Allahabad High Court
Basant Lal Pal vs State Of U.P. on 25 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2527
Author: Ajai Tyagi
Bench: Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 76 Case :- CRIMINAL APPEAL No. - 4320 of 2009 Appellant :- Basant Lal Pal Respondent :- State of U.P. Counsel for Appellant :- Ajatshatru Pandey,Akhilesh Kumar,Anees Ahmad,J.S.P. Singh,R.K.Singh,S.K. Pal,Shiv Nath Singh Counsel for Respondent :- Govt. Advocate Hon'ble Ajai Tyagi, J.
1. This appeal has been preferred against the judgment and order passed by Additional Sessions Judge/Special Judge (Dacoity Affected Area), Lalitpur in Sessions Trial No.03 of 1998 (State vs. Basant Lal and another) under Sections 147, 342/149, 395 IPC, by which accused appellants-Basantlal Pal and Ghanshyam were convicted under Sections 394 and 342 IPC and sentenced for 10 years RI and Rs.10,000/- fine under Section 394 IPC and one year RI under Section 342 IPC. During the pendency of this appeal, Ghanshyam-appellant No.2 died and appeal was abated against him.
2. In this case, initially First Information Report bearing Case Crime No.23/1993 was filed against five accused persons namely, Basantlal Pal, Ghanshyam, Ram Narain, Rajendra Singh and Rameshwar Dayal (all police personnel). Investigating Officer filed final report in court due to not finding any evidence. Final report was accepted by learned Magistrate against which a revision was preferred before learned Sessions Judge. Learned Sessions Judge, allowed the revision and directed the learned Chief Judicial Magistrate to decide the matter afresh. Learned CJM took cognizance. In the meantime, complainant also filed a complaint before Special Judge (Dacoity Affected Area) and the court summoned the above named accused persons for trial.
3. The relevant brief facts of this case are that complainant-Hari Shankar stated in report that he is 'collection-amin' in Tehsil-Tal Behat, District-Lalitpur. Between 23.12.1992 and 25.12.1992, he was in his area for collection of land-revenue and on 25.12.1992, he was returning to his home after collecting Rs.2,839/- as revenue collection, at about 7:00 p.m., he reached before police-outpost Baansi with his peon Nathu Ram. Basantlal Pal, In-charge outpost, constable Ghanshyam and three other constables came out. They started beating him by fist, legs and rule. They robbed the amount of Rs.2,839/- of revenue collection and government record from him and locked him up in lockup. On hue and cry of complainant, one Badri Prasad and already locked up in police-chauki Brij Lal had seen the occurrence. It has also been stated in complaint that at 12:00 mid-night also above police-personnel beaten the complainant and his son Krishna Kant, who was already inside the lockup. Next day, accused persons challaned him under Section 151, 107 and 116 Cr.P.C. and produced before Sub Divisional Magistrate, Talbehat. At the time of challan, accused persons forcefully returned Rs.800/- to the complainant. By the order of S.D.M., medical examination of complainant and his son was conducted and SDM released them on bail.
4. Before making the charge, accused Rameshwar Dayal died and case was abated against him. Charge under Section 395 IPC was framed against rest of the accused persons and later on charge was amended by the learned trial court and it was framed under Sections 147, 342 read with Sections 149 and 395 IPC. After trial, learned court below acquitted the accused persons Rajendra Singh and Ram Narain of all the charges levelled against him and convicted the accused Basantlal Pal and Ghanshyam under Sections 394 and 342 IPC and sentenced them for 10 years RI under Section 394 with fine of Rs.10,000/- and for one year RI under Section 342 IPC.
5. Aggrieved by this judgment, appellants preferred this appeal, but during the pendency of the appeal, appellant No.2-Ghanshyam died and appeal was abated against him. Now sole appellant Basantlal Pal contested this appeal.
