Jammu & Kashmir High Court - Srinagar Bench
Union Of India & Ors vs Sanjay Kumar & Anr on 19 May, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRAA No. 02/2016
Reserved On: 2ndof May, 2023
Pronounced On: 19th of May, 2023
Union of India & Ors.
... Appellant(s)
Through: -
Mr Nazir Ahmad Bhat, CGC with
Mr Qamer Jeelani, Advocate; and
Mr Rakesh Sharma, Assistant Commandant (Legal), CRPF.
V/s
Sanjay Kumar & Anr.
... Respondent(s)
Through: -
Mr Sheikh Mushtaq, Advocate.
CORAM:
Hon'ble Mr Justice Rajnesh Oswal, Judge
(JUDGMENT)
01. Through the medium of this appeal, the appellants have
assailed the judgment of acquittal dated 23rd of August, 2014 recorded by
the Court of learned Principal Sessions Judge, Anantnag in case titled
'Sanjay Kumar & Anr. v.Union of India & Ors.'; reversing the judgment
of conviction and sentence dated 30th of March, 2006 passed by the
Commandant-cum-Chief Judicial Magistrate, 95 BN CRPF, Heevan
Cinema Hall, Ashajipora, Anantnag, i.e., the appellant No.4, inter alia, on
the ground that the respondents were asked to engage a defence Counsel
and that they were also asked if they were not in a position to engage the
defence Counsel, then the Department would request for engaging a
defence Counsel on its own expenses. Besides, a communication was also
addressed to the Deputy Commissioner, Anantnag to provide Counsel to the
respondents, as such, the observation of the learned Sessions Court that the
respondents were not given a fair trial is not tenable. It is also stated that the
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respondent No.2, i.e., Sharda Kumar accepted the allegations levelled
against him and his admission of the guilt was recorded as per the
procedure laid down in the Code of Criminal Procedure (for short 'the
Code'), however, the finding given by the learned Sessions Court that the
same has not been recorded in accordance with the Code is without
substance. It is further stated that the witnesses were examined by the
Prosecution and cross-examined by the respondents and after appreciation
of the evidence, the appellant No.4 awarded fifteen (15) days simple
imprisonment to the respondents and also ordered the dismissal of the
respondents from service w.e.f. 30th of March, 2006, but the observation
made by the learned Sessions Court that the respondents were not given a
chance to cross-examine the witnesses is not supported by the record, when
the respondent No.1, in fact, had cross-examined the witnesses. It is next
pleaded that, even if it is assumed that the appellant No.4 did not conduct
the trial in accordance with the relevant provisions of the Code and
observed the principles of natural justice in breach, still the Sessions Court
was required to order re-trial of the respondents instead of acquitting the
respondents.
02. Mr Nazir Ahmad Bhat, the learned Counsel appearing on
behalf of the appellants, vehemently argued that the observation made by
the learned Sessions Court that the respondents were not permitted to cross-
examine the witnesses is contrary to record and further that the appellant
No.4 had convicted and sentenced the respondents after due appreciation of
evidence brought on record by the appellants. It is further urged that the
respondents were given a fair trial by the appellant No.4 and the provisions
of the Criminal Procedure Code, CRPF Act and Evidence Act were
meticulously followed by the appellant No.4 during the trial, but the learned
Sessions Court has reversed the judgment on technical grounds, which is
not permissible.
03. Per Contra, Mr Sheikh Mushtaq, the learned Counsel
representing the respondents, submitted that the mandate of Section 340 of
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the Code of Criminal Procedure was violated by the appellants, which is
evident from the record itself, in as much as the appellants, no doubt, had
written a communication to the Deputy Commissioner, Anantnag for
providing one Advocate from his listed panel to attend the judicial trial
proceedings on behalf of the respondents, but no further steps were
undertaken by the appellants to ensure that the respondents were provided
proper legal assistance to defend the false and frivolous proceedings
initiated against them. The learned Counsel further argued that the
provisions of the Code of the Criminal Procedure have been observed more
in breach than in compliance, as no incriminating evidence was put to the
respondents and further that the appellants had manufactured the complaint
dated 17th of March, 2006, whereas the cognizance was taken on 16th of
March, 2006 by the Magistrate concerned. It was also urged by the learned
Counsel appearing for the respondents that the confession of the respondent
No.2 could not have been made the basis for convicting the said respondent
as the same was not recorded in accordance with law.
04. Heard and perused the record. I have also gone through the
record of the trial, as produced before the Court by the Assistant
Commandant (Legal), CRPF.
05. In an appeal against the judgment of acquittal, the only issue
that is required to be examined is as to whether the opinion formed by the
Court while acquitting the accused on the basis of evidence brought on
record is possible or plausible and if it is so, then no interference with the
judgment of acquittal is warranted. More so, an order of acquittal is not to
be reversed simply because, on the same set of evidence, the other opinion/
view is also possible.
