Sachin vs State Of Uttarakhand
2022 Latest Caselaw 540 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL

          Criminal Jail Appeal No. 71 of 2021


Sachin                                      ...... Petitioner

                             Vs.

State of Uttarakhand                     ..... Respondents

                             With

          Criminal Jail Appeal No. 73 of 2021


Sachin                                      ...... Petitioner

                             Vs.

State of Uttarakhand                     ..... Respondents


Mr. S.R.S. Gill, Amicus Curiae and Mr. Milind Raj, Advocate for
the appellant.
Mr. B.S. Thind, Brief Holder for the State



                        JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Since, common question of facts and law

are involved in both these criminal jail appeals, they are

being decided by the common judgment.

2. Appellant Sachin has been convicted under

section 307 and 394 IPC on 30.11.2021 in Sessions Trial

No. 13 of 2018, State Vs. Sachin by the court of 2nd

Additional Sessions Judge, District Haridwar. He has

been sentenced on 02.12.2021 as hereunder;

(i) Under Section 307 IPC, rigorous

imprisonment for 7 years and a fine

of Rs. 10,000/-.

(ii) Under section 394 IPC, rigorous

imprisonment for 7 years and a fine

of Rs. 10,000/-. In default of

payment of fine, it has further been

directed that the appellant shall

undergo simple imprisonment for a

further period of one month.

The appellant has also been convicted under

Section 25 of the Arms Act, 1959 (for short, "the Arms

Act") on 31.11.2021 in Sessions Trial No. 14 of 2018,

State Vs. Sachin by the court of 2nd Additional Sessions

Judge, Haridwar. He has been sentenced to rigorous

imprisonment for five years and a fine of Rs. 5,000/-. In

default of payment of fine, it has been directed that the

appellant shall undergo imprisonment for a further

period of one month.

3. Criminal Jail Appeal No. 71 of 2021 has

been preferred against the conviction and sentence of

the appellant recorded under Sections 307 and 394 IPC.

Criminal Jail Appeal No. 73 of 2021 has been preferred

against the conviction and sentence of the appellant

under Section 25 of the Arms Act.

4. Prosecution case, briefly stated is as

follows:-

On 08.07.2017, PW2 Monu, who was

Driver in a Container Registration No. HR55F9574 ("the

Truck") was driving the truck from Haridwar to Delhi. At

11:00 in the night, he stopped the truck to answer the

call of nature. As he was relieving himself, two boys

approached them and demanded money from them. The

Conductor gave money, but PW2 Monu objected to it.

Those two miscreants fired at PW2 Monu, which hit him

on the right side of the stomach. He was seriously

injured. A passerby informed the police. The police took

PW2 Monu to the Hospital, where he was operated upon.

PW1 Bhura, who is brother of PW2 Monu lodged the

report on 09.07.2017 at 10:30 AM. A case was lodged.

According to the prosecution, on 29.08.2017, upon an

information having been received, when the person

intercepted, he tried to run away. He was the appellant.

When the police questioned him as to why did he try to

run away, he disclosed that he had a country-made

pistol. A search was made. A country-made pistol with a

cartridge stuck on its barrel and a live cartridge was

recovered from the possession of the appellant. Rs.

1900/- and a driving license of PW2 Monu and other

documents were also recovered. On further questioning,

the appellant revealed that he committed loot on

08.07.2017. A recovery memo was then prepared and

another case under Section 25 of the Arms Act was

lodged against the appellant. After investigation, two

separate charge sheets, one under Section 307, 394, 411

IPC and another under Section 25 Arms Act, were

submitted against the appellant, which is the basis of

the Sessions Trial No. 13 of 2018 and Sessions Trial No.

14 of 2018 respectively.

5. In Session Trial No.13 of 2018, charge

under Sections 394, 411, 307 read with 34 IPC was

framed on 15.02.2018, to which the appellant denied

and claimed trial. The prosecution has examined seven

witnesses, namely, PW1 Bhoora, PW2 Monu, PW3 Dr.

