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2008 DIGILAW 605 (MP)

AKBAR v. STATE OF M. P.

2008-04-22

S.R.WAGHMARE

body2008
Judgment S.R.Waghmare, J. ( 1. ) This revision has been filed under Section 397 read with Section 401 of the Cr. P.C. Being aggrieved by order and sentence dated 16 - 04 - 2004 passed by the 7th Additional Sessions Judge (Fast Track) Ujjain, in criminal appeal No. 14/2004 convicting and sentencing the accused Akbar under Section 381 of the I.P.C and accused Faiz Mohmmad under section 381 of the I.P.C and sentencing both the accused to one year of rigorous imprisonment each with fine of Rs.200/ - each and in case of default of payment of the fine to undergo an additional sentence of two months rigorous imprisonment each. ( 2. ) Brief facts of the prosecution story are that on the date of incident i.e. On 23 - 4 - 1994, 125 quintals of wheat valued at Rs. 51,250/ - was loaded on truck bearing registration No.MBE - 1785 by complainant Dilip Kumar (P.W - 2) of Suraj Trading Company, Ghoda Nikas, Bhopal, as Muneem of the said firm. The truck driven by Akbar son of Babukhan and clearner Razak Ali was to proceed to Pithampur, at Dist. Dhar. On 24 - 4 - 1994 the truck reached Dewas, the accused Akbar stated that he wanted to visit his brother - in - law Faiz Mohmmad, who was residing at village Nogawa Ujjain, and, therefore, they stopped the truck at 9.00 p.m. in the said village and they decided to stay over night in the said village. The complainant Muneem Dilip Kumar (P.W - 2) thereupon said that he would join them at Dewas on the next day. The truck did not arrive from Nogawa, so the complainant Dilip Kumar (P.W - 2) visited the same and found the truck stationed at well of Faiz Mohmmad and truck was empty and did not contain the wheat which had been loaded on it. ( 3. The truck did not arrive from Nogawa, so the complainant Dilip Kumar (P.W - 2) visited the same and found the truck stationed at well of Faiz Mohmmad and truck was empty and did not contain the wheat which had been loaded on it. ( 3. ) On being questioned Faiz Mohmmad, stated that some thief has stolen the wheat in the night and thereupon along with the brother - in - law accused Akbar and cleaner Razak went in search of wheat, thereupon the complainant Dilip Kumar (P.W - 2) tried to get a trace in the market of Dewas, Indore and Ujjain and on not getting any information about the same he had a doubt that the driver Akbar, Razak and Faiz Mohmmad had in collusion stored or stolen the wheat. He lodged the report at Police Thana, Nogawa, vide Ex. P/2 on 24 - 4 - 1994 at 8.30 a.m. stating that the wheat has been stored in gunny bags carrying a red cross mark and crime was registered at No. 53/94 for offence under Section 379 in the alternative under Section 407 of the I.P.C. The investigation officer B.R. Dwivedi (P.W - 5) prepared spot map Ex.P/11 and received the bill for the wheat Ex.P/5, the Mandi form Ex. P/6, biltee of the truck Ex.P/7, the rent note of the truck Ex.P/4 in evidence. The statement of the accused were recorded vide Ex.P/13 and Ex.P/14 and 55 quintals of wheat was seized vide Ex.P/7 from accused Akbar from a room at the back of his house and vide EX.P/15 70 quintals of wheat was recovered from the room where animals are tied at the back of the house of accused Faiz Mohmmad. The truck was seized vide Ex.P/16 and Ex.P/17. ( 4. ) On completion of the investigation the accused were charged for offence under Section 407 of the I.P.C. before the Chief Judicial Magistrate, who in turned committed them to committal Court for their trial. The accused abjured their guilt and stated that they were falsely implicated in the matter. They however, did not examine any witness in their defence. The trial Court on consideration of the facts and circumstances of the case came to a conclusion that the accused were guilty. The accused abjured their guilt and stated that they were falsely implicated in the matter. They however, did not examine any witness in their defence. The trial Court on consideration of the facts and circumstances of the case came to a conclusion that the accused were guilty. Akbar was guilty for offence under Section 381 whereas accused Faiz Mohmmad was convicted for offence under Section 379 as herein above stated whereas, the cleaner Razzak was acquitted from the offence under Section 407 of the I.P.C. ( 5. ) Being aggrieved the accused filed appeal before the 7th Additional Sessions Judge, (Fast Track) Ujjain, who upheld the conviction and sentence and hence the present revision. The revision has been filed mainly on the ground that there has been no ocular testimony. The conviction is based mainly on the evidence of the investigation officer B.R. Dwivedi (P.W - 5) and his testimony has not been corroborated any of the independent witnesses; out of six prosecution witnesses five witnesses have been declared hostile according to the petitioner. It is also been objected the F.I.R. was delayed by five days and was not reliable peace of evidence. More importantly the testimony of the prosecution witness Dilip Kumar (P.W - 2) when the complainant himself has been declared hostile was not trust worthy. He had disposed the bags of wheat which were given to him on suprudginama and was unable to produce them in Court and hence his testimony ought not been relied and both the Courts committed grave error in relying on his testimony. More importantly, the ownership of the wheat was not established in the first place another important objection raised by the petitioner was that the accused were charged under Section 407 but convicted and sentenced under Section 379 and 381 of the I.P.C which was contrary to the provisions of Criminal Procedure Code and no charge was levied under the said sections, therefore, the conviction was vitiated and ought to be set aside. ( 6. ) Counsel for the respondent/State, however, on the other hand has fully supported the judgment of the trial Court as well as appellate Court stating that the appellate Court has properly marshalled the evidence available on record and there was no reasons to doubt the testimony of Inspector D.R. Dwivedi (P.W - 5), who was also investigating officer. ( 6. ) Counsel for the respondent/State, however, on the other hand has fully supported the judgment of the trial Court as well as appellate Court stating that