IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1565 of 2001 (Old No.1628 of 1998) Thakri S/o Chain Sukh R/o Mohalla Laxmipur Patti PS Kashipur Distt. US Nagar …….….…. Appellant Versus The State …………… Respondent Dated: August 16, 2010 Sri Atul Bhatt, learned counsel for the appellant Sri Prabhakar Joshi, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 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 21.08.1998 passed by the Special Judge/Additional Sessions Judge, Nainital in S.T. No.26 of 1997, State Vs. Thakri, thereby convicting and sentencing the appellant/accused u/s 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) for five years’ R.I. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Jagdish (P.W.3) lodged an FIR on 22.9.1996 stating therein that on that day at about 7:30 PM, he along with his brother Lakhan was sitting in his grocery shop and electric light was there and at that time, the appellant-accused along with one person came being armed with country made pistols and fired upon Lakhan which hit on his mouth and stomach. On the noise raised by the complainant, several persons came over there on which the accused ran away and this incident was witnessed by Charan Singh and Phool Singh. After admitting his brother in the hospital, the complainant PW3 Jagdish came and lodged the report i.e. Ex.Ka-1. On the basis of this FIR, Chik FIR was prepared by H.M. Ramesh Singh, i.e. Ex.Ka.2. The necessary entry was also made in the G.D., the carbon copy of which is Ex.Ka-3. Investigation of 2 this case was entrusted to P.W.7 S.I. Mehboob Ali. Injured Lakhan was medically examined on the 22.9.1996 at 8:00 PM by PW6 Dr. YS Rawat and after the examination, injury report Ex.Ka-4 was prepared. During investigation, the IO took the plain and bloodstained clay from the place of occurrence and prepared Fard Ex.Ka-5. The IO also recovered Khokhas of 12 Bore and 315 Bore for which separate Fards Ex.Ka-6 and Ka-7 were prepared. Bloodstained clothes relating to the case were also taken into possession and Fard Ex.Ka-8 was prepared. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-9. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused u/s 307 IPC, i.e. Ex.Ka.10. 4. Learned Addl. CJM, Kashipur committed the case to the court of Sessions on 03.01.1997 after giving necessary copies to the appellant/accused as required under Section 207 Cr.P.C. The case was transferred to the Additional Sessions Judge by the Sessions Judge for disposal according to law. 5. On 25.1.1997 learned IV Additional Sessions Judge, Nainital (Camp Kashipur) framed charge against the appellant/accused under Sections 307 IPC, which was read over and explained to the appellant/accused, to which he pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Phool Singh, PW2 Charan Singh, PW3 Jagdish, complainant, PW4 Lakhan Singh, injured, PW5 HC Ramesh Singh who prepared Chik FIR and made entry in GD, PW6 Dr. YS Rawat, who medically examined the injured and PW7 SI Mehboob Ali, IO of the case. 7. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, he did not produce any oral or documentary evidence in defence. 8. After appreciating the evidence on record and hearing learned counsel for the parties, the learned Special Judge/Additional Sessions Judge, 3 Nainital vide judgment and order dated 21.08.1998 has convicted and sentenced the appellant/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 9. Before further discussion, it is pertinent to mention the injured recorded on the person of injured Lakhan Singh who was medically examined on 22.09.1996 at 8 PM by PW6 Dr. YS Rawat and the following injuries were found in the injury report Ex.Ka-4: - 1. “Firearm injury wound of entry over right side preauricular region 3 cm x 3 cm x mouth cavity deep. Fracture of mandible seen at side of injury, fresh bleeding present. No wound of exit seen. 2. Multiple firearm injury wound superficial and subcutaneous spruce region in area of 6 cm x 6 cm area, bleeding present. Opinion- Injury no.1 and 2 are caused by firearm injury. Injury no.1 is grievous in nature. Injury no.2 is simple in nature. All injury fresh in duration. Patient referred to Dental Surgeon for jaw fracture and bleeding. “ 10. To prove the aforesaid injury report, the prosecution has examined P.W.6 Dr. YS Rawat who has proved the injury report Ex.Ka-4 prepared by him. He also stated that these injuries could have possibly been caused on 22.9.1996 at about 7:30 PM. 11. Further to prove its case the prosecution has examined P.W.1 Phool Singh and PWCharan Singh, who have not supported the prosecution case and they were declared hostile. 