# (In Jail) v. State

- **Citation:** (2006) 2 ILRA 895
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-17
- **Case number:** Criminal Jail Appeal No. 4263 of 2004
- **Bench:** M.C. Jain, K.K. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-40675
- **Pages:** 6

## Headnote

Indian Penal Code-offence under section
394,302,411 and 25 Arms Act-Trail Court
acquitted the co-accused but held guilty
to the appellant under Section 394 IPCPunishment
to
undergo
life
imprisonment
awarded-eye
witness
himself is informant-who supported the
prosecution version-can not be discarded
as
the
other
eye-witnesses
turned
hostile.
Held-conviction
can
not
be
assailed.

Held: Para 13

It is well settled that if an eye-witness
who himself was the informant of the
case supports the prosecution case as
given in the F.I.R., his evidence cannot
be discarded only due to the fact that all
other eye-witnesses named in the F.I.R.
have
turned
hostile.
Moreover,
the
statement of the hostile witness is not
always to be discarded in totally. The
statement of the hostile witnesses can
be
taken
for
corroboration
of
the
evidence given by the other witnesses.
In the present case, we find that the
statement
of
P.W.
4
Goving
finds
corroboration from the statement of the
hostile witnesses in great deal as to
time, place and manner of happening.
The
conviction
of
the
appellant,
therefore, cannot be assailed on the
ground
of
the
hostility
of
some
witnesses.

## Text

2 All] Raju Tyagi V. State
895
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.07.2006

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE K.K. MISRA, J.

Criminal Jail Appeal No. 4263 of 2004

Raju Tyagi

...Appellant (In Jail)
Versus
State

...Respondents

Counsel for the Appellant:
Sri Samit Gopal

Counsel for the Respondent:
Miss. N.A. Moonis
A.G.A.

Indian Penal Code-offence under section
394,302,411 and 25 Arms Act-Trail Court
acquitted the co-accused but held guilty
to the appellant under Section 394 IPCPunishment
to
undergo
life
imprisonment
awarded-eye
witness
himself is informant-who supported the
prosecution version-can not be discarded
as
the
other
eye-witnesses
turned
hostile.
Held-conviction
can
not
be
assailed.

Held: Para 13

It is well settled that if an eye-witness
who himself was the informant of the
case supports the prosecution case as
given in the F.I.R., his evidence cannot
be discarded only due to the fact that all
other eye-witnesses named in the F.I.R.
have
turned
hostile.
Moreover,
the
statement of the hostile witness is not
always to be discarded in totally. The
statement of the hostile witnesses can
be
taken
for
corroboration
of
the
evidence given by the other witnesses.
In the present case, we find that the
statement
of
P.W.
4
Goving
finds
corroboration from the statement of the
hostile witnesses in great deal as to
time, place and manner of happening.
The
conviction
of
the
appellant,
therefore, cannot be assailed on the
ground
of
the
hostility
of
some
witnesses.

(Delivered by Hon'ble K.K. Misra, J.)

1. This appeal arises out of the
judgment and order dated 17.3.2004
passed by Sri Vishram Singh, Addl.
District & Sessions Judge, Bulandshahr
convicting the appellant Raju Tyagi under
section 394 IPC and sentencing him to
undergo life imprisonment.

2. As per the F.I.R. lodged by
Subhash Chandra Verma on 18.8.2000 at
9.05 A.M. there was a shop of jewellery
comprised in his house in town Gulaothi.
On 18.8.2000 at about 8.30 A.M., his
nephew Sachin was cleaning the shop.
Three miscreants came at the shop armed
with country made pistols and started
looting the ornaments. When he resisted,
the miscreants assaulted him with the
butts of the pistols and also fired a shot.
On hearing the sound of the firing and
cries, Sachin's mother rushed to the shop.
The miscreants also gave her beating and
escaped
with
the
gold
and
silver
ornaments and Rs.3000/- in cash. On
hearing the cries, a mob chased them.
When the miscreants reached near the Bus
Stand, the miscreants opened fire and
shot-dead Manohar Lal. The mob killed a
miscreant and caught hold of another
(Raju Tyagi present appellant) and
handed him over to police. One miscreant
succeeded
in
escaping.
The
looted
material consisted of ornaments made of 2
Kgs. Silver and 5 gms. gold. Besides this,
Rs.3000/- case was also looted.

3. Another F.I.R. was lodged by
Govind stating that his brother Manohar
896 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Lal was going towards his hotel in
Gulaothi when he saw the miscreants
running. Manohar Lal struck a miscreant
with his cycle and the miscreant fell down
upon which the miscreant fired a shot at
his brother by country made pistol.
Manohar Lal fell down and died at the
spot. One of the miscreants was killed by
the public. The present appellant Raju
Tyagi was apprehended by public and
handed over to the police. The third
miscreant ran away. This second report
was lodged on 18.8.2000 at 9.15 A.M.

