- (1.) THIS is an appeal against the judg ment and order dated 31-07-1985 passed by Sri V. N. Mehrotra, the then learned Sessions Judge, Almora convict ing and sentencing the appellants under section 427 IPC for one year rigorous imprisonment. Feeling aggrieved by the said order the appellants had preferred this appeal.
(2.) SRI Mahesh Singh, appellant No. 3 is absconding for the last 4-5 years. SRI B. S. Parihar, Amicus Curiae is represent ing as his counsel. SRI Basant Ballabh, appellant No. 4 had died, hence the case against him stands abetted. Brief facts for the disposal of this appeal are that Ram Prasad had a Halwai Shop at Daniya market. The ap pellants had their tea stalls and hotels at the same market. It was further al leged in the prosecution case that there was a business jealousy in between the appellants and Ram Prasad (PW 1 ). It is also alleged that the appellants had threatened him on earlier occasions and the FIR was lodged for the same. The appellants came to the shop of Ram Prasad on 06-03-1985 and they de manded the contribution from him for the Holi festival. When Ram Prasad did not pay the contribution and he refused to pay anything to them, the appellants became annoyed. On the next day, i. e. 0/-03-1985, which the day on which the colour festival of Holi was there. PW1 Ram Prasad alongwith his servant Shanker Dutt (PW3) were working at his shop, the appellants came there and they started breaking and destroying the Bhattis, show-case, furnitures and other articles kept in their shop. Accused per sons also broke of his case box and had taken away Rs. 300/- from it. During the course of the occurrence some persons reached at the spot including Kaustuva Nand (PW2) and Head constable Prem Ram (PW 4 ). The appellants were stat ing that Ram Prasad had not given the contribution for the Holi festival so they had committed this offence. The appel lants also hurled abuses upon Ram Prasad. Thereafter Kaustuva Nand went to Patwari, Daniya for lodging the report but Patwari, Daniya refused to register the case by saying that he was ill and he would not be in a position to reach at the scene of occurrence. When his report of the incident was not recorded at Patti Patwari, Daniya, Ram Prasad proceeded for Almora on 08-03- 1985 and submitted written application to the District Magistrate, Almora. The District Magistrate, Almora directed the Qanungo, Daniya to register the case. Pursuant to the order of the District Mag istrate, Qanungo Daniya registered the case and lodged the FIR and reached at the spot immediately after the lodging of the report and he conducted the inves tigation which culminated into the sub mission of the charge sheet. The accused were charged by the trial court and they denied the charges and claimed the trial.
(3.) THE prosecution, in support of its case, examined Ram Prasad (PW1) who was the complainant of the case and he is the eye witness of the incident. Kustavan and (PW 2) who is also an eye witness of the incident. He reached im mediately at the place of incident, Shanker Dutt (PW 3), servant of Ram Prasad who was working with Ram Prasad in his shop at the time of the in cident. He is also an eye witness of the incident. THE head constable Prem Ram (PW 4) was a traffic constable who was posted at Daniya market and he was also present at the time of the incident at the spot. Girish Chandra Joshi (PW5) is the Investigating Officer of this case. The appellants were examined under section 313 of the Code of Crimi nal Procedure. They have denied all the averments made in the evidence and stated that they had been falsely impli cated in the case. The defence also ad duced the evidence of Bhupal Singh Bisht (DW 1), the then Patwari, Daniya who had stated that on 0/-03-1985 he had not refused to lodge the report of the complainant.;