Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1232 (PAT)

Bujhawan Thakur v. State of Bihar

2013-10-09

ADITYA KUMAR TRIVEDI

body2013
JUDGMENT A.K. Trivedi, J. Petitioners, namely, Bujhawan Thakur as well as Rameshwar Thakur who have been found guilty for an offence punishable under Section 406 of the Indian Penal Code and released on bond of Rs. 1000/- to be effective for a year whereunder directed to maintain peace and public tranquility by Shri Saroj Kumar Srivastava, 1st Class, Judicial Magistrate, Patna in G.R. No, 5549 of 1989 vide judgment dated 6.12.1994 as well as the judgment dated 4.7.1998 passed by IXth Additional Sessions Judge, Patna in Cr. Appeal No. 227 of 1994 dismissing the same have challenged the successive judgments under present revision petition. 2. It is apparent from the record that vide order dated 10-09-1998 the petition was dismissed against which Cr. Appeal No. 1061 of 1999 was preferred before the Hon'ble Apex Court which was decided on 8.10.1999 remanding the matter after setting aside the order dated 10.9.1998 directing the High Court to reappraise as well as reevaluate the evidence and on account thereof, full Hedge argument has been heard on behalf of respective parties. Here it is worth mention to note that without having stay granted at any occasion, the petitioners failed to execute the bond in pursuance of judgment dated 6.12.1994 passed by the learned trial Court. 3. PW 4, Panchamdeo Prasad Choudhary had filed written report on 28.12.1989 disclosing therein that he happens to be tenant under Rajendra Prasad Choudhary, His co-villagers Bujhawan Thakur and Rameshwar Thakur (petitioners) are also tenant thereunder. He further disclosed that he had purchased one Bajaj Scooter on 9.9.1989 for Rs. 15,000/-. On 5.12.1989 while he was going to his house, he had entrusted the same under Bujhawan Thakur and Rameshwar Thakur. When he returned on 27.12.1989 and asked for scooter from Bujhawan Thakur and Rameshwar Thakur, they both said that they are not knowing anything with regard to scooter while Ajit Kumar and Ritu Raj Jaiswal have seen both of them carrying the scooter. 4. On the basis thereof, Budha Colony P.S. Case No. 211 of 1989 was registered under Section 406 of the Indian Penal Code whereupon investigation commenced and concluded by way of submission of charge-sheet ultimately leading to trial meeting with ultimate result subsequently which happens to be the subject matter of instant revision. 5. 4. On the basis thereof, Budha Colony P.S. Case No. 211 of 1989 was registered under Section 406 of the Indian Penal Code whereupon investigation commenced and concluded by way of submission of charge-sheet ultimately leading to trial meeting with ultimate result subsequently which happens to be the subject matter of instant revision. 5. It has been submitted on behalf of petitioners that the successive judgments are bad in law as well as on facts hence the successive judgments are fit to be set aside. It has further been submitted that the appeal was disposed of by the Appellate Court in absence of petitioners and on account thereof, the interest of petitioners found jeopardized hence it is a fit case for remand. Then referring with the material available on the lower Court record, it has been submitted that Investigating Officer has not been examined. Because of the fact that there happens to be material contradiction visible in the evidence of all the witnesses including the informant as such on account of non-examination of Investigating Officer petitioners have suffered a lot which justify negativating the successive finding in the background of the fact that both the successive Courts have failed to acknowledge the same. 6. Now coming to status of the witnesses, it has been submitted that all the witnesses are interested partisan one as well as having presence of material contradiction in their evidence make their evidence unreliable, untrustworthy and un-creditworthy. Hence the evidence of all the four witnesses is fit to be brushed aside. It has further been submitted that defence version was more probable which suggest the fraudulent action of the informant whereunder he succeeded in procuring, amount from the petitioners by deceitful method. 7. At the other hand, it has been submitted on behalf of opposite party including the learned Additional Public Prosecutor that the successive finding recorded by the Courts below is fully justified on account of having sufficient material available on the record conclusively proving misappropriation by the petitioners relating to Bajaj Scooter which could not be traced out up till now otherwise there was no occasion for the opposite party No. 2 to file a case against his co-villagers. It has also been submitted that there happens to be natural conduct of the informant whereunder at the time of his departure to his home, he• had entrusted the Bajaj Scooter to his co-villagers, who are non-else than petitioners who misappropriated the same. Therefore, the conviction recorded against them is fit and proper. It has also been submitted that learned trial Court had already taken a lenient view which does not require interference. 