IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1323 OF 2001 (OLD NO.2152/1992) 1. Bahadur Singh S/o Jeet Singh 2. Darwan Singh S/o Jeet Singh 3. Jeet Singh S/o Makhali Singh 4. Smt. Bhama Devi W/o Bahadur Singh 5. Smt. Kathagi Devi W/o Darwan Singh 6. Smt. Kadambari Devi W/o Madan Singh ……… Appellants Versus The State ……… Respondent Dated: November 20, 2008 Sri Siddhartha Sah and Sri Jagdish Singh Bisht, Adv. holding brief of Sri Sharad Sharma, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 24.11.1992 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No.44/1991, State Vs. Bahadur Singh and five others, whereby the learned Sessions Judge convicted the accused/appellant-Bahadur Singh u/s 304 Part II of Indian Penal Code, 1860 (hereinafter to be referred as the I.P.C.) and sentenced to undergo five years’ rigorous imprisonment. The accused/appellants-Darwan Singh, Jeet Singh, Smt. Bhama Devi, Smt. Kathagi Devi and Smt. Kadambari Devi were convicted for offence u/s 147 I.P.C. and Section 323 r/w 149 I.P.C. These five accused were convicted and sentenced to pay a fine of Rs.1,000/- u/s 323 r/w 149 I.P.C. and a fine of Rs.500/- u/s 147 I.P.C. These accused were given 15 days’ time to deposit fine on executing by each of them a personal bond of Rs.2,000/-. 2. I have heard Sri Siddhartha Sah and Sri Jagdish Singh Bisht, Advocates holding brief of Sri Sharad Sharma, learned counsel for the appellants and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. There is a report of the Patwari, Pauri Garhwal dated 7.4.2004 in which it has been stated that appellant Jeet Singh has died on 25.07.2003. Hence the appeal against Jeet Singh stands abated. 4. In brief, the prosecution case is that on 25.12.1990 at about 7:30 P.M. when the complainant Guman Singh along with his son Trilok Singh was coming from the market to his house and as soon as they entered into their village, accused Bahadur Singh was standing on the road by the side of his house. The complainant told him to let him go. Upon this accused Bahadur Singh told his name to the complainant and in the meanwhile accused/appellants Jeet Singh, Darwan Singh, Jaspal Singh, Km. Guddi, Smt. Bhama Devi, Smt. Kathagi Devi, Smt. Kadambari Devi also reached there and surrounded them and assaulted them with stones and dandas. Due to which Guman Singh and his son Trilok Singh received injuries and they became unconscious on the spot. After that his wife, daughter-in- law and his minor children came there to save them then the accused/appellants instigated each other to set fire to them. After that at 4 A.M. in the next morning, Guman Singh sent his wife to Sankarsain to bring labourers and thereafter three labourers brought both the injured to bus station. Then the injured were brought to District Hospital, Pauri on 26.12.1990 at 11 A.M. where his treatment was going on but his son Trilok Singh was still unconscious. It was further alleged that the accused/appellants were in inimical terms with his family due to property. With the same averments, F.I.R. was lodged by P.W.1 Guman Singh in the Police Station, Pauri Garhwal on 26.12.1990 at 5:00 P.M. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. was prepared by Head Mohirror Anup Singh, i.e., Ext.Ka-11. One of the injured Trilok Singh died in District Hospital, Pauri on 26.12.1990 at 9:20 P.M. Postmortem of the deceased Trilok Singh was conducted by P.W.5 Dr. Lalit Kishore Gusain on 27.12.1990 at 3:30 P.M. and he prepared the postmortem report of the deceased. That postmortem report is Ext.Ka-13. The inquest report of the dead body was also prepared by P.W.4 Sub Inspector Ram Raheej Singh, that inquest report is Ext.Ka-6. Sketch of the dead body is Ext.Ka-7, Police Form No.13 is Ext.Ka-8. Letter to C.M.O., District Hospital, Pauri for conducting the postmortem is Ext.Ka-9. Police Form No.33 is Ext.Ka-10. A letter was also written by the In- charge, Police Station, Pauri Garhwal to Tehsildar, Pauri to transfer the investigation of the case to Patwari of the concerned area. That letter is Ext.