IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.779 OF 2001 (OLD NO.2026/1991) Kailash Chandra Kandpal S/o Sri Prasottam Kandpal R/o Sipahidhar, P.S. Tallital, District-Nainital ……… Appellant Versus The State ……… Respondent Dated: December 24, 2008 Sri S.C. Bhatt, learned amicus curiae for the appellant Sri Prabhakar Joshi, learned brief holder 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 11.10.1991 passed by IIIrd Additional Sessions Judge, Nainital in Sessions Trial No.127/1990, State Vs. Kailash Chandra Kandpal, whereby the learned IIIrd Additional Sessions Judge, has convicted the appellant/accused u/Ss 394 and 397 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC) and was sentenced to three years’ R.I. u/s 394 IPC and seven years’ R.I. u/s 397 IPC. However, the appellant/accused was acquitted of the charge levelled against him u/s 411 IPC. 2. I have heard Sri S.C. Bhatt, learned amicus curiae for the appellant and Sri Prabhakar Joshi, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 18.3.1989, Umesh Chandra Pant (P.W.1) lodged the F.I.R. at Police Station Mallital, Nainital with the averment that on 15.3.1989, Ganesh Dutt Kandpal was sent to Nainital from Vijaypur (Kanda), Almora to hand over a letter in the Office of Deputy Director, Education, Nainital and Rs.10,000/- was also given to him for giving this amount to Sri Kishan Chandra Joshi, who was his (Umesh Chandra Pant) relative. He has further averted that on 17.3.1989 he got the information that Ganesh Dutt Kandpal is admitted in the hospital in injured condition. On this information, he along with Daya Krishan Kandpal reached Mallital, Nainital on 18.3.1989. There they enquired at B.D. Pandey Hospital and they found Ganesh Dutt Kandpal admitted in the emergency ward. They talked with Ganesh Dutt Kandpal and he told him that on 15.3.1989 at about 5:30 P:M in the evening he had reached at Tallital (Nainital) bus station and there he met the appellant/accused Kailash Chandra Kandpal along with two other persons. Kailash Chandra Kandpal was known to him prior to the said incident and he passed about two and a half hours with him and his two companions. At about 8 P:M in the night the appellant/accused and his two companions caught hold him near Balika Mandir and robbed Rs.10,000/-, a pant and official letter of the college. They also robbed Rs.70/- from his pocket and wrist watch from him. After that the appellant/accused and his two other companions ran away from the place of occurrence. He (Ganesh Dutt Kandpal) does not know who has taken him to the hospital. With the same averments, Umesh Chandra Pant (P.W.1) has lodged the F.I.R. on 18.3.1989 at 5:30 P:M at Police Station Mallital, Naintal. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. was prepared by Head Mohirror Mohan Giri. That Chik F.I.R. is Ext.Ka-3. The necessary entry was also made in the G.D., carbon copy of which is Ext.Ka-4. Investigation of this case was entrusted to S.S.I. K.S. Hyanki. Injured Ganesh was medically examined by Dr. K.K. Bhatt (P.W.5) on 16.3.1989 at 7:35 A:M and the injury report was prepared by him i.e. Ext.Ka-5. X-ray of the injured was also conducted and the X-ray report is Ext.Ka-6. During the course of investigation, the Investigation Officer took the bloodstained clothes of the injured and the FARD was prepared i.e. Ext.Ka-2. Appellant/accused Kailash Chandra Kandpal was arrested by the police on 29.3.1989 and from his possession Rs.1,520/-, a pant, two photostat copies of the high school examination of Km. Jeevanti Devi and one passbook of District Cooperative Bank was said to be recovered. Thereafter the FARD was prepared at the spot i.e. Ext.Ka-7. On the same day i.e. on 29.3.1989, the I.O. also recovered the Pine wood and bloodstained pieces of the stone and the FARD was prepared i.e. Ext.Ka-8. The I.O. also prepared the site-plan i.e. Ext.Ka-9 of the place from where a pant and pieces of stone and other items were recovered. The I.O. prepared the site-plan i.e. Ext.Ka-10 of the place from where the accused was arrested and also prepared the site-plan i.e. Ext.Ka-13 of the place of occurrence where the incident was said to be taken place. Identification of the recovered pant was also done and the identification memo i.e. Ext.Ka-12 was prepared by P.W.10 Sri Rajendra Lal Sah, Sub Divisional Magistrate, Nainital. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation he filed the charge sheet against the appellant/accused u/Ss 394 and 411 IPC. That charge sheet is Ext.Ka-11. 