KRISHNALAL NASKAR Vs. STATE

JUDGEMENT

(1.) THESE appeals have been filed against an order of conviction dated 31 -7 -70 passed by Shri S. C, Majumdar, Judge Calcutta Third Additional Special Court, Calcutta.

(2.) CRIMINAL Appeal No. 335 of 1970 has been filed by Krishnalal Naskar, Banobir Burman, Mata Prosad Ghose and Brahmananda Sarkar. They were convicted Under Section 409/109 IPC and sentenced to Rule I. for one year. Criminal Appeal No, 336 of 1970 has been filed by Suresh Ch. Saha who has been found guilty Under Section 409 and 409/120B IPC and sentenced to R. I. for one year under each count. It was ordered that the sentences would run concurrently Cr. Appeal No. 337 of 1970 has been filed by Alik Narayan Jha alias Alik Narayan Ojha against an order of conviction under Section 409/120B and sentenced to R. I. for one year. The other accused persons, namely, Bma Devi, Lalmohon Pal Aurobinda Mukherji, Manotosh Mitra. Oremlal Parasar, Sumanbhai Patel and Reba Chakraborty were found not guilty Under Section 409/120B IPC and were acquitted. These three appeals were taken up together. All the accused persons were charged under Section 409/120B IPC for entering into a conspiracy in respect of criminal breach of trust of consignment of petrol. Accused Suresh Saha was further charged under S 409 IPC in respect of criminal breach of trust of consignment of petrol dated 20 -7 -62, 26 -7 -62, 31 -7 -62, 2 -R -62 and 21 -8 -62.

(3.) MR . Dutta, learned Advocate, appearing on behalf of the appellant in Criminal Appeal No. 336 of 1970 points out several infirmities in the prosecution case. In the first place, Mr. Dutta submits that the charge Under Sections 120B/ 409 of the Indian Penal Code is not maintainable as the charge indicates rolled up conspiracy. It has been mentioned that the persons entered into a conspiracy at Calcutta and other places. 17 accused persons have been named in the charge and it has been stated that the accused persons, along with other unknown, between December, 1961 and August, 1962 at Calcutta and other places agreed to do or caused to be done an illegal act .. Mr. Dutta submits that what are the other places have not been mentioned and that being so, the charge suffers from vagueness and such a charge has caused a great prejudice to the accused persons. Again, though it has been said that the accused persons along with others, entered into conspiracy the name of P.W. 2 Debabrata Ghosh who turned approver and who sought to divulge the story of conspiracy in Court was not mentioned in the charge as a person who also entered into the conspiracy. In this connection, it is further submitted by Mr. Dutta that against 7 persons there were allegations of overt act in pursuance of the conspiracy said to have been entered into by the accused persons. But those 7 persons have been acquitted and that being so, it must be said that the prosecution has not succeeded in proving the charge of conspiracy as against Suresh Ch. Saha and other appellants. We find much substance in the argument advanced by Mr. Dutta with regard to the defect in charge and are of opinion that such a charge has caused great prejudice to the appellants.