IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.702 OF 2001 (OLD NO.1714/1995) Pyare Lal ……… Appellant Versus The State …… Respondent Dated: June 30, 2009 Mr. Lokendra Dobhal, learned counsel for the appellant Mr. Tanuj Semwal, learned AGA for the State HON. DHARAM VEER, J. This criminal 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 27.9.1995 passed by learned Sessions Judge, Uttarkashi in S.T. No.3/1994, State Vs. Pyare Lal, whereby the learned Sessions Judge convicted the accused/appellant Pyare Lal under Section 324 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of one year. 2. I have heard Sri Lokendra Dobhal, learned counsel for the appellant as well as Sri Tanuj Semwal, learned AGA for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that Ram Prasad lodged a report on 30.8.1993 stating therein that on 29.8.1993 at about 9 P.M. the accused/appellant Pyare Lal came to his house and asked his son Hari Ram that he has no light and requested him to go up to his house with him. His son Hari Ram along with the 2 accused/appellant went up to the Chan of Jeet Singh when all of a sudden the accused/appellant fired upon his son by gun as a result of which his son received injury on the left leg. On hearing cry of his son, he, Jeet Singh and Jayendra Singh reached at the spot. On seeing the witnesses, the accused/appellant ran away. With the above-said averments, Ram Prasad lodged the report at P.S. Maneri on 30.8.1993 at 10:30 A.M. That report is Ext.Ka-1. On the basis of report (Ext.Ka-1), Chik F.I.R. was prepared by Constable Clerk Ramesh Chandra Singh, which is Ext.Ka-9. Dr. K.P. Joshi, Medical Officer medically examined the injured Hari Prasad on 30.8.1993 at 11:15 A.M. and prepared the injury report, which is Ext.Ka-2. The investigation of this case was entrusted to Station Officer V.P. Singh, who during the course of investigation, recorded the statements of the witnesses and took the plain and blood stained soil from the spot and thereafter prepared the FARD, which is Ext.Ka-4. FARD (Ext.Ka-5) regarding search of the house of the accused/appellant and the site-plan (Ext.Ka-6) of the place of occurrence was also prepared by the I.O. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellant. That charge sheet is Ext.Ka-8. 4. Learned Chief Judicial Magistrate, Uttarkashi committed the case to the court of Sessions on 12.1.1994, after giving necessary copies to the accused/appellant, as provided u/s 207 Cr.P.C. 5. On 1.2.1994, learned Sessions Judge, Uttarkashi framed the charge of offence punishable u/s 307 IPC against the accused/appellant. The charge was 3 read over and explained to the accused/appellant, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined PW1 Ram Prasad, complainant; PW2 Hari Prasad, injured eyewitness; PW3 Jayendra Singh; PW4 Jeet Singh; PW5 Dr. K.P. Joshi, Medical Officer, who medically examined the injured and PW6 Station Officer V.P. Singh, Investigating Officer of the case. 7. Thereafter the statements of the accused/appellant were 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. He has stated that he has been falsely implicated in the said case due to enmity. However, he did not produce any oral or documentary evidence in his defence. 8. After appreciating the entire evidence available on record, learned Sessions Judge, Uttarkashi vide his judgment and order dated 27.9.1995 convicted and sentenced the accused/appellant as stated above. Against that judgment and order dated 27.9.1995, the accused/appellant has preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Hari Prasad, who got examined by Dr. K.P. Joshi, Medical Officer on 30.8.1993 at 11:15 A.M. Injury report of the injured is Ext.Ka-2, which is reproduced as under:- (i) Multiple lacerated wound 6 in number on anterior aspect of left thigh circular, measuring above downward 1 cm in radius, 4 five in number, blackening around the margin present. No evidence of fresh bleeding, margin inverted. Depth could not be measured in order to avoid injury to vital organ, 6th no measuring 3 x 2.5 cm lat to above wounds, margin everted, no evidence of fresh bleeding, blackening around wound on one side only. (ii) Swelling wound of entry around all these wounds occupying whole of the antero-lateral aspect of thigh. (iii) Lacerated wound circular everted margin, two in number on postero-lateral 1 cm radius aspect of left thigh, 9.5 cm postero-lateral from wound in 6th, the distance between these two wound measuring 3.5 cm. No blackening. All these wounds are 28 cm below ant sup iliac spine, 8 cm above left knee joint. No fresh bleeding from above wound, swelling above noted also occupying post aspect of left thigh wound of exit. Advised X-ray left thigh, AP, lateral. Opinion:- All above injuries seems to be caused by fire arm to be confirmed by X-ray left thigh, duration about 24 hour, injuries kept under observation and for surgical advice. 10. To prove the above-noted injury report, the prosecution has examined PW5 Dr. K.P. Joshi, who has stated that on 30.8.1993 he was posted as Medical Officer at District Hospital. On that day, he medically examined the injured Hari Prasad and prepared the injury report Ext.Ka-2. In his opinion the injuries were caused by fire arm on 29.8.1993 at about 8 or 9 P.M. 5 11. Further to prove its case, the prosecution has examined PW1 Ram Prasad, who in examination-in-chief, stated the same facts as stated in the F.I.R. In the cross- examination, he stated that prior to this incident there was no enmity with the accused/appellant and even on the date of incident, no hot talks had taken place between him and the accused/appellant. He further stated that he had not seen the accused/appellant Pyare Lal while firing. His son was unconscious at that time. When he came in sense then he told him that he cannot say whether he has received injury by fall or caused by fire arm. It was further stated that when he reached at the place of occurrence then the accused/appellant Pyare Lal was not there and