RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL GOVERNMENT APPEAL No.333 of 2007 (Old No.199/1989) The State ……… Appellant Versus 1. Paramanand S/o Ganga Dutt R/o Village Tani 2. Bhagwant Singh S/o Trilok Singh 3. Mohan Singh S/o Gulab Singh 4. Deewan Singh S/o Gopal Singh All R/o Village Dhawas Patwari Shetra Dhamas, Almora ………… Respondents Dated: April 03, 2008 Sri Nandan Arya, learned AGA for State/appellant Sri J.S. Virk, learned counsel for the respondents HON. DHARAM VEER, J. This appeal, preferred under Section 378(1) of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 31.08.1988 passed by Assistant Sessions Judge, Almora in Sessions Trial No.10/1888, whereby, the learned Assistant Sessions Judge has acquitted the respondents for the offences punishable under Sections 436, 325, 338 & 448 r/w Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). 2. In brief the prosecution story is that complainant Balkishan lodged a report with Naib Tehsildar, Almora alleging therein that on 4.11.1986 at about 9:00 P.M., the respondents namely Parmanand, Mohan Singh, Diwan Singh and Bhagwat Singh along with some other persons came at the shop of the complainant in village Tani. They started to hurl stones 2 and also started destruction in the shop. When the complainant objected for the same, then the respondents hurled stones due to which complainant Balkishan and his mother were injured. For the purpose of safety, the complainant and his mother hid inside their house. The respondents along with some other persons broke open the door of the shop and began to destruct the goods and articles kept inside the shops. It was also stated that the respondents and other accomplices continued in destructing the shop till 12:00 A.M. It was also stated that they also set fire to the shop and the articles inside the shop with the hay and kerosene oil. In the meantime, Laxmi Dutt, who was called by the sister of complainant, came and attempted to intervene but the respondents also injured him by hurling stones on him. Thereafter, a noise of Truck came from the side of Bimola, then the respondents and their accomplices ran away threatening the complainant and his family members that they would burn the them alive. Thereafter, the complainant and his family members came down and they extinguished the fire of the shop. The complainant Balkishan also came to know that the respondents took away the safe kept inside the shop which was containing Rs.20,000/- in cash, 3 golden Golobands, two Naths and three pairs of ear rings. Besides this, the respondents and their accomplices also took away the other goods and articles. The respondents, in this way, looted and destroyed the articles, amounting to Rs.50,000/-. Due to this reason, the complainant and his family members could not sleep in the night. Since the Patwari was not present at the relevant time at his station, so the report was lodged with Naib Tehsildar. With the same averments, the FIR was lodged with Naib Tehsildar, Almora on 5.11.1986 by Sri Balkishan, that 3 report is Ex.Ka-3. (In the rural areas of State of Uttarakhand, the Patwaris and Kanungos are being vested with police powers). On the basis of this report, Shambhu Dutt, Kanungo prepared the Chik FIR and case was registered u/s 436/395 IPC, that Chik FIR is Ex.Ka.4. Injured Smt. Debuli Devi was also medically examined by Medical Officer, Distt. Hospital, Almora on 5.11.1986 at 4:15 P.M. and the injury report was prepared, i.e. Ex.Ka-1. Ex.Ka-2 is the X-ray report in respect of injured Smt. Debuli Devi prepared by Radiologist, H.G. Pant Hospital, Almora.The investigation of the case was also entrusted to Shambhu Dutt, Kanungo. During the course of investigation, he inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-5. The I.O./Kanungo, during the course of investigation, recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet u/s 436/457/323/325/427 IPC against the respondents in the court of CJM, Almora, the charge sheet is Ex.Ka-15. 