1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1456 of 2001 (Old No. 931 of 1996) State of U.P (Now State of Uttarakhand) …………. Appellant Versus 1. Laxman Singh S/O Gambhir Singh 2. Jagdish Singh S/O Laxman Singh(since deceased) 3. Puran Singh S/O Laxman Singh 4. Smt Nanda Devi, D/O Raghuvir Singh All R/O village Barowala, P.S. Kotwali District Dehradun. ……….Respondents Shri B.S. Parihar, Brief Holder, present for the State/appellant Shri Manish Arora, Advocate present for the respondents Hon’ble Prafulla C. Pant, J. This appeal preferred under section 374 (3) of Code of Criminal Procedure 1973, is directed against the judgment and order dated 19.12.1995 passed by learned I Additional Sessions Judge, Dehradun, in Sessions Trial No. 51 of 1993 whereby said court has acquitted the accused/respondents namely Laxman 2 Singh, Jagdish Singh, Puran Singh and Nandi Devi of the charge of the offence punishable under section 307 read with section 34 of Indian Penal Code, 1860, (for short I.P.C). (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that PW1 Shiv Prasad Nautiyal and accused Laxman Singh are residents of Village Barowala, Dehradun, within the limits of police out post Vasant Vihar, Police Station Kotwali. On 15.12.1991 at about 9.45 p.m Shiv Prasad Nautiyal (PW1), complainant was sitting in his room. His daughter Sunita (PW2) was washing the utensils outside the house. There was an electric light in the house. Shiv Prasad Nautiyal heard shouts of his daughter Sunita (PW2) and came out. Sumitra Devi (PW3) wife of the complainant Shiv Prasad Nautiyal, along with their son Anil Kumar (PW5) also came out. They saw Sunita was bleeding from her head. Accused Laxman Singh and his son Jagdish Singh (since died) and Puran Singh along with Nandi Devi were beating her. The accused Jagdish Singh was armedwith KHUKRI(sharp edged 3 weapon) while accused Puran Singh and Nandi Devi were armed with rods. When Shiv Prasad Nautiyal (PW1) , Sumitra Devi (PW3) and Anil Kumar (PW5) came out of the house they were also attacked by the accused and caused injuries on their person. Witnesses Kamleshwari Devi(PW7) and Chandramani (PW8) the came from neighbourhood and saved the injured. The villagers took the injured to Doon Hospital where Dr. R.S.Gupta (PW6) on 15.12.1991 between 11 and 12 p.m, inspected and recorded the injuries of the injured. Sunita Devi (PW2) had suffered two incised wounds along with traumatic swelling. Smt Sumitra Devi PW3 had suffered one incised wound. Anil Kumar (PW5) had suffered one lacerated wound and two contusions. Shiv Prasad Nautiyal (PW1) had suffered one incised wound and two lacerated wounds. PW1 Shiv Prasad Nautiyal got scribed First Information Report (Exhibit A-1) through one Mahendra Dangwal and lodged it with the police. Sub Inspector Sanjeev Singh (PW9) of police station Kotwali Dehradun took up the investigation. He inspected the spot, prepared site plan and also interrogated the witnesses. After completing the investigation, charge sheet (Exhibit-A8) was filed by the 4 Investigating Officer against the accused for their trial in respect of offences punishable under section 324, 325, 307, 504 I.P.C. (4) The Magistrate, on receipt of the charge sheet, after giving necessary copies, to the accused as required under section 207 of Cr.P.C, committed the case to the court of Sessions for trial. Learned First Additional Sessions Judge, to whom the case was transferred, after hearing the parties, framed charge of offence punishable under section 307/34 I.P.C against all the accused, namely Laxman Singh, Jagdish Singh, Puran Singh and Nandi Devi, who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Shiv Prasad Nautiyal, (complainant and injured) PW2 Kumari Sunita (injured), PW3 Sumitra Devi (injured), PW4 Dr. B.C.Ramola (radiologist), PW5 Anil Kumar (injured), PW6 Dr. R.S.Gupta (who recorded the injuries on the person of the injured), PW7 Kamleshwari Devi (declared hostile), PW8 Chandramani (declared hostile), PW9 Sub inspector Sanjeev Singh(Investigating Officer) and PW10 Head Constable Narendra Singh. Oral and documentary evidence was put to the accused in 5 reply to which they alleged the same to be false and pleaded that accused Laxman Singh was assaulted by Shiv Prasad Nautiyal and his daughter Sunita and son Anil Kumar, and Laxman Singh suffered injuries in the incident. When Laxman Singh went to the police station to report the matter he was arrested. However, no evidence in defence was adduced. (5) Learned counsel for the state/appellant submitted that trial court has erred in appreciating the evidence and wrongly acquitted the accused/respondent Laxman Singh, Jagdish Singh, Puran Singh and Nandi Devi. It is pleaded on behalf of the State/appellant that the witnesses of fact, who were injured have supported the prosecution story, and their statement are corroborated, by the medical evidence on record. (6) On the other hand learned counsel for the respondents pointed out that the independent witnesses examined on behalf of prosecution namely PW7 Kamleshwari and PW8 Chandramani have not supported the prosecution story which creates doubt in the testimony of the alleged injured witnesses who are members of the same family. It is also pointed 6 out on behalf of the accused/respondent before this court that apart from other discrepancies in the testimony of the eyewitness, there is no recovery of KHUKRI (sharp edged weapon) and rods said to have been used in the crime, from the accused/respondents. On this ground it is contended that there is no supporting evidence to make the testimony of PW1 Shiv Prasad Nautiyal, PW2 Sunita, PW3 Sumitra Devi and PW5 Anil Kumar believable beyond reasonable doubt. Lastly it is vehemently argued on behalf of the accused/respondents that it has come on the record that Laxman Singh has suffered head injury (lacerated wound size 4cmx.5cm on the head) which was not explained by the prosecution. (7) After examining the evidence on record and considering the evidence of the injured witnesses, this court is of the opinion that the trial court should have believed the testimony of eyewitnesses. But the trial court has taken the view that the prosecution story can not be said to have been proved beyond reasonable doubt for the reasons that neither the testimony of the injured prosecution witness is supported by independent witnesses, nor injuries on 7 the person of the accused are explained by prosecution and there was no recovery of arms used in the crime from the accused. The trial court has accepted the argument advanced on behalf of the defence that First Information Report appears to be ante dated. He has also taken note of the fact that there are discrepancies as to the place of incident shown in the site plan and the place of incident narrated by the witness. (8) In the above circumstances, since two views were possible in the present case, and the trial court has taken a view which can not be said to be perverse, or against the record, this court is not inclined to interfere with the impugned judgment and order passed by the trial court, after a period of 14 years of the judgment passed. (9) For the reasons as discussed above, the appeal of the State is dismissed. The lower court record be sent back. (Prafulla C. Pant, J.) Dt.08.07.2010 N.P 8