6. Heard learned counsel for the appellant, learned AGA for the State and perused the record.
7. Learned counsel for the appellant, first of all, argued that appellant was a public servant, but prosecution did not take prosecution sanction as provided under Section 197 Cr.P.C., which says that when any person who is or was a Judge or a Magistrate or a Public Servant not removable from his office saved by or with the sanction by the government is accused by any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction. Learned counsel for the appellant also referred the judgment in the case of Ayush Kumar and others vs. State of UP, 2019 LawSuit (All) 612, Anil Kumar Jha vs. State of Chattisgarh, 2016 LawSuit (SC)382 in support of his argument.
8. I am not convinced with the aforesaid argument because in this case, no doubt, all the accused persons were police-personnel, but they were charged for the offences of alleged robbery and wrongful confinement, which do not come in discharge of their official duties. Previous sanction of government under Section 197 Cr.P.C. is required, in case when public servant was acting in discharge of his official duty, but making robbery or wrongful confinement does not come under the purview of discharging the official duty. Hence, prosecution sanction as provided under Section 197 Cr.P.C. was not at all required in this matter.
9. Learned counsel for the appellant next submitted that appellant along with other police-personnel was falsely implicated in this case. The real fact of the matter was that there were two real brothers, Raju and Kaushal Kishore, whose buffalo entered the field of complainant and his son Krishna Kant and destroyed some crop there. Complainant and his son got annoyed and complainant's son Krishna Kant got that buffalo admitted in kanji-house, which was situated near the police-chauki-Baansi at 7:00 pm on 25.12.1992. This was the bone of contention between the parties and there was altercation between both the sides at kanji-house. On hearing the noise, police reached the said kanji-house and arrested complainant, his son-Krishna Kant, Raju and Kaushal Kishore and locked them up in the police-chauki and next day they were challaned under Sections 107, 116 and 151 Cr.P.C. as complainant and his son-Krishna Kant one party and Raju and Kaushal Kishore as opposite party and they were produced before Sub Divisional Magistrate-Tal Behat, District-Lalitpur. Complainant-Hari Shankar got annoyed with this action of police and he cooked up the false story of beating him and snatching the amount of revenue collection and government record. He lodged complaint against all the police-personnel of police-outpost Baansi.
10. Learned counsel for the appellant submitted that five witnesses of fact were produced in this case and there are material contradictions in their statements.
11. Learned AGA argued that all the five witnesses of fact supported the prosecution version and Brij Lal (PW1) is an independent witness, he has also supported the prosecution story. Learned AGA further submitted that complainant and his son got injuries also, which are proved by the medical examination report. Hence, prosecution case was proved beyond any reasonable doubt and the learned court below rightly convicted and sentenced the appellant.
12. Learned counsel for the appellant argued that injuries were on the person of Raju and Kaushal Kishore also and prosecution has failed to explain their injuries. Their injuries were proved by Dr.C.P. Nagar (PW4). Learned trial court did not take care to appreciate the evidence correctly in legal frame work. Brijlal (PW1) cannot be said to be independent witness as he was already inside the lockup and he was brought by the police to the lockup after his altercation with some person and that person was not picked up by the police. Due to that reason, he gave false statements against the appellants. Another prosecution witness, namely Badri Prasad Gupta (PW5) is said to see the occurrence from outside the police-outpost while it was not possible to view the happenings of inside from standing outside the police-chauki.
