IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No.169 of 2001 (OLD NO.2124 OF 2000) 1. Diwakar Prasad 2. Kuldeep Bisht 3. Rajeev Dobhal 4. Amit Saklani …………Revisionists Versus State of Uttarakhand ………….Respondent Dated : February 23, 2010 Sri R.P. Nautiyal, Sri B.S. Negi and Sri Niranjan Bhatt, learned counsel for the revisionists Sri Nandan Arya, learned AGA for the State Hon’ble Dharam Veer, J. This criminal revision, preferred under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 14.7.2000 passed by Sessions Judge, Uttarkashi in Criminal Appeal No.40/1999, whereby the learned Sessions Judge partly allowed the appeal by maintaining the conviction of the revisionists u/s 385 of The Indian Penal Code, 1860 (hereinafter to be referred as The IPC) but by setting aside the sentence of six months R.I. imposed upon each of the revisionists and maintaining the sentence of fine of Rs.500/- each imposed by learned Chief Judicial Magistrate, Uttarkashi vide his judgment and order dated 4/12.11.1999 in criminal case no.607/1998. 2. Heard learned counsel for the parties and perused the material available in file. 2 3. In brief, the prosecution case is that on 16.11.1998 PW1 Shiv Prasad lodged a report in police station Kotwali stating therein that on 15.11.1998 at 07:00 PM four students (the revisionists herein) of Uttarkashi Degree College came in the compound of radio station and demanded Rs.20,000/- for election fund. When the complainant showed his inability to give the money then the revisionists-Diwakar Prasad, Kuldeep Bisht, Rajeev Dobhal and Amit Saklani threatened him that they will burn his house. Thereafter the revisionists went from the spot. With the same averments, Shiv Prasad (PW1) lodged the FIR, scribed by Devesh Kumar Saini (PW2) at Police Station Kotwali on 16.11.1998 at 11:45 AM. On the basis of the FIR, Chik FIR of the case was prepared. The investigation of this case was entrusted to S.I. Giri Raj Singh, who during the course of investigation, recorded the statement of the witnesses, inspected the place of occurrence and prepared the site-plan Ext.Ka-4. On completion of the investigation, the I.O. filed the charge sheet Ext.Ka-2 against the accused-revisionists. 4. On 14.6.1999, particulars of offence were stated to each of the accused-revisionists in question form, who have denied the particulars of offence made against him. 5. In order to prove its case, the prosecution has examined PW1 Shiv Prasad Singh, complainant of the case, PW2 Devesh Kumar Saini and PW3 Devendra Pal Singh. 6. Thereafter, the statements of the accused- revisionists 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 each of 3 them. However, they did not produce any oral or documentary evidence in their defence. 7. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Chief Judicial Magistrate, Uttarkashi vide his judgment and order dated 4/12.11.1999 convicted the accused- revisionists u/s 385 IPC and sentenced each of them to six months R.I. with a fine of Rs.500/- each. In default of payment of fine, each of the accused-revisionist was sentenced to one month’s additional imprisonment. Against that judgment and order, the revisionists preferred an appeal before learned Sessions Judge, Uttarkashi. Learned Sessions Judge, Uttarkashi vide his judgment and order dated 14.07.2000 partly allowed the appeal, maintaining the conviction of the accused-revisionists u/s 385 IPC and imposed sentence of fine of Rs.500/- each and setting aside the sentence of six months R.I. against each of the accused-revisionists. Feeling aggrieved by the said judgment and order, the revisionists have come up in revision before this Court. 8. To prove its case, the prosecution examined PW1 Shiv Prasad Singh, complainant of the case, who has reiterated the version of the FIR. In the cross-examination, he stated that government vehicle was provided to him. He further stated that the place of occurrence is at a distance of 5 Kms from the police station and residence of Superintendent of Police is also at the same distance. It takes about 20-25 minutes to cover the distance of 5 Kms. He further stated that the revisionists were not known to him before the said incident. Next day in the morning at 4 about 10-11 AM he along with Devesh Kumar Saini had gone to the police station. 