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2013 DIGILAW 4 (CHH)

GYANBAHADUR v. STATE OF M. P.

2013-01-02

PRITINKER DIWAKER

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 01.01.1997 passed by Additional Sessions Judge Durg in Sessions Trial No. 15/1991 convicting the accused/ appellant for the offence punishable under Sections 186 and 332 IPC and sentencing him to undergo SI for three months with fine of Rs. 500 u/s 450 and RI for seven years with fine of Rs. 200/- u/s 186 and SI for two years with fine of Rs. 500/- u/s 332 IPC, plus default stipulations. 2. Case of the prosecution in brief is that on 31.3.1990 FIR Ex. P-1 was lodged by constable Hem Kumar (PW-3) alleging that on that day he along with other staff members was assigned government duty between Dongargarh and Raipur in train known as Chhattisgarh Express, on the occasion of Mela. It is alleged that near Charoda cabin-H, the train was stopped by pulling the chain and after getting down he saw the accused/ appellant cutting hotch pipe of bogie No. 7293 and 5698. When he and other police people asked the accused/appellant not to do so, in reply he said that on the previous night some police people had assaulted the railway employees and therefore he would not allow the train to move. Thereafter, the accused/appellant called his colleagues who were also involved in stopping the train informed them that the complainant was not permitting him to cut the hotch pipe. Immediately thereafter all the accused persons including the accused/appellant started pelting stones at the complainant and the other police people as a result of which he went inside a bogie to save himself but accused/appellant along with two-three other persons also got into the bogie, started beating and pulled him down. It is alleged that somehow he was taken by the railway employees to guard's coach but even then the accused/appellant along with his companions tried to follow him, abused and threatened of his life. Based on this FIR, offence under Sections 353, 294, 506-II, 186 and 323 IPC and 108 of the Railways Act was registered against the accused/appellant and some unknown persons. Hem Kumar (PW-3) was medically examined on 31.3.1990 vide Ex. P-3 by Dr. Kiran Agrawal (PW-9) and two simple injuries were found on his body. After investigation, charge sheet was filed on 25.8.1990 under the same Sections. Hem Kumar (PW-3) was medically examined on 31.3.1990 vide Ex. P-3 by Dr. Kiran Agrawal (PW-9) and two simple injuries were found on his body. After investigation, charge sheet was filed on 25.8.1990 under the same Sections. However, the Court below framed charge under Sections 128 of the Railways Act and sections 186, 332 and 506-II IPC. 3. In support of its case the prosecution has examined 10 witnesses. Statements of the accused persons including the appellant were also recorded under Section 313 of the Code of Criminal Procedure in which they pleaded their innocence and false implication in the case. 4. After hearing the parties, the Court below acquitted the other accused persons of the charges levelled against them but has convicted and sentenced the accused/appellant as mentioned in paragraph No. 1 of the judgment. 5. Counsel for the accused/appellant submits that identity of the accused/appellant has not been established by the prosecution in accordance with law and therefore he too should have been acquitted with other accused persons. He submits that the appellant was working in railways and as there were two other persons in his name Bahadur, benefit of doubt should have been given to him. He further submits that once on the same set of evidence other accused persons have been acquitted by the Court below, conviction of the accused/appellant is bad. He further submits that the statement of defence witnesses ought to have been believed by the Court below. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that in the FIR name of the accused/appellant is mentioned as Bahadur and normally the persons belonging to Nepal are called like that. He further submits that accused/appellant has been duly identified by the complainant in the Court and that apart S.L. Shukla (PW-2) has also supported the case of the prosecution. According to the State counsel, somehow the complainant saved his life otherwise there was every possibility of his being killed by the accused persons. He further submits that case of the acquitted accused persons is different because they were not named in the FIR nor were they identified but in the case of the accused/appellant he has been duly identified and therefore his conviction is just and proper. State counsel further submits that the Court below has already taken a lenient view while convicting and sentencing the accused/ appellant. State counsel further submits that the Court below has already taken a lenient view while convicting and sentencing the accused/ appellant. 