Mujahid And Others vs State Of Uttarakhand

Sharad Kumar Sharma, J

An incident had occurred in the night of 06.06.2005, within the territory of Thana Shyampur, Kshetra near Chandighat Gauri Shankar Mandir, wherein, the complaint has been registered. It was a complaint to the effect that a buffalo and a cow, belonging to the complainant have been stolen by the unidentified persons. It was a complaint lodged by the complainant Yusuf Ali that despite of his best efforts made by him to search the animals, thus stolen, he could not recover the same. But, when the efforts for search of the stolen animals was being carried, he was informed by one Mr. Gulam Hussain that he has seen Muzahid, Aazam and Istiyak to be moving around with the aforesaid stolen animals on the bank of the river ganges and consequently, it was alleged in the complaint that they are the person who could be said to be involved in the commission of the offences under Sections 379 and 411 I.P.C.

In accordance with the case of the complainant Yusuf Ali, a Tehrir report was submitted in the police station, on the basis of which, the case was registered against the three accused persons, being Case Crime No. 232 of 2005, who are the revisionists, herein, for commission of the offence under Section 379 IPC and on completion of the investigation, which was conducted by S.I. Kuldeep Rawat and the Team of Police Officials thus constituted for the aforesaid purposes, it had been revealed in the investigation that two persons were involved in the commission of the offence and they were found by the investigating team to be moving towards Chiriyapur Jungle along with the animals. On the way, when the revisionists were apprehended by police officials along with the aforesaid animals, which were said to have been stolen by them, the stolen animals were recovered from their custody.

It is contended by the prosecution that when the investigation was conducted, a site plan was prepared, the statement of the witnesses were recorded and after being satisfied with the statement of the witnesses, which was considered by the Investigating Officer, the chargesheet has been submitted, being Chargesheet No. 20/05, on which, the cognizance has been taken by the learned Court of Judicial Magistrate, Haridwar by registration of the Criminal Case No. 2613 of 2006, State Vs. Mujahid and others.

In the order impugned order dated 02.11.2010, as rendered by the Judicial Magistrate in Criminal Case No. 2613 of 2006, it has been observed that as against the revisionists, who have been convicted for the offences under Sections 379 and 411 IPC, the proceedings were conducted by the Trial Court and in consonance with the provisions and procedure contained under Section 207 Cr.P.C.. Though there was a blatant denial by the revisionists of their involvement in the commission of the offence, complained of against them, but, the prosecution based on the evidence, which was recorded before the Court below, which was placed on record, i.e. Exhibit Ka-1, i.e. report submitted by the complainant, Exhibit Ka-2 i.e. fard baramdagi of the stolen animals, the site plan i.e Exhibit Ka-3, the chargesheet i.e Exhibit Ka-5 and the F.I.R. Exhibit Ka-6. Apart from it, the prosecution while placing reliance on the aforesaid evidence has also recorded the statement of oral witnesses of PW1 Shamsher Ali, PW2 Gulam Hussain, PW3 Yusuf and PW4 Gama Chopra, who are shown to be the prime witnesses to be considered for the purposes of establishment of the offence under Sections 379 and 411 I.P.C. as levelled against the present revisionists.

On the other hand, in defence thereto, they were heard by the Court below and on the basis of the report of the fard baramadgi dated 06.06.2005, the accused revisionists, herein, it is contended that the allegation of the stolen animal being recovered from the custody of the revisionists was settled by the evidence, which was produced before the Court below, as would be apparent from the report submitted by the Police on 10th June, 2005.

Whereas, in defence thereto, the revisionists has submitted that the entire story pertaining to the recovery of the animals from their custody and their remotest possibility of they having stolen the animals from the complainant is a concocted and a false story and even on the appreciation of the evidence led by the parties, it does not establish the commission of the offence beyond doubt under Sections 379 and 411 IPC and hence, they deserved to be exonerated of the charges as framed by the Court below.

The Trial Court as a consequence of the judgment impugned in the present Revision dated 02.11.2010, had convicted the revisionists with a sentence of one year simple imprisonment for the offences under Section 411 I.P.C., as the stolen animals were recovered from their possession, but, however, for the offence under Section 379 IPC, since there was no direct evidence produced before the Court below to show that the revisionists were indulged in the act of stealing the animals, the same was held out to be not made out and established against the revisionists. The said order of conviction uner Section 411 IPC was also based upon by the Trial Court after considering the statement of eye witness, who was the police personnel PW5, namely Kuldeep Rawat, and apart from it, as per the statement of revisionists and other eyewitnesses, which were produced by the prosecution, the Court has tentatively on recording the statement with regard to the recovery of the animals from the custody of the revisionists by the police party, who has apprehended them has held out that the offence only under Section 411 IPC is apparently made out and they have failed to take into consideration the fact of the statement of the complainant as well as that of some of the witnesses becoming hostile as to what impact would it carry on the conviction of an offence under Section 411 of the present revisionists.

Without considering the effect of hostility of the witnesses of the complainant, who was one of the prime witness for the purposes of establishing the commission of the offence and other supported witnesses who would have justified the act of involvement of the revisionists in commission of the offence under Section 411 IPC, it cannot be said that the finding, which has been recorded by the Trial Court for inflicting an order of conviction under Section 411 IPC, it was resulting into an establishment of the offence beyond the doubt. This aspect has also to be considered from view point that as it has been argued by the learned G.A. that the entire prosecution as well as the Court of Judicial Magistrate in the case which involved the commission of the offence under Section 411 IPC, which is based upon the alleged theory of the recovery of the stolen animal from the custody of the revisionists, both the Courts have not considered implications of the provisions contained under Section 34 of the I.P.C.

For the said purpose, it would be apt to refer to the provisions contained under Section 34 of the I.P.C., which contemplates as under :-

"[34. Acts done by several persons in furtherance of common intention. - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]"

The aforesaid provisions provides that where the act of commission of offence is alleged to have been committed by a group of person or several persons involved in commission of it, there has had to be establishment of common intention of the co-accused person, which has to be established by evidence, for the purposes of commission of the offence and until and unless a common intention is settled and proved on the appreciation of evidence on record by the Courts below, the offence under Section 34 IPC cannot be said to be made out, if it is read in correlation to the nature of offence for which the conviction has been imposed on the revisionists, which entailed an involvement of two or three accused persons from whose custody the stolen animals was projected to have been recovered by the prosecution.

On a challenge being given to the said order since the judgment of conviction has been affirmed by the Appellate Court, which too was based on almost on an identical finding and appreciation of the evidence, which was led before the Court below, it has resulted into the affirmation of the sentence by the impugned judgment of the Appellate Court dated 9th December, 2011.

But considering the argument of learned counsel for the revisionist from the prospect of non adherence or the satisfying the condition of Section 34 IPC, whereas, it entails consideration of joint involvement in commission of offence and is projected to be a joint involvement in the commission of offence, the revisionists ought not to have been convicted for an offence under Section 411 IPC, which was not establishing and settling beyond doubt and particularly when the witnesses of the prosecution who were supposed to record the statement before the Court has turned hostile and hence, it cannot be said that the offence was made out to be proved beyond doubt.

As a result thereto, and for the reason aforesaid, the Revision is allowed. The impugned orders of conviction dated 02.11.2010 and 09.12.2011, passed by both the Courts below respectively are set aside. The revisionists are hereby acquitted of the offence and conviction under Section 411 IPC. The revisionists, who are on bail, they are not required to surrender and their bail bonds as furnished by them for availing the bail as granted by the Court below would stand discharged.