13. First of all, it comes that prosecution case is completely silent on the motive of appellant and other police personnel. It is not at all told by prosecution witnesses and even by complainant in his complaint as to why complainant's son Krishna Kant was already in lockup when police gave beating to complainant and locked him up also. Hari Shanker Goswami (PW2) in his examination-in-chief has stated as under:
"दरोगा जी ने मेरी जेब में रखे 2839 रूपये जेब से निकाल लिये थे तथा मेरा सरकारी रिकार्ड मुंशी घनश्याम ने छीन लिया था तथा मुझे लॉकअप में बंद कर दिया जिसमें मेरे पुत्र कौशल किशोर को पुलिस ने पहले से बन्द कर रखा था।"
14. Krishna Kant s/o Hari Shanker Goswami was examined as PW2. He has also admitted in his statement that when his father was locked up by the police, he was already in lockup, but prosecution is also silent on the point why police caught the complainant outside the police-chauki gave him beating, dragged him inside the chauki, snatched his government amount and government record and locked him up, the reason of this is not at all explained by any of the prosecution witnesses. It has also not been explained by any of the witnesses as to why Raju and Kaushal Kishore were brought to the police-chauki after half an hour of the occurrence with complainant. This is not at all explained anywhere by prosecution.
15. Krishna Kant (PW3), who is son of complainant, has stated in examination-in-chief the exact version of defence. He has admitted that on 25.12.1992 at about 4:30 p.m., he saw that buffalo of Raju destroyed his crop in his field. He caught the buffalo and took it to the kanji-house. On the way, Raju met him and threatened to leave the buffalo or he will get him locked up by asking Sub Inspector of police-chauki. It is also admitted by him that he caught the buffalo of Raju and admitted in kanji-house and took the receipt. It is the version of defence that both the parties were quarreling at kanji-house and for that reason, police arrested them and challaned them. This version of defence is matched with the statement of Krishna Kant (PW3). Statement of Krishna Kant reads as under:
"(3) मै कांजी हाउस से बाहर निकल रहा था करीब दो सवा दो बजे का समय था यह तीनों सिपाही जो हाजिर अदालत हैं चौकी इन्चार्ज S.I. बसन्त लाल पाल व का० रामेश्वर दयाल वहाँ आ गये थे और मुझे पकड़ कर बांसी की पुलिस चौकी के अंदर ले गये थे और मुझे वहाँ लात घूसों व लाठी की ठूसों से मार पीट कर चोट पहुचाई थी तथा कांजी हाउस की रसीद व साढ़े तीन रूपये निकाल लिये थे।"
16. Hence, with the above statement of PW3, it is admitted that police arrested Krishna Kant from the kanji-house.
17. Prosecution witnesses PW2 and PW3 set up the motive in their respective statements that Raju used to to supply milk in police-chauki so the police-personnel were under his influence and due to that reason they locked up them in police-chauki, but this motive, set up by complainant and his son fails miserably because police at that time locked up Raju also along with Kaushal Kishore and challaned under Sections 107, 116 and 151 Cr.P.C. If in any case, motive is set up by the prosecution, it is the burden of prosecution to prove the motive, but in this case, prosecution is completely failed to prove the motive due to arrest of Raju and Kaushal Kishore. Even the complainant-Hari Shanker, concealed the fact that his son Krishna Kant caught the buffalo of Raju, admitted in kanji-house and there was altercation between Krishna Kant and Raju. Complainant did not disclose the above fact either in FIR or complaint, yet he has admitted this fact by saying that:
"भैंसे कांजी हाउस में बन्द करने के सम्बन्ध में कृष्णाकान्त व राजू के बीच विवाद होने वाली बात F.I.R. या परिवाद में या बयान में बताना जरूरी नहीं समझी थी।"
Hence, it is clear that this fact was concealed by the complainant.
