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Uttarakhand High Court · body

2013 DIGILAW 671 (UTT)

Inder Singh v. C. B. I. , Dehradun

2013-10-23

U.C.DHYANI

body2013
Judgment U.C. Dhyani, J. 1. Consequent upon an F.I.R. lodged against the accused persons, a charge-sheet was submitted against them for the offences punishable under Sections 120-B, 420, 467, 468 & 471 IPC. Cognizance was taken and the accused persons were summoned to face the trial for the selfsame offences. When the trial began and prosecution opened it’s case, charges against accused-appellants were framed for the offences punishable under Sections 120-B, 420, 467, 468 & 471 IPC. Accused-appellants pleaded not guilty to the charges and claimed trial. 2. PW1 Subedar S.K. Sharma, PW2 S.N. Yadav, PW3 Dinesh Chandra, PW4 K.K. Ahuja, PW5 T.S. Sisodiya, PW6 M.S. Bisht, PW7 Vijay Chawra, PW8 Suresh Chandra Gupta, PW9 Mahavir Singh Mahalawat, PW10 Paramjeet Singh Grower and PW11 Lieutenant Colonel Kaushal Singh were examined on behalf of the prosecution. They proved documents from Ex.Ka-1 to Ex.Ka-44. The FIR was lodged by the Superintendent of Police (C.B.I.), R. D. Singh on 30.06.1993. 3. When the prosecution evidence was concluded, the statements of accused persons were recorded under Section 313 Cr.P.C. The accused persons confessed their guilt and admitted the prosecution story to be true, on their own volition. 4. A perusal of the order-sheets of learned trial court indicates that the accused persons moved an application (paper no.91 ka) on 12.07.2000 for confessing their guilt. They were explained by learned court below that they were not bound to make a confession and if they do so, they may be convicted for the offences complained of against them. Whereas the application for confessing their guilt was moved by the accused persons on 12.07.2000, their statements under Section 313 Cr.P.C. were recorded on 18.08.2000 i.e. after about a month of their willingness to confess their guilt. It is indicated by learned trial court in it’s order dated 18.08.2000 that the accused persons were explained the consequences of their confessing the guilt, on the day when the application regarding confession of guilt was moved, as well as the day when their statements were recorded under Section 313 Cr.P.C. Learned trial court, vide order dated 18.08.2000, convicted the accused persons for the offences for which they were charged. After hearing the accused persons on the point of sentence, they were directed to undergo rigorous imprisonment for three months each and were also directed to deposit a sum of Rs.1.50 lakh each in favour of C.D.A. (C.C.) within six months. After hearing the accused persons on the point of sentence, they were directed to undergo rigorous imprisonment for three months each and were also directed to deposit a sum of Rs.1.50 lakh each in favour of C.D.A. (C.C.) within six months. Such order was passed by the learned trial court under Section 357 (3) Cr.P.C. 5. Aggrieved against their conviction and sentence, a criminal appeal bearing no.53/2008 was preferred by the accused persons before the Special Judge (C.B.I./Anti-Corruption), Dehradun, who, after considering the evidence on record, dismissed the criminal appeal, but reduced the sentence from three months rigorous imprisonment to one month’s rigorous imprisonment. A plea was raised before the Special Judge (C.B.I./Anti-Corruption), Dehradun to award them imprisonment for the period already undergone by them, but the Special Judge (C.B.I./Anti-Corruption), Dehradun/appellate court declined the same citing reason that the accused-appellants remained in jail only for 3-4 days. The appellate court gave a finding that it would not be appropriate to award sentence to the accused persons for the period already undergone by them. The said judgment was delivered by the appellate court on 27.06.2002. 6. Still aggrieved against the same, present criminal appeal was preferred before this Court. Such criminal appeal was not maintainable before this Court and therefore this Court, vide order dated 04.07.2002, treated this appeal as a revision. While entertaining such matter, this Court termed the appellants as ‘revisionists’ in it’s order dated 16.07.2002. It was indicated in the said order that the revisionists have deposited the fine imposed upon them and therefore, the revisionists were directed to be enlarged on bail during the pendency of appeal (revision). 7. Learned senior counsel for the revisionists submitted, among other things, that the learned trial court ought to have granted sometime to the accused persons to ponder over their application regarding confession of their guilt. The order dated 18.08.2000 passed by the trial court indicates that after conclusion of the prosecution evidence, an application (paper no.91 ka) was moved on behalf of the accused persons on 12.07.2000 for confessing their guilt. Precautions were taken by the learned trial court while taking such an application on record. Accused persons were explained that they were not bound to move such an application for confession and if they do so, they should be ready to face the consequences, including their conviction. Precautions were taken by the learned trial court while taking such an application on record. Accused persons were explained that they were not bound to move such an application for confession and if they do so, they should be ready to face the consequences, including their conviction. Statements of accused persons under Section 313 Cr.P.C. were taken on 18.08.2000. On that day again, the accused persons were explained about the consequences of their confessional statement. But still, the accused persons insisted for recording their confessional statements. On the basis of such request, their statements were recorded on 18.08.2000, i.e., after more than a month of their willingness to confess their guilt. 