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2017 DIGILAW 1827 (JHR)

Meena Kumari v. State of Jharkhand

2017-10-31

ANIL KUMAR CHOUDHARY

body2017
JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. This revision is directed against the judgment dated 25.02.2006 in Criminal Appeal No. 5 of 2003 passed by the Additional Sessions Judge-I, Lohardaga, whereby and whereunder, learned Additional Sessions Judge allowed the appeal and set aside the judgment of conviction and order of sentence passed by the Additional Chief Judicial Magistrate, Lohardaga dated 24.02.2003 passed in G.R. Case No. 107 of 1998 corresponding to Lohardaga P.S. Case No. 28 of 1998 whereby and whereunder, the learned Additional Chief Judicial Magistrate convicted the sole accused of that case who is the appellant of Criminal Appeal No. 5 of 2003 and opposite Party No. 2 of this revision for the offences punishable under section 420, 506 and 341 of the Indian Penal Code and sentenced him rigorous imprisonment for three years, rigorous imprisonment for six months and rigorous imprisonment for one month respectively and ordered that the sentences will run concurrently but acquitted him of the charge for the offence punishable under section 384 of the Indian Penal Code. 2. The brief facts of the case are that the younger sister of the Informant namely Rajni Kumari appeared in the Final Examination of the Bihar School Examination Board. Rajni Kumari could not answer some papers properly and her result was pending. The accused - opposite party No. 2 of this revision in course of discussion told the informant of the case who is the petitioner of this revision, that if the informant pays the accused Rs. 3,500/-, he will get Rajni Kumari pass the said examination and in case of Rajni Kumari not passing the examination, the money will be refunded to the informant by the accused. In June, 1997 the informant paid Rs. 1,300/-. Rajni Kumari failed the examination but the accused returned only Rs. 300/-. On 18.01.1997 the accused along with three other persons surrounded the informant and after threatening to murder her; forcibly obtained her signature on revenue stamp affixed on plain paper. 3. During the trial the prosecution altogether examined four witnesses and proved the written report and various letters. 1,300/-. Rajni Kumari failed the examination but the accused returned only Rs. 300/-. On 18.01.1997 the accused along with three other persons surrounded the informant and after threatening to murder her; forcibly obtained her signature on revenue stamp affixed on plain paper. 3. During the trial the prosecution altogether examined four witnesses and proved the written report and various letters. The learned trial court after considering the materials available on the record relied on Exhibit - 5 which is a torn and illegible application allegedly in the handwriting of the accused to some authority which is not legible of the Bihar School Examination committee, Branch -Ranchi the for reevaluation of the papers of Rajni Kumari, which was not seized by police during investigation and was marked with objection that the same was not written by the accused and observed that this shows police was in collusion with the accused. Further though in his defence the accused only produced the certified copy of the order sheet dated 23.05.2001 of case No. M-263/2000 and the same was marked Exhibit-A being a public document, but the learned trial court quoted extensively from the report submitted by the officer in-charge on the basis of which the said proceeding under section 107 Cr.P.C. was initiated and observed that the contents thereof fully supports the case of the prosecution. PW1 is a hostile witness who did not support the case of the prosecution; PW 2 is an eye witness to the entrustment of money to the accused. PW3 is the informant. PW4 is the IO of the case. After taking into account the aforesaid materials the learned trial court convicted and sentenced the accused of the case as already indicated above. 4. The learned appellate court in the impugned judgment observed that in paragraph-1 of her deposition though the PW3 stated that she lodged a written report but the same was withheld from court and instead a typed Photostat report was produced but the same was also not properly proved and only the signature of the PW3 thereon was proved. The learned appellate court held that entrustment of money to the accused could not be established because (i) The actual date of entrustment of Rs. 1,300/- by the PW3 to the accused has not been mentioned and according to the appellate court the same was intentionally not disclosed. The learned appellate court held that entrustment of money to the accused could not be established because (i) The actual date of entrustment of Rs. 1,300/- by the PW3 to the accused has not been mentioned and according to the appellate court the same was intentionally not disclosed. (ii) There is discrepancy in the place of entrustment of Rs. 1,300/- by the PW3 to the accused; as in the FIR (Exhibit-1) PW3 has alleged that she paid Rs. 1,300/- to the accused in the house