IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 290 OF 2001 (Old No. 963 of 1993) Mulak Ram & Others ……… Appellants Versus State ……… Respondent 1st December, 2008 Ms. Sangeeta Miyan, Advocate holding brief of Mr. Sudhir Singh, learned Counsel for the appellants. Sri Prabhakar Joshi, learned Brief Holder for the State/opposite party. HON. DHARAM VEER, J. This appeal preferred under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) is directed against the judgment and order dated 21.5.1993 passed by Sessions Judge, Uttarkashi in Sessions Trial No. 15 of 1992, State v. Mulak Ram & Others, whereby the learned Sessions Judge has convicted all the appellants/accused Mulak Ram, Daya Ram, Viond & Ludar Singh under Section 323 read with Section 34 and under Section 392 of The Indian Penal Code, 1860 (hereinafter referred to as I.P.C.) and each of the appellants/accused has been sentenced to six months’ rigorous imprisonment under Section 323/34 I.P.C. and further sentenced them to thee years’ rigorous imprisonment under Section 392 I.P.C. Learned Sessions Judge directed that both the sentences would run concurrently. 2. Learned District Judge vide his letter dated 20.4.2004 has reported that the appellant/accused 2 Mulak Ram died during the pendency of this appeal. Hence, the appeal of Mulak Ram stands abated. 3. I have heard Ms. Sangeeta Miyan, Advocate holding brief of Mr. Sudhir Singh, learned Counsel for the appellants and Mr. Prakhar Joshi, learned Brief Holder for the State/opposite party and perused the materials available on record. 4. In brief, the case of prosecution as set out before the trail court is that on 3.1.1992 at 11 A.M., the complainant Chait Singh, PW-1 started from Patwari post to village Himrol for the investigation of the complaint lodged by Mahime Nand. He was accompanied by two peons, namely, Prem Singh Rana and Prem Singh Makhloga. While complaint Chait Singh was on his way to village Himrol, the appellants/accused had met him. Appellant/accused Daya Ram was armed with a gun and rest of the appellants/accused were having Dandas(Lathis). All the appellants/accused surrounded the complainant Chait Singh and started abusing him. Appellants/accused asked the complainant Chait Singh that why he did not show their houses as totally damaged and devastated in the earthquake as because of this they were deprived from getting the earthquake relief meant for the category of the persons whose properties were fully damaged. Appellants/accused also told the complainant that blankets were not distributed to them. The complaint Chait Singh said to the appellants/accused that the verification of the damage of property in the earthquake was done by the committee of higher officers and blankets would be distributed amongst those persons whose properties were completely damaged. After hearing this, the appellants/accused 3 started abusing the complainant. Accused Daya Ram assaulted the complainant with the butt of the gun he was armed with and other accused caused injuries to him with the lathies. The abovesaid peons who were accompanying the complainant tried to intervene and save him. The complainant also raised alarm. After hearing the noise, the villagers of Himrol reached at the place of occurrence. The complainant has further alleged that the appellants/accused took away his spectacle, watch, pen and rupees 85/- from his pocket and also threatened to kill him. With these averments, PW-1, Chait Singh lodged his report on 4.1.1992 with his complaint Ex. Ka-1 before the Naib Tehsildar, Barkot, District Uttarkashi. On the basis of this report, Patwari Tinya prepared the chick FIR, Ex. Ka-3 and the case was registered in the G.D. Copy of the G.D. is Ex. Ka-4. Injured complainant Chait Singh was medically examined by the medical officer, Dr. Meenash Chaturvedi, PW-5 who prepared the injury report Ex. Ka-2. During the course of the investigation, the I.O. prepared the site plan of the place of the occurrence which is Ex. Ka-5. The I.O. also recorded the statements of the witnesses during the course of the investigation and on completion of the investigation, he filed the chargesheet against the appellants/accused, which is Ex. Ka-6. 