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Uttarakhand High Court · body

2006 DIGILAW 35 (UTT)

Anand Singh v. State of Uttaranchal

2006-02-21

J.C.S.RAWAT

body2006
JUDGEMENT The instant appeal has been directed against the judgment and order dated 23'" June, 1982 passed by the then Sessions Judge, Chamoli in Sessions Trial No. 1 of 1982 convicting the accused-Anand Singh u/s 427 and 436 I.P.C. and sentenced him two years and four years R.I. respectively. 2. Feeling aggrieved by the said judgment and order, the instant appeal has been preferred. 3. Brief facts for the -disposal of this appeal are that Smt. Jethi Devi was the wife of appellant-Anand Singh and she remained issueless. It was also alleged that the behaviour of the accused was cruel towards his wife. In the year 1966, the appellant-Anand Singh sent his wife to the house of Kalam Singh and took Rs. 1400/- in exchange and his wife started residing with the complainant-Kalam Singh. The appellant was not happy that she is residing in the same village. He wanted to send her outside the village and to stay in other village. Inspite of the desire of the appellant-Anand Singh, Smt. Jethi Devi continued in the house of Kalam Singh in the same village as his wife. On 29-03-1969 at about 11:00 AM the appellant-Anand Singh came to the house of the complainant-Kalam Singh with a dynamite (explosive substance) and he installed the dynamite in his house. Due to the broke of dynamite the walls got cracked but the house could not be demolished. Thereupon the appellant started to destroy the house by Sabbal and he also displaced the roof stone from his house and thus caused a damage of Rs. 700/- to the complainantKalam Singh. The complainant along with his wife was not at his house at the time of the incident. He was away in the other village and in his absence the incident took place. When the complainant reached at his house, Kishan Singh and others told him about the incident and went to the outpost of Patti Patwari where Patti Patwari was not available on the date of the incident. Thereafter, he lodged the report on the next day when Patwari came to his outpost. Thereafter, the matter was investigated and the chargesheet was submitted against the accused-appellant. 4. The accused-appellant was charged u/s 427 and 436 I.P.C. 5. The accused-appellant denied the charges and claimed trial. 6. Thereafter, he lodged the report on the next day when Patwari came to his outpost. Thereafter, the matter was investigated and the chargesheet was submitted against the accused-appellant. 4. The accused-appellant was charged u/s 427 and 436 I.P.C. 5. The accused-appellant denied the charges and claimed trial. 6. The prosecution in support of his case adduced the evidence of Kalam Singh-complainant PW-1, Govind Singh-PW2, Abbal Singh, Investigating Officer-PW3. Kalam Singh PW1 is the complainant and Govind Singh PW2 is alleged to have been the eyewitness of the incident. The prosecution also proved the F.I.R. Ex.KaA. 7. The accused-appellant stated in his statement recorded u/s 313 Cr.P.C. that Smt. Jethi Devi was his wife and she was taken by Kalam Singh complainant in his absence from his house and she had been living in the house of the complainant as his wife. He also stated that he was very unhappy with the complainant that he had taken his wife from his house. He had taken a plea of alibi and stated that on the date of the incident he was present in the unit. 8. I have heard learned counsel for the appellant and learned A.G.A. and perused the record. 9. The prosecution has to prove as to whether the appellant exploded the house of the complainant-Kalam Singh by igniting the dynamite and caused the damage to the complainant. Kalam Singh-PW1 has narrated the incident as I have already stated In para 3" of my judgement. Govind Singh PW2 is alleged to be the eyewitnesses of the incident. He has stated that he heard the sound of dynamite, he came outside of his house and thereafter he saw that the appellant was dismantling the house of the house of the complainant by sabbal and thereafter the witness Govind Singh PW2 went inside his house. Abbal Singh PW3 is the investigating Officer who has investigating' the matter and submitted the chargesheet. Abbal Singh-PW3, the Investigating Officer has stated that he has submitted the chargesheet in the year 1969: Perusal of the record reveals that the said chargesheet was filed in the court in the year 1980 after a lapse of 11 years. 10. Learned counsel for the appellant contended that the prosecution had not proved its case beyond reasonable doubt. He has further contended that the testimony of PW2 is. not cogent and credible. 