4. S.I.P.C. Bharti, P.W. 6 started
investigation of the case on the first F.I.R.
and the papers of second F.I.R. were also
handed over to him. He inspected the
place of robbery and prepared the site
plan. Thereafter, he reached at Dholana
Bus Stand and inspected that spot,
prepared site plan where he found the
corpse
of
Sanavvar
miscreant.
He
collected three live cartridges of 315 bore
from the side of the corpse. He collected
blood stained earth and plain earth. He
prepared the inquest reports of the dead
bodies
of
miscreant
Sanavvar
and
Manohar Lal deceased and sent the same
for
post
mortem
examination.
The
investigation of the case was then taken
over by S.O. V.P. Singh.

5.

After
completion
of
the
investigation charge-sheet against the
accused Raju Tyagi under sections
394,302 IPC and against the accused
Munavvar under sections 394, 302/411
IPC and u/s 25 Arms Act was submitted.

The accused in their statements
under sections 313 Cr.P.C. denied the
prosecution story and claimed trial.

6. The prosecution in order to prove
its case against the accused examined six
witnesses, namely, P.W. 1 Subhash
Chandra, the first informant, P.W. 2 Smt.
Poonam, P.W. 3 Sachin, P.W. 4 Govind,
P.W. 5 Deepak and P.W. 6 S.I.P.C.
Bharti.

7. P.W. 1 Subhash Chandra, the first
informant of the case was the owner of
goldsmith shop. He deposed in his
evidence that on the date of the incident,
his nephew Sachin Kumar (P.W. 3) was
cleaning the shop at about 8.30-45 A.M.
Three miscreants came at the shop armed
with country made pistols. He narrated
the story as given in the F.I.R. He further
deposed that he could not catch up with
the mob in chasing the miscreants. He
heard that the miscreants fired a shot at
Manohar Lal as a result of which he died.
He further deposed that when he reached
at the But Stand, he found a miscreant and
the deceased Manohar Lal dead. He came
to know there that one miscreant was
handed over to the police and another ran
away. Some jewellery and one country
made pistol were lying near the dead body
of the miscreant. He further deposed that
he did not see the incident and he could
not recognise the accused Raju Tyai and
Munavvar. He further deposed that he
came to know about the incident from his
sister-in-law Smt. Poonam (P.W. 2). The
witness was declared hostile.

8. P.W. 2 Smt. Poonam, who, as per
the F.I.R., had seen the incident did not
recognise the two accused and turned
hostile.

9. P.W. 3 Sachin in his deposition
narrated the story of the F.I.R. and further
stated that when the miscreants after loot
ran away towards the Hospital, he did not
2 All] Raju Tyagi V. State
897
chase them and remained at his shop. He
denied having seen that the miscreants
had killed someone. This witness also did
not recognise the two miscreants as
accused and he could also not recognise
the looted articles. He was also declared
hostile.

10. P.W. 4 Goving deposed in his
evidence that on 18.8.2000 at about 8.40
A.M., he was sitting at his brother
Rajendra's shop near the shop of the first
informant
Subhash
Chandra
Varma.
Three miscreants came at the shop of the
first informant and after looting, fired a
shot. A mob gathered there. Then the
accused
Raju
Tyagi,
Sanavvar
and
Munavvar flaunting their country made
pistol ran away. The mob chased them
and so chasing the mob reached at Bus
Stand. He was also one of the chasers. He
further deposed that his brother Manohar
Lal struck his cycle against accused
Sanavvar and he caught hold of him. The
accused Raju Tyagi fired a shot at his
brother which hit him in the chest and he
died at the spot. The mob killed the
miscreant
Sanavvar.
The
miscreant
Munavvar ran away from the spot. The
mob caught hold of the accused Raju
Tyagi and handed him over to the police.

11. The trial court acquitted
Munavvar of the charges punishable
under sections 394,302,411 IPC and
section 25 Arms Act but found accused
Raju Tyagi guilty under section 394 IPC
and sentenced him to undergo life
imprisonment. He was also acquitted of
the charge under section 302 IPC.

12. We have heard Sri Samit Gopal
for the appellant who was appointed as
amicus curiae by this Court's order dated
23.9.05 and learned A.G.A. for the State.

