Allahabad High Court
Anil vs State Of U.P. on 19 February, 2021
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 10.02.2021 Delivered on: 19.02.2021 Court No. - 68 Case :- CRIMINAL REVISION No. - 2266 of 2016 Revisionist :- Anil Opposite Party :- State of U.P. Counsel for Revisionist :- Sunil Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. The present criminal revision has been preferred against judgement and order dated 28.07.2016 passed by the Additional Sessions Judge, Court No. 16, Meerut in Criminal Appeal No. 317 of 2014, under Sections 332, 3453 I.P.C. (Anil and others Vs. State of U.P.) and against judgement and order dated 30.09.2014 passed by the Additional Chief Judicial Magistrate, Court No. 7, Meerut in Criminal Case No. 3392 of 2010 (State of U.P. Vs. Anil), arising out of Case Crime No. 165 of 2006, under Sections 332, 353 I.P.C., Police Station Railway Road, District Meerut by which the revisionist-accused has been convicted and sentenced under Sections 332 I.P.C. to six months simple imprisonment and a fine of Rs. 500/- in default of payment of fine to seven days simple imprisonment, under Section 353 I.P.C. to six months simple imprisonment and a fine of Rs. 500/- in default of payment of fine to seven days simple imprisonment. The sentences have been ordered to run concurrently. The trial court has further directed that the period of detention undergone by the accused be set off against the sentence of conviction.
2. Against the said judgement and order of conviction dated 30.09.2014, the accused preferred an appeal which was numbered as Criminal Appeal No. 317 of 2014 (Anil Vs. State of U.P.) which has been dismissed vide judgement and order dated 28.07.2016 passed by the Additional Sessions Judge, Court No. 16, Meerut.
3. The present revision has thus been filed before this Court challenging the judgement and order dated 30.09.2014 of conviction and also the judgement and order dated 28.07.2016 passed by the Appellate Court.
4. An application dated 09.11.2006 was given by Mohammad Salim (P.W.-1) to the Station House Officer, Police Station Railway Road, District Meerut mentioning therein that on 09.11.2006 he was on duty at Railway Road crossing and was managing the traffic, wherein, at about 08:30 P.M., a tempo came and stopped at the crossing on which he asked the tempo driver to move the vehicle forward on which a boy came from behind and assaulted him with fists on his waist. He was saved by the other police personnels present on duty there and the said boy was apprehended and was taken to the police station. It is further mentioned that appropriate action be taken on the said application. Further in the said application, it is mentioned that the boy who resorted to assault is named Anil son of Shyamveer Sharma resident of Vikaspuri, Police Station Kankarkheda. The said application is marked as Exb: Ka-1 to the records.
5. On the said application, a first information report was registered as Case Crime No. 165 of 2006, under Sections 332, 353 I.P.C., Police Station Railway Road, District Meerut against the revisionist Amit on 09.11.2006 at 21:10 hrs. The chick first information report is marked as Exb: Ka-4 to the records. The site plan was prepared about the place of occurrence by the Investigating Officer, the same is marked as Exb: Ka-2 to the records.
6. The matter was investigated and a charge-sheet No. 87 dated 28.11.2006, under Sections 332, 353 I.P.C. was submitted against the accused Anil. The same is marked as Exb: Ka-3 to the records.
7. The trial court vide its order dated 30.09.2014 framed charges under Sections 353 I.P.C. and Section 332 I.P.C. against the accused Anil to which he pleaded not guilty and claimed to be tried.
8. The matter was taken up for trial in which Constable 125 Mohammad Salim (P.W.-1) was examined who is the first informant and the injured, Constable 231 Sanowar Ali (P.W.-2) has been examined who is also said to have been posted at the same crossing where the incident is said to have taken place and is the person amongst others who had apprehended the accused from the place of occurrence, a Home Guard 1354 Raju (P.W.-3) was also posted at the same crossing where the incident is said to have taken place and is a witness to the incident and Constable Vinod Kumar (P.W.-4) has been produced who has identified the handwriting of Sub-Inspector Faheem Khan who was the Investigating Officer and had prepared the site plan and the charge-sheet.
9. The accused in his statement recorded under Section 313 Cr.P.C. has stated his age to be about 26 years and has stated that he has been falsely implicated in the present case. He has further stated that he was returning from tuition and there was a fight going on at the crossing and crowd had gathered, wherein, he stopped at that place. The traffic police came on which other persons present there ran away but he kept standing on which he was apprehended and he was implicated in the present case. No defense evidence has been lead.
10. The trial court vide its judgement and order dated 30.09.2014 came to its conclusion that the accused Anil had interrupted the informant in discharge of official duty of a Government servant and had used force upon him and as such is guilty of offences under Section 332 and 353 I.P.C. and convicted him as stated above.
11. Against the judgement and conviction dated 30.09.2014, the accused Anil preferred an appeal which was also dismissed vide judgement and order dated 28.07.2016 passed by the Additional Sessions Judge, Court No. 16, Meerut.
12. Heard Sri Sunil Kumar Tiwari, learned counsel for the revisionist and Sri Sanjay Kumar Singh, learned A.G.A. for the State and perused the records.
