HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1221 OF 2001 (OLD NO.1630 OF 1990) 1. Kundan Singh, 2. Chandan Singh, S/o Madan Singh, 3. Yusuf S/o Laldeen, All residents of Baurkhatta, P.S. Lalkuan, District Nainital. ……… Appellants Versus State ……… Respondent Dated: 7th August, 2008 Sri Prem Kaushal, Adv. holding brief of Sri R.S. Sammal, learned counsel for the appellants. Sri M.A. Khan, learned Brief Holder for the State. HON. DHARAM VEER, J. This appeal preferred, under section 374(2) of the Criminal Procedure Code, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 20.8.1990 passed by Additional Sessions Judge, Nainital in Sessions Trial No.56/1989, State Vs. Kundan Singh & others, whereby the learned Additional Sessions Judge has convicted the appellant-accused persons u/s 342, 323 and 308 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) by which the learned Additional Sessions Judge has convicted the accused appellants for the offence punishable u/s 342, 323 and 308 I.P.C. and convicted them to undergo rigorous imprisonment for a period of three months’ u/s 342 I.P.C., three months’ R.I. u/s 323 I.P.C. and four years’ R.I. u/s 308 I.P.C. It was also directed that all these sentences shall run concurrently. 2. I have heard Sri Prem Kaushal, Adv. holding brief of Sri R.S. Sammal, learned counsel for the appellants and Sri M.A. Khan, learned Brief Holder for the State. 2 3. In brief the prosecution case is that P.W.1 Deep Chandra Upreti and P.W.2 Hira Singh- complainant were on a patrolling duty in the Dolly Forest Range on 26.07.1988. When they were coming back from the forest at about 7:00 P.M. on 26.7.1988 then from the north side of the Baur Khatta, at Chauraha, four persons, including the appellant/accused, namely-Kundan Singh, Chandan Singh, Yusuf and one another person Nain Singh had surrounded them and after tying them with the rope they had taken them about 4 kms. to the eastern direction and near the bushes of bamboo the appellant/accused persons along with one another Nain Singh had caused the injuries to Deep Chandra and Hira Singh with PATAL & LATHIES. Deep Chandra got seriously injured with these injuries inflicted by the assailants but the complainant Hira Singh had escaped from there and he informed the matter to the forest staff of Baur Khatta. Then the officials of the Forest Department had searched Deep Chandra-watcher in the forest and found him in injured condition who was unconscious also at that time and was taken to Civil Hospital, Haldwani. At the first phase of the incident the appellant-accused persons and Nain Singh had forcibly took signatures of Deep Chandra on some blank papers. Annexing the medical report, Hira Singh has lodged a report Ext. Ka-1 in the Police Station Lalkuan. The injury report which was submitted along with the F.I.R. is Ext.Ka-2. On the basis of this F.I.R., Chik F.I.R. Ext. Ka-5 was prepared by the Head Moharir Sri Chandra Kiran Tyagi and on 27.07.1988 at 7:35 A.M a Case Crime No.205/88 in the Police Station Lalkuan under section 342, 323 & 308 I.P.C. and 26 of the Forest Act, was registered. The entry was made in the G.D. by the Head Moharir, a copy of the G.D. is Ext.Ka-6. The investigation of this case was entrusted to S.I. G.S. Bisht. During the course of the investigation, the I.O. had prepared a site-plan of the place of occurrence i.e. Ext.Ka-3 and he also recorded the statements of the witnesses. After completing the investigation, he had submitted the charge sheet Ext.Ka-4, against the appellant/ 3 accused persons-Kundan Singh, Chandan Singh and Yusuf u/s 308 and 323 I.P.C. No charge sheet was filed against the co- accused-Nain Singh. 4. On 13.02.1989 the then Munsif Magistrate, Haldwani committed the case to the Court of Sessions after complying with the provisions of Section 207 Cr.P.C . 5. Learned Sessions Judge, Nainital transferred the trial to the court of Additional Sessions Judge for its hearing and disposal according to law. 6. Learned Special Judge/Additional Sessions Judge, Nainital on 20.04.1989 framed the charge u/s 342, 308 and 323 I.P.C. against the appellant-accused persons-Kundan Singh, Chandan Singh and Yusuf. The charge was read over and explained to the appellant-accused persons, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Deep Chandra Upreti (injured), P.W.2 Hira Singh (complainant), P.W.3 Hari Dutt Paladia (scriber of the report), P.W.4 Dr. Akhilesh Agarwal (who medically examined Deep Chandra), P.W.5 S.I. G.S. Bisht (Investigating Officer), who had investigated the said crime. 8. After that the statements of the appellant-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to the accused/appellant in question form, who denied the allegations made against them and stated that they have been falsely implicated in the crime. In reply to question no. 12 the accused Kundan Singh has stated that the forest officials were used to demand ghee, milk and khoya from them. As they had refused to fulfill their demands, that is why he has been falsely implicated in the crime. 