IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2)(b) Description of Case Criminal Appeal No. 49 of 2004 Date of decision : 02nd April, 2008 A.F.R. (Approved for Reporting) Not approved for reporting Date:-02.04.2008 Initials of Judge Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.49 of 2004 Umesh Charan Gusain S/o Late G.S. Gusain R/o 7-D, 38/2 Baurari New Tehri, District-Tehri Garhwal. ……Appellant Versus State ……Respondent Mr. Rajendra Kotiyal, Advocate assisted by Mr. N.S. Pundir, Advocate for the appellant. Mr. Nandan Arya, Assistant Government Advocate for the respondent- State. Mr. Arvind Vashistha, Assistant Solicitor General (Central Govt.) for the C.B.I. JUDGMENT Hon’ble J. C. S. Rawat, J. This is a criminal appeal against the judgment and order dated 10.2.2004 passed by the then Addl. Sessions Judge/Fast Track Court, Tehri Garhwal in Sessions Trial No. 7 of 1996, State Vs. Umesh Charan Gusain, whereby the Addl. Sessions Judge has convicted the appellant under Section 436 IPC and sentenced him to undergo RI for three years and to pay fine of rupees ten thousand. In default of payment of fine, the appellant shall further undergo RI for three months. 2. The case of the prosecution, in brief, is that on 03.10.1994 at about 14.15 pm, the Uttarakhand Sangharsh Samiti agitators tried to burn the unoccupied residential house of the District Judge, Old Tehri. It is also pertinent to mention here that the District Judge was not residing in the said house, since he had shifted to his new residence at New Tehri. When the S.D.M came to know of the above incident, he immediately reached at the residence and made arrangements to extinguish the fire. The said information was given to the police station, Tehri and a report was also lodged. Again on 04.10.1994, the agitators came at the unoccupied residential house of the District Judge, Old Tehri and set the house on fire. A report to this effect was also lodged by S.D.M on phone to the police station. The prosecution case further reflects from the evidence that the accused- appellant alongwith other persons came to the court- room of the District Judge, New Tehri on 27.9.1994, when the District Judge, New Tehri was hearing a civil case bearing no. LA 2 of 1988, Shashi Bhusan Vs. State. During the course of the proceeding, the accused-appellant appeared before the District Judge and stated that he is the president of the Students’ Union. The accused-appellant requested the District Judge to handover his old residence situated at Old Tehri to the students. The learned District Judge unequivocally stated that the property belongs to the High Court, hence shown his inability to provide the same to the students. The accused-appellant alongwith his another companions came out of the court-room and stated in an intimidated manner that if the residence is not provided to them, they will see other methods to get the same. The prosecution has further alleged that on 04.10.1994, constables Suresh Chand PW8 and Ombir Singh PW10 were on the security duty at the residence of the District Judge, Old Tehri. At about 12 noon, they saw that a procession of about 150 persons were coming from the side of the Ghantaghar to the unoccupied residence of the District Judge, situated at Old Tehri The said procession was being headed by its leader Umesh Charan Gusain, the present appellant. The persons who were in the procession, have bottles, canes and ‘mashals’ in their hands. They reached near the unoccupied residence of the District Judge, Old Tehri shouting slogans that if the said residence could not be provided to the students, then the District Judge would also not be allowed to retain this house. The eyewitnesses Suresh Chand PW8 and Ombir Singh PW10 tried to intervene but the persons who were in the procession, started pelting stones upon them. Consequently, the eyewitnesses left the spot and the miscreants set the Bungalow/residence on fire by throwing bottles filled with some liquids and ‘mashals’. The eyewitnesses constables Suresh Chand PW8 and Ombir Singh PW10 immediately went to the house of the S.D.M which is situated nearby the place of the unoccupied residence of the District Judge, but the S.D.M had gone at the post office at that time. Thereafter, both the eyewitnesses went to the post office and narrated the entire incident to the S.D.M. The S.D.M lodged a report in regard to the above incident on telephone in the police station at about 14.15 pm on the same day. The matter was initially investigated by the regular police and a chargesheet was submitted by the police against thirteen persons, including the present appellant. 