State of U.P. vs Balley and Others

The present application has been filed for grant of leave to file the appeal against the judgment and order dated 27.08.2004 passed by learned Special Judge (E.C. Act) in S.T. No. 710 of 2001, connected with Sessions trial No. 178 of 2003 and Sessions trial No. 178-A/03, in case crime No. 22/01 for offence under Sections 147, 148, 149, 307, 332, 353, 336, 504 and 506 IPC and Section 7 of the Criminal Law Amendment Act and Section 3/5 of the Explosive Substance Act, P.S. Bekanganj, District Kanpur Nagar.

Briefly stated the facts of the prosecution case were that the S.O., P.S. Bekanganj, Kanpur Nagar received information on 17.03.2001 at 4:00 pm that a mob of unknown persons have surrounded the police station Bekanganj and they are destroying the public property and also attacking by fire-arms and also throwing bricks and stones. On this information, S.O. proceeded to the spot and found that the mob had surrounded the police station and were firing and throwing brick bats and stones and hurling bombs. In the said attack two Constables namely, Cheda Lal and Rajaram Dohre sustained injuries and they were medically examined.

The brief grounds for grant of leave to appeal are that the order and judgment has been passed on wholly erroneous grounds and the evidence has not been properly appreciated and the judgment has been passed without solid reasons and is based on conjectures and surmises.

We have heard the learned A.G.A. and have also perused the record as well as the judgment passed by the learned Lower Court.

A perusal of the judgment clearly indicates that it was a mob incident in which a mob of about 150 persons had attacked with bombs, brick bats and stones. Only two person above mentioned sustained injury as has come out in the evidence. It was not possible for them to see and recognize the assailants on the spot and no one was named in the initial report as the assailants who had caused the injuries. Subsequently, on the basis of publication of photograph in the newspaper as also on the basis of the statement of co-accused, namely Wasif Haider, Mumtaj alias Maulana and Haji Atiq were produced in an identification parade which was held on 11.09.2001 and 27.09.2001. Admittedly, the Magistrate on considering identification report has stated that identification parade was conducted six months after the incident. There is no evidence on record to show that from the date of arrest and till the identification parade was conducted the accused were kept baparda.

In these circumstances, the genuineness of identification parade becomes highly dubious. On the basis of said identification parade, they cannot be held to be the persons who are assailants in the present incident. Besides, the testimony of all the prosecution witnesses who have been examined in the case clearly discloses that it was not possible for them in such a mob incident to identity or specifically name the real assailants who had caused injuries on the persons.

In these circumstances, there appears no good ground for intervention in the finding recorded by the learned lower court which are well reasoned and sound and based on material evidence on record.

Accordingly, the application for grant of leave to appeal is rejected.