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2003 DIGILAW 638 (RAJ)

Khetpal : Gulam Nabi v. State of Rajasthan

2003-04-28

O.P.BISHNOI

body2003
JUDGMENT 1. - These two revision petitions have been filed by the three accused-persons after their appeal was dismissed by the learned Additional Sessions Judge (Fast Track), Anoopgarh vide judgment dated 17.1.2003. 2. According to the prosecution story on 28.10.1992 PW-1 Immam Shah S/o Mohd. Shah, Resident of Village Thukrana produced a typed report Ex.P/1 before the Superintendent of Police, Sriganganagar and the same was sent to police station, Suratgarh where a case u/ss. 420 of the IPC was registered. 3. As per the report lodged by Immam Shah, Gulam Nabi, Ajoob Khan, Khetpal Bhadu `etc.' have formed in unlawful assembly and are indulging in cheating various people. Further it was stated that one of the relations of the complainant-Immam Shah by the name of Ahmed Shan (PW-6) was also cheated by the said group. According to the report the accused-persons received Rs. 40,000/- in cash from the said Ahmed Shah with a promise that they know the art of doubling the money and decamped with the money, leaving Ahmed Shah high and try. 4. According to the report Ex.P/1 thereafter many a times `panchayat :' were convened but the said accused-persons refused to return the mone. Further it was stated that the accused-persons were experts in counter feiting currency notes which were being manufactured by them. Request was made that a case may be registered against Gulam Nabi, Ajoob Khan and Khetpal Bhadu. During investigation the three petitioners and one Dev Dutt were arrested and the challan against all the four was filed in the Court of Additional Chief Judicial Magistrate, Suratgarh. All the four were charged for the offence punishable u/s. 420 of the IPC to which they pleaded not guilty. The fourth accused-Dev Dutt died during trial. Eight witnesses were examined by the prosecution and thereafter statements of the accused-persons were recorded u/s. 313 of the IPC and they denied the whole story. DW/1 Jotram and DW/2 Makku shah deposed to the effect that Ahmend Shah was a poor person without any means and incapable of having Rs. 40,000/- at her residence. Further they stated that Ahmed Shah and Gulam Nabi were politically opposed to each other and on that account the prosecution was lodged. Thereafter the learned trial Court heard the arguments and delivered the judgment on 2.11.1998. 40,000/- at her residence. Further they stated that Ahmed Shah and Gulam Nabi were politically opposed to each other and on that account the prosecution was lodged. Thereafter the learned trial Court heard the arguments and delivered the judgment on 2.11.1998. All the three petitioners were found guilty of the said charge and each one was awarded rigorous imprisonment for five years and a fine of Rs. 5,000/-. On non-payment of fine simple imprisonment for six months was awarded to each one of them. An appeal against the said judgment was filed before the learned Additional Sessions Judge No. 2 Sriganganagar camping at Suratgarh which subsequently was transferred to the Court of learned Additional Sessions Judge (Fast Track), Anoopgarh, who dismissed the same on 17.1.2003. S.B. Criminal Revision Petition No. 96/2003 has been filed by Gulam Nabi and S.B. Criminal Revision Petition No. 100/2003 has been filed by Khetpal and Ubeeshah. 5. I have heard the learned counsel for the petitioners as well as learned Public Prosecutor for the State and I find that both the petitions deserves to be allowed. 6. The finding of guilt mainly has been based on the testimony of PW/6 Ahmed Shah, his wife Reshma (PW-7), PW-2 Immam Shah and PW-1 Liyakat Ali. Ahmed Shah and Reshma are said to be the aggrieved eye-witnesses from whom the money-in-question was allegedly cheated. PW/2 Immam Shah is said to be a relation of the said Ahmed Shah, who subsequently lodged a report Ex.P/4 before the Superintendent of Police, Sriganganagar. PW-1 Liyakat Ali is said to be the person before whom the four accused-persons allegedly admitted about their crime and in this way made an extra judicial confession. 7. I, however, find that the evidence is too unsatisfactory to inspire confidence. So far as the evidence regarding the extra judicial confession is concerned, Liyakat Ali, who was examined on 15.10.1993, has deposed that on 1.11.1992 the four accused-persons came to him and admitted about their crime and requested him to bring about a compromise between them and Ahmed Shah. The evidence is too unsatisfactory and it has come in the cross-examination that the aggrieved person Ahmed Shah was not even known to PW-1 Liyakat Ali. The evidence is too unsatisfactory and it has come in the cross-examination that the aggrieved person Ahmed Shah was not even known to PW-1 Liyakat Ali. Needless to say that PW-1 Liyakat Ali was not a person, who could exercise any influence over Ahmed Shah and it is unnatural, if such a request in the light of above circumstances would be made to him. It is further not clear as to how the police was able to trace him and recorded his statement u/s. 161 of the Cr.P.C. Neither Immam Shah nor Ahmed Shah has stated that they ever came to know about the alleged confessional statement before Liyakat Ali. 8. The testimony of PW-2 Immam Shah also does not inspire any confidence. He lodged the FIR Ex.P/1 and has improved upon it. During his deposition in the Court, he has stated that the accused-persons again demanded Rs. 20,000/-, so that Rs. 40,000/- could be returned to Ahmed Shah. There is no such allegation in the FIR Ex.P/1. 