4 9. After appreciating the entire material available on record and after hearing the learned counsel for the parties, the learned Additional Sessions Judge, Nainital, vide his judgment and order dated 20.o8.1990 has convicted and sentenced the accused-appellants as discussed above. Feeling aggrieved with the said judgment and order dated 20.8.1990, the accused- appellants have preferred the present appeal. 10. Before further discussions, it is pertinent to mention the injuries found on the person of P.W.1 Deep Chandra (injured), who was medically examined by P.W.4 Dr. Akhilesh Agarwal on 27.07.1988 at 2:25 A.M at Civil Hospital, Haldwani, which is reproduced as under: - (i) Lacerated wound 6cm x .5 cm x skin deep on the left side of head 8cm above from left eyebrow. (ii) Lacerated wound ¼ cm x ¼ cm on the left side of shoulder, 5cm away from left clavicle. (iii) Abrasion 3cm x 2cm on the left upper arm 2 cm above the elbow joint on the lateral aspect. (iv) Contusion 30cm x 28cm on the back of the chest in the scapular region around above. (v) Contusion 7cm x 1cm on the left side of back of chest 4 cm below the injury no.4. (vi) Complain of pain in right shoulder advised for X- ray. It was opined by the doctor that all the injuries were simple and caused by some blunt object. Injury no.6 was kept under observation. X-Ray advised. 11. P.W.4 is Dr. Akhilesh Agarwal, Medical Officer who was examined by the prosecution. He has stated that on 27.07.1988, he was posted as Medical Officer at Civil Hospital, Haldwani. On that day at 2:25 A.M, Deep Chandra was medically examined by him and he found the above said injuries on his 5 body. He has further opined that the injuries no.1 to 5 were simple in nature and injury no.6 was kept under observation and advised for X-Ray. It was further opined that these injuries could be caused by some hard blunt object and these injuries could be caused on that day at about 8:00 P.M and also could be caused at 7:00 P.M. in the night. At the time of the medical examination, he has prepared the injury report i.e. Ext.Ka-2. 12. Further to prove its case, prosecution has examined P.W.1 Deep Chandra Upreti-injured, who has stated that on 26.07.1988 at about 7:00 P.M., he along with P.W.2 Hira Singh was on the patrolling duty in the forests. When they have reached towards the east of the Baur Khatta, then the appellant- accused Kundan Singh, Chandan Singh and Yusuf along with Nain Singh had surrounded them and after tying them with the ropes they had taken them in the forest about 4 kms. east near the bushes of bamboo and there they had caused the injuries to him with PATAL and DANDAS. Hira Singh had run away from the place of occurrence. After 4-5 hours Hira Singh had come back along with other staff namely-Hari Datt, Rama Kant and Bishan Singh-tractor driver and he was taken to the Haldwani Hospital where he was medically examined. The appellants- accused has also taken his signatures forcibly on some blank papers. He has further stated that prior to this incident he had lodged complaints against Kundan Singh and Chandan Singh separately for the cutting of woods in the forest and grazing the animals in the plantation area. That is why the accused- appellants feel enmity with him. The evidence of this witness gets corroboration from the evidence of P.W.2 Hira Singh (complainant) and P.W.3 Hari Datt Paladia - the scriber of the report. This witness had written a report on the dictation of P.W.2 Hira Singh and proved the report Ext.Ka-1. 13. P.W.5 is S.I. G.S. Bist is the Investigating Officer of the case who had stated that on 27.07.1988 he was posted at the 6 Police Station, Lalkuan. The investigation of this case was entrusted to him on 27.07.1988. During the course of investigation, he has recorded the statements of the witnesses and has prepared the site-plan Ext.Ka-3. After completing the investigation, he filed the charge sheet Ext. Ka-4 against the accused/appellants. He has further stated that Head Moharir had prepared the Chik F.I.R. Ext.Ka-5 and an entry was also made in the G.D. A copy of the G.D. is Ext.Ka-6. 14. After that the statements of the appellant-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to the accused/appellant in question form, who denied the allegations made against them and stated that they have been falsely implicated in the crime. In reply to question no. 12 the accused Kundan Singh has stated that the forest officials were used to demand ghee, milk and khoya from them. As they had refused to fulfill their demands, that is why he has been falsely implicated in the crime. 