COURTS’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING {Chapter VIII, Rule 32(2)(b)} Description of the Case GOVERNMENT APPEAL NO. 1469 OF 2001 (Old No. 565 of 1994) The State ……… Appellant Versus 1. Bachi Singh 2. Pan Singh 3. Madan Singh @ Mani R/o Patti Nayee District Nainital ……….Respondents Sri Amit Bhatt, learned Addl. GA for the appellant/State. Sri Amit Kapri, Adv. i/b Smt. Pushpa Joshi, Adv. for the respondent nos. 1 & 3 Sri Siddhartha Sah, Adv. for the respondent no.2 Approved for reporting Not approved for reporting. Initials of Judge (Dharam Veer, J.) Dated: May 7, 2010 Note: Bench Reader will attach this at the top of first page of the judgment when it is put before the Judge for signature. RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.1469 OF 2001 (Old No.565 of 1994) The State Versus ……… Appellant 1. Bachi Singh 2. Pan Singh 3. Madan Singh @ Mani R/o Patti Nayee District Nainital .………Respondents Dated: May 7 , 2010 Sri Amit Bhatt, learned Addl. GA for the appellant/State. Sri Amit Kapri, Adv. i/b Smt. Pushpa Joshi, Adv. for the respondent nos.1 & 3 Sri Siddhartha Sah, Adv. for the respondent no.2 HON. DHARAM VEER, J. This appeal preferred by the appellant/State, under section 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 24.11.1993 passed by the Special Judge (Additional Sessions Judge), Nainital, in Sessions Trial No.258 of 1988, State Vs. Bachi Singh & others and S.T. No.138/1989, State Vs. Bachi Singh, thereby acquitting the respondents Bachi Singh, Pan Singh and Madan Singh for the offences punishable under Sections 395/397 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC) and further acquitting the accused/respondent Bachi Singh under Section 25 of the Indian Arms Act, 1959 [hereinafter to be referred as the Act]. 2 2. I have heard learned counsel for parties and perused the entire material available on record. 3. In brief the prosecution case is that an FIR Ex.Ka-1 was lodged by Jaman Singh (PW1) stating therein that on 15.4.1988 at about 10 PM, five persons, having covered their faces with clothes, entered in his house and broke the electric bulb lightening there. At that time, his brother Nain Singh, mother Smt. Parvati Devi, sister in law Smt. Bhawani Devi, wife Smt. Himatti Devi and daughter Smt. Deepa Devi along with domestic servant Bhim Singh was sitting in the drawing room of the house after eating their meals. Out of those five dacoits, three were armed with knives one was having Tamancha and one was having Danda in their hands. After entering into the house, those five dacoits threatened complainant’s brother Nain Singh with knife and Tamancha and asked him to give his valuables to them. When Nain Singh made a protest, then the dacoits caused serious injuries to him by knives. When complainant’s mother Smt. Parvati Devi and servant Bhim Singh tried to intervene, the dacoits also caused injuries to them with knives. In the scuffle took place at the spot, the clothes covering the faces of three dacoits were removed and they were identified as Bachi Singh, Pan Singh and Madan Singh (present respondents/ accused) while the remaining two dacoits could not be identified. Thereafter, these dacoits attacked upon complainant’s wife Hemanti Devi, sister in law Bhawani Devi and daughter Deepa Devi. From his daughter Deepa Devi, the dacoits looted one necklace (Guloband) about 2 Tolas of gold, one pair of earrings of about 1/2 tola made of gold and one Mangalsutra made of silver about 3 tolas. From complainant’s sister in law Smt. 3 Bhawani Devi, the dacoits looted a necklace (Guloband) made of gold of about 2 Tolas and one pair of Dhaguli (an ornament) made of silver of about 24 Tolas. At the time of incident, he had gone at his neighbourhood and while returning, he heard scream on which he came to his house in the light of torch which he was having. He further stated that the accused Bachi Singh caused fire to him from his Tamacha, however he could narrowly escaped hurt. Thereafter he also identified Pan Singh and Madan Singh by flashing the torch but the rest two accused could not be identified. He raised the noise and the dacoits ran away. He entered inside the house where he saw that his brother Nain Singh, Smt. Parwati Devi and domestic servant Bhim Singh had sustained the injuries of knives. He was informed about the incident by his brother Nain Singh who disclosed him the entire story about the dacoits. It was further stated that the unknown two accused could be identified by him and his family members and the dacoits had also left one pair of shoes and the Khokha of Tamancha on the spot. Since the Patwari of Patti Nai was not available on that date, hence the report was lodged with Patwari of Patti Sundarkhal. With the same averments, the FIR Ex.Ka-1 was lodged by Jaman Singh on 16.4.1988 at about 12:30 PM with Patwari at Patti Sundarkhal. On the basis of this FIR, P.W.8 Bhuwan Chandra, Patwari prepared Chik FIR of the case, i.e. Ex.Ka-11. He also made entry in G.D., copy of which is Ex.Ka-12. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). Investigation of this case was also entrusted to PW8 Bhuwan Chandra, Patwari. Injured Bhim Singh, Smt. 4 Hemanti Devi, Smt. Parvati Devi, Smt. Bhawani Devi and Nain Singh were medically been examined on 16.4.1988 by PW6 Dr. R.K. Pandey and their medical reports Ex.Ka- 5, Ka-6, Ka-7, Ka-8 and Ka-9 respectively were prepared. On 17.4.1988, S.O. K.S. Aswal along with Trilok Singh Chilwal, Supervisor Kanungo, Bhuwan Chand, Patwari/ IO of the case and constable Ashar Aalam Khan arrested the accused/respondent Bachi Singh and got recovered one country pistol of 12 Bore and two live cartridges of 12 Bore and prepared Fard, i.e. Ex.Ka-10. On 24.4.1988, accused/respondents Hira Ballabh and Madan Singh were arrested by S.O. K.S. Aswal accompanied by PW8 Bhuwan Chandra and others. From the possession of accused Hira Ballabh, a golden necklace (Guloband) and one pair of two earrings made of gold were recovered while from the possession of accused, no item was recovered and for recovery of the above said, Fard Ex.Ka- 4 was prepared and accused Heera Ballabh was made Baparda on the spot. The I.O./Patwari during investigation inspected the place of occurrence and prepared site plan Ex.Ka-13. He also recovered one khokha cartridge of 12 Bore from the place of occurrence and prepared Fard Ex.Ka-14. He also recovered the bloodstained clay and plain clay from the place of occurrence and prepared Fard Ex.Ka-15. He also recovered one pair of shoes from the place of occurrence and prepared Fard, i.e. Ex.Ka-16. The I.O./ Patwari also recovered two knives from the place of occurrence and prepared Fard, Ex.Ka-17. He also prepared the site plan of the place where accused/ respondents Madan Singh and Hira Ballabh were arrested, i.e. Ex.Ka-18. The I.O. also took in his possession the Torch by which Jaman Singh identified the accused and prepared Fard, i.e. 5 Ex.Ka-19. The I.O. also took in his possession the bloodstained clothes of injured Nain Singh and Parvati Devi for which Fard Ex.Ka-20 was prepared. The I.O. also obtained the sanction for prosecution against the accused Bachi Singh by D.M. Nainital, i.e. Ex.Ka-21. During investigation, the I.O. recorded the statements of witnesses and on completing the investigation he filed the charge sheet against the accused/respondents Bachi Singh, Madan Singh @ Mani and Pan Singh and also against accused Heera Ballabh (who died during trial) u/s 395/397/412 IPC and further charge sheet against the accused Bachi Singh u/s 25 of the Act, i.e. Ex.Ka-23. 4. It is pertinent to mention here that in the identification proceedings of recovery of necklace (Guloband) and one pair of earrings was conducted by PW4 Rajendra Lal Sah in which Smt. Deepa Devi and Jaman Singh correctly identified both the articles and identification memo Ex.Ka-2 was prepared. In the identification parade of accused/respondent Hira Ballabh Pandey @ Neem Pandey conducted by the same Magistrate on 7.5.1988 at District Jail, Nainital, in that parade, PW1 Jaman Singh correctly identified the accused Hira Ballabh however Nain Singh could not identify him correctly for which identification memo Ex.Ka-3 was prepared. 5. Learned Chief Judicial Magistrate, Nainital appears to have committed the case u/s 395/397/412 IPC to the court of Sessions on 20.09.1988 after giving necessary copies to the respondents/accused as required under Section 207 Cr.P.C. Against the accused/respondent Bachi Singh, the case was committed to the court of Sessions u/s 25 of the Act on 6 23.5.1989 by CJM, Nainital after giving necessary copies to him as required under Section 207 Cr.P.C. The case was transferred to Special Judge [Addl. Sessions Judge] by the Sessions Judge for disposal as per law. 6. Learned Special Judge (Additional Sessions Judge), Nainital initially framed the charge against the accused Pan Singh, Madan Singh @ Mani, Heera Ballabh Pandey @ Neem Pandey and Bachi Singh on 18.10.1988 u/s 395 r/w Section 397 IPC. The charge was read over and explained to each of them, who pleaded not guilty and claimed to be tried. Thereafter on 