5. Learned Chief Judicial Magistrate, Uttarkashi committed the case to the court of Sessions Judge on 9.12.1992 after giving the appellants/accused copies of the necessary documents/statements as provided under Section 207 Cr.P.C. 6. Charges were framed against the appellants/accused under Section 307 read with Section 4 34 and 392 read with Section 34 I.P.C. The charges were read over and explained to the appellants/accused, who pleaded not guilty and claimed to be tried. 7. To prove its case, prosecution examined PW-1, the complainant and injured witness, Chait Singh, PW-2 Prem Singh Makhaloga, PW-3, Hari Singh, PW-4 Surat Singh (PW-2, PW-3 & PW-4 being eye witnesses), PW-5 Dr. Meenash Chaturvedi who medically examined the complainant and PW-6 Bhag Chand Ramola, the I.O. of the case. 8. After that the statement of appellants/accused was recorded under Section 313 Cr.P.C., the oral and documentary evidence was put to each of them in the question form and each of the appellants/accused denied the allegations levelled against them. However, they could not produce any evidence in defence. 9. Before any further discussion, it would be pertinent to mention the medical report of the injuries examined by PW-5 Dr. Meenash Chaturvedi who had medically examined the injured/complainant PW-1 Chait Singh on 4.1.1992 at 1.30 P.M. Following injuries were found by PW-5 on the body of PW-1: (i) Swelling present on the lateral aspect of the right eye. Contusion size 2´´x2´´ around lateral aspect of the right eye. (ii) Multiple abrasion on the lumber region especially on left side. edemia 1´´x1´´ present around the injury site. 5 Opinion:- Injury no. 1 & 2 are caused by hard and blunt object and duration is in between 24 to 36 hours. Advice:- X-Ray Skull – AP View & Lateral View X-Ray Spinal Cord(L1-L5) – AP View & Lateral View. 10. To prove the aforementioned injury report, the prosecution examined PW-5 Dr. Meenash Chaturvedi, who has stated that on 4.1.1992, he was posted as a Medical Officer at the Primary Health Center, Naugaon. PW-1 was medically examined by him on 4.1.1992 at 1.30 P.M. and he found the aforementioned injuries on his body and prepared the injury report which is Ex. Ka- 2. In the cross-examination, he has stated that the abrasion suffered by PW-1 could not be caused with the butt of the gun and that the injury in the eye sustained by the complainant might be possible due to his falling down on the earth. 11. To further prove its case, the prosecution examined PW-1 who has stated that in January 1992, he was posted as Patwari, Darsaun. On 3.1.1992 at about 11 A.M. he was going to village Himrol in connection with the enquiry of a complaint made by Mahime Nand. He was accompanied by two peons, Prem Singh Makhaloga and Prem Singh Rana. When they reached near the village Himrol, the appellants/accused came across the complainant who after surrounding him started to abuse him. While Mulak Ram, Ludar Singh and Vinod were armed with the dandas, Daya Ram was armed with a gun. The appellants/accused asked him as to why they were not put under the category of persons whose 6 properties had totally been damaged in the earthquake. Thereafter the appellants/accused abused him and beaten him. Daya Ram assaulted and inflicted the injury on the waist of the complainant with the butt of the gun. Mulak Ram grabbed the complainant by the scruff of the neck and Vinod caused the injury to his right eye with the danda. Ludar Singh also beaten and injured the complainant with the danda. Mulak Ram had robbed the complainant of his pocket amounting to Rs. 85/-, while Vinod snatched the spectacle, watch and pen from the complainant. The abovementioned two peons intervened in the matter. By that time, Surat Singh and Hari Singh also reached at the place of occurrence, who also intervened in the said scuffle. Appellant/accused Daya Ram threatened to kill the complainant. It has further been averred by the complainant that after the said incident he could not go anywhere on 3.1.1992. On 4.1.1992, he went to Naugaon where he was medically examined by PW-5 Dr. Meenash Chaturvedi. On the same day, he also moved an application before the Naib Tehsildar