15. Learned counsel for the accused/appellants has submitted that on the basis of the evidence discussed above the prosecution has failed to prove its case against the accused/appellants beyond reasonable doubt. This Court is convinced with the arguments of the learned counsel for the accused/appellants. From the evidence discussed above and after examining all the evidence available on the record and hearing the learned counsel for both the parties, the prosecution has not proved its case beyond reasonable doubt against the accused/appellants for the following reasons. :- i. That as per the First Information Report and the evidence of the prosecution witnesses P.W.1 Deep Chand Upreti and P.W.2 Hira Singh, the injuries was caused to Deep Chandra by the assailants with PATAL and DANDAS but there is no injury of the PATAL, as 7 there is no incised wound found by the doctor and mentioned in the injury report. On perusal of the record, the injury report as well as the statements of the injured P.W.1 Deep Chandra, it comes out that in the F.I.R. it is mentioned that the injury was caused to Deep Chandra by the appellants-accused with PATAL and DANDAS but in the injury report Ext. Ka-3 there is no incised wound is found and mentioned. PATAL is a sharp edged weapon, but no incised wound is found on the body of the injured Deep Chand, it creates a doubt in the prosecution case and even the Medical Officer P.W.4 Dr. Akhilesh Agarwal has stated that the injuries were caused by some blunt object which clearly shows that there is no injury of PATAL present in the body of Deep Chandra. Hence, on the basis of these facts the oral evidence is not corroborated by the medical evidence, which creates a doubt in the prosecution case. ii. That it was also averted in the statement of P.W.2 Hira Singh that he was also beaten by the LATHIES but Hira Singh was not medically examined and his injury report was not produced. It also creates doubt in the prosecution case. iii. There are no injuries like tying the hands with a rope. As Deep Chandra-injured has stated that his hands were tied with the ropes and he was taken 4 kms. towards east with the same condition. In the absence of the injuries of tying the hands with the ropes in the hands of Deep Chandra-injured also creates doubt in the prosecution case. iv. Further the F.I.R. was lodged against four persons appellant-accused Kundan Singh, Chandan Singh, Yusuf and one another accused Nain Singh but after the investigation, the Investigating Officer has not submitted any charge sheet against Nain Singh which 8 also creates doubt in the contents mentioned in the F.I.R. v. As per the record, the incident is said to have been taken place on 26.07.1988 at 7:00 P.M. The distance of the place of occurrence is shown 7 kms. from the Police Station and the F.I.R. was lodged after about 12 hours. The injured-Deep Chandra was taken to the hospital in a tractor trolley and was examined by the Medical Officer on 27.07.1988 at 2:25 A.M at the Civil Hospital Haldwani. The Civil Hospital at Haldwani is adjacent to the Police Station Haldwani, but by not lodging the F.I.R. at once at Haldwani Police Station also creates a doubt in the prosecution case. 16. For the reasons discussed above it is clear that the prosecution has not proved its case against accused-appellants beyond reasonable doubt for the charges levelled against each of the accused persons, and the appellant-accused persons are, therefore, entitled for the benefit of doubt. 17. After considering all the facts and circumstances as discussed above and on reappraisal of the evidence on record, the judgment of the trial court is not justified and correct as per the evidence available in the record. The Trial Court has erred in convicting and sentencing the accused/appellant vide his impugned judgment and order dated 20.08.1990 on the basis of the evidence available on the record. 18. This appeal was received by transfer from Allahabad High Court for its disposal under Section 35 of U.P. Reorganization Act 2000. This Court on 25.06.2003 issued notices against the appellants. As per the report sent by the Chief Judicial Magistrate, Nainital dated 21.09.2004 the appellant, namely, Yusuf is reported to be died. In this regard, the Chief Judicial Magistrate has annexed report of Police Station Lalkuan that 9 the accused/ appellant Yusuf S/o Laldeen has been died one year before due to long ailment, hence the appeal preferred by appellant Yusuf stands abated. 19. Accordingly, the appeal is allowed. The judgment and order dated 20.8.1990, passed by Additional Sessions Judge, Nainital in Sessions Trail no. 56 of 1989, is hereby set aside. The appellant-accused Kundan Singh and Chandan Singh are acquitted from the charges levelled against them. The accused/appellants Kundan Singh and Chandan Singh are on bail, they need not to surrender. Their bail-bonds are cancelled and sureties are discharged. 20. Let a copy of this judgment, alongwith the record of the Court below be sent back to the Trial Court. (Dharam Veer, J.) 07.08.2008 NCM