Uttam Singh vs State Of U.P. And Another
2023 Latest Caselaw 8725 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

											Reserved on  01.02.2023
 
 Delivered on 24.03.2023
 
Court No. - 29 
 
Case :- CRIMINAL REVISION No. - 246 of 2014 
 
Revisionist :- Uttam Singh 
 
Opposite Party :- State of U.P. and Another 
 
Counsel for Revisionist :- Suresh Chandra Shukla 
 
Counsel for Opposite Party :- Govt. Advocate 
 

 
Hon'ble Mrs. Renu Agarwal,J.

1. The present Criminal Revision under Sections 397 read with Section 401 Code of Criminal Procedure is filed against the Judgment and Order dated 28.05.2014 passed by Sri Rizwanul Haq, the then Additional Sessions Judge, Court No.9, Unnao, passed in Criminal Appeal No.24 of 2014 (Uttam Singh Vs. State of U.P.) as well as against the judgment and orde dated 14.02.2014 passed by Additional Chief Judicial Magistrate, Court No.4, Unnao, in Criminal Case No.1204 of 2003, arising out of Case Crime No.107 of 1989, under sections 457, 380, IPC, Police Station Sohramau, District Unnao. The learned trial court has convicted the revisionist under section 411 IPC for one years imprisonment and fine of Rs.2000/- and further imprisonment of one month in default of payment of fine.

2. According to FIR version brief facts of the case are that ancesters of complainant constucted a temple of Ram Janki, Lakshman, Radha Krishna, Bajrang Bali and Jehar Mahraj, establishing seven idols of Asthadhatu. The complainant suspected that in the mid-night of 10/11 June 1989 Goverdhan Lal son of Krishna Bihari took away all the seven idol of Asthadhatu and Jwelery of gods and utensils used in performing rituals.

3. On the basis of written report, FIR (Ex. Ka-3) was registered under sections 457 and 380 IPC and endorsed in G.D. (Ex.Ka-4). Investigation was conducted by investigating officer, who recorded the statements of witnesses and inspected the site and prepared site plan Ex.Ka-5 and Ex.Ka-6. Prepared the recovery memo (Ex.Ka-2) and submitted charge sheet(Ex.Ka-7) against accused Goverdhan Shukla, Rajesh Kumar Tiwari, Uttam Singh, Amrit Lal, under sections 457, 380 and 411 IPC.

4. After the compliance of section 207 Cr.P.C. the charges were framed against the accused Goverdhan Shukla, Rajesh Kumar Tiwari, Uttam Singh, Amrit Lal, under sections 457, 380 and 411 IPC. Uttam Singh and Amrit Lal absconded during the trial and the case of co-accused Goverdhan Shukla and Rajesh Kumar Tiwari was decided by the court seperately on 15.12.2012, as Case No.1204-A of 2003. During the trial Amrit Lal has expired and case was abated against him. Uttam Singh was convicted by the trial court under section 411 IPC only.

5. In order to prove the charges against Uttam Singh Prosection addused P.W.-1 Rambaran Yadav, P.W.-2 Constable Jahir Ahmad, P.W.-3 Constable Sundar Lal Verma and P.W.-4 S.O. Shyma Kant Tiwari.

6. After the conclustion of prosecution evidence the statement of Uttam Singh was recorded under section 313 Cr.P.C. Accused denied all the allegations against him and stated that he is falsely implicated in the present case and he was arrested on the basis of false and fabricated recovery. Appellant was given opportunity to adduce defence evidence which he denied to avail of.

7. On the basis of evidence on record, learned trial court raached to the conclusion that FIR was registered by the complainant at 10.15 A.M. on 11.06.1989 without any delay under Section 457 and 380 IPC and the idols were recovered from the possession of all the four accused on 11.08.1989, hence the charge under section 411 was enhanced during the investigation. Recovery memo is proved in court by the witnesses, who identified their signatures on recovery memo. It is also mentioned in the judgment that all the idols recovered from the possession of the accused were identified by the complainant as well as villagers and it is a case of public recovery. Two of the witnesses who have signed the recovery memo, expired during the trial, whose signature were identified by the complainant himself. On the basis of recovery memo and the evidence on record the learned trial court convicted the present revisionist under section 411 IPC only and acquitted the accused/revisionist under sections 457 IPC and 380 IPC. Present revisionist was sentenced with regrious imprisonment of one year and fine of Rs.2,000/-, failing which, the additional simple imprisonment of one month was also awarded.

8. Aggrieved with the judgment passed by the trial court, first appeal was filed by the appellant before the sessions court and the sessions court confirmed the judgment and order passed by the trial court dated 14.02.2014 under section 411 IPC, vide judgment dated 28.05.2014. Aggrieved with the judgment and order dated 14.02.2014 passed by Additional Chief Judicial Magistrate, Court No.4, Unnao and order dated 28.05.2014 passed by Additional Sessions Judge, Court No.9, Unnao, the present appeal is filed.

9. Heard Sri Suresh Chandra Shukla, learned counsel for the revisionist and learned AGA for the State and perused the material brought on record.

