RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1970 OF 2001 (OLD NO.2206 OF 1996) Surendra Singh alias Sinda S/o Thakur Singh R/o Athal, Police Station Pathri, District Haridwar ……… Appellant Versus State of Uttarakhand .……… Respondent Dated: July 07, 2010 Mr. Vivek Shukla, Advocate for the appellant Mr. Prabhakar Joshi, Brief Holder for the State 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 10.12.1996 passed by Second Additional Sessions Judge, Haridwar in S.T. No.252 of 1993, State Vs. Surendra Singh, whereby the learned Second Addl. Sessions Judge convicted the appellant/accused Surendra Singh under Section 307 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of ten years. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that Sub Inspector Surendra Singh (PW1) lodged a report at 2 Police Station Pathri on 23.12.1991 stating therein that on 23.12.1991 he received an information that the van looted from area Police Station Manglore is in the house of the appellant-accused Surendra Singh at Village Athal and the persons who have looted it are also there. On this information, he along with 23 other police personnel, under the leadership of Yashpal Talwar, C.O. City, reached the house of the appellant- accused Surendra Singh at 2:30 PM and raided the house of the appellant-accused. Thereafter fire was exchanged between the parties but no one was arrested on the spot. It is further averted that the appellant- accused Surendra Singh and his wife Smt. Sukhwinder Kaur and three other persons ran away from the place of occurrence. It is further averted that the cartridges used by the appellant-accused and others were recovered from the spot. With the same averments, Sub Inspector Surendra Singh lodged the First Information Report at P.S. Pathri on the same day viz. 23.12.1991 at 05:30 PM. That FIR is Ext.Ka-3. On the basis of this FIR, Chik FIR of the case was prepared by Constable Clerk Rajkumar (PW7), i.e. Ext.Ka-11. Necessary entries were also made in the G.D., carbon copy of which is Ext.Kat-12. Initially, the investigation of the case was entrusted to Sub Inspector Rajpal Sharma (PW5). Subsequently it was transferred to S.I. Satish Chandra Mehta (PW6) and thereafter it was transferred to S.I. Ramesh Chandra Chaudhary. 21 Khokha cartridges used by the appellant-accused and his accomplice were recovered by the Police and were sealed on the spot vide Ext.Ka-1. Recovery of Khokha cartridges used by the police were also made and the same were sealed vide Fard Ext.Ka-2. Constable Mange Ram and S.I. Surendra Singh were medically examined 3 by Dr. A.K. Jain (PW4) on the same day at 10:30 PM and 10:40 PM, respectively. Injury report of Const. Mange Ram is Ext.Ka-4 and that of S.I. Surendra Singh is Ext.Ka-5. During the course of investigation, the Investigating Officer inspected the place of occurrence and prepared the site-plan, which is Ext.Ka-6. He also received a letter in Gurumukhi language, i.e. Ext.Ka-7. Hindi translation of the same letter is Ext.Ka-8. During the course of investigation, the I.O. also written a letter through S.S.P. Haridwar to S.S.P. Hoshiyarpur requesting information with regard to the criminal history of the accused persons, that letter is Ext.Ka-9. He also written a letter to Station Officer Pathri regarding recovery of licensee gun of Balkar Singh, brother of the appellant-accused, that letter is Ext.Ka-10. On 4.3.1992, DBBL licensee gun of Balkar Singh and the cartridges used were recovered by the police. Entry to this effect was made in the G.D., carbon copy of which is Ext.Ka-13. During the course of investigation, the photographs of the place of occurrence were also taken and on completion of the investigation, the charge sheet was submitted by the I.O. against the appellant-accused Surendra Singh under Section 307 of IPC. That charge sheet is Ext.Ka- 14. 4. After receiving the charge sheet, learned First Additional Munsif Magistrate, Haridwar committed the case to the court of Sessions on 25.5.1993, after giving necessary copies to the appellant/accused as provided u/s 207 Cr.P.C. 5. On 12.5.1995, Sessions Judge, Haridwar framed the charge of offence punishable under Section 4 307 of IPC against the appellant-accused. The charge was read over and explained to him, who pleaded not guilty and claimed to be tried. 6. It seems from record that the case was then transferred to Additional Sessions Judge for hearing and disposal according to law. 7. In order to prove its case, the prosecution has examined P.W.1 Surendra Singh Yadav, complainant and eyewitness, P.W.2 Yashpal Talwar, C.O. City, eyewitness, P.W.3 Darshan Singh, independent witness, P.W.4 Dr. A.K. Jain, Medical Officer, who medically examined Const. Mange Ram and S.I. Surendra Singh, P.W.5 S.I. Rajpal Sharma and P.W.6 S.I. Satish Chandra Mehta, Investigating Officers of the case and P.W.7 Constable Rajkumar, who prepared the Chik FIR Ext.Ka-11 and made entries in the G.D. Ext.Ka-12. 