RADHEY SHYAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN the month of September, 1975 Radhey Shyam Sharma petitioner was posted as Assistant Area Organiser in the area office at Myajlar of the Khadi and Village Industries Commission (for short, here in after 'the Commission'). On September 14. 1975, the petitioner made a report to the Incharge Police Out -post Myajlar that during the night intervening 13th and 14th September, 1975 there had been a theft of an iron safe and a gunny bag from the centre of the Commission at Myajlar. There was cash amount of Rs. 3,600/ -, inside the iron safe. It was requested by the petitioner that the case may be investigated. The Police Out -post Myajlar was within the territorial jurisdiction of Police Station Sam in District Jaisalmer. While Guman Singh PW 9 was Incharge of the Police Out -post, Myajlar, Harkishan PW 7 was The Officer -Incharge of the Police Station, Sam. On that date, no Station House Officer was posted at Police Station, Sam Hari Kishan PW 7, who was only a Head Constable, was the Officer -in -charge. On September 16, 1975 Hari Kishan PW 7 had come to Jaisalmer in connection with some official duty At Jaisalmer, Raghunath Singh S.H.O., Police Station, Jaisalmer (PW 12) met Hari Kishan and told the latter that there had been a theft at Myajalar and the Superintendent of Police, Jaisalmer had directed him to proceed to Jaisalmer. Accordingly, both Raghunath Singh PW 12 and Harikishan came to Myajalar where Gumansingh, Officer -in -charge of the Police Out -post handed over the First Information Report Ex. P 7 which had been made as aforesaid by the petitioner to Hari Kishan on Sept 16, 1975 at 7.00 p m. Report Ex.P 7 was sent through Constable Ranidan Singh to the Police Station, Sam for registering a case under Section 380, I.P.C. and the case was registered on September 17, 1975 at 1.30 p m. at the Police Station. Both Raghunath Singh and Hari Kishan inspected the site of the office of the centre and prepared the site plan Ex. P 8 with Explanatory memorandum of the site Ex. P 2 on September 16, 1975. The petitioner Radhey Shyam Sharma was arrested on September 17, 1975 and a key No. 627521 of the stolen iron -safe was recovered from the left hand side pocket of the shirt of Radhey Shyam Sharma which was seized by the Police. Prosecution case is that the petitioner Radhey Shyam Sharma, while in custody of police, gave an information Ex P 9 on September 17, 1975 that the stolen iron safe was dropped in a well towards north of village Myajlar and the amount, which was inside the chest of the iron -safe, has been concealed in his suit case. In pursuance of this information, Raghunath and Hari Kishan recovered currency notes amounting to Rs. 1,700/ - which were produced by the petitioner from out of the suit case in the residential portion of his house and the same were seized by the police under the seizure memo Ex. P 4 in the presence of Ladu Ram and Dheer Singh Motbirs Both the Police Officers went to the well pointed out by the petitioner. The well was about 140 feet in depth in which there was water about 15 feet depthwise. Bhanwar Singh s/o Bulidan was directed to go inside the well who found that a Godrej small sized iron -safe wrapped in a gunny bag and weighing about 20 kilograms was lying inside the well. The iron -safe with gunny -bag was taken out from the well and the same was identified by Dedasa s/o Kesrimal, an employee of the Commission, as belonging to the Commission. The iron -safe and the gunny bag was seized by the police under the seizure memo Ex. P 5 in the presence of Ladhu Ram and Dheer Singh Motbirs. A further information Ex P 10 is alleged to have been given by the petitioner on September 20, 1975 to Hari Kishan PW 7 that the remaining amount of Rs. 1,870.84p. were concealed in the 'niwar' of the cot of his house in an envelope. This amount was recovered from the place pointed out by the petitioner on September 21, 1975 in the presence of Najumal and Laxmi Chand Motbirs by Hari Kishan PW 7 and seized under the seizure memo Ex. P 6. After making the remaining necessary investigation, the Officer -in -charge of the Police Station, Sam presented a charge sheet against the petitioner on January 8, 1976 in the court of the Chief Judicial Magistrate, Jaisalmer. The Chief Judicial Magistrate framed charge against the petitioner for the offence under Section 381 I.P.C. and. in the alternative, under Section 408, FPC. After trial, the Chief Judicial Magistrate held the petitioner guilty for both these offences and on October 22, 1977 sentenced the petitioner separately for rigorous imprisonment for a term of one year each of the said two offences and to a fine of Rs. 500/ - for the each offence. Both the sentences were to run concurrently. In default of the payment of fine amount, the petitioner was sentenced further to undergo simple imprisonment for three months for each of the two offences. The amount of Rs. 3570.84p. and other articles recovered by the police were ordered to be given to the Assistant Director of the Commission after the expiry of the period of appeal. On appeal by the petitioner, the Additional Sessions Judge No. 1, Jodhpur held that on the facts of the case the petitioner was guilty of the offence under Section 408, I.P.C. and not for the offence under Section 381, I.P.C. He, therefore, by his judgment dated October 29, 1979 acquitted the petitioner of the charge under Section 381, JPC but maintained his conviction and sentence for the offence under Section 408, I.P.C. That has led the petitioner to come up in revision before this Court.