3. It is pertinent to mention here that during the above proceeding, a writ petition bearing no. 32982/1994 was instituted by the Uttarakhand Sangharsh Samiti before the Allahabad High Court in which the court ordered that the matters pertaining to the atrocities committed on the volunteers of ‘Uttarakhand Sangharsh Samiti’ would be investigated by the C.B.I and separate courts would be set up for the trial of such cases. Pursuant to the said order of the Division Bench of the Allahabad High Court, investigation was taken up by the CBI. Kishore Kumar, the Deputy Superintendent of Police, I.O, CBI pursuant to the order of the Allahabad High Court, filed an application before the C.J.M, Tehri on 05.5.1995 (i.e. Ex. Ka 18) seeking permission to investigate the case and also for getting the original documents/certified copies of the documents filed by the local police in the court pertaining to the above matter. After completion of the investigation by the CBI, chargesheet was submitted against the present appellant only, before the court on 04.10.1995 (Ex. Ka 33). Consequent upon the orders of the High Court, the matter was tried/heard before a CBI court, specially constituted under the orders of the Allahabad High Court passed in the Civil Miscellaneous Writ Petition No. 32982 of 1994. Meanwhile, an appeal was preferred by the State (U.P.) before the Hon’ble Apex Court against the final judgment and order of the Allahabad High Court in the Civil Miscellaneous Writ Petition No. 32982 of 1994. The Hon’ble Apex Court in the appeal preferred by the State (U.P), set aside the order of the Allahabad High Court passed in the Civil Miscellaneous Writ Petition No. 32982 of 1994 in toto and, the direction by the High Court for the establishment of the separate courts was also not allowed to remain in force, on the ground that if such courts are allowed to remain in force, it would create only confusion and provide room for pre- casting of the trials. For the ready reference, the said judgment of the Hon’ble Apex Court is reported in 1999 SCC (Cri) Page 580 in the case of A.K. Singh & Others Vs. Uttarakhand Jan Morcha & Others. After the quashment of the judgment of the Allahabad High Court by the Hon’ble Apex Court, the CBI moved an application before the Court concerned to remit the case to the Sessions Judge having the jurisdiction for the trial of the case. The said application was allowed by Allahabad High Court and the matter was remitted to the Sessions Judge, Tehri which was later on transferred to Addl. Sessions Judge, Tehri who was having the jurisdiction over the matter under the provisions of the Criminal Procedure Code. 4. After submission of the chargesheet by the C.B.I, the accused appellant was committed to the court of Sessions Judge, Tehri Garhwal for trial and the trial court framed charge against the accused appellant. The accused appellant denied the charge levelled against him and claimed trial. 5. At the time of trial, the prosecution in support of its case examined 11 witnesses in support of its case. They are namely, Soban Singh Kaithat PW1, Jasmal Singh PW2, Trilok Singh Bisht PW3, Sampoornanand Nautiyal (fire-man) PW4, Dr. Akhilesh Kumar Gautam PW5, Rajendra Singh Bisht PW6, Karam Jung Singh Chauhan PW7, Const. Suresh Chand PW8, H.C. Pyare Lal PW9, Const. Ombir Singh PW10 and Kishore Kumar PW11. Soban Singh Kaithat PW1, Trilok Singh Bisht PW3 and Karam Jung Singh Chauhan PW7 are the witnesses to the fact that the accused-appellant alongwith his companions appeared before the court on 27.9.1994, when the District Judge, New Tehri was hearing a civil case bearing no. LA 2 of 1988, Shashi Bhusan Vs. State and during the course of the proceeding, the accused- appellant requested the District Judge to handover his old residence situated at Old Tehri to the students. The learned District Judge unequivocally stated that the property belongs to the High Court, hence shown his inability to provide the same to the students. The accused-appellant alongwith his another companions came out of the court-room and stated in an intimidated manner that if the residence is not provided to them, they will see other methods to get the same. The prosecution has led the evidence of these witnesses i.e. Soban Singh Kaithat PW1, Trilok Singh Bisht PW3 and Karam Jung Singh Chauhan PW7 to show the motive of causing the mischief by setting the fire to the vacant residence of the District Judge. Constables Suresh PW8 and Ombir Singh PW10 are the witnesses of the fact of the incident. Sampoornanand