IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1945 OF 2001 (OLD NO.1480 of 1999) 1. Baljeet S/o Sukkad 2. Raghubir S/o Sukkad 3. Ram Singh S/o Sukkad 4. Vishambhar S/o Chuha 5. Harnand S/o Chuha 6. Sudhir S/o Simru All residents of Village Mohammadpur Bujurg, P.S. Laksar, District Haridwar ……… Appellants Versus State of Uttarakhand .……… Respondent Dated: September 13, 2010 Mr. Mahavir Singh Tyagi, Advocate for the appellants Mr. Amit Bhatt, Additional Government Advocate for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants 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 5.6.1999 passed by Additional Sessions Judge, Roorkee in S.T. No.147/1994, State v. Baljeet and others, whereby the learned Addl. Sessions Judge convicted the appellant/accused Raghuveer under Sections 148, 332 read with Section 149 and Section 353 read with Section 149 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of three years u/s 148 IPC, three years R.I. u/s 332 r/w 149 IPC and two years R.I. u/s 353 r/w 149 IPC. Other appellants-accused, namely, Baljeet, Ram Singh, Vishambhar, Harnand and Sudhir were convicted 2 under Sections 147, 332 read with Section 149 and Section 353 read with Section 149 and each of them was sentenced to two years R.I. u/s 147 IPC, three years R.I. u/s 332 r/w 149 IPC and two years R.I. u/s 353 r/w 149 IPC. All the sentences of the appellants- accused were directed to run concurrently. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that on 8.3.1993 at 11:35 PM PW4 Constable Sunil Kumar lodged an oral report at Police Station Laksar with the averments that when he along with Constable Om Pal Singh reached at Village Mohammadpur Bujurg they saw the appellants-accused making noise and hurling abuses before the house of Rampal. Appellant-accused Raghuveer was armed with Tabal and rest of the accused were armed with danda. They tried to maintain law and order and asked them to stop hurling abuses but they did not convince and started hurling abuses to the police personnel also. Meanwhile, some Harijan women also came there, surrounded the police personnel and started committing Marpeet with them. All of a sudden at about 10:20 PM, appellant-accused Raghuveer inflicted a blow of Tabal on his head due to which he received grievous injuries on his head. Ved Prakash, Satpal, Ram Pal and so many other people of the village had arrived at the time of incident, who saved them from the appellants-accused. It is further stated that while going, the appellants-accused and Harijan women threatened them for dire consequences. With the same averments, the oral report was lodged by Sunil Kumar, on the basis of which, Chik FIR of the 3 case was prepared by Head Constable Madan Lal, i.e. Ext.Ka-6. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-7. The investigation of this case was entrusted to PW6 Sub Inspector Ajay Kumar. On the same day i.e. 8.3.1993 at 12 in the daytime, injured Sunil Kumar was medically examined by PW5 Dr. Ravindra Thapliyal, who on the medical examination, prepared the injury report, i.e. Ext.Ka-3. During the course of investigation, the I.O. recorded the statement of witnesses and inspected the place of occurrence and prepared the site-plan, i.e. Ext.Ka-4 and on completion of investigation, he filed the charge sheet against the appellants-accused, i.e. Ext.Ka-5. 4. After receiving the charge sheet, learned A.C.J.M., Roorkee committed the case to the court of Sessions on 15.4.1994, after giving necessary copies to the appellants-accused, as provided u/s 207 Cr.P.C. It seems from record that the case was transferred to Additional Sessions Judge for hearing and disposal according to law. On 28.9.1995, learned Addl. Sessions Judge, Rookee framed the charge of offence punishable under Sections 148, 332 r/w 149 and 353 r/w 149 of IPC against the appellant-accused Raghuveer. Learned Addl. Sessions Judge also framed the charge under Sections 147, 332 r/w 149 and 353 r/w 149 of IPC against the appellants-accused Baljeet, Ram Singh, Vishambhar, Harnand and Sudhir. The charge was read over and explained to each of the appellant/accused, who pleaded not guilty and claimed to be tried. 4 5. In order to prove its case, the prosecution has examined PW1 Ram Pal Sharma and PW2 Ved Prakash, hostile witnesses, PW3 Constable Om Pal Singh, PW4 Sunil Kumar, complainant of the case, PW5 Dr. Ravinder Thapliyal, who medically examined the injured Sunil Kumar, PW6 S.I. Ajay Kumar, Investigating Officer of the case and PW7 Head Constable Madan Lal, who prepared the Chik FIR and made entry in the G.D. 6. Thereafter the statements of the appellants- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not filed any oral or documentary evidence in defence. 7. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Addl. Sessions Judge, Roorkee vide his judgment and order dated 5.6.1999 convicted and sentenced the appellants-accused as mentioned above. Against the said judgment and order, the appellants- accused have preferred the present appeal. 8. Before any further discussion, it would be pertinent to mention here the medical report Ext.Ka-3 of PW4 Sunil Kumar, which reads as under: - i) Incised wound of 2 cm x 1 cm, scalp deep on the middle part of occipital region. 9. To prove the above report, the prosecution has examined PW5 Dr. Ravinder Thapliyal. He proved 5 the report Ext.Ka-3. In cross-examination, he stated that the injury is possible to come if the injured has fallen on sharp edged object. 10. To prove its case further, the prosecution has examined PW1 Rampal, who was cited as a eyewitness of the case. He has not supported the prosecution case and has been declared hostile. 11. PW2 Ved Prakash was also cited as a eyewitness in the case. He too has not supported the prosecution case and has been declared hostile. 