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Madhya Pradesh High Court · body

2010 DIGILAW 150 (MP)

Heeralal v. State of M. P.

2010-02-04

U.C.MAHESHWARI

body2010
Judgment ( 1. ) The applicant-accused has preferred this revision under section 397 r/w section 401 of Code of Criminal Procedure challenging his conviction and sentence under section 420 of IPC. Initially Judicial Magistrate 1st Class Sagar on holding trial in criminal case No. 1172/99 convicted him under section 465 and section 420 of IPC for one year RI with fine of Rs. 250.00, in default of it, further one month RI and three years RI with fine of Rs. 500.00, in default of it, further one month RI respectively under such sections, vide judgment dated 17.11.1999. On filing the appeal, on re-appreciation of the evidence, the Sessions Judge, Sagar vide judgment dated 29.12.1999 in Criminal Appeal No. 164/99 by allowing in part while acquitting the applicant from the charge of section 465 of IPC by maintaining his conviction under section 420 of IPC reduced his sentence upto to one year RI with fine of Rs. 500/- and in default of it further one month imprisonment. ( 2. ) The facts giving rise to this revision in short are that the complainant Kamlesh on 28.5.1986 came to Collector Office, Sagar to submit the application for his appointment on the post of Peon where after receiving such application by the applicant on his demand Rs. 10.00 was also paid by the complainant to him. Thereafter, the applicant by giving assurance to get his work done from the employment office asked the complainant to come on 31/5/1986. Thereafter, in the same manner applicant called the complainant round about 8-9 occasions and told him that he will manage in the Tahsildar Office to provide him a job of Peon. In this regard with dishonest intention to commit fraud with the complainant, the applicant had demanded and obtained Rs. 175.00 on 24.7.1986, Rs. 250.00 on 29.7.1986. He also obtained Rs. 100.00 for medical fee and Rs. 150.00, with respect to satisfy some query, from the applicant. After making the aforesaid payment to the applicant the complainant received an appointment letter dated 5.8.1986 through post, according to which the complainant was given temporary appointment on the post of Peon in Tahsil office from 1.9.1986 with a further direction to join the duty on such date. 150.00, with respect to satisfy some query, from the applicant. After making the aforesaid payment to the applicant the complainant received an appointment letter dated 5.8.1986 through post, according to which the complainant was given temporary appointment on the post of Peon in Tahsil office from 1.9.1986 with a further direction to join the duty on such date. After receiving such order on the above mentioned date the complainant went to giving joining report in the above mentioned office, then he came to know that by practicing the fraud after obtaining the above mentioned sum by fabricating a forged appointment letter he has been cheated by the applicant, on which the matter was reported by the complainant with the Police Station Gopalganj, on which FIR (Ex. P-2) was registered. In the course of investigation the concerned papers and receipts of the payment given by the complainant to the applicant, and the above mentioned forged appointment letter were seized. Interrogatory statements of the witnesses were recorded. The concerned papers were sent to the Hand Writing Expert for his opinion. On concluding the investigation, the applicant was charge sheeted for the offene under sections 420,467 and 468 of IPC. ( 3. ) On framing the charges for the offence under sections 465 and 420 of IPC, the applicant abjured the same, on which after recording the evidence, on appreciation of the same, the trial Court after holding guilty to the applicant for such offence punished him with the sentence, as mentioned above. ( 4. ) On preferring an appeal by the applicant, the same was allowed in part and he was acquitted from the charge of section 465 of IPC but by affirming his conviction under section 420 of IPC his jail sentence awarded by the trial Court is reduced upto the period, as mentioned above. The same is under challenge in this revision. ( 5. ) Shri L.N. Shakale, learned appearing counsel for the applicant by referring the recorded evidence said that same has not been appriciated with proper approach and contrary to that the applicant has been convicted. He also argued that the receipt of the payment, Ex. P-3 and P-7 and Inland Letter, Ex.P-6 in the lack of any admissible evidence by holding that the same were written by the applicant mere on assumption and presumption he was held guilty by both the Courts below. He also argued that the receipt of the payment, Ex. P-3 and P-7 and Inland Letter, Ex.P-6 in the lack of any admissible evidence by holding that the same were written by the applicant mere on assumption and presumption he was held guilty by both the Courts below. In continuation it was said that such exibited papers could not be a foundation for holding guilty to the applicant unless the same are proved by any admissible evidence showing that the same were written by the applicant with intention to commit the fraud and also after obtaining money from the complainant. He also argued that the prosecution has examined as many as six witnesses in the case, out of them except the complainant Kamlesh, all other witnesses have not stated any incriminating thing against him. Narayan Prasad (PW-2), the witness of the seizure memo, (Ex. P-1) whereby the above mentioned exhibited papers were seized turned hostile at trial. So far the complainant-Kamlesh (PW-1) is concerned, firstly he said that looking to the inter se inconsistency in his deposition as he stated