Kalloo And Another. vs State Of U.P.
2022 Latest Caselaw 21920 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL APPEAL No. - 636 of 2000
 

 
Appellant :- Kalloo And Another.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Avinash Srivastava
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Avinash Srivastava, learned counsel for the appellants as well as Shri Rajesh Kumar, learned AGA for the State and perused the record.

The instant appeal has been filed under section 374(2) Cr.P.C. by the appellants against the judgement and order dated 6.7.2000 passed by Special Judge, SC/ST Act, Barabanki, in Session Trial No. 160/1995, arising out of Case Crime No. 354/1993, under Sections under Sections 427, 504, 506 IPC and Section 3(1) (X) SC/ST Act, Police Station Ram Nagar, District Baraanki, whereby the appellants have been convicted for committing offence under Sections 427, 504, 506 IPC as well as under Section 3(1) (X) SC/ST Act and sentenced them under Section 427 IPC for one year rigorous imprisonment for committing each of the offence under Sections 427 and 504 IPC and with two years rigorous imprisonment pertaining to Section 506 IPC and and three years for Section 3(1) (X) SC/ST Act with fine and default clause.

Initially the instant appeal was filed by the two appellants - Kalloo and Ranjeet, however, during the pendency of the instant appeal appellant Kalloo has died and vide order dated 10.12.2022 the proceeding of this case was abated against him.

Thus the appeal is alive for appellant- Ranjeet

Brief facts necessary for disposal of the instant appeal are to the tune that on 28.9.1993 at 15.35 hours the informant of this case, namely, Sant Ram Rawat had lodged an FIR at Police Station Ram Nagar, District Barabanki stating therein that on 13.9.1993 at about 8.00 A.M. he was supervising construction of boundary wall of his house and at that time the accused persons, Kalloo and Ranjeet arrived carrying 'lathi-danda' with them and started demolishing his newly constructed boundary wall and when asked to refrain they hurled filthy abuses and also addressed him with casteist remarks and intimidated him of life. It is further stated that meson and labours which were engaged in the construction of boundary wall have also asked them not to hurl abuses and also saved him. The incident has occurred on 3.9.1993 at 8.00A.M.

On the basis of this application an FIR was registered as case Crime No. 354/1993 under Sections 427, 504, 506 IPC and Section 3(1) (X) of SC/ST Act at Police Station Ram Nagar, District Barabanki. The investigation of the case was entrusted to Sub Inspector Sohan Lal Shukla who after recording the statement of the prosecution witnesses and preparing the site plan has submitted the charge sheet against the accused persons under Sections 427, 504, 506 IPC and 3(1) (X) SC/ST Act.

Charges were framed against the accused persons under Sections 427, 504, 506 IPC and 3(1) (X) of SC/ST Act to which accused persons denied and claimed trial.

The prosecution in order to prove their case before the trial court produced P.W.1- Sant Ram, P.W. 2- Maya Ram, P.W. 3- Constable Rajendra Singh and P.W.4- Constable Rajendra Singh and have also produced documentary evidence e.g. FIR, G.D. Qayami etc.

After conclusion of the evidence of the prosecution the statement of the accused persons was recorded under Section 313 of Cr.P.C. wherein the accused persons had accepted that the informant Sant Ram belongs to 'Pasi' caste and denied the rest evidence produced by the prosecution and further stated that a simple altercation had held on relevant day pertaining to pet animals as the informant and the accused persons are residing in front of each other.

The trial court after appreciating the evidence made available on record found the case of the prosecution proved beyond reasonable doubt and had convicted the appellant under Sections 427, 504, 506 IPC and 3(1) (X) SC/ST Act and sentenced him in the manner described in paragraph II of this judgement.

Learned counsel for the appellant while drawing the attention of this Court towards the judgement of the trial court submits, that the trial court has committed manifest illegality in appreciating the evidence available on record as there are material contradictions in the testimony of two prosecution witnesses and they could not be termed as reliable witnesses therefore serious error has been committed by the trial court in accepting their testimony.

It is further submitted that as per the rules of SC/ST Act the offence pertaining to SC/ST Act should have been investigated by the Officer of the Circle Officer of Police level, however, in this case the Investigation has been done by a Sub Inspector of Police.

It is further submitted that no document has been produced before the trial court in order to prove that the informant belongs to SC/ST Act and in absence of any such evidence the appellant could not be convicted for committing the offence under Section 3(1) (X) of SC/ST Act. It is vehemently submitted that the Investigating Officer of the case has not been examined and this lapse of prosecution has caused serious lacuna in the prosecution story as neither site plan has been proved nor taking of statement of the prosecution witnesses under Section 161 Cr.P.C. was established and the appellant was also denied an opportunity to establish the material contradictions which had occurred in the statement of two prosecution witnesses.

It is also submitted that for conviction the statement of the prosecution witness must be reliable and trustworthy while in the instant case the testimony of two eye witnesses is shaky, untrustworthy and by any stretch of imagination the appellant could not be convicted on the basis of weak evidence of two witnesses and this appeal preferred by the appellant be allowed and he be acquitted of all the charges framed against him.

Learned AGA on the other hand submits that so far as the submissions of learned counsel for the appellant with regard to investigation not done by the officer of rank of Deputy S.P. is concerned the instant case, is pertaining to the occurrence occurred in the year 1993 and the rules specifying the investigation to be done by the officer of the rank of Deputy S.P. have been framed in the year 1995 and at the time of investigation of this case the rules relied on by the learned counsel for the appellant were not in existence.

