IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 175 of 2008 (Old No. 1418 of 1995) Balle @ Balwant S/o Late Khoob Chand, R/o Ambiwalla, P.S. Kotwali Dehradun And Another. .…. Appellants/Accused Versus State of U.P. …………… Respondent March 23, 2009 Mr. Pawan Mishra, Advocate for the appellant no. 1. Mr. Manoj Kumar Mohan, Amicus Curiae for the appell nt no. 2. a Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 21.8.1995 passed by the Additional Sessions Judge, Dehradun in Sessions Trial No. 80 of 1995, State v. Balle @ Balwant & Anr., whereby the learned Additional Sessions Judge has convicted the appellants-accused under Section 436 of Indian Penal Code, 1860 (for short, I.P.C.) and sentenced each of them to undergo five years’ R.I. along with fine of Rs. 1500/- and in case of default in the payment of fine, six months’ further R.I. was awarded to each of the appellants- accused. 2. In brief, the prosecution case is that in the night of 19/20 October, 1992 at about 10 PM, the complainant Ramkishan, PW-1 was in his house along with the witnesses Sunil Kumar, PW-3 and Shyam Lal, PW-4. Meanwhile, he has heard the noise outside his house of 2 leaving the crackers. After hearing the noise, Ramkishan along with PW-3 Sunil Kumar and PW-4 Shyam Lal have come outside the house. Then he saw that the appellants- accused were leaving the crackers near his Khokha. PW-1 Ramkishan has asked them not to leave the crackers near his Khokha. On this, both the appellants-accused gone from the place of occurrence and they have come after the short time with the plastic cane of the kerosene oil and after spilling the kerosene oil on his Khokha, they lit the fire. When he tried to stop the fire, the appellants-accused threatened him with the knife and khukhri for his life for which he could not save his Khokha. PW-1 Ramkishan has further stated that due to fire on the Khokha, he has suffered loss of Rs. 15000/-. 3. With the aforesaid averments, PW-1 Ramkishan lodged the FIR, Ex. Ka-1 on 20.10.1992 at 9.20 AM. Thereafter the chick FIR was prepared by Constable Clerk Satendra Singh, PW-5. Chick FIR is Ex. Ka-3. Necessary entry was also made in the GD. Carbon copy of GD is Ex. Ka-4. The investigation of this case was entrusted to S.I. Sharad Kumar. The I.O. during the course of investigation has taken the ashes of the burnt articles and recovered the plastic cane and prepared the fard Ex. Ka-2. The I.O. has also prepared the specimen of the seal Ex. 5. During the course of investigation, the I.O. has inspected the place of occurrence and prepared the site plan Ex. Ka-5. The I.O. has also recorded the statement of the witnesses during the course of investigation and after completing the investigation, he has filed the chargesheet Ex. Ka-6 against the appellants-accused under Section 436, 504 and 506 of I.P.C. 4. Learned Chief Judicial Magistrate, Dehradun, after giving the necessary copies of the documents to the 3 appellants-accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 25.3.1995. The case was transferred to Additional Sessions Judge (Special Judge), E.C. Act for its disposal according to law. 5. Learned Additional Sessions Judge framed the charges against the appellants-accused on 24.6.1995 under Section 436, 504 and 506 of I.P.C. The charges were read over and explained to each of the appellants- accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW- 1 Ramkishan, the complainant; PW-2 Siya Ram who is the witness of the recovery of the ashes and the plastic cane; PW-3 Sunil Kumar and PW-4 Shyam Lal, eyewitnesses of the said incident and PW-5 Constable Satendra Singh, who has prepared the chick FIR and made the other necessary entries. 7. Thereafter, the statement of each of the appellants- accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to the appellants in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case due to enmity. However, in defence, the appellants-accused did not produce any documentary or oral evidence on record. 8. