1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1673 of 2001 (Old No. 1546/1990) State of U.P (Now State of Uttarakhand) …………. Appellant Versus 1. Raj Kumar S/O Matoori Goojar R/O Nawal Surajpur, P.S Kithaur, District Meerut presently residing Near Prakash Pipe Factory Kashipur, District Nainital. 2. Jai Prakash S/O Mewa Lal R/O Kirakar, P.S Kirana, District Jaunpur, presently residing near Prakash Tube, Factory Kashipur 3. Surendra Singh S/O Hawaldar Singh R/O village Labour Colony Shikehabad, District Mainpuri, presently residing near Prakash Tube Factory, Kashipur, Nainital 4. Sadhu Singh (since deceased) S/O Ram Chandra R/O Ratara, P.S Bawani Kheda District Bhiwani, Hariyana 5. Satpal S/O Rameshwar Dayal R/O village Rakera, P.S Bhogaon, District Mainpuri, Presently residing near Prakash Tube Factory, Nainital. ……….Respondents 2 Shri M.A.Khan, Brief Holder, present for the Appellant/ State Shri B.S. Parihar, Holding Brief of Shri Mohd. Azim counsel for the respondents. Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 378 of Code of Criminal Procedure 1973, (for short Cr.P.C)., is directed against the judgment and order dated 25.05.1990 passed by IV Additional Sessions Judge, Nainital, in Sessions Trial No. 274 of 1989 whereby said court has acquitted the accused/respondents namely Raj Kumar, Jai Prakash, Surendra Singh and Sadhu Singh from charge of the offences punishable under section 147, 148, 452, 308 I.P.C. Accused Satpal and Pratap Singh are acquitted of the charge of offences punishable under section 147, 148 I.P.C but they are convicted under section 452 and 308 of I.P.C. The trial court sentenced each of the convicts Satpal and Pratap Singh to rigorous imprisonment for a period of four years under section 308 I.P.C and rigorous imprisonment for a period of two years and fine of Rs. one thousand under section 452 of I.P.C.. The State has challenged acquittal of the other accused 3 namely Raj Kumar, Jai Prakash, Surendra and Sadhu Singh (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that PW2Virendra Pal Singh lodged First Information Report (Exhibit A-2) at Police Station Kashipur on 17.07.1988, alleging that in village Hariyawala he had some altercation with accused Satpal. In the intervening night of 16th and 17th of July 1988 at about 12.30 mid night, when the complainant Virendra Pal Singh was sleeping, accused Satpal and Pratap Singh along with three four persons armed with knife and rods, entered in the house of the complainant and assaulted him. Pratap Singh gave a knife blow on the person of Virendra Pal Singh, and other caused injuries with the rods. It is further alleged by the complainant could see the accused in the electric light. However, he could not lodge report in the night due to the fear of being assaulted again. The report was lodged in the morning at about 9.30 a.m.. Police registered the First Information Report as crime no. 542 of 1988. The investigation was done by PW4 U.A. Khan 4 (Sub Inspector) and PW5 Ramesh Chander Verma. Virendra Pal Singh (PW2) was got medically examined at the L.D.Bhatt Hospital, Kashipur at 10.30 a.m., by PW1 Dr. S.P.Shrivastav. The Investigating Officer inspected the spot, prepared site plan and after interrogating the witnesses, submitted charge sheet (Exhibit A-5, Exhibit A-6 and Exhibit A-8) against the accused/respondents, which were clubbed and tried together. (4) After giving necessary copies, as required under section 207 Cr.P.C., the Magistrate appears to have committed the case to the court of Sessions, for trial as offence punishable under section 308 I.P.C is triable by the court of Sessions. Learned IV Additional Sessions Judge, to whom the case was transferred, after hearing the parties, framed charge of offences punishable under section 147, 452 and 308/149 of I.P.C against all the accused namely Satpal, Pratap Singh, Sadhu, Jai Prakash, Surendra Singh and Raj Kumar. All of them pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Dr. S.P. Shrivasrav, PW2 Virendra Pal Singh (injured and complainant), PW3 Raj Kumar, PW4 U.A. Khan(Sub Inspector) and 5 PW5 Ramesh Chander Verma (Investigation Officer). The oral and documentary evidence was put to the accused, in reply to which he stated that the evidence was false. However, no evidence was adduced in defence. The trial court after hearing the parties found that charge as against Raj Kumar, Jai Prakash, Surendra and Sadhu Singh are not proved and they were acquitted of the charge of offences punishable under section 147, 148, 452 and 308 of I.P.C.. However, as against accused/respondents Satpal and Pratap Singh the trial court found charge of offences punishable under section 452 and 308 