondent but acquitted the another accused Kashi Nath Singh giving him benefit of doubt.

Against the said order of conviction and sentence, the accused respondent Ram Sewak preferred criminal appeal before the Sessions Judge, Maharajganj being Criminal Appeal No. 22 of 2008. The lower Appellate Court after hearing the parties and considering the matter in detail, was of the opinion that the appellant (Ram Sewak) was found not guilty for the offence punishable under Section 409 IPC and vide order dated 8.12.2009 allowed the said appeal and set aside the order of conviction and sentence dated 4.10.2008 passed by the trial court.

Aggrieved with the said judgment and order dated 8.12.2009, the State Government has preferred the present appeal.

Vide order dated 26.9.2016 the leave to appeal application was allowed and the appeal was admitted.

Heard Shri Ratan Singh, learned AGA appearing for the State as well as Shri Punit Bhadauria, learned counsel for the accused respondent.

It is submitted by the learned AGA appearing for the State that prosecution has proved its case beyond reasonable doubt. Judgment and order passed by the trial court was in accordance with law and evidence. Accused respondent had received the gun in question. This fact was established by the prosecution before the trial court through documentary evidence. The lower appellate court illegally reversed / turned the findings arrived at by the trial court and acquitted the accused respondent from the charges. To substantiate this argument, learned AGA referred to entire evidence adduced before the Trial Court and further submitted that appeal is liable to be allowed and the judgment and order passed by the lower appellate court is liable to be set aside confirming the judgment and order passed by the trial court.

On the other hand, learned counsel for the accused respondent argued that though the accused respondent had received the gun in question yet he was transferred from his post and thereafter several other police personnel joined the said post on different time. Referring to statement of the brother of the deceased constable it is next contended that PW-6 Pramod Kumar Singh has specifically stated that after handing over the gun in question at the police station concerned, he visited two occasions and found the gun available at the police station concerned. Finding arrived at by the lower appellate court is in accordance with law. It was the duty of the Station House Officer concerned as well as the Malkhana Moharrir to keep the gun in question safely in the Malkhana and to have made entries in this regard in the Malkhana Register. Accused respondent was not responsible to perform the aforesaid duties, therefore, the lower appellate court has rightly reversed / turned down the findings recorded by the trial court in the said judgment and order. There is no infirmity, illegality or perversity in the impugned judgment and order. Findings arrived at by the lower appellate court in the impugned judgment and order are in accordance with law and evidence.

We have considered the submissions advanced by the learned counsel for the parties and have gone through the entire record carefully.

The lower appellate court in the impugned judgment and order observed as under :

"---------vc ns[kk ;g tkuk gS fd D;k ,d ,slh cUnwd tks eky eqdnekrh ugha Fkh] og vkj{kd Mªkboj chjcyh ;kno dh 4619 Fkk ;k v:.k dqekj flag dh cUnwd ,l0ch0ch0,y0 ua0&4517 FkhA chjcyh ;knoh ih0MCyw0&5 us rks ;g dgk gS fd og Fkkus ds eky[kkus esa viuh Hkh cUnwd uEcj&4619 j[krk Fkk vkSj ogka ij e`rd v:.k dqekj flag dh Hkh cUnwd jgrh Fkh ftldh lQkbZ Hkh og djrk FkkA bldk lh/kk vkSj rkRdkfyd vFkZ ;g gqvk fd ,d cUnwd tks eky eqdnekrh ugha Fkh og 4517 Fkh u fd 4619 tSlk fd ih0MCyw0&4 ikjlukFk feJ us vius lk{; esa dgk gS vkSj ;fn ;g cUnwd chjcyh ys x;k Fkk rks Fkkus ds eky[kkus dk izHkkjh gksus ds dkj.k bl lk{kh dk ;g nkf;Ro Fkk fd og blls lEcfU/kr izFke lwpuk izfrosnu ntZ djokus dk iz;kl djrk ijUrq mlds }kjk izFke lwpuk izfrosnu ntZ djokus dk iz;kl u djus dh ckr Lohdkj dh x;h gSA Lej.kh; gS fd bl le; de ls de Fkkus ds fyfid vkj{kd ds in ij [email protected];qDr jke lsod ugh jg x;k Fkk D;ksa fd fofHkUu lkf{k;ksa ds lk{; ls Li"V gS fd ikjl ukFk ds tekurs esa fyf[kd vkj{kd dksbZ mek'kadj Fks vkSj ih0MCyw0&3 txnh'k jk; ds le; dksbZ ^*ik.Ms;^* vkj{kd fyfid FksA