3. Learned Chief Judicial Magistrate, Almora committed the case to the court of Sessions on 19.1.1988 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 4. On 28.04.1988, Assistant Sessions Judge, Almora framed the charge against the respondents- Parmanand, Bhagwant Singh, Mohan Singh and Diwan Singh under Sections 436 IPC, 325 r/w 34 IPC, 338 r/w Section 34 IPC and 448 of IPC. The charge was read over and explained to them who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution got examined P.W.1 Dr. M.L. Aggarwal who has medically 4 examined the injured Smt. Debuli Devi, P.W.2 Smt. Debuli Devi, injured witness, P.W.3 Bal Kishan (complainant of the case), P.W.4 Jai Ballabh, brother of complainant, P.W.5 Mahesh Chandra, eyewitness and P.W.6 Shambhu Dutt, I.O. of the case. 6. Thereafter, the statements of the respondents Parmanand, Mohan Singh, Diwan Singh and Bhagwat Singh were recorded u/s 313 of Cr.P.C. and the oral and documentary evidence were put to them. However, they denied the allegations made against them and in defence they had not produced any oral or documentary evidence. 7. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Assistant Sessions Judge, Almora vide his judgment and order dated 31.08.1988 acquitted the respondents for the offences punishable under Sections 436, 325, 338 & 448 r/w Section 34 of IPC. Feeling aggrieved by the said judgment and order, the appellant/State has preferred the present appeal. 8. I have heard Sri Nandan Arya, learned AGA for the appellant/State and Sri J.S. Virk, learned counsel for the respondents and perused the entire material available on record. 9. To prove its case, the prosecution examined P.W.1 Dr. M.L. Aggarwal who has stated that on 5.11.1986 he was posted as Medical Officer in District Hospital, Almora and on that day at 4:15 P.M., he had medically examined Smt. Debuli Devi. He found following injuries on her person: - 1. Lacerated wound 6 cm x 0.5 cms. x bone deep over right side of scalp 6 cms. above the right ear apex and 17 cms. above the right eyebrow. Hard blood clot present. 5 2. Contusion 8 cm x 9 cms. over back of right leg just below the popliteal fossa. Reddish in colour. The patient was complaining of pain over right side of chest below the right breast but no external marks of injury was present. The doctor also opined that the injuries could be caused by blunt object like Kundala and the duration of injuries were opined to be about 24 hours old. Injury no.1 was kept under observation and x-ray was advised. Injury no.2 was simple in nature. He also prepared and proved the medical report, i.e. Ex.Ka-1. He also stated that the both the above said injuries could possibly be caused by stones on 4.11.1986 at 9-10 P.M. As per X-ray report, no fracture was found. He also proved the report of Radiologist in which NAD i.e. “Nothing Abnormal Deducted” was written, that report is Ex.Ka-2. 10. P.W.2 is Smt. Debuli Devi who has stated that name of her village is Tani and she was having two houses in the said village. In one house, she was residing and in another house, a shop was constructed. She also stated that the distance between her house and shop is the same distance which is between the court’s stairs and the court. The Court’s itself observed “the distance from the court’s stairs to the court is between 100 meters”. There was a ridge between the shop and the house. She also stated that if somebody would call someone from the house, then the voice could not be heard at the shop. She was having two sons and the said shop was constructed 10 years back. In one floor of house, shop was there and in another floor, residence was there. In the ground floor, Balkishan runs a shop of grocery and in another side of ground floor, another son Jai Ballabh runs a fair price shop. On the date of incident, nine family members were present in the house. On that day, her three daughters in law were present in the second storey of the house and Bal Kishan was having two wives, who were also at the shop. She and her son Balkishan was in the house and another son Jai Ballabh had gone to invitation to some religious ceremony. The incident relates back to 1½ year. On 6 that day, Bagwali festival was being celebrated. At about 9:00 P.M., about 15-20 persons came to the house and called Balkishan outside. When Balkishan came outside, then they hurled stones at Bal Kishan, When she came to rescue her son Balkishan, she identified the respondents Parmanand, Bhagwat Singh, Mohan Singh and Diwan Singh among other 15-20 persons. She also stated in the court that the persons who were standing in the court, she was not able to see them whether they are the same accused persons or not, as she could not see properly. (tks yksx U;k;ky; esa [kM+s gSa eSa mUgsa ns[k ugha ldrh fd ;s yksx ogh O;fDr gSa ;k ugh] eSa vka[kksa ls de ns[k ldrh gw¡). She also stated that after