RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.814 OF 2001 (OLD NO.27 OF 2000) Walter Willium S/o John. Willium R/o Village Chhini Gonth, Police Station Tanakpur, District Champwat ……… Appellant Versus State of Uttarakhand .……… Respondent Dated: October 8, 2010 Mr. M.K. Chand, Advocate for the appellant Mr. T.C. Agarwal, learned Addl. GA for the State HON. DHARAM VEER, J. This 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 30.11.1999 passed by Additional Sessions Judge, Haldwani, District Nainital in Sessions Trial No.193 of 1996, State v. Walter Willium, whereby the learned Additional Sessions Judge convicted the appellant-accused Walter Willium under Section 307 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced him to undergo rigorous imprisonment for a period of five years with a fine of ` 1,000.00 and in default of payment of fine, three months’ simple imprisonment was further awarded to him. The appellant-accused was further convicted under Section 323 IPC and was sentenced to one month’s R.I. Both the sentences were directed to run concurrently. 2 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that PW1 Himanand Sharma lodged a First Information Report at Police Station Tanakpur, District Udham Singh Nagar stating therein that on 3.1.1996 the complainant Himanand Sharma, Forest Ranger, Chiniweet, Dogadi, after completing his patrolling duty, reached in the headquarters and got an information that the appellant-accused Walter Willium has cut logs of Sheesam and Shal tree. On receiving this information, the complainant along with Sancha Singh (PW3) at about 7 PM was going to Tanakpur in order to give this information to his higher officials but as soon as they reached near the house of the appellant-accused, the appellant-accused, with intention to kill the complainant, caused injuries on his head by an axe. Appellant-accused also beaten the watcher who was along with the complainant and thereafter he fled away from the place of occurrence. Sancha Singh taken the complainant in the police station and thereafter taken him to hospital. With these averments, the FIR was lodged by Himanand Sharma (PW1), which is Ext.Ka-1. On the basis of this FIR, Chik FIR of the case was prepared, i.e. Ext.Ka7. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-8. The investigation of the case was entrusted to Station Officer J.K. Gangwar. Injured Himanand was medically examined by PW2 Dr. S.V. Oli at 9:15 PM on 3.1.1996, who after the medical examination, prepared the injury report, i.e. Ext.Ka-2. Supplementary report of the injured was also prepared by the doctor, i.e. Ext.Ka-3. 3 On 4.1.1996 at 11:45 AM, Sancha Singh was also medically examined by the same medical officer, who prepared the injury report Ext.Ka-4. During the course of investigation, the I.O. recorded the statement of witnesses, inspected the place of occurrence and prepared the site-plan, i.e. Ext.Ka-5 and on completion of investigation, he filed the charge sheet against the appellant-accused, i.e. Ext.Ka-6. 4. After receiving the charge sheet, learned Chief Judicial Magistrate, Nainital, committed the case to the court of Sessions on 22.2.1996, after giving necessary copies to the appellant-accused as provided u/s 207 Cr.P.C. It appears from record that the case was transferred to Addl. Sessions Judge for hearing and disposal as per law. On 4.3.1997, learned IV Addl. Sessions Judge, Nainital, framed the charge of offence punishable under Sections 307 and 323 of IPC against the appellant-accused. The charge was read over and explained to the appellant-accused, who pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has examined PW1 Himanand Sharma, injured witness and complainant of the case, PW2 Dr. S.V. Oli, who medically examined the injured persons, PW3 Sancha Singh, injured witness and PW4 S.I. J.K. Gangwar. 6. Thereafter the statements of the appellant- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, he has not produced any oral or documentary evidence in defence. 4 7. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Nainital, vide his judgment and order dated 30.11.1999 convicted and sentenced the appellant-accused as mentioned above. Against the said judgment and order, the appellant- accused has preferred the present appeal. 8. Before any further discussion, it would be pertinent to mention the injury report of injured Himanand Sharma, which is reproduced as under:- i) Incised wound of 12 cm x 3 cm x bone deep, transverse on anterior half of scalp, clotted blood present. ii) Tenderness, swelling over upper part of left leg. Smell of alcohol in breath but person is oriented to time, place and person. Advised X-ray Skull and left leg. Inference:- Nature of injury – both the injuries are kept under observation. Cause of injury – Injury no.1 is caused by sharp object and injury no.2 is by blunt object. Duration of injury – Within 6 hours. Person has consumed alcohol but is not under alcoholic intoxication. 9. Supplementary report of the injured was also prepared by the medical officer, which reads as under:- “Injury no.1 is simple and injury no.2 is grievous in nature”. 5 10. Injury report of injured Sancha Singh is also relevant to mention here, which is reproduced as under:- i) Contusion of 3 cm x 2 cm size on left lateral aspect of neck, reddish blue in colour. Nature of injury – simple Cause of injury – hard blunt object Duration of injury – within 24 hours. 