HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1183 OF 2001 (OLD NO.1257 OF 1997) Roop Singh S/o Bhim Singh .……….. Appellant Versus State of Uttarakhand ...…….. Respondent Dated: March 29, 2010 Sri Ganesh Kandpal, Advocate for the appellant Sri Amit Bhatt, Additional Government Advocate for the State Hon’ble Dharam Veer, J. This criminal appeal, preferred by the appellant 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 11.7.1997 passed by Special Judge/IIIrd Addl. Sessions Judge, Nainital in Sessions Trial No.142 of 1994, State Vs. Roop Singh and others, whereby the learned Special Judge/IIIrd Addl. Sessions Judge has convicted the accused-appellant Roop Singh under Section 379 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of two years. The accused/appellant was further convicted u/s 26 of The Indian Forest Act, 1927 (hereinafter to be referred as the Act) and was sentenced to two months’ R.I. Both the sentences were directed to run concurrently. However, the co-accused Chandar Singh and Shankar Singh were acquitted from the charges levelled against them by the trial court. 2 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution story is that P.W.1 Laxman Singh Bisht, Forest Guard, lodged a FIR at P.S. Lalkuwan stating that on 12/13.4.1993 in the night at about 4:00 AM he along with Forest Guards Ganga Singh Bora and Gulab Singh and Watcher Shakti Vallabh was in patrolling duty in Gangapur Patia at Plot No.21. Meanwhile, he found that some persons were cutting trees in the said plot. On seeing the criminals in large number, they went to police station and requested for the police force. Thereafter they along with Sub Inspector S.P. Singh Chauhan, Constables Vinod Kumar Shishodiya and Kanhiyalal Sharma reached at the spot at 06:00 AM by Government Vehicle UGP 4166 and found that six persons were cutting the Tun tree. When the police party and they tried to surround the accused persons then they (accused persons) fired three shots from Tamancha on them and started fleeing. While defending themselves, they and the police party chased the accused persons then at 06:15 AM one accused was arrested at a distance of about 200 steps. It was further averted that co-accused Chandar Singh, Shankar Singh and Umesh, who were known to him, and two other unknown accused succeeded in absconding. On being asked, the arrested person disclosed his name Roop Singh (the appellant herein). The measurement of the woods recovered from the spot was done and one axe was also found there. The appellant/accused was handed over to the police and 3 the recovered goods and axe were given in the supardgi of Forest Department, Tanda Range. With the same averments, FIR Ext.Ka-1 was lodged by Laxman Singh Bisht (PW1) on 13.4.1993 at 12:10 PM. On the basis of this FIR, Chik FIR of the case was prepared by Head Mohirror Ravindra Pal Singh, i.e. Ext.Ka-3. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-4. Initially, the investigation of this case was entrusted to P.W.4 S.I. Udai Veer Singh but lateron it was transferred to P.W.3 S.I. Girish Kumar. During the course of investigation, the I.O. recorded the statement of the witnesses and prepared the site- plan of the place of occurrence, i.e. Ext.Ka-5 and after completing the investigation, the I.O. submitted the charge sheet against the accused/appellant Roop Singh and co-accused Chander Singh and Shankar Singh (acquitted by the trial court). That charge sheet is Ext.Ka-2. 4. On receipt of charge sheet, learned Munsif Magistrate (Ist Class), Haldwani committed the case to the court of Sessions on 26.4.1994, after giving necessary copies to the accused/appellant and co- accused as required u/s 207 Cr.P.C. 5. On 5.4.1995, learned Special Judge/IIIrd Addl. Sessions Judge framed the charge u/Ss 147, 148, 307, 379 of IPC and one u/s 26 of the Act against the accused/appellant and the co-accused persons. The charge was read over and explained to the accused/appellant and the co-accused who pleaded not guilty and claimed to be tried. 4 6. In order to prove its case, the prosecution has examined P.W.1 Laxman Singh, Forest Guard and complainant of the case, PW2 Ganga Singh, Forest Ranger and scriber of the report Ext.Ka-1, P.W.3 Girish Kumar, Investigating Officer of the case and P.W.4 Udai Veer Singh, Investigating Officer of the case. 7. Thereafter, the statement of the accused/appellant and co-accused 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. 8. After appreciating the evidence on record and hearing learned counsel for the parties, learned Special Judge/IIIrd Addl. Sessions Judge, Nainital vide his judgment and order dated 11.7.1997 convicted and sentenced the accused/appellant as mentioned above. However, the co-accused Chander Singh and Shankar Singh were acquitted of the charges levelled against them by the trial court. Feeling aggrieved by the said judgment and order dated 11.7.1997, the accused/appellant has preferred this appeal. 9. To prove its case further, the prosecution has examined P.W.1 Laxman Singh who has reiterated the version of the FIR lodged by him in the police station. He has proved the report Ext.Ka-1. The recovered woods were not before this witness in the trial court at the time of recording of his evidence and 5 he has stated the same fact in his cross-examination. In the cross-examination, he further stated that he has not mentioned about the recovery of axe in the report however he had told about this to police officer. 