IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1971 of 2001 (Old No. 2216 of 1996) 1. Sarvjeet Singh S/o Mahendra Singh R/o Village Taatwala Post Shyampur, Kangri P.S. Shyampur, District Haridwar 2. Ghanshyam S/o Ramlal R/o Village Aurangabad P.S. Ranipur, District Haridwar . ……….Appellants Versus State of U.P. (now State of Uttarakhand) …………Respondent Shri Bhuvnesh Joshi,Advocate, present for the appellant no. 1. Shri Nagesh Agarwal, Advocate, present for the appellant no. 2. Shri B.S. Parihar and Shri M.A. Khan, Brief Holder, present for the state. Hon’ble Prafulla C. Pant, J. This appeal , preferred under section 374 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 10.12.1996 passed by II Additional Sessions Judge, Haridwar in Special Sessions Trial No. 1 of 1993 whereby 2 appellants Sarvjeet Singh and Ghanshyam have been convicted under section 147, 148, 307 read with section 149 I.P.C., and each one of them has been sentenced to rigorous imprisonment for a period of two years under section 147 I.P.C., rigorous imprisonment for a period of three years under section 148 I.P.C., and rigorous imprisonment for a period of ten years under section 307 I.P.C., read with section 149 I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 11.01.1992 , P.W. 9 S.S. Chauhan, Circle Officer, on receiving information that the terrorists are hiding in village Daluwala proceeded with necessary police force to said village. It was around 5:15 P.M., when some 20-25 miscreants armed with A.K.47, light machine gun, carbines, riffles attacked the police party in which the police retaliated the firing . One unknown terrorist is said to have been killed in the encounter and rest succeeded in fleeing from the village. However, there was no injury on any of the members of the 3 police party. After the incident, Station Officer, Ranipur, Jagdish Singh Chauhan (P.W 10) lodged FIR relating to incident which was registered as crime no. 8 of 1992 in respect of offences punishable under section 147, 148,, 307/ 149 IPC against unknown persons. P.W.12 Sub-Inspector Harak Singh, P.W.13 Sub-Inspector Hari Prasad and P.W 14 Sub-Inspector Harjeet Singh conducted the investigation in the matter,and submitted charge sheet (EX. A16) against the accused/appellants Sarvjeet Singh and Ghanshyam and two others namely Mahendra Singh and Aatma Singh. 4. The Magistrate on receipt of the charge sheet appears to have committed the case to the court of Sessions for trial after giving necessary copies as required under section 207 of Cr.P.C. The trial court on 27.10.1993, framed charge in respect of offences punishable under section 147, 148, 307 I.P.C., read with section 149 I.P.C., and under section ¾ Terrorist and Disrupted Activities Act, against the accused (appellants) Sarvjeet Singh and Ghanshyam and one Aatma Singh who pleaded not guilty and claimed to be tried. On 4 this, prosecution got examined P.W.1 Katar Singh (declared hostile), P.W.2 Manjoor Singh (declared hostile), P.W.3 Mohkam Singh (declared hostile), P.W.4 Amrick Singh (declared hostile), P.W.5 Kartar Singh (declared hostile), P.W.6 Balkar Singh (declared hostile), P.W.7 Jeet Singh (declared hostile) P.W.8 Bakshish Singh (declared hostile), P.W.9 S.S. Chauhan, Circle Officer, P.W.10, Senior Sub-Inspector Jagdish Singh (complainant), P.W.11 Satish Chand Mehta (Station Officer), P.W.12 Sub- Inspector Harak Singh, (Investigating Officer), P.W.13 Sub-Inspector Hari Prasad (Investigating Officer) and P.W.14 Sub-Inspector Harjeet Singh (Investigating Officer). The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which they alleged same to be false. However, no evidence in defence was adduced. The trial court after hearing the parties found the accused (appellants) Sarvjeet Singh and Ghanshyam guilty of charge of offences punishable under section 147, 148, 307/149 I.P.C., after hearing on sentence each one of the convicts was sentenced to rigorous imprisonment for a period of two years under section 147 I.P.C., 5 rigorous imprisonment for a period of three years under section 148 I.P.C., and rigorous imprisonment for a period of ten years under section 148 I.P.C., read with section 149 I.P.C. Aggrieved by said judgment and order dated 10.12.1996, passed by Additional Sessions Judge, Haridwar, in Special Sessions Trial No. 1 of 1993, convicts preferred this appeal before Allahabad High Court on 16.12.1996. The appeal was admitted by Allahabad High Court on 17.12.1996, and transferred to this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal. 5. Perusal of the lower record shows that all the eight public witnesses were examined but they have not supported the prosecution story. P.W.1 Katar Singh , P.W.2 Manjoor Singh , P.W.3 Mohkam Singh , P.W.4 Amrick Singh , P.W.5 Kartar Singh , P.W.6 Balkar Singh , P.W.7 Jeet Singh, and P.W.8 Bakshish Singh have not supported the prosecution story and they were declared hostile. 6. It is a case of no injury in which none of 6 the policemen have suffered any injury. In these circumstances, this Court is of the view that trial court has erred in law in holding the accused (appellants) Sarvjeet Singh and Ghanshyam guilty of charge of offences punishable under section 147, 148, 307, read with section 149 I.P.C., particulary when on the same set of evidence the trial court has acquitted co-accused Aatma Singh. Had it been a case of spot arrest of the accused (appellants) it could have been said that the testimony of the police eye witnesses is believable. The present case is not of that category also. 7. In the above circumstances, having considered submissions of learned counsel for the parties and after going through the evidence on record, this Court finds that the prosecution has not successfully proved any of the charge of offences punishable under section 147, 148, 307/149 I.P.C., against anyone of the accused (appellants) namely Sarvjeet Singh and Ghanshyam. Therefore, this appeal deserves to be allowed. The appeal is allowed. The impugned judgment and order dated 10.12.1996 passed by II Additional Sessions Judge, Haridwar, in Special 7 Sessions Trial No. 1 of 1993 is hereby set aside. The accused (appellants) Sarvjeet Singh and Ghanshyam are acquitted of the charge framed against them in respect of offences punishable under section 147, 148, and 307/149 I.P.C. They are on bail. They need not to surrender. Lower court record be sent back. (Prafulla C. Pant, J.) Dt. 14.07.2010 Parul