Gyan Chand Revisionist Vs. State of Uttaranchal - Court Judgment

U.C. Dhyani, J. (Oral)

1. Present criminal revision was preferred by the accused-revisionist Gyan Chand, against the judgment and order on 09.06.2006, passed by Sessions Judge, Uttarkashi, in criminal appeal no. 14 of 2004, whereby the learned appellate court rejected the appeal of the accused-revisionist and affirmed the judgment and order dated 31.05.2004, passed by learned Judicial Magistrate, Uttarkashi, convicting and sentencing the accused-revisionist under Sections 353 and 504 IPC.

2. One Ashok Kumar Sharma, Culture Jamadar, Gangori Barrier In-charge, wrote a complaint to PS Maneri on 28.09.1999, stating therein that the Gangori Barrier was closed on 27.09.1999 as usual. A taxi bearing registration no. UP-09828 came at 8:35 p.m. Two bags were kept on the rooftop of the taxi. The informant as well as his associate Kripal Singh wanted to check the bags kept on the rooftop of the taxi. Taxi driver refused the request of the forest officials to stop the vehicle. The taxi driver asked the forest officials to open the barrier. Shri Gyan Chand (accused-revisionist) who was a member of legislative assembly (MLA) from Uttarkashi constituency, alighted from the taxi. Gyan Chand slapped Ashok Sharma on his face. He (accused-revisionist) also hurled abuses at him and threatened the informant with dire consequences. The member of legislative assembly (MLA) was accompanied by two people excluding the driver. MLA (revisionist- Gyan Chand) said that the officials of forest department do not abide by anybodys instructions. MLA directed his companions to catch hold of Kripal Singh and carry him in the taxi. The board of MLA was not displayed on the taxi. It was apprehended by the forest officials that the forest produce was kept there inside the car. The barrier was forcibly opened and the car crossed the barrier on the dictates of MLA. Such report was lodged in PS Maneri on 28.09.1991, at 00:15 (12:15 A.M.).

3. After the investigation, charge-sheet was submitted by the I.O. against the accused person in respect of offences punishable under Sections 353, 504 and 506 IPC. Accused appeared before the learned Magistrate. A charge-sheet in respect of the offences punishable under Sections 353, 504 and 506 was filed against the accused, who pleaded not guilty and claimed trial. Five witnesses, namely, PW 1 Kirpal Singh, PW 2 Pooran Das, Resin Chowkidar; PW 3 Preetam Singh, PW 4 Head Constable Rajendra Prasad and PW 5 Shiv Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C. in which he said that he was falsely implicated in the case. After hearing learned counsel for the parties, learned Judicial Magistrate, Uttarkashi convicted the accused-revisionist under Section 353 IPC and 504 IPC. He was awarded one years rigorous imprisonment and fine of 1000/-, in default of which, he was directed to further undergo two months rigorous imprisonment in relation to offence punishable under Section 353 IPC, and nine months rigorous imprisonment with fine of Rs. 500/- in default of which, he was directed to undergo one months further rigorous imprisonment in relation to offence punishable under Section 504 IPC. Both the sentences were directed to run concurrently. Aggrieved against the said judgment and order of the trial court, a criminal appeal was preferred before the Sessions Judge, which too was dismissed by the learned appellate court affirming the judgment and sentence awarded by the learned Magistrate. Having aggrieved with the impugned judgment of the learned appellate court, present criminal revision was preferred before this Court.

4. PW 1 Kirpal Singh proved his complaint (Ext.Ka-1). He said in his examination-in-chief that on 27.09.1999, at 8:00 p.m., he was posted on barrier Gangeri Barrier. The barrier was closed at that time. A taxi bearing registration no. UP 09- 828 was seen coming from Bhatwadi to Uttarkashi. Two bags were kept in the carrier of the taxi. Barrier incharge Ashok Kumar Sharma instructed PW 1 to check the taxi. PW 1 proceeded ahead to check the taxi. The driver of the taxi misbehaved with PW 1 and asked him to open the barrier. Barrier in-charge Ashok Sharma requested them to help in checking the vehicle and only then the barrier will be opened. Since PW 1 went rooftop of the taxi, Gyan Chand, MLA, (revisionist) alighted from the car and asked the forest officials to open the barrier. Gyan Chand slapped on the face of Ashok Kumar Sharma. When PW 1 questioned the accused-revisionist as to why he slapped Ashok Sharma, Gyan Chand told who was PW 1 to check his taxi? Gyan Chand also pushed PW 1 aside. Checking of forest produce is done in the forest barrier. When alarm was raised, Pooran Singh and Preetam Singh of the forest department reached there. Thereafter the barrier was opened and the driver was allowed to cross to his car. It was a private car. PW 1 heard that vehicle of Gyan Chand carried forest produce in the past.

5. PW 1 also said that barrier in-charge Ashok Kumar Sharma was dead. PW 1 identified the signatures of the informant Ashok Kumar Sharma and proved the same as Ext. Ka-1. In the cross-examination, PW 1 said, apart from other things, that Gyan Chand did not display the board of MLA. He recognized Gyan Chand, as he was the member of the legislative assembly (MLA).

6. PW 2 Pooran Das, Resin chowkidar corroborated the evidence of PW 1 Kirpal Singh. He said that on 27.09.1999, at 9:45 p.m., when PW 2 was inside his room, he heard noise coming from outside. Gyan Chand was pushing PW 1 Kirpal Singh. Ashok Kumar Sharma, Preetam Singh and Kirpal Singh were present there. Two people were sitting in the car, besides MLA and his driver. Gyan Chand did not permit checking of the bags. Forest produce was to be checked in the forest barrier. In the cross-examination, PW 2 said that no other forest employee was present except Kirpal Singh and Ashok Sharma. He knew the MLA personally. The car did not display any board.

