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SHYAM NARAIN versus STATE OF U.P.

High Court of Judicature at Allahabad

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Shyam Narain v. State Of U.P. - CRIMINAL REVISION No. 360 of 1987 [2005] RD-AH 7705 (16 December 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                           RESERVED.

                  CRIMINAL REVISION NO. 360 OF 1987

          Shyam Narain  and others  . . . .Vs.  . . . .State  of U.P.

   ---

Hon'ble R.K.Rastogi,J.

This is a revision against judgment and order dated 12.2.1987 passed by Sri N.B. Asthana, then learned Sessions Judge, Mirzapur in Criminal Appeal no. 93 of 1986, Shyam Narain Singh Vs. State of U.P., and Criminal Appeal no. 95 of 1986, Rajendra Singh and another Vs. State of U.P.

The facts relevant for disposal of this revision are that on 15.9.1981 at about 12.30 P.M. Sri Pratap Singh, Security Officer, Dala Cement Factory, Mirzapur  lodged a report at police outpost Dala with this allegation that in between the night of 14/15.9.1981 one electric motor  of 7.5 Horse Power  and iron chain of about 24 meters in length had been stolen by some unknown persons. It was further stated that full particulars of the electric  motor shall be furnished after verifying the same from the record. The police registered  a case  against unknown culprits. Necessary particulars regarding the electric motor were furnished on 16.9.1981. On 18.9.1981 Bharat Ratna Varshney, Sub Inspector, Incharge of the  police outpost  Dala received information from secret informer  that some persons were going on a car to sell the stolen electric motor and on the basis of this information they reached  near the stone barrier  at about 2.30 P.M. After some time, ambassador car no. UPD 8584 was seen coming from the side of Dala. The car driver was given a signal  to stop the car. The car was stopped. Three persons came out of the car. They wanted to run away. They were chased  and arrested. Upon inquiry they told their name as Shyam Narain Yadav, Peon in Dala Cement factory, Vishwanath, Attendant in that factory and Rajendra Singh, Packer in that factory. The electric motor was also  recovered from the car. The above named accused were  arrested and after completion of investigation a chargsheet was submitted against them  for the offences under sections 379 and 411 I.P.C.

The accused were charged under section 411/34 I.P.C. They pleaded not guilty and claimed to be tried.

The prosecution examined  Pratap Singh, Security Officer of the said factory as P.W.1. He had lodged the first information report of the incident regarding the theft committed in the factory. He has proved that report as Ex. Ka 1. He further stated that after recovery the electric motor was given in his custody. He brought that motor to the court and identified  the same as Ex. 1.

Bhairo was examined as P.W.2. It may be mentioned that as per the prosecution case  he was a witness of  recovery of the electric motor but he stated that no motor was recovered  in his presence. He was declared hostile by the prosecution. He admitted his signature on the recovery memo but stated that he had signed this memo at the police outpost.

Sri D.R.Singh, Civil Engineer, was examined as P.W.3. He deposed about  the working of the factory and regarding theft  of the electric motor and 24 meters long chain.

The statement of Head Constable Rajdeo Ram was recorded as P.W.4. He is an eye witness of the recovery of  the electric motor from possession of the accused persons and he has proved that recovery. Ram Adhar Yadav, S.I. Police Station Chopan was examined as P.W.5.

The accused persons in their statement under section 313 Cr.P.C. denied the prosecution allegations and stated that they had been falsely implicated in the case.

The learned Magistrate after hearing  of the case  came to the conclusion that the charge under section 411/34 I.P.C. was substantially proved  against the accused persons. He, therefore, convicted them for the above offence  and sentenced each of them to two years R.I.and to a fine of

Rs.2000/-. Aggrieved  by that judgment and order,  the accused filed Criminal Appeals no. 93 of 1986 and  95 of 1986. The above appeals were heard by Sri N.B. Asthana, then District Judge, Mirzapur who decided the same vide his judgment and order dated 17.2.1987. He dismissed the appeals on merits and confirmed the order passed by the trial court. Aggrieved by that judgment and order the accused have filed the present revision.

The accused revisionist no. 3 Vishwanath died during pendency of the revision. So the revision abated so far as Vishwanath is concerned. However, the revision continued so far as revisionists no. 1 and 2 are concerned. The arguments of the learned counsel for the revisionists no. 1 and 2 and of the learned A.G.A. were heard by me.