7. Heard counsel for the parties and perused the material available on record. 8. Complainant namely Hem Kumar Garhtiya (PW-3) has stated that he was working in Railway Police and with his posting at Raipur and knew the accused/appellant. At the time of incident he is stated to have been deputed in special squad. On the date of incident, near Charoda when the train had stopped on account of chain pulling, he along with other constables got down and saw the accused/appellant who was present in the Court cutting the hotch pipe of bogie No. 7293 and 5698 and when he asked him as to why he was cutting the hotch pipe, he (accused) abused him and gave a punch on his mouth. At the same time, his colleagues namely Bhagwat and Bihari came there and when they tried to take the accused/appellant inside the train, he called other persons to rescue him. Meanwhile, 50-60 more persons came there and indulged in stone pelting. Thereafter, according to this witness, police party also reached there and made him sit in the guard room but the accused persons, four in number, also boarded the train again and pulled him down. This witness has further stated that the accused persons had also threatened to throw him on the railway track and then make the train move by setting right the hotch pipe. This witness is stated to have sustained injury below eye, near ear and face and he was also given first aid. He has further stated that on account of stone pelting glass of the train was broken and the passengers had also sustained injury and that about an hour thereafter the train moved again. According to him, after reaching Raipur he lodged the report in GRP police station and then he was medically examined and x-ray taken. He has further stated that at the relevant time he was not in police uniform because IG had issued a direction that half of the police people would be in uniform and remaining half without uniform. He has clarified that prior to the incident he knew all other accused persons by face but not by name and when the accused/appellant called them by name, he also came know about the same. He has clarified that prior to the incident he knew all other accused persons by face but not by name and when the accused/appellant called them by name, he also came know about the same. He has stated that on account of his being beaten brutally, his mental condition was not good and therefore he could not mention the name of other accused persons while lodging the report., According to this witness, while lodging the report he had mentioned the name of the accused/appellant as Bahadur though he knew his full name as Gyan Bahadur. He has further stated that if in the case diary statement Ex. D-2 name of the accused/appellant is shown as Ram Bahadur, he cannot tell the reason for that because it is the mistake of the person who recorded it. He has further clarified that the name of the accused/appellant is Gyan Bahadur and not Ram Bahadur. This witness has shown his ignorance about the fact that at BMY Charoda other Bahadur or Nepali was also there. Ram Kumar Manjre (PW-1) - Head Constable No. 337 has stated that at the time of incident he was on duty along with the complainant. Supporting the statement of the complainant, this witness has stated that information was received that the train known as Chhattisgarh Express would be stopped and therefore he along with the complainant and other staff members proceeded to Raipur. According to him, the train was stopped and he saw 50-60 persons making slogans against the police. At that time, according to this witness, the complainant was in injured condition and he informed him that when he stopped Bahadur from cutting the hotch pipe, he was beaten by him. Thereafter, the matter was reported to the police. This witness has also shown his ignorance as to the number of persons in the name of Bahadur in BMY Charoda. S.L. Shukla (PW-2) who at the relevant time was working as Assistant Sub Inspector has made almost similar statement as that of Ram Kumar Manjre (PW-1). He has stated that he was informed by the complainant that it is the accused/ appellant Gyan Bahadur who had beaten him and cut the hotch pipe of the train. At the time when the accused/appellant was cutting hotch pipe, 10-20 persons had gathered there and that one of the stones pelted had hit him also. He has stated that he was informed by the complainant that it is the accused/ appellant Gyan Bahadur who had beaten him and cut the hotch pipe of the train. At the time when the accused/appellant was cutting hotch pipe, 10-20 persons had gathered there and that one of the stones pelted had hit him also. Bihari Ram Netam (PW-4) has also supported the case of the prosecution. He has stated that when the train was stopped near Charoda, he saw one person cutting hotch pipe. Then according to him, complainant got down the train and asked the accused/appellant