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Additional Sessions Judge (Special Judge), E.C. Act, Dehradun vide his judgment and order dated 21.8.1995 convicted and sentenced to the appellants as discussed 4 above. Against the aforesaid judgment and order dated 21.8.1995, the appellants-accused have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. To prove its case, the prosecution has examined the complainant Ramkishan, PW-1, who has stated that about 10 PM on the date of the said incident, he was in his house along with the other witnesses Sunil Kumar, PW-3 and Shyam Lal, PW-4. He has heard the noise of leaving the crackers outside his house and he came outside his house and then he saw that the appellants-accused were leaving the crackers outside his house. Then he asked the appellants-accused not to leave the crackers as there is chance of the burn of his Khokha. On this, the appellants- accused threatened him. After threatening Ramkishan, the appellants-accused left the place and after sometime again came on the same place of occurrence and by spilling the kerosene oil on the Khokha of PW-1 Ramkishan, they lit the fire. PW-1 Ramkishan has identified the plastic cane Ex. 1 and the cloth used for the sealing as Ex. 2. He has further stated that due to burning of Khokha he has suffered the loss of Rs. 15000/-. He has also proved the FIR Ex. Ka-1, which was lodged by him. In the cross-examination, this witness has stated **bl ?kVuk ds igys ls bu nksuksa eqyfteku ls esjh jaft’k Fkh**, before the said incident he had enmity with the appellants-accused. 11. PW-2 Siya Ram has stated that the I.O. had taken the kanastari (plastic cane) Ex. 1 from the place of occurrence and sealed it in the cloth and the fard was prepared and that fard is Ex. Ka-2. He has also identified 5 the ashes of the burnt articles, Ex. 3; the cloth which is Ex. 4 and the specimen of the seal prepared on the spot, which is Ex. 5. 12. PW-3 Sunil Kumar and PW-4 Shyam Lal, the eyewitnesses of the said incident, have not supported the prosecution case and declared hostile. 13. PW-5 is the Constable Satendra Singh, who has stated that on 20.10.1992 he was posted as Constable Clerk in Basant Vihar choki. On the basis of the FIR Ex. Ka-1 he has prepared the chick FIR Ex. Ka-3. He has also made entry in the GD. Carbon copy of the GD is Ex. Ka-4. He has further stated that S.I. Sharad Kumar, who has investigated the crime, has died. He has identified the sign of S.I. Sharad Kumar on the chargesheet Ex. Ka-6. 14. After that, the statement of each of the appellants- accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to the appellants in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case due to enmity. However, in defence, the appellants-accused did not produce any documentary or oral evidence on record. 15. Sri Pawan Mishra, learned Counsel for the appellant no. 1 and Sri Manoj Kumar Mohan, learned Amicus Curiae for the appellant no. 2 have submitted that on the basis of the evidence discussed above, the prosecution has not proved the case against the appellants-accused beyond reasonable doubt. I find substance in the submission of the learned Counsel for the appellants due to the following reasons: 6 (i) That PW-3 Sunil Kumar and PW-4 Shyam Lal, eyewitnesses of the said incident, have not supported the prosecution case and declared hostile. (ii) The only evidence which remains against the appellants-accused is the statement of PW-1 Ramkishan, who is also the complainant of the case. He has stated in his cross-examination that he had enmity with the appellants-accused before the said incident. Even otherwise his statement is not reliable and does not inspire confidence. On the basis of the solitary evidence which does not inspire confidence and is not a reliable evidence, the appellants-accused cannot be convicted. 16. Thus, for the reasons recorded above, the prosecution has not proved the case against the appellants-accused beyond reasonable doubt and the appellants-accused are entitled to benefit of doubt. Therefore, the impugned judgment and order dated 21.8.1995 of the Trial Court is not correct and justified and is liable to be set aside. 17. Accordingly, the appeal is allowed. The judgment and order dated 21.8.1995 passed by the Additional Sessions Judge (Special Judge), E.C. Act, Dehradun convicting the appellants under Section 436 of I.P.C. is hereby quashed and the sentence of five years’ R.I. with a fine of Rs. 1500/- is also set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled. Sureties are discharged. 18. Let the lower court record be sent back. (Dharam Veer, J.) 23.3.2009 PRABODH 7