8. Thereafter the statement of the appellant- accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, he has not filed any oral or documentary evidence in defence. 9. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Second Additional Sessions Judge, Haridwar vide his judgment and order dated 10.12.1996 convicted and sentenced the appellant-accused Surendra Singh @ Sinda as mentioned above. Against 5 the said judgment and order, the appellant-accused has preferred the present appeal. 10. To prove its case, the prosecution has examined P.W.1 Surendra Singh Yadav, who has stated that on 23.12.1991, he was posted as S.I. at Police Station Manglore. On that day, Yashpal Talwar C.O. Roorkee given him message on wireless and called him at his office along with the police force. On this information, he called PAC from Narsan Police Chowki and thereafter along with the PAC and Constables Om Singh, Mange Ram, Rakesh Kumar Pandey, Shyam Lal, Subhash Chand, he reached at the Office of C.O. City. There Yashpal Talwar, C.O. told him that an information has been received that the Maruti Van which was looted from the area Police Station Manglore is in the house of the appellant-accused Surendra Singh at Village Athal and the person who had looted it are also there. Thereafter C.O. City along with Head Constable Prempal, the informant and the police force including him as well as S.H.O. Baljeet Singh, S.I. Ram Babu Singh, Constables Ranjeet Singh, Ram Beer Singh and Gajendra Singh of Kotwali Roorkee proceeded towards Village Athal. On the way, Sri Man Singh, S.O. Pathri along with Constables Raghunath Singh, Satish Kumar and Rajkumar also joined them. At 2:30 PM, the police force reached in the house of the appellant-accused at Village Athal and the informant pointed towards the accused persons and told that the appellant-accused Surendra Singh and his wife Smt. Sukhwant Kaur along with three other persons, who are sitting in the cot, are the same persons who have looted van from the area P.S. Manglore. He also told that the van, which is in the Verandah, is the same van 6 which was looted by those accused persons. Thereafter the informant went from the place of occurrence. They saw the appellant-accused and other co-accused who were talking about Khalistan. Meanwhile, one Sardar saw the police force and he made alert to his accomplice. Thereafter, under the leadership of C.O. City Yashpal Talwar, the police force surrounded the accused persons and asked them to surrender. Thereafter fire was exchanged between the accused persons and the police party. Seven rounds of fire by C.O. City, six rounds of fire by him, two fire by S.O. Man Singh, three fires by Const. Ranjeet, three fires by Const. Raghunath, two fires by Const. Satish, two fires each by Constables Om Singh, Mange Ram, Subhash Chandra, one fire by Const. Shyam Lal and three fires by Const. Rakesh Kumar were made. Further, two fire by H.C. Rajendra Singh, two fire by Samay Singh and one fire each by Govind Singh, Narayan Singh, Shiv Charan and Chandrakiran were also made. The accused persons also fired upon the police party and after that they fled from the place of occurrence. The police party chased the accused persons but all were in vain. Pradhan Harbhajan Singh and Darshan Singh were called for evidence. Thereafter, under the leadership of Yashpal Talwar, C.O. City, on the search of the house of the appellant-accused, Maruti Van was recovered which was looted from the area Police Station Manglore. 21 Khokha cartridges used by the appellant- accused and his accomplice were also recovered. Khokha cartridges used by the accused as well as the cartridges used by the police were sealed on separate bundles and the Fards were prepared, which are Ext.Ka-1 and Ka-2, respectively. The same bundles were opened in the court below. 21 Khokha cartridges 7 were got opened from cloth Ext.1, which were marked as Material Ext.2/1 to 2/21. Another bundle marked as Ext.3 was got opened and from it 26 khokha cartridges of rifle and 15 Khokha cartridges of revolver were recovered, which were marked as Material Ext. 3/1 to 3/26 and 4/1 to 4/15, respectively. Thereafter he lodged the report at Police Station Pathri, which is Ext.Ka-3 and he was also got medically examined on the same day. In the cross-examination, he stated that the appellant-accused Surendra Singh had fired with DBBL Gun but he could not state how many fires he had made. He further stated that no khokha cartridge of DBBL gun was recovered from the spot. 11. P.W.2 Yashpal Talwar has corroborated the statement of P.W.1 S.I. Surendra Singh in his examination-in-chief. In cross-examination, he stated that they have reached at the place of occurrence at 2:30 PM. Including him, there were total 24 police personnel in the police force. He further stated that two or three rounds of fire were made by DBBL gun from