11. To prove the above-noted injury reports, the prosecution has examined PW2 Dr. S.V. Oli, who has proved the injury reports Ext.Ka-2, 3 and 4. In cross-examination, he stated that injury no.1 of Himanand Sharma was transversed from right ear to left year which could not be caused from front side. The injured was under the state of intoxication. He further stated that these injures are possible to come if the person, in drunken state, fell down on a sharp stone. Injury no.1 was not dangerous to life. 12. To prove its case further, the prosecution has examined PW1 Himanand Sharma, who has reiterated the contents of FIR in examination-in-chief. He has proved the report Ext.Ka-1. In cross-examination, he stated that he was taken to hospital by Sancha Singh and Rajendra Singh. He further stated that he had set the huts at fire to remove encroachment. 13. PW3 Sancha Singh has stated that he was posted as Watcher. On the date of incident at about 6-7 PM, Himanand Sharma came to him and told that trees of Sheesam and Shal have been cut 6 down and he has suspicion on the appellant- accused. Thereafter, as soon as he and Himanand Sharma reached in front of the house of appellant- accused, appellant-accused caused injuries on the head of Himanand by axe and thereafter he went inside his house. While he was lifting Himanand Sharma, appellant-accused came inside from the house with lathi and also caused injuries to him. Thereafter he ran towards police chowki. He further stated that he got medically examined in Tanakpur after two or three days of the said incident. In cross- examination, he stated that when the appellant- accused was causing injuries to Himanand Sharma he was a distance of 10-15 steps and it was dark night. He further stated that when he tried to lift Himanand Sharma, the appellant-accused caused injuries to him by danda. Thereafter, he had come to police chowki and what happened thereafter he does not know. After two days of the incident, police had taken him for medical examination. He further stated he had not seen anything whether people had come or not as he had gone from the place of occurrence. 14. PW4 J. J. Gangwar was posted as Station Officer at P.S. Tanakpur on 3.1.1996 and on that day the investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of witnesses, prepared the site-plan (Ext.Ka-5) of the place of occurrence and after completing the investigation, he filed the charge sheet (Ext.Ka-6) against the appellant- accused. He has also proved the chik FIR Ext.Ka-7 7 and G.D. entry Ext.Ka-8, prepared by Constable Clerk Gopal Ram. 15. Thereafter the statements of the appellant-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. In reply, he has stated that he has a residential hut near the forest and the forest department wants to remove his hut and due to this reason, he has been falsely implicated in the said case. However, he has not produced any oral or documentary evidence in defence. 16. Learned counsel for the appellant- accused argued that the prosecution has not been able to prove its case against the appellant-accused beyond reasonable doubt. I find force in the argument put forth by learned counsel for the appellant-accused, due to following reasons:- a) That the alleged incident is said to have taken place on 3.1.1996 at about 7 PM and no source of light has been shown by the prosecution at the place of occurrence. Further, as per the statement of PW3 Sancha Singh, he had seen the appellant-accused while causing injuries to Himanand Sharma from a distance of 10-15 steps and according to him it was a dark night. In such a condition when it was a dark night and there was no source of light, it would be highly improbable to identify a person from a distance of 10-15 steps. 8 b) That PW3 Sancha Singh has stated that he had not seen anything whether any people had come or not at the place of incident as after the said incident he had run away from there but according to PW1 Himanand Sharma he was taken to hospital by Sancha Singh. These contradictions in the statement of both the witnesses show that the said incident was not happened in such a manner as it was stated by the prosecution. c) That PW3 Sancha Singh has stated that he was got medically examined at Tanakpur after two days of the said incident. However, the medical report Ext.Ka-4 of the injured Sancha Singh shows that he was medically examined on 4.1.1996 at 11:45 AM, which creates a doubt in the prosecution story and shows that the incident was not happened in such a manner as it was stated by the prosecution. d) As per the statement of medical officer, injury no.1 of Himanand Sharma was transverse from right ear to left ear and it could not be caused from front side. However, PW1 Himanand Sharma has stated that the appellant-accused caused injury to him from front side. Thus, this statement of PW1 does not get corroboration from the medical evidence. e) That the medical officer has opined that the injured was under the state of intoxication and he opined these injures were possible to come if the person, in drunken state, fell down on a sharp stone. This fact also shows that the alleged incident was not happened in such a manner as it was stated by the prosecution. 9 17. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and the facts and circumstances of the case, 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 appellants-accused 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 evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 18. For the foregoing reasons, the appeal is allowed. The judgment and order dated 30.11.1999 passed by Additional Sessions Judge, Haldwani, District Nainital in Sessions Trial No.193 of 1996, State v. Walter Willium, is hereby set aside. Consequently, the conviction and sentence, as directed by the court below, which has been discussed above, is also set aside. Appellant is on bail. He need not surrender unless required in any other case. 19. Let the lower court record be sent back. (Dharam Veer, J.) 8.10.2010 RG