IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL No. 881 of 2001 (Old No. 2693/2000) 1. Ram Prasad 2. Om Prakash (Since deceased) 3. Sunder Lal 4. Chhote Lal (Since deceased) All R/o Rampura, Ward No. 11, Rudrapur, District Udham Singh Nagar. .…. Appellants Versus State of Uttar Pradesh (Now, State of Uttarakhand) .… Respondent January 6, 2011 Mr. Harsh Pal Sekhon, Advocate, present for the appellants. Mr. S.S. Adhikari, AGA, present for the State. HON’BLE PRAFULLA C. PANT, J. This appeal is directed against the judgment and order dated 18.9.2000 passed by the Additional Sessions Judge/Special Judge (C.B.I.), Nainital in Sessions Trial No. 479 of 1996, whereby the said court has convicted the appellant Chhote Lal under Section 307 IPC and appellants Ram Prasad, Om Prakash and Sunder Lal under Section 307 read with Section 34 IPC. Each of the convicts (appellants) has been sentenced to rigorous imprisonment for a period of five years and directed to pay fine of ` 1,000/-. 2. Heard learned Counsel for the parties and perused the trial court record. 3. The prosecution story, in brief, is that on 19.7.1995, PW2 Heera Lal (injured) was sleeping in his house, situated in Mohalla Rampura within the limits of Police Station Rudrapur. At about 00.30 hours, accused 2 appellants Chhote Lal, Ram Prasad, Om Prakash and Sunder Lal, armed with swords and lathis, came there and assaulted PW2 Heera Lal with swords and lathis. After injuring Heera Lal, the accused appellants left him. The First Information Report of this incident was got scribed by PW5 Hari Om, and given at the Police Station Rudrapur by one Sukhlal. On the basis of said report, Crime No. 578/95, relating to offence punishable under Section 307 IPC, was registered against the accused appellants Chhote Lal, Ram Prasad, Om Prakash and Sunder Lal. 4. Injuries, on the person of Heera Lal (PW2), were examined by PW1 Dr. P.S. Kuarbi, Medical Officer of Primary Health Centre, Kiccha. After investigation, the Investigating Officer, Sub-Inspector Vijay Kumar (PW4) submitted chargesheet (Ex. A-6) against all the four accused. 5. On receipt of the chargesheet, the Judicial Magistrate, Rudrapur, after giving necessary copies of the documents to the accused as required under Section 207 CrPC, committed the case to the Court of Sessions for trial. (Earlier, Rudrapur was part of District Nainital, now part of District Udham Singh Nagar.) 6. The trial court, after hearing the parties, framed the charge of offence punishable under Section 307 read with Section 34 IPC against the accused appellants Ram Prasad, Om Prakash and Sunder Lal. Separate charge punishable under Section 307 IPC was framed against the accused appellant Chhote Lal. All of them pleaded not guilty and claimed to be tried. 3 7. On this, prosecution got examined PW1 Dr. P.S. Kuarbi, PW2 Heera Lal (injured), PW3 Pooran Lal, PW4 Inspector Vijay Kumar (Investigating Officer) and PW5 Hari Om, scribe of the FIR. 8. The oral and documentary evidence were put to the accused under Section 313 CrPC, in reply to which, they alleged that they have falsely been implicated. However, no evidence in defence was adduced. 9. The trial court, after hearing the parties, found that prosecution has successfully proved the charge of offence punishable under Section 307 IPC against the accused appellant Chhote Lal, and that of one punishable under Section 307 read with Section 34 IPC against rest of the accused appellants. After hearing on the sentence, each of the convicts was sentenced to rigorous imprisonment for a period of five years and directed to pay fine of ` 1000/-. 10. Aggrieved by the said judgment and order dated 18.9.2000 passed by the Additional Sessions Judge/Special Judge (C.B.I.), Nainital, this appeal was preferred by the convicts before the Allahabad High Court on 8.10.2000, where it was admitted on 19.10.2000. The appeal is received by this Court under Section 35 of the U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000) for its disposal. 