4. Learned Chief Judicial Magistrate, Nainital committed the case to the Court of Sessions on 4.5.1990. 5. It appears from record that the case was transferred to IV Additional Sessions Judge, Nainital for disposal according to law. 6. On 5.7.1990, learned IV Addl. Sessions Judge, Nainital, framed the charge of offence punishable u/Ss 394 and 411 IPC against the accused/appellant. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. After that the case was transferred to III Addl. Sessions Judge, Nainital, for disposal according to law. On 29.4.1991, learned III Addl. Sessions Judge, Nainital framed the charge u/s 397 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. 7. In order to prove its case, the prosecution has examined P.W.1 Umesh Chandra Pant-complainant of the case, P.W.2 Ganesh Dutt Kandpal-victim, P.W.3 Head Constable Mohan Giri, who has prepared the Chik F.I.R. and made necessary entry in the G.D., P.W.4 Constable Badri Singh-witness of the arrest of the appellant/accused, P.W.5 Dr. K.K. Bhatt, who has done the medical examination of the injured Ganesh Dutt Kandpal (P.W.2), P.W.6 Dr. J.P. Bhatt, who has prepared the X-ray report after conducting the X-ray of the injured, P.W.7 Mohan Joshi-witness of the arrest of the appellant/accused, P.W.8 Sub Inspector Arvind Singh, who has arrested the appellant/accused on 29.3.1989, P.W.9 S.S.I. Kishan Singh Hyanki, Investigating Officer of the case, P.W.10 Rajendra Lal Sah, S.D.M., Nainital, before whom the identification proceedings of the pant have taken place. 8. After that the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, in defence, he has not produced any oral or documentary evidence. 9. After appreciating the entire evidence available on record and hearing learned counsel for the parties, leaned IIIrd Additional Sessions Judge, Nainital, convicted and sentenced the appellant/accused Kailash Chandra Kandpal as above. Against the said judgment and order dated 11.10.1991, the appellant/accused has preferred the present appeal. 10. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Ganesh Prasad, who was medically examined by Dr. K.K. Bhatt (P.W.5) on 16.3.1989 at 7:35 A:M and he has found the following injuries on his body, which are reproduced as under:- (i) Multiple lacerated wound 5cm x 2cm area over middle and outer third of right eyebrow and upper eyelid. Tissue badly lacerated. Wound is bone deep. (ii) Contusion whole of the right eye which is black (eye cannot be opened). (iii) Lacerated wound 3cm x 1cm x bone deep, 1cm above from injury no.1. (iv) Lacerated wound 3cm x 1cm x muscle deep, 1cm from injury no.3 near the hair line on right forehead outer aspect. (v) Lacerated wound 1.5cm x 1/2cm x muscle deep on the root of nose. (vi) Lacerated wound 1cm x 1cm x muscle deep 2.5 cm above the medial end of left eyebrow. (vii) Lacerated wound semicircular 3cm x 1/2cm over the right chick. (viii) Lacerated wound 4cm x 1/2cm x bone deep 2cm below and towards left side of chin. (ix) Traumatic contusion over whole of right side of face dark red in colour. (x) Lacerated wound 2cm x 1/2cm x muscle deep 1cm in front of right tragus. (xi) In the lower jaw six front teeth are loose and bleeding present in the socked and are distorted. (xii) Contusion whole of the mandibular region dark red in colour (xiii) Multiple abrasions over the face. (xiv) Traumatic contusion extending from base of Ist phalynx of middle finger to middle of hand, multiple abrasions over the dorsal aspect of injured area in left arm. Inference:- (i) All injuries caused by some blunt object. (ii) Injuries are about half a day in duration. (iii) Patient kept under observation and admitted in indoor. Advised – (1) X-ray Skull->AP, Lateral view (2) X- ray of left forearm ->AP, Lateral view (iv) Nature of all injuries kept under observation -Surgeon informed. -Police informed. 11. To prove the above-noted injury report, the prosecution has examined Dr. K.K. Bhatt (P.W.5), who has stated that on 16.3.1989, he was posted as Medical Officer at B.D. Pandey Hospital. On that day at about 7:35 A:M he has done the medical examination of the injured Ganesh Prasad who was taken to the hospital by Ramesh Prasad S/o Sri Mohan Ram R/o Balika Mandir, Nainital and he has found the above-noted injuries on his body. He further stated that he has recorded these injuries in the accidental register and he has filed a copy of this register i.e. Ext.Ka-5. In the cross-examination he has stated that when the injured was brought before him in the hospital, the injured was in sense. He has further stated that the person who brought injured to