receiving the injuries from stones, her eyesight was lessened. She had recognized the respondents in the electric light. The respondents had hurled stones on her and after receiving the injuries by stones, she became unconscious, as the first stone hit at her head. On the next day, she came to her sense. Thereafter, she was taken to Almora Hospital by his son through a Taxi. In the hospital, a medical certificate was prepared and she remained in the hospital for 4-5 days. In her cross-examination, she has stated that she could not see that who hurled the stones (iRFkj fdlus ekjs Fks eSa ;g ns[k ugha ikbZA). She further stated that she also did not know as to whether the stones were hurled by the above-said four persons or not. (eq>s irk ugha fd pkj mDr yksxksa esa ls iRFkj ekjs ;k ugha). 11. P.W.3 is Balkishan, complainant of the case, who has stated that he and Jai Ballabh are two brothers and he is the elder one and younger brother is Jai Ballabh. He stated that his father has expired and he was living in Village Tani and was having a shop. He also stated that since last 10 months, he is doing the shop of grocery. His younger brother Jai Ballabh was having a fair price shop. He also stated that he and his brother 7 were having the shop on the roadside, which reach from Kosi to Kathpuria. In the four rooms of ground floor, a fair price shop, grocery shop, teashop and an electric flourmill was there. The flourmill and fair price shop were being run by his brother Jai Ballabh and he was running a grocery shop and the tea shop was being run by Madan Singh of village Bimola. His family, mother and family of his brother Jai Ballabh were residing in the upper storey. The incident is of 4.11.1986 and on that day, Bagwali festival was being celebrated. At about 5:00 P.M., respondent Mohan Singh, who was drunk, came to his shop and started altercation with his brother Jai Ballabh. He intervened and asked the respondent Mohan Singh to go to his home and also asked his brother Jai Ballabh to go home. After that, respondent Mohan Singh threatened that it will be costly to get involved with the residents of Dhamas and he will see them later on. Thereafter, Jai Ballabh after closing his shop, went his home to milk the buffalo and thereafter from home, he had gone to Bimola in some invitation. The invitation came from the sister’s house (t;oYyHk viuh nqdku cUn djds HkSal nqgus ?kj pyk x;k o fQj og ?kj ls fcekSyk pyk x;kA fueU=.k esa pyk x;k] fueU=.k cgu ds ;gk¡ ls vk;k FkkA). He also closed his shop and had gone to milk the buffalo. Thereafter, he arranged the goods in the shop and later on he went to his home at second floor with his children. At about 9:00 A.M. on the same day, the residents of Dhamas hurled stones at the house of the complainant and somebody called him out. At that time, electric light was there and visibility was there. On this, he came out at the verandah and saw that the respondents Parmanand, Diwan Singh, Bhagwat Singh and Mohan Singh being accompanied with 15-20 residents, were hurling the stones. One stone hit on his head and he began to cry and started shouting on which his mother 8 came to rescue him. Respondent Bhagwat Singh threw stones on her mother which hit her on head, chest and leg due to which she fell unconscious and her head began to bleed. After that, she was taken inside the house and the door was bolted from inside. Respondent Bhagwat Singh was on the roof of the house. He cut off the electric supply of the house and was also shouting from the roof. He further stated that he asked his sister from the window to inform and call the elders of the village. In the meantime, respondents started destruction in three rooms of the ground floor. He also heard the noise coming from his room. The respondents were shouting and they made the articles out from the shop. They were also talking about the setting fire to the house and shops with the bundles of hay after mixing it with the kerosene oil kept in the fair price shop. In the meantime, he heard Laxmi Dutt coming at the place of occurrence. Laxmi Dutt was talking to the respondents but he had also received injuries by stones. Due to hurling of stones, he did not open the door and on being injured, Laxmi Dutt gone from the place of occurrence to his house. At 9:00 P.M. on the same day, his sister’s son Mahesh also came and he also seen the incident. The respondents remained involved by 12:00 midnight in arson