Uttarakhand High Court
Raj Singh vs State Of Uttarakhand on 24 May, 2024
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
24th MAY, 2024
CRIMINAL APPEAL NO.217 OF 2008
Raj Singh .....Appellant
Versus
State of Uttarakhand .....Respondent
Counsel for the Appellant : Ms. Aklema Parveen, Amicus
Curiae.
Counsel for the State : Mr. Pratiroop Pandey, AGA.
With
CRIMINAL APPEAL NO.218 OF 2008
Raj Singh .....Appellant
Versus
State of Uttarakhand .....Respondent
Counsel for the Appellant : Ms. Aklema Parveen, Amicus
Curiae.
Counsel for the State : Mr. Pratiroop Pandey, AGA.
With
CRIMINAL APPEAL NO.225 OF 2008
Virendra alias Maunarodh .....Appellant
Versus
State of Uttarakhand .....Respondent
Counsel for the Appellant : Ms. Aklema Parveen, Amicus
Curiae.
Counsel for the State : Mr. Pratiroop Pandey, AGA.
2
With
CRIMINAL APPEAL NO.226 OF 2008
Vipin Tyagi .....Appellant
Versus
State of Uttarakhand .....Respondent
Counsel for the Appellant : Ms. Aklema Parveen, Amicus
Curiae.
Counsel for the State : Mr. Pratiroop Pandey, AGA.
With
CRIMINAL APPEAL NO.227 OF 2008
Virendra alias Maunarodh and Vipin Tyagi .....Appellants
Versus
State of Uttarakhand .....Respondent
Counsel for the Appellants : Ms. Aklema Parveen, Amicus
Curiae.
Counsel for the State : Mr. Pratiroop Pandey, AGA.
Hon'ble Alok Kumar Verma,J.
The appellant - accused Raj Singh has been
convicted and sentenced to undergo rigorous imprisonment for
a period of seven years and a fine of Rs.5,000/- for the
offence under Section 307 read with Section 34 of the Indian
Penal Code, 1860 (in short, "IPC") in Sessions Trial No.123 of
2007, against which he has filed Criminal Appeal No.217 of
2008.
2. The appellant - accused Raj Singh has been further
convicted and sentenced to undergo rigorous imprisonment for
a period of three years along with a fine of Rs.2,000/- for the
offence under Section 25 of the Arms Act, 1959 in Sessions
Trial No.124 of 2007 against which he has filed Criminal
Appeal No.218 of 2008.
3. The appellant - accused Virendra alias Maunarodh
has been convicted and sentenced to undergo rigorous
imprisonment for a period of three years along with a fine of
Rs.2,000/- for the offence under Section 25 of the Arms Act,
1959 in Sessions Trial No.125 of 2007 against which he has
filed Criminal Appeal No.225 of 2008
4. The appellant - accused Vipin Tyagi has been
convicted and sentenced to undergo rigorous imprisonment for
a period of three years along with a fine of Rs.2,000/- for the
offence under Section 25 of the Arms Act, 1959 in Sessions
Trial No.126 of 2007 against which he has filed Criminal
Appeal No.226 of 2008.
5. The appellants - accused Virendra alias Maunarodh
and Vipin Tyagi have been convicted and sentenced to
undergo rigorous imprisonment for a period of seven years
each along with a fine of Rs.5,000/- each for the offence
punishable under Section 307 read with Section 34 IPC in
Sessions Trial No.123 of 2007 against which they have filed
Criminal Appeal No.227 of 2008.
6. These five Appeals have arisen from a common
judgment dated 16.07.2008, passed by learned Additional
Sessions Judge/Ist FTC, Haridwar, therefore, these Appeals
are being decided by this common judgment. The Criminal
Appeal No.217 of 2008 will be treated as a leading case.
