- (1.) C. A. Rahim, J. This revision arises out of judgment and order passed by Uearned X Additional Sessions Judge, Etah, dated 5-5-1984 in Criminal Appeal No. 139 of 1993. By this judgment he dismissed the appeal preferred by the appellant against his conviction and sentence passed by the learned VIth Additional Munsif Magistrate, Etah on 29-6-1983 in Criminal Case No. 448 of 1983. The learned Munsif Magistrate by the said judgment convicted the appellant under section 218, I. P. C. and sentenced to suffer R. I. for one year.
(2.) IN short, the prosecution case is that Lokendra, Onkar Nath Chaturvedi and Vishwanath were the owners of plot nos. 716 and 737. Out of four brothers Omkar Nath Chaturvedi and Vishwanath sold their shares in both the plots to one Smt. Sukhdevi by means of registered deed. Smt. Sukhdevi filed an application for mutation before the Naib Tahsildar on 30-11-1981. The Naib-Tahsildar passed an order direct ing the applicant, who was Qanoongo/lekhpal of the area, to delete the names of the three brothers and in that place the name of Smt. Sukhdevi be entered. The allegation is that the applicant deleted the names of all the brothers including Lokendra, who did not execute the sale deed in favour of Smt. Sukh Devi and substituted the name of Smt. Sukhdevi in that place. A complaint was filed by Onkarnath on 21-8-1982 against the applicant with the allegation that due to enmity he had deleted the name of Lokendra with intention to cause injury. During trial, besides the per sons who produced the register from the office of the Naib-Tahsildar and proved the relevant entry the complainant has ex amined himself. The learned trial court found that the allegation of the complainant was true and the said deletion of the name of Lokendra was done with intention of caus ing loss to him, convicted and sentenced the applicant in the aforesaid manner. On ap peal it was contended on behalf of the appel lant (applicant before me) that there was no evidence to substantiate the allegation which was not accepted and the lower appel late court dismissed the appeal. Sri AB. L. Gaur, appearing on be half of the applicant, has submitted that the intention to cause injury to Lokendra has not been proved and that there is no legal evidence against the applicant to warrant conviction.
(3.) SRI T. B. Islam, A. G. A. , appearing for the State has referred the relevant portion of the trial court's judgment wherefrom it appears that the said register was being kept in a open place and the applicant used to go there and nas committed the offence. When there is access of other employees to that register it cannot be presumed that the said correction/manipulation was made by the applicant and by nobody else. Since in criminal code no presumption can be drawn against the accused I find that the prosecu tion was unable to prove that it was done by the applicant. With regard to other submissions it has been stated in the trial court has found that there was no previous enmity in be tween Lokendra the complainant and the applicant. Two other circumstances have not been noticed by both the courts below. Firstly, if there was any deletion of the name of Lokendra made by the accused it was subsequently corrected on 12-1-1982, i. e. about six months prior to the date of filing of the complaint. Secondly, that Lokendra has neither filed the case nor appeared as a witness. He states that he suffered the loss and injury or that he had any enmity with the applicant for which damage was done. It might be that Omkar Nath the brother of Lokendra was not on good terms with the applicant. But it is not stated by both the courts below that due to enmity with Onkar Nath the applicant caused loss to Lokendra Nath by deleting his name. Any inadvertent act of a public servant will not culminate to an offence under section 218, I. P. C. The essential ingredient is that it must be inten tional. The prosecution has come up with a case that due to enmity with Onkar Nath his brother was victimised though his brother did not allege as such. So I find that inten tion being an essential ingredient of an of fence under section 218, I. P. C. but since missing no offence under that section has been made out. I have already observed that with regard to the deletion of the name both the courts below acted more on presump tion than the. evidence which is not permis sible.;