Nautiyal (fire-man) PW4 is the in-charge of the fire station. He has received the information from the police station, Tehri on 04.10.1994 to take the fire brigade to the place of incident to extinguish the fire. On receiving the said information, Sampoornanand PW4 alongwith other fire personnel reached the place of incident and extinguished the fire. PW5 is Dr. Akhilesh Kumar Gautam and he has stated that on 04.10.1994, his driver came to him and took petrol from him stating that he had to take a patient by some other vehicle. PW6 is Rajendra Singh Bisht SSI who was posted on the date of the incident at SP Office as ASI. He is a formal witness. H.C. Pyare Lal PW9 is the Head Moharir who has recorded the F.I.R and he is also a formal witness and Kishore Kumar PW11 is the Investigating Officer of this case. 6. The accused-appellant was examined under Section 313 of the Criminal Procedure Code. He denied all the averments made in the evidence and he has stated that he has been falsely implicated in the case. He has also stated that neither he had gone to the house of the District Judge nor he set the fire to the house of the District Judge. He further stated that he has been falsely implicated in the case, as he was a student leader at that time. The accused- appellant did not adduce any evidence either oral or documentary in support of his case. 7. After appreciation of the evidence, the learned Sessions Judge convicted the accused-appellant under Section 436 IPC as indicated above, but was acquitted for the incident dated 03.10.1994 and from the charge levelled under Section 436 readwith 511 IPC for the same. 8. I have heard the learned counsel for the parties and perused the record. 9. It needs to be mentioned here that it is not disputed that the District Judge had shifted from his old residence situated at Old Tehri to New Tehri residence. It is also not disputed that the said house of District Judge situated at Old Tehri was burnt to ashes at the time and date of the incident. It is also not disputed that some miscreants came at the residence of the District Judge, Old Tehri and set the residence on fire. Thus, there is no hesitation in holding that the residence of the District Judge situated at Old Tehri was burnt to ashes at the time and date of the incident. 10. It is also pertinent to mention here that an application dated 09.3.1995 for withdrawal of the prosecution was filed before the trial court. The said application was not pressed either by the prosecutor appearing before the court, or by the appellant and the case was decided against the appellant and he was convicted as indicative above. 11. During the pendency of the present appeal, the State Government vide order dated 21st February, 2004 has remitted the sentence awarded by the trial court. Thus, the sentence awarded by the trial court has already been remitted by the State Government under its power conferred under the Criminal Procedure Code. This fact has not been disputed by any of the parties appearing before the court. Now, the academic question which remains for consideration is as to whether the appellant is guilty of the offence under Section 436 or under any other sections of IPC. If he is found guilty under Section 436, even then he cannot be ordered to suffer imprisonment as ordered by the court, as the State Government in its exercise of the power, has remitted the said sentence. 12. Now I have to see as to whether the appellant was the person who was responsible for causing the said mischief by setting the residence on fire or not. The case rests upon the eye-account of Suresh Chand PW8 and Ombir Singh PW10. The prosecution has also led the evidence to prove the fact that there was a motive of the accused-appellant to commit the said mischief. The prosecution in support of its case examined Suresh Chand PW8 who has stated in his evidence that he was on the security duty on 04.10.1994 from 9 am to the mid day, at the residence of District Judge, Old Tehri and at about 12 noon, the volunteers of the Uttarakhand Sangharsh Smiti hold a procession and were coming towards the residence of the District Judge situated at Old Tehri. The said procession which was having about 100-150 persons were coming from the side of Ghantaghar to the residence of the District Judge situated at Old Tehri. The said procession was alleged to have been headed by the accused-appellant Umesh Charan Gusain. They were having the plastic jarcanes, bottles and ‘mashals’ in their hands. The agitators reached at the residence of the District Judge, Tehri shouting