RAM KISHORE DWIVEDI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal has been filed under section 374(2) of CrPC on 23.11.2009 by appellant Ram Kishore Dwivedi against the judgment dated 1.10.2009 passed by the Third Additional Sessions Judge, Chhatarpur in Sessions Trial No. 168/2008. The trial court convicted the appellant for the offence under section 409 of IPC and sentenced him to undergo 3 years rigorous imprisonment with the fine of Rs. 500/- with default stipulations.

(2.) It is submitted by the counsel for appellant that the trial court grossly erred in convicting the appellant. The findings of the trial court are perverse and contrary to facts and law, therefore, liable to be set aside. There are so many omissions and contradictions in the evidence of prosecution witnesses. The registration fees was duly entered in the fees register. No any amount has been seized from the appellant. The Principal has admitted that appellant had complained about spreading casteism and he had received the letter of appellant on 7.1.2008 in which it was stated that when the appellant was coming to college on 3.1.2008 his bag has been looted. It is also submitted that the alleged entire amount has been deposited by the appellant. Therefore, the opinion of the trial court that the deposit of amount is afterthought, is not correct. The record also seized after 2 months. The sentence is based on conjuncture and surmises. The prosecution has failed to prove its case beyond reasonable doubt and the sentence awarded is also higher. The appellant is the first offender. There was no any criminal record. He deposited the entire amount, therefore, he should be given the benefit of Probation of Offenders Act and released under section 360 of CrPC.

(3.) During arguments, it is also submitted by the learned counsel for appellant that no amount was entrusted to the appellant. It was not proved that the appellant received the amount. It is also transpired from the evidence that other persons were also engaged in the work of collecting money and issuing receipts. He draws attention towards Para nos. 3, 4, 5 and 8 of P.W.3. The statements of P.W.3 and P.W.4 are inconsistent. No written document has been submitted for showing the responsibility of appellant. Assigning of the duty was not proved. D.K. Dhuriya did not give the account. The fact of loot is not the part of prosecution story. Any witness has not been told that the amount was given to the accused.