IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 412 of 2003 State of Uttaranchal …..…Appellant. Versus Roshan Lal and others. …….Respondents. With Government Appeal No. 33 of 2009 State of Uttarakhand. …..…Appellant. Versus Roshan Lal and another. …….Respondents. With Government Appeal No. 34 of 2009 State of Uttarakhand. …..…Appellant. Versus Pawan Kumar and another. …….Respondents. Hon’ble Alok Singh, J. Mr. S.S. Adhikari, learned AGA for the State of Uttarakhand / appellants. Mr. B.S. Parihar, learned counsel for the respondents. Vide order dated 30.06.2009 this court directed not to list Government Appeal No. 34 of 2009 and it may struck off from the record of the Registry, hence, there is no need to pass any order in GA No. 34 of 2009. Government Appeal No. 33 of 2009 is filed for enhancement of the sentence under sections 323, 324, 504 read with 34 IPC. Government Appeal no. 412 of 2003 is 2 filed by the State against the acquittal of respondent no. 2 and 4. With the consent of the parties, Government Appeal No. 412 of 2003 is taken up as a leading appeal. Brief facts of the present case are that a report was lodged by Ved Prakash Sharma on 24.04.1999 in Police Station – Pathari, District – Haridwar contending that on 23.04.1999 while his son Pawan Kumar was coming back to his home from the field accused Roshan Lal, Mahendra Kumar, Pawan Kumar and Vicky stopped him and said what did you think of yourself and started assaulting Pawan Kumar with intention to kill him with Iron Rod, Lathi and Gandasi. Pawan Kumar raised alarm and hearing his alarm Bhupeshwar Dutt, Durga Das and Raj Kumar reached on the spot, saw the incident and rescued Pawan Kumar from the accused. It was further contended in the report that thinking that Pawan Kumar has died accused escaped from the spot. FIR / Chik report as case crime no. 44 of 1999 was registered under sections 323, 307, 504 IPC with Police Station – Pathari, District – Haridwar. After completing the investigation chargesheet was submitted under sections 307, 323, 504 IPC. Learned ACJM, Haridwar vide its order dated 31.01.2000 committed the case for trial to the Sessions Judge, Haridwar, which was ultimately transferred to the Additional Sessions Judge, Hardwar. From the side of the prosecution informant - Ved Prakash was examined as PW 1, Pawan Kumar – injured son of Ved Prakash was examined as PW 2, Raj Kumar son of Amolak Ram was examined as PW 3. Investigating 3 Officer – Shiv Kumar Tyagi was examined as PW 4. Dr. K.K. Karoli was examined as PW 5. Dr. K.K. Karoli – PW 5 found following injuries in the medical examination of injured Pawan Kumar: “i. Incised wound 7 cm X 1.5 cm X bone deep right side head 10 cm above right ear obliquely placed with bleeding present, kept under observation with clean cut by sharp edged with bleeding nose and head. Kept under observation. ii. Incised wound 1.0 cm X 0.4 cm on lateral of nose 3 cm above the tip of nose tattooing with swelling area 5 X 4.0 cm, kept under observation with bleeding present, clean cut sharp edged, advised x- ray with reddish in color with pain, difficulty in the movement. iii. Contusion 6.0 cm X 3.0 cm on lateral aspect of right upper arm, 5.0 cm above right elbow joint with reddish in color, complaining pain, difficult in the movement. iv. Contusion 7 cm. X 3 cm on lateral aspect of left knee joint with pain, reddish in colour, complaining of movement. v. Contusion 3 cm. X 1.5 cm on medial aspect of right leg, 10 cm above medial mellow with pain, reddish in color, complaining of movement. vi. Contusion 5 cm. X 3 cm. on bade of elbow joint, complaining pain and reddish in color, complaining of difficult in movement. 4 vii. Abrasion 1.0 cm X 0.5 cm on tip of left little finger with blood clotting present viii. C/o pain on chest, complaining the difficulty on the part of the abdomen.” In the opinion of Doctor injuries no. 1 and 2 were caused by sharp edge weapon while rest of the injuries were caused by the blunt object. There is supplementary medical report which shows that nasal bone also was found fractured. Learned Session Judge after examining the entire records and statements of prosecution witnesses returned the finding of fact that injured Pawan Kumar had no injury caused by iron rod. Hence, by extending the benefit of doubt to the respondent nos. 2 and 4 herein acquitted them. Learned Trial Court found respondent nos. 1 and 3 guilty of offence under section 323/34, 324/34 and 504 IPC and awarded sentence for the period undergone by them and also awarded fine of Rs. 2000 each for offence under section 324, Rs. 1000 each under section 323 and Rs. 1000/- each under section 504 IPC. It was further provided that in the event of failure of payment of fine they would undergo simple imprisonment of 15 days. Learned Sessions Judge also directed half of the payment of the fine shall be paid to the injured Pawan Kumar. Heard learned counsels for the parties and perused the record. PW 1 in his examination in chief has stated on oath that when he reached on the spot then Raj Kumar, 5 Bhupendra, Durga Das told him about the incident. In the first line of cross examination he stated that he was not present on the spot at the time of incident and reached after the incident. In view of this PW 1 informant cannot be eye witness and whatever he has mentioned in the report was written on the basis of story told to him by Raj Kumar, Bhupendra and Durga Das. However, PW 2 injured corroborated the prosecution story. PW 3 Raj Kumar stated on oath that when he reached on the spot he saw accused persons were doing maar peet with the injured Pawan Kumar. He further stated that on the date of incident i.e. on 23.04.1999 they took Pawan to the hospital. After getting Pawan Kumar admitted in the hospital, they came back to the village at about 4.00 p.m. on the same day. In view of this statement of PW 3 there is no explanation as to why report was not lodged promptly on the same day. It is admitted fact that report was lodged on 24.04.1999 i.e. next day at about 9.45 p.m., that too by the father of the accused who is not a eye witness. Statement of PW 3 does not inspire confidence. His presence on the spot is doubtful. He seems to be chance witness. Statements of PW 2 – injured are not supported either by PW1 or by PW3. In view of the fact that there is no eye witness of the incident and PW 1 reached on the spot after the incident. PW 2 did not disclose who has caused which injury and who was armed with gandasi, who was armed with lathi and who was armed with iron rod. In my opinion learned Sessions Judge has committed no illegality or perversity in acquitting the accused / respondent nos. 2 and 4 by giving benefit of doubt. Hence, appeal against 6 the acquittal is liable to be dismissed. Government Appeal No. 412 of 2003 is hereby dismissed. After perusing the entire record and after holding that FIR was lodged with unexplained delay of more than 22 hours, I am of the view that benefit of doubt ought to have been extended to respondent nos. 1 and 3 also. However, they have not filed any appeal and accepted the sentence for the period undergone. Hence, I feel in peculiar facts and circumstances of the present case no enhancement would be justified. Hence, Government Appeal No. 33 of 2009 is dismissed. (Alok Singh, J.) 19.11.2009 SKS