IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1742 of 2001 (Old No. 736/1994) Mahesh Chandra S/o Sri Balak Ram, R/o Village Guthinda, Patti Kolagad II, Tehsil Lansdown, District Pauri Garhwal. .…. Appellant/Accused Versus State of U.P. …………… Respondent August 12, 2009 Mr. Rajendra Kotiyal, Advocate for the appellant. Mr. Ravi Joshi, Advocate for the complainant. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 3.5.1994 passed by the Sessions Judge, Pauri Garhwal in Sessions Trial No. 20 of 1992, State v. Balak Ram & Ors., whereby learned Sessions Judge has convicted the appellant/accused Mahesh Chandra under Section 307 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo R.I. for four years. However, co-accused Balak Ram and Smt. Banchi Devi were given benefit of doubt and were acquitted of the charge levelled against them. 2. In brief, the prosecution case is that PW1 Raja Ram had moved an application before the Chief Judicial Magistrate, Pauri on 1.8.1990 with the averments that the appellant/accused Mahesh Chandra and co-accused Balak Ram and Smt. Banchi Devi (acquitted by the trial court) are the resident of same village Guthinda, Patti Kalagad and he was working in Delhi for the last 20-22 years and his brother Mohan Lal was working in Chilkholi Inter College as a Peon. He came to know that few days 2 ago there had been a dispute over land between his brother Mohan Lal and the appellant/accused and the co- accused. The appellant/accused was also serving in the Army and had come on leave of two months. He has further stated that on 27.7.1990 at about 1-1.30 pm when Mohan Lal was returning to his village Guthinda, he was surrounded by the appellant/accused and the co-accused at a distance of about 150/200 metres from the school and they badly injured him. After hearing the noise, Sultan Singh Negi and other staffers had reached on the place of occurrence and other people also raised the alarm. Thereupon the appellant/accused and the co- accused ran away from the place of occurrence after leaving Mohan Lal in unconscious condition. People had taken Mohan Lal to his house on a cot in unconscious condition. Patwari chauki is also situated in the village. Since the Patwari was not present in the village, therefore, report of this incident was not lodged and Mohan Lal was taken to Sanglakoti hospital. Doctors of that hospital had advised to take Mohan Lal to some other hospital. From there the Pradhan of the village and Bhagwan Singh Rawat, Sadhu Ram Bara, etc. had brought him to Delhi in a taxi where he was admitted in All India Institute of Medical Sciences (AIIMS). Mohan Lal remained in unconscious condition and was not coming to his senses. On 29.7.1990, Smt. Nanda Devi (PW4), wife of Mohan Lal, had sent a copy of the FIR, on which Patwari Dabbal Singh Rawat obtained her signature by threatening her. He has further averred that perhaps the Patwari had made wrong chick in collusion of the accused. Injured Mohan Lal was unable to talk. He has further stated that Mohan Lal had serious injuries and Patwari had intentionally prepared a chick report under Section 323/504 IPC of the abovementioned incident in order to ease the entire episode. With these averments, PW1 Raja Ram had moved 3 an application Ex. Ka-1 upon which CJM had ordered to register and investigate the case. 3. On the basis of this report Ex. Ka-1, Patwari Kalagad-II prepared the chick FIR Ex. Ka-2 on 8.8.1990. Necessary entries were also made in the GD. Copy of the GD is Ex. Ka-3. (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification NO. 494/VIII-418-16 dated 7/3/1916). During the course of investigation the I.O. prepared the site plan Ex. Ka-4 and the inspection note of the place of occurrence Ex. Ka-5. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka-6 against the appellant/accused and the co-accused (acquitted by the trial court). 4. Learned Munsif Magistrate, Lansdown, Garhwal after giving the necessary copies of the documents to the appellant/accused and the co-accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 10.6.1992. 