RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.287 of 2001 (Old No.751 of 1993) Jamil & others …….….…. Appellants Versus The State …………… Respondent Dated: May 22, 2009 Sri Sandeep Tandon, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellants’ u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 21.04.1993 passed by II Additional Sessions Judge, Dehradun in S.T. No.146 of 1988, State Vs. Kaimuddin & others, whereby the learned II Addl. Sessions Judge has convicted the appellants/ accused Jamil, Farid, Kaimuddin & Smt. Umari under Section 353 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). Appellant/accused Jamil & Farid were sentenced to undergo R.I. for one year each. However, the appellants/accused Kaimuddin and Smt. Umari were given the benefit of Section 4 of the Probation of Offenders Act, 1958 and they were directed to be released on furnishing a personal bond of Rs.2,000/- each and two sureties each of the like amount for keeping the peace and good behavior for a period of one year. Appellant/accused Farid was further convicted u/s 225 IPC 2 and was sentenced to undergo R.I. for one year. However, both the sentences under Sections 353/225 IPC were directed to run concurrently. All the appellants/accused were, however, acquitted for the offences punishable under Sections 332/452/147/ 307/149/504 IPC. Further, co-accused Abdul Rashid, Abid Hasan, Mehandi Hasan, Smt. Farida, Smt. Suman, Smt. Roshani, Smt. Murshida and Km. Jahira were acquitted of all the charges leveled against them. 2. CJM, Dehradun vide report dated 11.5.2004 has informed that the appellants/accused Kaimuddin and Smt. Umri have died. Hence, the appeal filed by those appellants stands abated. 3. I have heard learned counsel for the parties and perused the entire material on record. 4. In brief, the prosecution case is that in case No.44/85-86, P.W.1 Vikas Chandra, Advocate was appointed receiver from the court of Addl. SDM, Dehradun of the disputed property and in pursuance of that order, the Receiver took possession of the said property on 14.2.1987. However, in his (complainant’s) absence, Jamil (appellant), Abdul Rashid, Abid Hasan, Mehandi Hasan, Farid (appellant), Subedin, Lal Din and Smt. Umri entered into the possession of the property forcibly and illegally after breaking the locks of the building. The complainant obtained an order in this connection from the court on 23.4.1987 and on 27.4.1987, he moved an application to S.P. Dehradun on which S.O. Vikas Nagar was directed to provide necessary police help. On 30.4.1987 at about 12:45 P.M., the complainant after obtaining help from S.O. Vikas Nagar reached on the spot along with (P.W.3) S.O. K.R. Arya Vikas Nagar, S.I. S.C. Tyagi and Constables 3 Jagmohan and Dev Karan along with a section of P.A.C. for executing of the order of the court. At the spot, he also managed to collect the witnesses (1) Rahimuddin (2) Hasan Din (3) Shahid and (4) Mam Chand. On the spot, he found Abdul Rashid, Abid Hasan, Mehndi Hasan, Smt. Farida, Smt. Suman, Smt. Roshni, Smt. Murshida and Smt. Jahira on the disputed property. The complainant read over the order of the court to them in presence of the police and also told them that he has been appointed Receiver in this case and the court has directed him to take possession of the disputed property. Hence, he directed the accused persons to vacate the property. The accused persons then vacated the house by taking out their domestic property except one room in which wheat was kept. In the meanwhile, at about 3 P.M. appellants/ accused Farid, Jamil, Smt. Umri and Kaimuddin came on the spot and they started abusing the complainant, the witnesses and the police persons. When they were prevented by the police, they threw stones at the complainant causing injury on his shoulder. The other members also abused and threw stones and they forcibly made the ladies of the house to enter into the disputed property. The police arrested Jamil (appellant), Abul Rashid, Abid Hasan and Mehandi Hasan and when the police was trying to arrest the appellant/accused Farid, then he picked up a child from the lap of a woman of their family and started pressing the neck of the child and threatened that if any body would try to arrest him, he would kill the child. Hence, the police could not arrest the appellant/accused Farid. It was also averted that appellant/accused Farid threatened to set fire to the disputed property while the ladies, who were armed with sickle, iron rod (SARIA), Gandasa and Farsa, also attacked on him