Chattisgarh High Court
Raisingh Marko vs State Of Chhattisgarh on 25 August, 2022
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.463 of 2010
Raisingh Marko, Aged About 36 Years, S/o Sumer Singh Marko,
R/o Village- Patarkoni, P.S. Gaurela, District- Bilaspur, C.G.
---- Applicant
Versus
State Of Chhattisgarh, through the Police Station Gaurela, District-
Bilaspur, C.G.
---- Non-applicant
For Applicant - Mr. Yogendra Chaturvedi, Advocate.
For State - Mr. Shakti Singh, Panel Lawyer.
S.B.:- Hon'ble Shri Justice Rakesh Mohan Pandey
Order On Board
25-08-2022
Heard.
1.This Criminal Revision has been filed under Section 397 read with Section 401 of Cr.P.C., challenging therein the judgment of conviction and sentence recorded by the Additional Sessions Judge, (F.T.C.) Pendraroad, District- Bilaspur, C.G. in Criminal Appeal No.26/2009 dated 23.02.2010, whereby the conviction and sentence recorded by the learned trial Court has been modified. The conviction and sentence recorded under Section 294, 171(f) and 506 B of I.P.C. have been set aside and for conviction under Section 147 of I.P.C., applicant has been sentenced to fine of Rs.1000/- and in default of payment of fine, R.I. for one month, under Section 186 of I.P.C., applicant has been sentenced to fine 2 of Rs.200/- and in default of payment of fine, R.I. for 15 days, under Section 332 of I.P.C., applicant has been sentenced to fine of Rs.1000/- and in default of payment of fine, R.I. for 01 month, under Section 353 of I.P.C., applicant has been sentenced to fine of Rs.1000/- and in default of payment of fine, R.I. for 02 months, under Section 3 of Prevention of Damage to Public Property Act, 1984, applicant has been sentenced to imprisonment till the rising of Court and fine of Rs.1000/- and in default of payment of fine, R.I. for 02 months and under Section 135-A of Representation of People Act, 1951, applicant has been sentenced to R.I. for one year and fine of Rs.300/- and in default of payment of fine, R.I. for 02 months.
2. Learned trial Court in Criminal Case No.50/2006, vide conviction and sentence dated 11.08.2009, has convicted the applicant under Section 147, 186, 294, 332, 353, 171(f), 506-B of I.P.C. and Section 3 of the Prevention of Damage to Public Property Act, 1984 and Sections 131(1)(b), 132(3), 135-A and 136(1)(f) of Representation of People Act, 1951 and sentenced to R.I. for 06 months and fine of Rs.200/-, fine of Rs.200/-, fine of Rs.200/-, R.I. for 01 year and fine of Rs.300/-, R.I. for 06 months and fine of Rs.200/-, R.I. for 06 months and fine of Rs.200/-, R.I. for 01 year and fine of Rs.300/-, R.I. for 01 year and fine of Rs.300/-, fine of Rs.300/-, fine of Rs.300/-, R.I. for 01 year and fine of Rs.300/-, respectively.
3. Total eight persons were prosecuted by the learned trial Court on the allegation that in Village- Patarkoni during the Panchayat election on 15.01.2005 after closing of the election, the present 3 applicant along with other co-accused persons forcibly entered into the polling booth and tried to commit loot of ballot box and tables and chairs were broken. Deployed public servants, who were present there, were assaulted and due to riot, the counting could not be held. Written complaint was lodged by Returning Officer Mahipat Singh Bhariya vide Ex.P/6 and the offence punishable under Sections 147, 148, 149, 294, 323, 506-B, 186, 353, 332 and 171(c) of I.P.C. and Section 3 of Prevention of Damage to Public Property Act, were registered. After investigation, charge-sheet was filed. The learned trial Court framed charges for offences punishable under Sections 147, 186, 294, 506-B, 353, 332 and 171(f) of I.P.C. and Section 3 of the Prevention of Damage to Public Property Act and Section 131(1)(b), 132(3), 135-A and 136(1)(f) of the Representation of People Act. The applicant and other co-accused persons abjured the charges and pleaded not guilty. The prosecution examined 10 witnesses to prove the guilt of the applicant and other co-accused and exhibited 17 documents. The learned trial Court after appreciation of oral and documentary evidence convicted the applicant alone as mentioned above and acquitted other 07 accused persons.
4. The applicant preferred appeal against the judgment of conviction and sentence recorded by the learned trial Court before the learned Additional Sessions Judge, Pendra Road, which was registered as Criminal Appeal No.26/2009, vide judgment dated 23.02.2010, the learned lower appellate Court modified the judgment and maximum punishment which has been awarded, is 01 year under Section 135 (1) of the R.P. Act.