13. Firstly, learned counsel for the
appellant
argued
that
the
three
eyewitnesses in the case turned hostile
and did not support the prosecution case.
Therefore, the conviction of the present
appellant on the basis of the statement of
P.W. 4 Govind is not sustainable, more so
when accused Munavvar was acquitted of
all the charges. It is well settled that if an
eye-witness
who
himself
was
the
informant of the case supports the
prosecution case as given in the F.I.R., his
evidence cannot be discarded only due to
the fact that all other eye-witnesses named
in
the
F.I.R.
have
turned
hostile.
Moreover, the statement of the hostile
witness is not always to be discarded in
totally. The statement of the hostile
witnesses can be taken for corroboration
of the evidence given by the other
witnesses. In the present case, we find
that the statement of P.W. 4 Goving finds
corroboration from the statement of the
hostile witnesses in great deal as to time,
place and manner of happening. The
conviction of the appellant, therefore,
cannot be assailed on the ground of the
hostility of some witnesses.

14. The main plank of argument of
the learned counsel for the appellant is
that
the
co-accused
Munavvar
was
acquitted of all the charges on the same
set of evidence whereas the present
appellant has been convicted under
section 394 IPC on the same set of
evidence. This, according to him, is bad in
law and cannot be sustained.

15. On the other hand, learned
A.G.A. argued that there is clear cut
distinction between the case of the
acquitted accused Munavvar and the
present appellant and on the facts of the
case, the conviction of the present
898 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
appellant is perfectly legal being based on
sterling evidence against him.

16. It is important to not that the
other accused Munavvar was not arrested
at the spot. His name came to light by the
testimony of P.W. 4 Govind. He was not
put up for identification. There is no
evidence of any recovery of looted article
from his possession. It has come in the
evidence of P.W. 1 Subhas Chandra that
no property was recovered from the
accused Munavvar in his presence. It has
come on record that when the accused
Munavvar had produced the looted
property of his share to the police on the
patri of Bamba, P.W. 1 Subhash Chandra
reached there and identified the looted
property but later on in his evidence, he
deposed that no property was recovered
from the accused Munabbar in his
presence. There is no evidence on record
to this effect that any recovery of looted
property was made from the possession of
accused Munavvar. That recovery memo
has also not been proved. The other police
personnel have also not been examined by
the
prosecution
in
whose
presence
accused Munavvar allegedly produced the
looted articles.

17. The facts found by the trial court
in support of the conviction of the present
appellant are that the accused-appellant
Raju Tyagi was arrested at the spot by the
mob while running away with the looted
property. There is no evidence to infer
that Raju Tyagi was arrested by the mob
while he was waiting for the bus. On the
other hand, there is sufficient evidence
that he was among the miscreants, who
committed robbery and voluntarily caused
hurt and death of Manohar Lal. The
present appellant has admitted his arrest
by people in his statement under section
313 Cr.P.C. The factum of robbery at the
given time, date and place has been
established by the three eyewitnesses also
who turned hostile. It has also been
established that some of the looted articles
were recovered from the side of the dead
body of one of the miscreants and that
property was taken in custody by the
police after preparation of recovery
memo. This fact has been corroborated by
P.W. 6 S.I.P.C. Bharti.

18. P.W. 4 Govind is real brother of
the
deceased
Manohar
Lal.
He
specifically deposed that appellant Raju
Tyagi caused death of his brother
Manohar Lal when he struck his cycle
against Sanavvar. When these miscreants
were running towards Dholana Bus Stand
and were being chased by the people, he
fired a shot which hit his brother who died
on the spot. Sanavvar was killed by the
public and Raju Tyagi (present appellant)
was arrested by the public on spot and
some of the looted articles were also lying
besides the dead body of one miscreant.
In the written report lodged by P.W. 4
Govind Singh ate P.S. Gulaothi, it is
stated that at Dholana Bus Stand one
miscreant was struck down by his brother
Manohar Lal and then he caught hold of
the miscreant. Then the miscreant fired a
shot with his country made pistol at his
brother who died on the spot. The
miscreants also attempted to fire at the
gathering and in the meanwhile one of the
miscreants was killed by the public and
another miscreant was apprehended by
the people and handed over to the police.

19. It has come in the testimony of
P.W. 1 Subhash Chandra that some of the
looted ornaments were recovered that
were lying beside the dead body of one
miscreant. They were taken in possession
2 All] Raju Tyagi V. State
899
by the police and memo (Ex.Ka. 2) was
prepared. P.W. 6 P.C. Bharti has also
corroborated this fact. In our view, the
trial court rightly held that one of the
miscreants opened fire and voluntarily
caused deatrh of Manohar Lal for the
purpose of carrying away the looted
property. Therefore, in view of the
provision of section 394 IPC, even if it
was assumed that it was Sabavvar who
had opened shot, Raju Tyagi would also
be held guilty under Section 394 IPC as
he
was
also
jointly
concerned
in
committing robbery.