9. There is a mention in the report Ex.P/1 to the effect that `panchayats' were convened more than once to sort out the matter. Needless to say that there were many persons, who must have attended the `panchayats'. Strangely enough not even a single person in this respect has been examined to corroborate the story. In the testimony of Immam Shah, it has come that out of the four, three accused-persons were called at the house of Surj an Singh and negotiations took place in the presence of 8-9 other persons of the village. Neither Surjan Singh has been examined nor any one out of the other 8-9 persons has been examined. According to PW/2 Immam Shah, `Pradhan' of the area, Birbal Singh, was also approached in the presence of 5-6 other persons. Again neither Birbal Singh nor any one out of the said 5-6 persons have been examined. 10. There is a delay of more than 4 months in lodging the report to the Superintendent of Police and there is no proper explanation in respect of the same. During the cross-examination Immam Shah has stated that prior to the going to the Superintendent of Police he went to the police station, Suratgarh but he was thrown out of the police station and hence, the report to the Superintendent of Police. During the cross-examination Immam Shah has stated that prior to the going to the Superintendent of Police he went to the police station, Suratgarh but he was thrown out of the police station and hence, the report to the Superintendent of Police. This allegation of going to the police station does not find place in the report Ex.P/1. PW-6 Ahmed Shah has stated that the money was taken from him on 3.6.1992 and some 10-15 days thereafter Gulam Nabi finally refused to return the money. He has stated that he did not disclose this fact of the cheating to any one in the entire village. Needless to say that the conduct of Ahmed Shah is highly unnatural in this respect. 11. The FIR Ex.P/1 does not say as to on what date, in which month and year, money changed hands. According to the charges, which were framed, the offence took place two days prior to 1.6.1992 that would mean that the offence took place on 30.5.1992. However, according to PW-6 Ahmed Shah, the offence took place on 3.6.1992. 12. The learned Public Prosecutor has argued that the money, which was cheated, has been recovered partly during investigation and Rs. 4,000/-, Rs. 1,800/- and Rs. 2,100/- have been recovered from Gulam Nabi, Ubeeshah and Khetpal respectively. Further it is argued that certain articles, which were used at the time of the alleged incident, were also recovered at the instance of accused-Dev Dutt and in the light of this evidence there was justification to find the petitioners guilty. I find no reason to accept the contention, so far as the recovery of cash is concerned. The same is unidentifiable and it cannot be said and nobody said that the recovered currency notes were the same, which were allegedly handed-over to the accused-persons by Ahmed Shah. The so-called recovery of the articles from the possession of Dev Dutt (since deceased) is of no consequence because neither PW-6 Ahmed Shah nor PW-7 Smt. Reshma has deposed about the same. 13. I further find that during the deposition no question was put to Ahmed Shah and Reshma about the identity of the culprits. None of the two witnesses have formally identified the accused-persons during the depositions. 14. I find that the FIR was filed with undue delay and the same does not disclose the date of the offence. 13. I further find that during the deposition no question was put to Ahmed Shah and Reshma about the identity of the culprits. None of the two witnesses have formally identified the accused-persons during the depositions. 14. I find that the FIR was filed with undue delay and the same does not disclose the date of the offence. So far as the aggrieved person is concerned, he never tried to lodge any FIR. There were many independent persons according to the story, who constituted the `panchayats' but none of them was put up as a witness in the Court. The evidence regarding the alleged extra judicial confession is highly unsatisfactory and PW-1 does not make it clear as to which of the four accused-persons actually spoke to him.In the result, both the revision petitions are allowed. The two judgments delivered on 2.11.1998 and 17.1.2003 are set aside. The three petitioners are acquitted of the charge. The petitioners shall be released forthwith unless needed to be detained in-connection with any other case.Appeal allowed. *******