bl izdkj lk{; ls ;g Li"V gS fd th0Mh0 fy[krs le; e`rd v:.k dqekj flag dh tks ,l0ch0ch0,y0 xu ua0 4517 [email protected];qDr jkelsod dks U;Lr dh x;h Fkh og fof/kor eky[kkus esa tek dj nh x;h Fkh vkSj eky[kkus esa mDr cUnwd ds tek gksrs gh [email protected];qDr jkelsod dk U;kl lekIr gks x;k Fkk vkSj ;gkW rd fd tc og Fkkus dk vkj{kd fyfid ugha jg x;k rc Hkh mDr canwd ds Fkkus ds eky[kkus esa j[kus ds rF; dh iqf"V gks tkrh gSA dsoy fdlh eky ds u;Lr gksus ds dkj.k gh vfHk;qDr dks /kkjk&409 Hkkjrh; n.M fo/kku ds v/khu nf.Mr ugha fd;k tk ldrk vkSj fo'ks"kdj ml fLFkfr esa tc fd og vius U;kl esa vk;h cUnwd dks Fkkus ds eky[kkus esa tek djk fn;k FkkA m0iz0 iqfyl jsxqys'ku ds vuqlkj eky[kkus dk izHkkj] Fkkus ds [email protected] eksgfjZj dk gksrk gSA bldk lh/kk vFkZ ;g gqvk fd eky[kkuk ,oa mlesa j[kh oLrq dks ntZ djus dk nkf;Ro Hkh gsM eksgfjZj dk gh gksxk u fd Fkkus ds vkj{kd ys[kd [email protected];qDr jke lsod ds ÅijA Li"Vr% eky[kkuk jftLVj esa ;fn th0Mh0 ds bUVªh ds vuqlkj e`rd v:.k dqekj flag dh cUnwd dh izfof"V ugha gqbZ Fkh rks mldk Hkh dksbZ mRrjnkf;Ro [email protected];qDr jke lsod ds Åij fof/kr% izrhr ugha gksrk gSA