and the police persons. When the police prevented 4 them then appellant/accused Farid also asked the ladies to tear off their clothes so as to teach a lesson to the police. Thus, the accused persons obstructed the police in enforcing the order of the court. It was further stated that when the arrested persons were being taken in a Vikram, appellant/accused Farid suddenly came running from behind and attempted to get the arrested persons released. He also gave a push to S.I. Tyagi who fell down and became unconscious. Thus, the accused persons not only took illegal possession of the disputed property but also obstructed the complainant and the police to execute the order of the court. With the same averments, the FIR Ex.Ka-1 was lodged by Vikas Chandra, Advocate on 30.4.1987 at 4:35 P.M. at P.S. Vikasnagar, Distt. Dehradun. On the basis of this FIR (Ex.Ka-1), H.M. Mahanand prepared the Chik FIR of the case, i.e. Ex.Ka-7. The entry thereof was also made by him in the G.D., the copy of which is Ex.Ka-8. The investigation of this case was entrusted to P.W.6 Vijay Kundaliya. The investigation was also entrusted to B.P. Kukreti, S.I. Thereafter, injured Vikas Chand was medically been examined by P.W.4 Dr. S.M. Sehgal on 1.5.1987 at 11:45 AM and his injury report Ex.Ka-2 was prepared. Injured S.I. S.C. Tyagi was also medically examined by P.W.5 Dr. G.C. Baudiyal on 30.4.1987 at 5:30 PM and injury report Ex.Ka-3 was prepared. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-4. The I.O. during the course of investigation recorded the statements of witnesses and after completing the investigation, filed the charge sheet against the accused Kaimuddin(appellant), Mehndi Hasan, Jamil(appellant), Farid(appellant), Abid and Abdul Rashid, i.e. Ex.Ka-5. Also against the accused Smt. Umri, Smt. Suman, Smt. Farida, Smt. Roshni, Smt. Murshida and 5 Smt. Jahira, charge sheet was filed by the I.O., i.e. Ex.Ka- 6. 5. Learned Munsif, L.C.C., Dehradun committed the case to the court of Sessions on 12.12.1988 after giving necessary copies to the accused as provided under Section 207 Cr.P.C. 6. On 30.1.1989, learned III Assistant Sessions Judge, Dehradun framed the charges against the accused Kaimuddin (appellant), Mehndi Hasan, Jamil(appellant), Farid(appellant), Aabid Hasan, Smt. Farida, Smt. Suman, Smt. Roshni, Abdul Rashid, Smt. Khurshida, Jahira and Smt. Umri (appellant) under Sections 332, 353, 452/147, 307/149 and 504 IPC. The charges were read over and explained to the appellant/accused as well as to co- accused persons, who pleaded not guilty and claimed to be tried. Further, the charge against the appellant/ accused Farid was also framed u/s 225/307 IPC. The charge was also read over and explained to him who also pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Vikas Chandra, complainant, P.W.2 Hasan Din, Village Pradhan, P.W.3 Kailash Ram Arya, Inspector (Vigilance), eyewitness, P.W.4 Dr. S.M. Sehgal, who medically examined Vikas Chandra, P.W.5 Dr. G.D. Baudiyal, who medically examined S.O. Tyagi and P.W.6 S.I .Vijay Kundaliya, I.O. of the case. 8. Thereafter, the statements of the appellant/ accused as well as that of co-accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the 6 allegations made against each of them. In reply to question No.1, appellant/accused Farid has stated that he was not present on the date and time at the place of occurrence. In defence, D.W.1 Mani Singh has been examined. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned II Addl. Sessions Judge, Dehradun vide judgment and order dated 21.04.1993 has convicted and sentenced the appellants/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 10. Before further discussion, it is pertinent to mention the injuries found on the body of injured Vikas Chandra (P.W.1) who was medically examined on 11.5.1987 at 11:45 AM by P.W.4 Dr. S.M. Sehgal. The following injuries were found in the injury report (Ex.Ka.2): - 1. Faint contusion 1.5 cm x 1 cm on the front of right shoulder. It is red in colour Opinion- Injury no.1 caused by hard blunt object, caused within 24 hours, simple in nature. 