High Court

Legal Reasoning

Court No. - 84 Case :- CRIMINAL APPEAL No. - 7974 of 2023 Appellant :- Smt. Israwati Devi And 2 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Abhishek Kumar Saroj,Nagendra Bahadur Singh,Siddharth Counsel for Respondent :- G.A.,Bikash Kumar Mishra Hon'ble Mrs. Sadhna Rani (Thakur),J. Heard the learned counsel for the appellants, learned counsel for the opp. party no. 2 and perused the record. Counter affidavit has been filed by the learned counsel for the opp. party no. 2 is taken on record. Learned counsel for the first informant refused to file the rejoinder affidavit. This appeal has been filed against the summoning order dated 12.5.2023 passed by Additional Sessions Judge/Special Judge SC/ST Act, Bhadohi Gyanpur in S.S.T.No. 2350 of 2023, State Vs. Anil Kumar @ Kariya and others, case crime no. 58 of 2022, under sections 323, 504, 506, 419, 420 I.P.C. and sections 3(1) (r) and 3(1) (s) of SC/ST Act, police station Gyanpur District Bhadohi. By the impugned order, the trial court took cognizance of the offence under the aforesaid sections against the appellants. As per the FIR dated 19.4.2022 appended at page 77A of the paper book, which was lodged on the basis of an application u/s 156(3) Cr.P.C. regarding the incident dated 27.2.2022 at 8.00 A.M., all the appellants/ accused persons in furtherance of their common intention approached at the gate of the opp. party no. 2, and hurling wild abuses thrashed the first informant with kicks and blows. At the exhortation of appellant Israwati Devi, rest two appellants hurled caste based abuses and asked him to execute the sale deed of the land in their favour. When the first informant entered his house, all the accused persons also entered his house, damaged the house hold stuffs and dragged him out of his house and again asked him to execute the sale deed in consequence of the agreement to sale. It was also warned that if the sale deed was not executed, they would not pay Rs. 3 lacs mentioned in the agreement to sale. In fact on 28.12.2020 appellant Israwati Devi got executed an agreement to sale from the first informant of his land for Rs. 4 lacs but due to lack of money the sale deed could not be executed. In the agreement to sale a cheque of Rs. 3 lacs was mentioned to be given to the first informant but it was never given to him. When the first informant demanded this money on 22.1.2022, he was hurled caste based abuses by the appellants the public view. In the police station the accused persons agreed to pay the money mentioned in the agreement to sale but money was not given. On 27.2.2022 at 8.00 A.M. the above-mentioned incident took place. It is submitted by the learned counsel for the appellants that on the basis of this FIR after investigation final report was prepared and before its submission the order was passed regarding further investigation which was transferred to Circle Officer concerned and later on, on the basis of additional statements of Lallan Prasad, Jalim and Reshma chargesheet was filed and on the basis of chargesheet the cognizance was taken by the court vide impugned order dated 12.5.2023. The original statements of Lallan Prasad and Reshma are appended at page 93 of the paper book wherein they have denied to view any such incident. The statement of Jalim in case diary is also placed before the court wherein he also supported the original statements of Lallan Prasad and Reshma under section 161 Cr.P.C. and refused the committal of any incident as mentioned in the FIR. Later on, all these 3 witnesses in their additional statements have supported the version of the FIR. On the basis of these additional statements only the chargesheet was filed. If in the original statements all the three accused persons have refused to view any such incident and in their additional statements they have stated to view such incident, due to this contradiction their evidence cannot be considered to be reliable. As the opp. party no. 2 was not executing sale deed in favour of the appellants, in compliance of the agreement to sale, a civil suit was filed by the appellants which is pending in the trial court, hence, no incident can be said to be proved against the appellants, the cognizance against them is against the evidence on record. Hence, the prayer is made accordingly. Learned counsel for the opp. party no. 2 opposed the prayer and submitted that in further investigation, the additional statements of Lallan Prasad, Jalim and Reshma along with other witnesses were recorded and on the basis of those statements the chargesheet was filed and cognizance was taken, thus, there is no ground to set aside the impugned order. It is admitted fact that an agreement to sale was executed by the opp. party no. 2 in favour of appellant Israwati Devi on 28.12.2020 but some dispute arose regarding payment of money and sale deed was not executed in compliance of the agreement to sale. The case regarding specific performance of contract was filed by the appellants, which is said to be pending in the trial court. It is also an admitted fact that on the basis of this FIR dated 19.4.2022, registered on the basis of an application u/s 156(3) Cr.P.C., the final report was prepared by the previous Investigating Officer and further investigation was entrusted to some other Investigating Officer who recorded the additional statements of Lallan Prasad, Jalim, Reshma and the first informant and on the basis of these additional statements only the chargesheet against the appellants was filed. If we go through the original statements of Lallan Prasad and Reshma appended with the paper book and the statement of Jalim placed before the court by the learned A.G.A, all under section 161 Cr.P.C. there is no version in their statements supporting the FIR and all these witnesses refused the committal of any such incident and also refused to view any such incident mentioned in the FIR and later on the same three witnesses Lallan Prasad, Jalim and Reshma adduced their additional statements and in these additional statements before the second Investigating Officer, they supported the version of the FIR and the incident to be committed by the appellants. Thus, the additional statements of Lallan Prasad, Jalim and Reshma are found to be totally unreliable. The original statement and the additional statement of the first informant are found not supported with any reliable evidence. The additional statements of all the three witnesses Lallan Prasad, Jalim and Reshma being contradictory to the previous statements cannot be relied upon. In the opinion of the court, the incident is not found to be true. The proceedings started by the first informant are found to be the malicious proceedings against the appellants in the counterblast of the civil suit filed by the appellants. Hence, the cognizance order dated 12.5.2023 passed by Additional Sessions Judge/Special Judge SC/ST Act, Bhadohi Gyanpur in S.S.T.No. 2350 of 2023, State Vs. Anil Kumar @ Kariya and others, in case crime no. 58 of 2022, under sections 323, 504, 506, 419, 420 I.P.C. and sections 3(1) (r) and 3(1) (s) of SC/ST Act, police station Gyanpur District Bhadohi is set aside. The appeal is hereby allowed. Order Date :- 26.9.2023/Gss Digitally signed by :- GIRAJA SHANKER SHARMA High Court of Judicature at Allahabad