Unknown vs Others"
2023 Latest Caselaw 1322 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                       15th MAY, 2023

            GOVERNMENT APPEAL NO. 397 of 2007

Between:

State of Uttarakhand                                   .....Appellant

and

Tikam Singh and three Others                        .....Respondents

Counsel for the Appellant         :    Mr. S.S. Adhikari, Deputy
                                       Advocate General with Mr.
                                       Balvinder Singh, Brief
                                       Holder.

Counsel for the Respondents       :     Mr. Mohd. Umar,
                                        Advocate.



Hon'ble Alok Kumar Verma, J.

Present Government Appeal is directed against the

judgment dated 16.01.2004, passed by learned Additional

Sessions Judge/ IVth Fast Track Court, Haridwar in Sessions

Trial No. 255 of 2001, "State vs. Tikam Singh and three

Others", whereby, the Trial Court has acquitted the

respondents-accused persons of the charges under Section

379, Section 411, Section 323 read with Section 34, Section

332 read with Section 34, Section 307 read with Section 34

of the Indian Penal Code, 1860 and Section 26 of the Indian

Forest Act, 1927.

2. Briefly stated the prosecution story as it emerges

from re-appreciation of the evidence on record is that on

09.10.2000, Forest Guard-Om Pal Singh (PW3), Forest

Guard-Hari Ballabh Pant (PW4), Beat Assistant-Rakesh Singh

(PW1) and Daily Wager-Mukhram (PW2) were patrolling in

forest Beat No. 6 of the reserved forest. They heard the

sound of a saw. When they went in the direction of the

sound, they saw that respondents-accused persons were

cutting two trees. When they tried to apprehend the accused

persons, they fired at them. At around 12:30 p.m., accused

Barisu, Tahir and Ahmad Hasan were apprehended. While

accused Tikam Singh managed to escape from the spot.

They assaulted Mukhram (PW2) with sticks at the time of

their arrest, due to which, he received injuries. Recovery

Memo (Ext. Ka.2) was prepared on the spot, which was

signed by the employees. Copy of Recovery Memo was given

to the accused persons. Being a forest area, public witness

could not be secured. Saw (Material Ext. 3), axe (Material

Ext. 4), hollow cartridge 12 bore (Material Ext. 5) and cut

rosewood trees (Material Ext. 1 and 2) were seized. Medical

examination of Mukhram (PW2) was conducted and a

Written Information (Ext. Ka. 1) along with the medical

report (Ext. Ka. 8) of Mukhram (PW2) was given to the

police by Om Pal Singh (PW3).

3. An FIR (Ext. Ka. 5) was registered on 09.10.2000

at 15:30 hrs. After completion of the investigation, a charge-

sheet (Ext. Ka. 4) was filed by Sub-Inspector Gurbachan

Singh (PW5).

4. The case was committed to the Court of Session.

5. Charges were framed against the respondents-

accused persons. They pleaded not guilty and claimed to be

tried.

6. In order to bring home the guilt of the accused

persons, prosecution examined as many as eight witnesses.

7. Statements of accused persons were recorded

under Section 313 of the Code of Criminal Procedure, 1973,

wherein they denied the entire evidence of the prosecution.

8. According to accused Ahmad Hasan, a case of

murder of one Ismail was pending against forest employee

Shiv Kumar, Mukesh and Sukhpal, in which he (Ahmad

Hasan) was a witness. Therefore, in order to put pressure on

him, he has been falsely implicated in the present case.

9. The case of the accused Barisu and Tahir is that

the police had taken them from their house and implicated

them in this false case. In support of their case, they have

examined Mohammad Idrish (DW1) in their defence

evidence.

10. Learned Trial Court heard arguments, appreciated

the evidence and held that the prosecution has failed to

prove its case against the accused persons beyond all

reasonable doubt.

11. Mr. S.S. Adhikari, learned Deputy Advocate

General, submitted that learned Trial Court has completely

overlooked the glaring facts of the case, according to which,

the involvement of accused persons has been proved;

evidence of prosecution's witnesses are trustworthy;

therefore, judgment of acquittal is not justified in the eyes of

law.

12. On the other hand, Mr. Mohd. Umar, learned

counsel for the respondents, supported the impugned

judgment.

13. The law is well settled that the judgment of

acquittal strengthen the presumption of the innocence of the

accused. It is equally the duty of the Court to see that the

guilt do not escape punishment. Therefore, I have carefully

assessed the evidence, adduced by the prosecution.