of the accused in presence of PW2, but the PW2 stated in paragraph - 1 of his deposition that Rs. 1,300/- was paid by the PW3 to the accused in the STD booth of the PW2 and PW3 did not disclose in her deposition the place where Rs. 1,300/- was paid by her to the accused. The learned appellate court further observed that there is discrepancy in the date of the second occurrence as in the FIR (Exhibit-1) the same has been mentioned as 18/01/97 but the same is an impossibility as it is also the case of the prosecution that the second occurrence took place after the first occurrence and the first occurrence took place sometime in June, 1997. The PW3 did not mention the date of the second occurrence in her deposition but the PW4 deposed that the PW3 stated before him that the second occurrence took place on 18/12/97. The learned appellate court remarked that the second place of occurrence being a public place some independent witnesses ought to have been examined by the prosecution. The learned appellate court also took note of the fact of unexplained delay in lodging of the FIR and observed that assuming the second date of occurrence to be 18/12/97 there was an unexplained delay of more than three months in lodging the FIR and that PW2 was admittedly in inimical terms with the accused and PW3 is admittedly a tenant of Kamal Kishore Sharma who was in inimical terms with the accused and went on to allow the appeal and set aside the judgment of the learned trial court. 5. 5. At the hearing of the revision it was submitted by the leaned counsel for the petitioner that the learned appellate court erred by not considering the deposition of the witnesses of the prosecution in proper perspective and failed to take note that the evidence in the record is sufficient to establish the charges against the accused beyond all reasonable doubt. It was also submitted that the learned appellate court erred by not considering that the STD booth of the PW2 is situated in the house of the PW3. It was further submitted that the learned appellate court ought to have considered that fact that the delay in lodging the FIR took place because of inaction of the police. It was submitted that the learned appellate court failed to consider that the accused forcibly obtained the signature of the petitioner on the blank paper, abused her in filthy language and threatened her and also that the petitioner is a tribal lady. Further it was contended by the revision petitioner that the learned appellate court failed to take note of the fact that the Informant revision petitioner has no concern either with the PW2 or with Kamal Kishore Sharma at the time of institution of the case. Lastly it was also submitted that the impugned judgment is bad in law and facts hence the same be set aside. 6. The learned Additional Public Prosecutor and the learned counsel for the opposite party No. 2 on the other hand defended the impugned judgment passed by the learned appellate court and submitted that the allegations against the accused is vague and in the absence of any specific allegation the charges framed against the accused is also vague and is not even complying with the requirements of section 212 of the Code of Criminal Procedure; as the alleged date of the occurrence and specific place of cheating has not been mentioned in the charge framed against the accused and the date of the second offence is a date prior to the first offence which is contradictory to the case of the prosecution. Further it was submitted that the prosecution has miserably failed to establish the charges against the accused beyond reasonable doubt as there is contradiction in the testimony of the witnesses of the prosecution on vital portions like the place of entrustment of money to the accused and to the date of occurrence of the alleged offences and the prosecution has failed to disclose who are the other accused persons involved in this in the second occurrence hence the learned appellate court has rightly allowed the appeal and set aside the conviction and sentence of the accused. It was also submitted that thus this revision petition being without any merit be dismissed. 7. Before delving into the facts involved in this case it will be appropriate to refer to the settled principles of law involved in this case. Hon'ble Apex Court in Criminal Appeal No. 2496 of 2009 with Criminal Appeal No. 2497 of 2009 decided on 11.06.2010 in the case of NANHAR & ORS. V. STATE OF HARYANA relied upon the celebrated judgment in Sharad Birdhichand Sarda vs. State of Maharashtra, reported in 1984 (4) SCC 116 , in which Hon'ble Apex Court held in paragraph 151 and 161 that it is well settled law that the prosecution must stand or fall on its own legs and it cannot derive any strength form the weaknesses of the defence. For ready reference, the said paragraphs are reproduced hereunder: "151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. 161. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. 161. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General." 