18. Further, it was burden on prosecution to prove that complainant had Rs.2839/- as revenue-collection with him and this amount was snatched by police along with government record. But, these facts were also not proved by the prosecution. It is said by prosecution that the government record was snatched by police, therefore, it may be presumed that receipt took was also snatched by the police, but the complainant (PW2) has told the names of persons from whom he made recovery of revenue and provided them receipt. Those persons could be summoned by the prosecution for evidence, but they were not summoned and they were not produced in evidence, who could show that they paid the amount of revenue-collection to the complainant. It is also submitted by complainant that before the occurrence at about 5:30 p.m., Tehsildar-Talbehat met him and checked him, but Tehsildar was also not produced in evidence to corroborate the fact that complainant was having government revenue and record with him before one and a half hour of occurrence. It is also very much necessary to note that as per prosecution version government-peon was with the complainant and when police caught him, at that time also, he was with the complainant. Badri Prasad (PW5) has also stated in his statement that he was present at the place of occurrence and was seeing entire occurrence while standing outside the police-chauki and after the occurrence, he went from there. The peon was very material witness, but he was also not produced by the prosecution. In this regard, learned court below has concluded that he was a class-IV employee and could not dare to depose against police personnel. This conclusion drawn by the court below cannot be accepted. Hence, prosecution has withheld best witnesses and there is no explanation at all why these best witnesses were not produced. Therefore, adverse inference shall be drawn and it will be presumed that if they would have been produced in evidence, they would have deposed against prosecution version. Hence, prosecution failed to prove that at the time of occurrence, complainant was having Rs.2839/- as revenue-collection and government record was with the complainant. Contrary to this, record shows that the receipt took the complainant was lost somewhere and it was not snatched by police-personnel because paper No.303(kha) is a press release issued by Additional District Magistrate (Finance & Revenue) Lalitpur, wherein it is stated that the receipt-book, which was with collection-amin Hari Shanker (complainant) had lost somewhere. This press release has also mentioned the numbers of used and unused receipts and it is also directed in this release that if somebody finds it, it should be returned to him or Tehsildar-Talbehat and unused receipts were declared unauthorized. Although, this document is not exhibited, but it is from government record and cannot be overlooked. Moreover, it was not contradicted by the prosecution.
19. It is admitted fact that on the next day of occurrence, police produced both the sides before concerned SDM and Rs.800/- were returned to the complainant by the police, which according to the police was recovered from his personal search at the place of occurrence. The complainant has stated that police forcefully returned the Rs.800/- and did not return full amount of Rs.2,839/-. Hence, learned trial court committed mistake by not accepting amount of Rs.800/- as amount of his personal search.
20. Prosecution version is also doubtful keeping in view the injuries of PW2 and PW3. Prosecution has set up the case that police gave very harsh beating to the complainant-Hari Shanker (PW2) outside the police-chauki and dragged him inside and locked him up and in the mid-night at 12 o'clock also, police gave beating to complainant and his son (PW3). Badri Prasad (PW5) also stated in his statement that police gave them beating with lathi. The relevant extracts from the statement of PW5 are quoted as under:
"दरोगा जी हरी शंकर को घसीटते हुये लात घूसे मारते हुये चौकी के अंदर ले गये थे। उन्होंने जूते पहने हुये पैर से पन्द्रह बीस ढोड़े हरी शंकर को मारी थी। घनश्याम मुंशी ने लाठी के दस पन्द्रह प्रहार हरी शंकर पर किये थे हरी शंकर जिससे जमीन पर गिर गये थे।"
21. Hence, as per the above statement of Badri Prasad, police gave beating to complainant and his son by lathi so harshly, therefore, he fell down on ground and complainant was hit by lathi by 10-15 times. With regard to above statement of PW2 and PW3 regarding beating, if injuries of PW2 and PW3 are considered, these injuries do not support the prosecution version as stated by PW2 and PW3. The injuries of the complainant-Hari Shanker were examined by Dr.Chandra Prakash Nagar (PW4) and he has mentioned only three injuries as under:
"(i) नीलगू निशान 2 cm x 1 cm जो कि वाये तरफ पीछे की ओर था जो 11 cm वायें पकावे के हड्डी के नीचे की तरफ था।
(ii) खरोंच का निशान 3 cm x 0.5 cm जो कि दाहिने घुटने के पिछले वाले भाग में था।
(iii) वायें कान के ऊपरी भाग पर चोट से उत्पन्न सूजन थी।"
22. These injuries were of simple in nature and it was just one contusion and one abrasion and one swelling injury likewise injuries of complainant's son Krishna Kant were as under:
"(i) दर्द युक्त सूचन वायें कन्धे के जोड़ से 4 cm नीचे।
(ii) नीलगू निशान 8.5 cm x 1.5 cm जो कि पीछे की ओर वाये घुटने के तीन से०मी० नीचे की तरफ "
23. Hence, there was only one swelling and one contusion to Krishna Kant. No other injury was found on the person of complainant and his son. So above injuries do not co-relate with the version of PW1, PW3 as well as PW2 and PW5, who say that police gave very harsh and immense beating to them at the time of their arrest and also at 12 o'clock in the mid-night by using fist, punch, shoes, lathi and danda. The complainant (PW2) has also stated that he got bleeding also, but there was no sign of any bleeding in his medical report. Hence, injuries of complainant and his son are not at all co-related with the version of prosecution regarding beating. It also falsifies the story of prosecution.
