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2014 DIGILAW 1395 (ALL)

Khemraj v. State of U. P.

2014-04-30

KARUNA NAND BAJPAYEE

body2014
JUDGMENT Karuna Nand Bajpayee, J.: - This revision has been filed assailing the validity of the order dated 20.01.2014 passed by the District & Sessions Judge, Allahabad in Criminal Appeal No.134 of 2013 (Swatantra Kumar Jaiswal Vs. State of U.P.) Police Station-Mutthiganj, District-Allahabad arising out of Case Crime No.723 of 1999 u/s 381, 411 I.P.C. whereby the order of acquittal dated 17.5.2013 passed by the lower court was set aside and the matter was remanded back to reconsider in accordance with law. 2. Heard learned counsel for the revisionist as well as learned A.G.A. Record has been perused including the impugned order. 3. It appears that the accused Khemraj faced the trial u/s 380 I.P.C. The prosecution story in brief was to the effect that after closing the shop on 22.11.1997 when the complainant came back on 24.11.1997 he found that a box containing about RS.1,00000/- was missing in the shop. Initially F.I.R. was lodged showing suspicion on two servants Ajay and Abhishek but later on the revisionist Khemraj was found to have committed the offence as it was found that the revisionist Khemraj had deposited the aforesaid amount of theft in the account of himself and in the account of his wife. After recording the prosecution evidence the lower court was of the view that the deposited amount in the bank could not be satisfactorily proved to have been the amount of theft. In the view of the trial court the evidence reflected only suspicion and nothing more. Certain other grounds were also taken by the trial court to substantiate the order of acquittal which it passed. 4. The order of acquittal was challenged in the court of appeal and the appellate court has set aside the trial court's order which recorded the acquittal of the revisionist. The present revision has been filed assailing the validity of the appellant court's order. 5. The contention of the counsel for the revisionist is that the person on whose information the suspicion was laid on the accused has not been produced. According to the counsel it was essential for the prosecution to produce the man on whose information the first informant developed suspicion on accused Khemraj. The contention is that non production of that witness is fatal to the prosecution. According to the counsel it was essential for the prosecution to produce the man on whose information the first informant developed suspicion on accused Khemraj. The contention is that non production of that witness is fatal to the prosecution. It has also been argued that the suspicion, though, was strong but it cannot take the place of proof and in the criminal jurisprudence the guilt has to be proved beyond a reasonable doubt and therefore the order of acquittal was not wrong and the appellate court ought not to have set it aside. 6. This court had the occasion to peruse the record and the impugned order in the light of the submissions made by the counsel. The accused-revisionist was not a stranger to the shop where the theft was committed. He used to ply the trolley of the shop and there is evidence on record that he used to sleep nearby the shop. The evidence on record is also to the effect that after the incident of theft accused-Khemraj was not seen around for 4-5 days. The prosecution evidence is also to the effect that when his search was made he was later on caught and when inquiry was made from him he admitted the commission of theft and also admitted that he had deposited a major part of the theft amount in the Regional Rural Bank in a certain account number belonging to him. Admission was also to the effect that a part of the amount was also deposited in the account of his wife. This is also on record that the amount deposited in Khemraj's account was to a tune of about Rs.50,000/- and the amount deposited in the account number of his wife was to a tune of Rs.40,000/- The appellate court has taken a serious note of these telling circumstances and did not find substance in the defence theory that the aforesaid amount belonged to the accused. From the side of the accused Rs.30,000/- were attempted to be explained in the name of some sale of the land that took place in 1995. In the view of the appellate court if the amount deposited in the account of the accused related to the aforesaid sale then there is hardly any explanation as to why the same amount would remain undeposited from 1995 to 1997. In the view of the appellate court if the amount deposited in the account of the accused related to the aforesaid sale then there is hardly any explanation as to why the same amount would remain undeposited from 1995 to 1997. The appellate court has also taken into account the fact that the incident took place between 22.11.1997 and 23.11.1997 and the aforesaid amounts of Rs.50,000/- and Rs.40,000/- respectively were conspicuously deposited in the account of accused-Khemraj and his wife on 27.11.1997 and 28.11.1997. The defence set up by the accused was found to be wholly frivolous and incredible. In the view of the appellate court the matter deserved rehearing. 7. The guilt of the accused can be proved both by direct evidence as well as indirect evidence or circumstantial evidence. The circumstances which create doubt may in a given case mature themselves to the extent that the suspicion may take the place of proof. All the circumstances relied upon by the prosecution ought to be individually proved. Then the circumstances proved by prosecution should be of such nature that they should conclusively point to the guilt of the accused. The conclusive nature of the circumstances should also be such that any hypothesis consistent with the innocence of the accused should also be ruled out. In the present matter there are many circumstances which ought to have been reasonably considered by the lower court and in the view of the appellate court they were not given due importance. If the appellate court remanded back the matter to be reconsidered in the light of the observations made by the same this Court does not see anything wrong in the same. The appellate court did not convict the accused straightaway. If certain circumstances which deserved consideration have been left out the appellate court was very much within its right to remand back the case. 8. Learned counsel for the revisionist has not been able to point out any illegality, impropriety or incorrectness in the same. This Court abstains to make other observations which it could have done on the merits of the case lest it may be to the prejudice of either party. Suffice it to say that the order impugned does not suffer from any such error which may call for any interference by this Court. 9. Revision being sans merit deserves to be dismissed. 10. Suffice it to say that the order impugned does not suffer from any such error which may call for any interference by this Court. 9. Revision being sans merit deserves to be dismissed. 10. It is further clarified that any observation made in this order must not be construed to the prejudice of either party and the court below shall consider the matter strictly on the merits of the case.