when in the night at about 9 P.M. the accused/appellant Pyare Lal came in his house then at that time he was alone. It was further stated that he cannot say whether the accused/appellant was carrying gun with him or not at that time. 12. PW2 Hari Prasad stated that on 29.8.1993 at 9 P.M. he and his father were at home. The accused/appellant came to his house and asked him to drop him up to his house because there was darkness and he (Pyare Lal) was not having torch. He after carrying torch went with the accused/appellant. At that time the accused had gun. When they reached up to the Chan of Jeet Singh then the accused/appellant asked him to drop him up to his house but he refused to go further then the accused Pyare Lal caused injury to him with something. He further stated that he could not say with what weapon the accused caused injury to him. He raised alarm and after that he became unconscious. He received injury on his left leg. He came in sense at about 3 or 4 6 A.M. in the night. At that time he was in his house. He told his father that the accused Pyare Lal has caused injury to him. Next day the report was lodged in the police station and his medical examination was done in the hospital. In the cross-examination, he stated that no quarrel had taken place between him and the accused/appellant. He further stated that when he fell down then he felt that he has received injury. He could not state whether he received injury by fall or caused by the accused. When he reached police station he was in sense. He further stated that the police had not enquired anything from him. 13. PW3 Jayendra Singh and PW4 Jeet Singh did not support the prosecution case and declared hostile. 14. PW6 V.P. Singh, S.O stated that on 30.8.1993 he was posted at P.S. Maneri as Station Officer. On the basis of report lodged by Ram Prasad, case was registered in the police station. The investigation of this case was conducted by him. During the course of investigation, he recorded the statements of the witnesses, took into possession the plain and blood stained soil from the place of occurrence and blood stained clothes of the injured Hari Ram and thereafter prepared the FARD (Ext.Ka-4). He also prepared FARD (Ext.Ka-5) of making search of gun from the house of the accused/appellant. After inspecting the place of occurrence, he prepared the site-plan, which is Ext.Ka-6. On completion of the investigation, he submitted the charge sheet (Ext.Ka-8) against the accused/appellant. 7 15. Thereafter the statements of the accused/appellant were 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. He has stated that he has been falsely implicated in the said case due to enmity. However, he did not produce any oral or documentary evidence in his defence. 16. Learned counsel for the accused/appellant submitted that the prosecution has not proved the case beyond reasonable doubt against the accused/appellant under Section 324 IPC. I find substance in the submission of learned counsel for the accused/appellant, due to following reasons:- (i) PW1 Ram Prasad, father of the injured Hari Prasad, lodged the report in the police station on the basis of information given by his son. He himself has admitted in the cross- examination that he had not seen the accused/appellant Pyare Lal while firing. (ii) As per the evidence of Ram Prasad, he along with Jayendra Singh (PW3) and Jeet Singh (PW4) reached at the place of occurrence when his son Hari Prasad raised alarm but these two persons who were shown to be eyewitnesses of the case did not support the prosecution case and declared hostile. (iii) Now the only witness which remains against the accused/appellant is the injured himself, who in the cross-examination, had stated that he could not say whether he received injury by fall or was caused by the accused Pyare Lal. 8 On the other hand, the medical officer who medically examined Hari Prasad opined that the injuries were caused to him by fire arm. Thus, the oral evidence of Hari Prasad does not get corroborated from the injury report Ext.Ka-2 as well as from the statement of Dr. K.P. Joshi, Medical Officer. Hence, the evidence of Hari Prasad is not cogent, reliable and trustworthy. Though it is permissible to sustain a conviction 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 probabilities and inspires implicit confidence. 17. Learned Counsel for the accused/appellant placed his reliance upon the judgment delivered by the Hon’ble Apex Court in “Joseph v. State of Kerala” reported in (2003) 1 SCC 465, wherein at para 13 the Apex Court has observed as under: “To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyze evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. 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 probabilities and inspires implicit confidence. By this standard, when the prosecution case rests 9 mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.” 18. Thus, in view of foregoing discussion and legal proposition, it can safely be inferred that the prosecution failed to prove its case against the appellant/accused under Section 324 IPC and the appellant/accused is entitled to get the benefit of doubt. As such, the learned trial court erred in holding the appellant/accused guilty and convicting them under the aforesaid section and the impugned judgment and order of the trial court, in view of the above narrated legal proposition, evidence and facts & circumstances of the case, is not justifiable and is liable to be set aside. 19. For the reasons recorded above, the appeal is allowed. The judgment and order dated 27.9.1995 passed by learned Sessions Judge, Uttarkashi in S.T. No.3/1994, State Vs. Pyare Lal, is hereby set aside. Consequently, the conviction and sentence imposed upon the accused/appellant, which has been discussed above, is also set aside. The appellant Pyare Lal is on bail. He need not surrender. Bail bonds are cancelled and sureties are discharged. 20. Let the lower court’s record be sent back. (Dharam Veer, J.) 30.06.2009 RG