7. The prosecution case briefly stated is that Dhirendra
Singh Rawat, Station House Officer, (PW3) along with Sub-
Inspector J.P. Thapliyal (PW1), Constable Parvesh Sharma
(PW2) and other police personnel were patrolling on
13.12.2006. When the police party reached near Shivmurti
Tiraha in Jhabreda, they got an information from an informer
at 12:45 hrs. that three miscreants involved in dacoity in the
area of police station Nangal are going towards Lakhnota in a
grey colored numberless Maruti car. On receiving this
information, as soon as the police team along with the
informer reached ahead of Village Kotwal, the said car was
seen coming. The police team signaled them to stop but they
opened fire twice at the police team. The police team narrowly
escaped from this firing. These three miscreants got down
from the car and started running towards the forest. The
police party arrested them at around 13:00 hrs. They were
searched by the police team. A country made pistol 315 bore
(Material Ext.1), a spent cartridge (Material Ext.2) in its barrel
and a live cartridge (Material Ext.3) were recovered from the
accused - Raj Singh. A country made pistol 315 bore (Material
Ext.5), a spent cartridge (Material Ext.6) in its barrel and two
live cartridges (Material Ext.7 and 8) were recovered from the
possession of the accused Virendra alias Maunarodh. A country
made pistol 315 bore (Material Ext.10), a cartridge (Material
Ext.11) which had missed and got stuck in its barrel and a live
cartridge 315 bore (Material Ext.12) were recovered from the
accused - Vipin Tyagi. Despite efforts, member of the public
could not be secured to testify. The articles recovered from the
appellants - accused were seized by the police vide Recovery
Memo (Ext. Ka.1). The Recovery Memo (Ext. Ka. 1) was
signed by the witnesses present and the appellants - accused.
Copy of the memo was given jointly to the accused.
8. An FIR was lodged pursuant to the Recovery Memo
(Ext. Ka. 1). The FIR (Ext. Ka. 2) was registered by Constable
Gopal Ram (PW4).
9. The investigation was handed over to the Sub-
Inspector Satyapal Singh Rana (PW5). The statements of the
witnesses were recorded by him. A Site Plan (Ext. Ka. 4) was
prepared by him. Necessary sanction to institute a prosecution
under Section 25 of the Arms Act, 1959 were obtained. Upon
conclusion of the investigation, charge-sheets were filed.
10. The Trial Court framed charges against the
appellants - accused. As the appellants - accused pleaded
innocence, trial was held.
11. In order to establish the accusation, prosecution has
examined five witnesses.
12. The statements of the appellants - accused under
Section 313 of the Code of Criminal Procedure, 1973 were
recorded. They denied all the incriminating evidence, produced
by the prosecution.
13. The appellants - accused have not produced any
evidence in defence.
14. Ms. Aklema Parveen, learned Amicus Curiae,
contended that the learned Additional Sessions Judge erred in
convicting the appellants relying the wrong facts. The place
from where the appellants - accused are said to have fired is
not shown in the Site Plan (Ext. Ka. 4). There are material
contradictions in the statements of the witnesses and the
ballistic report has not been filed by the prosecution.
15. On the other hand, Mr. Pratiroop Pandey, Advocate,
has supported the impugned judgment.
16. There is a charge of the offence punishable under
Section 307 read with Section 34 IPC. Section 307 IPC deals
with the offence of attempt to murder. Section 307 IPC reads
as under:-
"Section 307. Attempt to murder. - Whoever
does any act with such intention or knowledge, and
under such circumstances that, if he by that act
caused death, he would be guilty of murder, shall be
punished with imprisonment of either description for
a term which may extend to ten years, and shall
also be liable to fine; and if hurt is caused to any
person by such act, the offender shall be liable
either to imprisonment for life, or to such
punishment as is hereinbefore mentioned.
Attempts by life convicts.- When any person
offending under this section is under sentence of
imprisonment for life, he may, if hurt is caused, be
punished with death."
17. In order that a person may be guilty of attempt to
murder, two ingredients of the offence must be proved (i) an
intention or knowledge of committing murder, and, (ii) the
doing of an act towards it. The offence of attempt to commit
murder punishable under Section 307 IPC is constituted by the
occurrence of mens rea followed by an actus reus.