15.6.1989, against the accused Bachi Singh, charge was framed u/s 25 of the Act. Against this charge also which was read over and explained to him, he pleaded not guilty and claimed to be tried. Thereafter again on 12.2.1990, against the accused Pan Singh, Madan Singh @ Mani and Hira Ballabh Pandey @ Neem Pandey and Bachi Singh, charge was framed u/s 395 and also u/s 397 IPC. The charges were again read over and explained to them who pleaded not guilty and claimed to be tried. On the same day, further charge against accused Hira Ballabh Pandey @ Neem Pandey was framed u/s 412 IPC. This charge was also read over and explained to him to which he pleaded not guilty and claimed to be tried. 7. S.T. No.258 of 1988, State Vs. Bachi Singh & others and S.T. No.138 of 1989, State Vs. Bachi Singh were consolidated vide order dated 15.6.1989 and S.T. No.258 of 1988 was made the leading trial. 8. During trial, accused Heera Ballabh Pandey @ Neem Pandey reported to be died, hence trial against him stood abated vide trial court’s order dated 11.5.1992. 9. The prosecution in order to prove its case got examined P.W.1 Jaman Singh, complainant, P.W.2 Smt. 7 Deepa Devi, eyewitness, P.W.3 Nain Singh, injured witness, P.W.4 Rajendra Lal Sah, Deputy Collector, who conducted the test identification proceedings, P.W.5 Bahadur Singh, P.W.6 Dr. R.K. Pandey, who medically examined the injured, P.W.7 Trilok Singh Chilwal, Naib Tehsildar, P.W.8 Bhuwan Chandra, Patwari/IO of the case, P.W.9 Tara Singh, P.W.10 Nar Singh Parihar and P.W.11 Constable Raj Singh. 10. After that the statements of the respondents- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused- respondents in question from. Each of the accused- respondents denied the allegations made against him and stated that they have been falsely implicated. They did not produce any oral or documentary evidence in their defence. 11. After appreciating the entire material available on record and hearing learned counsel for the parties, the learned Special Judge (Addl. Sessions Judge), Nainital vide his judgment and order dated 24.11.1993 has acquitted the respondents-accused as above said. Assailing the aforesaid judgment and order dated 24.11.1993, the State has come up in appeal. 12. The State had filed this appeal before High Court of Judicature at Allahabad and the appeal was also admitted there on 11.3.1999. This Court has received this appeal after creation of State of Uttaranchal now Uttarakhand u/s 35(2) of the U.P. Re-organization Act, 2000. 13. Before further discussion, it is pertinent to mention the injuries found by the medical officer P.W.6 8 Dr. R.K. Pandey on the person of injured Bhim Singh Nepali, who was examined on 16.4.1988 at 8 PM, in the injury report Ex.Ka-5, which reads as under: - “Injury- 1. Incised wound 1 cm long with gaping of wounds 1 cm wide with brownish coloured clotted blood present. The wound is present 2 cm ant. to anterior axillary line on right side over the 5th rib. Opinion- Injury seems to be simple, caused by a sharp edged weapon and is about a day old.” Injured Smt. Hemanti Devi was also medically been examined on the same day i.e. on 16.4.1988 at 8:05 PM by the same medical officer and the following injuries were found in her injury report Ex.Ka-6: - “Injuries- 1. Abrasion in an area of 2 cm x 2 cm present on the back at the level of T10 with reddish brown slab present. 2. Traumatic swelling 1 cm x 1.5 cm situated over left angle of mandible and abrasion size 0.8 cm x 0.1 cm situated on it, colour reddish brown. 3. Tenderness present over the right 6th rib in mid- axillary line without external marks of injury. Opinion- Injury no.1, 2 are simple, caused by a blunt rough object and is about a day old. Injury no.3 is kept under observation for which no cause or duration can be established at present.” Likewise injured Smt. Parvati Devi was examined on the same day i.e. 16.4.1988 at 8:10 PM and following injuries were found in her injury report Ex.Ka-7: - 1. “Heamatoma 3 cm x 2 cm in size present posterior to left pinna, bluish in colour without any overlying abrasion. 2. Incised wound 2.5 cm long with gaping of margins present. The wound is present from left pinna and extending posterior to left pinna with brownish clotted blood present, cartilage is also cut. 9 3. Incised wound 1 cm long with gaping present which is present on anterior aspect of the left pinna with brownish clotted blood present. 