proved. They were heard on sentence, and sentenced to each one of them rigorous imprisonment for a period of four years under section 308 I.P.C and rigorous imprisonment for a period of two years and fine of Rs. one thousand of under section 452 of I.P.C. In default of payment of fine the defaulter was directed to undergo further imprisonment for a period of three months. (5) It appears that the convicts filed criminal appeal no 1135 of 1990 before Allahabad High court which was decided by said court vide its order dated 02.05.1997 upholding the conviction of the Satpal 6 and Pratap Singh. However, Allahabad High Court reduced the sentence of imprisonment to a period of imprisonment already undergone, but maintained the sentence of fine, which was deposited by the two accused Satpal and Pratap Singh on 29.08.1987, before the trial court. This appeal was preferred by the State before Allahabad High Court against the same order dated 25.05.1990 passed for Sessions Trial No. 274 of 1989,IV Additional Sessions Judge, Nainital (earlier Kashipur was part of district Nainital) against acquittal of respondents, which is received by transfer by this court under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. (6) Before further discussion, this court thinks it just and proper to mention the injuries found on the person of Virendra Pal Singh by PW1 Dr. S.P. Shrivastav on 17.07.1988, who prepared injury report (Exhibit A-1). Said injuries are being reproduced below:- (i) An incised wound of size 2.5cmx.2cmx tissue deep on the right side of face, 1cm below the right eye. Serum oozing. 7 (ii) Contusion of size 5cmx2.5cm on the left side of the forehead joint lateral to the left eyebrow. (iii) Contusion of size 18cmx4cm on the left shoulder region back. Red in colour. (iv) Contusion of size 10cmx3cm on the left scapular region. Red in colour, perpendicular to injury no.3. (v) Contusion of size 19cmx5cm on the right infrascapular region, obliquely placed 9cm below inferior angle of scapula. Red in color. (vi) Contusion of size 10cmx3cm on the left side of flank, just above the illiac crest of left side. Red in colour. (vii) Contusion of size 10cmx5cm on the left upper arm. Middle third. Red in colour. (viii) Contusion of size 12cmx4cm on the left elbow joint. Red in colour whole of the elbow joints smatter all around. (ix) Complain of pain at right lower part of chest. 8 (x) Abraded contusion of 14cmx7cm on the left thigh just above the greater troechentor and extending posteriorly. Red in colour. The size of abbranas 1cmx1.5cm form scab present. (xi) Contusion of size 10cmx4cm on the left thigh outer aspect. 9cm above left knee joint. Red in colour. (xii) Abraded contusion of size 10cmx7cm left lower leg 6cm above the left lateral malleales . Red in colour. The size of abrasion 2cmx.5cm form hard scalp present. (xiii) Contusion of size 25cmx3cm on the left thigh enterior . Red in colour. The medical officer has opined that the injuries could have caused in the intervening night of 16th and 17th of July 1988 at 12.30. p.m. In view of the above injuries the statement of PW2 Virendra Pal Singh (injured) appears to have rightly been believed by the trial court as against accused Satpal and Pratap Singh. 9 (7) Now, this court has to see whether the charge as against the other accused namely Raj Kumar, Jai Prakash, Surendra and Sadhu Singh are proved or not. First Information Report (Exhibit A-3) shows that the complainant Virender Pal Singh had named only two accused Satpal and Pratap Singh and rest of the accused were said to be not known to the injured. In a statement PW2 Virendra Pal Singh before the trial court has improved the story by naming another accused Jai Prakash. Had Jai Prakash been known to the injured, he would have no difficulty in naming him in the First Information Report. As against the other accused Raj Kumar, Surendra and Sadhu Singh, PW2 Virendra Pal Singh has stated nothing if they had beaten him. It is pertinent to mention here that the injured, was the best person who could see the accused at the time of mid night. PW3 Raj Kumar has not named any one except Satpal and Pratap Singh (both have been convicted). (8) In the above circumstances, this court finds no sufficient reason to interfere with the trial court’s judgment, as the trial court appears to have rightly acquitted accused Raj Kumar, Jai Prakash, Surendra and Sadhu. Having gone through the evidence on 10 record and after hearing the learned counsel for the parties this court concurs of the view taken by the trial court. (9) For the reasons as discussed above, this appeal is dismissed. The lower court record be sent back. (Prafulla C. Pant, J.) Dt.15.07.2010 N.P