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). The investigation of this case was then started by P.W.3 Dev Prakash (Patwari), who during the course of investigation prepared the site-plan of the place of occurrence, i.e., Ext.Ka-2. The I.O. also recovered two dandas and prepared the FARD, i.e., Ext.Ka-3. The Patwari concerned received the papers on 29.12.1990 and the entry with regard to this was made in the G.D. Copy of that G.D. is Ext.Ka-5. During the course of investigation, I.O./Patwari recorded the statement of the witnesses and after completing the investigation he filed the charge sheet against the accused/appellants u/Ss 302/307/308/336/147/148 I.P.C. That charge sheet is Ext.Ka-4. 5. Learned Chief Judicial Magistrate, Pauri Garhwal committed the case to the Court of Sessions on 16.4.1991, after giving necessary copies to the accused/appellants as required u/s 207 Cr.P.C. 6. On 7.5.1991, learned Sessions Judge, Pauri Garhwal framed the charge of offence punishable u/Ss 148 I.P.C., 302 r/w 149 I.P.C., 307 r/w 149 I.P.C., 504 r/w 149 I.P.C. against the accused/appellants. The charge was read over and explained to each of the accused/appellants who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined P.W.1 Guman Singh-injured eyewitness, P.W.2 Smt. Bachi Devi (wife of P.W.1 Guman Singh), P.W.3 Dev Prakash, Patwari/Investigating Officer of the case, P.W.4 Sub Inspector Ram Raheej Singh, P.W.5 Medical Officer Dr. Lalit Kishore Gusain. 8. After that the statement of each of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against them. However, in defence, they did not produce any documentary evidence but in oral evidence D.W.1 Khushal Singh was examined. 9. After appreciating all the evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Pauri Garhwal vide his judgment and order dated 24.11.1992 convicted and sentenced the accused/appellants as above. Feeling aggrieved by the said judgment and order dated 24.11.1992, the accused/appellants have preferred the present appeal. 10. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the body of the deceased, who was medically examined by P.W.5 Dr. Lalit Kishore Gusain on 27.12.1990 at 3:30 P.M. and he found the following ante-mortem injuries on his body:- (i) Multiple abrasions posterior aspect of left thigh (middle part) in an area of 4cm x 3cm. Reddish brown in colour. (ii) Multiple abrasions on anterior aspect of left leg, 9cm below the left patella in an area of 14cm x 4cm. Reddish brown in colour. (iii) Multiple abrasions on anterior aspect of right leg, 4cm above the medial malleolus of right ankle joint in an area of 12cm x 4cm. Reddish brown in colour. (iv) Abrasion on lateral aspect of right thigh, 19cm below the right anterior superior iliac 2.5cm x 1cm. Reddish brown in colour. On opening the skull there is extradural haematoma over the outer surface of right cerebral hemisphere in an area of 9cm x 8cm. Blood is clotted. Dark reddish blue in colour. Congested on opening the membrane there is subdural haematoma on outer surface of right cerebral hemisphere in an area of 18cm x 12cm. Brain congested. 11. To prove the above noted ante-mortem injuries, the prosecution has examined P.W.5 Dr. Lalit Kishore Gusain, who has stated that the postmortem of the deceased Trilok Singh was conducted by him on 27.12.1990 at 3:30 P.M. and the above noted ante- mortem injuries were found on the body of the deceased. He further stated that in his opinion death of the deceased was caused due to head injury. The injuries were caused by some blunt object and were sufficient to cause death. He further stated that the injuries could be possibly caused on 25.12.1990 at 7:30 P.M. He has prepared the report at the time of postmortem. That postmortem report is Ext.Ka-13. In the cross- examination, he has stated that all the above injuries could be possible to cause by friction. He further stated that there was no external injury on the head of the deceased and the internal injury in the head could possibly be caused due to fall. 12. Further to prove its case, the prosecution has examined P.W.1 Guman Singh, who has stated that accused Bahadur Singh and Darwan Singh were his real brothers and accused Jeet Singh was his