06. The Prosecution story, as it emerges from the record, is that on
16th of March, 2006, Subedar-Major Om Prakash Chauhan, Company
Commander, E/95 BN CRPF, lodged a written complaint with the appellant
No.4 and his statement was also recorded. The appellant No.4 recorded his
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satisfaction that prima facie an offence under Section 10 (n) of the Central
Reserve Police Force Act, 1949 (for short 'the Act of 1949') is made out
against the accused/ respondents, whereupon the respondents were
summoned for their appearance on 17th of March, 2006 at 10:00 AM. In the
complaint it was stated by SM Om Parkash Chauhan that on 15th of March,
2006, in the evening both the respondents quarrelled with Hav. Ranjit Singh
and abused him. It was also stated in the complaint that on 16 th of March,
2006, in the morning, he orally informed Commandant 95 Bn about the
incident and forwarded the written application of Hav. Ranjit Singh to the
Commandant. The written application filed by Hav. Ranjit Singh and the
document demonstrating the distribution of liquor were also attached with
the complaint. As per the record, complainant-Subedar Major Om Prakash
Chauhan, stated before the Magistrate that on 16th of March, 2006, in the
morning, Havaldar Ranjit Singh came to him and told him that two
Constables assaulted and abused him and that he wanted to meet the
Commandant. Both the parties were called, but they did not disclose
anything. Havaldar Ranjit Singh gave one application, which he gave to
Commandant 95 Bn CRPF. The appellants besides examining the
complainant- SM Om Parkash Chauhan, examined as many as seven (07)
witnesses. The statements of the respondents were also recorded and
thereafter, the respondents were convicted by the appellant No.4 for fifteen
(15) days simple imprisonment. The respondents filed an appeal against the
said judgment and the learned Sessions Court reversed the judgment passed
by the appellant No.4 on the grounds that no legal assistance was provided
to the respondents and that the respondents were not given right to cross-
examine the witnesses. It was also observed by the learned Sessions Court
that the provisions contained in Section 342 of the Code of Criminal
Procedure have not been complied with by the appellant No.4 and after due
appreciation of evidence, the learned Sessions Court came to the conclusion
that there are three different versions with regard to the occurrence. Finally,
after taking note of the above-mentioned infirmities in the Prosecution case,
CRAA No. 02 of 2016
the learned Sessions Court acquitted the respondents vide the impugned
judgment.
07. The first contention raised by the appellants is that the
respondents were provided sufficient opportunity to engage a Counsel and
that the appellants had also intimated the Deputy Commissioner concerned
for providing an Advocate to the respondents during the course of trial,
therefore, the observation of the learned Sessions Court that the respondents
were not provided proper legal assistance during the course of trial is not
sustainable. It is not in dispute that the trial in relation to offences specified
under Section 10 of the 'Act of 1949' is required to be conducted in
accordance with the procedure laid down in the Code of Criminal
Procedure. In terms of Section 340 of the Code of Criminal Procedure,
1989 (Section 304 of the Central Code of Criminal Procedure), the
appellants were under an obligation to provide legal aid to the respondents,
particularly when the respondents were in custody during the period of trial,
as is evident from the judgment passed by the appellant No.4. The
appellants have placed reliance upon the communication dated 16th of
March, 2006 addressed to the Deputy Commissioner, District Anantnag, to
demonstrate that legal aid was provided to the respondents. The relevant
part of the communication is reproduced as under:
"... In order to give the accused a fair chance to defend and
get legal advice during the course of trial a legal counsel would be
required. It is, therefore, requested to your office that one advocate
from your listed pool may be detailed to attend the judicial trial
proceedings held at my office please."
However, from the record, this Court finds that after issuance
of the aforesaid communication, no further steps were undertaken by the
appellant No.4 so as to ensure that the respondents were given a fair chance
to defend the proceedings against them by providing legal aid to them
during the course of the trial. In that view of the matter, this Court has no
hesitation to hold that the appellants only performed a ceremonial exercise
for providing legal assistance to the respondents which, in fact, was never
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ever provided, therefore, there is no infirmity in the observation made by
the Sessions Court that the appellants have failed to discharge their
constitutional as well as statutory obligation of providing legal aid to the
respondents.