12. PW3 Jagdish, complainant, has stated that the said incident had happened on 21.9.1996, the day was Sunday and time was about 7 PM in the evening. He and his brother Lakhan was sitting in his shop and electric light was there. The appellant/accused along with one another person came and fired upon Lakhan as a result of which he sustained firearm injuries on his stomach and mouth. After hearing the noise, so many persons collected there and Charan Singh and Phool Singh were also there. The accused thereafter ran away. He took his brother Lakhan at the hospital and thereafter he lodged the report Ex.Ka-1. After that Lakhan was referred to Moradabad and later to Safdarjung Hospital, Delhi for his medical treatment. 4 13. PW4 Lakhan Singh, who is the injured witness, has fully corroborated the version of PW3 Jagdish. 14. HC Ramesh Singh Boara who stated that on 22.9.1996 a report was given by Jagdish on the basis of which he prepared the Chik FIR Ex.Ka- 2 and subsequently he also made entry in GD, i.e. Ex.Ka-3. 15. PW7 SI Mahboob Ali, IO of the case who proved the Fards Ex.Ka-5 for recovery of plain and bloodstained clay; Ex.Ka-6 and Ka-7 respectively for recovery of 12 Bore cartridge and 315 Bore cartridge and Ex.Ka-8 for recovery of bloodstained clothes relating to this case. He also prepared the site plan Ex.Ka-9 and during investigation he recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet Ex.Ka-10. 16. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, he did not produce any oral or documentary evidence in defence. 17. Sri Atul Bhatt, learned counsel for the appellant/accused argued that the prosecution has not proved the case against the appellant/accused beyond reasonable doubt. I find substance in this argument for the following reasons: - A. That as per the FIR, which was lodged in the police station on 22.9.1996 at 9:10 PM, it was stated therein that the said incident had occurred on 22.9.1996 at 7:30 PM. HC Ramesh Singh, who was examined as PW5, has also stated that the FIR was lodged in the police station on 22.9.1996 and he prepared the CHIK FIR Ex.Ka-2 on the basis of the said FIR and necessary entry in the GD was also accordingly been made, that GD is Ex.Ka-3. PW6 Dr. YS Rawat, who medically examined the injuries of Lakhan Singh, also stated that the injuries on the person of Lakhan Singh could have been caused on 22.9.1996 at about 7:30 PM. But the complainant Jagdish, who is said to be the eyewitness of the case as well as the injured Lakhan, both appeared before the trial court and stated 5 that the said incident had occurred on 21.9.1996 at 7 PM and the injuries were caused to Lakhan Singh in the evening on the same day at 7 PM. This fact creates a serious doubt on the prosecution story inasmuch as PW3 Jagdish and PW4 Lakhan, who are the eyewitness and injured witness respectively, have even not supported the date of incident and as such the oral statement of the injured and that of complainant does not get corroboration from the medical evidence as well as from the statement of Medical Officer about the time of the incident, and, therefore, a reasonable doubt is thrown on the prosecution story. B. That as per the prosecution case, injured Lakhan received injuries on his mouth and stomach but as per the medical report Ex.Ka-4, there is no injury on the stomach of Lakhan Singh which further creates a reasonable doubt in the prosecution story as the averments made in the FIR does not get corroborated from the medical or the oral evidence. C. That PW1 Phool Singh and PW2 Charan Singh, who are said to be the eyewitnesses of the case, have not supported the prosecution case and were declared hostile. 18. That in light of the facts and circumstances of the case, the prosecution has failed to prove its case against the appellant/ accused beyond reasonable doubt for the offence punishable u/s 307 IPC and he is liable to be extended the benefit of doubt. 19. For the reasons recorded above, the appeal is allowed. The judgment and order dated 21.08.1998 passed by Special Judge/Addl. Sessions Judge, Nainital in S.T. No.26/1997, State Vs. Thakri, is set aside. The conviction and sentence as awarded against the appellant/accused, as discussed above, is also hereby set aside. Appellant/accused is on bail. He need not surrender unless wanted in any other case. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) August 16, 2010 Rajeev Dang