12. PW3 Om Pal Singh has stated that on 8.3.1993 he was posted in Police Station Laksar and on that day Rampal came in the police station and gave an information that the appellants-accused, in the state of intoxication, are hurling abuses in front of his house. On this information at 9:10 PM, he along with Constable Sunil Kumar and informant Rampal reached at Village Mohammadpur Bujurg and saw that the appellants-accused were hurling abuses in front of the house of Rampal. Appellant-accused Raghuveer was armed with Tabal and rest of the appellant-accused were armed with lathi and danda. They tried to make them understand but to no avail. Appellants-accused beaten them with lathi, danda and tabal. Appellants- accused beaten Sunil Kumar by tabal and he has also received injuries of lathi and danda. He further stated that the said incident was witnessed by Rampal Singh, Satpal Singh and others. An oral report to this effect was lodged by Sunil Kumar in the police station and thereafter he proceeded to Government Hospital Laksar for medical examination. In the cross-examination, he 6 stated that Rampal had come to give information in the police station at 9:10 PM. He had not given any written report in the police station. He had given oral information and no case was registered at that time, only G.D. entry was made. After that information, he along with Sunil Kumar and Rampal had rushed from the police station at 9:10 PM. It takes about 45 minutes to reach village from the police station. There is a distance of about 8-9 kms between the place of occurrence and police station. When he and other police personnel reached on the spot 10-20 persons were present there. Satpal, Rampal and their families were also present there. He further stated that they had proceeded for police station from the place of occurrence at about 10:20 or 10:30 PM by bicycle and had reached in the police station at 11:35 PM. 13. PW4 is Constable Sunil Kumar. In examination-in-chief, he has corroborated the statement of PW3 Om Pal Singh. In cross-examination, he stated that some one caused injury to him by tabal from the back side and he was also beaten by lathi and danda. 14. PW6 Sub Inspector Ajay Kumar is the Investigating Officer of the case. During the course of investigation, he recorded the statement of witnesses and inspected the place of occurrence and prepared the site-plan Ext.Ka-4 and on completion of investigation, he filed the charge sheet Ext.Ka-5 against the appellants-accused. 7 15. PW7 Head Constbale Madan Lal has proved the G.D. entry Ext.Ka-1. He has also proved the Chik FIR Ext.Ka-6 and G.D. entry Ext.Ka-7 made by him. 16. Thereafter the statements of the appellant/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not filed any oral or documentary evidence in defence. 17. As per the report of Chief Judicial Magistrate, Haridwar dated 6.10.2005 appellant no.5 Harnand has died. Hence, in the above circumstances, the appeal preferred by appellant no.5 Harnand stands abated. 18. Learned counsel for the appellants-accused argued that the prosecution has not proved the case against the appellants-accused beyond reasonable doubt. I find force in the argument put forth by learned counsel for the appellants-accused, due to following reasons:- a) That PW1 Ram Pal and PW2 Ved Prakash were cited as eyewitness of the case but none of them has supported the prosecution case and both of them were declared hostile. b) PW3 Om Pal Singh has stated that he had also received injuries which were caused by lathi and danda but there is no injury report of Om Pal Singh on record which could have strengthen the averment made by him. Even he was not 8 medically been examined which goes to create a doubt in the prosecution story. c) It has come in the evidence that PW4 Sunil Kumar received head injuries which were caused by tabal. It has also come in the evidence that both the constables i.e. PW3 Om Pal Singh and PW4 Sunil Kumar had proceeded for police station from the place of occurrence at about 10:20 or 10:30 PM by bicycle and had reached in the police station at 11:35 PM and the distance between the place of occurrence and police station is 8-9 kms. This fact creates a reasonable doubt in the entire prosecution story as it is highly improbable that a person who has received injury on his head would be able to drive the bicycle himself for a distance of about 8-9 kms. d) PW4 Sunil Kumar has stated that the injuries were caused to him by tabal from the back side. This fact further creates doubt in the prosecution story as in such a condition when the incident is alleged to have taken place at 10:20 PM and a number of people was present on the spot it does not seem probable to identify the accused who has caused injury to him from the back side. Even, as per the medical officer, that injury was also possible to come if the injured had fallen on a sharp edged object. 19. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and the facts and circumstances of the case, 9 it is clear that the prosecution has not disclosed the true genesis of the occurrence and has thus not presented the true version. The prosecution has been failed to prove the case against the appellants-accused beyond reasonable doubt. As such, the trial court was in error in brushing aside serious infirmity in the prosecution case and the impugned judgment and order of the trial court, in view of the evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 20. For the foregoing reasons, the appeal is allowed. The judgment and order dated 5.6.1999 passed by Additional Sessions Judge, Roorkee, is hereby set aside. Consequently, the conviction and sentence, as directed by the court below, which has been discussed above, is also set aside. Appellants Baljeet, Raghuveer, Ram Singh, Vishambhar and Sudhir are on bail. They need not surrender unless required in any other case. (So far as the appeal preferred by appellant Harnand is concerned, it stands abated due to his death during the pendency of appeal). 21. Let the lower court record be sent back. (Dharam Veer, J.) 13.9.2010 RG