Allahabad High Court
Sanjay Bhardwaj vs State Of U.P. And Others on 27 October, 2014
Bench: Rakesh Tiwari, B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 7588 of 2010
Appellant :- Sanjay Bhardwaj
Respondent :- State Of U.P. And Others
Counsel for Appellant :- Ravindra Sharma
Counsel for Respondent :- Govt. Advocate,Apul Mishra
Hon'ble Rakesh Tiwari,J.
Hon'ble B. Amit Sthalekar,J.
Heard learned counsel for the appellant, learned A.G.A. for the State as well as Shri Apul Mishra, learned counsel for the accused respondents.
This appeal under section 372 Cr.P.C. has been filed against the judgment and order dated 21.9.2010 passed by the Additional Sessions Judge/F.T.C. No. 2, Budaun in S.T. No. 77 of 2000 whereby the accused respondent nos. 2 to 9 have been acquitted for the offences punishable under sections 148, 307/149 I.P.C.
As per the prosecution case the complainant Sanjay Kumar Bhardwaj had lodged an F.I.R. on 13.4.1993 at about 2.20 p.m. alleging therein that on 13.4.1993 the complainant alongwith his maternal uncle (Mama) was going to a Painter from District Hospital, Badaun through civil court for painting the registration number of Jeep No. DAE 5762. At about 1 p.m. Ramashanker son of Govind Ram, of his rival group, armed with double barrel Gun, his son Rajkumar and Ashwani Kumar armed with 315 bore Rifle and single barrel Gun, Narendra Dwivedi and his son Rajesh armed with single barrel Gun, Sunil alias Babloo s/o Shiv Narayan, armed with Gun, Rajendra s/o Kallu armed with single barrel Gun and Lallan s/o Kallan armed with 315 bore Rifle, Kundan s/o Dulhe Khan, r/o Asafpur armed with country made pistol, Dinesh s/o Bhagwan Das, r/o Meerapur District Muzzaffarnagar armed with Revolver and two armed constables came in front of the applicant in his Jeep No. MPO 07 N 5919 before the house of Dr. Jaddaun and exhorting that "Sale Ko Gher Lo Aaj Jane Na Paye" opened fire from their respective weapons. The complaint tried to save himself and ran from the place of occurrence by taking shelter behind the wall of the Ambedkar Park. The accused were firing with their weapons in which the complainant received pellets injuries on his chest, neck, face, left shoulder and right eye. The complainant and his maternal uncle also fired from their licensed weapons in the air in self defence. Because of the firing by the accused persons, the S.O. Alapur Shri Devendra Singh Tomar alongwith S.O. Civil Lines reached there and saved the complainant and his maternal uncle. The licensed weapons of the complainant and his uncle were taken into possession by the police. The applicant was got admitted in the District Hospital and during treatment he became unconscious. Thereafter when he regained consciousness he got the F.I.R. written by Ashok Kumar and lodged in the police station. On the basis of the said report Case Crime No. 273-A/93 under section 147, 148, 149 and 307 I.P.C. was registered at Police Station Kotwali District Budaun against the accused persons. During trial accused Lallan son of Kallan died, therefore trial commenced against the eight accused persons under sections 147, 307/149 I.P.C.
During trial the prosecution examined P.W. 1 Subedar, P.W. 2 Dr. T.N. Sharma, Radiologist and P.W. 3 Dr. B.R. Gupta, Medicial Officer.
The accused persons in their statement under section 313 Cr.P.C. denied the allegations and stated that they had been falsely implicated in this case due to enmity and a false report has been submitted against them inasmuch as the complainant is in the police department.
The trial court after considering the evidence on record acquitted the accused persons of all the charges. Hence this appeal.
The main thrust of the counsel for the appellant/complainant is that in the present case the injured who is also the complainant of the case has not been examined by the trial court and without issuing any notice, bailable or non bailable warrant to him, although he is working as Sub Inspector in the U.P. Police, the trial court has acquitted the accused persons.
On the other hand, learned counsel for the accused respondents submitted that the report has been lodged by the complainant himself, who is also an injured witness of the occurrence but he has not come forward to prove the prosecution case. It is further submitted that so far as the P.W. 1 Subedar is concerned, he is stated to be accompanying the complainant at the time of occurrence, but was not produced as a witness by the prosecution. Moreover his name has not been disclosed by the complainant in the F.I.R., which creates a doubt about his presence at the time of occurrence.
The trial court held that the defence has taken a plea that the police station is only about 1 km. away from the place of occurrence even then the F.I.R. has been lodged with a delay of 1 hour and 40 minutes. It is also held by the trial court that there is no independent witness to the occurrence in the F.I.R. The investigating officer has not recovered any blood, empty cartridges, Tiklii or pellets from the place of occurrence and that even though ten persons are alleged to have fired but only one person has received injuries. The complainant has also not been examined by the prosecution. The only eye witness P.W. 1 Subedar is not a witness in the F.I.R.; that after the examination in chief, efforts were made for his cross examination but he has not been produced by the prosecution therefore his testimony is not acceptable; and that there is no eye witness account on the record against the accused persons, they are liable to be acquitted.
Having considered the matter in all its ramifications we are of the view that it is a case of no evidence, since the complainant, who is also an injured witness of the case has not come forward to prove the prosecution case and the alleged eye witness and was neither named in the FIR nor produced at the trial, the Court of Sessions has rightly acquitted the accused respondents in the absence of any evidence.
In view of the above, the appeal fails and is accordingly dismissed.
Order Date :- 27.10.2014
o.k.
