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Showing contexts for: section 431 IPC in State vs . Arvind Singh Yadav on 28 April, 2022Matching Fragments
1. Accused is produced before the court to stand trial for the offences punishable u/s 283/291/431 IPC.
2. In brief, facts of the case as alleged by the prosecution are that while IO HC Hemant Kumar and Ct. Sunil Kumar were on patrolling duty vide DD no. 51A on 05.08.2021 at about 12.00 PM, they reached house no. 10A,Gopal Park, where construction was going on of fourth lanter of the building. It is further alleged that builder accused Arvind Singh S/o Sh. Dharmpal was found present there who FIR no. 277/2021 PS Jagatpuri State vs. Arvind Singh Yadav Page no. 1 of 11 alleged that he has taken a contract for construction of the said building and the accused does not know the name of the owner. It is alleged that the acused did not produce any permission from the MCD and thereafter IO HC Hemant took photographs of the machine/mixer which was kept outside the property and due to that the people/passerby could not cross that lane. It is further alleged that the accused did not remove the said machine and did not stop the construction work and information was also given to MCD control room regarding the construction. Thereafter, FIR u/s 283/291/431 IPC was registered, site plan was prepared and accused was bound down by the IO.
13. As per the case of the prosecution charge under section 431 IPC has been framed which pertains to mischief by injury to public road, bridge, river or channel. Therefore, for attracting section 431 IPC, it is essential that some mischief must have been committed by the accused. The offence of mischief is defined under section 425 IPC which provides as follows.
425. Mischief.- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
16. It is pertinent to note that PW-1 during his testimony in court stated that he alongwith PW-2 were on patrolling duty on his personal motorcycle whereas PW-2 during his testimony in court stated that they were on government motor cycle. Such contradiction in the testimony of the witnesses cannot be ignored by this court especially when the incident is of 05.08.2021 which is not very long ago.
17. The entire case is based upon the allegation that the building construction material was found to be belonging to accused and the photographs of the construction material were taken by the IO. However, there is nothing on record to prove that the alleged construction material which was noticed by the police officials in the present matter actually pertained to the alleged construction being carried out by the accused. The investigation in the present matter has been done in a shoddy manner and enough evidence has not been collected by the IO to bring home the guilt of the accused for the offences punishable under section 283/291/431 IPC. The prosecution has failed to prove the commission of mischief as defined under section 425 IPC by the accused in the present matter.
In the said case it was also observed by Hon'ble Supreme Court that if the informant were to be the investigating officer, it was bound to reflect on the credibility of the prosecution's case.
20. The charge against the accused was framed under section 283/391/431 IPC, however, no evidence has been led on record to prove that there is danger or obstruction or injury in any public way or that any mischief or public nuisance has been caused which is likely to render the alleged public road impassable or less safe for traveling. Admittedly no public witness was joined during the investigation and prosecution has failed to prove that the alleged road was actually a public way as required under the provision of section 431 IPC. Apart from the photographs of the construction material there is nothing on record to show that the area where the FIR no. 277/2021 PS Jagatpuri State vs. Arvind Singh Yadav Page no. 10 of 11 construction material kept was a public road. Even the said photographs have not been duly proved on record and they do not carry any date or time or any mention about the address or place from where the photographs were taken.