(2.) WHEN the case was called up for hearing on November 27, 1986, the petitioner of his counsel did not appear. I therefore, heard the learned Public Prosecutor and perused the record.

(3.) THE limited question therefore was whether it was the petitioner who had removed the iron -safe and the cash amount of about Rs. 3600/ -which was in it or that it was Dedaram who was working as Chowkidar on this centre of the Commission. In his examination under Section 313 Cr. P.C. the petitioner stated that Dedaram PW 5 was working as Chowkidar at the centre of the Commission at Mylajalar and he was resident of the same village Dedaram was also running his own shop separately and, therefore, he did not discharge his duty regularly at the centre. The entire incident took place as a result of conspiracy of Dedaram. The petitioner admitted that he had lodged the report Ex.P 7 at Police Outpost The petitioner also adduced defence evidence of Prem Raj DW 1 Ramdayal DW 2, Niranjanlal DW 3 and also examined himself on oath as DW 4. The sum and substance of the defence evidence is that Dedaram was working as peon on the centre of the Commission at village Mylajalar where the petitioner was Assistant Area Organiser. Dedaram was also running a separate shop of his own. The relations between the petitioner Dedaram were not happy because the latter was not regular in performance of his duties at the centre. These strained relations between the petitioner and Dedaram were continuing since before five or six months of this incident. It was stated that Dedaram used to threaten the petitioner that he would implicate the latter in a false case. It is also deposed that the petitioner had not dropped the iron -safe in the well! In my view all this defence theory is concocted and is an after thought. Had Dedaram wanted to implicate the petitioner in a false case, he would have lodged a First Information Report in the Police of the theft and not the petitioner himself. It is also important to note that it was not suggested on behalf of petitioner to Gumansingh PW 9. Harikishan PW 7 and Raghunath Singh PW 12 even just in the way of formal suggestion that Dedaram had in any way instigated the police to implicate the petitioner falsely The prosecution had examined Dedaram as PW 5 and even to him the petitioner did not make any suggestion in cross -examination that there existed any strained relationship between the petitioner and Dedaram and Dedaram exercised influence over the police to implicate him falsely. The whole theory regarding Dedaram appears to be an afterthought because Dedaram had appeared as a prosecution witness to depose that the petitioner has to maintain the office record and cash book of toe centre and also used to live in the office room of the centre. It as only for the first time in his statement under Section 313 Cr. P.C. that the petitioner thought of introducing a case that the entire thing was done through conspiracy with Dedaram and defence evidence was adduced that Dedaram had previously threatened to the petitioner that he would implicate the latter. Had this been a fact, at least this much suggestion would have been made by the petitioner to Dedaram in his cross examination. The petitioner neither made suggestion nor there is anything on the record to show that he ever made a complaint to the Director of the Commission or the Incharge, Regional Border Development Office of the Commission that Dedaram was not performing his duties regularly or was misbehaving in any manner Had there been so much mistrust between the petitioner and Dedaram, he would have at least mentioned in the FIR Ex.P 7 that he suspected that it was the game of Dedaram.