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2013 DIGILAW 504 (MP)

Rambahor v. State of M. P.

2013-04-12

N.K.GUPTA

body2013
JUDGMENT : The applicant was convicted for offence punishable under Section 420 of I.P.C vide judgment dated 8.9.1994 passed by the JMFC, Rewa in Criminal Case No.401 of 1994 and sentenced with one years rigorous imprisonment and one years simple imprisonment with fine of Rs.3000/-. In Criminal Appeal No.34 of 1994 vide judgment dated 29.6.1998 the learned IIIrd Additional Sessions Judge, Rewa maintained the conviction but, the sentence was reduced to one years rigorous imprisonment with fine of Rs.5000/-. Being aggrieved with the aforesaid judgments the applicant has preferred the present revision. 2. The prosecution's case in short is that on 25.9.1988 the applicant assured Budhsen Tiwari (PW1) and Rajmani Prasad (PW4) that if a sum of Rs.10,000/- is given for each candidate then he would arrange jobs for the candidates Mithila Prasad Tiwari (PW2) and Tulsidas (PW3) sons of Budhsen and Rajmani Prasad (PW4). Budhsen and Rajmani Prasad have collected a sum of Rs.20,000/- and handed over that amount to the applicant. Rajmani Prasad gave a sum of Rs.8000/- and Budhsen gave a sum of Rs.10,000/- for his own son and a sum of Rs.2000/- towards Rajmani Prasad. Thereafter, the boys were taken to Jabalpur from Village Mesaman, District Rewa along with Budhsen. The appliant directed Budhsen and his son to stay in one dharamshala and to wait for the applicant. Thereafter, he took Tulsidas with him upto Katni and directed the witness Tulsidas to stay in a Rest House at Katni but, thereafter the applicant disappeared. Ultimately Tulsidas, Mithila Prasad and Budhsen went back to their home place. They tried to search the applicant on his given address but, he was not found. Ultimately, a written report Ex.P/1 was submitted to S.P Rewa and a case was registered. After due investigation, a charge sheet was filed before the trial Court. 3. The applicant abjured his guilt. He took a plea that he was falsely implicated by his cousin Bhagwandeen Shukla. He neither visited Jabalpur in the alleged transaction nor he received any sum form Budhsen or Rajmani Prasad. In defence Patiraj Prasad Pandey (DW1) was examined. 4. The learned JMFC, Rewa after considering the evidence adduced by the parties convicted and sentenced the applicant as mentioned above whereas in appeal filed by the applicant sentence was modified. 5. I have heard the learned counsel for the parties. 6. In defence Patiraj Prasad Pandey (DW1) was examined. 4. The learned JMFC, Rewa after considering the evidence adduced by the parties convicted and sentenced the applicant as mentioned above whereas in appeal filed by the applicant sentence was modified. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the applicant has argued on statements given by the various witnesses PW1 to PW5. Attention of this Court was invited to those parts of the deposition of aforesaid witnesses in which they accepted about the FIR that it was prepared by one Bhawandeen and therefore, it is prayed that the witnesses did not lodge any FIR according to the facts of the case but, FIR was prepared and lodged by one Bhagwandeen and therefore, the witnesses were disbelievable. In support to the contention adduced by the learned counsel for the applicant the judgment of Hon'ble the Apex Court in the case of “Prem Prakash Alias Lillu and another Vs. State of Haryana” [ (2011) 11 SCC 687 ] was also referred in which it is directed that the statements of the witnesses must be read as whole. 7. On the other hand the leaned Panel Lawyer for the State has submitted that it is a clear cut case of cheating and looking to the overt act done by the applicant his sentence be maintained and the revision may be dismissed. 8. Generally the concurrent findings of both the Courts below, dependent upon the facts, cannot be disturbed if no perversity is visible in the judgments of both the Courts below. 9. In the present case if statements of the various witnesses Budhsen (PW1) Mithila Prasad (PW2), Tulsidas (PW3), Rajmani Prasad (PW4) and Ashok Kumar Tiwari (PW5) is examined, then it would be apparent that the applicant obtained a sum of Rs.20,000/- from Budhsen Tiwari and Rajmani Prasad with assurance that he will give that amount to the higher officers and provide the jobs to Tulsidas and Mithila Prasad. They have given the detail as to how they collected the money. Ashok Kumar Tiwari (PW5) has also proved the entry of his pass book Ex.P/2 in which a sum of Rs.7010/- was withdrawn from his account on 30.10.1988. The evidence of these witnesses is duly corroborated by the independent witness Ramlal (PW6). They have given the detail as to how they collected the money. Ashok Kumar Tiwari (PW5) has also proved the entry of his pass book Ex.P/2 in which a sum of Rs.7010/- was withdrawn from his account on 30.10.1988. The evidence of these witnesses is duly corroborated by the independent witness Ramlal (PW6). Under such circumstances, it appears that the applicant took a sum of Rs.20,000/- from Budhsen Tiwari and Rajmani Prasad by cheating. 