Basudeo vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:160178
 
Court No. - 81
 

 
Case :- CRIMINAL REVISION No. - 288 of 1988
 

 
Revisionist :- Basudeo
 
Opposite Party :- State
 
Counsel for Revisionist :- G.S.Chaturvedi
 
Counsel for Opposite Party :- A.G.A.,A.N.Bhargava,L.C.Pandey
 

 
Hon'ble Umesh Chandra Sharma,J.

1. At the time of hearing none appears from the side of revisionist, hence, after hearing the arguments of the learned A.G.A. and after perusal of the records, this order is being passed on merit.

2. This revision has been preferred by Basudeo informant against the acquitted accused Ram Tirath Pandey O.P No.2, on the grounds that the learned Sessions Judge did not consider the facts and circumstances of the case, he was unduly impressed by the delay in the lodging of the F.I.R. He overlooked the fact that the F.I.R. was lodged only after permission was obtained from the D.I.O.S. Banda, and thus the delay had been duly explained. The documents were later on recovered from the accused. The whole approach of the learned Sessions Judge is wholly, illegal and perverse. Hence, the order of the appellate Court be set aside and accused O.P. No.2 be punished and sentenced.

3. In brief, facts and circumstances of the case are that the Manager of Hanumant Higher Secondary School Banda moved a written complaint on 12.11.1981 to the effect that when on 10.11.1981 he reached the school, Clerk Amar Nath Singh informed in writing to him that when he reached the school, he found the broken open lock of the almirah and important documents were missing. Chaukidar Sigdar had also given written complaint to him that on 09.11.1981 at about 9:00 p.m. Principal Ram Tirath Pandey, accompanied with two unknown persons had come to the school, thereafter came to the conclusion that Ram Tirath Pandey had opened the lock and took away the papers related to the school. Being Principal, he did not forbid him. The informant also added that it was done by the accused to cause harm for his personal benefit and he has committed breach of trust. The informant informed the D.I.O.S Banda and as per his order he lodged the F.I.R.

4. On the basis of written complaint case under Section 457, 380, 406, IPC was registered and after investigation, a charge sheeted under Section 406 I.P.C. was submitted. A charge under Section 406 I.P.C. was framed from which the accused denied and sought trial. In support of the prosecution following witnesses were examined.

1.

PW-1

Basudeo

2.

PW-2

Sigdar

3.

PW-3

Amar Nath Singh

4.

PW-4

Ram Swaroop Pandey

5.

PW-5

Ragunandan Das.

5. In defence, no witness was examined.

6. The learned Appellate Court concluded that the alleged documents were taken back on 25.08.1982 by the acting Principal Ram Swaroop Pandey from the Ex Principal Shri Subhash Chandra Dwivedi and this fact has not been challenged by the accused.

7. The trial court held that it could not be proved from the side of accused that the prosecution witnesses were inimical to him and had deposed against him on account of enmity. So far as the delay in lodging F.I.R. is concerned, it was concluded that there was no any reasonable delay in lodging F.I.R. and whatsoever delay had occurred, it was duly explained by the prosecution. The accused O.P. No.2 was convicted under Section 406 I.P.C. and was sentenced to four months rigorous imprisonment and 500/- fine with default stipulation.

8. The order of the learned Magistrate was challenged in appeal vide Criminal Appeal No. 09 of 1985 (Ram Tirth vs. State) which had been decided by A.S.J. Karvi Banda. The learned Appellate Court, concluded that there was undue delay in lodging the F.I.R. as  the alleged occurrence occurred on 09.11.1981 but why so late F.I.R. was lodged. The learned Appellate Court has also found malice behind lodging the F.I.R. on account of dispute amongst the members of Management Committee, Ragunandan Das and Subhash Chandra Dwivedi. These two persons were appointed as Manager of the concerned school time to time. Learned Appellate Court stressed on the fact that if such offence had been committed in the evening, it was duty of the Chaukidar to inform the Manager immediately but he informed the Manager on the next day morning. It has also been pointed out that the house of informant Basudeo, was at a distance of 25 to 30 yards away. Therefore, the Chukidar, could have informed him even in the alleged night. The learned Appellate Court also considered the fact that upto 11th November, 1981, no report was made to the concerned police station. According to the informant when D.I.O.S. Banda directed him to lodge the F.I.R. only then F.I.R. had been lodged on 12.11.1981. The learned Appellate Court also pointed out the fact that according to the Chaukidar, the accused opened the lock and have not broken the lock. But according to clerk Amar Nath Singh it had been broken. According to Chaukidar, it had not been broken. It has also been considered by the learned Appellate Court that the informant Basudeo, Manager PW-1, PW-2 Chaukidar Sikdar, PW-3 Clerk Amar Nath Singh, are the residents of the same village Shiv Puri. Thus, the learned Appellate Court concluded that there might be conspiracy between all the three witnesses for falsely implicating the Principal. It has also been taken into account by the appellate Court that the informant has admitted that there was close relation between the Principal Ram Tirth, the Ex-Principal Subhash Chandra Dwivedi who was also claiming to be the Manager of the school. Therefore, the informant was treating the Principal to be a person in connivance with the ex-Manager Subhash Chandra Dwivedi.

9. The learned Appellate Court, has also concluded that in such circumstances when the dispute about the Management Committee was going on and the Chaukidar was related to the Principal, the accused would not steal the documents after breaking the lock of the school. The learned Appellate Court also suggested that if such act was intended by the Principal, he would have sent the Chaukidar out of the school for some time and would have taken the documents easily. The fact that few of the documents were provided by second Principal Ram Swaroop on 25.08.1982, saying that they were given to him by Subhash Chandra Dwivedi is a doubtful factor. So, it was the duty of I.O. to interrogate to Subhash Chandra Dwivedi as to how documents were with him and such omission on the part of I.O. goes against the prosecution while the charges sheet had been submitted on 30.09.1982.

10. Learned Appellate Court has also discussed the fact regarding wrongful gain to the accused. The learned Appellate Court concluded that it has not been established that by doing so, the accused could get any benefit and gain. Thus, the learned Appellate Court, concluded that no wrongful gain has been procured by the accused. Learned Appellate Court did not found as to how and which type of misappropriation of the records had been committed by the accused. The learned Appellate Court concluded that since there was no possibility of any wrongful gain to the accused, therefore, it was not a case of Section 406 I.P.C. but it might be a case of theft.

11. On the basis of aforesaid discussion, learned Appellate Court concluded that the prosecution could not prove the case beyond reasonable doubt, therefore, allowed the appeal and set aside the judgment of conviction and sentence passed by the Munsif Magistrate, Karvi Banda.

12. This Court has also considered the whole evidence and aspect of the case and comes to the conclusion that the reasoning recorded by the learned Appellate Court, is not liable to be interfered with. The reasons assigned by the learned Appellate Court are true and correct, as the witnesses of facts were interested witnesses and were also very close to the informant, therefore on account of existing dispute of Management and that the accused Principal was a person of the side of Ex-Manager Subhash Chandra Dwivedi he was falsely implicated in the case. It does not appear that O.P. No.2, accused had received any wrongful gain or had committed the alleged offence in the manner as alleged by the prosecution.

13. On the basis of above discussion, this Court is of the view that this revision has no merit and is liable to be dismissed.

14. Accordingly, this revision is dismissed and the order of the Appellate Court is affirmed.

15. Let the lower Court record be sent back to Munsif Magistrate, Karvi Banda alongwith a copy of this judgment for consignment of record.

Order Date :- 7.8.2023

Imtiyaz

{ Umesh Chandra Sharma,J.}