the accused side but no Khokha cartridge of the same gun was recovered from the spot. 12. P.W.3 Darshan Singh stated that he and the appellant-accused Surendra were the resident of same village. On 23.12.1991 at about 2-2:30 PM, he heard the sound of fire. He himself was going towards the house of appellant-accused Surendra Singh. He further stated that C.O. City along with the police force was present in the house of the appellant-accused. He further stated that the appellant-accused was not present in the house, his younger brother Tara Singh 8 was present there. Police had taken the maruti car in their possession. Khokha cartridges were also recovered from the spot and after taking the same into possession, Fards Ext.Ka-1 and Ka-2 were prepared. In cross-examination, he stated that he had not seen the appellant-accused Surendra Singh at the place of incident. 13. P.W.4 Dr. A.K. Jain, Medical Officer, has stated that on 23.12.1991, he was posted on the aforesaid post at Government Hospital, Haridwar. On that day at 10:30 PM, he medically examined Constable Mange Ram and found following injuries: - i) L.W. 1.5 cm x 0.5 cm x muscle deep on middle of inner aspect of lower lip. No fresh bleeding and no pus present. ii) Traumatic swelling 5 cm x 4 cm on outer aspect of left ankle. Patient complaining pain on right heel. In his opinion, all above injuries were caused by hard blunt object. Injury No.1 was simple. He further stated that on the same day at 10:40 PM, he medically examined S.I. Surendra Singh and found the following injury: - i) Injury No.1 circular abrasion 0.6 cm in diameter on front of right thigh 18 cm above right knee, red in colour. In his opinion, this injury was simple and could be caused by hard blunt object or fire arm. He proved the injury reports Ext.Ka-4 and Ka-5. In cross- examination, he stated that he could not say whether the injured were in the uniform or not. He further stated that in Modi Jurisprudence, under the heading of abrasion, it is not written that the 9 abrasion may be caused due to friction of pellet. He further stated that the injury caused to Const. Mange Ram could be possible to come by falling down on earth. 14. P.W.5 Sub Inspector Rajpal Sharma stated that on 23.12.1991 he was posted at P.S. Pathri. On that day, investigation of the case was entrusted to him. During the course of investigation, he copied the FIR and G.D. in his case diary and also recorded the statement of Const. Rajkumar and S.I. Surendra Singh. Thereafter, the investigation was entrusted to SHO Kotwali. In cross- examination, he stated that on the date of incident, he had recorded the statement of S.I. Surendra Singh, who was in uniform but he had not seen any sign of pellet in his pant. 15. P.W.6 Satish Chandra Mehta stated that on 23.12.1991 he was I/c Inspector at Kotwali Haridwar. On the order of SP, Haridwar, the investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of witnesses, inspected the place of occurrence and prepared the site-plan Ext.Ka-6. On 27.12.1991, appellant-accused Surendra Singh surrendered before him at Kotwali Haridwar. During the course of investigation, he also taken the photographs of the place of incident, which are Ext.1 to Ext.10. On 11.1.1992, he received a letter Ext.Ka-7 which was written in Gurumukhi language. Hindi translation of that letter is Ext.ka-8. He has also proved the letters Ext.Ka-9 and Ka-10 written by him. On 25.5.1992, the investigation was transferred from him. In cross-examination, he stated that he had received reply of letter Ext.Ka-9 in which there was nothing written about the criminal history of the 10 appellant-accused. As per his information, the appellant-accused was not involved in any terrorist activities. 16. P.W.7 Rajkumar stated that on 23.12.1991, he was posted at Constable Clerk at P.S. Pathri. On that day, on the basis of FIR Ext.Ka-3, he had prepared the Chik FIR Ext.Ka-11 of the case and had also made entries in the G.D., carbon copy of G.D. is Ext.Ka-12. On 4.3.1992, S.O. Hari Prasad had deposited a DBBL Gun along with six cartridges of 12 Bore and a licensee bearing no.070 in the police station Pathri. Entries to this effect were also made in the G.D., carbon copy of which is Ext.Ka-13. He further stated that the charge sheet in the case was filed by S.I. R.C. Chaudhary. He has proved the charge sheet Ext.Ka-14. This witness identified the gun Ext.5, cartridges Ext.6 to Ext.6/5 and license Ext.7 in the court below. 17. Thereafter the statements of the appellant- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. In reply to question no.26, he stated that on the date of incident he had gone to Karnal to sell his paddy crops and on the same day in the evening he had come to Jagadhri and had remained there for two days. On 27.12.1991, he came back to his house. His wife and sister-in-law (Babhi) were taken by the police. He stated that when he went to see them in the police station, the police arrested him. However, he has not filed any oral or documentary evidence in defence. 