R.S. Prasad, PW4 Constable Ram Singh, PW5 Sub

Inspector Sanjay Sharma, PW6 Sub Inspector Ajay

Kumar and PW7 Vijay Kumar. The appellant was

examined under Section 313 of the Code of Criminal

Procedure, 1973.

6. . In Session Trial No.14 of 2018, charge

under Section 25 of the Arms Act was framed on

15.02.2018 to which the appellant denied and claimed

trial. The prosecution has examined four witnesses,

namely, PW 1 Sub Inspector, Sanjay Sharma, PW2 Sub

Inspector Ajay Singh, PW3 Sub Inspector Umesh Negi

and PW4 Constable Subhash Bhandari. The appellant

was examined under Section 313 of the Code.

7. By the impugned judgment and orders,

passed in both these sessions trials, the appellant has

been convicted and sentenced, as stated hereinbefore.

Aggrieved by it, these two appeals have been preferred.

8. Heard learned counsel for the parties and

perused the record.

9. The Court proceeds to examine the

truthfulness of the prosecution case from the record of

Criminal Jail Appeal No. 71 of 2021. In case reference is

made to any document from Criminal Jail Appeal No. 73

of 2021, a special mention shall be made.

10. Learned Amicus Curiae would submit that

it is no evidence case; Source of light has not been

revealed either in the FIR or in the statement of any of

the witnesses; PW2 Monu did not have any opportunity

to identify the miscreants, who looted him; the FIR is

doubtful because according to PW1 Bhoora, he was told

about the incident by his brother PW2 Monu. Whereas,

PW2 Monu has revealed that he did not remember as to

whether he disclosed the incident to his brother.

11. Learned State counsel would submit that

on 29.08.2017, when a country-made pistol was

recovered from the possession of the appellant, he

confessed the guilt; PW2 Monu has stated that he had 2-

3 minutes conversation with the miscreants at the time

of incident, therefore, he could identify the appellant.

Learned counsel has also referred to the statement of

PW3 Dr. R.S. Pant to argue that, in fact, the bullet was

retrieved from the body of the injured.

12.          PW2     Monu        is     the   injured    witness.

According   to   him,   on       08.07.2017,     he     alongwith

Conductor Bablu was on the truck moving from

Haridwar to Delhi. They stopped the vehicle and were

relieving themselves. At that time, two person one armed

with Danda and another armed with country-made

pistols approached them and demanded money. The

Conductor gave money, but this witness objected to it.

This witness was fired at, which hit him on the right side

of the stomach. He started bleeding. The assailants

thereafter entered in the cabin of the truck and took

Rs.7000-8000/-, ATM cards, Driving license and other

documents. While running from the place of occurrence,

this witness spotted a motorcyclist and revealed the

incident to him. He informed the police. Police admitted

him in the hospital. In his examination in chief, PW2

Monu had identified the appellant as a person, who

looted him and injured him.

13. PW1 Bhoora is brother of the injured PW2

Monu. According to him, when he was informed about

the incident, he reached hospital; his brother disclosed

him about the incident and he lodged the FIR Ex. A1.

14. PW3 Dr. R.S. Prasad proved the medical

injury report Ex. A3, which records the case summary

and procedure as hereunder:-

"CASE SUMMARY: 25 yrs age admitted as critical case with alleged H/o gunshot wound (R) Chest held on 38.7.17 at 1030 PM near bypass bahadrabad on initial exam patient in shock with severe bleeding entry wound at (R) lat aspect of chest with swelling over mid back without exit wound X Ray/CT Scan revealed Bullet in right

near L1 vertebra with multiple rib#. Immediately resuscitation done with surgical interventions.

Bullet was removed & found wound communicating to pleural cavity. Chest tube placed in (R) side. Post Op. Recovery satisfactory. Would closure done and chest ribs removed. Patient comfortable and fit for discharge. PROCEDURE/OPERATION DONE, IF ANY:

Wound debridement & exposure and Bullet removal 9.7.17 chest tube insertion and wound closure on 9..7.17 chest tube removal on 13.7.17 with purse string suturing."