08. It is also the contention of the appellants that the respondent
No.2 had pleaded guilty to the allegations levelled against him and that
there was nothing wrong in relying upon the said statement, along with
other evidence for the purpose of convicting the respondent No.2. The
perusal of the record reveals that the alleged admission of the respondent
No.2 recorded by the learned Magistrate is not in accordance with law. The
respondent No.2 was not made aware about the consequences of the
admission of the guilt recorded by the appellant No.4 and more particularly,
there was no confession of the allegations, as it was specifically pleaded by
the respondent No.2 that he was under the influence of liquor. More so, the
respondent no.2 never intended to admit his guilt as is evident from his
reply made to question No.6, wherein he has categorically stated that he
would defend the case himself. The admission of the guilt must be clear,
unambiguous and unconditional, before the same can be acted upon. In the
instant case, it was the specific case of the respondent No.2 that he was
under the influence of liquor. Also, the accused must be informed about the
consequences of the admission of the guilt, which has not been done in the
instant case. Further, once the admission of guilt was not acted upon by the
appellant No.4 for convicting the respondent No.2 and the appellants led
evidence against the respondent No.2, therefore the said admission of guilt
could never have been relied upon by the appellant No.4 subsequently
along with evidence led during the course of the trial.
09. Further, from the record, it is found that no incriminating
material/ evidence, that had come on record, was put to the respondents
during trial and only their statements were recorded. As per the mandate of
Rule 36 of the Central Reserve Police Force Rules, 1955, all trials in
relation to the offences specified in Sections 9 and 10 are required to be
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held in accordance with the procedure laid down in the Code. Once no
incriminating material was put to the respondents in accordance with law,
the respondents could not have been convicted on the basis of that
incriminating material.
10. Though, this Court finds that the respondents were given an
opportunity to cross-examine the witnesses and the finding recorded
otherwise by the learned Sessions Court may not be correct to that extent,
however, this Court finds that the witnesses have made contradictory
statements during the course of the trial, as observed by the learned
Sessions Court. In so far as the complainant-Om Prakash Chauhan is
concerned, he is not an eye witness.
11. The victim is PW-1, namely, Ranjit Singh, who has deposed
that on 15th of March, 2006, at around 20.00 hours, when he took rum in the
glass and was going to the kitchen to add water, the respondent No.1 hit the
glass and the glass fell down. Sharda Kumar/ respondent No.2, thereafter,
punched him in his face and he could not see for a while. He remained
mum, thereafter, both of them started hitting him. The respondent No. 2/
Shardha Kumar got a stick from the kitchen and started assaulting him and
respondent No.1 threatened him that if he made any noise, he would hit at
his head with the butt of the rifle. The respondent No.1, thereafter, caught
hold of both his arms from back and gagged him with the other hand. He
was taken to the room of a Cook and the door was closed. Thereafter, both
of them started punching him and then only Sepoy Gauri Shankar and
Constable Murari Ji Kumar came on spot and, thereafter, CHM K. C.
Chandel and Hawaldar Mathur Bhai came on spot and they rescued him.
12. PW 2-K. C. Chandel stated that on 15th of March, 2006, at
around 20.10 hours, one Cook Satyanarayan came towards him with an
AK-47 rifle. He asked him about the allottee of the said AK-47 rifle and he
replied, take care of this as well as of the Force. He heard a sound from the
door and they went on spot to the room where the Followers reside. He
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went into the room and found that Ranjeet Singh was sitting on the Charpoy
and Sepoy Sanjay Kumar was held by Gauri Shanker from his arms and
Cook Sharda Kumar was standing there.
13. PW 3-Ajant Urav stated that on 15th of March, 2006, at around
20.15 hours, he was distributing the food and Hawaldar Ranjit Singh came
there. He entered into the kitchen. Cook Shardha Kumar and Sepoy Sanjay
Kumar were there. Sepoy Gagandev Ram and Constable Gauri Shankar
were also there. As soon as Ranjit Singh entered there, the respondent No.2/
Sharda Kumar tried to slap him, but Sepoy Sanjay Kumar held his hand.
Hawaldar Ranjit Singh enquired the reason of assault and then everyone
was removed from the Mess. After some time, in the room of the Followers,
there was some noise. CHM and they went there and found that Sanjay
Kumar was held by Gauri Shankar and Cook Sharda Kumar/ respondent
No.2 was held by Sepoy Murari. Hawaldar Ranjit Singh was sitting on the
Charpoy.
14. PW 4-Gagandev Ram stated that on 15th of March, 2015, at
around 20.00 hours, Hawaldar Ranjit Singh entered the Mess. Cook Sharda
Kumar slapped Ranjit Singh. Sepoy Sanjay Kumar was also there and he
held Sharda Kumar. Sharda Kumar was abusing, but Sepoy Sanjay Kumar
asked him to keep quiet.