5. On 11.6.1992, learned Sessions Judge, Pauri Garhwal framed the charge against the appellant/accused and the co-accused under Section 307 read with Section 34 IPC. The charge was read over and explained to the appellant/accused and the co-accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Raja Ram, the complainant; PW2 Mohan Lal, the injured witness; PW3 Kanhiya Singh; PW4 Smt. Nanda Devi and PW5 Kundan Singh, Patwari and the I.O. of the case. 4 7. Thereafter, statements of the appellant/accused and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. In reply to question no. 7, the appellant/accused Mahesh Chandra stated that on the date of the incident he was on duty in Leh (Laddakh). He has further stated that he would file certificate of his presence at that place. In defence he did file a certificate 35-Ka issued by Major, OC ‘B’ Coy, 15 Bn, the Mahar Regt. However, no witness was examined in defence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned Sessions Judge, Pauri Garhwal vide his judgment and order dated 3.5.1994 convicted and sentenced to the appellant/accused as discussed above. Against the aforesaid judgment and order dated 3.5.1994, the appellant/accused has preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. To prove its case, the prosecution has examined PW1 Raja Ram, the complainant who has stated that Mohan Lal (PW2) was his own brother. The said incident took place on 27.7.1990. Mohan Lal had come on 28.7.1990 at his residence at Delhi for his treatment. He was unconscious at that time. He was taken for the treatment by him to the All India Institute of Medical Sciences. On 28.7.1990 at about 9 pm Mohan Lal regained his consciousness. Then he had narrated the incident to him. On the basis of the information received from Mohan Lal 5 he had moved an application to the CJM, that is Ex. Ka-1. In the cross-examination, he has stated that he had received the copy of the report of the said incident which was lodged by the wife of Mohan Lal on 29.7.1991 at Delhi through some other person and the photo copy of the said paper is 6-Ka. 11. PW2 is Mohan Lal, the injured witness who has stated that the appellant/accused Mahesh Chandra and the co-accused Balak Ram and Smt. Banchi Devi (acquitted by the trial court) were the members of his family. He was a peon in the school. On 27.7.1990 at 12 pm he was coming to his house. When he reached at the dobata then the appellant/accused Mahesh Chandra tried to talk with him. He refused to talk with him. Appellant/accused caused injuries on his head with some weapon. Banchi Devi had threatened him for life. Balak Ram had caught hold his hand and the appellant/accused Mahesh Chandra had pressed his neck and also caused injuries to him with fists and kicks. On hearing his noise Kanhiya Singh Rawat (PW3) and people of the vicinity reached at the place of occurrence and then the appellant/accused and the co-accused ran away from the spot. He regained his consciousness in Delhi where his treatment was done. After coming to the sense he had narrated the incident to his brother Raja Ram (PW1). Mahesh Chandra was serving in the Army but he had come on leave to his house. Brother of Mahesh Chandra also wanted to be a Peon. But instead of him, he got the said job and, therefore, the appellant/accused had enmity with him. They also had enmity with him on account of land dispute. In the cross-examination, he has stated that when he had come to the house then his wife had told him that she had given a report of the said incident to the 6 Patwari. He has further stated that villagers had narrated the incident to his wife. 12. PW3 is Kanhiya Singh who has also stated that in June, 1990 he was working as Manager in Janta Inter College, Tilkholi where Mohan Lal was working as a Peon. On 27.7.1990 at about 12.05 pm the said incident took place at about 200 metres from the school. At that time, he was in the school. After hearing the noise he reached at the place of occurrence. He had seen the appellant/accused Mahesh Chandra beating Mohan Lal. When he reached at the place of occurrence, Mahesh Chandra escaped from the place of occurrence. He tried to call the son of Mohan Lal. Mohan Lal had become unconscious by then. So many people from the village had assembled there who took Mohan Lal from there on a cot. He returned back to the school. When he had reached at the place of occurrence, he saw only Mahesh Chandra and nobody else. In the cross-examination, he has stated that his village is three kilometers away from the place of occurrence. 