8. From the record, it is apparent that Investigating Officer has not been examined. In all cases the non-examination of Investigating Officer should not be accepted as an infirmity in the prosecution case. Whenever there happens to be confusion with regard to place of occurrence, the material development in the prosecution evidence then and then only, the non-examination of Investigating Officer could be taken an additional limb against the prosecution. 9. The lower Court record divulges examination of altogether four PWs out of whom PW 1 is brother of informant namely, Indradeo Prasad Choudhary, PW 2 is Ajit Kumar, PW 3 is Ritu Raj Jaiswal and PW 4 is informant himself Punchamdev Prasad Choudhary. It is also evident that some exhibits are on behalf of prosecution. In likewise manner though there happens to be non-examination of any DW but certain documents have also been exhibited on their behalf. It is apparent from the written report that there happens to be non-presence of PW 1, Indradeo Prasad Chaudhary and in likewise manner PW 2 and PW 3 are not shown as a witness of entrustment. In the aforesaid background when the evidence of PW 1 is gone through, it is evident that he had claimed to have handed over scooter along with key on 5.12.1989 to the accused persons and left for home. He further justifies his action by disclosing the fact that apart from being a co-villager, the accused persons were also working in the same company. Both parties were enjoying cordial relationship and have got blind faith. He further disclosed that he had narrated that after returning from his house, he will take back his scooter over which the accused persons, given their nod. On 27.12.1989 when they returned back from their home, they demanded scooter over which accused Bujhawan Thakur and Rameshwar Thakur disclosed that they were not knowing anything. He further disclosed that he had narrated that after returning from his house, he will take back his scooter over which the accused persons, given their nod. On 27.12.1989 when they returned back from their home, they demanded scooter over which accused Bujhawan Thakur and Rameshwar Thakur disclosed that they were not knowing anything. Then thereafter on 28.12.1989 they have gone to Budha Colony Police Station where he scribed the written report on dictation of his younger brother Panchamdeo Prasad Choudhary who put his signature. During cross-examination at paras-G 7, 8 he had denied institution of Gandhi Maidan P.S. Case No. 355 of 1989 as well as Kadamkuan P.S. Case No. 7G3 of 1989 against which Managing Director, Chairman and other office-bearers of Satellite Courier wherein he was also employed for the time being at Allahabad. He denied the suggestion that they have taken money from the accused persons on the pretext of providing them job and then thereafter got them involved in this case when the accused persons insisted to return the money. In para-9, he had disclosed that Rajendra Prasad had not stated before the police that these accused persons are there tenant. He had informed his landlord Rajendra Prasad . Choudhary that your tenant (accused) had taken away his scooter but landlord had not taken any step. In para-11 he had stated that he had scribed the FIR on the dictation of Punchamdev Prasad Choudhary. Panchamdeo Prasad Choudhary had only signed over the same. In para-12 he had disclosed that so many persons were tenant in the aforesaid building apart from the accused but he had not mentioned the fact that in presence of any of the tenant he had handed over the scooter to the accused. He had further admitted that he had not mentioned in the written report that scooter was handed over in presence of witnesses however volunteered that same was given in presence of Ajit Kumar and Ritu Raj Jaiswal. Again he admitted that he had not mentioned the fact in the FIR that a scooter was handed over in presence of Ajit Kumar and Ritu Raj Jaiswal. Therefore, from his evidence, it is apparent that he had claimed to have entrusted the scooter to both of accused persons which was misappropriated by them. As divulged in forgoing paragraph, it is apparent that his presence is nowhere in the written report.. Therefore, from his evidence, it is apparent that he had claimed to have entrusted the scooter to both of accused persons which was misappropriated by them. As divulged in forgoing paragraph, it is apparent that his presence is nowhere in the written report.. Furthermore presence of witnesses has also been shown in whose presence entrustment was made, though having absence in the written report. 