TMI Blog1989 (3) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... on or about 1.3.67 in Mainpuri city entered into a criminal conspiracy, by agreeing to hush up the offence of theft or criminal breach of trust in respect of shortage in Government cash to the tune of Rs. 9600/- in the office of the District Medical Officer of Health, Mainpuri and make up the same from the funds of B.D. Bhargava, who was the Head Clerk in the Department under threat of dire consequences, and in furtherance of the said conspiracy on the evening of 1.3.67, Dr. Verma took Bhargava to Kotwali, Mainpuri in a jeep bearing registration No. UPD 9461 driven by Mahfooz Ali and in collusion with Pheru Singh, Mohd. Ismail wrongfully confined Bhargava in the Police Station from 5 p.m. to 10 p.m., committed extortion by putting Bhargava in fear of injury to him and dishonestly induced him to deliver money and towards that end took Bhargava to Agra on the same night by the same jeep and wrongfully restrained him from 11 p.m. on 1.3.67 to 6 p.m. or 7 p.m. on 2.3.67; Dr. Verma, Pheru Singh and Mohd. Ismail alongwith one Constable took Bhargava to his house at Agra at 8.15 a.m. in the same jeep driven by Mahfooz Ali, induced him and his wife to deliver pre-mature fixed deposit rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths under Section 120-B; six months under Section 384/120-B two years under Section 388/120-B; four months under Section 342/120-B; one month under Section 341/120-B, one year under Section 193/120-B, one year under Section 201/120-B, two months under Section 218/120-B two months under Section 466/120-B, and one month under Section 420/120-B of the Indian Penal Code. Accused persons RP Agarwal and Mahfooz Ali Khan are hereby sentenced to undergo rigorous imprisonment for two months under Section 120-B, one month under Section 384/120-B, two months under Section 388/120-B, one month under Section 342/120-B, fine of Rs. 50/- each and in default simple imprisonment for one week under Section 341/120-B, rigorous imprisonment for one year under Section 193/120-B, two months under Section 201/120-B, four months under Section 218/120-B, two months under Section 466/120-B, and six months under Section 420/120-B of the Indian Penal Code. The sentences of all the accused persons shall run concurrently. 5. On being aggrieved by the above judgment, the convicted accused namely Mohd. Ismail (Accused No. 5), Pheru Singh (Accused No. 4), Mahfooz Ali (Accused No. 3), and RP Agarwal (Accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave and so Shri B D Bhargava was incharge of the Departmental cash, which was used to be kept in a safe in the office, the key of which used to be with the Head Clerk namely Shri Bhargava. The duplicate key of the safe used to be under the seal in the Treasury Office. As usual at 8.30 p.m. Shri Bhargava got the safe closed and returned home. On the next day i.e. on 28.2.67 while Bhargava was ready to go to the office from his house, he realised that his bunch of keys was not available. He went to the office and made enquiries from his Colleagues about the bunch of keys and searched for the same but it could not be traced. Then he wrote a report addressed to the District Health Officer stating that the keys were missing. After sending the report to Dr. Verma, Shri Bhargava returned home as he became perturbed on account of the loss of the keys. On the next day i.e. on 1.3.1967, a written report was handed over to Dr. Verma and thereafter with the duplicate key brought from the Treasury the safe was opened and it was found that a sum of Rs. 9600/- was missing from the safe. It is said that Bhargava wrote a report to Dr. Verma in respect of the theft of money and requested him to info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police in this regard. He also contacted R-2 and R-3. Dr. Verma, R-2 and R-3 kept giving false assurances to Bhargava. Sensing that the money would not be returned, Bhgrgava along with his wife went to Lucknow and gave a petition to the Director, Medical Health on 10.3.1967 narrating the entire facts. The Health Department got a departmental inspection done regarding this by a Senior Accounts Officer, who submitted his report alongwith the statement recorded by him from the concerned persons. On 30.3.1967, Bhargava sent a petition through his wife by registered post to higher authorities. Bhargava expired on the night of 30/31.3.1967. 12. By the order of the higher authorities, the matter was entrusted to CID. PW-35, CID Inspector who investigated the matter filed the charge-sheet against all the five accused. 13. Before adverting to the arguments advanced by the learned counsel, Mr. Prithvi Raj, we would first of all like to mention certain salient features and the scope of appellate power of this Court vested under Article 136 of the Constitution of India and its interference in the order of acquittal passed by the High Court. 