RESERVED JUDGMENT HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.92 OF 2006 (OLD NO.1708 /1995) Harsh Lal & another .……….. Appellants Versus State of Uttarakhand ..…….. Respondent Dated: September 25, 2009 Mr. R.P. Nautiyal, Advocate for the appellants Mr. Prabhakar Joshi, Brief Holder for the State. Hon’ble 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 25.9.1995 passed by Sessions Judge, Chamoli (Gopeshwar) in S.T. No.3/1994, State Vs. Harsh Lal & others, whereby the learned Sessions Judge convicted the accused/appellants, namely, Harsh Lal, Dhanpati Lal, Shyam Lal and Banke Lal under Section 307 r/w Sec.34 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced them to undergo four years’ R.I. and to pay a fine of Rs.1,000/- each and in default of payment of fine, to undergo further R.I. for six months. Each of the accused/appellant was further convicted u/s 506 IPC and was sentenced to six months’ R.I. All the sentences except in lieu of fine were directed to run concurrently. It was also directed that if the amount of fine is paid or realized, a sum of Rs.500/- shall be given to Shanti Lal PW1 as compensation. 2 2. I have heard Mr. R.P. Nautiyal, Advocate for the appellants as well as Mr. Prabhakar Joshi, Brief Holder for the State. Perused the entire material available on record. 3. During the pendency of this appeal the appellant no.2-Dhanpati Lal and appellant no.3-Shyam Lal were reported to be died. Therefore, the appeals preferred by the appellants Shyam Lal and Dhanpati Lal stood abated vide orders dated 21.5.2009 and 7.7.2009. 4. In brief, the prosecution case is that PW1 Shanti Lal lodged the FIR before Patwari, Bhatwari Sunar stating therein that on 17.11.1991 at about 09:30 PM when he accompanied by his brother-in-law (SADU) Jaspal was coming from the house of Jaspal and reached in the chowk of accused Dhanpati Lal then the appellants/accused Dhanpati Lal, Banke Lal, Shyam Lal and Harsh Lal surrounded him and started saying that they will not leave him alive today. He raised alarm as a result of which his brother Radhey Lal, Chotia Lal and so many other people reached on the spot. Thereupon, aforesaid four accused persons started assaulting him. Accused/appellant Harsh Lal gave a blow of Thamali on his head first and then the accused/appellant Dhanpati Lal started assaulting him with Lathi from the back side due to which he became unconscious and fell down. He was saved by Jaspal, Radhey Lal and Chotia Lal otherwise he would have been killed. Thereafter the accused/appellant went away saying that they would not leave him alive. It was further alleged that the said incident took place due to previous enmity. Next day in the morning he went to Patwari Chowki to lodge the report but the Patwari was not available so he went to Augastmuni Hospital for his medical examination. With the same averments, he lodged the FIR 3 before Patwari Chowki, Bhatwari Sunar on 18.11.1991 at 04:00 PM, that FIR is Ext.Ka-1. On the basis of this FIR, Chik FIR was prepared by Patwari, Bhatwari Sunar i.e. Ext.Ka-4. Necessary entries were also made in the G.D., copy of which is Ext.Ka-5. (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 medical certificate of the injured Shanti Lal is Ext.Ka-3 which was prepared by Dr. K.D. Sharma PW4 on 18.11.1991. During the course of investigation, the I.O. took into possession the bloodstained clothes of the injured vide FARD Ext.Ka-2 and blood falling on the place of occurrence vide FARD Ext.Ka-7. The I.O. also inspected the place of occurrence and prepared the site-plan i.e. Ext.Ka-6. During the course of investigation, the I.O. also recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the appellants/accused, which is Ext.Ka-8. 5. Learned Chief Judicial Magistrate, Chamoli committed the case to the court of Sessions on 20.1.1994 after giving necessary copies to the accused/appellants as prescribed u/s 207 Cr.P.C. 6. On 5.4.1994, learned Sessions Judge, Chamoli framed the charge of offence punishable under Sections 307 and 506 IPC against the accused/appellants Harsh Lal and Dhanpati lal and charge u/s 307 r/w 34 IPC and 506 IPC against the accused/appellants Bankey Lal and Shyam Lal. The charge was read over and explained to the accused/appellants to which they pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution examined PW1 Shanti Lal, injured eyewitness; PW2 Jaspal, eyewitness; PW3 Chandu Lal, hostile witness; PW4 Dr. K.D. Sharma, who medically examined the injured and prepared 4 the injury report Ext.Ka-3 and PW5 Anand Lal, Patwari, I.O. of the case. 8. Thereafter the statements of the accused/appellants 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 them. However, they have not produced any oral or documentary evidence in their defence. 9. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Chamoli (Gopeshwar) vide his judgment and order dated 25.9.1995 convicted and sentenced the accused/appellants as stated above. Being aggrieved by the said judgment and order, the accused/appellants have preferred this appeal. 10. Before any further discussion, it would be pertinent to mention the injuries found on the person of Shanti Lal (PW1), who got medically examined by Dr. K.D. Sharma (PW4) at 18.11.1991 at 10 AM and who also prepared his injury report Ext.Ka-3, which is reproduced as under:- (i) Incised wounds on scalp measuring 5 cm x 0.5 cm x 0.2 cm, colour reddish, bleeding present. (ii) A lacerated wound above the frontal head measuring 1 cm x 0.2 cm 0.1 cm, colour reddish, bleeding present. (iii) Incised wounds on behind the scalp, measuring 4cm x 0.5 cm x 0.1 cm. (iv) A contusion on left side of ribs measuring 3 cm x 2 cm, swelling and tender. 5 (v) A contusion on left leg in between sacroiliac joint and knee joint, measuring 5 cm x 4 cm, swelling and tender. Opinion:- (i) Patient is fully conscious. (ii) All injuries are simple. (iii) 1 and 3 caused by sharp objects and 2, 4 and 5 caused by blunt objects. (iv) Duration within 12 hours. (v) Stitches done and treatment is given. 11. To prove the above-noted injury report, the prosecution examined PW4 Dr. K.D. Sharma, who has stated that on 18.11.1991 he was posted as Medical Officer at C.H.C. Augastmuni. On that day, he medically examined the injured Shanti Lal who was brought by his uncle Chote and found the above-noted injuries on his body. He has proved the injury report Ext.Ka-3. In his opinion, the injuries could be caused on 17.11.1991 at 09:30 PM. 12. Further to prove its case, the prosecution examined PW1 Shanti Lal who stated that he is serving in Assam Rifles and during the days of incident he had come to home on leave. The accused/appellants are his neighbours in the village and are well-known to him. They were in inimical terms with him on the matter of land. On 17.11.1991 in the night, he was returning from the house of Jaspal, who was also with him. The way to his house comes from the chowk of the accused Dhanpati Lal. When he reached in the chowk of Dhanpati Lal, accused/appellant Harsh Lal came there and threatened him that he will kill him. Thereupon he assaulted him with 6 THAMALI (sharp edged weapon in the shape of sickle) causing injuries to him on his head. Thereafter accused Dhanpati Lal, Bankey Lal and Shyam Lal also reached there and caused injures to him on his head and other parts of the body. Due to the injuries, he became unconscious and fell down and his clothes also became bloodstained. Thereafter, the accused/appellants beaten him with kicks and fists and thrown him in the field. He further deposed that the accused/appellants wanted to kill him. Jaspal (PW2) intervened in between the fight on which the accused persons assaulted him with Lathi. On hearing the cries of Jaspal, his uncle Chotia Lal and brother Radhey Lal reached on the spot, who rescued him from the accused/appellants and took him to house. Thereafter the accused/appellants came to his house and threatened him that today he has been saved but in future they would kill him. Next day his uncle and brother took him to Patwari Chowki to lodge the report but the Patwari was not available so they took him to Augastmuni Hospital where he got medically examined and his medical certificate was also prepared. Thereafter they again went to Patwari Chowki. Due to serious condition he could not wrote the report himself therefore he scribed the report (Ext.Ka-1) by some another person and the same was signed by him. 13. PW2 Jaspal has reiterated the same story as stated by PW1 Shanti Lal. He has also proved the FARD Ext.Ka-2 of taking into possession the blood stained clothes of the injured Shanti Lal. 14. PW3 Chandu Lal did not support the prosecution case and was declared hostile. 