11. To prove the above-said injury report Ex.Ka-2, the prosecution has examined P.W.4 Dr. S.M. Sehgal who has proved the said injury report Ex.Ka-2 prepared by him. In cross-examination he has stated that all the injuries could also possibly be caused within six hours of the examination and these injuries could be inflicted by himself also. 7 12. Likewise, injured S.C. Tyagi was also medically been examined on 30.4.1987 at 5:30 P.M. by P.W.5 Dr. G.C. Baudiyal and the following injuries were found in the injury report (Ex.Ka-3): - 1. Abrasion on the back of the shoulder placed stagately out right side at the level of infra- scapular region 4 cm x 2 cm in size 2. Haematoma on the occipital region of the head 8 cm x 4 cm in size, 8 cm above the base of the neck. Semi-unconscious. Opinion- The above mentioned injury is simple in nature, injury no.1 is simple in nature and caused by blunt object and injury no.2 kept under observation. Duration fresh. 13. To prove the above-said injury report of S.I. S.C. Tyagi, the prosecution got examined P.W.5 Dr. G.C. Baudiyal who has proved the injury report Ex.Ka-3 prepared by him. In cross-examination he has stated that these injuries could also possibly be caused by slipping as a result of falling. 14. To further prove its case, the prosecution has examined P.W.1 Vikas Chandra who has stated that in case No.44/85-86 Gram Sabha Vs. Capt. P.P., he was appointed receiver from the court of ASDM, Dehradun on 12.2.1987 of the disputed property. In pursuance of that order, he took possession of the disputed property on 14.2.1987 and submitted his report on the next day evening in the court. He put his lock on the disputed house on 14.2.1987. After some days, he came to know that accused persons have again entered into the possession of the house by breaking the locks. Hence, on 8 23.4.1987 he moved an application before the ASDM, Dehradun and obtained order from the court for taking possession of the disputed property again. On 27.4.1987 he moved an application to S.P. praying for police help and on the same day, S.P. Dehradun directed the S.O. Vikasnagar to provide necessary help. On 30.4.1987 he went on the spot along with S.O. Vikasnagar, A.S.I. Tyagi and other police force along with P.A.C. At that time, the Pradhan of the Village Dhalipur and other villagers were also present. On the spot, he found Abdul Rashid, Abid Hasan, Mehndi Hasan with their wives and children on the disputed property. He read over the order of the court to them and directed them to vacate the property. These persons then vacated the house by taking out except one room in which wheat was lying and they were in the process of vacating the room. At about 3 P.M. appellants/ accused Farid, Jamil, Smt. Umri and Kaimuddin came on the spot and they started abusing the police persons. Then appellant/accused Farid threw a stone which hit on his right shoulder and then these accused forcibly made the ladies and children to enter into the disputed house. Then the police arrested Jamil(appellant), Abid Hasan, Mehandi Hasan and one other person and when the police was trying to arrest the appellant/accused Farid, then he picked up a child from the lap of a woman standing over there and started pressing the neck of the child on account of which the child started crying. The appellant/ accused Farid threatened the police that if any body would try to arrest him, he would kill the child. He also stated that he would not allow anyone to take possession of the house and will burn the house by sprinkling kerosene oil on it. Under these circumstances, the police could not arrest the appellant/accused Farid. When the arrested persons were being taken in a Vikram by the police, then the 9 appellant/accused Farid suddenly came running from behind and he pushed A.S.I. Tyagi due to which he fell down on the ground and became unconscious. He also proved the FIR Ex.Ka-1 lodged by him. He further stated that he was medically been examined at Doon Hospital. He further stated that the ladies on the spot were armed with sickle, iron rod and Gandasa and they also attacked on the police persons. When the police prevented them then the appellant/ accused Farid asked the ladies to tear off their clothes so as to teach a lesson to the police. He further stated that the accused, with the common intention, obstructed in execution of the government work. He further stated that on the basis of the report lodged by him, Chik FIR was prepared and copy thereof was also received to him. In cross-examination, he has stated that to appoint him Receiver, an application was moved by the Village Pradhan Hasandin (P.W.2). He further stated that when he had gone on the next day on the spot, till then accused persons had taken the possession. He further stated that the incident in which the push was given to S.I. Tyagi was happened at 5-5:30 P.M. 15. The statement of P.W.2 Hasan Din was discarded by the trial court on account of his enmity with the accused persons and also because he became the interested witness, as he was the complainant in the court of ASDM, Dehradun in the case in which P.W.1 Vikas Chandra was appointed as Receiver. 