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Mohammad Umar v. Abdul - CRIMINAL APPEAL No. 2611 of 1981 [2006] RD-AH 7125 (3 April 2006)


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Criminal Appeal No. 2611 of 1981

Mohammad Umer . --Complainant-Appellant.


Abdul Qadar and others. -Accused-respondents.

Hon'ble R.N. Misra, J

This appeal has been preferred by the complainant-appellant against the judgment and order dated 17.5.1980, passed by Sri V.P.Singh, the then Ist Additional Munsif Magistrate, Saharanpur in Criminal Case No. 421 of 1979, whereby the respondents no. 1 to 4 were acquitted of the charges levelled against them for the offence punishable under Sections 323/506 I.P.C., Police Station Kotwali, district Saharanpur.

According to the F.I..R version, the complainant-appellant and respondents belonged to same locality and were related with each other. There was some enmity between them prior to the incident in question. A complaint case of 'Mar Peet' was already going on between them. Due to said enmity on 5.5.1979 at about 10.30 P.M. The accused-respondents assaulted the complainant-appellant when he was flowing water of his house through their Nali which was obstructed by the respondents. The complainant-appellant sustained injuries. The witnesses, Kallu, Sabbir, Liyakat and other saw the occurrence.

The complainant-appellant lodged the F.I.R. Exbt. Ka-1 at Police Station Kotwali, district Saharanpur. The police registered a non-cognizable case, therefore, he filed a complaint on 5.7.1979 which was lateron dismissed at the stage of evidence under Section 244 Cr.P.C., then again he filed a complaint on 13.7.1979 on which trial begun. The accused-respondents were charged for the offences punishable under Section 323/506 I.P.C.

In support of his case, the complainant-appellant examined himself as P.W-1 and Liyakat as PW-2. Dr. N.K. Saxena was also examined as PW-3 who had conducted the medical examination of the injuries of complainant-appellant. The injury report is Ext. Ka-2. Constable Om Prakash who had been examined as PW-4, had written the F.I.R. Ext. Ka-1 on the oral submission of the complainant-appellant.

The accused persons denied the charges levelled against them and alleged their false implication due to enemity. They had produced Liyakat son of Abdid Husain, as DW-1,  Constable Dilawar Singh as DW-2 and Sabbir son of Abdullah as DW-3 in their defence.

After hearing the parties and considering the evidence on record, the learned trial court acquitted the accused-respondents by the impugned order, against which this appeal.

I have heard learned counsel for the complainant-appellant and A.G.A. for the State. None appeared for the accused-respondents. Perused the evidence on records.

This fact is not disputed that both the parties were living in same Mohalla and as admitted by the complainant-appellant in his statement on oath  they were related with each other. This is also not disputed that there was some enemity between them. A criminal case was already going on and the proceeding under Section 107 of Cr.P.C. was also initiated between them. According to the complaint case, due to said enemity on 5.5.1979, at 10.30 P.M., the complainant-appellant was assaulted by the respondents. The injury report Ext. Ka-2 shows that there were a number of contusion injuries on the body of complainant-appellant which were caused by blunt object. In the F.I.R, Ext. Ka-1, there was no mention of Lathi. It was written in the F.I.R. that the accused persons assaulted the complainant-appellant by Kicks and Fists but  in the evidence before the Court, Lathi was introduced and it was stated by the complainant-appellant,   Mohammad Umer that two of the accused had Lathis in their hands. Neither in the F.I.R Ext. Ka-1 nor in the complaint,  place of occurrence was specified. In the F.I.R, it has been written that the accused persons told the complainant-appellant that they will not allow flow of water from their Nali and on that Mar Peet took place. The complainant never disputed contents of F.I.R, nor approached any higher police officers against any wrong version or omission in the F.I..R.  No place of occurrence was mentioned in the F.I.R. In the complaint also, the place of occurrence has not been specified. In the statement before the Court, the complainant-appellant specified the place of occurrence to be his Darwaza. Learned trial court has doubted complaint version on this point also.

PW-2, Liyakat was purely a chance witness. He was a Rickshaw Puller. He alleged that at the time of occurrence, he was passing out through the house of complainant-appellant and saw that the complainant was being beaten by the  accused-respondents and he intervened but specifically at page 4 of his statement on oath, he has stated that when he reached the place of occurrence, the complainant-informant had already sustained injuries. This shows that he did not see the accused persons while causing injuries to the complainant-appellant. This witness being chance witness was obliged to disclose for what purpose he was going on at the time of occurrence and how he is there . But  he did not disclose any particular purpose. No other witnesses named in the F.I.R was examined by the complainant-appellant.

The accused witnesses have given negative evidence that no such occurrence took place and the complainant had approached them to give evidence in his favour.

PW-3. Dr. N.K. Saxena who had examined the injuries of complainant-appellant has proved the injury report Ext. Ka-2 in which duration of injuries were written to be fresh, means within six hours but no where in the injury report, he  had given colour of contusions. Thus it is strange that how he fixed duration of injuries  without colour, which could not be assessed. This fault has been admitted by the doctor in his statement on oath.

One Sabbir  was examined as witness  in the complaint, but when a notice was issued, the police reported that no such person existed. The accused persons have examined one Sabbir son of Abdullah as DW-3 who has given negative evidence as I have discussed earlier.

In such circumstances, it is evident that there was no clear evidence on records for conviction of accused-respondents, therefore, the learned trial court passed the order of acquittal against the respondents.

In the complaint itself it has been mentioned that the first complaint on the same cause of action was filed by the complainant-appellant which was dismissed at the stage of evidence under Section 244 Cr.P.C.  The learned AGA pointed out that the second complaint was not maintainable but I see no force in this contention.  The first complaint was dismissed under Section 244 Cr.P.C therefore, the second complaint was not barred under Section 300 Cr.P.C.

In view of my above discussions,  I come to the conclusion that the judgment and order passed by the learned Trial Court are correct.  This appeal is devoid of merits and is liable to be dismissed.

Accordingly, the appeal is dismissed. The judgment and order of acquittal dated 17.5.1980 is hereby confirmed.




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