8. Similarly the principle of law in case of delay in lodging the FIR is also well settled. The Hon'ble Apex court in the case of Jai Prakash Singh v. State of Bihar (2012) 4 SCC 379 in paragraph - 12 at page-383, has held as under:- "The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of commission of an offence is to obtain early information regarding the substances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye witnesses present at the scene of occurrence. If there is delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of the coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging FIR is an assurance regarding the truth of the informant's version. A promptly lodges FIR reflects the firsthand account of what has actually happened and who was responsible for the offence in question". 9. The law relating to the ingredients of the offence punishable under section 420 of the Indian Penal code is also well settled. A promptly lodges FIR reflects the firsthand account of what has actually happened and who was responsible for the offence in question". 9. The law relating to the ingredients of the offence punishable under section 420 of the Indian Penal code is also well settled. The Hon'ble Apex Court in its judgment in ARCI v. Nirma Cerglass Technics (P) Ltd. (2016) 1 SCC 348 has in paragraph 15 and 16 have held as under "15. The essential ingredients to attract section 420 IPC are : (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation has been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. 16. The distinction between mere breach of contract and cheating would depend upon the intention of the accused at the time of the alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into the transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established is that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent and dishonest intention is shown at the beginning of the transaction." 10. Now coming to the facts of this case as already mentioned above, the prosecution has to prove its own case and it cannot derive any strength from the weakness of the accused. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent and dishonest intention is shown at the beginning of the transaction." 10. Now coming to the facts of this case as already mentioned above, the prosecution has to prove its own case and it cannot derive any strength from the weakness of the accused. Though the FIR has been lodged at least more than three months after the occurrence assuming the date of occurrence of the second offence is 18/12/1997 as deposed by PW4 and thereby lost its spontaneity as already indicated above yet the informant could not mention the exact date of entrustment of money to the accused. Though it was contended by learned counsel for the petitioner that the STD booth of the PW2 is in the house of the informant yet she could not show any evidence in the record to that effect. Rather the evidence in the record in paragraph-9 of the deposition of the PW3 suggests that the petitioner is herself a tenant of one Kamal Kishore Sharma who has litigations pending with the accused and his family members. Moreover such submission is irrelevant as it is the case of the prosecution that the informant entrusted the money to the accused in the house of the accused. So far as the contention of the petitioner that police was in collusion with the accused is concerned, it is needless to mention that evidence indicating collusion of the investigating agency with the accused howsoever strong maybe certainly cannot substitute the requirement of proving a charge of an offence against the accused by cogent evidence beyond reasonable doubt. So far as the second offence is concerned though it is the case of the prosecution that the same took place after the first offence but the date of the second offence has been mentioned prior to the first offence and in her deposition also PW3 did not mention the date of the either of the two offences nor clarified the discrepancy in the said dates. Though it was contended by the petitioner that at the time of the occurrence the petitioner had no concern with the PW2 or Kamal Kishore Sharma yet she could not show any evidence in record to that effect. Though it was contended by the petitioner that at the time of the occurrence the petitioner had no concern with the PW2 or Kamal Kishore Sharma yet she could not show any evidence in record to that effect. Further there is no allegation or evidence in the record that the intention of the accused was dishonest at the very time when he made a promise and entered into the transaction with the complainant to part with money. On the other hand it is the admitted case of the prosecution that the accused returned Rs. 300/- which is part of the amount taken by the accused from the petitioner, which is a fact contrary to any dishonest intention of the accused at the very time of his alleged inducement of the petitioner. 11. In this backdrop, I have no hesitation in holding that this not a fit case where the impugned judgment warrants interference of this court in exercise of its revisional jurisdiction. Thus, this revision petition being without any merit is dismissed.