10. The learned counsel for the applicant referred to paras 9 and 13 of the deposition given by Budhsen Tiwari (PW1), para 4 of Mithila Prasad Tiwari (PW2), para 9 of Tulsidas (PW3), paras 6 and 7 of Rajmani Prasad (PW4) and paras 8, 14 and 16 of Ashok Kumar Tiwari (PW5) to show that the FIR was prepared by one Bhawandeen and a suggestion was given to these witnesses that the relations of the applicant and Budhsen were inimical. In defence one Patiraj Pandey (DW1) was examined to show that the relations of the applicant and Budhsen were inimical but, he could not say about the reason of enmity. He has stated that so many legal disputes arose between them but, no document was submitted by the applicant to show that some legal disputes took place between them. Under such circumstances, the testimony of Patiraj Prasad Pandey cannot be accepted and the applicant could not prove that he had inimical relations with Bhagwandeen. 11. Secondly as per law laid by Hon'ble the Apex Cout in the case of Prem Prakash (supra) the evidence of the witness should be seen with entirety. Witness Budhsen (PW1) and Ashok Kumar (PW5) have categorically stated about the incident and the incident told by these witnesses is the same as it was mentioned in the FIR Ex.P/1 and therefore, if the witnesses told the entire story to one Bhagwandeen who drafted the FIR then it makes no difference in the present case because FIR was drafted according to the story told by Budhsen and Rajmani Prasad. Therefore, if the witnesses have accepted that they did not read the FIR or the complainant says that he appended his signature on the FIR without reading that FIR Ex.P/1 then it makes no difference. In this context the judgment passed by Hon'ble the Apex Court in the case of “Somappa Vamanappa ........ Vs. Therefore, if the witnesses have accepted that they did not read the FIR or the complainant says that he appended his signature on the FIR without reading that FIR Ex.P/1 then it makes no difference. In this context the judgment passed by Hon'ble the Apex Court in the case of “Somappa Vamanappa ........ Vs. State of Mysore” ( AIR 1979 SC 1831 ) may be perused. In that judgment, it is held that the rejection of FIR would not detract the testimony of the eye witnesses which will have to be assessed on its own merits and therefore, if the FIR Ex,P/1 is discarded in the present case, still then no enmity could be shown by the applicant with the complainant and Rajmani Prasad. No contradiction arose in the statement of these witnesses by which any doubt may be created in their evidence. Hence by considering the evidence given by Budhsen (PW1), Mithila Prasad (PW2), Tulsidas (PW3), Rajmani Prasad (PW4), Ashok Kumar Tiwari (PW5) and Ramlal (PW6), it is proved beyond doubt that the applicant received a sum of Rs.20,000/- from Budhsen and Rajmani Prasad with assurance that he would provide various jobs to Mithila Prasad and Tulsidas in armed forces by paying that amount to his higher authorities. Ultimately, the applicant cheated the victims. It is no where established as to whether the applicant was in a position to comply such an assurance given to the complainant. Hence, it is proved beyond doubt that the applicant obtained a sum of Rs.20,000/- from the complainant Budhsen and Rajmani Prasad by way of cheating and therefore, the trial Court as well as the appellate Court have rightly held him guilty for offence punishable under Section 420 of I.P.C. There is no basis by which the conviction directed by both the Courts below may be disturbed. 12. So far as the sentence is concerned, it is true that the applicant was the first offender and he has faced the trial appeal and revision for last 17 years but, if the judgment passed by the appellate Court is perused it would be apparent that it has reduced the sentence on the basis of delay caused in disposal and applicant faced the trial and appeal for a lengthy period. The revision could be decided within six months of its filing if the applicant would have moved an application for urgent hearing. The revision could be decided within six months of its filing if the applicant would have moved an application for urgent hearing. On the contrary the applicant avoided to argue the revision since long and therefore, he cannot get any advantage of the pendency of this revision for more than 14 years. Looking to the gravity of the offence and all the circumstances, including the age and custody period of the applicant whereas he remained in the custody for only 10 days during the trial, appeal and revision, it is not a fit case in which the sentence may be reduced to the period which he has already undergone in the custody. There is no basis by which any interference can be done in the sentence passed by the appellate Court. 13. On the basis of the aforesaid discussion in the present revision neither any interference can be done in the conviction directed by the Courts below nor in the sentence directed by the appellate Court. 14. Consequently, the revision filed by the applicant cannot be accepted. It is hereby dismissed. The applicant is directed to surrender forthwith before the trial Court so that the remaining sentence may be executed. 15. Copy of the order be sent to the trial Court as well as the appellate Court along with their records for information and strict compliance. The trial Court shall inform within 15 days of this order that the applicant is taken into custody and sent to the jail for execution of the remaining sentence.