11 18. Learned counsel for the appellant/accused argued that the prosecution has not proved the case beyond reasonable doubt against the appellants/accused. I find force in the argument put forth by learned counsel for the appellant/accused due to following reasons:- (a) That P.W.1 S.I. Surendra Singh and P.W.2 Yashpal Talwar, C.O. Roorkee, both have stated in their deposition that the appellant-accused Surendra Singh had used DBBL gun in the said incident but no Khokha cartridge of the DBBL gun was recovered from the spot. (b) That total 24 police personnel including S.I. Surendra Singh and C.O. Roorkee Yashpal Talwar raided the house of the appellant-accused Surendra Singh and 21 rounds of fire by the accused persons and 41 rounds of fire by the police force were made but the Police could not arrest a single accused from the spot. Even Smt. Sukhwant Kaur, wife of the appellant-accused, was also shown to be present at the time of incident but the police also could not succeed to arrest her. This fact creates reasonable doubt in the prosecution story. (c) That Darshan Singh, who is the independent witness of the case, has stated that the appellant- accused Surendra Singh was not present at the date and time of incident, which reveals that the incident was not happened in such a manner as stated by the prosecution. 12 (d) That the negatives of the photographs were not produced before the court below, which creates doubt about the place of occurrence. (e) That S.I. Rajpal Sharma, who was Investigating Officer of the case, has stated that on the date of incident viz. 23.12.1991, he recorded the statement of S.I. Surendra Singh (PW1) and at that time, S.I. Surendra Singh was in uniform but he had not seen any sign of pellet in his pant, which reveals that S.I. Surendra Singh had not received any fire arm injury in the said incident. (f) 21 rounds of fire were made by the appellant- accused and his accomplice and 41 rounds of fire were made by the police party but not a single fire- arm injury was received either by the appellant- accused or by the police party. Further, as per the statement of S.I. Rajpal Sharma, he had not seen any sign of pellet in the pant of S.I. Surendra Singh. This fact also transpires that the incident was not happened in such a manner and in such a way as it was stated by the prosecution. (g) That on 23.12.1991 P.W.4 Dr. A.K. Jain, Medical Officer examined the injuries of Constable Mange Ram and S.I. Surendra Singh. He opined that the injuries were simple in nature and caused by hard blunt object. He further stated that in Modi Jurisprudence, under the heading of abrasion, it is not written that the abrasion may be caused due to friction of pellet. This fact reveals that the injuries sustained by Const. Mange Ram and S.I. Surendra Singh were not caused by fire arm rather it were 13 caused by some blunt object but no blunt object was shown to be used by the appellant-accused in the alleged incident, which creates reasonable doubt in the entire prosecution story. (h) That as per the statement of P.W.6 Satish Chandra Mehta, I.O. on 27.12.1991 the appellant-accused Surendra Singh surrendered before him at Kotwali Haridwar. On the date of incident, the appellant- accused was at Jagadhari and when he came to know about the said incident, he himself surrendered in the police station. This fact also creates doubt about the presence of the appellant- accused at the relevant date and time of incident. (i) It has also come in the evidence that the licensee gun of Balkar Singh, which was alleged to have been used by the appellant on the date of incident, was taken into possession by the police but the same was not sent for ballistic expert report in order to show that the gun recovered was in the working condition. 19. From the evidence discussed above and the facts and circumstances of the case transpires that the incident was not happened in such a manner and in such a way as described by the prosecution. The prosecution has miserably failed to establish its case against the appellant-accused Surendra Singh beyond reasonable doubt and the trial court was not correct and justified in convicting and sentencing the appellant-accused Surendra Singh under the aforesaid section. The appellant is liable to be acquitted by giving benefit of doubt. 14 20. Resultantly, the appeal is allowed. The judgment and order dated 10.12.1996 passed by Second Additional Sessions Judge, Haridwar in S.T. No.252 of 1993, State Vs. Surendra Singh, is hereby set aside. Consequently, the conviction and sentence imposed by the court below, which has been discussed above, is also set aside. Appellant is on bail. He need not surrender unless wanted in any other. 21. Let the lower court record be sent back. (Dharam Veer, J.) July 07,2010 RG