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2019 DIGILAW 378 (ALL)

Devendra v. State of U. P.

2019-02-13

SURESH KUMAR GUPTA

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JUDGMENT : Suresh Kumar Gupta, J. 1. This criminal appeal has been preferred against the judgment and order dated 08.06.2005, passed Sri S.B. Singh, 1st Additional District and Sessions Judge, Baghpat, convicting the appellant under Section 152, Railways Act, Police Station Khekra, District Baghpat and sentencing him for 5 years' rigorous imprisonment. 2. Brief facts of this case is that on 23.05.2001, police party comprising of ASI Malkha Singh, ASI Mahendra Singh Malik along with H.C. Pawan Singh Malik, constable Tejpal Singh and Vakeel Ahmad with Government vehicle arrived at the railway station then he saw that Shamli-Delhi Express train was standing at the Platform Khekra Railway Station and several persons were pelting stones on the said train and hosepipe of that train was cut-off by these miscreants. Due to stone pelting, several persons were injured and the milk of the milkmen was spoiled. At the spot, at about 8.00 a.m., police party arrested appellant-Devendra, Prakash and Surendra, all resident of village Khekra. Accused Laxman, Bhopal, Satish, Madan, Vinod, Sattu, Vijendra, Jitendra alias Kuku, Surendra and Ashok were flew away from the place of occurrence. Several persons were injured and police party told them to examine themselves then they refused to do so. Arrested persons were brought to the police station and named FIR was lodged against them under Section 152 of the Railways Act at Police Station Khekra, District Baghpat at 12.30 p.m. 3. After lodging of the First Information Report, Investigating Officer reached to the spot and started investigation and recorded the statement of the witnesses and prepared the map of occurrence and after completing the formalities, charge sheet against the appellant as well as 10 others was submitted on 01.07.2001 (Ext. Ka-3). After committal of the case before the Sessions Court, Sessions Judge framed charge under Section 152 of the Railways Act against all the accused persons. Accused stated that they are falsely implicated in this case and pleaded that they are not guilty. 4. To prove the charge against the appellant, the prosecution examined 3 witnesses, P.W. 1 Constable Vakeel Ahmad, P.W. 2 SI Pawan Singh Malik, P.W. 3 SI Malkhan Singh, who is also the Tahreer Lekhak, proved the FIR as Ext. Ka-1., P.W. 4 ASI Navratu Singh Kaushik, who prepared the map at the place of occurrence as Ext. Ka-2 and charge sheet as Ext. Ka-3. Ka-1., P.W. 4 ASI Navratu Singh Kaushik, who prepared the map at the place of occurrence as Ext. Ka-2 and charge sheet as Ext. Ka-3. P.W-5 constable clerk Yashvir Rana proved the Chik FIR as Ext. Ka-4 and G.D. Rapat No. 21 at 12.30 as Ext. Ka-5 at 12:30. On conclusion of the evidence of the prosecution, the learned Sessions Judge examined all the appellants under Section 313 Cr.P.C. in which all the accused stated that they are falsely implicated in this case and pleaded that they are not guilty. 5. After perusing the evidence, learned Sessions Judge convicted the appellant under Section 152 Railways Act. It is pertinent to mention here that accused Prakash and Surendra recorded their confessional statement and then learned Sessions Judge convicted them on 05.02.2003 on the basis of confession for 1-1/2 years imprisonment. After conclusion of the trial, appellant was convicted and sentenced for five years imprisonment and being aggrieved by this order dated 08.06.2005, the instant appeal has been filed by the appellant. 6. I have heard Sri D.K. Srivastava, learned counsel for appellant, learned AGA for the State and perused the record. 7. Learned counsel for the appellant contended that in this case Railway Memo was not presented by the prosecution so this established fact was not proved by the prosecution that Railway Authority submitted the Memo in Police Station Khekra. On perusing the statement of P.W. 1 who is unable to state that he does not know the person who brought the memo at the Police Station. He is also unable to explain the time of Memo in all the cross-examination. He is unable to explain the name and number of the Express Train. 8. First of all, I have to see Section 152 of the Railways Act, 1989, which is as under:- "Maliciously hurting or attempting to hurt persons travelling by railway.? He is also unable to explain the time of Memo in all the cross-examination. He is unable to explain the name and number of the Express Train. 