15. PW3 Dr. R.S. Prasad reiterated those

observations. He has also proved bullet Ex. 7 which was

retrieved from the body of the injured PW2 Monu.

16. PW4 Constable Ram Singh is the GD

writer. He has stated about it.

17. PW6 Sub Inspector, Ajay Singh took

investigation of the case under Sections 307, 394 IPC.

He has stated about the recovery made from the

appellant on29.08.2017. According to him, upon

information having been received, when intercepted the

appellant tried to run away. On questioning, he revealed

that he had a country made pistol. A search was made

and a country made pistol was recovered from him. It

had a cartridge stuck on it and a live cartridge was also

recovered from him. This witness has also stated about

the recovery of driving license of PW2 Monu and other

documents from the appellant. According to PW6 Ajay

Singh, the appellant had confessed his guilt.

18. PW5 Sub Inspector, Sanjay Sharma has

also stated about the recovery of country made pistol

and articles from the appellant on 29.08.2017.

19. PW7 Sub Inspector, Vijay Kumar is the

second Investigating Officer, who filed charge sheet

against the appellant for the offence under Sections 307

and 394 IPC.

20. In Sessions Trial No. 14 of 2018, PW1 Sub

Inspector, Sanjay Sharma and PW2 Sub Inspector, Ajay

Singh are the witnesses to the recovery. PW3 Umesh

Negi is the Investigating Officer in that case.

21. According to the prosecution case, PW2

Monu, the injured was along with his Driver Bablu. PW2

Monu has stated that when demanded, the Conductor

Bablu had given money to the assailant. Bablu has not

been examined why? Had he been examined, he would

have told about the incident.

22. It is the case of prosecution that while

running from the place of occurrence, PW2 Monu

disclosed the incident to a motorcyclist, who informed

the police. Thereafter, the police took PW2 Monu to a

hospital. Who were those police personnel? Had any

report been written in the general diary entry of the

concerned police station, from where the police

personnel reached at the spot and took PW2 Monu to the

hospital? If it is so, what was the information recorded in

the police general diary. Can it be termed as an FIR? If it

is so, the FIR proved in this case may, not be termed as

FIR and it may at most be a statement given during

investigation. But, as stated, police personnel who took

PW2 Monu to the hospital have not been examined. They

would have revealed as to what PW2 Monu told them

soon after they reached at the place of occurrence.

23. It was a midnight at about 11:00 in the

month of July. How did PW2 Monu identify the

assailants? Site plan is Ex. A10. No source of light has

been shown in it. PW2 Monu has not specifically stated

as to how did he identify the assailants? In his cross

examination, at page 3, PW2 Monu has stated that at

the time of incident he had conversation for about 2-3

minutes with the assailants. The assailants were not

masked. The indicators of the truck were on.

24. Before further proceeding with the scrutiny

of PW2 Monu, it would be apt to discuss as to what does

"prove" mean. Section 3 of the Indian Evidence Act,

1872 ("the Evidence Act") defines "proved" "disproved"

and "not proved" as hereunder:-

"Proved"- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

"Disproved".- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. "Not proved".- A fact is said not to be proved when it is neither proved nor disproved."

25. How the statement of a witness may be

considered to be true and under what circumstances it

may not be reliable? What would be the guiding factors?

The Evidence Act permits raising presumption under

certain circumstances. Section 114 of the Evidence Act

also guides the Court in this respect. It is as hereunder:-

"114. Court may presume existence of certain

facts. -- The Court may presume the existence of any

fact which it thinks likely to have happened, regard

being had to the common course of natural events,

human conduct and public and private business, in

their relation to the facts of the particular case."

26. In the case of K. Ponnuswamy Vs. State of

T.N., (2001) 6 SCC 674, the Hon'ble Supreme Court

discussed these concepts and observed that "Thus the

fact is said to be proved when after considering the

matter before it, the court believes it to exist, or

considers its existence so probable that a prudent

man ought, under the circumstances of the

particular case, to act upon the supposition that it

exists. In coming to its belief the court may presume

existence of any fact which it thinks likely to have

happened having regard to the natural course of

event, human conduct and public and private

business, in relation to the facts of each case."

