IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.705 of 2001 (Old No.1431 of 1995) Gopal Singh Peon, Office of the Collectorate, Gopeshwar, District Chamoli …….….…. Appellant Versus The State …………… Respondent Dated: November 10, 2008 Sri R.P. Nautiyal, Adv. for the appellant Sri M.A. Khan, learned Brief Holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 28.08.1995 passed by Sessions Judge, Chamoli at Gopeshwar in S.T. No.13 of 1995, whereby the learned Sessions Judge has convicted the appellant- Gopal Singh under Section 308 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him for one year’s R.I. with fine of Rs.1,000/- and in default of payment of fine, six month’s further R.I. was awarded. It was also directed that out of the fine, if paid or realized, a sum of Rs.500/- shall be paid to P.W.1 Pan Singh for the pain suffered by him. 2. I have heard Sri R.P. Nautiyal, Advocate for the appellant/accused and Sri M.A. Khan, Brief Holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that Pan Singh (P.W.1) lodged a written report with the averments that on 5.1.1995 at about 7:00 P.M. in the evening, when he was burning fire-pot (ANGITHI) in his verandah, then the appellant/accused Gopal Singh, who was residing 2 adjacent to his room, came out from his room and started abusing him and asked the complainant that why he was not giving coal to him and also why he was burning fire-pot. Suddenly, the appellant/accused brought an axe from his room and caused injury on the head of complainant with the said axe. With the same averments, the FIR was lodged by P.W.1 Pan Singh at P.S. Gopeshwar on 5.1.1995 at 7:45 P.M., i.e. Ex.Ka-1. On the basis of this report, Chik FIR was prepared by H.M. Virendra Kumar Gairola, i.e. Ex.Ka-3. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-4. Injured Pan Singh (P.W.1) was medically examined by P.W.3 Dr. Surya Kant Hatwal and injury report was prepared, i.e. Ex.Ka-2. The investigation of this case was entrusted to P.W.4 S.I. Janeshwar Singh, who during the course of investigation has taken the axe in question in his possession and prepared a Fard, i.e. Ex.Ka-5. The I.O. also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-6. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused u/s 452/504/308 IPC, i.e. Ex.Ka-9. The said axe was also sent for chemical examination in the Chemical Laboratory and the report submitted by Scientific Officer, Agra is Ex.Ka-10. 3. Learned Chief Judicial Magistrate, Chamoli appears to have committed the case to the court of Sessions on 10.04.1995 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 4. On 24.04.1995, learned Sessions Judge, Chamoli at Gopeshwar framed the charge against the appellant/accused Gopal Singh u/s 307 IPC. The charge 3 was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 Pan Singh, injured witness, P.W.2 Smt. Chaita Devi, wife of injured Pan Singh, P.W.3 Dr. Surya Kant Hatwal, who has medically examined the injured Pan Singh and P.W.4 S.I. Janeshwar Prasad, I.O. of the case, who investigated the crime. 6. Thereafter, the statement of the appellant/ accused Gopal Singh was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, he did not produce any oral or documentary evidence in his defence. 7. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge, Chamoli at Gopeshwar vide his judgment and order dated 28.8.1995 convicted and sentenced the appellant/accused as mentioned above. Against the aforesaid judgment and order dated 28.8.1995, appellant/accused Gopal Singh has preferred this appeal. 8. Before further discussion, it is pertinent to mention that the injured Pan Singh (P.W.1) was medically examined by P.W.3 Dr. Surya Kant Hatwal on 5.1.1995 at 8:05 P.M. and his injury report (Ex.Ka-2) was also prepared, which is reproduced as under: - 1. Incised wound 2.5 x 0.5 x 0.2 cm present on frontal area of head in midline and fresh bleeding present. 4 2. Incised wound 1.5 cm x 0.2 cm present on frontal area of head on left side and fresh bleeding present. Opinion- Injuries No.1 and 2 have been caused by some sharp object. Injury no.1 is kept under observation advised x-ray skull- A.P. and lateral view. Injury no.2 is simple in nature. Duration of injuries is fresh. 