Rakesh Yadav vs State of U.P.

S.N.H. Zaidi, J.—Under challenge in this appeal is the judgment and order dated 9.1.2004 passed by the Additional Sessions Judge/Fast Track Court-2, Rae Bareli in S. T. No. 631 of 2000 State of U.P. v. Avadhesh Yadav and Ors., convicting the appellant and others u/s 332 I.P.C. and sentencing them to the period of imprisonment already undergone by them during the trial and a fine of Rs. 1500/-and in default of payment of fine, to an additional imprisonment for six months.

The facts, as emerged from the record, in brief, are that on 12.12.1999 PW1 Constable Vinod Kumar Tripathi had gone to village Pure Subedar, hamlet of Brara Bujurg, within Police Station Gadaganj of district Rae Bareli, along with PW2 Constable Kunwar Bahadur Yadav to arrest the named accused persons of Case Crime No. 134 of 1999 under Sections 354 : 504 : 506 : 352 I.P.C. of the said police station and when at about 7.30 pm they reached near the house of accused Avadhesh Yadav and Shankar Yadav, they saw them standing in front of their house, who on seeing the police constables tried to run away but were given a chase and apprehended by them, whereupon they started quarreling with them and in their support Sheetala and Ayodhaya, being armed with country made pistols, Dilip, Ramesh, Surendra and appellant Rakesh, being armed with Lathi and danda, came over there and started attacking the police party and caused injuries to them. In the meanwhile Smt. Chauba Devi, carrying the licensed gun of her husband, also came there along with Ram Narain and at the exhortation of Ram Narain aimed the gun at the police personnel, whereupon PW1 fired in the air but in the meanwhile the assembled persons got the arrested persons freed from the police custody and they ran away but were chased by them and at this time Sheetala and Ayodhaya fired at them with their pistols but they providentially escaped. Both the police personnel received injuries in the incident.

PW-1 Const. Vinod kumar Tripathi gave written report Ext. Ka-1 with the above averments at 10.30 pm at the police station on the basis of which a case under Sections 147 : 148 : 149 : 323 : 332 : 307 : 224 : 504 : 506 I.P.C. and 7 Criminal Laws Amendment Act and Section 25/27 Arms Act was registered against the appellant and nine others. The police, after the investigation, submitted a charge-sheet against the appellant and others under the said sections, whereupon the Magistrate took cognizance and committed the case to the court of Sessions for trial. The trial court framed charges of Sections 147 : 148 : 224/149 : 323/149 : 325 : 332/149 : 333/149 : 307/149 : 504 I.P.C. and Section 7 Criminal Laws Amendment Act against all the accused persons and an additional charge of Section 25/27 Arms Act against Smt. Chauba Devi. The appellant and other accused persons pleaded not guilty to the charges and claimed the trial.

The prosecution examined PW1 Const. Vinod Kumar Tripathi, PW2 Const. Kunwar Bahadur, PW3 Dr. S.L.Sharma, PW4 Dr. Om Prakash, PW5 HCP Nanhey Lal, PW6 S.I. Brij Mohan Yadav and also produced documentary evidence Ext. Ka-1 to Ext. Ka-9, in support of its case.

PW1 Const.Vinod Kumar Tripathi is the complainant and PW2 Const. Kunwar Bahadur is the injured and they have supported the prosecution case. PW3 Dr. S. L. Sharma had conducted the X-ray of Const. Kunwar Bahadur and had found that his metacarpal bone was fractured. PW4 Dr. Om Prakash had examined the injuries of Const. Vinod Kumar Tripathi and Const. Kunwar Bahadur. According to him, no visible mark of injury was found on the person of Const. Vinod Kumar Tripathi whereas one injury of traumatic swelling and two injuries of reddish contusions were found on the person of Const. Kunwar Bahadur. PW5 Head Constable Nanhey Lal is the author of the chick F.I.R. and G.D. whereas PW6 S.I. Brij Mohan Yadav is the Investigating Officer of the case and has challaned the appellant and others .The formal witnesses have proved the police papers.

The appellant and other accused persons, in their statements u/s 313 Cr.P.C., have denied the prosecution evidence and have stated that they have been implicated in this case falsely. No evidence has been adduced by the accused persons in their defence.

On appreciation of the prosecution evidence, the learned trial court did not find the appellant guilty of the charges of Sections 147 : 148 : 224/149 : 323/149 : 325 : 333/149 : 307/149 : 504 I.P.C. and Section 7 Criminal Laws Amendment Act and acquitted him of the said charges.