10. At this moment the evidence of PW 4, the informant is to be taken into account for consideration. He in examination-in-chief had stated that the occurrence is dated 5.12.1989 on which date he along with his brother Indradeo Prasad Choudhary have gone to his house. Before going to his house, he had handed over his scooter to Rameshwar Thakur and Bujhawan Thakur along with key with a request to keep the scooter. When he will return back from his house he will take the same. Both the accused gave an assurance. Because of the fact that both the parties were under cordial relationship therefore he kept belief over them. On 27.12.1989 when he returned back from his home, he asked for scooter from the accused persons over which they said that they are not knowing anything with regard to scooter. He had further stated that he had hand over the scooter in presence of Ritu Raj Jaiswal, Ajit Kumar and Indradeo Prasad Choudhary. Thereafter, he had handed over written report before the Budha Colony Police Station (Exhibited). Also placed the receipt which has been marked as Exhibits-"X" and "X/I" showing purchase of scooter. He had also exhibited letter sent by the accused to his brother Indradeo Prasad Choudhary (PW 1) to suggest that accused persons were carrying good repute with them. During cross-examination at para 9 had admitted that at the time when case was instituted against S.R.S. Company relating to forgery, he was working therein. In para- 10, he had stated that he was mere clerk there. In para-11 and para- 12 he had denied institution of Kadamkuan P.S. Case No. 763 of 1989 as well as the facts of the case however he admitted regarding institution of the case. In para-13 he had denied the suggestion that when the company was closed he fled away with a scooter belonging to company and got it sold at different place and only to digest the aforesaid scooter; the instant case has been filed. In para-13 he had denied the suggestion that when the company was closed he fled away with a scooter belonging to company and got it sold at different place and only to digest the aforesaid scooter; the instant case has been filed. He had further denied the suggestion that accused persons were residing at the place where they were running saloon. He had further denied the suggestion that accused persons were not tenant under Rajendra Prasad Choudhary. In para-17 he had admitted that he had not handed over key of his house to the accused persons. He had further narrated that he had handed over key to Bujhawan Thakur in presence of aforesaid two persons. He had disclosed the fact that he had requested both of accused to keep the key. When he will return from his house, then he will retain the same. He had further stated in para-18 that he had not complained the landlord. In paras-20, 21 there is contradiction however after going the same it is found that it does not relate with merit of the case. So from his evidence, it is apparent that although there was no disclosure in the written report regarding handling over of scooter in presence of PW 1. PW 2 and PW 3 however brought the same during evidence. In likewise manner presence of PW 1 has also been shown. It has further been stated that key was handed over to Bujhawan Thakur. Handing of key has also been disclosed contrary to earlier version. 11. PW 2 is Ajit Kumar. He had stated that on 23.12.1989 he had seen the accused persons taking away scooter of Panchamdeo Prasad Choudhary towards western direction over which he inquired from them where they are carrying scooter of Punchamdev Prasad Choudhary. They have disclosed that they are going for wandering. He inferred that on account of belonging to same area they were going over scooter. Then had said that informant and his brother Indradeo Prasad Choudhary had handed over the scooter along with key in his presence. Indradeo Prasad Choudhary had further disclosed that accused persons have not returned the scooter to Punchamdev Prasad Chaudhary. He further disclosed that when they demanded the accused persons stated that they do not know about scooter. During cross-examination at para-5 he had stated that his house stands adjacent to the house wherein Indradeo Prasad Choudhary resides. Indradeo Prasad Choudhary had further disclosed that accused persons have not returned the scooter to Punchamdev Prasad Chaudhary. He further disclosed that when they demanded the accused persons stated that they do not know about scooter. During cross-examination at para-5 he had stated that his house stands adjacent to the house wherein Indradeo Prasad Choudhary resides. They are on visiting term. In likewise manner he is also in visiting terms with accused. At the time when accused were going with scooter he was returning from tea stall of Babban which lies west to the house of Rajendra Prasad Choudhary. At that very time Ritu Raj Jaiswal was not along with him. In para-8 he had stated that he had inquired from the accused why they are carrying scooter to Panchamdeo Prasad Choudhary over which they disclosed that they are only going to wander. In paras-9, 10, 11 there happen to be material contradiction. From paras-9, 10, 11, it is evident that there happens to be consistent material development on all aspects coming forward to say over entrustment as well as taking away scooter by the accused which is also found with the initial prosecution version. 