the hospital told him that he has taken injured from the road and from this statement he has recorded the injuries in the accidental register. **et:c ftl le; esjs ikl yk;k x;k gks’k eas FkkA tks vkneh bldks ysdj vk;k Fkk mUgksaus ;g crk;k fd et:c lM+d ij iM+k gqvk Fkk vkSj mlds blh c;ku ds vuqlkj pksVksa dk ijh{k.k ,sDlhMsaVy jftLVj esa vafdr fd;k x;k FkkA** He has further stated that all the above injuries could be possible if the injured would fell down after taking liquor. **vxj et:c 'kjkc ihdj fxj tk;sa rks mldh ,slh pksVsa vk ldrh gSaA** 12. After that the X-ray of the injured was also conducted on 16.3.1989 and the X-ray report was prepared by Dr. J.P. Bhatt (P.W.6). The X-ray report is Ext.Ka-6, which is reproduced as under:- (a) X-ray lower half face (mandible) AP, lateral skull AP and lateral and extra oral X-ray right side mandible lateral oblique. Fracture of the body of the mandible on right side seen. (b) X-ray left forearm with wrist AP, lateral fracture of the styloid process of left ulna and 4th and 5th metacarpal seen. 13. To prove the above-noted X-ray report, the prosecution has examined Dr. J.P. Bhatt (P.W.6), who has stated that on 16.3.1989 he was posted as Radiologist. He has proved the above-noted X-ray report which is Ext.Ka-6. 14.. Further to prove its case, the prosecution has examined Umesh Chandra Pant (P.W.1), who has stated that on 15.3.1989, he had sent Ganesh Dutt Kandpal to Nainital to give a letter in the Office of Deputy Director, Education, Nainital and Rs.10,000/- was also given to him to hand over the money to Kishan Chand Joshi at Shervani Lodge, Nainital. On 17.3.1989, he got the information that Ganesh Dutt Kandpal is seriously injured. Then on 18.3.1989 he along with Daya Kishan Kandpal went to meet Ganesh Dutt Kandpal at B.D. Pandey Hospital, who was admitted there. Then Ganesh Dutt Kandpal told them (Umesh Chandra Pant and Daya Kishan Kandpal) that he had reached at Tallital, Nainital on 15.3.1989 in the evening at 5:30 P:M. There the appellant/accused Kailash Chandra Kandpal along with his two companions met him (Ganesh Dutt Kandpal). The appellant/accused asked him that why he has come to Nainital then he told the appellant/accused that he has come there to give the letter to Deputy Director, Education and to give money to Kishan Chandra Joshi- relative of the Principal. After that the appellant/accused and his two companions snatched the money and letter from him. They also snatched a wrist watch and Rs.70/- from him and caused the injuries to him after beating. On the basis of the information as narrated by Ganesh Dutt Kandpal, he (Umesh Chandra Pant) lodged the report at Police Station, Mallital, Nainital. That report is Ext.Ka-1. 15. P.W.2 is Ganesh Dutt Kandpal, who has stated that on 15.3.1989, Principal Umesh Chandra Pant had sent him to Nainital to give official letters and Rs.10,000/- to Kishan Chandra Joshi. On the same day at about 5:30 P:M when he reached at Tallital Bus Station having official documents and Rs.10,000/-, appellant/accused met him along with two other persons. He passed about two and a half hours at Tallital with the appellant/accused and his two companions as he was known to the appellant/accused before the said incident. Thereafter at about 8 P:M the appellant/accused pushed him from the hill and also caused injuries by stick. The appellant/accused snatched his bag in which he was having Rs.10,000/-, documents and photostat copies of the high school examination of his wife. The appellant/accused has also taken his salary passbook and has also taken Rs.70/- from his pocket and a wrist watch. At that time the appellant/accused was alone. After that the appellant/accused has gone from the place of occurrence and due to the injuries he became unconscious. He further stated that he does not know the person who has admitted him at B.D. Pandey Hospital. He was medically examined at the hospital and X-ray was also conducted. His bloodstained clothes were taken by the Investigating Officer into possession and the FARD was prepared i.e. Ext.Ka-2. He further stated that the Principal Umesh Chandra Pant met him on 17.3.1989 and on that day his condition was not good. On the next day i.e. 18.3.1989 he narrated the whole incident to the Principal. Thereafter the principal lodged the report at the police station. In the cross-examination he has stated that Naveen Chandra Kandpal was the employee in B.D. Pandey Hospital and he has told about the incident to Naveen Chandra Kandpal. Naveen Chandra Kandpal has given information to Dinesh Chandra Chandola. He has further stated that he narrated the incident to Naveen Chandra on 16.3.1989. 