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2013 DIGILAW 273 (PAT)

State of Bihar v. Vijay Kumar Yadav @ Mantoo

2013-02-28

MANDHATA SINGH

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JUDGMENT (ORAL) Mandhata Singh. J. - Prosecution case initiated on fard-bayan of one Manoj Kumar (PW 9), in brief, is that at about 1.00 a.m. when he returned from cinema and reached on verandah of the office found Arun Sah, Home guard sitting on table trembling. Md. Rafique and Chandeshwar Yadav, both home guards were lying on the floor. Havildar Uma Prasad and home guard Ramesh Bishwash were sitting at the floor. Uma Prasad was in drunken position was saying "LUT GAYA LUT GAYA", informant rushed to guardroom and found all the rifles and cartridges intact then he jolted Havildar Uma Prasad and asked if anything had happened, Uma Prasad told that from Godrej Almirah of In-charge room cash box containing cash was taken away. Matter was informed to the police station, again Arun Sah was jolted, who told (informed) that Birendra Yadav and stranger had come at 9.00 p.m. on motorcycle, It was requested on behalf of the accused Birendra Yadav for sweets and all the present were provided 'Rasgulla' in three pieces each. Three pieces of 'Rasgulla' was kept in a Thali for the informant. Matter' was informed to Madam Superintendent of Police; police came and recorded statement of the informant. It is claimed by the informant that 9fter providing intoxicating substance in 'Rasgulla' all the home guards personnel present were made senseless and cash box containing Rs.22 lacs was taken away. It is specified that money was withdrawn from the bank for distribution of the same among the home-guard personnels. 2. After concluding the trial, same is ended in conviction of accused-appellant of Cr. Appeal No. 66 of 2001 and acquittal of Vijay Kumar respondent of Government Appeal No. 04 of 2001, validity of conviction is challenged by appellant Birendra Yadav of Cr. Appeal No. 66 of 2001 and by Government against acquittal of respondent Vijay Kumar. 3. In all thirteen (13) witnesses are examined in the case, they are PW 1 Md. Rafique. Home-guard constable. PW 2 Arun Sah Home-guard constable. PW 3 Vakil Sah Tea shopkeeper. PW 4 Pankaj Kumar Sah. Betel shopkeeper. PW 5 Mohan Kumar Sah. Tea shopkeeper. PW 6 Chandrad\o Yadav. Home-guard constable. PW 7 Dr. Shekhar Pd. Bishwash, who examined all the alleged intoxicated home guard personnels. PW 8 Chandra Shekhar Prasad. first I.O. of the case. PW 9 Manoj Kumar informant of the case. PW 10 Kameshwar Prasad Singh. PW 4 Pankaj Kumar Sah. Betel shopkeeper. PW 5 Mohan Kumar Sah. Tea shopkeeper. PW 6 Chandrad\o Yadav. Home-guard constable. PW 7 Dr. Shekhar Pd. Bishwash, who examined all the alleged intoxicated home guard personnels. PW 8 Chandra Shekhar Prasad. first I.O. of the case. PW 9 Manoj Kumar informant of the case. PW 10 Kameshwar Prasad Singh. Havildar Home-guard. PW 11 Dayanand Jha, second I.O. of the case, PW 12 Gopal Prasad Agrawal. Cashier of S.B.I. of Saharsa Branch and PW 13 Ram Niranjan Panjiar. 4. PW 13 has been tendered for (Toss-examination and nothing has appeared in his cross-examination relevant on the point of taking place of the incident involving accused persons. PWs 3, 4 and 5 have not stated a word about involvement of accused persons. All the three have been declared hostile and are of no use for prosecution. 5. PW 12 is a witness to state withdrawal of the money from his bank earlier to the incident. PWs 8 and 11 are I.O. of the case can be discussed if needed as well PW 7 may be discussed if needed to corroborate or belie the fact of the case of intoxication. Rest of the witnesses are material witnesses in the case are to be discussed if are sufficient to establish providing of intoxicating substance or commitment of theft. 6. In this case charge is framed for the offence under Sections 328. 380 and 120B of the IPC. Conspiracy can be specified for providing intoxicating substance and commitment of theft. PWs 1, 2 and 6 are stating about consuming of sweets brought by accused Birendra Yadav. On this point, PW 9 also states about distribution of sweets and its consumption, but as told by Arun Sah (PW 2). He further states that three pieces of ‘Rasgulla’ remained in a Thali there, which was kept for him. Something intoxicating substance was there in the sweets then only responsibility can be shifted upon accused Birendra Yadav. Submission on behalf of accused-appellant Birendra Yadav is that 'Rasgulla' kept there for informant's share was not sent for its chemical examination. No doubt, doctor examined PWs 1. 2 and 6, but in his opinion patients were not in state of narcosis though giddiness, drowsiness, confusion speech was found. 7. Submission on behalf of accused-appellant Birendra Yadav is that 'Rasgulla' kept there for informant's share was not sent for its chemical examination. No doubt, doctor examined PWs 1. 2 and 6, but in his opinion patients were not in state of narcosis though giddiness, drowsiness, confusion speech was found. 7. Consumption of wine or beer by some home guard officials is deposed by PW 6 in his Paragraph-3 and by PW 1 in his Paragraph-7. This is all about providing any substance falling offence under Section 328 of the IPC not sufficient to establish that any intoxicating and poisonous substance was provided by any of the accused. 8. Next offence remains to discuss for which also there could be any conspiracy is Section 380 of the IPC. Allegation is that from godrej almirah a box containing Rs.22 lacs was taken away by accused -appellant Birendra Yadav. But evidence is lacking on the point that money was ever kept in almirah in any box. Further, none of the material witnesses viz. PWs 1. 2. 6, 9 and 10 states that he watched any of the accused taking away any box in which cash of Rs.22 lacs could be kept. Informant himself is not eye-witness of the case rather everything was reported to him by one Uma Shankar Prasad and Uma Shankar Prasad is not examined in the case. More specifically PW 1 in Paragraph-9 states that he came to know on the next day about theft of the money. PW 2 in Paragraph-13 states that in hospital at about 12.00-1.00 O' clock after recovering his senses he came to know about theft. PW 6 in Paragraph-5 states about coming to know about the incident in the morning. So, there is no witness/evidence at all on the point of taking away of the box containing cash. PW 8 states in Paragraph-9 of his examination that lock was not broken and it was open only, which is possible either by the key by the custodian or by duplicate key, but no evidence is on this point. Respondent of Government Appeal No. 04 of 2001 has not been even named by any of the witnesses in any capacity, but has been made accused. Rightly has been acquitted, but appeal is preferred against acquittal also. 9. Respondent of Government Appeal No. 04 of 2001 has not been even named by any of the witnesses in any capacity, but has been made accused. Rightly has been acquitted, but appeal is preferred against acquittal also. 9. On the observation made above, evidence on record and circumstances of the case, the Government Appeal No. 04 of 2001 is dismissed while the Cr. Appeal No. 66 of 2001 is allowed. Acquittal of accused. Vijay Kumar @ Mantu is affirmed and conviction and sentence of accused Birendra Yadav of Cr. Appeal No. 66 of 2001 is set aside, he is acquitted of the charges for which he has been convicted. Ordered accordingly.