slogans that if the students would not be allowed to occupy the house, the District Judge could also not be allowed to occupy the house. Suresh Chand PW8 and Ombir Singh PW10 tried to prevent the agitators but the agitators threatened them to fled away from the place, otherwise, they would be burnt alive. The agitators also started pelting stones upon them. Consequently, both the eyewitnesses came behind and thereupon the agitators started throwing bottles, mashals and the liquid from the containers which they were having in their hands in the vacant residence of the District Judge, Old Tehri. The residence of the District Judge started burning. Constable Suresh PW8 immediately went to the house of the S.D.M who was situated nearby the place of incident. When both the eyewitnesses reached at the house of the S.D.M, they were informed that the SDM had gone to the post office. Thereafter, both the eyewitnesses went to the post office and informed the S.D.M about the incident. The S.D.M immediately reported the matter on phone to the police station as well as to the fire brigade. Thereafter, the fire brigade reached at the spot extinguish the fire. 13. The prosecution also adduced the evidence of constable Ombir Singh PW10 who was also on duty alongwith Suresh Chand PW8 at the vacant residence of the District Judge, Old Tehri, at the time and date of the incident. He was produced by the prosecution to corroborate the evidence of Suresh Chand PW8. 14. The learned counsel of the appellant attempted to dispute the presence of the eyewitnesses at the place of the incident. Mr. Arvind Vashishth, A.S.G. (Central Govt.) for the C.B.I tried to emphasize that the presence of the witnesses cannot be disputed at the place of occurrence as they were deputed on the duties at the vacant residential house of the District Judge situated in the Old Tehri. The learned counsel for the appellant tried to emphasize that the documentary evidence reveals that they were never deputed to the place of occurrence or to the vacant residence of the District Judge, Old Tehri. Their departure and arrival in the GD has been shown for the safety of the SDM court at Old Tehri. To substantiate the argument, the learned counsel for the appellant relied upon a document filed by the prosecution which is Ex. Ka 27 i.e. copy of the G.D which shows the departure and arrival of the above eyewitnesses at the Semlasu Chowki. From the perusal of the GD, Ex. Ka 27, it is evident that the ‘rawangi’ of the constables Suresh Chand PW8 and Ombir Singh PW10 were made for the duties at the court of the SDM, Old Tehri. The relevant entry mentioned in the GD dated 04.10.1994 which is Ex. Ka 27, has been proved by the prosecution and is reproduced below: 4@9-30 Okkilh dZe0 Xk.k o rLdjk fuxjkuh o jokuxh dZe0 x.k HC 20 tliky flag dk0 162 jk/ks';ke o dk0 218 xtsUnz ’kZek jiVk jiV la vke ph jkstk ls ckn lekIr M;wVh ’kkfUr O;oLFkk- SDM dksVZ ls gLc vkns’k Jheku SHO Fkkuk fVgjh ds okil vk;s rFkk okLrs M;wVh SDM dksVZ dk0 61 lqjs’k pan o dk0 112 vksechj flag dks jokuk fd;k x;k tks pkSdh gktk dh uhxjkuh dk0 61 lqjs’k pan ls dk0 162 jk/ks’;ke dks ckonhZ nq:Lr ifjoZru djkbZ xbZ- fgnk;r vthZr dh x;hA dk;kZy; fuxjkuh lqiqnZ fd;k- 7@18-30 Okkilh dZe0Xk.k dk0 61 lqjs’k pan o dk0 112 vksechj flag jiVk jiV l- vke ph jkstk ls ckn lekIr M;wVh SDM dksVZ] fVgjh ls okfil vk;s- dq’kyrk izdV dh- 15. Both the entries in the GD dated 04.10.1994 revealed that the eyewitnesses Suresh Chand PW8 as well as Ombir Singh PW10 were on the duty at the SDM court. It is very much in the prosecution evidence that the SDM court is situated about 1 km. away from the vacant residence of the District Judge. Ombir Singh PW10 has categorically stated that the place of incident that is the vacant residence of District Judge could not be seen from the court compound of the SDM. The site map prepared by the C.B.I also reveals that the vacant residence of the District Judge, which was set on fire by the agitators, is not adjacent to the court compound. The site plan also reveals that in between the residence of the District Judge and S.D.M’s court compound, there are some trees planted in between it and thereafter, there is a road which starts from hospital to old court compound and thereafter there is a building of court compound. It is apparent from the site plan that the vacant residence of the District Judge was distantly situated from the place of the duty of the eyewitnesses. The evidence of the eyewitnesses further testifies that the vacant residence which was burnt to ashes by the agitators was not visible from the SDM court. If the eyewitnesses were deputed at the residence of the District Judge, the entry to this effect in the GD would have been made. Hence, this fact creates a doubt about the presence of the eyewitnesses at the place of incident. 