14. The occurrence in the present case is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the power has led the Court to set limits to itself within which to exercise such power. It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court. But within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of fact making no distinction between judgment of acquittal and conviction, if the High Court, in arriving at those findings, has acted perversely or otherwise improperly . (See State of Madras v. Vaidyanath Iyer, 1958CriLJ232 and Himachal Pradesh Administration v. Om Prakash 1972CriLJ606 . In dealing with an appeal against acquittal, the Court will, naturally keep in mind the presumption of innocence in favour of the accused, reinforced as may be, by the judgment of acquittal. But, also the Court will not abjure its duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative. Where the acquittal is based on irrelevant ground, or where the High Court allows itself to be defl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Agra Police Club to substantiate the allegation that Bhargava was kept in the Police Club on on the night of 1.3.67 till 8.15 p.m. on 2.3.67. 4. Bhargava himself had not mentioned in the report (Exh. Ka 10), given by him on 10.3,67 to the Director of Medical Health Services either about his illegal confinement or restraint in the Police Club, Agra or the number of the jeep or the name of the driver of the jeep. 5. The number of the jeep said to have been used by Dr. Verma and the Police officials has been made mention of only in the complaint sent by PW-8 on 31.3.67. 6. PW-8 has not spoken in her evidence as how she came to know the number of the jeep and the name of the driver. 7. There was no test identification parade in respect of R-1 also. 8. There is no entry at the check-post at the entry of the bridge in Agra. It shows that the jeep bearing Regn. No. UPD 9461 did not cross the bridge. 24. Mr. Prithvi Raj, learned counsel on behalf of the appellant (State of U.P.) made a scathing attack on the above reasonings of the High Court contending that those reasonings are perverse based on irrelevant grounds and on a perfunctory consideration of the evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make the entry of the vehicle passing through the bridge might have omitted to register the number of the jeep and allowed the jeep to pass through since it was a departmental jeep in which Police officials were travelling and hence no adverse influence could be drawn against the prosecution on that ground. If this submission is to be accepted at this stage, it can be only on a presumption; because in the normal course, the register, kept at the check-post should contain the registration numbers of all the vehicles passing through. Therefore, this Court while exercising its jurisdiction under Article 136 of the Constitution of India will not be justified in taking a contrary view to that of the High Court on mere presumption. Secondly, the defence counsel has vehemently urged that the evidence of PW-25, the owner of the petrol pump RD Gupta showing that at 7.00 p.m. on 1.3.67 R-1 purchased 35 litres of petrol under the petrol coupon (Exh. Ka 39) which contains the signature of the driver (R-1) marked as Exh. Ka 50 and the petrol vouchers (Exh. Ka 57 to 59) showing sale of petrol to the said vehicle (jeep) which the High Court had conveniently omitted to consider would establish th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argava. As pointed out by the Courts below, these two witnesses are highly interested witnesses, but nonetheless, their testimony cannot be rejected only on the ground of interestedness, because if such an incident took place inside the house of Bhargava as spoken by PWs 2 and 8 only the inmates of the house (i.e. PWs 2 and 8) would be the proper witnesses. But the question is whether the evidence of these two witnesses inspire confidence and are free from any infirmity. According to the witnesses after Dr. Verma, R-2 and R-3 along with Bhargava returned from the bank after encashing the fixed deposit certificates, they all went to Mainpuri and Bhargava returned to Agra only on 5.3.67. PW-34 has stated in his evidence that he met his father at Mainpuri on the evening of 1.3.67 and came to know from his father as to what had happened. The evidence of PW-8 is that on 8.3.67 she accompanied by her husband, Bhargava met Dr. Verma and requested him to return the amount to which Dr. Verma said that he could not obtain the amount and that he would compensate the amount as soon as the amount was traced. She stated that after meeting some officials on 8.3.67, she and her husband went to Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one from the police club of Agra was examined nor any document from the said police club has been marked showing atleast the stay of Dr. Verma along with R-1 and R-3 and Bhargava on the night of 2.3.67. In addition to the above arguments advanced on behalf of the defence, Mr. Prithvi Raj took us through the evidence of some more witnesses namely PW-1, PW-5 and PW-7 and the Investigating Officers and pointing out certain portions of their evidence has submitted that the High Court has not considered those portions of the evidence. We have carefully gone through these pieces of evidence and we are unable to agree with the learned counsel that the alleged non-consideration of the evidence of certain pieces of evidence pointed out by him are not very material and they do not compel us to interfere, with the conclusion arrived at by the High Court. At this juncture, we would like to point out that PW-5 was suspected in connection with this case. PW-5 had admitted in his evidence that his house was searched by the Police in connection with this case and he was taken to Kotwali Police Station where he was kept. Then he advanced an argument on the evidence of some of the witnesses relating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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