15. PW 5-Murari Kumar stated that on 15th of March, 2006, Sepoy
Sanjay Kumar and Sepoy Sanjay Pandey had held Cook Sharda Kumar and
he was weeping. CHM, Hawaldar K. C. Chandel and Company
Commander OP Chauhan were also there. After some time, when they were
having their meals, there was a noise in the Followers Gallery. They went
there and found that Sepoy Sanjay Kumar, while abusing, was saying if
Hawaldar Ranjit Singh was short of money, he could have the same from
them. While, he was trying to persuade him, Cook Sharda Kumar entered
into the room of Followers. He heard some noise and went into the room.
Cook Sharda Kumar had caught hold of the collar of Hawaldar Ranjit Singh
CRAA No. 02 of 2016
on the Charpoy and was abusing him. He pushed Sharda Kumar away and
while he was reprimanding Cook Sharda Kumar, Hawaldar K C Chandel
came on spot.
16. PW 6-Sanjay Kumar Pandey stated that, on 15th of March,
2006, at around 20.15 hours, he went to the Mess for having meals and he
found that Ranjit Singh, Ajant Urav, Sepoy Murari Kumar, Cook Sharda
Kumar and Sepoy Sanjay Kumar were there. Suddenly, Cook Sharda
Kumar punched Ranjit Singh. Sepoy Sanjay Kumar caught hold of Cook
Sharda Kumar.
17. PW 7-Gauri Shankar has stated that he has not seen the
occurrence but when he went inside the room, Sepoy Murari asked him to
hold Sanjay as they were beating Ranjit Singh.
18. From the aforesaid statement of these witnesses examined by
the appellants, it transpires that there are different versions with regard to
the occurrence. One set of evidence is that Hawaldar Ranjit Singh came and
Cook Sharda Kumar tried to slap him, but was stopped by Sepoy Sanjay
Kumar. Another set of evidence is that that Cook Sharda Kumar was
abusing Ranjit Singh and had caught hold of the collar of Hawaldar Ranjit
Singh who was sitting on the Charpoy. There is no evidence on record as to
what happened in the room of the Followers. PW1-Ranjit Singh has
deposed that Sharda Kumar punched him and assaulted him with a stick
from the Kitchen. He has further stated that Sepoy Sanjay Kumar, by
holding both his hands from back side and by gagging him, took him to the
room of a Cook. No other evidence has supported the testimony of the
PW1-Ranjit Singh.
19. The learned Sessions Court has noted the infirmities and
inconsistencies in the Prosecution evidence and by appreciating the same,
has rightly come to the conclusion that the evidence against the respondents
is not convincing and clinching so as to warrant their conviction.
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20. Apart from the above, this Court finds that the learned
Magistrate has taken cognizance of the complaint filed by the Subedar
Major Om Prakash Chauhan on 16th of March, 2006, whereas the
photocopy of the written complaint made by Hawaldar Ranjit Singh is dated
17th of March, 2006, which was annexed with the complaint filed by the
complainant on 16th of March, 2006 and further the photocopy bears the
signatures of the appellant No.4 with date mentioned as 16th of March,
2006. It is not understandable when the complaint, which was addressed to
the Commandant, was signed on 17th of March, 2006 by Hawaldar Ranjit
Singh, then how the same could be signed by the appellant No.4 on 16th of
March, 2006. More so, the perusal of the minutes of the proceedings
recorded by the appellant No.4 on 16th of March, 2006 reveals that it has
been recorded that the complaint was perused and respondents were
summoned for 17th of March, 2006, after recording the statement of the
complainant Om Parkash Chauhan, meaning thereby that his statement was
recorded by the appellant No.4 on 16th of March, 2006, whereas, the fact
remains that the statement of the complainant Om Parkash was recorded on
17th of March, 2006.
21. This Court could have remanded the matter back to the
appellant No.4 for fresh trial because of non-compliance of the provisions
contained in Section 313 of the Criminal Procedure Code and for not
providing legal assistance to the respondents, but taking into consideration
the evidence led by the prosecution and the mode and manner in which the
complaint signed by the victim on 17th of March, 2006 has been signed by
the appellant No.4 on 16th of March, 2006, this Court is of the considered
view that this is not a fit case for remand.
22. This Court deems it proper to observe that, though in the
appeal it has been pleaded by the appellants that the learned Sessions Court
has not entertained the objection of the appellants in respect of the
maintainability of the appeal, but during the course of arguments, no such
issue was raised/ urged by the appellants.
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23. For all what has been discussed hereinabove, this Court is of
the considered view that there is no infirmity in the impugned judgment of
acquittal recorded by the learned Sessions Court. Accordingly, the appeal
fails and shall stand dismissed as such, along with the connected CrlM(s).
Interim direction(s), if any subsisting as on date, shall stand vacated.
24. Record be returned.
(Rajnesh Oswal)
Judge
SRINAGAR
19th May, 2023.
"TAHIR"
i. Whether the Judgment is reportable? No.