7 15. PW5 Anand Lal stated that on 18.11.1991 he was posted Patwari of Circle Bhatwari Sunar. On that day, the report Ext.Ka-1 was lodged by PW1 Shanti Lal in the Chowki. On the basis of this report, he prepared the Chik FIR (Ext.Ka-4) of the case. Necessary entries were also made by him in the G.D., copy of which is Ext.Ka-5. He further deposed that the complainant submitted medical report to him. During the course of investigation, he recorded the statements of the witnesses, prepared the Fard Ext.ka-2 of taking into possession the bloodstained clothes of the injured, inspected the place of occurrence and prepared the site-plan i.e. Ex.Ka-6. He also took bloodstained soil and simple soil from the place of occurrence and prepared the Fard Ext.Ka-7. On completion of the investigation, he submitted the charge sheet against the accused/appellants, which is Ext.Ka-8. 16. Thereafter the statements of the accused/appellants 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 them. However, they have not produced any oral or documentary evidence in their defence. 17. Learned counsel for the accused/appellants argued that the prosecution has not proved the case against the accused/appellants beyond reasonable doubt. I find force in the argument of learned counsel for the accused/appellants, due to following reasons:- (i) One witness named Chandru Lal who was examined by the prosecution in support of the case did not support the prosecution case and was declared hostile. 8 (ii) Other eye witnesses Radhey Lal and Chotia Lal, who according to the prosecution were present at the place of occurrence and rescued Shanti Lal (PW1) from the accused/appellants, were not produced before the trial court for deposition. (iii) Shanti Lal (PW1) and Jaspal (PW2) have stated in their statements that during the said incident the accused/appellants also caused injuries to Jaspal on his back with Lathi. But no medical report of Jaspal was produced before the trial court. This fact creates reasonable doubt about the presence of Jaspal at the place of occurrence and thus no implicit reliance can be placed on the evidence of Jaspal. 18. Now remains the solitary evidence of PW1 Shanti Lal, complainant, who in his deposition had stated that first accused/appellant Harsh Lal came at the place of incident and caused injuries to him with Thamali and thereafter other accused persons reached there and assaulted him with Lathi. After that all the accused persons assaulted him with kicks and fists and thrown him in the field. But in the FIR it was alleged that all the accused persons surrounded Shanti Lal and assaulted him. Thereafter accused/appellant Harsh Lal gave a blow of Thamali and accused Dhanpati Lal also caused injuries to him. In this way, complainant Shanti Lal himself has not supported the version of FIR in toto which was lodged by him in the police station. Thus, oral evidence of PW1 Shanti Lal does not get corroboration from the FIR and, therefore, version of the complainant Shanti Lal does not inspire confidence. Hence, the evidence of complainant PW1 Shanti Lal is not cogent, reliable and trustworthy. Though it is permissible to sustain a conviction on the solitary evidence, but, at the 9 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 Shanti Lal PW1, it should be fully reliable. 19. Thus, in view of the facts and circumstances narrated above, the prosecution has miserably failed to prove its case under Sections 307/34 and 506 I.P.C. against the appellants/accused beyond a reasonable doubt before the trial court. 20. Learned counsel for the appellants/accused placed his 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: “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 10 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.” 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 Sections 307/34 and 506 I.P.C. and the appellants/accused were entitled to get the benefit of doubt. As such, the learned trial court erred in holding the appellants/accused guilty and convicting them under the aforesaid sections 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. For the reasons recorded above, the appeal is allowed. The judgment and order dated 25.9.1995 passed by Sessions Judge, Chamoli (Gopeshwar) in S.T. No.3/1994, State Vs. Harsh Lal & others, is hereby set aside. Consequently, the conviction and sentence imposed upon the accused/appellants, which has been discussed above, is also set aside. The appellants/accused Harsh Lal and Bankey Lal are on bail. They need not surrender unless wanted in any other case. (As far as the appeal preferred by the accused/appellants Dhanpati Lal and Shyam Lal are concerned it has abated due to their death). 11 23. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order. (Dharam Veer, J.) 25.09.2009 RG