IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1935 of 2001 (Old No. 2554/1998) Gopal Dass .…. Appellant/Accused Versus State of U.P. …………… Respondent November 8, 2010 Mr. DN Sharma, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 15.10.1998 passed by the 5th Upper Sessions Judge, Nainital in Sessions Trial No. 160 of 1992, State v. Gopal Dass & Anr., whereby the appellant accused Gopal Dass has been convicted under Sections 307 read with Section 34 of Indian Penal Code, 1860 (for short, IPC) and sentenced to undergo R.I. for four years and fine of Rs. 2000/-, in default to undergo two months’ simple imprisonment. Appellant accused has also been convicted under Section 26 of the Indian Forest Act and sentenced to undergo R.I. for six months. However, the appellant accused was acquitted of the charge of offence punishable under Section 379/411 IPC. Co-accused Tarak Mandal has also been acquitted of the charge of offence punishable under Section 307 read with Section 34 IPC and 379/411 IPC and Section 26 of the Indian Forest Act. 2. In brief, the prosecution case is that on 20.1.1990, SI Vijendra Sharma along with SI Shoki Ram (PW1), Constable Nanhe Babu (PW4), Constable Nand Kishore and Constable Juhur Hussain in a Govt. Gypsy No. UP02- 1447 driven by Constable Anil Kumar was on patrolling duty. At about 2.45 am, when they reached on Amaria 2 chauraha, one truck came in a high speed from the side of Khatima Chorgalia to whom they asked to stop. But the driver of the said vehicle did not stop the vehicle and had taken the truck on a high speed towards Amaria road. The truck was loaded with the woods. So the police party chased the said truck and when the police party tried to overtake that truck, one person fired from the said truck. He and the Constable Nanhe Babu also fired two rounds on the truck. Thereafter at some distance, the said truck had fallen down. Four persons and the driver came out from the said truck. The appellant accused was arrested on the spot but the rest of the four miscreants were successful in fleeing away from the spot. The appellant accused told the name of one of the miscreant who ran away from the spot as Tarak Mandal (acquitted by the trial court). 102 pieces of Khairwood were recovered from the said truck. The recovery memo Ex. Ka-1 was prepared on the spot. On the basis of this recovery memo, an FIR was lodged with the police station Jehandabad on 20.1.1990 at 10.30 am. Chick FIR Ex. Ka-8 was prepared by Constable Clerk Pyare Lal. Entry was also made in the GD. Copy of GD is Ex. Ka-2. 3. Investigation of this case was entrusted to S.I. PW2 SI Man Singh. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plans Ex. Ka-3 to Ka-5. The I.O. also recorded the statements of the witnesses during the course of investigation and after completing the investigation filed the chargesheet Ex. Ka-7 against the appellant accused and the co-accused (acquitted by the trial court). 4. Learned Munsif Magistrate, Khatima after giving the necessary copies of the documents to the appellant accused and the co-accused (acquitted by the trial court) 3 as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 3.7.1992. Learned Sessions Judge, Nainital transferred the case to the III Addl. Sessions Judge, Nainital for its disposal according to law. 5. Learned III Addl. Sessions Judge, Nainital framed the charges against the appellant accused and the co-accused on 9.4.1993 under Section 307 read with Section 34 IPC, Sections 379, 411 IPC and Section 26 of the Indian Forest Act. The charges were read over and explained to the appellant accused and the co-accused (acquitted by the trial court), who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 SI SR Chaudhary, PW2 SI Man Singh, the I.O. of the case, PW3 Lekh Raj, an independent witness and PW4 Constable Nanhe Babu. 7. Thereafter, statement of the appellant accused and co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned 5th Upper Sessions Judge, Nainital vide his judgment and order dated 15.10.1998 convicted and sentenced to the appellant accused as discussed above. Against the aforesaid judgment and order dated 4 15.10.1998, the appellant accused has preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. To prove its case, the prosecution has examined PW1 SI SR Chaudhary, who in his examination-in-chief has reiterated the version made in the recovery memo Ex. Ka- 1. However, in his cross-examination, he has stated that he had not seen as to who had fired from the said truck. Neither had he seen the weapon from which the fire was allegedly done. Fire was done from the distance of 10-12 steps. 11. PW2 SI Man Singh has stated that investigation of this case was entrusted to him. During the course of investigation, he inspected the places of occurrence and prepared the site plans Ex. Ka-3 to Ka-5. He also recorded the statements of the witnesses during the course of investigation and after completing the investigation he filed the chargesheet Ex. Ka-7. 12. PW3 Lekh Raj, the independent witness has not supported the prosecution case and declared hostile. 