13. Learned counsel for the revisionist argued that the revisionist has no concern with the alleged incident. All the witnesses examined before the trial court are police personnels and there is no independent and public witness to support the prosecution case. It is further argued that there are serious contradictions in the statements of three witnesses being Mohammad Salim (P.W.-1), Sanowar Ali (P.W.-2) and Home Guard 1354 Raju (P.W.-3). It is argued that the revisionist has no previous criminal antecedent except for the present case. It is further argued that the revisionist was a student and was aged about 18 years at the time of the incident. It is next argued that the revisionist has undergone a total period of 49 days in jail up till now in the present case, wherein, the maximum sentence awarded is of six months simple imprisonment with fine and default imprisonment. It is argued that the occurrence in the present case is dated 09.11.2006 and as such the same has taken place about 15 years back. While, addressing on the merits of the case, learned counsel for the revisionist has argued that the revisionist has no motive to commit the aforesaid offence. It is argued that dispute as alleged by the prosecution was due to wrong and inappropriate stoppage and parking of a tempo but the driver of the tempo has not been produced and examined before the trial court and has no concern with the said tempo. It is argued that the first informant Constable 125 Mohammad Salim (P.W.-1) did not receive any injury and there is no medical examination report of his on records and thus the prosecution story of the revisionist assaulting him on his waist gets belied.
14. Learned A.G.A. opposed the revision and argued that the accused was apprehended on the spot and there is a specific case that he had assaulted the first informant / Mohammad Salim (P.W.-1) on his waist by fists and as such is involved in the present case. It is argued that Mohammad Salim (P.W.-1) is a Government servant and was performing his official duty at the time when the revisionist assaulted him and thereby prevented him from performing his duty. It is argued that as such, there is no illegality in the judgement and order of conviction and also the judgement and order of the appellate court and as such, the present revision be dismissed.
15. As per the statement of the revisionist recorded under Section 313 Cr.P.C. on 29.08.2014 has stated his age to be of 26 years. The incident in the present case is alleged to have taken place on 09.11.2016. As per the age given by the revisionist-accused in his statement recorded under Section 313 Cr.P.C. for which there is no contrary opinion of the trial judge, the same has been stated to be 26 years and as such, the revisionist accused was aged about 18 years at the date of the incident. The revisionist has in his statement under Section 313 Cr.P.C., stated that he was returning from tuition and on seeing a fight at the crossing stopped there to watch the same and after the police came the other persons gathered there ran away but he kept on standing on which he was apprehended and was taken to the police station and was involved in the present case. The said defense cannot be stated to be a too far-fetched impossibility. In incidents like the present one, people gather there and watch it which is a general human tendency. The act of the revisionist was as such that there is a possibility of his being present at the place of occurrence to watch the wrangle between the tempo driver and the first informant / Mohammad Salim (P.W.-1) which had started due to wrong parking and stoppage of the tempo by its driver at the crossing. The factum of dispute between the first informant / Mohammad Salim (P.W.-1) and the tempo driver has been stated by Sanowar Ali (P.W.-2) and Home Guard Raju (P.W.-3). In the cross-examination of Home Guard Raju (P.W.-3), he has stated that there was a maar-peet by the persons accompanying the tempo driver. He has stated that the persons who had indulged in the mar maar-peet were not apprehended and they had run away. The fact that there was a dispute between the tempo driver and the first informant / Mohammad Salim (P.W.-1) is also stated by the other prosecution witness being Sanowar Ali (P.W.-2). The revisionist has no motive at all to commit the present incident. From the records, it is apparent that the first informant was not even taken to the doctor for his medical examination and there was no document for the same. There is no medical examination report on record. The incident in the present case has taken place around 15 years back. The revisionist has undergone about 49 days in jail as he was initially arrested on 09.11.2006 and remained in jail up to 18.11.2006 i.e. for 10 days on which date he was granted bail. Thereafter, he was convicted vide judgement and order dated 30.09.2014 and was taken into custody after which he preferred an appeal in which he was granted bail on 07.10.2014 and as such remained in jail for 09 days. Thereafter, the appeal was dismissed vide judgement and order dated 28.07.2016 and he was taken into custody by the Court after which the present revision was filed in which vide order dated 10.08.2016, he was granted bail by this Court after which he was released from jail on 17.08.2016 and as such remained in jail for 20 days. Subsequently, this Court vide order dated 05.01.2021, cancelled the bail of the revisionist since no one had appeared to press the revision on his behalf and he was directed to be taken into custody, in compliance of which he was taken into custody on 01.02.2021 and he was since then in jail and taking into consideration the date of the day when the judgement was reserved in the present matter, he had been in jail for 10 days and thus the total period of his incarceration is 49 days.
16. Coming to the point of sentence in the present matter, since the incident took place 15 years ago, the revisionist-accused was aged about 18 years at the time of the incident. The revisionist as of now is about 33 years old and has faced protracted trial in two courts, he had no motive to commit the aforesaid offence and there is no injury report to substantiate the prosecution case of the revisionist assaulting the first informant / Mohammad Salim (P.W.-1) and further looking to the defense as taken by him in his statement recorded under Section 313 Cr.P.C., the sentence of six months as awarded to him is not likely to serve any useful purpose and shall not be commensurate with the offence.
17. The conviction of the revisionist for offences under Sections 332 and 353 I.P.C. is hereby confirmed. The sentences as awarded on both the counts is hereby reduced to the period already undergone. The fine of Rs. 500/- on each count is maintained. The same shall be deposited forthwith by the revisionist if not already deposited.
18. The revisionist is in jail, he shall be released forthwith unless wanted in any other case.
19. Further, it is made clear that if the fine as imposed is not deposited by the revisionist, he shall undergo the sentence as awarded by the trial court vide its judgement and order dated 30.09.2014.
20. Hence, in the result the revision is partly allowed.
21. The trial court records be sent back to the court concerned along with a copy of this judgement and order for its compliance.
22. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
23. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
24. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 19.2.2021 AS Rathore (Samit Gopal,J.)