ZAFAR HUSSAIN Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) The revisionists are the convict for the commission of an offence under Sections 409, 420 and 471 of IPC, and as a consequence of the culmination of the Criminal Trial, which was registered as Criminal Case No. 1117 of 1999, State v. Zafar Hussain and another, for the aforesaid offences, which was arising from Case Crime No. 107 of 1999 lodged at Police Station, Rudrapur, District Udham Singh Nagar. The revisionists had been convicted by the Court of Chief Judicial Magistrate, District Udham Singh Nagar, by the judgement dated 23rd September 2010, whereby the revisionists have been convicted and directed to undergo an imprisonment of seven years and fine of Rs. 10,000/- has been imposed upon the revisionists for the commission of an offence under Section 409 of IPC. They had also been convicted to undergo two years imprisonment for the commission of an offence under Section 420 of IPC and a fine of Rs. 5,000/- has been imposed upon them, and simultaneously, for the offences under Section 471, the revisionists have been convicted to undergo sentence of one year imprisonment and fine of Rs. 5,000/- has been imposed upon them.

(2.) Being aggrieved against the judgement of conviction dated 23rd September 2010, as rendered by the Court of Chief Judicial Magistrate, District Udham Singh Nagar, the revisionists have preferred a Criminal Appeal being Criminal Appeal No. 138 of 2011, Zafar Hussain and another v. State of Uttarakhand, and the learned Appellate Court, of 3rd Additional Sessions and District Judge, District Udham Singh Nagar, too while accepting the propriety of the judgement of conviction dated 23rd September 2010, as passed by the Court of Chief Judicial Magistrate, Udham Singh Nagar, had affirmed the judgement of conviction vide its judgement dated 5th May 2011, thereby convicting the revisionists to undergo the sentence as imposed for the aforesaid offences and for the period, as already referred in the judgement of the trial Court dated 23.09.2010.

(3.) It is these two impugned judgements, which have been put to challenge by the revisionists in the present revision. The main issue, which has been raised and argued by the learned counsel for the revisionists in the present revision, it is to the effect that firstly, since the revisionists are not the government servants, whether they can be held liable for the commission of an offence, as levelled against them for commission of offence under Section 409 of IPC. Secondly, the learned counsel for the revisionists submitted that whether the secondary evidence, which was adduced by the prosecution, for the purposes of establishment of an offence against the present revisionists, could be taken into consideration as a primary evidence for prosecuting the revisionist and sentencing him for the offences complained off. Thirdly, it has also been argued by the learned counsel for the revisionists that the Courts below have failed to take into consideration that out of the total witnesses, which were adduced by the prosecution in support of their contention, six witnesses have turned hostile and what would be its effect on the trial. The learned counsel for the revisionists has fourthly contended that despite the opportunities being provided to the prosecution, when they have failed to produce any material witnesses and the Enquiry Officer, Mr. Umesh Chandra, the Sub Divisional Magistrate too hence an adverse inference has to be drawn as against the prosecution in view of the provisions contained under Section 114 (g) of the Indian Evidence Act and in support thereto, the learned counsel for the revisionists has made a reference to a judgement as reported in 2011 (4) SCC 240, S. Siddiqui (Dead) by L.Rs. v. A. Ramalingam.