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2013 DIGILAW 449 (HP)

Karam Singh v. State o H. P.

2013-05-20

DEV DARSHAN SUD

body2013
JUDGMENT Dev Darshan Sud, J.(oral) The appellant challenges his conviction for offences under Section 409 IPC and Section 13(1) (c) of the Prevention of Corruption Act. The appellant was charged for the said offences along with offences under Sections 465, 471 and 201 of the Indian Penal Code. He was acquitted under these three Sections but convicted under Sections 409 IPC and 13 (1 (c) of the Prevention of Corruption Act and sentenced as under: Offence Sentence Under Section 409 IPC To undergo rigorous imprisonment for one and ahalf year and topay fine of‘5000/-. In default of payment of fine, further undergorigorous imprisonment for six months. 13(1)(c) of the Prevention of Corruption Act To undergorigorousimprisonment for one and half year and to pay fine of ‘5000/-. In default of payment of fine, further undergo rigorous imprisonment for six months. 2. A number of submissions have been made before me with respect to the legality of the findings of the learned trial Court. I do not intend to go into the merits of the case for the reason that I find that in the thicket of evidence has been confused without there being any link to establish the amount embezzled/misappropriated by the appellant. The learned Judge goes into the details of comparing the signatures of the appellant with the receipt(s) issued by him without in any manner considering and reconciling the amount with the deposits made. I find that the cashier of the Municipal Corporation has died and the chain of evidence is confused and uncertain. It is in these circumstances I intend to send back the case for re-trial. 3. In V. Srinivasa Reddy vs. State of A.P. (1998)9 SCC 331 the Supreme Court holds:- “11. We have gone through the judgment of the trial court wherein the trial Judge discussed the oral evidence adduced by the prosecution. In our opinion, the evidence of the material witnesses was considered in a most perfunctory manner and it has overlooked various other circumstances which were relied upon by the prosecution. 12. Mr. T.S. Arunachalam, learned Senior counsel appearing in support of this criminal appeal, urged that the High Court has committed a serious illegality while setting aside the order of acquittal and remanding the matter back to the trial court. 12. Mr. T.S. Arunachalam, learned Senior counsel appearing in support of this criminal appeal, urged that the High Court has committed a serious illegality while setting aside the order of acquittal and remanding the matter back to the trial court. According to him, the High Court by remanding the matter to the trial court has afforded an opportunity to the prosecution to cure the lacunae in its evidence. In support of this submission he relied upon the decisions of this Court in Ukha Kolhe v. State of Maharashtra AIR 1963 SC 1531 and Mohd. Iqbal Ahmed v. State of A.P. (1979)4 SCC 172 . We have gone through these decisions and in our opinion the same are clearly distinguishable on facts.\ 13. It was then urged by Mr. Arunchalam that if the High Court felt that further evidence was necessary for disposal of the case then it could have exercised its power under Section 391 Cr.PC and ought not to have set aside the order of acquittal and remanded the matter for fresh disposal. This argument also did not impress us because the High Court instead of recording the additional evidence in terms of Section 391 CrPC, preferred to remand the matter back to the trial court for disposal in accordance with law. It also appears from the record that some of the documents including FDRs, loan applications etc., should also have been brought on record for effective disposal of the controversy raised in the case and to do justice between the parties. It is needless to say that the trial court will strictly adhere to the observations and directions given by the High Court in its judgment.” (at pp. 333-334) 4. To similar effect is the decision in Satyajit Banerjee and others vs. State of W.B. and others (2005)1 SCC 115 where the Supreme Court taking into consideration the entire established precedent holds:- “24. Without going into the correctness of all the observations made by the High Court in the impugned judgment, we find it necessary to clarify that the High Court ought not to have directed the trial court to hold a de novo trial and take a decision on the basis of the so-called “suggested formula”. Without going into the correctness of all the observations made by the High Court in the impugned judgment, we find it necessary to clarify that the High Court ought not to have directed the trial court to hold a de novo trial and take a decision on the basis of the so-called “suggested formula”. The High Court in its concluding part of the judgment does state that any observation in its judgment should not influence the mind of the trial court but at the same time, the High Court directs the trial court to take “a fresh decision from stage one” and on the basis of the “suggested formula”. Learned counsel for the accused is justified in his grievance and apprehension that the aforesaid observations and directions are likely to