7. PW 3 Preetam Singh, chowkidar supported the evidence of PW 1 Kirpal Singh and PW 2 Pooran Das. Vehicle of Gyan Chand was coming from Bhatwari. It was a private car. In the cross-examination, PW 3 said that Kirpal Singh had already reached on the spot when PW 3 came. PW 3 intervened. Pooran Das, Kirpal Singh and Ashok Sharma were present along with him. He knew Gyan Chand from before this incident. Gyan Chands vehicle was stopped in order to find out whether there was any forest produce inside the car ?

8. Nothing came in the cross-examination of PW 1, PW 2 and PW 3 so as to cast suspicion on their testimony. PW 1, PW2 and PW 3 tendered their evidence in a natural way. Their testimony was believable, in as much as, their evidence would have been acceptable to a prudent person. It goes without saying that the evidence on record is to be scrutinized by the courts from the point of view of a prudent person and if the testimony of PW 1, PW 2 and PW 3 is looked at from this point of view, there is no hesitation in coming to the conclusion that their testimony was believable.

9. PW 4 Head Constable Rajendra Prasad Goud was a formal witness and PW 5 Shiv Singh was the Investigating Officer of the case.

10. A plea was taken before the learned Magistrate that sanction under Section 197 Cr.P.C. was required in order to prosecute a member of the legislative assembly. Learned Magistrate has rightly turned down such a plea in the light of ruling of Honble Supreme Court in State of Himachal Pradesh vs. M.P.Gupta (2004) 2 SCC 349.

11. Learned counsel for the revisionist submitted before this Court that there was delay of 16 hours in lodging the first information report and such delay was not explained. This Court is unable to subscribe to the argument of learned counsel for the revisionist, in as much as, the accused in the instant case, was a sitting MLA and it is always difficult to set the criminal law into motion against an influential person like him, especially in the remote areas of the hills where noble people are revered like anything but it takes little time to initiate legal action against the influential wrongdoers. Police has often a tendency to succumb to the political pressure, which, thankfully, was not illustrated in this case. The delay stood satisfactorily explained in view of the fact that an official of the lower rung of the forest department must have been hesitant to lodge the first information report initially but mustered the courage to do so for preserving self-esteem. The incident took place in the night. Even if there was 16 hours delay in lodging the FIR, it cannot be said that the same was suffering from any embellishment. It was also not possible to find out any independent witness in the remote part of the hills, keeping in view the fact that the incident took place at 8:35 p.m. There was no contradiction, what to talk of material contradiction in the testimony of the prosecution witnesses.

12. There was no infirmity in the judgment rendered by learned Magistrate. Learned appellate court also discussed the evidence of PW 1, PW 2 and PW 3 and has rightly come to the conclusion that the offence punishable under Section 353 IPC was established against the accused-revisionist. Such incidents have demoralizing effect on the public servant. The accused may be given benefit of doubt so far as the offence punishable under Section 504 IPC was concerned, in as much as, no evidence was offered to show that the insult given by Gyan Chand gave provocation to the forest officials intending or knowing it to be likely that such provocation will cause forest officials to break public peace or to commit any other offence. The language allegedly used by the accused while intentionally insulting forest officials was not reproduced in the evidence. Otherwise, the offence under Section 353 IPC was proved beyond reasonable doubt on the strength of testimony of prosecution witnesses, who although belonged to the same department, but nonetheless their testimony could not be ignored on the face of ruling of Chaudhary Ramji Narsan Bhai vs. State of Gujarat (2004) 1 SCC 184. Thus there appeared to be no illegality in the impugned orders dated 31.05.2004 and 09.06.2006. There are concurrent findings of the Courts below. Although the revisionist deserves to be given benefit of doubt in respect of offence punishable under Section 504 IPC but his conviction under Section 353 IPC is hereby affirmed.

13. Criminal revision preferred by the revisionist is partly allowed. The conviction and sentence awarded to him under Section 504 IPC is hereby set aside, but his conviction in respect of the offence punishable under Section 353 IPC is hereby affirmed and maintained.

14. Accused-revisionist Gyan Chand assaulted forest official with intent to prevent the forest official from discharging his duties as such public servant. Such offence entails the punishment of two years or with fine or with both. Accused-revisionist is not a previous convict. This Court is therefore, of the view that the accused-revisionist, instead of sentencing to prison, should be granted benefit of Section 4 of the Probation of Offenders Act, 1958.

15. It is accordingly provided that although accused Gyan Chand is held guilty and convicted of the offence under Section 353 IPC and the punishment awarded to him is also affirmed, but having regard to the circumstances of the case including the nature of offence and the character of offender, it is found expedient to release the revisionist on probation of good conduct. Thus, instead of sentencing the accused Gyan Chand at once and sending him to prison, it is directed that he be released on his entering into a bond with two sureties in the like amount to the satisfaction of CJM Uttarkashi, to appear and receive sentence when called upon during the period of three years and in the meantime to keep the peace and be of good behavior. The offender shall remain under the supervision of District Probation Officer, Uttarkashi or if such an officer is unavailable for any reason, under the supervision of such correctional institution, as may be nominated by the District Magistrate, Uttarkashi, during such period. If the offender is found to be violating any of the conditions made in the supervision order, he will undergo rigorous imprisonment for a period of one year and shall also be liable to pay a fine of Rs. 1000/-, in default of payment of which, he shall further undergo two months simple imprisonment.

16. With the directions as above, the criminal revision is finally disposed of. Let the Lower Court Record be transmitted back for ensuring compliance.