16. P.W.3 is S.I. K.R. Arya who has also corroborated the statement of P.W.1 Vikas Chandra. 17. P.W.6 is S.I. Vijay Kundaliya who has stated that on 30.4.1987 he was posted as S.I. at Police Chowki Dakpathar, which is under the control of P.S. Vikasnagar. 10 The investigation of this case was entrusted to him and during investigation he recorded the statements of witnesses and prepared the site plan of the place of occurrence i.e. Ex.Ka-4. He had filed the charge sheet against Kaimuddin (appellant, now deceased), Mehndi Hasan, Jamil (appellant), Farid(appellant), Aabid and Abdul Rashid i.e. Ex.Ka-5. The investigation of this case was later on conducted by S.I. B.P. Kukreti, who after the surrender of the accused, submitted the charge sheet against the other accused persons, i.e. Ex.Ka-6. Chik FIR of this case was prepared by H.M. Mahanand, i.e. Ex.Ka-7. The entry was also made by H.M. Mahanand in the G.D. the copy of which is Ex.Ka-8. In cross-examination he has stated that the complainant Vikas Chand had not given any court order to him. He further stated that he could not say whether the appellant/accused Fareed was an employee in the Power House or not ? 18. Thereafter, the statements of the appellant/ accused as well as that of co-accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. In reply to question No.1, appellant/accused Farid has stated that he was not present on the date and time at the place of occurrence and that time he was in his duty. 19. In defence, D.W.1 Mani Singh has been examined, who has stated that he was posted as Junior Engineer in Hydel Department in Special Grade, Khara Power House. On 30.4.1987, he was posted as Junior Engineer at Dhakrani Power House. S.K. Tyagi was the Executive Engineer posted there and he was the 11 In-charge of the Power House. He further stated that appellant/accused Farid was posted as Hammer Man on those days in the Power House. He (appellant/accused Farid) was the sole hammer man posted there and no other person was posted on this post. He also stated that appellant/accused Farid was working under his supervision, in his presence. On the date of incident, overhauling of a machine was being done. The duty time of the powerhouse workers is from 8 AM to 12 PM and thereafter from 1 PM to 5 PM. An attendance register of the employees was also being maintained and he brought the same with him in the court. After seeing the register of 30.4.1987, he has stated that appellant/accused Farid was present in the duty in his duty time. For the presence of appellant/accused Farid in the duty, he also issued a certificate on 28.5.1987 and that was also signed by him, i.e. Ex.Kha-1. That certificate he has issued on the basis of the records. He further stated that two gunmen were also deputed on the door and without permission, no employee can go outside. He further stated that the distance between Dhalipur and Dhakrani is about 8 Kms. 20. Learned counsel for the appellants/accused, by way of supplementary affidavit, has filed a copy of the writ petition filed in the High Court of Judicature at Allahabad and was numbered as Civil Misc. Writ Petition No.8504 of 1987, Zamil Vs. Board of Revenue & others, copy of the order dated 13.2.1987 passed by Addl. S.D.M., Dehradun in Case No.44/85-86, Gram Sabha Vs. Capt. P.P., copy of order 8.4.1987 passed by Commissioner, Garhwal Division in Appeal No.17/1986-87, Gram Sabha Dhalipur Vs. Capt. P.P. and also copy of order dated 16.4.1987, Zamil & others Vs. Gaon Sabha, passed by Board of Revenue, Allahabad. 12 21. A perusal of the aforesaid orders show that initially on 13.2.1987, ASDM, Dehradun appointed P.W.1 Vikas Chandra as Receiver in the above-said case. Against the said order dated 13.2.1987, an appeal was preferred before Commissioner, Garhwal Mandal, who vide judgment and order dated 8.4.1987 dismissed the appeal and affirmed the order passed by ASDM, Dehradun dated 13.2.1987. Against the aforesaid judgment and order dated 8.4.1987 passed by Commissioner, Garhwal Mandal, a revision petition was preferred before Board of Revenue, Allahabad, who too vide judgment and order dated 16.4.1987 dismissed the same. Assailing the order passed by Board of Revenue dated 16.4.1987, a writ petition No.8504/1987 was preferred before the High Court of Judicature at Allahabad. In that writ petition on 27.4.1987, High Court of Judicature at Allahabad passed the following order: - “Issue notice. Meanwhile, operation of the order dated 13.2.1987 of the Additional Sub Divisional Officer, the order dated 8.4.1987 of the Commissioner, Garhwal Division and the order dated 16.4.1987 of the Board of Revenue shall remain stayed.” 