11. Before further discussion, this Court thinks it just and proper to mention the injuries, suffered by PW2 Heera Lal in the alleged incident, recorded by PW1 Dr. P.S. Kuarbi. The same are being reproduced below:- 4 (1) One incised wound on left side of forehead. 2 cm above left eyebrow. Size 6 cm. Transverse x 1.5 cm vertical in midpoint x bone deep, tailing off to left lateral side. Red in colour. Bleeding Present. (2) One incised wound on left side of face. 1 cm above outer angle of left eye. Size 2.5 cm. Transverse x 0.5 cm vertical x muscle deep, tailing off to left lateral side. Red in colour. Bleeding Present. (3) One incised wound. Size 2 cm. Vertical x 0.5 cm transverse x muscle deep, on dorsal surface of metacarpophalangeal joint of 3rd finger of right hand. Red in colour. Bleeding Present. Tailing off to wrist side. (4) One lacerated wound on dorsal surface of middle part of right 4th finger. Size 4 cm. Vertical x 0.5 cm. Transverse x bone deep. Red in colour. Bleeding Present. 12. PW1 Dr. P.S. Kuarbi has opined in his report (Ex. A-1) that injury no. (1), (2) & (3) appear to have been caused by sharp-edged object, while injury no. (4) appears to have been caused by a blunt object. 13. PW2 Heera Lal is the injured eyewitness, who has stated that on 19.7.1995, soon after midnight, when he was sleeping outside his house, suddenly accused appellants Om Prakash, Ram Prasad, Sunder Lal caught hold of him and accused appellant Chhote Lal gave a blow with a sword. He has further stated that he was beaten with lathis, dandas and assaulted by sword. He has further stated that accused appellants Om Prakash, Ram 5 Prasad and Sunder Lal caught held him (PW2), while accused appellant Chhote Lal assaulted him with sword. 14. From the statement of PW2 Heera Lal, which is corroborated by the medical evidence, it appears true that Chhote Lal has caused incised wounds to him (Heera Lal) to kill him. However, as far as the accused appellants Ram Prasad and Sunder Lal are concerned, the role assigned to them by the witness appears to be doubtful, as there is no need of catching hold of a sleeping person in order to assault him. Sword is said to be in the hands of Chhote Lal (since deceased). Apart from this, on close scrutiny of statement of Heera Lal (PW2), this Court finds that the witness is not sure about the role of Ram Prasad, Sunder Lal and Om Prakash. He says in his cross-examination that all the three assaulted him with lathis. There is only one injury of lathi. If accused appellants Sunder Lal and Ram Prasad caught held him to facilitate Chhote Lal to assault with sword, then it is difficult to say that they assaulted with lathis. There is no other witness of the incident to throw light on the alleged incident. 15. In the above circumstances, in the opinion of this Court, it cannot be said that prosecution has successfully proved that accused appellants Ram Prasad and Sunder Lal, with common intention with Chhote Lal, attempted to commit murder of Heera Lal. That being so, it cannot be said that the charge of offence punishable under Section 307 read with Section 34 IPC against the appellants Ram Prasad and Sunder Lal is proved, beyond reasonable doubt. 16. Therefore, the appeal of the accused appellants Ram Prasad and Sunder Lal deserves to be allowed giving them benefit of reasonable doubt. Accordingly, the appeal 6 of the two accused appellants, namely, Ram Prasad and Sunder Lal is allowed. Their conviction and sentence recorded by the trial court in the impugned judgment and order dated 18.9.2000 is set aside. They are in jail. They shall be set at liberty, if not required in any other case. 17. As far as the appeal of accused appellants Om Prakash and Chhote Lal is concerned, it has come on the record that they have died. Hence, their appeal was already abated vide order dated 11.9.2009 passed by this Court. 18. Let a copy of this judgment and order be sent to the Superintendent of Jail concerned, and the trial court record be sent back. (Prafulla C. Pant, J.) 6.1.2011 PRABODH