10. P.W.2 Ganga Singh has also corroborated the statement of P.W.1 Laxman Singh. He has stated that on 13.4.1993 he had written the report of the incident and whatever Laxman Singh had told him he had written the same in the report. In the cross- examination he stated that the axe was not recovered on the spot. 11. P.W.3 Girish Kumar has stated that before him the investigation of this case was conducted by S.I. Udai Veer Singh and on 24.9.1993 the investigation was transferred to him. During the course of investigation he recorded the statement of the witnesses and after completing the investigation he filed the charge sheet Ext.Ka-2 against the accused persons. He further stated that the Chik FIR Ext.Ka-3 of the case was prepared by H.M. Ravindra Pal and entries in the G.D. were also made by him, i.e. Ext.Ka- 4. 12. P.W.4 Udai Veer Singh has stated that on 13.4.1993 he was posted as Sub Inspector at Police Station Lalkuan. The investigation of this case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses and prepared the site-plan Ext.Ka-5 of the place of 6 occurrence. In the cross-examination, he has stated that leaves and peel of wood were on the spot and he did not take the same into his possession. 13. Thereafter, the statement of the accused/appellant and co-accused 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. 14. Sri Ganesh Kandpal, learned counsel for the accused/appellant has argued that the prosecution has not proved the case against the accused/appellant beyond reasonable doubt. I find substance in the argument of learned counsel for the accused/appellant due to following reasons:- i) No recovery of woods was made from the accused/appellant and whatever recovery had been made, that was made at a distance of 200 steps from the place of arrest of the accused/appellant. ii) That the Investigating Officer Udai Veer Singh (P.W.4) has stated in his deposition that only leaves and peel of wood were at the spot and that were not taken into possession by him. iii) That so-called recovered woods were not produced in the trial court at the time of evidence. 7 iv) That no recovery memo of the so-called recovered woods was prepared on the spot. v) That in the FIR it was averted that the said recovered wood was given in the supardagi of Forest Department, Tanda Range but no register showing deposit of recovered wood in the Forest Department was produced in the trial court. 15. Learned counsel for the accused/appellant further argued that the co-accused persons, namely, Chander Singh and Shankar Singh have been acquitted by the trial court on the similar role and on the similar set of evidence and on this very ground the accused/appellant has been convicted by the trial court which is not sustainable in the eye of law. I found substance in the argument of the learned counsel for the appellant/accused that the co-accused persons Chander Singh and Shankar Singh have been acquitted by the trial court on the similar role and on the basis of same evidence. Thus, I am of the view that the appellant is also entitled for benefit of doubt and the benefit of acquittal should be extended to them also. I am fortified in my view with the verdict of Hon’ble Apex Court in the case of “Deepak Rajak Vs. State of West Bengal” reported in 2007 AIR SCW 5740. Paras-5, 6 and 7 of this judgment are essential to mention here, which are reproduced hereunder:- “5. The position in law as to what happens in case of acquittal of similarly placed co-accused on the same set of facts and on similar accusations has 8 been considered by this Court in several cases. 6. A departure may be made in cases where the accused had not surrendered after the conviction in addition to not filing an appeal against the conviction. But as in the present case, after surrender, the benefit of acquittal in the case of co-accused on similar accusations can be extended. 7. The appeal is allowed and conviction and sentence as recorded by the trial court and upheld by the High Court is set aside.” 16. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and in the background of well-settled proposition of law and other circumstances, it is clear that the prosecution has not disclosed the true genesis of the occurrence and has thus not presented the true version. The prosecution has been failed to prove the case against the accused/appellant beyond reasonable doubt. As such, the trial court was in error in brushing aside serious infirmity in the prosecution case and the impugned judgment and order of the trial court, in view of the above narrated legal proposition, evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 17. For the foregoing reasons, the appeal deserves to be allowed and is accordingly allowed. The 9 judgment and order dated 11.7.1997 passed by Special Judge/IIIrd Addl. Sessions Judge, Nainital in Sessions Trial No.142 of 1994, State Vs. Roop Singh and others, is hereby set aside. Consequently, the conviction and sentence, as directed by the court below, which has been discussed above, is also set aside. The appellant is on bail. He need not surrender unless required in any other case 18. Let the lower court record be sent back. (Dharam Veer, J.) 29.03.2010 RG