Sunil Kumar v. State of Uttaranchal (Now State of Uttarakhand)

Heard Learned counsel for the appellant, and Learned counsel for the State, and Learned counsel for the complainant, and perused the lower court record. (3) Prosecution story, in brief, is that in the intervening night of 01.08.1995 and

02.08.1995 in Gum Khal Bazar of District Pauri Garhwal grills of two shops were broken. The said fact came to the light at 9.00 a.m., on 02.08.1995, regarding which report of theft was lodged at the police outpost Gum Khal Police Station Lansdown. Accused/appellant Sunil Kumar, who was a Constable at the above outpost came to the spot and while interacting with the victims 3 including complainant Shyam Singh (PW2) he started hurling abuses at him (Shyam Singh). He (PW2) also said to have been beaten by accused/appellant Sunil Kumar. It is also alleged that the victim (PW2) was insulted for being a member of Schedule Caste and threatened of dire consequences. Consequently, Shyam Singh (PW2) gave First Information Report (Ex-A3) at Police Station Lansdown, on 02.08.1995 at 16.25 hours, on the basis of which Crime No. 91 of 1995 was registered in respect of offences punishable under section 323, 504 and 506 of I.P.C., and one punishable under section 3(1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. After investigation, charge sheet was filed against accused Sunil Kumar (appellant) for his trial in respect of offences punishable under section 323, 504 and 506 of I.P.C, and in respect of offence punishable under section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, by the 4 Investigating Officer. (4) After giving necessary copies to the accused, the trial court heard the parties on charge and on 18.12.2000, framed charge of offences punishable under section 323, 504 and 506 of I.P.C., and one punishable under section 3(1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, to which the accused/appellant Sunil Kumar pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Head Constable Jagdamba Prasad (who prepared the check report of First Information Report), PW2 Shyam Singh (injured and complainant) and PW3 Deepak Bhandari. (5) Oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which accused/appellant Sunil Kumar admitted that he was posted at police outpost Gum Khal but as to the rest of the evidence he pleaded that the same is false as against him. 5 He further pleaded that he has been falsely implicated due to enmity. However, evidence in defence was adduced. After hearing the parties, the trial court found that prosecution has successfully proved charge of offences punishable under section 323, 504 and 506 of I.P.C., and one punishable under section 3(1) (x) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused/appellant was convicted accordingly. After hearing on sentence, the trial court sentenced the convict rigorous imprisonment for a period of six months on each of the counts under section 323, 504 and 506 of I.P.C. The convict was further sentenced to rigorous imprisonment for a period of six months and directed to pay fine of ` 500/-. Aggrieved by said judgment and order dated 31.01.2001, passed by Learned Sessions Judge, Pauri Garhwal, in Special Sessions Trial No. 02 of 1997, this appeal was filed before this High Court. 6 (6) Today, during arguments, learned counsel for the appellant and learned counsel for the heir of the complainant told this Court that the parties have entered into compromise in respect of offences punishable under section 323, 504 and 506 of I.P.C. A Compounding application alongwith the affidavit was filed before this Court. The appellant Sunil Kumar and Basanti Devi (widow of the complainant Shyam Singh) are present in court and they verified the fact that offences punishable under section 323, 504 and 506 of I.P.C., have been compounded. Offence punishable under section 323 of I.P.C is compoundable, and offences punishable under section 504 and 506 of I.P.C are compoundable with the permission of the Court. The widow of the complainant told this Court that she does not want to prosecute the accused/appellant Sunil Kumar, after the death of her husband Shyam Singh (PW2). (7) As to the offence punishable under 7 section 3(1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, learned counsel for the appellant pointed out that neither it is mentioned in the First Information Report, nor stated by PW2 Shyam Singh before the trial court that accused Sunil Kumar (appellant) was not a member of Schedule Caste or Schedule Tribe. On its basis, it is argued that the ingredients of the offence punishable under section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are not made out. Learned counsel for the appellant with regard to the rest of the witnesses further submitted that PW1 Head Constable Jagdamba Prasad is a formal witness, who has simply proved making of entry in General Diary and preparing the check report, and PW3 Deepak Bhandari had given a hearsay evidence. It is also argued on behalf of the present appellant that the appellant had no enmity, nor any occasion to insult the complainant Shyam Singh (PW2) in whose 8 shop, there had been an incident of theft in the previous night. (8) In the above circumstances, and for the reasons as discussed above, this Court is of the view this appeal deserves to be allowed. As the offences punishable under section 323, 504 and 506 of I.P.C., have been compounded, and with regard to rest i.e. section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the ingredients as mentioned above are not made out. (9) Accordingly, the appeal is allowed. The impugned judgment and order dated

31.01.2001, passed by Learned Sessions Judge, Pauri Garhwal, in Special Sessions Trial No. 02 of 1997, regarding conviction and sentence recorded against accused/appellant Sunil Kumar under section 323, 504 and 506 of I.P.C., and one punishable under section 3 (1) (x) of Scheduled Castes and Scheduled 9 Tribes (Prevention of Atrocities) Act, 1989, is hereby set aside. The accused/appellant Sunil Kumar is acquitted of the charge of offences punishable under section 323, 504 and 506 of I.P.C., and one punishable under section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He is on bail. He need not to surrender. Lower court record be sent back. (Compounding Application dated 08th of October, 2012, also stands disposed of). Dt.08.10.2012 N.P (Prafulla C. Pant, J.)