as to why he was cutting the hotch pipe on which he gave a fist blow on his face but he and one Bhagwant rescued him. This witness has further stated that when he along with other staff members was trying to take the accused/appellant inside the train, he called his colleagues. He has stated that accused/appellant present in the Court is the same Bahadur who was involved in the incident. Then this witness pointed his finger at the accused/ appellant. On hearing the shouts of the complainant, other accused persons also assaulted him (complainant), abused filthily and started pelting stones as a result of which glass of the train was broken. He has stated that to save the complainant he was taken in the guard room and that he sustained injury in the incident. Bhagwat Prasad (PW-5) has made the statement like Bihari Ram Netam (PW-4) and he too duly identified the accused/appellant who was cutting the hotch pipe and assaulting the complainant. Satyendra Nath Dubey (PW-6) has also supported the case of the prosecution. Ram Rao (PW-7) is the witness who did part of the investigation. Kalyan Chandra Tiwari (PW-8) is the constable who was on duty along with the complainant and he too has supported the case of the prosecution. Dr. Kiran Agrawal (PW-9) is the witness who medically examined the complainant and found two injuries on his face. G. Choudhary (PW-10) is the investigating officer who has duly supported the case of the prosecution. He has clarified that test identification parade was not conducted by him as the appellant was named in the FIR. Dr. Kiran Agrawal (PW-9) is the witness who medically examined the complainant and found two injuries on his face. G. Choudhary (PW-10) is the investigating officer who has duly supported the case of the prosecution. He has clarified that test identification parade was not conducted by him as the appellant was named in the FIR. Hira Bahadur (DW-1) who was working as porter in the Railways has stated that as many as 25 Nepalis were working in the yard and two of them were in the name of Gyan Bahadur. According to this witness, at the time of incident other Bahadur was cutting the hotch pipe and the accused/appellant was not there. J.K. Sharma (DW-2) has stated that in the yard 20-25 Nepalis were working. He has further stated that mostly the Nepalis were known as Bahadur. R.N. Pandey (DW-3) has stated like Hira Bahadur (DW-1) and J.K. Sharma (DW-2). G.B. Lama (DW-4) has stated that two Nepalis were working in his department and word "Bahadur" is added to almost all the Nepalis. 9. Minute examination of the evidence of the witness and other material available on record shows that on the date of incident Chhattisgarh Express train was stopped by the accused/appellant and other accused persons near Charoda and it is the accused/appellant who was involved in cutting the hotch pipe. Though some discrepancies are there in the statements of the witnesses, the complainant (PW-3), Bihari Ram Netam (PW-4) and Bhagwat Prasad (PW5) have categorically stated that it is the accused/appellant who cut the hotch pipe and assaulted the complainant. According to them, the accused/appellant and other accused persons had gone to the extent of pulling down the complainant from the train and when he was taken to the guard room, they were shouting at him threatening to throw him on the railway track. Thus it is apparent that the prosecution has proved its case beyond reasonable doubt. Statement of the defence witnesses is of no help to the accused/appellant because in the Court the accused/appellant has been duly identified by the complainant and other witnesses. 10. Thus the conviction of the accused/appellant recorded by the Court below is just and proper and needs no interference by this Court. Accordingly, it is maintained. 11. Statement of the defence witnesses is of no help to the accused/appellant because in the Court the accused/appellant has been duly identified by the complainant and other witnesses. 10. Thus the conviction of the accused/appellant recorded by the Court below is just and proper and needs no interference by this Court. Accordingly, it is maintained. 11. As regards sentence, keeping in view the fact that the incident had taken place in the year 1992 and that by now the accused/appellant must have crossed 50 years of age, this Court is of the opinion that the interest of justice would be served if it is reduced to three months from that of two years as imposed by the Court below. Order accordingly. However, the appellant is required to pay fine of Rs. 5000/- in addition to what has been imposed by the Court below. The benefit of this order will be available to the accused/ appellant only after he deposits the fine amount in the Court below. 12. The appellant is on bail. His bail bonds stand cancelled. Let he be sent to jail forthwith to serve out remaining part of the sentence. Appeal Dismissed.