9. PW2 Devesh Kumar Saini has stated that on 15.11.1988 at about 7 PM he was in his office. Devendra Pal Singh, M.P. Singh and Shiv Prasad Singh were also present in the compound of Akashvani (Radio Centre), Uttarkashi. Meanwhile, the revisionists came in the compound and demanded Rs.20,000/- for election fund from Shiv Prasad. When he showed his inability to give the money then the revisionists threaten him to give money in 5 to 7 days otherwise they will burn his house. Thereafter the revisionists went from the place of occurrence. He further stated that the report Ext.Ka-1 of the said incident was written by him and was lodged in the police station on 16th. In the cross-examination he stated that on the date when they lodged the report they had remained in the police station upto 09:30 PM and the report was lodged on 16.11.1998 at about 09:00 PM. On 16.11.1998 they had not come in the police station in the morning. Thereafter this witness stated that they had come in the police station at about 12-1 PM on 16.11.1998. **ftl fnu geus Fkkus ij fjiksVZ djok;h ml fnu ge Fkkus ij jkr 09%30 cts rd jgs FksA fnukad 16-11-98 dks fjiksVZ yxHkXk jkr ds djhc ukS cts ntZ gq;h FkhA ge 16-11-98 dks lqcg Fkkus ij ugha vk;s Fks fQj dgk fd 16-11-98 dks ge 12] 1 cts fnu esa Fkkus ij vk;s FksA** 10. PW3 is Devendra Pal Singh, who has stated that on 15.11.1998 he was posted in Akashvani Transmitter, Manera. On that day, he was performing his duty in the room. His officer Shiv Prasad Singh came to him and told him that four students had come and were demanding money for election fund. It was told to him that they had 5 also threatened him (Shiv Prasad). Shiv Prasad had not told the names of the students to him. Thereafter this witness was declared hostile. In the cross-examination, he stated that official telephone and jeep are available in their office and the telephone was in the working condition. 11. Thereafter, the statements of the accused- revisionists 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 each of them. However, they did not produce any oral or documentary evidence in their defence. 12. Learned counsel for the accused-revisionists have submitted that the prosecution has not proved the case against the accused-revisionists beyond reasonable doubt and the judgment and order of the courts below is not correct and justified as per the evidence discussed above. I find force in the submission of learned counsel for the accused-revisionists, due to following reasons:- (i) PW1 Shiv Prasad who is the complainant of the case has stated that the incident took place on 15.11.1998 at about 07:00 PM. The police station was at a distance of about 5 Kms from the place of occurrence. Besides this, official telephone was also available on the spot, which was in the working condition at the time of incident. This fact has also been admitted by PW3 Devendra Pal Singh that at the time of the incident official telephone was in the working condition. However, the FIR was lodged on 16.11.1998 at 11:45 A.M. and this delay in lodging the FIR has not been explained by the prosecution 6 by showing the sufficient cause. Therefore, this unexplained delay in lodging the FIR is also fatal to the case of prosecution. (ii) PW2 Devesh Kumar Saini, in his deposition, has stated that on 16.11.1998 they remained in the police station upto 09:30 PM and the report was lodged at 09:00 PM on the same day. They had not gone to the police station in the morning. But thereafter he stated that on 16.11.1998 he alongwith other employees had gone to the police station at 12 or 01:00 PM. This contradiction in the statement of PW2 regarding lodging of the report creates reasonable doubt in the prosecution story. (iii) It has also come in the evidence of PW1 Shiv Prasad that the revisionists were not known to him before the said incident. PW3 Devendra Pal Singh has also stated that after the incident when Shiv Prasad (PW1) told him about the incident then he (Shiv Prasad) did not disclose the names of the students who had demanded Rs.20,000/- for election fund. But when the report of the said incident was lodged in the police station the revisionists were named in it. This fact shows that after thought story the FIR was lodged by the complainant Shiv Prasad in which he had named the revisionists. 13. In the circumstances, I am of the considered opinion that the prosecution miserably failed to establish the charge against the revisionists for the offence punishable under Section 385 IPC and the findings given 7 by the appellate court as well as the trial court are not legally correct and justified as per the evidence discussed above. As such, the revisionists are liable to be acquitted after giving benefit of doubt. 14. For the foregoing reasons, the revision deserves to be allowed and is accordingly allowed. The judgment and order dated 14.07.2000 passed by Sessions Judge, Uttarkashi in Criminal Appeal No.40 of 1999, is set aside. Consequently, the conviction u/s 385 IPC against the revisionists and fine of Rs.500/- each, is also set aside. (Dharam Veer, J.) 23.02.2010 RG