Manish Pitale JUDGMENT
Manish Pitale, J.
1. By this revision application, the applicant (original accused) has challenged judgments and orders of two Courts below, whereby he stood convicted and sentenced for offences punishable under sections 419, 420, 465 and 468 of the Indian Penal Code. The sentences for the said offences range between 3 months and 3 years which were directed to run concurrently.
2. The complainant caused an FIR to be registered against the applicant by submitting a written report dated 22/12/2001, claiming that the applicant had taken a sum of Rs. 65,000/-from him on a false promise of arranging for his appointment in service in the Police Department. It is claimed that the applicant posed himself to be working in the Traffic Department of the Police and on that basis cheated the complainant and committed the said offence. It was claimed that the said actions were undertaken by the applicant about 5 to 6 months prior to registration of the FIR and the delay was because, initially the applicant had promised to return the amount that had been taken from the complainant. During the course of investigation, it came to light that there were other persons, who had been similarly duped by the applicant. On the basis of the material that came on record, the Court of Judicial Magistrate First Class, Gondia, framed charge against the applicant and the trial commenced.
3. The prosecution examined 8 witnesses in support of its case, of whom PW-1, PW-2 and PW-3 were panch witnesses, for recovery of identity cards, belt, motorcycle, etc., who turned hostile during the recording of evidence. PW-4 Sanjay was the complainant, who gave evidence in support of the allegations made by him in the report leading to registration of FIR. PW-5 Mahesh also claimed to be one of the victims of the applicant and stated that the applicant had taken Rs. 46,000/-from him on the promise of arranging for appointment in the Police Department and when the applicant could not return the amount, he allegedly transferred the motorcycle in question in the name of the said witnesses. PW-6 Nitin also made similar allegations against the applicant and claimed to have been duped to the extent of Rs. 46,000/-. PW-7 Vijay was the brother of the complainant and he vouched for the fact that the applicant had cheated his brother i.e. the complainant to the extent of Rs. 65,000/-. PW-8 Bhaiyalal Thakare was the Investigating Officer, who deposed in respect of the seizure of Police uniform, photographs, rubber stamps, identity card, etc. during the course of investigation. Upon completion of recording of evidence, the statement of the applicant under section 313 of the Criminal Procedure Code was recorded.
4. By judgment and order dated 13/07/2011, the Court of Magistrate found the applicant guilty under sections 171, 419, 420, 465 and 468 of the Indian Penal Code sentencing him to imprisonment for periods ranging between 3 months and 3 years. Aggrieved by the same, the applicant filed appeal before the Sessions Court. By the judgment and order dated 23/07/2012, the Sessions Court partly allowed the appeal of the applicant, holding that the offence under section 171 of the Indian Penal Code was not made out, but confirmed and maintained the remaining part of the conviction and sentence imposed by the Court of Magistrate. The applicant filed the present revision application and by order dated 07/09/2012, the sentence was suspended and the applicant was directed to be released on bail.
5. Mr. R.B. Gaikwad, learned counsel appearing for the applicant, submitted that the prosecution witnesses in the present case had not tendered evidence sufficient to prove the guilt of the applicant beyond reasonable doubt. It was submitted that 3 panch witnesses had turned completely hostile and that the Courts below erred in believing the recoveries made in the present case. It was submitted that once the recoveries could be shown to be not believable, the very basis of the conviction of the applicant became unsustainable. It was further submitted that there were material contradictions in the statements given by the prosecution witnesses as regards the manner in which they were duped by the applicant and the amounts of money that they had paid to him for the promise regarding appointment in Police Department given by the applicant. It was submitted that statements regarding amounts of money given in the written report leading to registration of FIR and the statements made in the oral evidence by the prosecution witnesses were at variance with each other, thereby showing the conviction of the applicant on the basis of such evidence was not proper. It was submitted that when the applicant had been acquitted by the Sessions Court for offence punishable under section 171 of the Indian Penal Code, the story about the applicant having posed himself to be a policeman in the Traffic Department, was rendered unsustainable, which the Courts below failed to appreciate while convicting and sentencing the applicant. The learned counsel for the applicant relied upon judgment of the Hon'ble Supreme Court in the case of Sundar v. State, reported in MANU/SC/0605/2002 : AIR 2002 SC 2764 and judgments of this Court in the case of Shyam Nalalla v. State of Maharashtra, reported in MANU/MH/1013/2009 : 2009 ALL Mr. (Cri.) 2969 and Satish Hiranna Pujari v. State of Maharashtra, reported in MANU/MH/2064/2012 : 2013 ALL Mr. (Cri.) 1288.