16. P.W.3 is Head Constable Mohan Giri, who has stated that on the report i.e. Ext.Ka-1 given by Umesh Chandra, he has prepared the Chik F.I.R. i.e. Ext.Ka-3. The necessary entry was also made in the G.D. by him, copy of which is Ext.Ka-4. 17. P.W.4 is Constable Badri Singh, who has stated that on 29.3.1989, he along with S.S.I K.S. Hyanki and other police personnel, in the presence of public witnesses Mohan Sharma and Vinod Joshi, has arrested the appellant/accused at about 11:15 A:M at Barapathar and from his possession Rs.1,520/- and one bag was recovered and some papers were also recovered inside the bag. The FARD was prepared of the recovered items i.e. Ext.Ka-7. The stick and the bloodstained pieces of stone were also recovered and thereafter FARD was prepared i.e. Ext.Ka-8. It was further stated that the recovered material was sent for chemical examination but no report was received after the chemical examination. 18. P.W.7 is Mohan Joshi R/o 19/9 Shakti Nagar, Delhi, has stated that the appellant/accused was arrested by the police on 29.3.1989 at about 11:15 A:M at Barapathar and from his search Rs.1,520/- was recovered from his pocket. It was further stated that one bag, one pant, two photostat copies of the High School marksheet, one application and one passbook of the Cooperative Bank of Bageshwar Branch were also recovered from his possession. On the pointing of the appellant/accused one pine stick and the pieces of stone were also recovered. FARD Ext.Ka-7 and FARD Ext.Ka-8 were prepared at the spot. 19. P.W.8 is Sub Inspector Arvind Singh Rawat, who has stated that the appellant/accused was arrested by him and the other police personnel in the presence of public witnesses Mohan Sharma and Vinod Joshi on 29.3.1989 at about 11:15 A:M at Barapathar. He further stated that from his search Rs.1,520/- was recovered from his pocket. He further stated that from the polythene bag, one pant, two photostat copies of the High School marksheet in the name of Km. Jeevanti and one passbook of District Cooperative Bank of Bageshwar Branch were also recovered. He further stated that the FARD Ext.Ka-7 and Ext.Ka-8 were prepared at the spot. 20. P.W.9 is S.S.I Kishan Singh Hyanki, who has stated that the investigation of this case was entrusted to him on 18.3.1989. On 28.3.1989 he took the bloodstained clothes of the victim into possession and prepared the FARD i.e. Ext.Ka-2. On the same day i.e. 28.3.1989, the appellant/accused was arrested at Barapathar and from his possession Rs.1,520/- cash and certificates were recovered. It was further stated that one pant and some papers which were inside the bag and one passbook of the District Cooperative Bank were also recovered and the FARD Ext.Ka-7 was prepared. It was further stated that on the pointing of the appellant/accused, pine stick and the bloodstained pieces of the stone were recovered and the FARD was prepared i.e. Ext.Ka-8. He also prepared the site-plan of the place from where the stick and the bloodstained pieces of stone were recovered by the police. That site- plan is Ext.Ka-9. Site-plan of the place of occurrence was also prepared i.e. Ext.Ka-10. Identification of the pant was also conducted before the Sub Divisional Magistrate, Nainital. During the course of investigation, he recorded the statement of the witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused. That charge sheet is Ext.Ka-11. 21. P.W.10 is Rajendra Lal Sah, who has stated that on 25.5.1989 he was posted as S.D.M., Nainital. He further stated that on that day, identification proceedings of the pant were conducted before him and Umesh Chandra Kandpal has identified the pant, correctly. He further stated that he has prepared the identification memo i.e. Ext.Ka-12. 22. After that the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, in defence, he has not produced any oral or documentary evidence. In reply to one of the questions, he has stated that Ganesh Dutt and he (appellant/accused) have studied together in the school and Umesh Chandra was the Principal. He has further stated that Umesh Chandra was running high school by concealing the fact as the school was recognised only up to Junior High School. His father was the driver of Commissioner, Kumaon. He further stated that he had made complaint against the Principla Umesh Chandra and the case was registered against him (Umesh Chandra) for the embezzlement. Due to this reason he has been falsely implicated in the case. 23. Sri