HARSUKH HEMCHAND PAREKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner was original accused No. 1 in Criminal Case No. 2279 of 1980 before the Chief Judicial Magistrate BhujKutch. The prosecution case against him was that he was posted at Sukhpar Post office temporarily from 27-9-1979 in place of one Shri R. L. Pathak who was on leave. The allegation was that he committed criminal breach of trust in respect of a sum Rs. 11 0 and also falsified the accounts and thereby committed offences punishable under secs. 409 and 477 A of the Indian Penal Code. He was sentenced to suffer R.I. for a period of five years and to pay a fine of Rs. 7 0 in default to suffer simple imprisonment for a period of one year. He preferred Criminal Appeal being Criminal Appeal No. 26 of 1982 which was heard by the Additional Sessions Judge BhujKutch. He maintained the conviction of the petitioner for the offence punishable under secs. 409 and 477 A of the Indian Penal Code. However his sentence was reduced and he was ordered to undergo. R. I. for one year and to pay a fine of Rs. 5 0 in default to suffer imprisonment for a period of six months for the offence punishable under sec. 409 of the Indian Penal Code and no separate sentence was passed for an offence punishable under sec. 477 A of the Indian Penal Code.

(2.) The petitioner preferred this petition challenging the above conviction and sentence.

(3.) I have heard the learned advocate Shri Panchal for the petitioner and the learned P.P. Shri M.A. Trivedi for the State. Normally in a revision if there are concurrent findings of fact of two courts this Court would not interfere. But on examination of this case it is found that the evidence adduced at the trial stage is not looked at from the correct legal perspective which is required to be done in a criminal trial. Hear it may be stated that during the trial one more person was prosecuted along with the accused person and he was also serving in the same post office as a clerk. The learned Additional Sessions Judge fell into an error because there was a joint trial. The joint trial in itself is not bad in law. in a criminal trial there could be one two or many accused persons. But in this particular case the two accused persons who are being prosecuted were trying to throw blame on each other and it clearly appeared that it was a case of accused No. 1 that accused No. 2 was guilty while accused No 2s case was that accused No. 1 was guilty. The learned Judge thought that because of this contradic tory defences put in by the two accused persons he had to decide as to which of the defences was correct. That is what he stated in paragraph 20 of his judgment. This was to begin with an absolute incorrect proposition in criminal trial. The real question which he should have posed should have been as to whether the prosecution established beyond doubt the case against accused no 4. At the time of considering the case of accused no. 1 what was required to be considered was to consider the evidence led against accused no. 1 and his statement or his explanation and the question that was required to be posed should have been whether the evidence led by the prosecution is sufficient for convicting accused no. I and whether the defence put forward by accused no. 1 is probable. If the defence put forward by accused no. 1 was probable he was entitled to the benefit of reasonable doubt. At the time of considering the question of accused No. 2 also he should have proceeded in the same fashion and that at that time he should not have considered the Statement of accused no. 1. In a criminal trial therefore ultimately the learned Judge has to find out as to what is the evidence against each of the accused persons separately and whether the defence put forward by that particular accused person is probable. At that time the defences put forward by the other accused persons become irrelevant. The only exception to this Rule is that the statement of a coaccused could be considered if the provisions of sec. 30 of the Indian Evidence Act are attracted. Sec. 30 reads as under :