B. Mohan Aacharya vs State of C.G.

D.R. Deshmukh, J.—This Common judgment shall govern Criminal Appeal No. 286/ 2006 preferred by B. Mohan Aacharya and Criminal Appeal No. 960/2004 preferred by Paramjeet @ Pamme. Both the Appellants were convicted u/s 353, 307 and 427 I.P.C. read with Section 34 of IPC and were sentenced to undergo rigorous imprisonment for 1 year and to a fine of Rs. 500/- u/s 353 read with Section 34 of IPC, to rigorous imprisonment for 5 years and to a fine of Rs. 1,000/- u/s 307 read with Section 34 of IPC and to rigorous imprisonment for 1 year and to a fine of Rs. 500/-under Section 427 read with Section 34 of IPC by Shri L.R. Thakur, learned VII Ith Additional Sessions Judge, (F.T.C.), Durg vide judgment dated 04-11-2004 delivered in Sessions Trial No. 107/2004.

The factual matrix in brief is that on 01-02-2004 at 00.10 Hrs. Constable Padum lal Sahu No. 557 P.W. -1 and Constable Hitesh Kumar No. 260 PW-2 who were on wireless duty at Police Outpost, Anjora, received information from Bhilai Police Control Room that one white coloured Tata Sumo Vehicle bearing Registration No. C.G.-04-B/5739 carrying illicit liquor and driven by B. Mohan Rao had fled after being intercepted by the police and had to be intercepted at Police outpost, Anjora. On receiving this information, Constable Padum lal Sahu P.W. -1 pulled down the barrier at Police Outpost, Anjora. Soon thereafter, the aforesaid vehicle was seen coming towards the barrier and was signaled to a halt. However, the driver of the aforesaid vehicle while attempting to crush Constable Padum lal Sahu P.W. -1 underneath the vehicle broke the barrier and fled with the Tata Sumo Vehicle.

F.I.R. was registered at Police Outpost, Anjora on 01-02-2004 at 00.45 Hrs. vide Ex. P-1 and thereafter at Police Station-Pulgaon at 02.30 Hrs. vide Ex. P-2. Assistant Sub Inspector Pramod Rusia Incharge of Police Outpost, Anjora P.W. -8 seized the broken glass particles of the front screen of the Tata Sumo Vehicle lying under the barrier vide Ex. P-3 at 11.00 Hrs. on 01-02-2004. Tata Sumo Vehicle bearing Registration No. C.G.-04-B/5739 with its front glass and, right indicator light broken was seized on 01 -02-2004 at 12-45 Hrs. vide Ex. P-4 from Appellant B. Mohan Aacharya. Spot map was prepared by Assistant Sub Inspector Pramod Rusia vide Ex. P-9 on 01-02-2004 and by Patwari S.R. Baghel P.W. -5 on 25-02-2004. After completion of investigation, both the Appellants were prosecuted under Sections 353, 427 and 307 I.P.C. read with Section 34 of IPC.

Both the Appellants abjured the guilt. The prosecution examined as many as 9 witnesses. No evidence in defence was led by the Appellants. Relying upon the evidence led by the prosecution, the learned trial judge convicted and sentenced the Appellants as aforesaid in para-1. (Supra)

Shri Arun Kochar, learned Counsel for the Appellant B. Mohan Aacharya and Shri Pankaj Agrawal, learned Counsel for the Appellant Paramjeet @ Pamme have assailed the impugned judgment on the ground that there is not even an iota of evidence to prove the guilt of the Appellants u/s 307 of IPC. It was contended that the evidence led by the prosecution created a serious doubt as to who was driving the vehicle at the time of the alleged incident. It was also contended that presence of Paramjeet @ Pamme inside the Tata Sumo Vehicle at the time of incident was extremely doubtful. Both the learned Counsel emphatically argued that the broken barrier had also not been seized by the police. Lastly, it was contended that the learned trial Judge erroneously drew an inference of guilt against the Appellants on the basis of their reply to the notice u/s 91 of Code of Criminal Procedure which could, in no case, form the basis under law to convict the Appellants. On the other hand, Shri Parag Kotecha, learned Panel Lawyer appearing for the State argued in support of the impugned judgment.