22. Learned counsel for the appellants/accused argued that the prosecution has not proved its case against the appellants/accused beyond reasonable doubt u/s 353 IPC because P.W.1 Vikas Chandra was not a Public Servant on the date of incident i.e. 30.4.1987. Before any further discussion, Section 353 IPC is relevant to mention here which reads as under – “353. Assault or criminal force to deter public servant from discharge of his duty- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or 13 with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 23. I find force in the argument raised by counsel for the appellants/accused because on 13.2.1987 the order was passed by Addl. SDM, Dehradun appointing P.W.1 Vikas Chandra as Receiver, against that order, an appeal was preferred before the Commissioner which was decided on 8.4.1987 and assailing that order, a revision was also preferred before the Board of Revenue, Allahabad, who too vide order dated 16.4.1987 dismissed the revision. These orders were challenged before the High Court of Judicature at Allahabad by way of Writ Petition No.8504 of 1987 and the copy of the said writ petition was served upon the learned CSC, High Court Allahabad and Counsel for Respondent No.4-Gaon Sabha on 23.4.1987 as is endorsed in the left part of first page of the writ petition. This fact proves that the above-said order dated 27.4.87 passed by High Court of Judicature at Allahabad was in the knowledge of the respondents since 27.4.1987. Section 21(4) IPC provides that the Receiver is also a public servant. As per the order of High Court of Judicature at Allahabad dated 27.4.1987, the order for appointing P.W.1 Vikas Chandra as Receiver was stayed, as such, he was not a public servant as defined u/s 21(4) of IPC on the date of incident i.e. 30.4.1987 for the reason that the order dated 27.4.1987 passed by High Court of Judicature at Allahabad was also in operation on that day. As such, the offence punishable under Section 353 IPC is not proved against the appellants/accused. 14 24. It was further argued on behalf of the appellants/accused that on the basis of same set of facts and evidence, when the co-accused Abdul Rashid, Abid Hasan & Mehandi Hasan, who were also arrested along with the appellant/accused Jamil, have been acquitted by the trial court, then the benefit of acquittal of co-accused should also be extended to appellant/accused Jamil. In support of his argument, he cited a judgment of Hon’ble Supreme Court in the case of Deepak Rajak v. State of West Bengal reported in 2007 AIR SCW 5740. He relied on para 2,3,5 and 6 which read as under: - “2. The factual details need not detain us as undisputedly the co-accused have been acquitted by this Court in Mousam Singa Roy and Others v. State of W.B. [2003 (12) SCC 377]. The effect of such acquittal vis-à-vis similarly situated co-accused has been considered by this Court in several cases. 3. Learned counsel for the appellant placed reliance on various decisions of this Court contending that the benefit of acquittal should be extended to the appellant. 5. The position in law as to what happens in case of acquittal of similarly placed co-accused on the same set of facts and on similar accusations has been considered by this Court in several cases. 6. A departure may be made in cases where the accused had not surrendered after the conviction in addition to not filing an appeal against the conviction. But as in the present case, after surrender, the benefit of acquittal in case of co-accused on similar accusations can be extended.” 15 25. In view of the above-said dictum of Hon’ble Apex Court, I am of the view that in view of the above-said facts and circumstances of the case, the benefit of acquittal of co- accused on the same set of facts and evidence is also liable to be extended to the present appellant/accused Jamil. 26. Learned counsel for the appellants/accused further argued that appellant/accused Farid was not present on the date and the plea of alibi is proved against him. I further find force in this argument. Mani Singh, who was examined as Defence Witness No.1, on the basis of the attendance register which was produced before the trial court, has clearly deposed before the