IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 01 of 2002 Date of decision ; 03rd March, 2008 A.F.R. (Approved for Reporting ___________________________ Not Approved for reporting Date : 03.03.2008 Initials of Judge Note : Bench Reader will attach this at the top of the first page of the judgment when it is put before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NIANITAL Criminal Appeal No. 1 of 2002 Ram Prakash Murav. S/o Sri Bhupal Murav, R/o Village Sarai Pipriya, P.S. Musa Jhag, District Badayun. ………. Appellant Versus State of Uttarakhand ……… Respondent Mr. T.A. Khan, Advocate for the appellant. Mr. Harish Chandra Pujari, Addl, Government Advocate for the respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This is an appeal against the order and Judgment dated 15.12.2001 passed by Addl. Sessions Judge (First Fast Track Court), Haldwani District Nainital in ST No. 72/1999 by which the accused appellant was acquitted from the offence punishable under Sections 395/397 and 412 I.P.C. However, he was convicted under Section 411 I.P.C and sentenced him to rigorous imprisonment for one year and six months. Feeling aggrieved by the said order, the appellant preferred this appeal. 2. The brief facts of the case are that on the intervening night of 6/7.11.1998, 10-12 miscreants came to the house of Dhan Singh, a Chowkidar of the Forest Department with an object to commit dacoity. The miscreants were having ‘lathis’ and ‘kattas’ in their hands. They tried to overpower Dhan singh. Upon this, Bahadur Chand, the co-resident with Dhan Singh protested. Consequent thereupon, the miscreants fired upon him and finally, they fled away from the spot. The complainant party tried to catch the miscreant but they failed to do so. Dhan Singh and Bahadur Chand sustained injuries in the said incident. The miscreants took away the belongings of Dhan Singh including a long ‘coat’. The matter was reported to Ramakant Tewari, the Shetra Adhikari of the Forest Department on 7.11.1998 and an F.I.R was also lodged by Dhan Singh with police station. The report was lodged on 7.11.1998. The police party as well as Ramakant Tewari PW3, the Shetra Adhikari alongwith other forest officials received an information that the miscreants are hiding themselves in the ‘Jhala’ of Kundan Singh. The police party alongwith forest officials reached at the spot in the night of 8.11.1998 and surrounded the miscreants. Feared from being caught, the miscreants fired upon the raiding party. In the above melee/encounter, the accused Ram Prakash Murav was arrested at the spot. He was wearing a long coat which was alleged to have been taken away by the miscreants from the house of Dhan Singh in the intervening night of 6/7.11.1998. The matter was investigated and chargesheet was submitted against the accused appellant. 3. After Submission of the Chargesheet, the accused appellant was committed to the court of Sessions Judge, Haldwani District Nainital for trial and the trial court framed charges against the accused appellant under Sections 395, 397 and 412 I.P.C. The accused appellant denied the charges leveled against him and claimed trial. 4. The prosecution in support of its case examined Dhan Singh PW1 and Bahadur Chand PW2 in whose presence the incident took place. During investigation when they were called for identification, they identified the long ‘coat’ recovered from the possession of the accused appellant. Ramakant Tewari PW3 is the Shetra Adhikari of the Forest Department and he was in the raiding party when the recovery of long coat was made. Dr. S. Anwar PW4 medically examined Bahadur Chand and Dhan Singh on 7.11.1998 and prepared the injury report. S.I. Haideer Raza Zaidi PW5, the Investigating Officer of this case. The appellant did not adduce any oral or documentary defence evidence in support of his case. 5. The statement of the accused appellant was recorded under Section 313 Cr.P.C by the trial court and the accused appellant denied the averments made in the evidence and stated that he has been falsely implicated in this case. 6. After appreciating the evidence, the learned trial court acquitted the accused appellant under Sections 395 and 397 I.P.C However he as convicted under Section 411 I.P.C instead of 412 I.P.C due to recovery of the coat from his possession and sentenced him as indicated above. 7. I have heard the learned counsel for the parties and perused the record. 8. The controversy to be decided here is that whether the accused appellant can be convicted under Section 411 I.P.C. on the basis of the evidence adduced by the prosecution. 9. The learned counsel for the appellant contended that Dhan Singh PW1, Bahadur Chand PW2, Ramakant Tewari PW3has not identified the said coat before the court; the long coat was not produced before the court at the time of the evidence of S.I. Haider Raza Zaidi PW5; identification before the court is the substantive evidence and the identification parade conducted by the prosecution is only a corroborative piece of evidence; while conducting the identification parade no other coat of similar description was mixed with the articles from which the identification of the coat had to be made and, thus, the evidence of the prosecution is not credible and cogent. 10. The perusal of the record reveals that the Magistrate concerned who conducted the identification has not been produced before the court. The memo of the identification did not mention that the clothes produced at the time of the identification were similar coats. The evidence of Dhan Singh PW1 is clear on this point that there was only one coat and others were shirts and ‘booshirt’. He has not stated in his evidence that other articles mixed with the coat recovered from the possession of the accused appellant were of similar description. It is also pertinent to mention here that the said coat recovered from the possession of the accused appellant was not produced before the court. The witnesses have also categorically stated that the said coat was not produced before the court. Dhan Singh PW1 has categorically stated in his evidence that he could not identify the said court due to non-availability of the same in the court. Thus, there is no substantive evidence to corroborate the fact that the coat recovered from the possession of the appellant was the same which was stolen from the house of Dhan Singh on the day of incident. It is also pertinent to mention here that the coat which was recovered from the possession of the appellant has its own identity. It was brown in colour having two buttons with U.P.P printed on it. Thus, there is lack of evidence on the part of the prosecution that whether the articles mixed with the coat at the identification parade were of brown colour, containing the buttons of U.P.P. 11. In view of the above, I do not find that the prosecution has established the guilt against the accused appellant under Section 411 I.P.C. As such, the appeal is liable to be allowed and is hereby allowed. The accused-appellant is acquitted from the charge leveled against him. The judgment and order dated 15.12.2001 passed by Addl. Sessions Judge (First Fast Track Court) in ST No. 72 of 1999 is set aside accordingly. 12. Let the Lower Court Record be remitted back for compliance. (J.C.S.Rawat, J.) Dated 03rd March, 2008 V.K.