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2024 DIGILAW 1391 (RAJ)

Mahesh S/o Ramcharan v. State of Rajasthan

2024-10-09

ASHOK KUMAR JAIN

body2024
ORDER : 1. Instant revision petition is preferred by petitioner-complainant, aggrieved from judgment dated 30.08.2005 passed by Additional District and Sessions Judge (Fast Track) No. 3, Bharatpur wherein learned Sessions Court has acquitted respondent Nos. 2 to 6 from charge under Section 147, 323, 323/149 and 447 of IPC and Section 145/147 of Indian Railway Act, 1989. 2. We have considered the report submitted by learned Public Prosecutor received from SHO, P.S. Badi, District Dholpur wherein, it has been intimated that respondent No. 5 Mahtab S/o Rafiuddin @ Gafoor has expired. Considering the report, the proceedings against respondent No. 5 Mahtab stand abated and hence same is closed due to abatement. 3. Learned counsel for petitioner submits that the complainant has filed FIR for the incident and in his deposition, he has corroborated the incident. He further submits that the incident was further corroborated by other witnesses injured (eye-witness) produced by the prosecution in support of PW-3 complainant. He further submits that the trial Court while considering the evidence of prosecution has failed to consider that the injury report of Mahesh Chand, Mukesh Kumar, Ram Niwas and Gulkandi were corroborated by PW-8 Dr. Vishwanath Singh who examined these injured on date of incident. He further submits that these injuries and supporting evidence are sufficient to mark the role of respondents but the trial Court without considering the above has discarded the material evidence available on record. At last, he submitted that the evidence of injured was sufficient to prove the act of respondent Nos. 2 to 4 and 6 before the trial Court and there is no contradiction or discrepancy which can cast a doubt on deposition of prosecution witnesses. He submits that the trial Court has committed illegality and perversity, hence, the complainant was constrained to file the revision petition to challenge the order of acquittal. 4. Aforesaid contentions were opposed by learned Senior Advocate appearing on behalf of respondent Nos. 2 to 4 and 6 and submitted that the instant revision is preferred aggrieved from order of acquittal and the trial Court has considered the evidence in detail and after considering the evidence has passed reasoned order in favour of respondents and there is no perversity or illegality to warrant interference by this Hon’ble Court. 5. 2 to 4 and 6 and submitted that the instant revision is preferred aggrieved from order of acquittal and the trial Court has considered the evidence in detail and after considering the evidence has passed reasoned order in favour of respondents and there is no perversity or illegality to warrant interference by this Hon’ble Court. 5. We have considered the submissions of learned counsel for petitioner-complainant, learned Senior Advocate appearing for respondents, learned Public Prosecutor and perused the record. 6. On 08.06.2004, a written report Ex. P1 was filed before GRP outpost Dholpur by PW-3 Mahesh Chand and on basis of this report, FIR No. 58/2004 was registered at P.S. GRP, Bharatpur. After investigation, a charge-sheet under Section 323, 147, 323/149, 447 of IPC and Section 145 of Indian Railways Act was filed against respondent Nos. 2 to 6. 7. Since this matter was registered as cross case of FIR No. 57/2004 therefore, the same is committed for trial to the Sessions Court and ultimately it was transferred to learned Additional Sessions Judge (Fast Track Court). 8. On 19.03.2005, charges under Section 147, 323, 323/149 and 447 of IPC and Section 145/147 of Indian Railways Act were framed against the respondent Nos. 2 to 6. The prosecution has examined 11 witnesses and exhibited 8 documents. After conclusion of prosecution evidence, the respondents-accused were examined under Section 313 of Cr.P.C. wherein, they opted to file defence evidence and in defence they examined DW-1 Abdul Gaffar. In defence, total 14 documents were exhibited. Ultimately, an order of acquittal was recorded by learned trial Court in favour of respondent Nos. 2 to 6. 9. The complainant-injured was examined as PW-3 and he was working as shopkeeper on shop of Abdul Gaffar. According to PW-3, the shop was closed on 25.02.2004 due to non-payment of license fee but on 07.06.2004 when he went to re-open the shop after intimation of deposit of license fee then, all of sudden the respondents armed with stick and other deadly weapons attacked the complainant, as a result brother of PW-3 Mukesh Kumar, Gulkandi and Ramniwas have sustained injuries. A report was registered on the next date. The injured were examined by PW-8 on 08.06.2004 and PW-8 has deposed that all injuries were simple in nature, who prepared injury reports Exhibit P4 to P7. 10. A report was registered on the next date. The injured were examined by PW-8 on 08.06.2004 and PW-8 has deposed that all injuries were simple in nature, who prepared injury reports Exhibit P4 to P7. 