8. First of all, I have to see Section 152 of the Railways Act, 1989, which is as under:- "Maliciously hurting or attempting to hurt persons travelling by railway.? If any person unlawfully throws or causes to fall or strike at, against, into or upon any rolling stock forming part of a train, any wood, stone or other matter or thing with intent, or with knowledge that he is likely to endanger the safety of any person being in or upon such rolling stock or in or upon any other rolling stock forming part of the same train, he shall be punishable with imprisonment for life, or with imprisonment for a term which may extend to ten years." 9. One of the argument of the appellant is that evidence produced by the prosecution witnesses that 20 to 25% passengers of the train were injured in this incident. Many passengers inside the train was grievously injured due to pelting of the stone but none of them is medically examined by the police party. 10. On perusing the statement, it appears that prosecution has failed to establish this fact that in the stone pelting, who was injured. At least, name and statement of the injured should be recorded by the police party but police party failed to do so. Although police party in their statement stated that the passengers of express train refused to examine themselves but at least it is the duty of the police party to establish this fact that the how many passengers were injured. Name of the passengers, who were injured in the incident should be brought on record but prosecution has failed to establish this fact which created serious doubt so the prosecution failed to prove necessary ingredients of Section 152 of the Railway Act. 11. This incident was occurred on the platform of Gothra Railway Station but police party does not enquire the reason behind this stone pelting from the Railway Authorities such as station master and staff of the railways. What is the motive behind this incident is not brought on record. One thing is also important in this case that what damages are caused to the railway property is also not assessed and produced by the prosecution. What is the motive behind this incident is not brought on record. One thing is also important in this case that what damages are caused to the railway property is also not assessed and produced by the prosecution. No public witness was examined by the prosecution. Important piece of evidence has been left by the prosecution. Genesis of commission of the crime is not disclosed by the prosecution, so, in these circumstances, serious doubt arises regarding the prosecution case. 12. One of the argument of learned counsel for the appellant is that the appellant was arrested from his house. His house is adjacent to the Railway Line. So, in this appeal the possibility for false implication cannot be ruled out. 13. It is argued by the learned counsel for the appellant that the appellant was not indulged in the pelting of stone. No incriminating article was recovered in his possession. Police party arrested him due to mala fide intention, hence, in this case, prosecution has failed to establish his case beyond reasonable doubt. 14. It is a well settled principle of criminal law that an accused can be convicted only when on the evidence produced the court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. Neither conviction can be based on mere possibilities nor it is permissible for the court to speculate as to what had really happened. If both the parties come to court with untrue facts and conceal the real truth they have themselves to blame and they cannot expect the Court to arrive at any definite conclusion on the unreliable evidence produced either for or against either of the parties. In such a case the Court will certainly attempt to separate the grain from the chaff but only if it is possible to do so. In certain circumstances it may be found to be an impossible task. That is particularly so when the evidence of both the parties is thoroughly unreliable and cannot be accepted even in part with safety. In such a case it is not open to the Court to make out a third case, which is different from the case set up by both the parties. That is particularly so when the evidence of both the parties is thoroughly unreliable and cannot be accepted even in part with safety. In such a case it is not open to the Court to make out a third case, which is different from the case set up by both the parties. In such a case the Court can only say that the matter is doubtful in the extreme and it is not possible to arrive at any conclusion one way or the other. The result of such a finding may be that all the persons who stand as accused in the case may have to be given the benefit of doubt, which cannot be helped. The defective investigation and the conduct of the parties themselves are really responsible for that regrettable result. In such a case there can be no question of recording any conviction. This is what happened in this case. So, the appellant is liable to be acquitted. 15. The appeal is, accordingly, allowed. The order of conviction is set aside. The appellant is acquitted. 16. Copy of this order be communicated to the lower court for necessary compliance.