24. Learned AGA has argued that Brij Lal (PW1) was independent witness and he has supported the prosecution case, but in my view, Brij Lal cannot be said to be independent witness as he has stated in his statement that on the date of the said occurrence, police has put him in the lockup at about 11-12 in the noon because he had marpeet with Bhai Khan and police locked him up only and left Bhai Khan, therefore, he cannot be accepted as independent witeness.
25. The entire findings of learned trial court seems to be based on assumption and not in consonance with the evidence on record. It transpires that on the same day of occurrence, there was some altercation and quarrel between the complainant-Hari Shanker, his son-Krishna Kant as one party and Raju, Kaushal Kishore as other party because Krishna Kant got the buffalo of Raju admitted in kanji-house. The certified copy of receipt of buffalo of admitting it in kanji-house (Ex.kha1) is produced as Ex.kha1 and it shows the time of admission of buffalo as 7:00 p.m. by Krishna Kant. Krishna Kant (PW3) has admitted in his examination-in-chief that police caught him at kanji-house and next day, police produced both the sides before Sub Divisional Magistrate-Talbehat for breaching the peace.
26. As far as the offence under Section 342 IPC for wrongful confinement is concerned, the same is not made out as it is admitted fact that on the very next day of the said occurrence, police produced both the parties before SDM by challaning them under Sections 107, 116 and 151 Cr.P.C. Concerned SDM also issued the notice under Section 111 Cr.P.C. and after proceedings notice was dropped, but it is clear that judicial consideration took place and if after judicial consideration notice was dropped by SDM then it cannot be said that police wrongfully confined the complainant and his son at police-chauki. If trial court was of the opinion that complainant and his son were wrongfully locked up by police even then it was on record before learned trial court that they were challaned under Sections 107, 116 and 151 Cr.P.C. and, accordingly, judicial proceedings took place against them and they cannot be said to be confined wrongfully by the police.
27. Hence, with the above discussion, this Court reaches the conclusion that prosecution witnesses were not at all reliable witnesses as discussed earlier. Material witness Tehsildar-Talbehat and alleged eye-witness Nathu Ram (peon) were withheld by the prosecution and they were not produced before the learned trial court. I am of the definite view that learned trial court failed to appreciate the evidence on record correctly and judiciously and based its findings and conclusions only on the basis of assumptions and presumptions. Hence, findings are perverse. Therefore, prosecution has miserably failed to prove its case beyond reasonable doubt and by incorrect appreciation of evidence. Learned trial court wrongly convicted and sentenced the appellant. Hence, the conviction and sentence of appellant cannot be sustained and the appeal is liable to be allowed.
28. Accordingly, this appeal is allowed.
29. The conviction and sentence of appellant-Basant Lal Pal under Sections 394 & 342 IPC is hereby set aside and appellant is acquitted with all the charges levelled against him.
30. Appellant is on bail. His personal bond is cancelled and sureties are discharged.
Order Date :- 25.8.2021 LN Tripathi (Ajai Tyagi, J.)