Chandan Singh & Others vs State Of Uttarakhand

Lok Pal Singh, J

1) This criminal appeal is received from jail on behalf of the appellants, through the Jailor District Jail, Nainital and is directed against the judgment and order dated 16.01.2019, passed by learned II Addl. Sessions Judge, Nainital, District Nainital, in Sessions trial no. 141 of 2013, whereby appellants Chandan Singh, Puran Singh and Manoj Sharma were convicted under Sections 326 and 307 of IPC and all of them been sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.5,000/- each under Section 326 IPC; and rigorous imprisonment for a period of five years along with a fine of Rs.5,000/- each under Section 307 of IPC. Both the sentences were directed to run concurrently.

2) Heard learned counsel for the parties and perused the entire evidence on record.

3) Criminal law was set into motion at the instance of PW3 Indra Singh Parihar lodged an FIR with P.S. Bhimtal, District Nainital, stating therein, that on 19.08.2011, his younger brother Dipendra Singh Parihar was stationed on Chafi Bridge for collecting road tax. At about 08:30 P.M., Pappu Singh, Puran Singh, Chandan Singh and Manoj Sharma, all r/o Village Alchona, armed with hockey, sticks and motorcycle chain came there and with common intention starting assaulting his brother Dipendra, due to which he sustained injuries on nose, head and other parts of body and he lost consciousness. It is also alleged that the accused persons also assaulted other employee chandan Singh, but he somehow managed to escape. The injured was admitted in Krishna Nursing Home, where he is under medical treatment.

4) On the basis of said report, chik FIR (Ext. A-1) was lodged against the accused persons in respect of offences punishable under Sections 326, 307 of IPC. After completion of investigation, charge sheet (Ext A-15) was filed against the accused persons for their trial in respect of selfsame offences.

5) The case was committed to the court of Sessions for trial. Charges were framed against the accused persons under Sections 307 read with Section 34 of IPC and Section 326 of IPC. The accused persons pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Dipendra Singh Parihar (victim), PW2 Harish Ram, PW3 Indra Singh Parihar, PW4 Chandan Singh, PW5 Basant Verma, PW6 Dr. H.L. Kushwaha, PW7 Dr. Rahul Singh, PW8 Dr. Pankaj Mahesh, PW9 Ram Swaroop and PW10 S.I. Bhushan Kala. DW1 Smt. Radha Mehta was produced as defence witness. In reply to questions posed under Section 313 of Cr.P.C., the accused persons replied that they have been falsely implicated in the crime and the case against them is false. The trial court, after hearing the prosecution and the defence, found the accused guilty of the charge of offence punishable under Sections 307 IPC and Section 326 of IPC and sentenced them accordingly.

6) PW1 Dipendra Singh Parihar, injured eyewitness, reiterated the averments made in the FIR. In his cross-examination he stated that his elder bother Indra Singh is a contractor and he had no knowledge that any case was lodged against him. PW1 further stated that his family members are collecting the road tax of Chafi bridge from 1990 to 2011 and petty disputes relating to collection of road tax generally happens. He also stated that accused persons belong to his village.

7) PW2 Constable Harish Ram is a formal witness, who proved the chik FIR (Ext. A-1). PW3 Indra Singh Parihar (complainant and brother of the victim) reiterated the averments made in the FIR lodged by him. In his cross-examination, PW3 stated that he was a contractor and had the contract of collecting road tax since last few years. He also stated that he was not the eyewitness to the incident. He also stated that wife of accused Pappu Singh is his sister in relation. He denied the suggestion that as the wife of accused Pappu Singh is his sister in relation and both of them had a love marriage, due to this reason he had enmity with the accused Pappu. He also denied the fact that he has lodged a false case against the accused persons.

8) PW4 Chandan Singh was the co-employee along with the victim on the date of incident. He has stated on oath that the incident took place in his presence. Indra Singh and Basant Verma took the injured to Krishna hospital, Haldwani in a car. In his cross-examination PW4 stated that the weapons of assault were not recovered from the accused persons in his presence. He denied the fact that he is adducing false evidence against the accused persons. PW5 Basant Verma stated on oath that he took the injured in his private vehicle for treatment at Krishna Nursing Home, Haldwani. Inder Singh also followed him in his car. In his cross-examination, PW5 stated that he runs a hotel at Chafi since 2002 and his hotel is opposite to toll tax office across the bridge. He denied the fact that he had witnessed the occurrence.