the appellate Court has properly marshalled the evidence available on record and there was no reasons to doubt the testimony of Inspector D.R. Dwivedi (P.W - 5), who was also investigating officer. There are no allegations of mala fide or any previous enmity with the accused to disbelieve this witness, he has remained stead fast on his cross - examination. Moreover, he was also witness of recovery of the wheat from the house of accused Akbar and Faiz Mohmmad and the investigation as well as the seizure are all in accordance with law. Moreover, Counsel has stated that there was no need to doubt the testimony of complainant (P.W - 2) Dilip Kumar, merely because he had been declared hostile, since it was perfectly natural that he had been unable to bring sacks of wheat. The Public Prosecutor was bound to doubt his veracity, however, on cross - examination it is found that he had properly identified the bags when Mr. Sharma of the Gram Panchayat brought the empty wheat bags to Court which have been marked has Ex.P/5 stated that those wheat bags were same bags which were recovered from the accused since they contained identification of the mark of red cross on them. Stating further that the delay in the F.I.R. had occurred because of the search of the wheat bags and the driver and cleaner; the present accused had vanished before they could be properly traced and the delay has been properly explained and there is no need to doubt content of F.I.R. Counsel stated that both the Court below had passed the order after giving cogent and valid reasons for the same and the same seizure as well as investigation proceedings have been in accordance with law. The offence under Section 379 as well as 381 of the I.P.C has been clearly made out and there was no infirmity in the order passed, prayed for dismissal of the revision. ( 7. The offence under Section 379 as well as 381 of the I.P.C has been clearly made out and there was no infirmity in the order passed, prayed for dismissal of the revision. ( 7. ) On consideration the above submissions and evidence on record, I find that the testimony of P.W - 2 Dilip Kumar is credible because although the complainant has been declared hostile only on the ground of his failure to bring empty sacks in Court which has been rectified during the cross - examination and since Falsus in uno, falsus in omnibus is a principle not available in criminal jurisprudence in India and appellate Court has rightly dealt with evidence of this witness and stated that merely because he had been declared hostile at one stage, it was not necessary to discard his entire testimony. If the testimony is considered in totality in para 6 of his cross - examination the witness has justified that the empty sacks which were then ful were recovered from the house of accused Faiz Mohmmad, it was found in the room where the cattle were tied. This evidence is corroborated by testimony of the investigating officer Inspector (Dwivedi P.W - 5), who has been stead fast in his testimony has already noted above. The independent witnesses of seizure may not have supported the prosecution story as they were declared hostile, but this is common occurrence since such witnesses retract their statement in Court being in fear of their life. The testimony of the investigation officer being reliable and his being a public officer there is no need to doubt veracity of his statement. ( 8. The testimony of the investigation officer being reliable and his being a public officer there is no need to doubt veracity of his statement. ( 8. ) The only other objection that needs to be considered is whether the imposition of section 379 and 381 of the I.P.C when the accused were originally charged under Section 407 of the I.P.C. is legal and the trial Court could have without imposing the above charges convicted the accused under Section 379 and 381 of the I.P.C, instead for offence under Section 407 of the I.P.C. The answer to the said objection is available under Section 464 of the Cr.P.C, whereby it is stated that no sentence or order by Court of competent jurisdiction shall be deemed to invalid merely on the ground that no charge is framed under Section 464 of the Cr.P.C. the Section reads thus: - "Effect of omission to frame, or absence of, or error in, charge - (l) No finding setnece or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may, - (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charges. (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction". ( 9. ( 9. ) Failure to frame a charge under Sections 379 and 381 of the I.P.C in the present case could not be said to be irregularity since it is curable irregularity under Section 464 of the Cr.P.C. The trial Court having found that the wheat was not recovered from the truck seized, offence under Section 407 was not made out, however, when the charge contains the particulars of the offence and the accused is aware of based ingredients of the offence for which he was being convicted is the principle that is required to be satisfied. (Radha Mohan Singh Vs. State of U.P. (2006)2 SCC page 450 relied on) then the conviction of the accused for offence under Sections 379 and 381 of the I. P.C. by the trial Court as well as appellate Court is saved by the provision of Section 464 since the conviction has not resulted in a failure of justice; the accused were faced with the theft of the wheat and the ingredients of the charges under Section 379 and 381 of the I.P.C. were available to the accused and hence the objection of the petitioner in the revision petition is of no consequence and is discarded as such. ( 10. ) The objection that the officer of seizure is also the investigating officer is also without substance as the investigation has been carried out by the investigating office under the due process of law. The inspector Dwivedi (P.W - 5) being found to be quite reliable and the wheat having been found from the house of both the accused then there is no getting away from the fact that the accused were guilty for the offence under Section 379 and 381 of the I.P.C as held by both the Courts below. ( 11. ) In view of the above, the petition is without merit and is dismissed as such, the petitioner shall surrender to his bail bonds to undergo the remaining part of the sentence on or before the 05 - 05 - 2008 before the trial Court. Petition dismissed.