The learned counsel for the revisionists first of all submitted before me that that the only independent witness of recovery, namely, Bhairo P.W.2 had turned hostile, and after discarding his evidence there was no reliable evidence to corroborate the allegation of  recovery of the electric motor from possession of the accused persons and so the court  below  erred in law in holding otherwise.

It may, however, be seen that recovery of the electric motor from possession of the accused  has been proved by  constable Rajdeo Ram P.W.4 and his testimony cannot be rejected merely on this ground that he is a police witness. He has sufficiently proved  recovery of the electric motor from possession of the accused revisionists. It is also to be seen that Bhairo P.W.2  who has turned hostile has admitted  his signature on the  recovery memo. He further stated that he does not know whether the above paper was written or was lying blank when his signatures were  obtained upon it. The above statement goes to show that he is concealing true facts. Anyhow  recovery of the motor from possession of the accused was sufficiently proved from the statement of P.W.4 Raj Deo Ram.

It was further submitted by the learned counsel for the revisionists that the Investigating Officer of this case was not produced. It is to be seen that the documents regarding investigation has been proved by Constable Raj Deo Ram P.W.4 and so no adverse inference can be drawn against the prosecution due to non-production of the Investigating Officer.

It was further submitted  by the learned counsel for the  revisionists that recovered  motor was not got identified. It is to be seen that full particulars regarding the motor including its number etc. were given  to the police on 16.9.1981 as is apparent from the  letter of that date Ex. Ka 2 and the motor  bearing those particulars was recovered on 18.9.1981 from possession of the accused persons. Since  the description of the recovered motor tallied with the description given in Ex.Ka 2 on 16.9.981 it was sufficiently established that this motor was that very motor which was stolen  from Dala Cement factory and so there was no necessity of putting this motor for identification. As such no adverse  inference  could be drawn against the  prosecution on the ground that   the motor was not put for  identification.

In the last the learned counsel for the revisionist submitted that  the incident took place in the year 1981. The accused were convicted by the trial court  on 11.7.1986 and by the appellate court on 17.2.1987 and on that date the accused were taken into custody. Thereafter they were  granted bail by this Court on 24.2.1987 and were released  on bail thereafter and during this period from 17.2.1987 they remained in jail. He further submitted that after filing of this revision on 24.2.1987 the first date for its hearing was fixed on 11.7.2000 and the revision remained unlisted for hearing for a period of 13 years. He submitted that after the lapse of  23 years from the date of incident  and after a lapse of 18 years from the date of order of the appellate court, the accused  should not  be sent to jail. Taking into consideration this fact that there was  a charge of  recovery of  the electric motor  from possession of the accused revisionists and there is no other serious allegation against them, so now instead of sending  them  to jail, the order of sentence of imprisonment  passed against them should be modified. It was further submitted that the accused Vishwanath who was aged about 40 years on 13.8.1982 has already died. The age of revisionist no. 1 Shyam Narain was 45 years on 13.8.1982 and his present age is 68 years , revisionist no. 2 Rajendra Singh was aged about 30 years on 13.8.1982 and his present age is 53 years and taking into consideration their old age, instead of sending them to prison sentence of  fine should be imposed  on them.

Considering all the facts and circumstances  of the case and the  time gap from the date of incident and from the date of judgment of the appellate court till  date as well as  the present old age of the accused revisionists, I am of the view that keeping in view this fact that the accused  had already undergone  about three weeks imprisonment  in the year 1987 when they were convicted  by the appellate court., now instead of sending them to jail it will be in the interest of justice  that the amount of fine should be  enhanced. I, therefore, modify the order of sentence passed against  the accused revisionists. It may be mentioned that accused revisionists were sentenced to two years R.I. and to a fine of Rs.2000/- under section 411 I.P.C. I am of the view that  it  will be proper  to impose  a fine of Rs.5,000/- upon each of the accused persons in place of sending them to jail now.

The revision is, therefore, partly allowed,. The order of conviction of the accused revisionists Shyam Narain and Rajendra Singh under section 411 I.P.C. is maintained  but the order of sentence

passed against them  by the courts below is modified and taking into  consideration the sentence of imprisonment already undergone by them, I instead of sending them to jail to undergo the remaining part of imprisonment pass an order  for enhancement of the amount of fine to Rs.5,000/- each.  They are allowed  four months' time to deposit the amount of fine. In case of default of payment of  the fine, they shall have to undergo imprisonment as ordered by the courts below.

Since accused revisionist Vishwanath had died during pendency of this revision, the revision abates so far as it pertains to him.

Dated:16.12.2005

RPP.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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