8. The prosecution was able to prove it’s case against the accused persons beyond a shadow of reasonable doubt, not only on the basis of the oral testimony of eleven prosecution witnesses, but also on the strength of documentary evidence produced by the prosecution, as also the confessional statements of the accused persons. 9. There is no illegality in the concurrent findings of two courts below. It is true that the accused persons cannot be convicted on the basis of their confessional statements alone. But in the instant case, the prosecution story was proved to the hilt on the basis of the prosecution evidence in the form of eleven prosecution witnesses duly supported by documentary evidence. The FIR itself was lodged by the Superintendent of Police (C.B.I.) and ingredients of forgery, cheating and criminal conspiracy came to the fore during investigation, which were proved by the prosecution during the course of trial. 10. Learned senior counsel for the revisionists further pleaded that the accused-revisionists be granted the benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as the Act of 1958). It may be noted here that one of the offences for which the accused persons were convicted is under Section 467 IPC, which entails punishment with imprisonment for life also. The benefit of Section 4 of the Act of 1958 can be granted to any person, who is found guilty of having committed an offence not punishable with death and imprisonment for life. The benefit of Section 4 of the Act of 1958 cannot, therefore, be allowed to the accused revisionists. 11. The benefit of Section 4 of the Act of 1958 can be granted to any person, who is found guilty of having committed an offence not punishable with death and imprisonment for life. The benefit of Section 4 of the Act of 1958 cannot, therefore, be allowed to the accused revisionists. 11. Learned senior counsel for the revisionists relied upon the decisions of the Hon’ble Apex Court in Paul George vs. State of NCT of Delhi (2008) 2 SCC (Cri) 768, Fulchand Gope & another vs. State of Jharkhand (2011) 12 SCC 514 and Mohd. Monir Alam vs. State of Bihar (2010) 12 SCC 26 . 12. In Paul George’s case (supra), the benefit of Section 4 of the Act of 1958 was granted to the convict (Paul George) under Sections 279 & 304-A IPC. It may be noted here that the maximum punishment for the offence under Section 279 IPC is six months’ imprisonment and the offence punishable under Section 304-A IPC entails imprisonment which may extend to two years. In the instant case, the offence punishable under Section 467 IPC entails punishment with imprisonment for life also, which is beyond the purview of Section 4 of the Act of 1958. 13. In Mohd. Monir Alam’s case (supra), the Hon’ble Apex Court granted benefit of the provisions of Act of 1958 to the accused who was convicted under Section 304 (II) IPC, in which the term of imprisonment may extend to 10 years or with fine. In order to distinguish the said case with the facts of the instant case, it is being said, as has been stated above, that the offence punishable under Section 467 IPC entails punishment upto imprisonment for life. Therefore, the case of Mohd. Monir Alam (supra) is also not applicable to the facts of this case. 14. In Fulchand Gope’s case (supra), the Hon’ble Apex Court granted benefit of the provisions of Act of 1958 to the accused persons who were convicted under Section 326 read with Section 34 IPC. The facts of Fulchand Gope’s case and the instant case are distinguishable, in as much as, serious allegations of forgery, cheating and criminal conspiracy were levelled against the present revisionists, whereas in Fulchand Gope’s case, in a sudden quarrel accused persons pelted stones and gave blows on the head of the deceased. The facts of Fulchand Gope’s case and the instant case are distinguishable, in as much as, serious allegations of forgery, cheating and criminal conspiracy were levelled against the present revisionists, whereas in Fulchand Gope’s case, in a sudden quarrel accused persons pelted stones and gave blows on the head of the deceased. Therefore, the case of Fulchand Gope (supra) is also not applicable to the facts of this case. Moreover, this Court feels that a lenient view in favour of the revisionists has already been taken by the appellate court. No interference is, thus, called for in the impugned judgment and order. It is, however, clarified in the absence of any averment to the contrary that one month’s imprisonment as awarded to the revisionists by the appellate court shall be construed as concurrent one. 15. The criminal revision thus, fails and is, dismissed.