1 1 CRIMINAL APPEAL No.479 (SJ) OF 2004 ------ Against the judgment of conviction dated 13.7.2004 and order of sentence dated 14.7.2004 passed by Sri Uday Shankar, Ist Additional Sessions Judge- cum-Special Judge,Madhepura in G.R.Case No.1010 of 1996. ------ PRABHASH KUMAR YADAV @ PRABHU YADAV SON OF LATE MADAN YADAV,RESIDENT OF VILLAGE BHAGIPUR,P.S.ALAM NAGAR,DISTT.MADHEPURA ------ APPELLANT Versus STATE OF BIHAR ------RESPONDENT ------ For the appellant : Mr.Kanhaiya Pd.Singh,Sr.Advocate For the State : Mr.Satya Narayan Prasad,Addl.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ------ S.K.Sharma,J. The sole appellant has preferred this appeal against the judgment of conviction dated 13.07.2004 passed by Ist Additional Sessions Judge-cum-Special Judge, Madhepura in G.R.No.1010 of 1996 whereby the appellant was held guilty for committing offences of Section 409 of the Indian Penal Code and under Sections 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter to be referred to as “the Act”) and he was sentenced on 14.7.2004 to undergo rigorous imprisonment for three years with a fine of Rs.5,000/- for offence punishable under Section 409 of the Indian Penal Code and in default of payment of fine, he was directed to serve rigorous imprisonment 2 2 for six months more. He was further sentenced to undergo rigorous imprisonment for two years for offence punishable under Section 3(i)(x) of the Act. However, the sentences were ordered to run concurrently. Another accused Surendra Ram was acquitted by the trial court. 2. Informant Jaimala Devi went to police station and gave her fardbeyan on 16.9.1996 that her husband Yogi Rishideo alias Yogendra Rishideo has sent Rs.1,000/- on 11.5.1996 through money order in her name but it was not delivered to her. She made repeated queries along with her villagers Nemani Rishideo and Chano Rishideo but the appellant who was post master of the Post office used to abuse her in the name of her caste. Thereafter, the informant complained to various persons including Mukhiya and other respectable persons. Lastly on 3.9.1996 she met to post master along with Nemani Rishideo as his nephew Narthuwas Rishideo had also sent Rs.600/- to her mother Munga Devi from Noida on 14.2.1996 and that was also not delivered to her. Nemani Rishideo on that date was also abused and they were forced to leave the post 3 3 office. Naresh Rishideo had also sent Rs.2,000/- in the name of Chano Rishideo about 14 months ago by insured post but that was also kept by the appellant. Sunil Rishideo had sent Rs.1,000/- to his brother Mahendra Rishideo by insured cover but it was also not handed over to him. According to informant, the appellant was realizing interest at the rate of 10% from poor persons and he was utilizing the money which used to receive by way of money-orders for delivering to other persons. The case was registered under Sections 409 and 420 of the Indian Penal Code and 3(i)(x)(xi) and 3(2)(vi) of the Act. The police investigated the matter and submitted chargesheet under the aforesaid Sections. Cognizance was taken and after completion of other paraphernalias, charges were framed under Sections 3(i)(x) and 3(i)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under Sections 420 and 409 of the Indian Penal Code. Charges were read over to the accused persons in Hindi. They pleaded innocence. So the trial proceeded. 4 4 3. The defence of the appellant was of false implication at the behest of local Mukhiya Mahavir Yadav who was relative of Nemani Rishideo and the sole enemy of appellant with whom he was having litigation with respect to the land. 4. The prosecution in order to substantiate its case has examined P.W.1 Binod Rishideo, P.W.2 informant Jai Mala Devi, P.W.3 Chano Rishideo, P.W.4 Mahendra Rishideo who has been declared tendered. Mahavir Yadav, Ramesh Rishideo, Jasiya Devi alias Sushila Devi and Md.Rahman has been examined as court witness nos. 1 to 4 respectively. 5. Defence has also examined Amrendra Kumar Yadav as D.W.1. 6. Submission of learned counsel for the appellant is that the informant has been examined as P.W.2 and she has denied the total allegations and she has stated that there are two persons in the name of her husband and due to mistake, money order was delivered to the wife of another Yogendra Rishideo whose name was also Jai Mala Devi. When she complained, then money was delivered to her. The informant 5 5 has received the money and the examination of the informant reveals that due to some confusion, money was delivered to another person. She has denied that the appellant has ever misbehaved her. 7. P.W.3 has also not supported the version of the fardbeyan and has stated that his son has not sent any money but he has gone to the Post office with the hope that money might have been sent. He has also denied that he or the informant were not ill-treated in their castes name by the appellant. P.W.4 has also not supported any part of the allegation and he has denied the prosecution versions. 8. The court witnesses have not fully supported the prosecution version though Court Witness No.1 tried to support the version of the informant but he has been contradicted by other court witnesses. The conviction is not under Section 420 of the Indian Penal Code. The charge under Section 409 of the Indian Penal Code is with regard to criminal breach of trust against the informant and others but no witness has supported any part of the allegation that the appellant has committed 6 6 criminal breach of trust. 9. Without going into the details of the version of the prosecution and defence, it is apparent that no part of the prosecution allegation has been supported by the witnesses, rather there are contradictions on most of the points. The informant who is alleged victim of the offences has not supported allegation at all. She has given clean chit to the appellant by stating that he has paid the money to some another person of the same name and when it was brought to his notice, the informant was paid her money. She has also denied that the appellant has ill- treated her in the name of her caste. The allegations of the informant have not been supported by the other prosecution witnesses who had gone to the post office along with the informant P.W.2 has supported the appellant that he has never ill-treated her. 10. Taking into consideration the evidences of the witnesses and also the facts and circumstances of the case, I am of the view that the prosecution has not been able to prove the charges beyond the shadow of all 7 7 reasonable doubts. Accordingly, conviction and sentence of the appellant are fit to be set aside. In the result, this appeal is allowed and the conviction and sentence of the appellant are set aside. He is discharged from the liability of his bail bonds. Patna High Court,Patna The 25th January, 2010 Tahir/-(NAFR) ( Shyam Kishore Sharma, J. )