Court No. - 60
Case :- CRIMINAL APPEAL No. - 6687 of 2011 Appellant :- Mahendra Mallah Respondent :- State Of U.P.
Counsel for Appellant :- A.K. Mishra Counsel for Respondent :- Govt. Advocate
Hon'ble Rajiv Lochan Mehrotra,J.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
The judgement and order dated 01.10.2011 passed by learned Additional Sessions Judge Ex-Cadre, Mirzapur in Sessions Trial No. 243 of 2010 (State Vs. Mahendra Mallah and others) arising out of case crime no. 925 of 2010 convicting the appellant for 10 years rigorous imprisonment and a fine of Rs. 5,000/- under sections 328/379 I.P.C. is under challenge in the present criminal appeal.
In the nutshell, prosecution story is that on 20.8.2010, complainant Jaswant Pal handed over a written report to the In- charge, Police Station Kotwali Katra, District Mirzapur with the averments therein that on 16.08.2010, he was going to Mirzapur by Bhagalpur Express. When the train reached at Vindhyachal Railway Station, a thin man aged about 32 years with short height met him in the train and introduced himself as a resident of Chopan. Both of them became friends very soon. After boarding at Mirzapur Railway Station they moved to the Bus Station whereat the said person offered a Frooti to the complainant. Just after enjoying the Frooti, the complainant became unconscious. The said person after that took away his bag,cash and other articles. The complainant was treated in the Primary Health Centre, Mirzapur.
The matter was investigated and thereafter a chargesheet under section 328/379 I.P.C., was submitted against the accused Mahendra Mallah and one Vipin Chaudhary.
Charges under sections 328/379 I.P.C. were framed against both the accused persons. They denied the charges and claimed trial.
In support of the charges, the prosecution examined P.W.1 Monu Sonkar and P.W.2 Jaswant Pal (complainant) as witnesses of facts. As the genuineness of the prosecution documents were not disputed by the learned counsel for the accused, therefore, the prosecution did not examine any formal witness.
It is argued by learned A.G.A. that P.W. 1 Monu Sonkar sold Frooti to the accused on the day of incident and the appellant thenafter mixed some poisonous substance in it and offered it to the complainant. However, Monu Sonkar in his examination in chief did not support the said version and categorically said that he was not present at his shop on the day of incident. It is further said by this witness that he did not sell any Frooti to anyone on the said date. At the time of recording of statement of this witness, the appellant Mahendra Mallah was present in the court. When asked whether the same man has purchased Frooti from his shop, the witness refused to recognize him.
P.W.2, Jaswant Pal initially supported the prosecution version and said that the accused present in the court had offered him Frooti but later on in his cross examination, he took a complete turn and said that the man who offered him Frooti was thin and of short height and the man present in the court did not offer him anything on the date of incident. Both these witnesses were declared hostile. Though, they were cross- examined at length but no such fact could be elicited in the cross examination which may doubt their version.
The co-accused Vipin Chaudhary was acquitted by the trial court on ground that no substantive evidence is adduced against him but how appellant was convicted on the same evidence is a matter of surprise. The appellant though present in the court on date of evidence could not be identified by both the witnesses of facts. Both these witnesses of facts specifically said that the person present in the court neither purchased any Frooti nor offered it to the complainant, therefore, it cannot be said that the prosecution has succeeded in proving the charges against the appellant. Thus, on the basis of above said evidence, judgement and order under challenge is liable to be set aside.
Accordingly, the appeal is allowed and impugned order of conviction and sentence dated 01.10.2010 against appellant- Mahendra Mallah is hereby set aside and he stands acquitted. The appellant-Mahendra Mallah is in jail, therefore, he be set free forthwith, if not required in any other case.
Let a copy of the said judgement alongwith lower court record be transmitted to the concerned court for information and necessary action.
Order Date :- 30.3.2018 aks