father. Smt. Bhama Devi was wife of Bahadur Singh and Smt. Kathagi Devi was the wife of Darwan Singh and Smt. Kadambari Devi was wife of Madan Singh. He further stated that on 25.12.1990 at about 7:30 P.M. he was coming from Sankarsain Market with his son Trilok Singh. When he reached near the village in front of the house of Bahadur Singh on the road, then Bahadur Singh was standing on the road. He asked the accused Bahadur Singh to let him go. Then the accused Bahadur Singh caused the injury on the waist of his son Trilok Singh by danda due to which his son fell down. Darwan Singh and other accused also came at the place of occurrence. Accused Darwan Singh pressed the testicle of Trilok Singh and also gave a danda blow on his head and then Trilok Singh fell down in the Chowk of Umrao Singh. After that on the instigation of Jeet Singh other accused have caused injuries to him with stones and dandas. At the same time on his screaming his family members reached at the place of occurrence. Thereafter the accused also caused the injuries to his wife-Smt. Bachi Devi, daughter Sushila and his daughter-in-law. Then his family members took him inside the house. Due to threat of the accused/appellants, no village people came to his house. Next day in the morning with the help of labourers he and his son Trilok Singe were taken to Sankarsain motor road and from there they came to Pauri by bus and then at Pauri Hospital he and his son were medically examined. He further stated that his relative Bhajan Singh was present in the hospital and he scribed the report to him. That report is Ext.Ka-1. He further stated that on the same day in the evening his son Trilok Singh died in the Hospital. It was further stated that before the said incident the accused had taken possession of his fields. 13. P.W.2 is Smt. Bachi Devi-wife of the complainant Guman Singh, who has stated that on 25.12.1990 at about 7-7:30 P.M. her husband Guman Singh and her son Trilok Singh were coming to house from the market and she was inside the house. After hearing the noise she came out from the house along with her three daughters and daughter-in-law. Then she saw that her husband and her son were lying unconscious and all the accused were there. Thereafter she has taken her husband and her son to the house and on the next day in the morning, she brought them to Pauri Hospital. 14. P.W.3 is Dev Prakash, Patwari, who has stated that in December, 1990 he was posted as Patwari. He has received the papers related to this case on 29.12.1990 from Police Station, Pauri and he made the entry in the case diary. During the course of investigation he recorded the statement of the witnesses and he also prepared the site-plan of the place of occurrence. That site-plan is Ext.Ka-2. He has also recovered two dandas and the FARD was prepared i.e. Ext.Ka-3. After completing the investigation he filed the charge sheet Ext.Ka-4 against the accused/appellants. He has identified the two Dandas Ext.1 and Ext.2. When he received the papers of this case on 29.12.1990 the entry was made by him in the G.D. Copy of G.D. is Ext.Ka-5. 15. P.W.4 is S.I. Ram Raheej Singh, who has stated that he was Station Officer, P.S. Pauri in December 1990. On 27.12.1990 he received the memo from the District Hospital, Pauri then in the District Hospital he held inquest. He proved Inquest report Ext.Ka-6, sketch of the dead body Ext.Ka-7, letter to C.M.O Ext.Ka-9 and Police Form No.33 Ext.Ka-10. On the basis of report Ext.Ka-1, Head Constable Anup Singh has prepared the Chik F.I.R., i.e., Ext.Ka-11. As the said incident pertains to the area of the Patwari hence papers of this case were sent to Tehsildar, Pauri through letter. That letter was written by Head Constable Anup Singh, i.e., Ext.Ka-12. 16. After that the statement of each of the accused/appellant was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against them. However, in defence, they did not produce any documentary evidence but in oral evidence D.W.1 Khushal Singh was examined. 