D.K.SINHA, J. - (1.) THIS Cr. Revision application is directed against the judgment dated 25th October, 2004 passed by Sri Sajjan Kumar Dubey, Additional Judicial Commissioner, FTC VIII, Ranchi in Cr. Appeal No. 35 of 2004 whereby and where -under the order of conviction under Section 409, IPC and sentence passed against the petitioner for three years simple imprisonment and fine of Rs. 2000/ - by the Judicial Magistrate, Ist Class, Ranchi in G.R. No.2533 of 1997 was affirmed in appeal, but his conviction under Section 420 of IPC was set aside.
(2.) THE brief fact of the case was that one Sashikant Pandit and another Ram Baraik had made complaint before the Administrator, Ranchi Municipal Corporation, Ranchi about illegal water connection provided to the residents of Shanti Nagar, Garha Toli, Kanta Toli, within jurisdiction of Kotwali police station, Ranchi. The allegation was inquired into by the Deputy Administrator, Ranchi Municipal Corporation and after inquiry it was detected that about 13 persons had been provided water connection illegally by the petitioner herein, who was at the relevant time Pipe Line Inspector of the Municipal Corporation, collecting a total sum of Rs. 50,000/ - from the users. It was further alleged that the petitioner was responsible for such act of illegal water connection and that he had illegally obtained Rs. 50,000/ - as such a written complaint was made by the informant Ram Jatan Sharma, Incharge Jal Parishad, Ranchi Municipal Corporation and on the basis of which a case was registered on 27.10.1997 for the offence under Sections 420/409 of the Indian Penal Code against the petitioner. Mr. B.M. Tripathy, the learned counsel submitted that the petitioner has been convicted for the offence under Section 409 of the Indian Penal Code without any element to attract such offence under the facts and circumstances of the case. The prosecution failed to adduce evidence in support of the charge that entrustment of any amount was made to the petitioner, who was a Pipe Line Inspector, to make out a case under Section 409 of the Indian Penal Code. Similarly none of the allegedly users of water illegally from whom the amounts were collected by the petitioner was produced in the witness box in support of the case that he had entrusted certain amount to the petitioner in order to obtain water connection illegally. The aggrieved person i.e. PW 3 Shankar Prajapati also did not support the prosecution case.
(3.) ADVANCING his argument Mr. Tripathi submitted that PW 1 Shashikant Pandit inquired into the allegation and during inquiry he was conveyed by wives of Peter Barua and Mahindra Prasad that 13 persons of different colonies were provided water connection illegally. It was the simple hearsay statement of PW 1 without any legal evidence that the petitioner Niyaz Ahmad had collected Rs. 60,000/ - from the residents of Santi Nagar area and the amount so collected was not deposited in the office of Water Board. Admittedly this witness did not inquire from the persons who had allegedly obtained water connection illegally and therefore, the allegation made against the petitioner for the charge under Section 409, IPC was baseless. Similarly PW 2 Ram Jatan Sharma, who was the informant of the case, admitted by testifying that he had lodged the FIR on the instruction of the senior officer without his personal knowledge of the fact of the case. PW 3 Shankar Prajapati did not support the prosecution case. Similarly PW 4 Vishwanath Singh, who was the Investigating Officer of the case, had not examined any of the 13 persons against whom there was allegation that they had made entrustment of certain amount to the petitioner for providing water connection and pursuant to that connection was given illegally. The Investigating Officer under wrong notion described the office of Jalparishad of Ranchi Municipal Corporation being the alleged place of occurrence where entrustment was made. But in the same sequence he testified by expressing ignorance as to the place of alleged transaction. He admitted having found connections of water supply in the house of Peter Barua and Mahindra Prasad but derived Information from others that there were illegal connections of water supply in other houses of Shanti Nagar and Kanta Toli. He further admitted having not taken pain to collect evidence of illegal water connection by digging earth at the alleged colonies.;