Sharif Masih vs State

M.L. Koul, J.—This appeal has arisen out of the judgment and order of the learned Additional Sessions Judge, Chandigarh Mr. Baba Ram Gupta, dated 16-3-1992 wherein without discussing the evidence against the appellant or making any observations with regard to his conviction and sentence recorded by the trial Magistrate, he has observed as under:-

Coming to accused Sharif Masih he has been convicted u/s 120-B and 477-A, I.P.C. He is not a previous convict. He has lost his job and has been facing the ordeal of the trial for the last more than 11 years. In his case, therefore, I would accept the prayer of the learned counsel for the appellant Sharif Masih for releasing him on probation. Accordingly, while upholding his conviction in respect of the substantive sentences as ordered by the learned trial Court, appellant Sharif Masih is directed to be released on probation for a period of one year on his furnishing the personal bond within 15 days from today to the satisfaction of the learned trial Court, in the sum of Rs. 2000/- with one surety in like amount, to keep peace, to be of good behaviour and to receive sentence as and when called by the Court during the said period of one year. In addition, he shall pay Rs. 600/- as costs of proceedings and the fine already deposited by him shall be adjusted towards those costs of proceedings.

In nut shell it was argued by the counsel for the appellant that the appellate Court has not at all discussed the facts and the merits of the case as to what was the evidence available against the appellant which was believed by the trial Court on the basis of which he was convicted and sentenced under Sections 120-B and 477-A I.P.C. According to him, the appellate Court has acquitted the main accused Amrik Singh holding that "there was no proof available against him for criminal conspiracy with his co-accused. No evidence of any such criminal conspiracy having been hatched has been brought on record. It is correct that there cannot be any direct evidence of criminal conspiracy but it is the duty of the prosecution to bring on record such circumstances from which criminal conspiracy can be hatched.... After going through the entire evidence minutely, I do not find any element of conspiracy on the part of Amrik Singh and therefore his conviction u/s 120-B, I.P.C. is unsustainable in law. It is set aside. Amrik Singh acquitted of the offence he was convicted and sentenced.

In the same manner without discussing the evidence against Harpal Singh who has deposited the whole misappropriate money in the Registry the appellate Court observed that as he has deposited more amount than found embezzled and has even sold his house, therefore, his substantive sentence under different counts was reduced to already undergone.

Once the trial Court has held that there was no conspiracy hatched by one of the accused with the other accused and the official accused have not connived with each other for commission of conspiracy, I fail to understand as to how the present appellant has been convicted and sentenced for the offenes under Sections 120-B and XII-A of the, I.P.C. No. evidence has been discussed either by the appellate Court or by the trial Court to show that the appellant has in any manner conspired with the other accused and has made false entries in the register. I feel that the trial Court has tried to convict all the accused without discussing any material against them. In case of the appellant the trial Court has observed that as the entries in the registers were there with regard to receiving the service stamps by the appellant, therefore he was conspirator in committing the embezzlement. There is no proof available on the file as discussed by the trial Court and the appellate Court that the appellant was entrusted with the receipt of the stamps by the Registrar. The Registrar has not been examined as a witness. He has lodged the first information report with the police. God knows what prevalied upon the trial Court in not summoning him as a witness. His statement could have clinched the whole issue. As it has not been done, a great injustice has been caused to the appellant.

I have gone through both the judgments passed by the trial Court and the appellate Court. No evidence has been brought to the fore, discussed or sifted by the Courts below to show that in any manner the appellant was connected with the commission of the crime and he conspired with his co-accused to commit forgery of Rs. 52,000 belonging to the High Court. The money has since been deposited by the co-accused in the Court and the appellant has also suffered for more than 10 years for having faced trial and appeals.

No evidence has been discussed either by the trial Court or by the appellate Court to show that the appellant has in any way as a government servant destroyed, altered, mutilated or falsified any books of papers to deceive the High Court and misappropriated the money. It was the duty of both the Courts below to discuss the evidence and give the finding on the matter as to how the appellant was connected with the commission of the offence. Therefore, the conviction and sentence passed by the trial Court upon the appellant is set aside and he is acquitted of the charge farmed against him. This appeal is allowed accordingly.