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2019 DIGILAW 88 (JHR)

Krishna Yadav v. State Of Jharkhand

2019-01-09

ANANT BIJAY SINGH

body2019
JUDGMENT Anant Bijay Singh, J. This criminal revision application has been filed by the petitioner being aggrieved and dissatisfied by the judgment dated 03.09.2002 passed by Sessions Judge, Sahibganj in Cr. Appeal No.27/2001, whereby he has dismissed the the appeal and confirmed the judgment of conviction and order of sentence dated 25.06.2001 passed by Sri Vijay Narayan Singh , SDJM, Sahibganj in G.R.No.300/1994, T.R.No.21/2001, whereby the learned SDJM, Sahibganj had held the petitioner guilty under section 409 of the Indian Penal Code and sentenced him to undergo R.I. for three years. 2. The instant criminal revision was filed on 27.11.2002 and on 29.11.2002 the same was admitted for hearing and the petitioner was admitted on bail. After lapse of about 14 years this case was listed on 27.04.2016. Thereafter, on 30.08.2018 for the first time, this case was listed before this court and after adjurnments this was listed on 03.10.2019 and lastly on 19.11.2018. 3. The case of the prosecution, in short, is that on 07.09.1994 at about 6.45 a.m. Kote inchage Naik 1798 Sukhdeo Narayan Upadhaya informed the informant that when he came to RPF post ''Kote'' Sahibganj to issue arms and ammunition to guards, he found that one Rifle with 25 rounds of cartridges missing from the Kote with the Magazine where constable no.4543 Sri Krishna Yadav was on sentry duty. Meanwhile, search was conducted and the missing fifle without magazine was found kept in a bush on the north side of the old second class waiting room, which was then unde construction. Later on 25 live rounds cartridges with five charger clips were recovered from the possession of accused Manju Soren. 4. On the basis of the written report of the complainant, Sahibganj Rail P.S.case no. 20/94 under section 409,379,411 I.P.C was instituted. The police after investigation ubmitted charge sheet against the petitioner and cognizance was taken on 03.12.1994. Thereafter, on 22.06.1995 charges U/s 409,411,379 I.P.C. were framed against the petitioner. 5. Under judgement dated 25.06.2001 Sri Vijay Narayan Singh, SDJM, Sahibganj in G.R.No.300/1994, T.R.No.21/2001 held the petitioner- Krishna Yadav guilty U/s 409 I.P.C and Manju Soren U/s 411 IPC and sentenced them to undergo R.I for three years and two years respectively. 6. Thereafter, petitioners have preferred Cr. Appeal No.27/2001 before the Sessions Judge, Sahibganj, who vide judgement dated 03.09.2002 dismissed the appeal and confirmed the judgement passed by the SDJM, Sahibganj. 7. 6. Thereafter, petitioners have preferred Cr. Appeal No.27/2001 before the Sessions Judge, Sahibganj, who vide judgement dated 03.09.2002 dismissed the appeal and confirmed the judgement passed by the SDJM, Sahibganj. 7. It is further submitted that the prosecution has examined altogether 10 witnesses, but none of the witnesses have stated that the Rifle and Cartridges were entrusted to this petitioner. It was submitted that P.W.1 is the informant of this case, but he is not the eye witness of this case. 8. P.W.2, Arun Kumar has stated that he received information that rifle and cartridgs are missing from the Kote and the rifle was recovered in his presence, which was kept in a bush near the second class waiting room. 9. P.W.3 Shivkeshwar Tiwari is a constable, who was on duty on 05.09.94 at 8.00 a.m. to 8.00 a.m. of 06.09.94. Thereafter he handed over the charge to Vijay Paswan. He has further stated that in course of his duty, he received three rifles and 75 rounds of cartridges at about 10.30 P.M from the cash party and the same were kept in the guard room. The arms and ammunitions were not deposited in the Kote becuase the Kote Incharge, Mr. S.N.Upadhyay had told him that the same will be issued to the next guard party. 10. On 07.09.94 in the morning when Mr. Upadhyay went to the guard room, one rifle and 25 rounds of cartridges were found missing. On search, the rifle without magazine was recovered and a seizure list was prepared in his presence. He has also proved his signature as Ext. 2/2. 11. P.W.4, Sudarshan Thakur is also a constable who was on sentry duty at the guard room on the relevant date. He has stated that since 06.09.94 to 07.09.94 he was on duty at the pay office guard room. He has describerd the duty hours of sentry. P.W.5 is a formal witness who has proved the formal F.I.R. as Ext.6 and production- cum- seizure list as Ext. 3/2. 12. P.W.6 is A.S.I, posted at G.R.P. Sahibganj, who had assisted in the investigation. He has stated that on the date of incident, near the gate of parcel godown, Mr.Upadhyay has searched Manju Soren in presence of constable Tiwari Jee and from the bag of Manju Soren, 25 live cartridges were recovered. 3/2. 12. P.W.6 is A.S.I, posted at G.R.P. Sahibganj, who had assisted in the investigation. He has stated that on the date of incident, near the gate of parcel godown, Mr.Upadhyay has searched Manju Soren in presence of constable Tiwari Jee and from the bag of Manju Soren, 25 live cartridges were recovered. P.W.7 Niwas Diwan has stated that the occurrence took place on 07.09.94, while he was returning from the station, he had seen accussed Krishna Yadav talking with a woman and further handed over some articles which was wrapped in a cloth to that lady and the lady kept the article in her bag. He had identified the said lady as Manju soren. 