and sabotage. The respondents fled when a truck was seen coming from Bimola on the pretext that police had come. When the respondents fled away, then he came out and came to know that the fire had destroyed everything inside the three rooms of the ground floor. They put down the fire and meanwhile Hira Ballabh also came who also helped him in extinguishing the fire. He further stated that he found his safe missing which was kept under a pit on the floor. The safe contained the cash of Rs.20,000/- in cash, three golden Guloband, three 9 pairs of golden Karnphool and two golden Naths and other golden ornaments. Besides these things, one two band Radio was also found missing. At about 1-1½ A.M. in the night of occurrence, Jai Ballabh came and he told them that initially he went Bimola and when he came to know about the incident, he went Sialidhar and from there, he had informed the matter by telephone. He also stated that he also came to know from enquiry that Patwari had gone on leave and had not returned back. Thereafter, he along with his brother Jai Ballabh went to Almora court. Prior to this, they contacted S.D.M. in Sialidhar who informed him to report the matter at Tehsil Almora. He got the report written by Jai Ballabh in the court i.e. Paper No. 4-Ka/2. Thereafter, he gave this report to Naib Tehsildar, who directed him to give the report to Kanungo, that report is Ex.Ka-3. On going back via Hawalbagh, Kanungo met him in his shop at Tani where he gave him the said report. Thereafter, Kanungo prepared the Chik FIR. Thereafter, his brother Jai Ballabh took his mother in the hospital and got her admitted. He also stated that he was somewhat upset and since the injury was simple, he did not get himself medically examined. He also given his statement to the Patwari and Patwari inspected the place of occurrence and prepared the site plan. He also stated in his cross- examination that when he was locked in the room, then he was not able to see anything outside the room. For three hours, he was detained in the room. When the noise was stopped, then he came out. Then the respondents ran away and he came out. (tc ge dejs esa cUn gks x;s Fks] rc ckgj dqN ugha fn[kkbZ ns jgk FkkA ge djhc 3 ?k.Vs dejs esa cUn jgsA tc gYyk xqYyk cUn gks xpk rc ge ckgj vk;sA tc eqyfteku Hkkx x;s rc ge ckgj vk;sA) 12. P.W.4 is Jai Ballabh who has stated that he is resident of village Tani. He is having two brothers, elder 10 one is Bal Kishan and he is the younger one. His elder brother was having a grocery shop and he was having a fair price shop. The house in which he runs a shop, is a two storeyed house. In the ground floor, four shops are there. In the first shop, his fair price shop is there and the second shop is his go-down. In the third shop, Madan Singh runs a teashop and the fourth shop is the grocery shop of his brother Bal Kishan. In the upper storey, residence was there. In the fair price shop, kerosene oil, rice, sugar, wheat, flour, oil and other articles which are kept in the grocery shop, was being kept. In the teashop, tea was being cooked on a stove. On 4.11.1986 at about 5:00 P.M. in the evening, respondent Mohan Singh of village Dhamas came to his shop and misbehaved with him. He also warned him that it will be costly for him and also pounce on him and also tried to pull the articles from the shop. Thereafter, his elder brother Balkishan came to him and intervened and asked respondent Mohan Singh to go. After moving two paces, Mohan Singh warned to burn him alive in the night. Thereafter, he went his home after closing his shop and on an invitation, he went to Village Bimola. Village Bimola is about 2 kilometers from Village Tani. (foeksyk xkao xzke Vkuh ls 2 fdeh0 dh nwjh ij gS). At about 11:00 P.M., he reached at Village Bimola, then at 12:00 A.M., he heard the noise coming from his shop. He thought that respondent Mohan Singh might have committed something wrong as he had warned, hence he came back to his shop. Before 30-40 meters distant, he saw while hiding that electric light was off and all the doors from the side of upper storey were closed. When he saw down, then he saw four persons of village Dhamas i.e. respondents Bhagwat, Mohan Singh, Diwan Singh and Parmanand. He also identified them in the court. He saw 11 those persons while bringing the hay and burning the grocery and fair price shop. They also sprinkled the kerosene oil and also throwing the hay after burning. He