The trial Court, however, found appellant Rakesh Yadav and three others guilty of the charge of Section 332 I.P.C. and sentenced them to the period of imprisonment already undergone and a fine of Rs. 1500 under that section. They have also been awarded additional sentence of imprisonment on failure to deposit the amount of fine.

The appellant has deposited the awarded amount of fine, but being aggrieved with his conviction, has come up in appeal before this Court.

I have heard Mr. R.B.S. Rathaur, learned Counsel for the appellant and the learned Additional Government Advocate for the State and perused the material on record.

Mr. Rathaur has contended that the trial court has failed to properly appreciate the testimony of the prosecution witnesses and has wrongly ignored the material discrepancies occurred in their evidence. It has also been contended that it is not proved from the record that the appellant had caused any injury to Const. Kunwar Bahadur and as such he could not have been convicted for the charge of Section 332 IPC without the aid of Section 149 IPC.

Per contra, learned A.G.A. has contended that there was no occasion for PW-1 and PW-2 to depose falsehood against the appellant and their testimony cannot be discarded merely on the ground that they are police personnel or interested witnesses. It has been urged by him that the involvement of the appellant and taking active part in the incident is fully proved from the evidence on record.

I have given my thoughtful considerations to the contentions of the learned Counsel of the parties.

The impugned judgment shows that although the appellant and other accused persons were, inter-alia, charged for committing the offence of Section 332 read with Section 149 IPC, yet they were not held guilty of the said charge and appellant Rakesh and three others, namely, Dilip, Surendra and Ramesh have been convicted for the offence of Section 332 I.P.C. simplicitor PW-1 Const. Vinod Kumar Tripathi was not having any visible mark of injury and PW2 Const. Kunwar Bahadur, who had the injuries, has not named the appellant in his statement before the trial court and has said that 8 or 10 persons had surrounded and attacked them with lathi and dandas and he could not see as to who had attacked whom. The only observation made by the learned trial judge that it is said that accused Dilip, Surendra, Ramesh and Rakesh got Avdhesh and Shankar released from the police custody and attacked Vinod and Kunwar Bahadur, causing injuries to them and thereby obstructed them in the discharge of their duties and as such the charge of Section 332 IPC is proved against them, can not be accepted as he has neither discussed nor considered any evidence in arriving at that conclusion. In order to hold a person guilty of causing hurt to a public servant to deter him from his duties, u/s 332 IPC, it is necessary to prove that the accused has caused the hurt. The injury report Ext. Ka-4 of Const. Kunwar Bahadur shows that he was having only three injuries and there is no evidence on record to show that out of 8 or 10 persons, who had allegedly attacked him, who had caused those injuries. In view of this it is not proved that appellant Rakesh had caused those injuries. The conviction of the appellant u/s 332 IPC simpliciter is, therefore, bad in law.

Moreover, contrary to the prosecution case, PW1 has stated that Dilip and Shankar were the accused in the case of Section 354 IPC whereas, according to his own report Ext. Ka-1, instead of Dilip, accused Avdhesh was the other accused and this circumstance alone makes the prosecution story highly doubtful. This witness has also admitted that the names of Avdhesh and Shankar were written in the report as told by his companion ( Const. Kunwar Bahadur) and darkness had set when the villagers and family members of the accused had gathered on the spot and he could not say as who had attacked him. In view of these circumstances no safe reliance can be placed on his testimony also and it cannot be held sufficient to prove the charge. Although the appellant has been named in report Ext. Ka-1 lodged within three hours of the alleged incident and looking to 9 kilometers distance of the police station from the place of occurrence, it cannot be said to be lodged with delay, yet this circumstance alone is not sufficient to hold the appellant guilty of the offence charged in the absence of any evidence in support thereof. Apart from that, the mere circumstance that PW2 was having injuries which, according to PW 4 Dr. Om Prakash, could have been caused at the time of the alleged incident, it is not proved that the injuries were caused by the appellant.

In view of the above and looking to the circumstance that the trial court has also not found several other charges proved as framed against the appellant, the offence of Section 332 IPC is also not proved on the basis of the same evidence and he is entitled to get the benefit of doubt. The finding of guilt of committing the offence of the said section against the appellant, therefore, cannot be sustained and is liable to be quashed.

The appeal is, accordingly, allowed and the impugned judgment and order of conviction and sentence u/s 332 I.P.C. against appellant Rakesh Yadav son of Bihari lal is set aside. The appellant is on bail. He is not required to surrender. His sureties are discharged. The amount of fine be refunded to him.