17. D.W.1 is Khushal Singh, who has stated that on 25.12.1990 he was in his Village Barsila. His shop was in Bela Bazar. He reached to his Village at about 8:30 P.M. then he heard quarrel near the house of Bahadur Singh and Guman Singh. There was darkness at that time therefore he could not see the incident. 18. Learned counsel for the accused/appellants submitted that there is sole evidence against the accused/appellants which does not inspires a confidence. I find substance in the argument advanced by learned counsel for the accused/appellants as it has discussed above that the only evidence against the accused/appellants is P.W.1 Guman Singh. P.W.2 Smt. Bachi Devi, wife of P.W.1 Guman Singh and mother of the deceased Trilok Singh, has stated in her statement that she has not seen the incident. Thus the only evidence against the accused/appellants is the solitary evidence of P.W.1 Guman Singh whose injury report is also not proved by the prosecution. No medical officer was examined to prove the injury report of P.W.1 Guman Singh hence the injury on the body of Guman Singh is not proved as per the law. The statement of P.W.1 Guman Singh does not inspires a confidence due to the reason that as per his statement the injuries were caused by the accused Bahadur Singh on the waist of the deceased Trilok Singh by Danda and later on Trilok Singh fell down on the earth on his foot. He has further stated that the accused Darwan Singh has pressed testicle of Trilok Singh and also caused injuries on his head by danda but there is no external injury on the head of Trilok Singh (deceased) and even there is no injury on the testicle of Trilok Singh. There were only four abrasions on the thigh and legs of the deceased Trilok Singh hence the statement of P.W.1 Guman Singh is not corroborated from the statement of P.W.5 Medical Officer Dr. Lalit Kishore Gusain and also from the postmortem report. P.W.5 Dr. L.K. Gusain has also stated in his statement that the internal injury on the head of the deceased could be caused due to fallen on the earth. Thus the evidence of P.W.1 Guman Singh does not inspires a confidence and it is a settled principle that when there is sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. I am fortified with the verdict of Hon’ble Apex Court in the case of “Joseph Vs. State of Kerala” reported in 2003 (1) Supreme Court Cases, 465. Para 13 of this judgment is essential to mention here to, which is reproduced hereunder:- “13. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse 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. From the evidence discussed made above, the evidence of P.W.1 Guman Singh is not cogent, reliable, trustworthy and does not inspire a confidence. Therefore, no reliance can be put on the statement of P.W.1 Guman Singh, as his statement is not supported by the statement of P.W.5 Medical Officer Dr. Lalit Kishore Gusain and other evidence of the case. Therefore, the conviction and sentence of the accused/appellants as awarded by the trial court on the basis of statement and evidence of P.W.1 Guman Singh is not justified and as per law and is liable to be set aside. 20. After considering the entire facts and circumstances of the case and in view of the judgment of Hon’ble Apex Court (supra), the prosecution has not proved its case against the accused/appellants beyond reasonable doubt and the learned trial court has erred in convicting and sentencing the accused/appellants as above. 21. For the reasons recorded above, the appeal is liable to be allowed. Accordingly, the appeal is allowed. The judgment and order dated 24.11.1992 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No.44/1991, State Vs. Bahadur Singh and five others, is set aside. The conviction of the accused/appellant- Bahadur Singh u/s 304 Part II I.P.C. and sentence of five years’ R.I. is also set aside. The conviction of the accused/appellants-Darwan Singh, Jeet Singh, Smt. Bhama Devi, Smt. Kathagi Devi and Smt. Kadambari Devi u/Ss 323 r/w 149 I.P.C. and 147 I.P.C. and the sentence to pay a fine of Rs.1,000/- u/s 323 r/w 149 I.P.C. and sentence to pay a fine of Rs.500/- u/s 147 I.P.C. is also set aside. 22. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned. (Dharam Veer, J.) 20.11.2008 RG