Criminal Appeal No. 102 of 2001 · Uttarakhand High Court · 2012
Case Details
Acts & Sections
Shri S.S. Bhandari, Advocate, present for the appellant/accused. Shri M.A. Khan, A.G.A., present for the State. Hon(cid:146)ble Prafulla C. Pant, J. 1) Both these appeals are directed against the judgment and order 20th March, 2001, passed by Additional Sessions Judge, Haldwani, District‐ Nainital in Sessions Trial No. 239 of 1997, Sessions Trial No. 240 of 1997 and Sessions Trial No. 241 of 1997, whereby said Court has convicted the accused Tek Chand, under Section 506 part II of I.P.C. and sentenced him to rigorous imprisonment for a period of one year. He has been further convicted under Section 379 I.P.C. and directed to undergo rigorous imprisonment for a period of three years. The accused Tek Chand has been further convicted under Section 26 Forest Act, and directed to undergo rigorous imprisonment for a period of six months. He has also been convicted under Section 25 Arms Act and directed to undergo rigorous imprisonment for a period of three years. Accused/appellant Prem Lal has been convicted under Section 379 and sentenced to 3 imprisonment for a period of three years. He is further convicted under Section 26 of Forest Act and sentenced to undergo rigorous imprisonment for a period of six months. Accused/appellant Prem Pal has been further convicted under Section 25 read with Section 4 of the Arms Act and directed to undergo rigorous imprisonment for a period of one year. 2) Heard learned counsel for the parties, and perused the lower court record. 3) Prosecution story in brief that on
7.11.1996 at about 10.45 p.m. in the jungle near village Gangapur, Paatiya within the limits of police Station Lalkuwa PW1 Sub Inspector K.P. Singh along with other police personnel was on patrol duty. When he reached near cremation ground, PW2 Roop Naraian Gautam met him and they started combing the jungle to detect the Poachers. After going ahead they heard sound of cutting the trees with an axe. They went further and arrested accused/appellant Tek Chand who was armed with a countrymade pistol and accused/appellant Prem Pal who was armed with a knife. They also recovered four logs of KHAIR wood. Prosecution case is that before the accused could be 4 arrested they fired shots. It did not hit the police personnel or forest officials. The policemen prepared the recovery memo (Ex. A1) at the spot and got lodged first information report (Ex. A2) on 08.11.1961 at about
1.00a.m. at police station Lalkuwa against accused Tek Chand, Prem Pal and Tara (regarding whom it is alleged that he succeeded in fleeing) regarding offence punishable under Section 376, 379, 411 and 26 Forest Act. Separate Crime No.475 of 1996 and crime no. 476 of 1996 were registered against the two accused under Section 25 Arms Act. 4) The investigation was conducted by PW3 Sub Inspector H.N. Sharma from whom, PW4 Sub Inspector Surendra Pal Singh took over investigation and submitted chargesheet (Ex. A 6‐7), after obtaining sanction from District Magistrate, for prosecution under Section 25 Arms Act. 5) All the three cases were committed to the Court of Sessions for trial. On 03.02.1992, after hearing the parties Addl. Session Judge, Nainital framed charge of offence punishable under Section 307 read with Section 34 of I.P.C. against the accused Prem Pal. A separate charge was framed in respect of offence 5 punishable under Section 307 of I.P.C against the accused Tek Chand. As to the rest of the offences punishable under Section 379 of I.P.C., 26 Forest Act and 411 of I.P.C. a combined charge was framed against both the accused Tek Chand and Prem Pal. The accused pleaded not guilty and claimed to be tried (Accused Tek Chand absconded during trial and his case appears to have been separated). 6) On behalf of the prosecution PW1 Sub Inspector Kiran Pal Singh, PW2 Forest Rang Officer Roop Narain Gautam, PW3 Sub Inspector Hari Narain Sharma, PW4 Surrender Pal Singh and PW5 Inspector Vijay Kumar were examined. 7) The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which the accused pleaded that the evidence adduced against him is false. However, no evidence in defence was adduced. After hearing the parties the trial court found that though charge of offence punishable under Section 307 of I.P.C. is not proved against the accused but the charge relating to rest of the offences were found proved and convicted both the accused accordingly. After hearing the sentence 6 the convicts were sentenced as mentioned in para‐1 of the judgment. 8) Learned counsel for the appellants argued that it is a no injury case as no one said to be injured from alleged firing by accused at the police personnel and forest officials. Attention of this Court is drawn to the statement of PW2 who has stated that no return firing was resorted from the side of the police or the forest officials. It is contended that on behalf of the appellants that entire prosecution story is concocted one and it is highly unnatural that when the accused fired shot on the police party and forest officials, they would not resort to firing from their side. 9) It is further submitted that though the prosecution case is that the policemen and the forest officials heard the sound of axing the trees but no axe was recovered from the place of the incident. It is also pointed out that according to the prosecution case as stated by PW1 Sub Inspector K.P. Singh and PW2 Roop Naraian Gautam only one log was lying at the spot but recovery was shown of four logs. PW2 Roop Naraian Gautam, the range officer, who was also with 7 the police party, failed to state as to how and by whom the two accused were arrested at the spot. 10) Attention of this Court is drawn to the statement PW5 Inspector Vijay Kumar who admitted that he did not check the countrymade pistol which was allegedly recovered from the accused Tek Chand, as to whether it was in working order or not. 11) It is also not proved as to whether before the sanction was obtained from the prosecution for trial to the accused under Section 25 Arms Act all the papers were placed before the District Magistrate or not and whether he applied his mind for sanction or not. 12) In the above circumstances, considering the fact that neither the axe recovered from the appellants nor any injury was suffered by anyone in the incident even after the alleged fire was shot and further considering the inconsistency that recovery of four logs of wood is shown while only one was said to have been lying when the witnesses reached at the spot, this Court is of the opinion that the prosecution story is highly doubtful and it cannot be said that the prosecution has successfully proved the charge of offences punishable under Section 506, 379 of I.P.C. , 8 26 Forest Act, or 25 Arms Act beyond reasonable doubt. 13) Therefore, both the appeals deserve to be allowed. The same are allowed. The conviction and sentence recorded against the accused/appellants by (Additional Sessions Judge, Haldwani, Nainital) vide its order dated 20th March, 2001 passed in Sessions Trial NO. 239 of 1997, 240 of 1997 and 241 of 1997 is hereby set aside. The accused/appellants Tek Chand and Prem Pal are acquitted from the charge framed against them. Accused Prem Pal is said to have been in jail. He shall be released forth with if he is not wanted in connection with any other crime. Accused/appellant Tek Chand need not surrender in the case. Lower court record be sent back.
11.12.2012 (Prafulla C. Pant, J.)