RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1311 OF 2001 (Old No.1490/1992) Nandan Singh & Others ……… Appellants Versus The State ……… Respondent Dated: September 07, 2009 Mr. P.S. Bisht, Amicus Curiae for appellant No.3 -Anand Singh Mr. Ajay Singh Bisht, Adv. for Appellants No.4 & 5- Mahendra Singh & Manoj Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 12-08-1992 passed by Sessions Judge, Pauri Garhwal in S.T. No.38/1991, State Vs. Nandan Singh & Others and S.T. No.40 of 1991, State Vs. Mahendra Singh & Others, whereby the learned Sessions Judge has convicted the appellants/accused Nandan Singh, Ram Prasad, Anand Singh, Mahendra Singh and Manoj u/s 147, 436 r/w Section 149 and 427 r/w Section 149 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). Each of them was sentenced to two years’ R.I. u/s 436 r/w Section 149 IPC; six months’ R.I. u/s 147 IPC and 2 one year’s R.I. u/s 427 r/w Section 149 IPC. All the sentences were directed to run concurrently. 2. On the basis of death report given by Tehsildar, Dhumakot dated 25.7.2007, the appeal preferred by appellant No.1-Nandan Singh and appellant No.2-Ram Prasad already stood abated by order of this Court dated 6.3.2009. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that complainant Ramesh Chandra (P.W.1) lodged an FIR on 6.12.1990 stating therein that on 5.12.1990, when he was in his house, at about 2 P.M., Shambhu Prasad, Pradhan (P.W.3) and other persons reached in the village and called him to attend Panchayat on the complaint of appellant-accused Nandan Singh (now died). The complainant went in the Panchayat where some dispute arose. Appellant-accused Nandan Singh did not obey the orders of Panchayat and all the people went to their houses. After the Panchas left, appellant- accused Nandan Singh abused and threatened the complainant to his life and also threatened to destroy the record of Patwari. Therefore, the complainant along with his mother went away to village Kanda Malla and told the fact to Pradhan. The Pradhan assured him that nothing shall happen, therefore, he came back to his house and after taking food, went to sleep in the room. At about 9:30 PM in the night, he heard some voices outside the room, therefore, he along with Amar Singh (P.W.2) and Bachi Devi came outside and saw 3 appellants-accused Nandan Singh, Anand Singh on the roof of the house while appellants-accused Manoj, Ram Prasad (now died) and Mahendra Singh were in the Chowk. Appellant-accused Ram Prasad (now died) told the appellant-accused Manoj to bring diesel on which appellant-accused Manoj went and brought diesel. The complainant asked them not to set fire the records. Thereupon the appellants-accused threatened that they shall also set fire to his house. Thereafter, the appellants-accused sprayed disel inside the room and set fire to the Patwari Chowki. Meanwhile, appellants- accused Nandan Singh and Anand Singh threw Patalas (slates) of the roof. Due to fear of appellants-accused, complainant and his family members all went inside their room. It was further stated that the accused were saying that they will burnt alive the complainant and his family. Therefore, the complainant and his family members went in the kitchen room and thereafter they came below in Gaushala and escaped and then they went to the house of complainant’s sister. In the morning, the complainant again returned to the village and found that the Patwari Chowki was burnt. With the same averments, the complainant Ramesh Chand lodged the report Ex.Ka-1 on 6.12.1990 with Tehsildar, Tehsil Dhumakot. On this report, Tehsildar Dhumakot directed Supervisor Kanungo to investigate the matter after lodging the report through Patwari as per law. On the same day, Supervisor Kanungo directed the Patwari to register the case and send the papers to him for the investigation. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials 4 are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916) On the basis of this, Lila Ram (P.W.4), Patwari Khatli Balla- 4 prepared the Chik FIR of the case on 6.12.1990 at 5:30 P.M., i.e. Ex.Ka-4. He also made entry in the G.D., the copy of which is Ex.Ka.5. The I.O./Supervisor Kanungo recovered the ashes of burnt record of the Patwari office and prepared the Fard, i.e. Ex.Ka-2. The I.O. also recovered a handcuff without cord as the cord was burnt and prepared a Fard, i.e. Ex.Ka-3. The I.O. also prepared the site plan of the place of occurrence, i.e. Ex.Ka-7. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheets against the appellants/accused in the court, i.e. Ex.Ka-8 and Ex.Ka-9. 5. After receiving the charge sheet, learned CJM, Pauri committed the case to the court of Sessions on 15.04.1991 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. 6. On 2.5.1991, learned Sessions Judge, Pauri Garhwal has framed the charges against the appellants/accused Nandan Singh (now died), Ram Prasad (now died), Anand, Manoj and Mahendra Singh u/s 147 IPC, 436 r/w Section 149 IPC and u/s 427 r/w Section 149 IPC. The charges were read over and 5 explained to appellants/accused, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Ramesh Chand, complainant, P.W.2 Amar Singh, eyewitness, P.W.3 Shambhu Prasad, Pradhan of the village, P.W.4 Lila Ram, Patwari/IO of the case and P.W.5 Kuldip Singh Rawat, Kanungo/IO of the case. 8. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. However, they did not produce any oral or documentary evidence in defence. 9. After hearing learned counsel for the parties and appreciating the entire material available on record, learned Sessions Judge, Pauri Garhwal vide judgment and order dated 12.8.1992 convicted and sentenced the appellants/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 10. To prove its case, the prosecution has examined P.W.1 Ramesh Chand who stated that he resides in village Kanda Malla and at his house there was Khatli Ball-4 Patwari Chowki. Appellants/accused were known to him. On 5.12.1990 at about 2-2:30 P.M. in the day, a Panchayat took place on the call of Nandan Singh. He went in the Panchayat. Appellant- 6 accused Nandan Singh did not obey the orders of Panchayat. Appellant-accused Nandan Singh abused him and threatened to his life and also threatened to burn the Patwari Chowki. Therefore, he along with his mother went away to Pradhan of village Kanda Malla and told the fact to Pradhan, who assured him that nothing shall happen. Therefore, he came back to his house. At about 9:30 PM in the night, he heard some voices outside the room, therefore, he along with his wife Bachi Devi came outside and saw appellants- accused Ram Prasad, Mahendra Singh, Manoj, Nandan Singh and Anand Singh who threatened him that they shall set fire to Patwari Chowki and shall also finish his family. Appellant-accused Ram Prasad got diesel brought by appellant-accused Manoj and appellant- accused Mahendra Singh brought out some papers from the Chowki and threw diesel inside the room and set fire. Appellants-accused Anand Singh and Nandan Singh went to the roof and threw Patals (slates). He further stated that he went inside the room and came to the kitchen. After breaking open the floor, they came in Goshala and from there they escaped and went to village Kanda Malla at his sister’s house and remained there for the night. When he returned in the morning, he found that Patwari Chowki was burnt and his residential house was also half-burnt. He further stated that at the time of incident, Patwari was not on the Chowki for the last 2-3 days. He further stated that the damage worth Rs.50,000-60,000/- was caused due to fire. Thereafter, the lodged the report, i.e. Ex.Ka-1. He further stated that at the time of incident, Amar Singh 7 was also present who also witnessed the incident. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 11. The statement of P.W.1 Ramesh Chand gets corroboration from the evidence of P.W.2 Amar Singh, who is the eyewitness of the case. 12. P.W.3 is Shambhu Prasad, Pradhan of the village who stated that in December, 1990 he was the Pradhan, Gram Sabha Kanda Malla. He further stated that appellant-accused Nandan Singh (now deceased) gave an application against Ramesh Chandra (P.W.1) and a meeting was called and he tried to get the matter compromised. Appellant-accused Nandan Singh was ready for compromise. The Panchayat imposed fine upon Ramesh Chand but he did not pay the fine. Ramesh Chand had never come to him in this regard. The Patwari had taken the burnt registers etc. in his possession before him and prepared the Fard, i.e. Ex.Ka-2 and he also signed on that Fard. The I.O. also recovered a handcuff whose cord was half burnt and prepared a Fard, i.e. Ex.Ka-3 and he also signed on that Fard. Ramesh Chand had not come in the evening on the day when Panchayat was held and he had not given any assurance to him. This witness was declared hostile. 13. P.W.4 is Lila Ram, Patwari who stated that on 6.12.1990 he received the report of Ramesh Chand on the basis of which he prepared the Chik FIR, i.e. Ex.Ka- 8 4. He also made entry in G.D., copy of which is Ex.Ka- 5. His Chowki was there in the house which was burnt. Along with the Chowki, the entire record kept therein was also burnt and cord of handcuff was also burnt. On the date of incident, he had gone to Dhuankot for official work. He also reported the matter to his higher officials regarding burning of Chowki and the record kept therein. No quarrel took place before him between appellants-accused and Ramesh. He had filed charge sheet against accused Mahendra Singh in some another case. However, Mahendra Singh never threatened him. 14. P.W.5 is Kuldeep Singh Rawat who stated that on 6.12.1990, investigation of this case was entrusted to him on the orders of Surendra Singh Sajwan, Naib Tehsildar, that order is Ex.Ka-6. He inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-7. He also recovered three half-burnt registers and other burnt documents from the place of occurrence and prepared the Fard, i.e. Ex.Ka-2. He also recovered a handcuff without cord from the place of occurrence and prepared Fard i.e. Ex.Ka-3. After completing the investigation, he filed the charge sheets against the accused, i.e. Ex.Ka-8 and Ka-9. Half-burnt register is Ex.1 and half-burnt papers are Ex.2 while half-burnt handcuff is Ex.3. He further stated that the Patwari Chowki was situated in the burnt house. 15. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made 9 against each of them. However, they did not produce any oral or documentary evidence in defence. 16. Mr. P.S. Bisht, Amicus Curiae for appellant No.3 and Mr. Ajay Singh Bisht, Adv. for Appellant Nos.4 & 5 argued that as per the above-said evidence, the prosecution has not proved its case against the appellants-accused beyond reasonable doubt. I do not find any force in the argument put forth by counsel for the appellants-accused as P.W.1 Ramesh Chandra has stated in his evidence that on 5.12.1990 at about 2- 2:30 P.M. in the day, a Panchayat took place on the call of Nandan Singh. He went in the Panchayat where some dispute arose. Appellant-accused Nandan Singh did not obey the orders of Panchayat, who abused and threatened him to his life and also threatened to burn the Patwari Chowki. At about 9:30 PM in the night, he heard some sounds outside the room, therefore, he along with his wife Bachi Devi came outside and saw appellants-accused Ram Prasad, Mahendra Singh, Manoj, Nandan Singh and Anand Singh who threatened him that they shall set fire to Patwari Chowki and shall also finish his family. Appellant-accused Ram Prasad got diesel brought by appellant-accused Manoj and appellant-accused Mahendra Singh brought out some papers from the Chowki and threw diesel inside the room and set fire. Appellants-accused Anand Singh and Nandan Singh went to the roof and threw Patals (slates). He further stated that he went inside the room and came to the kitchen. After breaking open the floor, they came in Goshala and from there they escaped and went to village Kanda Malla and remained there for the 10 night. When he returned in the morning, he found that Patwari Chowki was burnt and his residential house was also half-burnt. He further stated that at the time of incident, Patwari was not on the Chowki for the last 2-3 days. He further stated that the damage worth Rs.50,000-60,000/- was caused due to fire. Thereafter, the lodged the report, i.e. Ex.Ka-1. He further stated that at the time of incident, Amar Singh was also present who also witnessed the incident. Nothing could be pointed out by the defence witness which could have shaken the testimony of this witness. The statement of this witness is reliable, believable and inspires implicit confidence. The statement of P.W.1 Ramesh Chand also gets corroboration from the evidence of P.W.2 Amar Singh, who is also the eyewitness of the case. As such, in view of the above-said discussion, it is proved that the appellants-accused formed an unlawful assembly in prosecution of common object of burning the Patwari Chowki and also the residential house of P.W.1 Ramesh Chandra and thereby caused mischief by fire with common intention to destroy the house where the Patwari Chowki was situated. As such, the offence punishable u/s 436 r/w Section 149 IPC clearly proved against them. Further, the appellants-accused formed an unlawful assembly in prosecution of the common object of burning the Patwari Chowki and thereby they committed rioting, which is punishable u/s 147 IPC. Further, the appellants-accused by forming an unlawful assembly, set fire the residential house of P.W.1 Ramesh Chand and also the Patwari Chowki in the said house and thereby caused loss to him for Rs.50,000-60,000/-, therefore, the offence punishable u/s 427 r/w Section 11 149 IPC is also proved against the appellants-accused beyond reasonable doubt. 17. In view of the above-said facts and circumstances of the case, I am of the considered view that the trial court was correct and justified in convicting and sentencing the appellants/accused as discussed above and I concur the view taken by the trial court in convicting and sentencing the appellants/ accused as discussed above. 18. For the reasons recorded above, the appeal is devoid of merits and is accordingly dismissed. The judgment and order dated 12.8.1992 passed by Sessions Judge, Pauri Garhwal in S.T. No.38/91, State Vs. Nandan Singh & others and S.T. No.40/91, State Vs. Mahendra Singh, is affirmed. Appellant No.3-Anand Singh is already in jail. He shall serve out the sentence as awarded against him. Appellants No.4 and 5 Mahendra Singh and Manoj are on bail. Their bail also stands cancelled. Let them be taken into custody forthwith in order to serve out the sentence as awarded against each of them. The period already served out by the appellants-accused in jail during the period of investigation, trial or appeal, shall be adjusted after verifying from records. Needless to say that the appeal preferred by appellants-accused Nandan Singh & Ram Prasad already been abated by this Court’s order dated 6.3.2009. 12 19. Let a copy of this order be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) September 07, 2009 Rajeev Dang