14. (PW1) Rakesh Singh, (PW2) Mukhram, (PW3) Om

Pal Singh and (PW4) Hari Ballabh Pant were members of the

arresting party. They have reiterated the statements

mentioned in the Written Information (Ext. Ka. 1) in their

examination-in-chief.

15. (PW5) Sub-Inspector Gurbachan Singh and (PW7)

Sub-Inspector Ram Bahadur Singh are Investigating Officer.

16. (PW6) Assistant Sub-Inspector Jagdish Kumar is

the scriber of the First Information Report (Ext. Ka. 5).

17. According to Dr. R.R. Verma (PW8), on

09.10.2000 at 1:30 p.m., he had examined the injuries of

Mukhram (PW2).

18. As per the prosecution's case, respondent-accused

Tikam Singh had fired and other accused persons had hit

Mukhram (PW2) with sticks, in which, Mukhram (PW2)

received injuries, and, thereafter, a Recovery Memo

(Ext.Ka.2) was prepared on the spot, but, these alleged

incidents are not mentioned in the Recovery Memo

(Ext.Ka.2).

19. According to the prosecution, Mukhram (PW2) was

assaulted by accused persons with sticks at the scene of the

incident. Mukhram (PW2) has stated in his cross-

examination that he was hit only by Tahir. Tahir hit him

twice with a stick.

20. Rakesh Singh (PW1) has stated that Recovery

Memo (Ext.Ka.2) did not mention that Mukhram (PW2) was

injured and respondent-accused Tikam Singh had fired, nor

did the Recovery Memo (Ext.Ka.2) contain the names of

those who assaulted with sticks.

21. Rakesh Singh (PW1) has stated that the Recovery

Memo (Ext.Ka.2) was prepared on the spot and the Written

Report (Ext.Ka.1) was written at the police station. Mukhram

(PW2), in his cross-examination, has stated that Written

Report (Ext.Ka.1) and Recovery Memo (Ext.Ka.2) were

prepared at the police station. Om Pal Singh (PW3) has

deposed that the Written Report (Ext.Ka.1) and Recovery

Memo (Ext.Ka.2) were written on the spot.

22. As per the Written Information (Ext.Ka.1),

Mukhram's medical report was also available at the time of

lodging the First Information Report. On the contrary,

Mukhram (PW2) has stated that he went to get his

treatment after the Written Report (Ext.Ka.1) was prepared

at the police station.

23. Hari Ballabh Pant (PW4) has stated that the Wood,

Saw, Axe and Hollow Cartridge were sealed on the spot.

Rakesh Singh (PW1) has stated that none of these articles

were sealed on the spot.

24. Written Information (Ext.Ka.1) states that the

accused persons were given copies of the Recovery Memo

(Ext.Ka.2). Rakesh Singh (PW1) and Om Pal Singh (PW3)

have stated that copy of the Recovery Memo (Ext.Ka.2) was

not given to the accused persons.

25. After appreciating the evidence available on

record, material contradictions are found in the evidence of

the witnesses, examined by the prosecution. Therefore, the

statements of the prosecution's witnesses do not inspire

confidence. No positive, cogent and reliable evidence are

found to be placed on record against the respondents-

accused persons by the prosecution to prove its case beyond

all reasonable doubt.

26. On a detailed examination of the evidence of the

prosecution, this Court upholds the view taken by learned

Trial Court. In my considered view, the prosecution has

failed to establish the commission of alleged offence by

respondents-accused persons beyond all reasonable doubt.

Therefore, I see no reason to interfere with the impugned

judgment, passed by learned Trial Court.

27. As a result, Government Appeal is liable to be

dismissed; the same is dismissed accordingly.

28. Respondent No.1-Tikam Singh is on bail. His bail

bonds are cancelled and sureties are discharged.

29. Respondent No.2-Barisu, Respondent No.3-Tahir

and Respondent No.4-Ahmad Hasan are in judicial custody.

They shall be released from jail forthwith, in case, they are

not otherwise required in any other case.

30. Registry is directed to provide a copy of this

judgment to the Superintendent of District Jail, Haridwar and

the Trial Court for intimation and compliance.

__________________ ALOK KUMAR VERMA, J.

Dt: 15th May, 2023 JKJ/Neha