13. PW4 Smt. Nanda Devi has stated that her husband was serving in the school who was coming back to his house from school at about 12 to 1 pm on the date of the incident. Then in front of the school at dobata he was beaten. She was coming after working in the field. After hearing this incident when she was going to the place of occurrence, she saw the appellant/accused Mahesh Chandra and the co-accused Balak Ram and Smt. Banchi Devi (acquitted by the trial court) in the way. Balak Ram was holding stone in his hand while Banchi Devi was having a sickle in her hand. They had also abused her. Her husband was lying in unconscious condition. He was brought at house on a cot and thereafter villagers had taken him to Delhi. She had signed on a paper when 7 asked by the Patwari who told her that if she would not sign on the said paper her husband would not be admitted in the hospital. In her cross-examination, she has stated that she had signed on the report 6-Ka at the Patwari chauki. She herself had gone to the Patwari chauki. She has further stated that she was given a copy of the report on which she had signed and the same was sent by her to Delhi. 14. PW5 Kundan Singh, Patwari and the I.O. of the case has stated that on 8.8.1990, Dabbal Singh Rawat was posted as Patwari in patti Kalagad-II. Chick FIR Ex. Ka-2 was prepared by him. He also made the necessary entries in the GD. Copy of GD is Ex. Ka-3. He has further stated that the investigation of this case was transferred to him on the orders of Naib Tehsildar. He started the investigation on 28.8.1990. He prepared the site plan of the place of occurrence Ex. Ka-4 on the pointing out of injured Mohan Lal (PW2). He also prepared the inspection note Ex. Ka-5. During the course of investigation, he recorded the statements of the witnesses. Consequent upon his transfer, the investigation of this case was assigned to Hari Prasad Bedwal, who after completing the investigation filed the chargesheet Ex. Ka-6 against the appellant/accused Mahesh Chandra and the co-accused Balak Ram and Smt. Banchi Devi (acquitted by the trial court). In the cross-examination, he has stated that Dabbal Singh Rawat did not record the statement of any witness. He had only prepared the chick FIR on the basis of the said report. He has further stated that he never tried to know the period of leave availed by the appellant/accused Mahesh Chandra, whose address he was told as C/o 56 APO. He has also stated that he had not received the medical report or the X-ray report of injured Mohan Lal (PW2). He has further stated that 8 Dabbal Singh, in his statement, had told him that Mohan Lal (PW2) and Smt. Nanda Devi (PW4) had come at Patwari chauki and the report was lodged on the narration of incident by Mohan Lal. Lastly, he has stated that he never went to All India Institute of Medical Sciences for the investigation. 15. Thereafter, statements of the appellant/accused and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. In reply to question no. 7, the appellant/accused Mahesh Chandra has said that on the date of the incident he was present in the Leh (Laddakh) on duty and he has further stated that he would file certificate for his presence. In defence he has filed a certificate 35-Ka issued by Major, OC ‘B’ Coy, 15 Bn, the Mahar Regt. However, in defence, they did not examine any witness. 16. Learned Counsel for the appellant/accused argued that the prosecution has not proved the case against the appellant/accused Mahesh Chandra beyond reasonable doubt for the offence punishable under Section 307 IPC. I find substance in the argument of the learned Counsel for the appellant/accused for the following reasons: (i) That as per the evidence of PW1 Raja Ram, he received the copy of first FIR lodged by PW4 Smt. Nanda Devi at the Patwari chauki and Smt. Nanda Devi has also stated that she had lodged the FIR at the Patwari chauki where he had gone on her own. Injured Mohan Lal (PW2) has also stated that when he came to his house then his wife Smt. Nanda Devi had told him 9 that she did lodge an FIR. PW5 Kundan Singh has also stated that Dabbal Singh, in his statement, had told him that Mohan Lal (P.W.2) and Smt. Nanda Devi (P.W.4) had come at Patwari Chowki and the report was lodged on the narration of incident by Mohan Lal. But that FIR was not filed by the prosecution in the evidence and the chick FIR was prepared on the basis of the application Ex. Ka-1 moved by PW1 Raja