20. Thus, from the above, we find
that the followings facts have been proved
beyond doubt:

(a) that a robbery was committed
by the three miscreants at the shop of the
first informant Subhash Chandra.
(b) that while committing robbery
the miscreants fired shots from their
country made pistols;
(c) that on hearing the cries and
sound of firing a mob gathered there and
the miscreants ran away taking looted
articles with them;

(d) that on the way to Bus Stand,
when the deceased Manohar tried to catch
them, one of them fired a shot which hit
him and he died on the spot;

(e) that the mob still chased them
and killed one of the miscreants Sanavvar
and caught hold of another, namely, the
present appellant and handed him over to
the police;

(f) that the third miscreant escaped
and ran away;

(g) that the looted articles and
country made pistols were found lying
near the dead body of miscreant and the
deceased Manohar Lal; and

(h) that all the above facts were
seen by P.W. 4 Govind.

21. From the above, it is clearly
established that the prosecution well
succeeded in proving its case against the
appellant Raju Tyagi under section 394
IPC beyond any reasonable doubt. The
factum of death of Manohar Lal is
covered by the charge under section 394
IPC and it has been rightly held by the
trial court that the charge framed under
section 302 IPC was redundant.

22. In the last, learned counsel for
the appellant argued that the sentence of
appellant be reduced to the period
undergone. He further argued that the
appellant was not earlier involved in any
criminal case.

23. In the result, the appeal is partly
allowed. The order of conviction passed
by the court below against the accused
appellant Raju Tyagi is upheld but his
sentence of life imprisonment under
section 394 IPC is reduced to that of ten
years'
rigourous
imprisonment.
The
appellant
is
in
jail.
The
C.J.M.
Bulandshahr,
shall
ensure
that
he
undergoes the awarded sentence of ten
years' rigorous imprisonment.

24. Sri Samit Gopal amicus curiae
who
argued
this
appeal
shall
get
Rs.1000/- as his fee.

25. Let original record of the trial
court be returned along with a copy of this
judgment for compliance. Compliance be
reported by the concerned Chief Judicial
Magistrate to this Court within two
months.
Appeal Partly Allowed.
---------
900 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2006

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 5652 of 2006

Lakesh Mehta

...Petitioner
Versus
Sri S.K. Jha, Asstt. General Manager-I, State
Bank of Patiala and others ...Respondents

Counsel for the Petitioner:
Sri G.C. Saxena

Counsel for the Respondents:

Constitution
of
India,
Art.
226Departmental proceeding and Criminal
proceeding for the same charges-going
on-petitioner being cashier-found guilty
of shortage of Rs.2,11,09,500/- criminal
proceeding for offence under section
120-B, 409, 13 (2) 13 (1) (C)(d) of
prevention of corruption Act-as well as
the
disciplinary
proceeding
with
allegations
about
not
following
prescribed procedure for maintenance of
cash chest-simultaneously going on-both
charges in both proceeding are quite
distinct
and
different
in
naturedisciplinary
proceeding
can
not
be
stayed.

Held: Para 5

A perusal of the departmental charge
sheet,
which
is
annexed
with
the
petition, shows that the charge leveled
against the petitioner in the domestic
enquiry is that he failed to perform his
duties effectively resulting in shortage of
cash inasmuch as he did not follow the
prescribed procedure for maintaining the
cash chest. Other charge relates to nonfiling and noting down the details of the
currency notes held in various bins in
separate register for tallying with the
currency
chest
register.
As
already
observed above, charge before Criminal
Court is dishonestly misappropriating the
money of the bank and using it to his
own benefit by making investments and
speculations in stock market. Both the
charges are entirely different and the
evidence to prove the two charges would
obviously be different.
Case law discussed:
1992 (82) FLR 627
2004 LLR-950
W.P. 36479 of 05 decided on 4.5.05

(Delivered by Hon'ble D.P. Singh, J.)

Heard counsel for the petitioner.

1. This petition is directed against
the
orders
dated
11.11.2005
and
17.1.2006. By the former order, the
departmental
proceedings
have
been
initiated against the petitioner and, by the
latter order, his request for stay of
proceedings has been rejected.

2. At the relevant time the petitioner
was Head Cashier of the State Bank of
Patiala at Ghaziabad and was also joint
custodian of the cash Chest, Bins etc.,
wherein the cash of the Reserve Bank of
India is kept. On 3.5.2005 the Currency
Verification Officer was deputed for
verifying the cash held in the chest as a
part
of
structured
cash
verification
exercise.
He
found
a
shortage
of
Rs.2,11,09,500/- in the cash chest. A First
Information Report was lodged against
the petitioner and another joint custodian
and a departmental enquiry was initiated
where
charges
were
framed
on
13.10.2005. After investigation in the
criminal case, a charge sheet under
sections 120-B, 409 IPC read with section
13 (2), 13 (1) (c) (d) of Prevention of
Corruption Act was submitted to the
Court with the allegation that the
petitioner
dishonestly
misappropriated