27. In the case of Kuna @ Sanjay Behera, Vs.

State of Odisha, (2018) 1 SCC 296, the Hon'ble Supreme

Court also discussed the concept of "proved", "disproved"

and "not proved" and observed as hereunder:-

"23. The quintessence of the enunciation is that the expression "proved", "disproved" and "not

proved", lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate concrete standard to measure "proof", full effect has to be given to the circumstances or conditions of probability or improbability. It has been expounded that it is this degree of certainty, existence of which should be arrived at from the attendant circumstances, before a fact can be said to be proved."

28. The statement of PW2 Monu needs

scrutiny. The whole of the scene is to be kept in view. It

is midnight at about 11:00 in the month of July. There is

no source of light. A truck is parked on the road with its

indicators on. The Conductor and Driver of the truck

were relieving themselves, when they were approached

by two miscreants holding Danda and country made

pistol. They demand money. The Conductor without any

objection gives money, but PW2 Monu objects to it. He

was fired at. In such circumstances, it is highly

improbable that PW2 Monu could identify the assailants

with the help of the indicators of the truck. Therefore,

the statement of PW2 Monu to the extent that he

identified the appellant at the time of incident is not

reliable. It does not transpire any confidence.

29. PW2 Monu has stated that the assailant

had once fired at him and started reloading the country

made pistol. He feared for his life. Then he noticed that

the assailants went into the cabin of the truck and took

money and other articles. Does it mean that after having

been hit with a bullet, PW2 Monu was watching the

activities of the assailants? He has also stated that he

was running. If he was running, how could he see as to

who entered into his cabin and what they took from

there?

30. PW1 Bhoora says that he was disclosed

about the incident by his brother PW2 Monu and

thereafter, he lodged the FIR. PW2 Monu says that he

does not remember as to whether he disclosed the

incident to his brother or not, because he was asleep.

PW3 Dr. R.S. Prasad has proved the discharge summary

of PW2 Monu. According to him, the injured was

admitted in a critical condition. How FIR was lodged, If

PW2 Monu did not disclose the incident to his brother

PW1 Bhoora? In his cross examination, in first

paragraph in the middle lines, PW1 Bhoora has stated

that he signed the FIR, it was recorded by the his

brother in law. The police dictated the FIR to his brother

in law. Who were those police personnel? Who dictated

the FIR to the brother in law of PW1 Bhoora?

31. According to the prosecution, on

29.08.2017, the appellant was arrested with the country

made pistol, driving license of PW2 Monu and other

documents. It is highly improbable story. If a man

commits loot on 08.07.2017, why should he carry

driving license and other articles, with him even after 45

days of the incident?.

32. It is the case that a country made pistol

was recovered from the appellant. A bullet was also

retrieved from the body of the PW2 Monu. The

prosecution could have established by forensic report

that the bullet was fired from the country made pistol

recovered from the appellant, but there is no forensic

report.

33. In view of the foregoing discussion, this

Court is of the view that, in fact, the prosecution has not

able to prove its case beyond reasonable doubt. The

appellant ought to have been acquitted of the charge

under Sections 307, 394 IPC and 25 Arms Act. The court

below committed an error in convicting and sentencing

the appellant under Sections 307, 394 IPC and 25 Arms

Act. Accordingly, the appeals deserves to be allowed.

34. Both the appeals are allowed.

35. Judgment and order dated 30.11.2021 and

02.12.2021 passed in Sessions Trial No. 13 of 2018,

State Vs. Sachin, by the court of 2nd Additional Sessions

Judge, District Haridwar is set aside.

36. Judgment and order dated 30.11.2021 and

02.12.2021 passed in Sessions Trial No. 14 of 2018,

State Vs. Sachin, by the court of 2nd Additional Sessions

Judge, District Haridwar is also set aside.

37. The appellant is acquitted of the charge

under Sections 307, 394 IPC and 25 of the Arms Act.

38. The appellant is in jail. He be released

forthwith, if not wanted in any other case.

(Ravindra Maithani, J.) 05.03.2022 Jitendra