9. To prove the aforesaid injury report Ex.Ka-2, the prosecution has examined P.W.3 Dr. Surya Kant Hatwal who has stated that on 5.1.1995, he was posted as Medical Officer at Distt. Hospital, Gopeshwar. On that day, he had medically examined the injured Pan Singh and recorded the injuries which have been recorded above. He also proved the injury report, i.e. Ex.Ka-2. 10. In order to further prove its case, the prosecution got examined P.W.1 Pan Singh, injured witness of the case, who has not supported the prosecution case and was declared hostile. In examination-in-chief, he has stated that he received the injuries by axe on his head. However, he could not see that whether the appellant/accused Gopal Singh had caused injuries to him with axe or he received injuries due to slipping of Gopal Singh. He further stated that due to the darkness, he could not see that who has caused injuries to him by axe. (blh chp eqfYte ls esjs flj ij dqYgkMh dh dh pksV yxhA eS Li"V ugha ns[k ik;k fd dqYgkM+h dh pksV eqfYte xksiky flag us ekjh ;k xksiky flag ds fQlyus ls pksV yxhA va/ksjk gksus ds dkj.k eSus Li"V ugha ns[kk fd dqYgkM+h dks pksV fdlus ekjh FkhA) Thereafter, the prosecution has declared this witness as hostile and D.G.C. (Crl.) was permitted to cross-examine this 5 witness, however nothing has come out in his evidence which may support the case of the prosecution. 11. P.W.2 is Smt. Chaita Devi, wife of injured Pan Singh, who has also not supported the prosecution case and was also declared hostile. She has stated that on 5.1.1995 at about 7:00 P.M. in the evening, when her husband had received the injuries, she was inside the house and she could not see that who has caused injuries to her husband. 12. P.W.4 is S.I. Janeshwar Singh who was the I.O. of the case and has investigated the crime. After completing the necessary investigation, he filed the charge sheet against the appellant/accused, i.e. Ex.Ka-9. 13. Thereafter, the statement of the appellant/ accused Gopal Singh was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, he did not produce any oral or documentary evidence in his defence. 14. Sri R.P. Nautiyal, learned counsel for the appellant/accused argued that as per the evidence discussed above, there is no evidence against the appellant/accused that he has caused the injuries to the complainant Pan Singh (P.W.1). I find force in the argument advanced by counsel for appellant/accused as P.W.1 Pan Singh, injured witness of the case and P.W.2 Smt. Chaita Devi, who is also shown to be the eyewitness of the case, both of them have not supported the case of the prosecution and were declared hostile. P.W.1 Pan Singh has stated that he could not see that whether the appellant/accused Gopal Singh had caused 6 injuries to him with axe or he received injuries due to slipping of Gopal Singh. He further stated that due to the darkness, he could not see that who has caused injuries to him by axe. Likewise, P.W.2 Smt. Chaita Devi has also stated in her evidence that when the incident had occurred, she was inside her house and she could not see that who has caused injuries to her husband. Thus, from the evidence of injured eyewitness P.W.1 Pan Singh and P.W.2 Smt. Chaita Devi, it has not been proved by the prosecution beyond reasonable doubt that the appellant/accused has caused injuries with axe to the complainant Pan Singh (P.W.1) as the P.W.1 Pan Singh and P.W.2 Smt. Chaita Devi have not supported the prosecution case and were declared hostile. Therefore, on the basis of the evidence discussed above, appellant/accused Gopal Singh is liable to be acquitted by giving benefit of doubt. 15. In view of the above-said discussion, the conviction and sentence as awarded by the trial court against the appellant/accused u/s 308 IPC for one year’s R.I. with fine of Rs.1,000/- and in default, further one month’s R.I., is not justified as per the evidence discussed above and I do not concur with the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. As such, the judgment and order dated 28.8.1995 passed by Sessions Judge, Chamoli at Gopeshwar is hereby set aside. The appeal is allowed. The appellant-Gopal Singh is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) November 10, 2008 Rajeev Dang