18. The prosecution witness Sub-Inspector J.P. Thapliyal
(PW1), Constable Parvesh Sharma (PW2) and Inspector
Dhirendra Singh Rawat (PW3) are witnesses to the alleged
incident. They deposed that on 13.12.2006, when they were
patrolling, an information was received from the informer that
three miscreants involved in dacoity in the area of Police
Station Nangal are going in a car. When they reached ahead of
Village Kotwal, the said car was seen by them. They signaled
them to stop but they opened fire twice at them. They were
arrested and country made pistols, spent cartridges and live
cartridges were recovered from their possession.
19. The prosecution has to establish beyond all
reasonable doubt that the alleged offence was committed by
the appellants - accused.
20. According to the prosecution, the police team was in
a private vehicle at the time of the incident. It has been stated
by Sub-Inspector J.P. Thapliyal (PW1) in his cross-examination
that he was sitting on the rear seat of the driver in the vehicle
whereas it has been stated by Constable Parvesh Sharma
(PW2) in his cross-examination that the Sub-Inspector J.P.
Thapliyal (PW1) was sitting on the front seat of the vehicle.
21. The Investigating Officer has not shown the place in
the Site Plan (Ext. Ka.4), from which place the appellants had
fired at the police team. There is no mention in the Recovery
Memo (Ext. Ka. 1) as to which appellant had fired the bullet
whereas the Inspector Dhirendra Singh Rawat (PW3) has
stated in his cross-examination that Raj Singh and Virendra
alias Maunarodh had opened fire. The prosecution witness
Sub-Inspector J.P. Thapliyal (PW1) has stated in his cross-
examination that they were getting down from the vehicle
when the accused fired, whereas Constable Parvesh Sharma
(PW2) has stated in his cross-examination that they were 10-
15 steps away from their vehicle when the accused fired.
22. According to the prosecution, the recovered articles
were sealed and samples of seal were prepared on the spot
but the said samples have not been produced by the
prosecution.
23. Sub-Inspector Satyapal Singh Rana (PW5), the
Investigating Officer, has stated in his cross-examination that
the recovered firearms, spent cartridges and live cartridges
were not sent to the Forensic Science Laboratory by him.
24. Mr. Pratiroop Pandey, Advocate, argued that the
country made pistols and the said cartridges were sent to the
Forensic Science Laboratory on 27.01.2007 from the police
station Jhabreda. But the prosecution has not been able to
explain in whose custody the said articles were kept from
13.12.2006 to 27.01.2007. No bullets have been recovered
from the alleged place of incident. The place from where the
appellants - accused are said to have fired is not shown in the
Site Plan (Ext. Ka.4). The prosecution has not filed the report
of the Forensic Science Laboratory. The prosecution has failed
to prove that the alleged recovered country made pistols were
in working order.
25. Going by the number of discrepancies in the
prosecution case coupled with the contradictory statements by
prosecution witnesses, the entire prosecution case vitiates and
leads for discrediting its version. On a close scrutiny of the
evidence, these discrepancies are found comparatively of a
major character and go to the root of the prosecution case.
26. Therefore, this Court accepts the case of the
appellants. Consequently, these five Appeals are allowed and
the judgment dated 16.07.2008, passed by learned Additional
Sessions Judge/Ist FTC, Haridwar in Sessions Trial No.123 of
2007, Sessions Trial No.124 of 2007, Sessions Trial No.125 of
2007 and Sessions Trial No.126 of 2007 are set aside. The
appellants - accused Raj Singh, Virendra alias Maunarodh and
Vipin Tyagi are acquitted of the charges under Section 307
read with Section 34 IPC and Section 25 of the Arms Act,
1959.
27. A copy of this judgment be placed on the record of
the connected Criminal Appeals.
___________________
ALOK KUMAR VERMA, J.
Dt:24.05.2024
Pant/
