HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No.284 of 2007
State of Uttaranchal ....Appellant Versus
Narendra Kumar Mehta & others ….Respondents Present:-
Mr. S.C. Dumka, learned A.G.A. for the appellant/State. Mr. R.S. Azad, learned counsel for the respondents-accused.
Per: Hon'ble Pankaj Purohit, J.
This appeal preferred by the State under Section 378 (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C.") is directed against the judgment and order dated 02.08.2006, passed by learned District & Sessions Judge, Haridwar in Criminal Appeal No.60 of 2006, Narendra Kumar Mehta & others vs. State, whereby the said court has allowed the appeal and set-aside the judgment and order dated 15.06.2006, passed by the court of Judicial Magistrate, Haridwar in Criminal Case No.194 of 2006, State vs. Narendra Kumar Mehta & others.
2. Facts in brief are that the prosecution was set into motion by registration of an FIR on 07.12.2000 at 10:30 a.m. by informant-Shiv Charan Pal (PW1), stating therein that on that day at about 9:00 a.m., he was informed by PW2 father of his son-in-law, that his neighbours-Narendra Mehta and his sons along with their eight to ten companions attacked their house. On receiving this information, while the informant was just leaving the house, his son-in-law in injured condition reached to his house and informed that about 09:00 a.m.
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on that day, Narendra Mehta along with his three sons (accused herein) along with eight to ten other persons reached to his house and said that since they have instituted a case against them in the police station, they would not allow them to live in this house and committed marpeet with them by iron rod and a chain. After being escaped from there somehow, he was again caught in the veranda by those persons (accused) and committed marpeet. His wife and niece were also beaten with fists and kicks by the accused persons. The incident was witnessed by neighbours i.e. Gazendra Jain, Mukesh Jain, Syed (mason), Baghwan Das, Raju & other neighbours. On the basis of said report of informant, a case was registered against the accused persons along with eight to ten persons for the offence under Sections 147, 452, 323 & 506 IPC.
3. On completion of investigation, a charge-sheet was submitted against them in the court. The charge was framed against the accused for the selfsame sections which the accused denied and claimed trial. In order to prove its case, the prosecution produced as many as nine witnesses. On completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded which the accused again denied, they did not lead any evidence in their defence.
4. The trial court, after hearing learned counsel for the parties, at the culmination of trial, proceeded to convict the accused persons/respondents under Sections
147 IPC for one year R.I., 323 IPC for one year R.I., 452 IPC for three years' R.I. and Section 506(2) IPC for one year R.I and each accused was further sentenced with a
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fine of Rs.2,000/-. All the aforesaid sentences were directed to run concurrently.
5. The accused persons/respondents being aggrieved preferred an appeal before the Sessions Judge, Haridwar which was decided vide judgment and order dated 02.08.2006, passed by the said court, which resulted into their acquittal. Hence, the State has come up before this Court challenging the same judgment.
6. The trial court has convicted the respondents- accused for the offence punishable under Section 147 IPC which defines punishment for rioting. Rioting has been defined under Section 146 IPC, which defines that whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. The trial court has mentioned in its judgment that only four accused persons committed occurrence and this fact was also admitted by PW4 (Syed Hasan) in his statement that the incident was committed by Narendra Mehta, Satendra Mehta and their two sons. The first information report also mentioned the fact that the incident was committed by the accused persons/respondents. The statement given by Vinod Kumar Chandel (PW2), Devendra Prakash Chandel (PW3) and Gazendra Kumar (PW5) also corroborates this fact.
7. None of the witnesses has deposed in their evidence that at the time of occurrence, the accused persons were the member of common assembly and in prosecution of common object of such assembly, they
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used the violence itself; the common evidence of witnesses that the incidence was committed by the accused persons/respondents. Hence the evidence laid by the witnesses as also the FIR is not sufficient to prove the offence of Section 147 IPC against the accused persons.