12. PW 3 is Ritu Raj Jaiswal. His evidence was recorded on 25.9.1993 that means to say after four years of occurrence on which date he had shown his age as 19 years. In the aforesaid background on the date of alleged occurrence he was aged about 15 years. In his examination-in-chief he had stated that he was residing in house of Rajendra Prasad Choudhary as tenant. Rameshwar Thakur. Bujhawan Thakur. Punchamdev Prasad Choudhary. Indradeo Prasad Choudhary were residing in the same house. One Christian Lady was also residing. Panchamdeo Prasad Choudhary had purchased one scooter. Panchamdeo Prasad Chaudhary had gone to his home on 5.12.1989 along with his brother Indradeo Prasad Chaudhary. At that very time Panchamdeo Prasad Chaudhary had handed over scooter along with key to Bujhawan Thakur and Rameshwar Thakur and further said that their arrival it should be kept in proper way. On 23.12. 1989 while he was returning from his school at about 2:00 p.m. he had found Bujhawan Thakur carrying scooter of Pimchamdev Prasad Chaudhary. Rameshwar Thakur was following. He had inquired from them why they were carrying scooter if Panchamdeo Prasad Choudhary they have not spoken anything. On 23.12. 1989 while he was returning from his school at about 2:00 p.m. he had found Bujhawan Thakur carrying scooter of Pimchamdev Prasad Chaudhary. Rameshwar Thakur was following. He had inquired from them why they were carrying scooter if Panchamdeo Prasad Choudhary they have not spoken anything. On 27.12.1989 Panchamdeo Prasad Chaudhary and Indradeo Prasad Chaudhary returned back from their home. Panchamdeo Prasad Chaudhary demanded his scooter from the accused persons who fraudulently denied to return back to same and further said that they are not knowing about the scooter. He had said to accused persons that why they are saying that they are not knowing with regard to his scooter when Indradeo Prasad Choudhary and Panchamdeo Prasad Chaudhary have entrusted you both. He does not know what the accused persons have done with regard to scooter. During cross-examination at para-8 stated that he had not seen the accused persons carrying the scooter over road, He is not aware with the fact that accused persons had taken scooter on road or not. Then thereafter there happens to be contradiction. He had admitted that accused persons have got one saloon in mohalla-Chakaram in the house of Bishwanath. Then had denied the suggestion that in collusion with informant he had deposed like so. From his evidence, it is apparent that on the alleged date and time of occurrence he was aged about 15 years and with regard to witnessing the accused persons carrying scooter, the same happens to be material development and his attention towards the aforesaid fact had already been drawn. Further more his status is found inconsistent with the initial prosecution version. 13. For the purpose of proving a case punishable under Section 406 of the IPC, the prosecution is bound to prove, (a) Entrusting any person with property or with any dominion over property. (b) The person entrusted (a) dishonestly mis-appropriating or converting to his own use that property or (b) dishonestly using or disposing of that property or willfully suffering any other per" son so to do in violation. (i) of any direction of law prescribing the mode in which such trust is to be discharge, (ii) of any legal contra or made touching the discharge of such trust. 14. Now the evidence of the prosecution witness have to be scrutinized in away to infer whether there was entrustment. As per prosecution version, entrustment was on 5.12.1989. (i) of any direction of law prescribing the mode in which such trust is to be discharge, (ii) of any legal contra or made touching the discharge of such trust. 14. Now the evidence of the prosecution witness have to be scrutinized in away to infer whether there was entrustment. As per prosecution version, entrustment was on 5.12.1989. The prosecution has not confined at an initial stage as well as during course of evidence, who out of two was entrusted. Not only this, the written report which was filed a day after return of PW 1, PW 4 did not speak with regard to handing over key which during course of evidence, has been brought, but even failed to specify who out of two, handed over key. Presence of' PW 2 and PW 3 over entrustment has been brought up during course of trial, but from their evidence it is crystal clear that there happens to be material contradiction on this score. Due to non-examination of I.O. their evidences are found losing its weight age and so, there evidence on this score are found unworthy. 15. As per initial version, PW 1 has got no place. PW 3 had suggested his presence as a tenant which is not found supported' with PW 2, PW 4. PW 4 had stated that he had entrusted the scooter while PW 1 had suggested that he had entrusted the scooter while PW 2 and PW 3 have stated that PW 1 as well as PW 4 both had entrusted the scooter. That means to say that these happen to be contradictory statement of the witnesses over factum of entrustment as well as manner of entrustment. After having subtlety analysis of the evidence as referred above, it is apparent that prosecution could not be able to substantiate its case conclusively, so far factum of entrustment is concerned. When entrustment fails, no question' of misappropriation survives. Consequent thereupon, the successive judgments are set aside. Petition is allowed. Petition allowed.