It is further submitted that the case of the prosecution apart from established by the informant is also fortified by an independent witnesses, namely, Maya Ram who at that point of time was engaged in construction of the boundary wall.

It is also submitted that the case of the prosecution was proved beyond reasonable doubt and no illegality has been committed by the trial court.

Having heard learned counsel for the parties and having perused the record, it is evident that the incident is of date 13.9.1993 while the First Information Report of this case has been lodged on 28.9.1993, thus there is a gap of 15 days in reporting the incident to the police. In the first Information Report, it is stated by the informant - Sant Ram that he had given many applications pertaining to the incident committed with him and thereafter he had approached the police station for lodging of First Information Report and in his statement recorded before the trial court as P.W.1 this witness has stated in his in-chief examination that the accused persons had intimidated him that if he would go to police Station they will kill him and it is due to this apprehension he did not go to the police station and has sent applications to the S.P. and District Magistrate through registered post as the post office is situated in his village. However, neither during the course of investigation nor during recording of evidence no application was produced, which may fortify the statement of this witness pertaining to informing the S.P. or the District Magistrate through registered post pertaining to the alleged incident. Thus the FIR of the case appears to be lodged with huge delay, which has no been explained.

It is true that only on the basis of delay in lodging the FIR the whole case of the prosecution could not be suspected but when there is a considerable delay and apart from the oral evidence of the prosecution witnesses there is nothing on record then it becomes the duty of the prosecution to explain the delay occurred in lodging the FIR as the FIR is considered to be the foundation of any criminal case. In the considered opinion of this Court the reason for not going to the police station promptly is not substantiated by any documentary evidence and no application which was alleged to be given by the informant to S.P. / D.M. was placed before the trial court. Moreover no criminal history of the appellant or co-accused was proved which may suggest that the appellant and co-accused are criminals of such a nature which may deter the informant from approaching the police station. Thus, in the considered opinion of this Court the delay caused in lodging the FIR has not been adequately and property explained.

This witness in his statement has stated that at the time of incident Moti Lal, Maya Ram and his sons Vinod Kumar and Prem Kumar and his wife were present but it is admitted by him that in the FIR lodged by him he did not show the presence of these persons on the spot at the time of incident and in the FIR only the presence of Maya Ram and Moti Lal was shown.

It is strange that the accused persons were two in number while the informant was accompanied by his two sons and wife and two other persons including Maya Ram who was allegedly working there and Maya Ram is having good relationship with the informant and he has also appeared as a witness for informant, however, all these six persons including informant could not put any resistance before the two accused persons. In the considered opinion of this Court, this story of the prosecution could not be accepted more so in absence of any injury sustained by either informant or any of his family member.

The informant had admitted in his cross examination that after the incident the witnesses were visiting his house daily but he did not talk to them. It is also admitted by him that distance of door of accused persons from his boundary wall would be 3-4 Kms. It is also admitted by him in his cross examination that the accused persons have carved out a new way between their house and also that after demolishing the wall the accused persons had immediately fled away. It is admitted by him that he did not sustain any injury and also that the witness- Maya Ram is also a resident of his village. With regard to a suggestion given by the accused persons it is admitted by this witness that it is true that if the boundary was constructed completely then the way of the house of the appellant would have been closed. It is also admitted by him that the accused persons had never came to his house for the purpose of giving intimidation. In his cross examination he also admits that the Pradhan and other Panchs had resolved the dispute in terms that he can construct the boundary wall within his land and the Panch had not authorized him to obstruct the way of the house of the accused persons and he attempted to close the way of the house of the accused persons on his own.

The above admissions of the informant are suffice to reveal that he was attempting to obstruct the way of the house of accused persons in violation of a compromise/ settlement arrived at with the help of Pradhan and Panchs of the village.

The prosecution witness- Maya Ram though in his in-chief examination has supported the version of the FIR but on perusal of his whole testimony it would be revealed that there are inherent contradictions in his testimony. This witness has significantly admitted in his cross examination that at the time of incident, he, informant- Moti Lal as well as the family members of the informant were present and no other persons was present. To construe an offence under Section 3(1) (X) of SC/ST Act the illegal act should have been committed with the intention to humiliate the victim on the basis of his caste and the act must be committed in 'public view' while in this case, it is admitted that apart from family members of the informant and two other persons and no other person of the public was present.

Having regard to the reasons given herein before, in the considered opinion of this Court the testimony of both the prosecution witness is not of reliable nature and there are major dents in the story of prosecution and the prosecution had miserably failed to prove its case beyond reasonable doubt against the appellant/ accused person and therefore the trial court has committed illegality in convicting the appellant on the basis of insufficient and unreliable evidence of the two prosecution witnesses.

Resultantly, the appeal is allowed and the order dated 6.7.2000 passed by Special Judge, SC/ST Act, Barabanki, in Session Trial No. 160/1995, arising out of Case Crime No. 354/1993, under Sections under Sections 427, 504, 506 IPC and Section 3(1) (X) SC/ST Act, Police Station Ram Nagar, District Barabanki, whereby the appellant was convicted is hereby set aside.

The appellant is acquitted of the charges framed against him under Sections 427, 504, 506 IPC and Section 3(1) (X) SC/ST Act.

The appellant is on bail. Personal bond of the appellant and surety bond filed by his sureties shall remain inforce for next six months from today to secure the presence of appellant in case any appeal is filed against this judgment.

A copy of this judgment be immediately sent to the trial court for compliance along with record of the trial court.

Order Date :- 20.12.2022

Muk