6. On the other hand, Mr. J.Y. Ghurde, learned Additional Public Prosecutor submitted that the conviction and sentence imposed on the applicant by the Courts below was justified in view of the evidence and material placed on record by the prosecution. It was further submitted that the recovery of the incriminating material in the present case was not liable to be disbelieved only because 3 panch witnesses had turned hostile, because the Investigating Officer (PW-8), who had actually recovered the incriminating material had staunchly supported such recovery and that as per the settled position of law such evidence of the Investigating Officer could be relied upon by the Court for sustaining the recovery of incriminating material. It was further submitted that minor contradictions in depositions of the prosecution witnesses could not enure to the benefit of the applicant and further that in the limited scope in revisional jurisdiction, the applicant had failed to make out a case for interference by this Court in the conviction and sentence imposed upon him. The learned APP placed reliance upon the judgments of the Hon'ble Supreme Court in the case of State v. Sunil, reported in MANU/SC/0735/2000 : (2001) 1 SCC 652, Mohd. Aslam v. State of Maharashtra, reported in MANU/SC/2255/2000 : (2001) 9 SCC 362 and Rameshbhai and others v. State of Gujarat, reported in MANU/SC/0871/2010 : (2011) 11 SCC 111.
7. Heard the learned counsel for the rival parties and perused the material on record. The two Courts below have concurrently held the applicant guilty for offences punishable under sections 419, 420, 465 and 468 of the Indian Penal Code. While the Court of Magistrate additionally convicted the applicant under section 171 of the Indian Penal Code, the Sessions Court partly allowed the appeal to the extent that the offence under section 171 of the Indian Penal Code was not made out against the applicant.
8. A perusal of the written report, leading to registration of FIR in the present case, lodged at the behest of the complainant (PW-4) Sanjay shows that a grievance was made by the complainant against the applicant that he had posed himself to be working in the Police Department and on that basis he had made a false promise to the complainant to arrange for his appointment in the Police Department, for which he demanded amounts from the complainant. The complainant PW-4 Sanjay has stated in his examination-in-chief about the manner in which he was duped, which is consistent with the written report submitted by him which led to registration of FIR. In the cross-examination also the evidence of the said witness has not been shaken in any manner. There is certain variance in the evidence of the said witness regarding the manner in which the amount was paid to the applicant, as compared to the statements made in the written report leading to registration of FIR, but the total amount paid to the applicant by the complainant is consistently stated to be Rs. 65,000/-. Similarly, PW-5 Mahesh and PW-6 Nitin have both consistently stated that the applicant had taken amounts of Rs. 46,000/-each from them on the aforesaid false promise. The evidence of these witnesses has also not suffered from any discrepancy in their cross-examination. The suggestions made to the said witnesses that the applicant was being falsely implicated because of a marriage proposal that he had refused, is also denied by them. The evidence of PW-7 Vijay, brother of the complainant PW-4 Sanjay also shows that he has supported the assertion of the complainant that an amount of Rs. 65,000/-was paid to the applicant on the said false promise. The learned counsel for the applicant placed much emphasis on the fact that while PW-7 Vijay stated that the complainant PW-4 Sanjay had paid the amount of Rs. 65,000/-in the presence of PW-7 Vijay, the complainant PW-4 Sanjay had not stated that the amounts were paid to the applicant in the presence of PW-7 Vijay. This, according to the learned counsel for the applicant, was a major contradiction which destroyed the prosecution case.