S.C. Bhatt, learned amicus curiae for the appellant has argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the appellant/accused u/s 394/397 IPC beyond reasonable doubt. I find substance in the argument advanced by learned amicus curiae for the appellant due to the reason that there is only solitary evidence of Ganesh Dutt Kandpal (P.W.2) against the appellant/accused which does not inspire a confidence due to following reasons:- (i) The incident was said to be taken place on 15.3.1989 at about 8 P:M and the injured Ganesh Dutt Kandpal (P.W.2) was admitted at B.D. Pandey Hospital on 16.3.1989 at 7:35 A:M by Ramesh Prasad S/o Mohan Ram R/o Balika Mandir, Nainital and Dr. K.K. Bhatt (P.W.5) has stated in his statement that when the injured was admitted in the hospital he was in sense and he was admitted as an accidental case. It was also mentioned in the injury report Ext.Ka-5 that the police was informed, which reveals that the police was informed on 16.3.1989 just after 7:35 A:M when the injured was medically examined in the hospital but no F.I.R. was lodged in the police station on 16.3.1989 about the said incident which creates a doubt. (ii) As per the statement of Ganesh Dutt Kandpal (P.W.2), he had narrated the whole incident on 16.3.1989 to Naveen Chandra Kandpal who was the employee at B.D. Pandey Hospital and Naveen Chandra Kandpal has informed about the said incident to Dinesh Chandra Chandola and Dinesh Chandra Chandola had informed to Bhuvan Chandra Pandey on telephone and lastly Bhuvan Chandra Pandey had given information to Umesh Chandra Pant (P.W.1). On the basis of the information received, Umesh Chandra Pant (P.W.1) came to Nainital along with Daya Kishan Kandpal (uncle of the injured) to see the injured Ganesh Dutt Kandpal (P.W.2). Thus, Naveen Chandra Kandpal is the first person to whom the injured had narrated the incident but the prosecution has not produced Naveen Chandra Kandpal in the court, which also creates a doubt in the prosecution story. (iii) The injured was taken to the hospital by Ramesh Prasad in injured condition and Ramesh Prasad was also not produced in the court by the prosecution, which also creates a doubt. (iv) It has come in the statement of Dr. K.K. Bhatt (P.W.5) that the injuries received by the injured could be possible after falling from the hill due to taking of liquor. Thus, it creates a doubt whether the injuries were caused to the injured Ganesh Dutt Kandpal by the appellant/accused or not. (v) Documents viz high school marksheet of the wife of the injured and passbook of the District Cooperative Bank which were said to be recovered from the possession of the appellant/accused were not mentioned in the F.I.R. lodged by Umesh Chandra Pant (P.W.1), which shows that these documents that were said to be recovered from the possession of the appellant/accused are nothing but planted document in order to strengthen the prosecution case. (vi) Mohan Joshi (P.W.7) who was the witness of the arrest of the appellant/accused and witness of the recovery of the items, was a resident of 19/9 Shakti Nagar, Delhi and he was produced before the court with the name of Mohan Joshi whereas in the FARD Ext.Ka-7 and Ext.Ka-8 his name has came as Mohan Sharma, which also creates a doubt about his presence at the time of the arrest of the appellant/accused at Barapathar, Nainital as he was a resident of Delhi which is at a distance of about 300 Kms from Nainital. 24. Another argument raised by learned amicus curiae for the appellant/accused is that the F.I.R. of the said incident was lodged on 18.3.1989 at 5:30 P:M at Police Station, Maillital, Nainital whereas the incident took place on 15.3.1989 at about 8 P:M and the distance of the police station from the place of occurrence was about 1/2 Kilometers, as shown in the Chik F.I.R. Ext.Ka-3. There is no explanation given from the side of the prosecution with regard to delay in lodging the F.I.R. which also creates a reasonable doubt in the prosecution story and it is also fatal for the prosecution. I am fortified my view with a judgment rendered by the Hon’ble Supreme Court in the case of “State of Karnataka v. Mapilla P.P. Soopi” reported in (2003) 8 SCC 202. Para 4 of this judgment is relevant to mention here, which is as follows:- “Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal.” 25. Now remains the question of solitary evidence Ganesh Dutt Kandpal (P.W.2). It is a settled law that conviction can be recorded on the solitary evidence but at the same time such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with