be mistaken by the trial court as if there is a mandate to it to record the verdict of conviction against the accused regardless of the worth and weight of the evidence before it. 25. Since strong reliance has been placed on Best Bakery case (Gujarat riots case) it is necessary to record a note of caution. That was an extraordinary case in which this Court was convinced that the entire prosecution machinery was trying to shield the accused i.e. the rioters. It was also found that the entire trial was a farce. The witnesses were terrified and intimidated to keep them away from the court. It is in the aforesaid extraordinary circumstances that the court not only directed a de novo trial of the whole case but made further directions for appointment of the new prosecutor with due consultation of the victims. Retrial was directed to be held out of the State of Gujarat. 26. The law laid down in Best Bakery case in the aforesaid extraordinary circumstances cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all and every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case the first trial was found to be a farce and is described as “mock trial”. Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in Best Bakery Case. 27. In Best Bakery case the first trial was found to be a farce and is described as “mock trial”. Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in Best Bakery Case. 27. So far as the position of law is concerned, we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial.” (emphasis supplied) (at pp. 121-122) 5.In Avtar Singh and others vs. Bhajan Singh and others, (1998)2 SCC 750 the Supreme Court directs that re-trial can be ordered only after setting aside the judgment and sentence passed by the trial Court and holds:- “3. It is contended by the learned counsel for the appellant that the order passed by the High Court is illegal inasmuch as retrial could not have been ordered without setting aside the judgment passed by the trial court. As the appeal filed by Appellant 1 is pending in the High Court, we do not propose to say anything else except that the order passed by the High Court is clearly illegal. As retrial could not have been ordered without setting aside the order of the trial court, on that short ground alone, we allow this appeal and set aside the judgment and order passed by the High Court.” (at p. 571) 6.These are the settled principles. In the present case, the exercise required to be undertaken by the trial court was to have formed a conclusive opinion about the guilt of the accused after sifting through the evidence carefully and then deciding within the realm of Section 3 of the Indian Evidence Act as to whether the case is “proved”, “disproved” and “not proved”. It is proved beyond reasonable doubt that conviction follows in criminal law. On a word of caution, the accused cannot be punished on the basis of moral conviction and on suspicion alone. This is impermissible in law. It is proved beyond reasonable doubt that conviction follows in criminal law. On a word of caution, the accused cannot be punished on the basis of moral conviction and on suspicion alone. This is impermissible in law. (see: Mousam Singha Roy and others vs. State of W.B. (2003)12 SCC 377 and State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru (2005)11 SCC 600 .) At this stage, the order which I propose to make, I do not comment on the merits of the case of the parties. It was not merely sufficient to state as to what a particular witness states and then concludes that the appellant was guilty. Surely in reading the conclusion, the settled precedent requiring assessment of evidence has to be applied. The conclusion must be based on proved facts and the nature of things they establish. In C. Magesh and others vs. State of Karnataka, (2010)5 SCC 645 the Court holds:- “45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh vs. State of U.P. (2008) 16 SCC 686 has held: (SCC p. 704, para 14) “14. ’21... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; ... the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.’” 46. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”. Hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.” (p.655) I refrain from expressing anything on the merits of the case of either party as it may prejudice the trial. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.” (p.655) I refrain from expressing anything on the merits of the case of either party as it may prejudice the trial. In these circumstances, the judgment in appeal is set aside and the case is sent back for retrial, for offences only under Sections 409 IPC and 13 (1) (c) of the Prevention of Corruption Act. Parties to appear before the learned trial Court on 1st July, 2013. It is directed that the trial be proceeded preferably on day to day basis and concluded not later than three months from the date when the parties firstly put in appearance before the learned trial Court. I pass this direction taking into consideration the evidence on record which has not been considered in its true perspective either from the side of accused or from the side of the prosecution. The case is remanded and stands disposed of. The record of the learned trial Court be sent back forthwith.