8. In so far as the conviction of accused persons under Section 323 IPC is concerned, which define punishment for voluntarily causing hurt, the same has defined under Section 319 IPC, which provides that if a person causes bodily pain, disease or infirmity to any person, is said to cause hurt. It is admitted case of prosecution that the informant is not an eye-witness of the incident and it is his evidence that when he reached on the spot, the accused persons were not present. This witness has also deposed that Vinod Kumar Chandel (PW2) and Devendra Prakash Chandel (PW3), father and son to each other and it is also not disputed that there was prior enmity between the informant and accused persons. In the light of this evidence, the appellate court proceeded to examine the evidence of PW4-Syed Hasan (mason) who was doing work at the relevant time at the house of injured persons. It is stated by this witness (Syed Hasan) that he did not see assailants while beating the injured persons with rod or chain, rather he saw them pushing and shoving. Since this witness did not see assailants while causing injuries by iron rod or chain and he merely saw them pushing or shoving, thus the question arises as to what manner the accused persons committed occurrence. While on admitted enmity between accused and injured the evidence of this witness is very important and from his evidence, the act of voluntarily causing hurt is not proved. Moreover, the important
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witness namely, Smt. Sushma, a neighbour, who is stated to have reached on the spot while the incident was taken place, was not examined by the prosecution, which in the opinion of appellate court was sufficient for causing doubt in the evidence of prosecution case. The appellate court also disbelieved of evidence of prosecution for the reason that according to the story laid by the prosecution witnesses, the injuries were caused by iron rod, iron weapon, hockey stick and fist of brass by 11 persons, but the injuries on the injured were only three, which were simple in nature and did not compare with the evidence of prosecution story. Since if 10 to 15 persons would attack a single person, in no manner mere three injuries are found, is next to impossible.
9. The court was next advent to the offence punishable under Section 452 IPC which provides punishment for causing house trespass after preparation for hurt, assault or wrongful restraint. In this regard, it is the evidence of PW4-Syed (mason) that the incident had corroborated at the main gate. It is also the evidence of this witness, while the accused persons came out of the veranda, they were not armed with any baton or stick and they had thrown the baton and stick in the veranda itself. Hence, according to PW4-Syed, the incident occurred at the outside the house at the gate. In this regard, it is the evidence of injured witness-Gazendra Kumar (PW5) that when he came out after hearing the alarm, Vinod Kumar Chandel (PW2) has already sustained injuries on his face. The evidence of this witness is sufficient to disbelieve the evidence of prosecution as no incidence was taken place before this witness. Accordingly, the evidence of PW4-
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Syed and PW5-Gazendra Kumar was rightly disbelieved by the appellate court.
10. In so far as the offence under Section 506 IPC is concerned, it appears to be added to exaggerate story by the prosecution witnesses. Since it is the evidence of PW2-Vinod Kumar Chandel that while he was getting the work done in his house from masons, accused-Satendra Mehta came to him and asked him to remove the sand and he (Satendra Mehta) went away threatening that he would kill him along with entire family.
11 The question arises that had it been the common intention of the accused persons to commit criminal intimidation then why did he (Satendra Mehta) went away merely by giving the threat. At the same time, PW4-Syed has stated in his evidence that he was present at the time when talks were going on between PW2-Vinod Kumar Chandel and the accused-Satendra Mehta. PW4 nowhere stated that the accused persons either gave any threat to kill or extended any sort of criminal intimidation. The appellate court in these circumstances has proceeded to disbelieve the evidence laid by the prosecution witnesses.
12. The appellate court further observed in its judgment that according to the first information report, the informant was informed by father of his son-in-law at 09:00 a.m. then as to how he stated in his evidence that he got a phone call at 08:50 a.m. itself. At the same time, it is also the evidence of informant that at 09:30 a.m. when he reached at police station, the first information
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was lodged at 10:30 a.m. and there is no explanation of delay of that one hour.
13. It is further apt to mention at this stage that the son-in-law, father and mother of son-in-law, his daughter and saviours had also sustained injuries. No explanation was put forth by the prosecution as to why those injured persons were not medically examined. In all the appellate court reached to the conclusion that the link of evidence to connect the accused persons with the crime is incomplete and hence, no occasion arose to decide any all other issues of the trial.
14. In the opinion of this court, the appellate court reached to the conclusion that the prosecution failed to prove its case against the accused persons beyond all reasonable doubt and it rightly held that the prosecution story cannot be believed by any stretch of imagination and accordingly, it rightly set-aside the judgment and order passed by trial court, whereby the accused persons were convicted and sentenced, as mentioned in preceding paragraphs of this judgment.
15. On a careful perusal of entire oral and documentary evidence available on record, this Court is of the considered view that there is no reason to interfere with the well reasoned and elaborate judgment passed by the appellate court. The appeal is bereft of merit and the same is accordingly dismissed.
16. The accused persons are rightly acquitted of the charges levelled against them.
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17. Let a copy of this judgment and order along with LCR be transmitted to the court concerned for information and necessary action at its end. (Pankaj Purohit, J.)
21.02.2024
AK
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