13. P.W.8 is also a constable, who had stated that on 06.09.94 he alongwith Krishna Yadav was on duty at the pay office at Sahibganj Railway Station. He had stated that three rifles and 75 cartridges were already kept from before and he had taken additional charge of three more rifles and 75 cartridges in course of his duty. He told the Kote Nayak S.N Upadhyay to keep the rifles inside the Kote, but Mr. Upadhyay replied that he would keep the same later. He has stated that constable Sudarshan Thakur was also on duty on that date to whom he handed over the charge and he alongwith Krishna Yadav went to the barrack and again returned to the Kote at 12 mid night and performed his duty from 2.00 a.m. to 4.00 a.m. 14. In the next morning Mr.Upadhyay came there to issue the rifle and cartridges to cash escort. At that relevant time, Krishna Yadav was on sentry duty having the key with him and when the guard room was opened, only two rifles and 50 rounds of cartridges were found and one rifle and 25 cartridges were missing but on query, no proper reply was given and on search missing rifle was recovered from a bush and 25 casrtridges were recovered from the possession of a tribal lady namely, Manju Soren. 15. P.W.9, S.N.Upadhyay was posted as R.P.F. Nayak and was the incharge of Kote. He has stated that he learnt about the missing of rifle and cartridges at 6.30 a.m., when he went to issue arms and ammunitions. 15. P.W.9, S.N.Upadhyay was posted as R.P.F. Nayak and was the incharge of Kote. He has stated that he learnt about the missing of rifle and cartridges at 6.30 a.m., when he went to issue arms and ammunitions. He has described the number of rifles and the cartridges and ask from Krishna Yadav about the missing of rifles and the cartridges but no proper reply was given.He has deposed that the rifle was recovered from the bush and cartridges were recovered from the bag of accused Manju Soren for which seizure list was also prepared. 16. P.W.10, Ajit Kant Sharma was posted as Judicial Magistrate, Sahibganj and had recorded the confessional statement of accused Sri Krishna Yadav and Manju Soren on 09.09.94 and has also proved the confessional statement of accused Sri Krishna Yadav and Manju Soren as Exts. 7 and 8 respectively. 17. Learned counsel for the petitioner has submitted that none of the witnesses had stated that petitioner was entrusted with the rifle and accordingly, no offence U/s 409 IPC is made out and hence judgement of conviction and order of sentence of the petitioner cannot be sustained in law. It is further submitted that both the courts below have failed to consider the fact that there is no evidence on record to prove that the rifle and cargridges were taken out by the petitioner and therefore the impugned judgment passed by the court below is fit to be set aside. 18. Learned counsel for the petitioner has relied the judgment of Hon''ble Supreme Court in " Kailash Kumar Sanwatia Vs State of Bihar and Another" reported in (2003)7 SCC-399 and submitted that both the courts below have failed to consider the fact in view of the aforesaid judgment. The relevant part of the judgment is quoted herein below : "In order to sustain conviction under sectrion 409, two ingredients are to be proved. They are : (1) the accused, a public sercvant, or banker or agent was entrusted with property for which he is duty-bound to account for; and (2) the accused has committed criminal breach of trust. What amounts to criminal breach of trustr is provided in Section 405 IPC. They are : (1) the accused, a public sercvant, or banker or agent was entrusted with property for which he is duty-bound to account for; and (2) the accused has committed criminal breach of trust. What amounts to criminal breach of trustr is provided in Section 405 IPC. The basic requirerment to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by dishonest intention or not; misappropriated it or converterted it to his own usse to the detriment or the persons who entrusted it. But here, it is not the case of the prosecution that the money which was given to Head Cashier B and cash peon G to obtain the bank drafts was taken away by them.Because of an intervening situation, the disappearance of the cash due to theft by somebody else, the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 504 IPC or Section 409 IPC, unless misappropriation, or conversion to peersonal usse or disposal of property is established. Therefore, the accused person cannot be convicted under Section 409 IPC. 19. On the other hand, learned Addl.P.P. while referring Exts. 7 and 8 has submitted that the rifle and cartridges were stolen by the petitioner as the witnesses have categorically stated that the rifle and cartridges were being removed at the hands of the accused Krishna Yadav and he was also seen talking with accused Manju Soren at the Railway Station and he had handed over the stolen cartridges to Manju Soren, which were later on recovered from her bag. Hence, both the courts below have rightly convicted the petitionerappellant. It is further submitted that the judgement relied upon by the petitioner is not applicable in this case. 20. After considering the arguments advanced by the parties and also considering the entire facts and evidences available on the records of the case, I find no merit in this revision application. Accordingly, the same is dismissed. 21. It is further submitted that the judgement relied upon by the petitioner is not applicable in this case. 20. After considering the arguments advanced by the parties and also considering the entire facts and evidences available on the records of the case, I find no merit in this revision application. Accordingly, the same is dismissed. 21. Further, bail bonds of the petitioner is, hereby, cancelled and he is directed to surrender before the trial court within four Weeks from today. 22. Let a copy of this judgment alongwith the LCR be remitted forthwith to the trial court through Special Messenger at the cost of the Registry.