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2013 DIGILAW 353 (UTT)

STATE OF UTTARANCHAL v. ASHOK KUMAR

2013-06-19

U.C.Dhyani

body2013
JUDGMENT Hon’ble U.C. Dhyani, J. (oral) Since all the above criminal cases have arisen out of the same incident, therefore, these are being decided by this common judgment and order for the sake of brevity/convenience. 2. In S.T. No. 14 of 2002, State vs Ramesh Kumar and Hakumat Rai, the accused persons faced the trial for the offences punishable under Section 307 read with Section 34 of IPC and under Section 504 of IPC. After considering the evidence on record, both Ramesh Kumar and Hakumat Rai were exonerated of the charges levelled against them by learned Addl. Sessions Judge / IV FTC, Haridwar, vide order dated 28.09.2004. 3. In S.T. No. 15 of 2002, State vs Ashok Kumar and Krishan Dev, the accused persons faced the trial in respect of offences punishable under Section 323 read with Section 34 of IPC and Section 324 read with Section 34 of IPC. After considering the evidence on record, the learned Addl. Sessions Judge / IV FTC, Haridwar, exonerated the accused persons of the charges levelled against them, vide impugned order dated 28.09.2004. 4. Both the cases, were, infact, cross cases. Both related to police station Pathri, District Haridwar. While the FIR filed against Ramesh Kumar and Hakumat Rai was registered as case crime no. 125 of 1999, the FIR filed against Ashok Kumar and Krishan Dev was registered as case crime no. 125A of 1999. 5. In S.T. No. 14 of 2002, criminal law was set into motion by Krishan Dev. A dispute between Krishan Dev and Ramesh Kumar was going on regarding a piece of land. The dispute was decided by the court. On 28.12.1999, Krishan Dev, his brother Mahesh Chand, brother-in-law Vinod Kumar went to plough their fields. When they were ploughing their fields, according to the FIR filed by Krishan Dev, at 02:00 P.M. (on 28.12.1999), accused persons Ramesh, Hakumat Rai and Loknath came to the field and hurled abuses at Krishan Dev. Ramesh was armed with country made pistol, Hakumat Rai and Loknath were having sticks in their hands. All the accused persons started assaulting Mahesh. Malti exhorted to kill Mahesh. Ramesh fired upon Mahesh with country made pistol with the intention to kill him. Mahesh sustained injuries. Padam Kumar alias Neenu and Vinod intervened and saved the life of Mahesh. Ramesh was armed with country made pistol, Hakumat Rai and Loknath were having sticks in their hands. All the accused persons started assaulting Mahesh. Malti exhorted to kill Mahesh. Ramesh fired upon Mahesh with country made pistol with the intention to kill him. Mahesh sustained injuries. Padam Kumar alias Neenu and Vinod intervened and saved the life of Mahesh. The injured Mahesh was taken to Military Hospital, Roorkee, whereupon, he was referred to the higher center at Dehradun for treatment. Kirshan Dev lodged a report of the incident in police station Pathri on 29.12.1999, at 12:30 P.M. After the investigation, a chargesheet was submitted against accused persons Ramesh and Hakumat Rai in respect of offences punishable under Sections 307 and 504 of IPC. A charge against them was also framed in respect of selfsame offences. PW1 Krishan Dev, PW2 Vimal Kumar, PW3 Mahesh Chand (injured), PW4 Padam Kumar, PW5 S.I. Surendra Pal Verma, PW6 Head Constable Rohtash Singh, PW7 S.I. Ram Avtar and PW8 Neenu Chatterji were examined on behalf of the prosecution. The statements of the accused persons under Section 313 of Cr.P.C. were recorded, in which they said that Krishan Dev and Mahesh attempted to illegally trespass into the agricultural land of Ramesh, which was intervened by Ramesh, Hakumat Rai and Deepak. On this, Krishan Dev and Mahesh assaulted Ramesh and Deepak. Krishan Dev also fired upon Ramesh, which inadvertently hit his brother Mahesh, and on the basis of the same, a false FIR was lodged against Ramesh and Hakumat Rai. Hakumat Rai said that since Ramesh was his brother-in-law therefore, he (Hakumat Rai) was falsely implicated in the case. 7. The trial court considered the evidence rendered by the prosecution witnesses. Learned Addl. Sessions Judge held that no ingredients of Section 504 of IPC were proved. The injuries sustained by Mahesh were not fatal. If Ramesh fired upon somebody, he did the same in exercise of right of private defence of property. Learned Addl. Sessions Judge relied upon various rulings, which have been