recognized the respondents in the light of fire. Apart from those persons, 10-15 other persons were also standing. Thereafter, he came at the toll of Sialidhar and the distance from Tani to Sialidhar, on foot, is about 2½-3 Kms. He reached at the toll at about 12:30 A.M. in the night from where he telephoned at the office of District Magistrate and informed the matter on telephone. Since he did not get any reply from the office, then he went to his shop. When he was going to reach at his shop, then he saw a light coming from a Truck which was coming from Bimola. When he reached at his shop, then everything was burned and his family members were extinguishing the fire and the respondents were not there. He also saw the injuries on the person of his brother and mother. His brother Balkishan told him that the respondents had taken safe and Rs.50,000/- in cash from the shop. On the next day morning, he and his brother Balkishan came at Almora. Before reaching Almora, he had gone to lodge the report with Patwari but the Patwari was not available. Thereafter, he came to Almora and Balkishan got the report Paper No.4-Ka/2 scribed by him, that report is Ex.Ka-3. He also stated that the report was written by him and thereafter, he and Balkishan took the report to Naib Tehsildar who had ordered for Kanungo. Thereafter, he came back to his house and Kanungo also came at the house. The report was given to the Kanungo at the house and thereafter he remained at the house. Thereafter, he took his mother to the hospital where she was medically examined and was admitted in the hospital. 12 13. P.W.5 is Mahesh Chandra who has stated that Balkishan and Jai Ballabh are his maternal uncles. The name of his village is Tani and his maternal uncle was also a resident of village Tani. On 4.11.1986 at about 9:00 P.M., he was coming at the shop of his maternal uncle. In the upper storey of the house, his uncles were residing. As soon as he came, he saw four persons in the verandah. He recognized those persons as respondents Parmanand, Bhagwat Singh, Diwan Singh and Mohan Singh. He recognized those persons in the electric light. On seeing those persons, he went in the upper storey of the house of his maternal uncle. When he went inside, then he saw that 15-20 other persons were hurling the stones and were also abusing. Thereafter, they called his maternal uncle Balkishan out and when he came out, then they hurled stones on him which hit at his head. He also stated that he and other family members also came and stones were also hurled on them. Thereafter, they came inside the room and bolted the doors. When her maternal grandmother received injury by stone, then she became unconscious and fell down, thereafter, they took her in the room. Meanwhile, the respondents cut off the electric supply. Thereafter, they started destruction and also burned the shops and burning smell was also coming. On hearing the noise, Laxmi Dutt came. He heard the noise of Laxmi Dutt inside the house. Laxmi Dutt was stopping the respondents not to do the destruction, however the respondents also injured him. Due to fear, Laxmi Dutt also went to his home. The respondents remained involved by 12:00 midnight in arson and sabotage. The respondents fled when a truck was seen coming from Bimola on the pretext that police had come. When the respondents fled away, then he along with his maternal uncle came out. Then they 13 extinguished the fire. He also stated that his maternal uncle Bal Kishan was saying that the respondents had taken the safe and some articles. His maternal uncle also disclosed a loss of Rs.50,000/-. He also stated in his cross-examination that he could not say that from which direction, stone had come. As soon as the stone hit his maternal uncle and maternal grandmother, he came inside the house and his maternal grandmother was also became unconscious, therefore, he came inside the house. (eSa ugh crk ldrk fd iRFkj dgka las vk;k Fkk ysfdu iRFkj ekek dks o vkek dks yxk FkkA pksV yxrs gh ge vUnj vk x;s o vkek csgks”k gks xbZ Fkh blfy, ge vUnj vk x;s Fks). He also stated that he was detained inside for about 2½ hours (ge yksx vUnj yxHkx 2½ ?k.Vs cUn jgs). 14. P.W.6 is Shambhu Dutt, Kanungo/I.O. of the case who has stated that on 5.11.1986, he was posted as Kanungo. On that day, Balkishan gave the report Ex.Ka- 3 to him. He also registered the case and the Chik FIR was prepared. He also proved the Chik FIR Paper No.4-