something in his chief contrary to the FIR just to incriminate the applicant and in cross examination he deposed some different story and declined even to identify the applicant as person who committed the alleged fraud with him his deposition is not trustworthy. It was also argued that for extending the acquittal under section 465 of IPC the available evidence was discarded by the appellate Court then on the basis of the same evidence the applicant conviction under section 420 of IPC could not be upheld. In such premises, he prayed for acquittal of the applicant by allowing this appeal and in alternative he submitted that in any case if this Court does not find fit to grant the benefit of acquittal, then taking into consideration that the applicant is facing the mental agony of the case since last 23 years and now he has attained the age of 65, then instead to maintain the awarded jail sentence, the same be reduced upto the period, which he has already suffered as undergone, i.e. during trial nine days and fourteen days from the date of judgment of the appellate Court till passing the order of suspension of his jail sentence by this Court. ( 6. ) On the other hand, responding the aforesaid arguments, Smt.Sushila Paliwal, learned Govt. ( 6. ) On the other hand, responding the aforesaid arguments, Smt.Sushila Paliwal, learned Govt. Advocate by justifying the impugned judgment and its findings said that the same is based on proper appreciation of evidence and also in conformity with law. It does not require any interference at this stage. According to her no error, illegality or perversity has been committed by the appellate Court in affirming the conviction of the applicant for the offence under section 420 of IPC and prayed for dismissal of this revision. ( 7. ) Having heard, I have perused the record of the trial Court as well of the appellate Court. ( 8. ) It appears from the impugned judgment of the appellate Court that the applicant has been convicted and sentenced under the abovementioned offence of section 420 of IPC on the sole testimony of the complainant-Kamlesh-(PW- 1) who in his deposition proved the documents Ex.P-3 and Ex. P-7 as alleged receipts given by the applicant to the complainant after obtaining some money and Ex.P-6 in the last letter as alleged written by the applicant. Except the statements of the complainant, the exihibited documents have not been proved to be written by the applicant by any other admissble evidence. It is settled proposition of law that when the entire case is based on the sole testimony of the complainant and no witness supporting the prosecution case is available, then the Court is duty bound to scrutinize the evidence very carefully and cautiously. On appreciation of the entire statement, if it appears that the deposition of such . witnesses is contradictory from the averments of the FIR, lodged by him, then such deposition could not be a foundation for holding the conviction. Apart from this, if the deposition of such witness is inter se inconsistent in the same trial, then on account of such material inconsistency, the deposition of such witness could not be considered for holding conviction to the accused. Apart from this, if the deposition of such witness is inter se inconsistent in the same trial, then on account of such material inconsistency, the deposition of such witness could not be considered for holding conviction to the accused. It is apparent from the deposition of the complainant-Kamlesh (P W-1) that in paras 1 to 4 till some extent he tried to support the case of the prosecution but not with the consonance of the averments of the FIR and also identified to the applicant in the Court but in para 7 of his cross examination he specifically said that the could not identify the person whom he contacted in the Collectorate and handed over the money on the alleged occasions. Further he stated that he is not in position to identify the applicant as the same person who committed fraud with him. Such averments of his statement is showing apparent inconsistency in his statements in the same trial. In such premises, I am of the view that such witness could not be relied for holding the conviction against the applicant, unless the same is supported with the averments of FIR or with any other evidence. It is apparent that no such other evidence is available on the record, as stated above. ( 9. ) My aforesaid, view if fully fortified by the decision of the apex Court in the matter of Suraj Mal v. The State (Delhi Administration) reported in AIR 1979 SC 1408 in which it was held as under :- "Where witnesses make two inconsistent statements in their evidence either at one stage or at two stage;, the testimony of such witnesses become unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses." (Placitum) ( 10. ) In veiw of the aforesaid discussion, the judgment of both the Courts below holding conviction against the applicant for the offence under section 420 IPC being without proper appreciation of evidence is perverse and the same is not sustainable under the law. Consequently by allowing this revision, the judgments of the Courts below holding conviction against the applicant under section 420 of IPC alongwith its sentence is hereby set aside and the applicant is acquitted from such charge. The amount of fine, if deposited by him be refunded to him. His bail bond is hereby discharged. Consequently by allowing this revision, the judgments of the Courts below holding conviction against the applicant under section 420 of IPC alongwith its sentence is hereby set aside and the applicant is acquitted from such charge. The amount of fine, if deposited by him be refunded to him. His bail bond is hereby discharged. Accordingly, this revision is allowed.