Having considered rival submission, I have perused the record minutely. Constable Padum lal Sahu P.W. -1 in para-7 of his testimony stated that he was on wireless set duty at the time of occurrence. In para-11 of his testimony, he has also stated that he did not see as to who was driving the Tata Sumo Vehicle. It is pertinent to note that in para-11 of his testimony he has clearly stated that City Superintendent of Police, Durg and Flying Squad were closely chasing the Tata Sumo Vehicle and after the occurrence City Superintendent of Police had gone to the Police Outpost where he had informed City Superintendent of Police that the Tata Sumo Vehicle did not stop at Police outpost, Anjora and on such information City Superintendent of Police, Durg immediately left towards Somni. This statement by itself creates a serious dent in the prosecution story and makes the entire prosecution story highly doubtful. It clearly shows that at the time of the alleged occurrence Constable Padum lal Sahu was on wireless duty at Police Outpost not at the barrier. It also raises a serious doubt that the entire prosecution case is false and has been concocted.

It is also pertinent to note that neither Constable Padum lal Sahu P.W. -1 nor Constable Hitesh Kumar P.W. -2 stated that any attempt was made to crush Padum lal Sahu under the Tata Sumo Vehicle. In para-6 of his testimony he has admitted that he had seen only one person in the said vehicle. In cross examination, he has emphatically asserted the same statement. Assistant Sub Inspector S.R. Sahu P.W. -9 who was closely chasing the Tata Sumo Vehicle also did not state that any attempt was made by the driver of Tata Sumo Vehicle to crush the Constable Padum lal Sahu P.W. -1. He simply stated that the driver of the Tata Sumo Vehicle broke the barrier in front of the Anjora Police Outpost and fled with the vehicle. Thus, the entire prosecution story that an attempt was made to crush Constable Padum lal Sahu P.W. -1 under the Tata Sumo Vehicle when he signaled it to a halt while standing at the barrier is rendered doubtful.

F.I.R. Ex. P-1 registered at Police Outpost, Anjora immediately after the occurrence and Ex. P-2 registered at P.S. Pulgaon soon thereafter shows that B. Mohan Aacharya was driving the Tata Sumo Vehicle which had fled towards Rajnandgaon. There is no mention that Paramjeet @ Pamme or any other person was accompanying the driver. Assistant Sub Inspector Pramod Rusia P.W. -8 admitted that Appellant Paramjeet @ Pamme was arrested on 27-02-2004. Assistant Sub Inspector S.R. Sahu P.W. -9 has stated that during investigation it came to light that Appellant Paramjeet @ Pamme was driving the Tata Sumo Vehicle and had escaped when the Tata Sumo Vehicle was finally intercepted at Rajnandgaon. A perusal of the record clearly shows that notice under Section-91 of Code of Criminal Procedure was given to both the Appellants to disclose what was being carried in the aforesaid vehicle at the time of occurrence and who was driving the vehicle. A perusal of the reply given by the Appellants to the notice in their own handwriting leaves no room for any doubt that it was got written per force by the Police from the Appellants. In any case, it could not form the basis for convicting the Appellants.

The evidence led by the prosecution does not establish that the Appellant Paramjeet @ Pamme was driving the Tata Sumo Vehicle at the time of occurrence. While Assistant Sub Inspector S.R. Sahu P.W. -9 has stated in para-2 of his testimony that Paramjeet @ Pamme fled away when the vehicle was intercepted at Police Kotwali, Rajnandgaon, Constable Padum lal Sahu P.W. -1 has contradicted this by stating that only one person was sitting inside the Tata Sumo Vehicle who was perhaps B. Mohan Aacharya. Constable Hitesh Kumar P.W. -2 has categorically stated that in para-6 of his testimony that he had seen only one person in the Tata Sumo Vehicle and no person besides the driver was sitting in the Vehicle. No explanation was given by the Assistant Sub Inspector Pramod Rusia P.W. -8 for not affecting the seizure of the broken barrier which also renders the prosecution story doubtful. In para-12 of his testimony he has further stated that investigation revealed that the Appellant B. Mohan Aacharya was not driving the Tata Sumo Vehicle. In the light of the above highly contradictory evidence the testimony of Assistant Sub Inspector S.R. Sahu P.W. -9 that the Appellant Paramjeet @ Pamme had fled while Tata Sumo Vehicle was intercepted at Police Station-Kotwali, Rajnandgaon becomes extremely doubtful.

Having thus considered the evidence led by the prosecution in its entirety, I am of the considered opinion that the entire prosecution story is highly doubtful and conviction of the Appellants u/s 353, 427 and 307 read with Section 34 of IPC and the sentences awarded thereunder by the learned trial Judge is liable to be set aside.

Consequently, both Cr. Appeal No. 286/2006 and Cr. Appeal No. 960/ 2004 are allowed. Conviction of the Appellants under Sections 353, 427 and 307 read with Section 34 of IPC and the sentences awarded thereunder by the learned trial Judge are set aside. The Appellants are acquitted of all charges. Fine if paid, shall be refunded to the Appellants.