9) PW6 Dr. H.L. Kushwala, stated on oath that he has an E.N.T. Care Center at Choti Mukhani, Haldwani. On 28.02.2011, he medically examined the victim. He proved Ext. A-4 to this effect. In his cross-examination, PW6 stated that the victim himself came on foot to his clinic. The injury sustained by the victim on his nose was not fatal to his life and said injury could have been possible due to fall on solid surface. He also stated that in his opinion the injury sustained was 2-3 days prior to the incident. PW7 Dr. Rahul singh, was posted as Neuro surgeon at Krishna Hospital, Haldwani on 19.08.2011. He proved the medical examination report (Ext. A-5). In his cross-examination, PW7 stated that in the medical examination report he had not mentioned the nature of fatal injuries, but had mentioned that the same are serious in nature. He also stated that he had not mentioned whether the injuries were fatal to life or not and there was no mentioned of lathi, danda in said report. PW8 Dr. Pankaj Mahesh, is the Medical Officer, who conducted C.T. scan of the injured. He proved his report Ext. A-7 and Ext. A-8. In his cross-examination, PW8 stated that the said injuries could have been possible due to accident also.

10) PW9 S.I. Ram Swaroop commenced the investigation. He arrested the accused persons. He proved Ext. A-9, Ext. A-10, Ext. A-11, Ext. A-12 and Ext. A-13. In his cross-examination, PW9 stated that during investigation initially the case was registered under Section 326 IPC, but later on Section 307 IPC was added to the crime. He also stated that no danda, chain and hockey were recovered from any of the accused persons. He denied the fact that the case against the accused persons is false. PW10 S.I. Bhushan Kala, is the Investigating Officer, who concluded the investigation and submitted charge sheet (Ext. A-15) against the accused persons.

11) In defence, accused persons examined DW1 Smt. Radha Mehta, r/o village Alchona, Post Chafi, Tehsil & District Nainital who stated on oath that PW1 and PW3 are her brothers and sons of her uncle. Accused Pappu and DW1 had a love marriage. She stated that the family members of PW1 were not happy with this marriage. DW1 further stated that on 19.08.2011, PW1 had an altercation with driver of some vehicle and she came to know that in the scuffle PW1 sustained injured due to fall. She further stated that the family of PW1 and PW3 has political connections and has good acquaintance with police personnel also. Many a cases were got registered against PW3 also. According to DW1, the case registered against the accused persons is false. In her cross-examination, DW1 stated that her husband Pappu Singh was also an accused in the present criminal case. PW1 also assaulted her husband Pappu many a times prior to the incident. She denied the fact that she is adducing false evidence in order to save the accused persons as they were her relatives and belong to the same village.

12) Learned Amicus Curiae, appearing for the appellants, would argue that PW4 Chandan Singh is not an eyewitness and instead he is a planted witness. It is contended that PW4 has stated in his cross-examination that he worked with PW3 since last 4-5 years. This casts a serious doubt in his testimony. It is contended that the FIR was lodged against the appellants only on the basis of suspicion and due to enmity between the parties. Learned Amicus Curiae vehemently argued that apart from evidence of PW4 there is nothing on record to show that the appellants had committed said offence. Statement of PW4 is contradictory to the statement of PW6 Dr. H.L. Kushwaha, who has stated on oath that the victim came to his clinic on foot, as also to the statement of PW8 Dr. Rahul Singh, Neuro Surgeon of Krishna Hospital, Haldwani, who has stated that the injuries sustained by the injured could have been possible due to sudden fall in an accident. On the strength of contradictory statements of the witnesses, it is contended that PW4 does not appear to be a reliable witness. She further contended that being so, there is not an iota of evidence as against the appellants as to the commission of crime by either of the appellants. Lastly, it is contended that it cannot be ruled out that PW1 might have fallen after being hit by a vehicle in the toll barrier as stated by PW7 in his medical examination report.

13) In the opinion of this Court, the entire prosecution story is based on suspicion, presumption and surmises. The learned Sessions Judge appears to have been guided merely from the fact that PW1 (injured) and his brother PW3 have sour relations with the appellants, as his sister had married one of the accused Pappu Singh (since deceased) against the wishes of their family members. That by itself or read with the prosecution evidence does not prove the charge beyond reasonable doubt.

14) Learned Amicus Curiae has placed reliance on the judgment rendered by Hon'ble Apex Court in the case of Varkey Joseph vs State of Kerala, 1993 AIR 1892. Last paragraph of said judgment is relevant in the context of present case and is being reproduced hereunder:

"Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all he way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not prove its case but palpably produced false evidence and the prosecution has miserable failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stand acquitted of the offence under Section 302 IPC."

15) Taking into consideration the facts and circumstances of the case and the documents brought on record, in view of the Court, the prosecution has utterly failed to prove its case against the accused-appellants beyond reasonable doubt. Therefore, the impugned judgment and order is unsustainable in the eyes of law and is liable to be set aside.

16) Consequently, the criminal jail appeal is allowed. The conviction of all the appellants and sentences awarded against them under Sections 326 and Section 307 IPC is set aside. They are acquitted of the charge framed against them. Appellants are in jail. They be set at liberty forthwith if not required in connection with any other crime.

17) Let a copy of this judgment be sent to the Senior Superintendent of jail concerned, where the appellants are currently lodged. Lower court record be also sent back.