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5. Learned counsel for the applicant submits as follows:-
i. On mere presence of the applicant on the spot, he has been convicted.
ii. There is no evidence regarding booth capturing or loot of ballot papers.
iii. There is no evidence on record to show that applicant caused damage to public property.
iv. The evidence against the present applicant and the other co-accused persons, who have been acquitted is almost similar, therefore, the learned Courts below ought to have acquitted the present applicant too. The ingredients of Sections for which the applicant has been convicted are not available on the face of the record.
6. He further submits that the applicant has served about 08 months incarceration and thus he prays for acquittal of the present applicant.
7. On the other hand, learned State counsel submits that the applicant has been identified by the Purushottam Sharma (P.W.-1) and stated that other co-accused persons entered into the polling booth on behest of the present applicant, therefore, learned Courts below have rightly convicted and sentenced the present applicant.
8. I have heard arguments advanced by both the counsel for the parties and perused the record.
9. The written complaint was lodged by Mahipat Singh Bhariya 5 (P.W.-4) vide Ex.P/6 and he has stated in examination-in-chief that 04 officers were deployed in the election of Panchayat in the month of January, 2005. The time of voting was from 07:00 A.M. to 03:00 P.M. After completion of the voting, the ballot boxes were sealed. 25-30 person forcibly entered into the polling booth by breaking the door and thrown out the ballot boxes outside and thereafter, they fled away from the polling booth after carrying the ballot boxes. He has further stated that his two colleagues had sustained injuries. In paragraph No.02, he has stated that he is unable to identify the persons who were present in the polling booth. In paragraph No.03, he has clearly stated that he does not recognize the present applicant- Raisingh Marko. Purushottam Sharma (P.W.-1) and Lok Nath Puri (P.W.-5) had sustained injuries and they were sent for medical examination. The treating doctor has had found slight tenderness on the both infrascapular region of Purushottam Sharma (P.W.-1) and slight tenderness over the various parts of the body of Lok Nath Puri (P.W.-5). One bamboo stick was seized from the possession of the applicant which is Ex.P/10.
10. Purushottam (P.W.-1) has stated in his examination in chief that he recognizes the applicant- Raisingh Marko. He has further stated that there were many persons in front of the polling booth, they were abusing in filthy language and in that crowd, he had recognized applicant- Raisingh Marko and the crowd was making slogan in favour of the applicant- Raisingh Marko. In his evidence, he has not stated any other act committed by the present applicant and his evidence depicts that the applicant was present amongst 6 the crowd.
11.Nand Kumar Jaat (P.W.-3) has not levelled any allegation against the applicant and in his cross-examination, he has clearly stated that he does not know who assaulted whom.
12. Lok Nath Puri (P.W.-5) in the opening paragraph of his evidence has stated that he does not recognize by name or by face, any of the accused persons, he has admitted that he had sustained some injuries too, he could not identify any of the accused persons due to darkness.
13.Meku (P.W.-7), who is Patwari, has not stated anything against the present applicant or other accused persons. According to his evidence, he is a hearsay witness.
14. B.B. Mishra (P.W.-10), who is Investigation Officer has registered F.I.R. and seized certain broken articles and a bamboo stick from the possession of the present applicant on the basis of the statement given by the complainant and other deployed employees.
15.Section 135-A deals with offence of booth capturing and same is reproduced here:-
135A. Offence of booth capturing.-- (1) Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which [shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine.
Explanation.--For the purposes of [this sub-section and section 20B], "booth capturing" includes, among other things, all or any of the following activities, namely:-- 7
(a) seizure of a polling station or a place fixed for the poll by any person or persons, making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections;
(b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and [prevent others from free exercise of their right to vote];
(c) [coercing or intimidating or threatening directly or indirectly] any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote;
(d) seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes;
(e) doing by any persons in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate.] [(2) An offence punishable under sub-section (1) shall be cognizable.]
16. According to explanation appended to the Section 135-A, "booth capturing" includes seizure of a polling station or a place fixed for the poll by any person or persons, making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of election or taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote."
17. From the evidence and documents collected by the prosecution, it is crystal clear that there is no allegation against the present applicant that he seized the polling station or threatened the polling authorities to surrender the ballot papers or voting machines. The polling station was not captured for the poll by any 8 person or persons. There is no allegation against the present applicant that he looted the ballot papers or voting machines. From the evidence of the polling authorities, it appears that the ballot boxes were taken by them from window and they saw the present applicant in between the crowd and on the basis of his presence, he has been implicated in this case. In my opinion, both the Courts below have committed error/mistake by convicting the present applicant for offence punishable under Section 135A of the Representation of People Act, 1951.
18. Fallout and consequence of the above discussion is that the present applicant is acquitted from the charges of Section 135 A of the Representation of People Act his conviction on other sections and counts are hereby maintained. It is reported that applicant has remained in jail for about 08 months and in other Sections he has been sentenced to pay fine only, therefore, there is no need for the applicant to surrender. A copy of this order along with the record be sent to the learned trial Court for the needful. The Criminal Revision is partly allowed.
Sd/-
(Rakesh Mohan Pandey)
Monika Judge