13. PW4 Constable Nanhe Babu has reiterated the version made in the recovery memo (Ex. Ka-1) in his examination-in-chief. But in his cross-examination, he has stated that no weapon was recovered near the place from where the truck was recovered. He has further stated that one round was fired from the said truck and at that time, he and the other police personnel were at a distance of 10-15 steps. After half 5 an hour, the truck had fallen down. The distance between the place where the fire was done and the place where the truck had fallen down was 20 kilometres. He had fired on the body of the said truck from the distance of 20-25 steps and he had not seen as to whether the said fire hit the body of the truck or not. Thereafter the police party continued to chase the said truck. No weapon was recovered from the possession of the person who was arrested on the spot. 14. Thereafter statement of the appellant accused and co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 15. Learned Counsel for the appellant accused argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the appellant accused beyond reasonable doubt. I find substance in the argument of the learned Counsel for the appellant accused due to the following reasons: (i) That no evidence was produced by the prosecution to prove that the recovered woods were actually the forest woods. No notification of the reserved forest was filed by the prosecution that the said woods were cut from any reserved forest. Even there was no mark on the recovered woods to show that these woods were the forest woods. Thus, the prosecution has failed to establish beyond reasonable doubt that the woods shown to be recovered from the 6 possession of the accused appellant were the forest woods which were cut from the reserved forest. (ii) That it is an admitted case of the prosecution that no weapon was recovered. PW4 Constable Nanhe Babu also admitted that no weapon was recovered from the place of occurrence despite the fact that the appellant accused was arrested on the spot. (iii) That PW4 Constable Nanhe Babu has also stated that he had fired on the body of the truck from the distance of 20-25 steps, but no mark of bullet was found on the body of the said truck. Even the I.O. has mentioned that no mark of any bullet was found on the body of the said truck. Thus, it creates reasonable doubt on the prosecution story. (iv) That as per the prosecution case, the fire was done from the truck when the police party was trying to overtake the said truck. But no member of the police party received any injury in the said incident, which also creates reasonable doubt on the prosecution story. (v) That PW1 SR Chaudhary has admitted that he had not seen as to who had fired on the police party from the said truck. He has also stated that he had not seen the weapon from which the fire was allegedly made though the fire was done from the distance of 10-12 steps. (vi) That PW3 Lekh Raj, an independent witness has not supported the prosecution case and has been declared hostile. (vii) That co-accused Tarak Mandal was acquitted by the trial court on the basis of the same set of evidence. 7 (viii) That the incident took place on 20.1.1990 at 2.45 am, but the report of this incident was lodged at 10.30 am on 20.1.1990. The police party was patrolling on a gypsy and admittedly none of them received any injury in the alleged incident. This delay in lodging the FIR has not been explained by the prosecution by showing the sufficient cause, which is also fatal to the prosecution case. 16. Thus, in view of my foregoing discussion of evidence and for the reasons recorded above, it can safely be inferred that the prosecution has miserably failed to prove its case against the appellant accused beyond reasonable doubt and the appellant accused is entitled to get the benefit of doubt. As such, the learned trial court erred in holding the appellant accused guilty and convicting him under Section 307 read with Section 34 IPC and Section 26 of the Indian Forest Act and, therefore, impugned judgment and order of the trial court is not justified and is liable to be set aside. 17. Resultantly, for the reasons recorded above, the appeal is allowed. Appellant Gopal Dass is acquitted of the charges leavelled against him. The judgment and order dated 15.10.1998 passed by the 5th Upper Sessions Judge, Nainital in Sessions Trial No. 160 of 1992, State v. Gopal Dass & Anr. is hereby set aside and the conviction of the appellant Gopal Dass under Section 307 read with Section 34 IPC and Section 26 of the Indian Forest Act is quashed and sentence awarded to him to undergo R.I. for four years and fine of Rs. 2000/- under Section 307 read with Section 34 IPC and R.I. for six months under Section 26 of the Indian Forest Act is hereby set aside. Appellant is 8 reported to be in jail. He shall be released from the jail forthwith unless required in any other case. 18. A copy of this judgment be sent to the trial court. Let the lower court record be sent back. (Dharam Veer, J.) 8.11.2010 PRABODH