mentioned by him in the impugned judgment dated 28.09.2004 and also came to the conclusion that the prosecution story was not to be relied upon, in as much as the witnesses in support of the informant were the interested witnesses and the injuries sustained by the other side i.e. accused were not satisfactory explained by the prosecution. Learned trial court has rightly held that the prosecution was unable to prove the case against Ramesh Kumar and Hakumat Rai beyond reasonable doubt and they were rightly given the benefit of doubt by exonerating them. 8. In the cross version (case crime no. 125A of 1999, S.T. No. 14 of 2002) the criminal law was set into motion at the instance of Hakumat Rai. He lodged a complaint alleging the facts contained therein that on 28.12.1999, at 1-1:30 P.M., in the jungle of Subhashgarh, accused persons Ashok Kumar, Ghanshyam, Mahesh and Krishan Dev assaulted upon the informant and his brother-in-law Ramesh Chand when the latter were ploughing their fields by the user of tractor. Informant Ramesh and Deepak stopped the other side form using tractor. The accused persons started assaulting the informant and his cowherds. Ramesh and Deepak sustained injuries in the process. Krishan Dev directed the fire of country made pistol upon Ramesh, which hit Mahesh. The incident was witnessed by Pamma and Vijay. The efforts for reconciliation were on the anvil therefore, the FIR could not be lodged instantaneously. FIR could be lodged on 02.01.2000, at 10:30 P.M. Whereas the incident was alleged to have taken place on 28.12.1999, the FIR was lodged delayed on 02.01.2000, at 10:30 P.M. in police station Pathri. Prosecution examined PW1 Hukumat Rai, PW2 Ramesh (injured), PW3 Pamma, PW4 Deepak, PW5 Dr. O.P. Sharma, PW6 Constable Rohtash Singh, PW7 S.I. S.P. Verma and PW8 S.I. Ram Avtar. When the statements of the accused persons under Section 313 were taken, accused Krishan Dev said that on 28.12.1999, when he alongwith Mahesh were ploughing their filed, then Ramesh fired upon Mahesh. Malti exhorted to kill Mahesh. Hakumat Rai, Loknath also assaulted Mahesh with sticks. Learned Addl. Sessions Judge / IV FTC, Haridwar found inconsistency between the ocular version and medical evidence. Learned court below found that Ramesh and Deepak did not sustain any injury of firearm. Learned court below also held that FIR was delayed and there was no satisfactory explanation of delayed lodging of FIR. It was held that the FIR was an after thought and was lodged in order to nullify the cross version. No offence punishable under Section 324 of IPC was established against the accused persons. Learned court below also held that FIR was delayed and there was no satisfactory explanation of delayed lodging of FIR. It was held that the FIR was an after thought and was lodged in order to nullify the cross version. No offence punishable under Section 324 of IPC was established against the accused persons. Learned trial court has also given the details of other cases pending between the parties, at internal pages 8 and 9 of the impugned judgment. It has held that it cannot be said that the accused persons were the aggressors. Learned trial court also found material contradictions and discrepancies in the statements of the prosecution witnesses and therefore, rightly found that the prosecution case was not proved against the accused persons beyond reasonable doubt. The accused persons were rightly given benefit of doubt while exonerating them of the charges levelled against them. In a nutshell, the prosecution could not prove its case in the cross versions beyond shadow of reasonable doubt. It could not be held, on the basis of evidence on record, as to which party was the aggressor? Although it was admitted and established that the incident took place, in which members of both the sides sustained injuries, but it was not decipherable as to who was the aggressor. The judgments under appeals and revisions were not interferrable. This Court is unable to take a view different from what was taken by the court below. 9. In view of the discussion made in the foregoing paragraphs of this judgment, Government Appeal No. Nil of 2004 (Special Leave to Appeal No. 28 of 2004), Government Appeal No. 129 of 2008 preferred by the State of Uttaranchal, as well as the Criminal Revision No. 210 of 2004 and Criminal Revision No. 211 of 2004 filed by the complainants, lack merit and the same are accordingly dismissed.