10. Learned counsel for the appellant contended that the prosecution had not proved its case beyond reasonable doubt. He has further contended that the testimony of PW2 is. not cogent and credible. He further contended that the name of Govind Singh PW2 is not in the F.I.R. The name of Kisan Singh has been indicated in the F.I.R. It was further pointed out that the house of Govind Singh PW2 is situated near the house of the complainant as indicated in the site plan. It was further contended that there is nothing iota of evidence on record that Govind Singh PW2 ever stated about the incident to the complainant-Kalam Singh and it is not on record as to when Govind Singh-PW2 informep the complainant about the incident. Learned A.G.A. refuted the contention' and contended that the F.I.R."c1early reveals that Kisan Singh and others narrated the incident. He further contended that the name of Govind Singh-PW2 is not specifically mentioned but the complainant has written others in the F.I.R. and it is sufficient to indicate that his presence is proved. Perusal of the record also reveals that Govind SinghPW2 beiongs to the same village and he is the resident of nearby house. If he would have been present there and he would have narrated the incident to the . complainant naturally his name should have been mentioned in the F.I.R. The name of Govind Singh-PW2 was not stated in his evidence which was recorded in the year 1982. These facts lead me to take the conclusion that PW2 Govind Singh had not seen the incident. It is an afterthought fact. The evidence of Govind Singh was created to show that he was the eyewitness of the incident. 11. It was further contended on behalf of the defence that the conduct of Govind Singh-PW2 is unnatural. He has stated that when he came out, he saw that the house of the complainant' was being dismantled. He instead of coming on the spot and enquired from the appellant as to why he is doing the mischief, he went inside the house and he did not intimate other villagers. It was quite natural if a house of a villager in his absence was being damaged, the other villager would definitely call the other villagers and they would try to rescue from such damage. The conduct of the witness. as such is unnatural. It was quite natural if a house of a villager in his absence was being damaged, the other villager would definitely call the other villagers and they would try to rescue from such damage. The conduct of the witness. as such is unnatural. The conduct of the witness also leads to the conclusion that' he was not present at the spot. 12. The evidence of PW1 Kalam Singh is not corroborated by other circumstances. It was pointed out that the I.O. has not collected material connecting to the dynamite from the spot. He has admitted in 'his cross examination that he could not get any material of dynamite at the spot and he has further admitted in his cross examination that he has not taken possession of the particles of the dynamite found at the spot. If the Investigating Officer could have taken this connecting evidence from the place of occurrence and it would have been sent to the chemical examiner; it could have corroborated the testimony 'of the complainant. This fact also belies the testimony of the complainant. It was further contended by the learned A.G.A.' that the appellant had taken a plea of alibi and he had not proved that plea by any cogent evidence. Hence it cannot be said that the accused-appellant has not committed the offence as alleged by him. Learned counsel for the defence refuted the contention. It is well settled principle of law that the prosecution has to stand on its own leg. If alibi has not been proved by the accused, it can not be said that the prosecution case would stand proved without cogent and credible event. 13. In view of forgoing discussion, the prosecution did ,not prove the case beyond reasonable doubt ,that the incident took place and the appellant caused damage to the property of the complainant, the prosecution had not proved the case beyond hilt. As such, the appellant is entitled to get benefit of doubt. 14. The appeal is allowed. The appellant-Anand Singh is acquitted from the charge levelled against him. The judgment and order dated 23-06-1982 passed by the Sessions Judge, Chamoli in S.T, No. 1/1982 is set aside. 15. If appellant-Anand Singh is in Jail. He shall be released forthwith, if not wanted in any other case. 16. Let the lower court record be remitted back for compliance, Compliance be submitted within two months.