10. Learned counsel for the revisionist submitted that in the mid night of 10/11 June 1989 the accused Goverdhha Lal has theft the statue of Ram Janki, Lakshman, Radha Krishna, Bajrang Bali and Jehar Mahraj, from the temple. The statue of Lakshman is said to have recovered from the possession of present accused Uttam Singh. Both the trial courts below passed the judgment without considering the entire facts and circumstances mentioned in the first information report. There are material contradictions between the statements of witnesses and version of FIR. The investigating officer falsely shown the recovered statue of Lakshman from the possession of the revisionist. There are manifest error in the judgment of trial court which has wrongly been affirmed by the first appellant court. Revisionist has no criminal antecedents prior to this case. Learned trial court wrongly withhold the relief of probation to the present revisionist. The learned trial court should have given the cogent reason for not releasing the revisionist on probation. The revisionist has completed about about five months in jail out of total one year for which he was sentenced. Learned trial court did not provide the benefit under section 243 Cr.P.C. to the revisionist for defending his case, therefore the judgment and order dated 28.05.2014 passed by Additional Sessions Judge, Court No.9, Unnao, confirming the judgment and order dated 14.02.2014 passed by Additional Chief Judicial Magistrate, Court No.4, Unnao, are liable to be set-aside. It is further prayed to acquit the revisionist from the allegations made in Criminal Case No.1204 of 2003, arising out of Case Crime No.107 of 1989, under section 411 IPC.

11. On the contrary, learned AGA for the State submitted that public traped the revisionist in the fields of one Suryanand and the recovery was made on the public place. Recovery memo is proved by complainant and P.W.-2 Jahir Ahmad, therefore, the judgment dated 14.02.2014 passed by Additional Chief Judicial Magistrate, Court No.4, Unnao, which was confirmed by judgment dated 28.05.2014 passed by Additional Sessions Judge, Court No.9, Unnao, do not suffer from any infirmity and is liable to be upheld.

12. During the argument learned counsel for appellant submitted that the case is old case of 1989, which was decided in the year 2014, after the laps of 25 years. The accused revisionist is old person and he has already served out the sentence of 5 months out of total sentence of one year and still he is under litigation, therefore, without challenging the order of conviction he confined himself only on the point of sentence.

13. It transpires that initialy FIR was written against unknown persons and accused was not named in the FIR. Later on the statue of Laxman is said to have recovered from the possession of the present accused after two months of the incident, hence the accused was convicted under section 411 IPC only. The recovery of statue was made from the possession of the accused from open place from the field of one Suryanand. Accused Goverdhan Lal son of Krishna Bihari was named for the theft of statues in the FIR. The case of co-accused Goverdhan Lal and Rajesh Kumar Tiwari has already been decided vide judgment dated 15.12.2012 and co-accused Amrit Lal has died during the trial and the appeal is abated against him. P.W.-1 stated on oath that at the time of recovery, the statue of Ram and Krishna was recovered from the possession of co-accused Goverdhan Lal and the statue of Radhika and Shankar were recovered from the possession of co-accused Rajesh Kumar Tiwari. The statue of Bajrang Bali and Jehar Mahraj were recovered from the possession of co-accused Amrit Lal (now deceased). The statues were identified by Rambaran(P.W-1), who stated on oath during trial that the temple was constructed by his ancesteres and seven statues were installed in the temple. P.W.-1 identified those statues in the court, which are exhibited as material exhibit-1 to material exhibit-7 and specifically proved the recovery of material exhibit 1-A, which was recovered from the possession of present revisionist. It is also stated by P.W.-1 that Ganga Prasad and Saligram were the witnesses of recovery, who have expired during the trial and could not appear in the court to prove the recovery. Constable Jaheer Ahmad (P.W.-2) is the witness of recovery who alongwith S.O. Shyam Kant Tiwari(P.W.-4), S.I. Jang Bahadur Yadav, S.I. Panna Lal Baiga, Constable Bhagauti Singh, Constable Ram Kishore Kanaujiya, Constable Sundar Lal and police jeep driver Devendra Kumar Singh, was present at the spot of recovery and proved the recovery memo. It is also proved by him that the statue of Laxman weighted about 8 Kg. was recovered from the possession of revisionist Uttam Singh. No explanation is advanced by the accused-revisionist during his statement recorded under section 313 Cr.P.C. regarding the recovery of statue. P.W.-3 Constable Sundar Lal Verma and P.W.-4 S.O. Shyma Kant Tiwari also proved this recovery memo. FIR was lodged without delay, therefore, prosecution proved its version beyond reasonable doubt that statue of Laxman was recovered from the possession of present revisionist Uttam Singh with cogent evidence. Therefore, the conviction held by the trial court and confirmed by first appellate court is hereby confirmed.

14. So far as sentence is concerned, it is undisputed that FIR was lodged in the year 1989 and the present accused was convicted in the year 2014. It is explicit from the judgment itself that accused Uttam Singh did not appear in court and warrant under section 82 and section 83 was send against present revisionist to ensure his presence.

15. It transpires from record that accused was acquitted from the charges under Section 457 and 379 IPC and was convicted and sentenced for the offence under Section 411 IPC only. Revisionist is now old age person of 65 years and suffering from several chronic diseases and he has sereved incarceration of the period of 5 months out of total period of one year, for which he was sentenced and he has already deposited the fine of Rs.1,000/- in compliance of the court's order on 11.03.2014. Receipt dated 11.03.2014 is on record. All the statues have been recovered and private respondent No.2 has also expired.

16. In the above mentioned circumstances the purpose of law will be fulfiled, if the punishment is reduced to the period already undergone by the appellant and the fine is enhanced from Rs.2,000/- to Rs.10,000/-.

17. Accordingly, the revision is partially allowed and the conviction of the revisionist is confirmed under section 411 IPC. The period of incarceration is reduced to the period already undergone by the revisionist and the fine is enhanced from Rs.2,000/- to Rs.10,000/-. The remaining fine shall be deposited by the revisionist within 15 days from the date of judgement and the fine already deposited shall be adjusted towards the fine to be deposited by the revisionist.

18. The lower court record alongwith the copy of this order shall be remited to the court concerned for compliance of the judgment and necessary action, immediately.

(Renu Agarwal,J)

Order Date :-24.03.2023/VKG