16. It is further evident from entry no. 7 of the GD dated 04.10.1994 which was recorded at 18.30 pm reproduced above, clearly reveals that the eyewitnesses returned to the Chowki and stated that there was no incident during their duty hours. It is bounden duty of the police officials that whenever they are deputed on duty at any place and some untoward incident has taken place, then at the time of reporting to the Chowki, they should make a note of it in the GD book that some untoward incident has occurred at the place where they were deputed. Hence, if the eyewitnesses were deputed at the residence of the District Judge, they would have definitely reported that the un-occupied residence of the District Judge has been burnt to ashes by the appellant and the agitators. The non-mentioning of this fact in the GD, further creates strong suspicion to the Court in relation to the presence of the eyewitnesses at the place of incident. 17. It is also evident from the letter (Ex. Ka 8) dated 15th October, 1994 of the District Judge, Tehri written to the Addl. District Magistrate, Tehri that the residence of the District Judge at Old Tehri has been burnt to ashes on 04.10.1994 and the S.D.M residing in the close proximity of the residence in question told him that at the time of incident, there was no security arrangement at all. In the aforesaid letter, the District Judge has further asked the Addl. District Magistrate, to enlighten him in regard to the steps taken at his end and the circumstances, leading to this major fire incident. The aforesaid letter further leads to take an inference that the police constables, who were said to be the eyewitnesses of the incident, were never deputed at the residence of the District Judge. This fact also gives credence to the fact that the presence of the witnesses at the spot was doubtful. 18. The eye-witnesses Suresh Chand PW8 and Ombir Singh PW10 has stated that immediately after the incident, they had informed the SDM who met them at the post office and the S.D.M made a telephonic call to the police station at about 14.10 pm on the date of the incident whereas the incident took place at about 12 noon. According to the eyewitnesses, the information with regard to the incident was given immediately to the S.D.M and the S.D.M reported the matter after two hours to the police station. Since, the S.D.M was at the post office, he could very well communicate this information to the police station. According to the prosecution evidence, the S.D.M also telephoned the fire station to extinguish the fire. As a matter of fact, Sampurnanand Nautiyal (fireman) PW4 has stated in his evidence that on the date of the incident, he received the information with regard to the above fire incident from the police station. It would be pertinent to mention here that if the S.D.M had got the news with regard to the above fire incident, his immediate conduct would have been to inform the police as well as to the fire station. According to Sampooranand Nautiyal PW4, the information was not given by the SDM to the fire station and the information in regard to the above fire incident, was received in the fire station after two hours, though there was immediate urgency to extinguish the fire at the spot. This circumstance further reveals that the eyewitnesses had made an improvement in their evidence and they were not present at the scene of occurrence at the time of the incident. 19. It is also evident from the prosecution story that if both the eyewitnesses were present at the place of incident, they would have immediately called the police station on phone or the fire station to send the fire brigade. It was projected by the prosecution as well as by the counsel for the appellant that the agitation of the ‘Uttarakhand Sangharsh Samiti’ was going on in full swing, in retaliation of the incident took place in Muzaffarnagar where certain atrocities were committed to the members of the ‘Sangathan’, as such, the agitators were causing mischief by fire or otherwise in the city. In such a situation, the SDM was at the post office and it was an incumbent duty of the police officials to inform the city control or as well as to the higher officials of the police to seek the further police help. Instead of taking the police help, the eyewitnesses went to the SDM at the post office. 20. The story did