Ram. PW5, Kundan Singh, Patwari and the I.O. of the case has also stated that the chick FIR was prepared on the basis of the second FIR. By not filing the first FIR in the evidence by the prosecution, the whole prosecution story has become doubtful and the appellant/accused is entitled to get the benefit of doubt. (ii) That as per the second FIR, the injured Mohan Lal was first taken to Sanglakoti hospital from where he was referred to another hospital, but the Pradhan of the village and Bhagwan Singh Rawat, Sadhuram Bara, etc. had brought him to Delhi at the residence of his brother Raja Ram (PW1), where he was admitted in AIIMS. But no medical certificate either from the AIIMS or Sanglakoti hospital was produced by the prosecution to prove the injuries suffered by Mohan Lal which creates reasonable doubt on the prosecution story. Since no injury report from either of the aforesaid two hospitals was filed by the prosecution, therefore, it can be assumed that Mohan Lal did not suffer any injury. (iii) That in the second FIR also, Sultan Singh Negi was named as an eyewitness of the said incident and Kanhiya Singh (PW3) was not named as such. But Sultan Singh Negi was not examined before the trial court and the 10 deposition of Kanhiya Singh (PW3) is not reliable and believable as he was a resident of the village which was three kilometers away from the place of occurrence and his presence on the place of occurrence is doubtful. Even Kanhiya Singh (PW3) has not corroborated the statements of PW1 Raja Ram and PW2 Mohan Lal in toto. He has also stated that at the time of incident he was present in the school, which is about 200 metres away from the place of occurrence and he went there after hearing the noise. Since he was a resident of the village which was three kilometers away from the place of occurrence and at the time of incident, he was 200 meters away from the place of occurrence, for this reason, his presence at the time incident was not possible. Therefore, the evidence of PW3 Kanhiya Singh does not inspire confidence and his presence on the place of occurrence at the time of incident is doubtful. (iv) That PW1 Raja Ram is also not an eyewitness and his statement is based upon the narration of the incident by PW2 Mohan Lal. He was in Delhi on the alleged date of incident. (v) The only witness remains is injured Mohan Lal (PW2) and his statement also does not inspire the confidence as has stated that the injury was caused on his head by the appellant/accused with some weapon and his condition was very serious and he was admitted in AIIMS, New Delhi for his treatment. But no medical report or injury report was filed by him before the trial court or before the I.O. of the case, which reveals that the incident did not happen in the manner as has been alleged by the prosecution. 11 Hence, the evidence of this witness also does not inspire the confidence. (vi) That the appellant/accused in his statement under Section 313 CrPC, in reply to question no. 7 he has stated that on the alleged date of incident he was present on his duties in Leh (Laddakh) where he was serving in the Army. He has also filed a certificate of presence at that place as paper no. 35-Ka issued by the Major, OC ‘B’ Coy, 15 Bn, the Mahar Regiment, wherein it has been stated that No. 4549637P NK Mahesh Chandra who was serving in 15 Mahar c/o 56 APO was on leave from 5.6.1990 to 24.7.1990 and except the leave period mentioned above, Mahesh Chandra was present in 15 Mahar, c/o 56 APO. 17. Thus, from the aforesaid discussion of the evidence and in view of the facts and circumstances of the case, the prosecution has failed to prove its case beyond reasonable doubt against the appellant/accused Mahesh Chandra for the offence punishable under Section 307 IPC. As such, the impugned judgment and order dated 3.5.1994 is not justified and correct and the same is liable to be set aside. 18. In the result, the appeal is allowed. The judgment and order dated 3.5.1994 passed by the Sessions Judge, Pauri Garhwal in Sessions Trial No. 20 of 1992 convicting the appellant Mahesh Chandra under Section 307 IPC is hereby set aside. Consequently, sentence of four years’ R.I. awarded to the appellant Mahesh Chandra is also quashed. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Let the lower court record be sent back. (Dharam Veer, J.) 12.8.2009 PRABODH 12