complaining about the said incident. That application is Ex. Ka-1. The application Ex. Ka-1, was transmitted by the Naib Tehsildar to Patwari Tinya for registering the case followed by enquiry in the matter. In the cross-examination, he has stated that the distance between Himrol and Darsaun is 2 kms and the distance between Tinya chowki and his chowki Darsaun is 6 kms. He has further stated at para no. 8 that he sustained 12- 13 injuries throughout his body and his injuries were medically examined by the Medical Officer. The complainant has further stated that the place of occurrence is situated at 15 meters from the road and residential houses of Avtar Singh, Narayan Singh, Hari Singh, Sitaram, Lakhiram, Gaur Singh, Jayram, Surat Singh, Hari Singh and Kundan Singh are situated in the 7 vicinity of the place of incident. The spot of the incident could easily be seen from the main road and there are hotels and shops near the place of occurrence. He has further stated that Hari Singh, Surat Singh and Lakhi Ram reached at the spot and two abovementioned peons were also present at the place of occurrence and all of them intervened in the matter. In para 14, the complainant has stated that on 2.1.1992 and 3.1.1992, marriage ceremony of son of Surat Singh was scheduled in the village Himrol. 12. PW-2 Prem Singh Makhaloga did not support the case of the prosecution and was declared hostile. PW- 3 Hari Singh also did not support the case of the prosecution. PW-4 Surat Singh did not support the prosecution as well. PW-3 and PW-4 were also declared hostile. 13. PW-6 Bhag Chand Ramola, who investigated the case, has stated that from January, 1992 to July 1992, he was posted as Patwari, Tinya. He started the investigation of the case on 5.1.1992. On the basis of the report Ex. Ka-1, he prepared a chick FIR Ex. Ka-3. The necessary entry was made in the G.D. Ex. Ka-4. He also prepared the site plan Ex. Ka-5 after visiting the place of occurrence. During the course of investigation, he recorded the statements of the witnesses and on completion of the investigation, he filed the chargesheet Ex. Ka-6 against the appellants/accused. 14. After that statements of appellants/accused were recorded under Section 313 Cr.P.C., the evidence, oral as well as documentary, were put to each of them in the question form and each of the appellants/accused 8 denied the allegations levelled against them. But in defence, they could not produce any evidence. 15. Learned Counsel for the appellants/accused submitted that 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/accused inasmuch as all the three eyewitnesses who were examined, viz., PW-2 Prem Singh Makhaloga, PW-3 Hari Singh and PW-4 Surat Singh have not supported the prosecution version and were declared hostile. Another eye witness Prem Singh Rana, Peon who was accompanying the complainant PW- 1 on the date of occurrence was not produced before the trial court. Lakhiram, another eyewitness was also not produced before the trial court for deposition. Thus, five persons were present at the place of occurrence at the time of incident as stated by the complainant PW-1. Two of them Prem Singh Rana, Peon and independent witness Lakhiram were not examined by the prosecution. Rest of the three eyewitnesses i.e. PW-2 Prem Singh Makhloga, Peon and other two independent eyewitnesses PW-3 Hari Singh and PW-4 Surat Singh had not supported the prosecution case. This very fact creates a reasonable doubt in the prosecution story. 16. Now remains the solitary evidence of PW-1 Chait Singh, the complainant, who has stated that he was inflicted upon 12-13 injuries by the appellants/accused. But perusal of the injury report Ex. Ka-2 submitted by PW-5 Dr. Meenash Chaturvedi reveals that only two injuries were found on the body of the Chait Singh PW-1. The Medical Officer, PW-5 has further stated in his cross-examination that abrasion found on 9 the body of the Chait Singh PW-1 could not have been caused by the butt of the gun and injury in the eye of the complainant might be due to his falling onto the earth. Thus, oral evidence of PW-1 does not get any corroboration by the medical report and, therefore, version of the complainant Chait Singh does not inspire confidence. Hence, the evidence of complainant PW-1 is not cogent, reliable and trustworthy. Though it is permissible to sustain a conviction on the solitary evidence. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of the Chait Singh PW-1, it should be fully reliable. Even there is no iota of evidence on the record to prove the factum of robbery of Rs. 85/- and snatching of spectacles, watch and pen of PW-1 by the appellants/accused and this allegation remains uncorroborated. 17. Thus, in view of the facts and circumstances narrated above, the prosecution has miserably failed to prove its case under Section 323/34 and 392/34 I.P.C. against the appellants/accused beyond a reasonable doubt before the trial court. 18. Learned Counsel for the appellants/accused placed her reliance upon the judgment delivered by the Hon’ble Apex Court in Joseph v. State of Kerala reported in (2003) 1 SCC 465, wherein at para 13 the Apex Court has observed as under: 10 “To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyze evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.” 19. Learned Counsel for the appellants/accused further agued that the said incident was said to be taken place on 3.1.1992 at 11 A.M., whereas it has come in the statement of the Chait Singh PW-1 that he started from his chowki at 11 A.M. on the said date and the distance between Himrol and Darsaun is 2 kms. Thus, the clash of time in these two events i.e. incident and leaving of the 11 Chait Singh PW-1 from his Chowki, also creates doubt on the prosecution case. 20. Learned Counsel for the appellants/accused vehemently argued that the alleged incident was said to have taken place at 11 A.M. on 3.1.1992, but the application for FIR was moved on 4.1.1992 and the FIR could be lodged only on 5.1.1992 at 11 A.M. and this delay in lodging the FIR could not be explained by the prosecution. I find sufficient force in the argument of the learned Counsel as the said incident was said to have taken place at 11 A.M. on 3.1.1992 and undisputedly the application for lodging the FIR was moved on 4.1.1992 and the chick FIR could be prepared on 5.1.1992 at 11 A.M. This delay in lodging the FIR has not been explained properly by the prosecution by showing the sufficient cause. Therefore, this unexplained delay in lodging the FIR is also fatal to the case of prosecution. Learned Counsel for the appellants/accused placed her reliance upon the case of State of Karnataka v. Mapilla P.P. Soopi reported in (2003) 8 SCC 202, wherein at para 4, the Apex Court has held as under: “Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal.” 21. Thus, in view of foregoing discussion and legal proposition, it can safely be inferred that the prosecution failed to prove its case against the appellants/accused under Section 323/34 and 392/34 I.P.C. and the appellants/accused were entitled to get the benefit of doubt. As such, the learned trial court erred in holding 12 the appellants/accused guilty and convicting them under the aforesaid sections 323/34 and 392 I.P.C. and the impugned judgment and order of the trial court, in view of the above narrated legal proposition, evidence and facts & circumstances of the case, is not justifiable and is liable to be set aside. 22. Resultantly, for the reasons recorded above, the appeal is allowed. Appellants are acquitted of the charges. The judgment and order dated 21.5.1993 passed by Sessions Judge, Uttarkashi in Sessions Trial No. 15 of 1992, State v. Mulak Ram & Others is hereby set aside and conviction against the appellants Daya Ram, Vinod and Ludar Singh (appeal in respect of Mulak Ram, being deceased, has been abated) under Section 323 read with Section 34 and under Section 392 I.P.C. is quashed. Consequently, sentence of rigorous imprisonment of six months under Section 323 read with Section 34 I.P.C. and three years’ rigorous imprisonment under Section 392 I.P.C., which were directed to run concurrently are set aside. Appellants are on bail and they need not surrender before the trial court. Bail bonds are cancelled and sureties are discharged. 23. Let the lower court record be sent back. (Dharam Veer, J.) 1.12.2008 Prabodh