9. But, an overall appraisal of the evidence shows that despite minor variations in their versions, there is enough consistency to show that the conclusions rendered by the two Courts below cannot be said to be erroneous. Therefore, the emphasis placed on alleged contradictions in the evidence of the said prosecution witnesses, is found to be misplaced by this Court.
10. Another contention strongly raised on behalf of the applicant was that when the Sessions Court allowed the appeal partly and held that the applicant could not be said to be guilty of offence under section 171 of the Indian Penal Code, the entire prosecution case ought to have been disbelieved. But, a perusal of the aforesaid provision i.e. section 171 of the Indian Penal Code would show that it provides for punishment for wearing garb or carrying token used by public servant with fraudulent intent. Even if, the material on record fell short of demonstrating that the applicant had actually worn the uniform of traffic policeman to dupe the complainant and other prosecution witnesses, the fact that such uniform, rubber stamps, identity card with photograph showing the applicant as working in the Traffic Police, were recovered from the applicant, demonstrating that despite granting acquittal to the applicant under section 171 of the Indian Penal Code, the Sessions Court could not be said to have erred in maintaining his conviction under the other offences.
11. This brings us to the next contention strongly canvassed on behalf of the applicant to the fact that when all the 3 panch witnesses had turned hostile, the Courts below erred in believing recovery of the said incriminating material. The reliance placed on judgments by the learned counsel for the applicant in the case of Sundar v. State (supra), Shyam Nalalla v. State of Maharashtra (supra) and Satish Hiranna Pujari v. State of Maharashtra (supra) is misplaced, because in the said cases, the Courts found on facts that the panch witnesses turning hostile, when read with evidence of other prosecution witnesses, demonstrated that the prosecution case was not liable to be believed. But, in the present case, although all the 3 panch witnesses turned hostile, the Investigating Officer PW-8 was specifically questioned in the examination-in-chief about the recovery of the aforesaid incriminating material, about which he gave specific statements in support of such recovery. Therefore, the evidence of the Investigating Officer, who actually carried out such recoveries, was brought on record by the prosecution. In this context, the learned APP was justified in relying upon judgments of the Hon'ble Supreme Court in the case of State v. Sunil (supra), Mohd. Aslam v. State of Maharashtra (supra) and Rameshbhai and others v. State of Gujarat (supra), wherein it has been consistently held by the Hon'ble Supreme Court that the evidence on recoveries given by the Investigating Officer could not be rejected merely because panch witness had turned hostile, as long as the evidence of the Investigating Officer was convincing. The Hon'ble Supreme Court has held that it has to be presumed that public servants act honestly and consciously and their evidence is not liable to be discarded merely on the ground that being public servants, they are interested in success of their cases. Applying the aforesaid yardstick to the evidence of the Investigating Officer in the present case, this Court finds that such evidence of the Investigating Officer pertaining to recovery of incriminating material is consistent and believable. Hence, it is not liable to be discarded, merely because the prosecution witnesses have turned hostile. In fact, the Hon'ble Supreme Court in one of the above mentioned judgments has taken judicial notice of the fact that it is very often that panch witnesses do turn hostile and then it is held that the entire recovery cannot be held to be vitiated merely on that ground. Therefore, the said contention raised on behalf of the applicant is found to be unsustainable.
12. The learned APP is justified in contending that there is limited scope in the revisional jurisdiction, exercised by this Court to interfere with concurrent conviction and sentence imposed by the two Courts below. The applicant has failed to demonstrate any glaring error in the findings rendered by the two Courts below for this Court to exercise revisional jurisdiction in his favour. Therefore, the application is found to be without any merits and it is dismissed. Accordingly, the conviction and sentence imposed by the Sessions Court under sections 419, 420, 465 and 468 of the Indian Penal Code is maintained. Consequently, the applicant shall surrender forthwith in order to serve out the remaining part of the sentence.
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