blh dze esa ;g Hkh /;ku esa j[kuk gksxk fd Fkkus esa vofLFkr eky[kkus esa j[ks x;s lkekuksa dk tks fof/kd mRrjnkf;Ro gS] mlds fo:) bl ekeys esa vkj{kd Mªkboj chjcyh ;kno fcuk izfof"V fd;s gh viuh cUnwd og eky[kkus esa j[krk Fkk] tSlk fd lk{khx.k us dgk gSA vFkkZr Fkkus ds eky[kkus esa vuf/kd`r yksxksa dk vuf/kd`r izos'k lEHko FkkA ;gkW rd fd ih0MCyw0&4 ikjl ukFk feJ ds lk{; ds vuqlkj mudh vuqifLFkfr esa mudh vuqefr ds fcuk de ls de vkj{kd pkyd chjcyh ;kno Fkkus ds eky[kkus esa j[kh viuh cUnwd dks ys x;k FkkA ekuuh; bykgkckn mPp U;k;ky; dh [k.MihB us m0iz0 jkT; izfr jkepUnz flag 2000¼1½ ,0lh0vkj0vkj0 i`"B 361 esa ;g Li"V fn'kk&funsZ'k fn;k gS fd tgkW ij dsoy eky[kkus esa vfHk;qDr ds vfrfjDr vU; O;fDr;ksa dk Hkh izos'k lEHko gks rks fdlh vU; O;fDr }kjk Qkmy xse [ksys tkus dh lEHkkouk ls budkj ugha fd;k tk ldrk gS vkSj ,slh fLFkfr esa ekuuh; mPp U;k;ky; us fo}ku voj U;k;ky; ds bl vfHker dh iqf"V djrs gq;s vfHk;qDr dks foeksfpr dj fn;k fd ,sls ekeys esa vfHk;qDr dks /kkjk&409 Hkkjrh; n.M fo/kku ds v/khu nks"kh ugha ekuk tk ldrkA tSl fd Åij foospuk dh tk pqdh gS fd Fkkuk cjxnok ds eky[kkus esa LorU= vkSj Li"V :i ls vkj{kd pkyd chjcyh ;kno viuh cUnwd j[k ldrk Fkk] ys tk ldrk Fkk vkSj th0Mh0 esa bldk mYys[k rd dh Fkkus esa vko';drk ugha le>h tkrh FkhA blls Li"V gS fd Fkkuk& cjxnok ds eky[kkus esa ,sls yksx Hkh izos'k dj ldrs Fks tks blds fy;s vf/kd`r ugha FksA ,slh ifjfLFkfr;ksa esa cUnwd dksbZ vU; O;fDr Hkh xk;c dj ldrk Fkk vkSj mlds fy;s dsoy [email protected];qDr jke lsod dks nks"kh ugha ekuk tk ldrk vkSj ;g rks rc vkSj Hkh egRoiw.kZ gS fd Hkys gh [email protected];qDr jke lsod Fkkus dk ys[kd vkj{kd jgk gks ijUrq Fkkus ds eky[kkus dk izHkkj m0iz0iqfyl jsxqys'ku ds iwoZ of.kZr /kkjkvksa ds vuqlkj Fkkus ds [email protected] dk Fkk u fd vfHk;[email protected] jkelsod dkA"..........""

The trial court while convicting and sentencing the accused respondent was of the view that the gun in question was entrusted to the accused respondent and thereafter it was missing. Thus, accused respondent was responsible and liable for missing of the same. If the aforesaid findings of the trial court are compared with the findings arrived at by the lower appellate court in the impugned judgment and order it is evident that gun in question was entrusted to the accused respondent, he had made entry in the general diary in this regard and thereafter it was kept in Malkhana. This fact finds support with the statement of brother of the deceased PW-6- Pramod Kumar Singh. This witness visited the police station concerned on two occasions after entrusting the gun in question to the accused respondent and all the time he found the gun available in the police station concerned. It is also evident from the record that accused respondent was not responsible for safety of the property / articles kept in Malkhana. The lower appellate court has rightly observed in the impugned judgment and order that the Station House Officer / Head Moharrir concerned were responsible for keeping the articles / goods safely in the Malkhana. The Station House Officer would have inspected the Malkhana on a number of occasions. If the gun in question was missing from the date of entrustment to the accused respondent, this fact would have come into light during inspection itself. It is also pertinent to mention here that lower appellate court on the basis of statement of prosecution witnesses has rightly observed that unauthorized persons had assess in the Malkhana of the police station concerned. If such is the position, findings recorded by the lower appellate court in the impugned judgment and the order exonerating the accused respondent from the charges levelled against him cannot be termed to be illegal, improper or illogical. Further, accused respondent can also not be convicted in this matter merely on the basis of departmental enquiry.

Considering the entire aspects of the matter, we are of the view that impugned judgment and order passed by lower appellate court is well thought and well discussed and lower appellate court has rightly held that prosecution has not succeeded to prove guilt of accused respondent beyond reasonable doubt. The accused appellant is found not guilty for the offence punishable under Sections 409 IPC. As such, impugned judgment and order passed by lower appellate court is liable to be upheld and government appeal having no force is liable to be dismissed.

Accordingly present government Appeal is dismissed and the impugned judgment and order passed by the lower appellate court is affirmed.

Order Date :- 12.4.2022

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