10. Herein the defence produced Exhibit D-1 to D-14, the documents relating to cross case FIR No. 57/2004 wherein, a charge-sheet was filed by GRP, Bharatpur against Mahesh Chand, Ramniwas, Gulkandi and Mukesh Kumar under Section 307, 325, 323 and 34 IPC and Section 145 of Indian Railways Act. On perusal of Exhibit D-8, the statement of injured Mohd. Iqbal on the basis of the statement FIR No. 57/2004 was registered by Police and clearly reflects that on 07.06.2004, he was not in a condition to record his statement which means that the statement was recorded after delay on 08.06.2004. The deposition of witnesses in the instant case clearly reflects that the instant FIR was registered only after registration of FIR in cross case. A perusal of statement of DW-1 and also the cross-examination of PW-3 Mahesh Chand, PW-4 Mukesh Kumar, PW-5 Ramniwas and PW-6 Gulkandi shows that these persons are not allottees of Railways rather they are working at the shop allotted to Abdul Gaffar but the statement further made it clear that Abdul Gaffar has never issued any receipt of rent to them. This fact further verified from statement of PW-2 Shri Ram Saluja, Railway Engineer, who also admitted that Mahesh Chand, Mukesh Kumar, Ramniwas and Gulkandi are not allottees of the shop at railway premises. The examination in chief of PW-2 also made it clear that Abdul Gaffar has also made a request to Railways that Mukesh Kumar and Gulkandi are trying to encroach upon the shop allotted to Abdul Gaffar. Herein the Railway has not supported the case of injured complainant and the premises on which there was a dispute belongs to Railways. 11. A perusal of cross-examination of PW-3, PW4, PW-5 and PW-6 clearly shows that these injured were trying either to forcibly take possession or protect their possession despite having no authorities of law. None of other persons examined by prosecution including PW-7 Roop Singh, PW-9 Ramveer and PW-10 Mohan Singh have not supported the case of injured or complainant. 11. A perusal of cross-examination of PW-3, PW4, PW-5 and PW-6 clearly shows that these injured were trying either to forcibly take possession or protect their possession despite having no authorities of law. None of other persons examined by prosecution including PW-7 Roop Singh, PW-9 Ramveer and PW-10 Mohan Singh have not supported the case of injured or complainant. Admission of PW-11 Ashok Kumar who is Investigating Officer in the case also makes it clear that there was a cross case and it was a case of free fight wherein, both the parties have hurled stones at each other. There is delay in reporting matter to police and present case was registered as a counter-blast to cross case. 12. Having considered the material placed on record the trial Court has assigned reasons before drawing the conclusion and it is not possible for us to substitute upon opinion drawn by learned trial Court on the basis of material placed on record. Hence, there is no case for interference and we are not in agreement with the contention of learned counsel for the petitioner that the trial court has committed the illegality or perversity. 13. Hon'ble Supreme Court in the cases of Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415 , Nagabhushan v. State of Karnataka, 2021 (5) SCC 222 and Rajesh Prasad v. State of Bihar & Anr. (2022) 3 SCC 407, specifically observed that in case of consideration of an appeal from order of acquittal, there is double presumption in favour of accused and these presumptions are - firstly, presumption of innocence under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless proved guilty by a competent court of law. Secondly, the accused having secured an order of acquittal, the presumption of innocence is certainly not weakened, but reinforced, reaffirmed and strengthend by the Trial Court. 14. Hon'ble Supreme Court in cases of Atley v. State of Uttar Pradesh, AIR 1955 SC 807 ; Sanwat Singh & Others v. State of Rajasthan, 1961 AIR SC 715; M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 ; Shivaji Sahabrao Bobade & Anr. 14. Hon'ble Supreme Court in cases of Atley v. State of Uttar Pradesh, AIR 1955 SC 807 ; Sanwat Singh & Others v. State of Rajasthan, 1961 AIR SC 715; M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 ; Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 ; Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 ; Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110 and Nepal Singh v. State of Haryana, (2009) 12 SCC 351 , have considered the role of Appellate Court in considering situation arising out of order of acquittal and settled the proposition that the Appellate Court has full power to review, re-appreciate and re-consider the evidence upon which the order of acquittal is founded, however, Appellate Court is duty bound to keep in mind to that there is double presumption in favour of accused. 15. The revision petition sans merit, hence, liable to be dismissed. 16. In view of aforesaid, the revision petition is hereby dismissed. 17. Pending applications, if any, shall stand disposed of.