4. Incised wound 1.5 cm long with gaping of margins present, muscle deep cut. The wound is present 2.5 cm above the left patella on lateral aspect of left thigh with brownish clotted blood present. Opinion-Injury no.1,3, 4 and simple about a day old, injury no.1 is caused by a blunt object, injury no.2 is kept under observation, about a day old. Injury no.2,3 and 4 are caused by a sharp weapon.” “Injured Smt. Bhawani Devi was also medically been examined on 16.4.1988 at 8:25 PM and the following injuries were found in her injury report Ex.Ka-8: - Injuries 1. C/o pain on left side of neck without external marks of injury. 2. Tenderness present over the medial condyle of left elbow without external marks of injury. Margins are painful at the joint. Opinion- Injury no.1 is simple, cause and duration for injury no.1 cannot established, injury no.2 is kept under observation. Advised x-ray left elbow AP & Lat. Injury no.2 is caused by hard blunt object. Duration cannot be established for injury no.2.” Injured Nain Singh was also medically been examined on the same day i.e. 16.4.1988 at 8:35 PM and the following injuries were found in his injury report Ex.Ka-9: - “Injuries 1. Lacerated wound 1.2 cm x 0.2 cm present over left lobule of ear extending to the back with brownish clotted blood present. 2. Incised wound 2 cm long x 0.8 cm wide into muscle deep situated 4 cm above and posterior from left angle of mandible with brownish clotted blood present. 10 3. Incised wound size 1.5 cm x 0.4 cm situated 10 cm below and 5 cm medial to left acro-thio clavicular joint over left shoulder blade with brownish clotted blood present. 4. Incised wound 1 cm x 0.25 cm present 10 cm below the left axilla in posterior axillary line with brownish clotted blood present. 5. C/o pain in left deltoid region without external marks of injury. Opinion- Injury no.1,2,3,4,5 are simple in nature, injury no.1 is caused by hard blunt object. Injury no.2,3,4 are caused by sharp edged weapon. Injury no.1,2,3,4 are about a day old, cause and duration cannot be established for injury no.5.” 14. To prove the above-said injury reports, the prosecution has examined P.W.6 Dr. R.K. Pandey who has proved the injury reports viz. Ex.Ka-5 to Ka-9 respectively to be prepared by him. He further stated that at about 10 PM on 15.4.1988, on the person of injured persons, the incised wounds could have been caused by knives while the rest of the injuries could have been caused by blunt weapon like DANDA and friction. 15. To further prove its case, the prosecution has examined P.W.1 Jaman Singh who has stated that on the date of incident he had gone at his neighbourer’s house Sher Singh at about 8:30 PM. At about 10 PM when he was returning and reached near to his house, he heard noise of weeping and screaming on which he moved rapidly towards his house and roared. As soon as he reached in the corner of courtyard of his house and lightened the torch, he saw five persons coming out of his house out of them he identified Pan Singh, Madan Singh and Bachi Singh (present respondents/accused) and meanwhile accused Bachi Singh fired upon him by his 11 Tamancha, however he could narrowly escaped. On his raising alarm, accused persons ran away and apart from those three accused, he also saw the faces of other two accused. Then he went inside his house where his brother Nain Singh, mother Parvati Devi, sister in law Bhawani Devi, wife Hemanti Devi, daughter Deepa Devi and domestic servant Bhim Singh Nepali were found there. His brother Nain Singh, mother Parvati Devi and Bhim Singh Nepali had sustained the injuries. He was informed by his brother and other members present over there informed him that on that date at about 10 PM, five persons, having covered their faces with clothes, entered inside the house and out of them, one was having Tamancha, two were having knives and one was having a DANDA in their hands. All of them asked his brother Nain Singh and mother to hand over their valuables to them. When his brother made a protest, the said dacoits pounced upon him and caused injuries to him. When his mother and servant Bhim Singh came forward to save his brother, then the dacoits also caused injuries to them and in this scuffle, the clothes covering the faces of the dacoits were unveiled and then the family members identified Bachi Singh, Pan Singh and Madan Singh amongst the dacoits. He was also informed that from Deepa Devi, the dacoits looted golden necklace (GULOBAND), golden earrings and a silver MANGALSUTRA, while from Bhawani Devi, a golden necklace (GULOBAND), one pair DHAGULA made from silver from her hand. The dacoits while running left one pair of shoes and one Khokha of cartridge on the spot and in the meanwhile, villagers also reached there who were also informed about the incident. After that he along with 1-2 persons of village went to lodge the report 12 to Patwari however the Patwari was not found in the headquarter as he was reported to have gone at Nainital. Thereafter, he came back in the night. On the next day i.e. 16.4.1988 at 10 AM, they went to meet Patwari however the Patwari was again not found there. On this he wrote the report and gave to the Patwari of Patti Sundarkhal Headquarter, i.e. Ex.Ka-1. After that Patwari came there, who recovered the knife, shoes etc. left by the accused at the place of occurrence and he also completed the necessary formalities. He has also stated that on the night of incident when he entered inside the room, electric light was there. He also stated that accused Bachi Singh, Pan Singh and Madan Singh were known to him. After about two weeks of incident, he went in Nainital jail to identify the accused where he had identified Hira Ballabh Pandey. After the incident till identification, he had not seen that accused in between. He also went at SDM court Nainital to identify the ornaments and he identified a golden necklace (GULOBAND) and one pair of earrings of his daughter Deepa. After the incident till identification, he had not seen those ornaments in between that period. He also identified the knives recovered by the IO/Patwari which were left by the accused and they were marked as Ex.1 and 2. He also identified one Khokha cartride and one pair of shoes marked as Ex.3 and 4. He also stated that the Patwari/IO had taken the Torch, by which he identified the accused and that was sealed on the spot. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 13 16. P.W.3 Nain Singh stated that on 15.4.1988 at about 9:30-10 PM he along with his mother, wife, daughter in law Hemanti Devi, niece Deepa Devi and Bhim Singh was sitting in their house and electric light was there. At that time, five persons, having covered their faces with clothes, entered inside the house. Out of them, one was having Tamancha, three were having knives and one was having a DANDA in their hands. All of them asked him to hand over his money to them. When he made a protest, the said dacoits attacked him with knives and Danda and during this, a scuffle took place in which his mother and servant Bhim Singh came forward to save him. Then the dacoits also caused injuries to them and in this process, the clothes covering the faces of the dacoits were unveiled and then he identified Bachi Singh, Pan Singh and Madan Singh amongst the dacoits. Accused Bachi Singh was having a Tamancha and accused Madan Singh and Pan Singh were having knives in their hands. After that these accused pounced upon the ladies of the house and looted from his wife Bhawani Devi DHAGULA of silver and a golden necklace (GULOBAND). From his niece Deepa Devi, the dacoits looted golden necklace (GULOBAND), golden earrings and silver MANGALSUTRA. Meanwhile, on the alarm raised by his brother Jaman Singh, all the accused started running out and during this he heard noise of fire of TAMANCHA. Soon thereafter his brother Jaman Singh came inside and informed that accused Bachi Singh fired upon him however he was narrowly escaped. His brother also identified Bachi Singh and his accomplice Pan Singh and Madan Singh. He and his family members also informed about the incident to Jaman Singh and about the identification of accused 14 Bachi Singh, Pan Singh and Madan Singh out of dacoits. The accused/respondents while running, left one pair of shoes and two knives, which the Patwari recovered on the next day. In this incident, he along with his mother, servant Bhim Singh, his wife and daughter in law had sustained injuries. After the incident, in the night itself his brother Jaman Singh went to lodge the report but after returning, he informed that Patwari was not present in the headquarter. On the next day his brother went to lodge the report and at about 1½ - 2 PM, Patwari came on the spot and recovered the knives and other articles left on the spot by the accused. He along with other injured was medically examined on the same day. The Patwari also took in his possession the bloodstained clothes worn by him viz. trouser, undershirt, shirt and waistcoat, worn by him at the time of incident which were marked as Ex.7 to Ex.10. The I.O./Patwari also took the clothes worn by his mother at the time of incident which were marked as Ex.11 to Ex.14. The Patwari also took the Torch from his brother Jaman Singh, the said Torch is