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2012 DIGILAW 747 (UTT)

State of Uttaranchal v. Indra Nath

2012-12-11

BARIN GHOSH, U.C.DHYANI

body2012
Judgment U.C. Dhyani, J. Accused-respondents Indra Nath, Mausam Nath, Akbar Nath, Daryav Singh, Kalu, Vinod, Nadeem alias Kadeem, Jinder, Office alias Abid, Chand and Zabir were exonerated of the charges framed against them by learned court below. They faced charges in respect of offences punishable under Sections 148, 302/149, 324/149, 436, 363, 376(g) IPC. Accused-respondents Indra Nath, Mausam Nath and Akbar Nath also faced the charge for the offence punishable under Section 25 Arms Act. It is against such Judgment and Order dated 30.09.2006 that the State has preferred present Government Appeal. 2. The criminal law, in the instant case, was set into motion on the complaint (Ext. Ka-1) of one Bhola Nath. On the basis of such complaint, chik FIR (Ext. Ka-3) was lodged on 16.04.1999 at 3:00 p.m. against Raja, Bagga, Gurjar alias Zahir Husain, Kalu and Jinder in PS Pathri in relation to the offences punishable under Sections 148, 149, 302, 436 and 323 IPC. Investigation of the case was conducted by PW 17 SI O.P.Sirohi and PW 18 SSI Deepak Malik. After completion of the investigation, charge-sheets were submitted against the accused-respondents, on the basis of which, charges were framed by learned trial court. As many as 18 prosecution witnesses were examined on behalf of the prosecution. After affording the opportunity to explain the incriminating evidence in statements under Section 313 Cr.P.C., learned court below proceeded to hear the arguments of learned prosecutor and learned defence counsel. After evaluating the evidence on record, learned court below did not find favour with the prosecution and acquitted the accused-respondents of the charges levelled against them. Aggrieved against the said judgment and order, present Government Appeal was preferred by the State. 3. Prosecution led the evidence through PW 1 Nazma, who was the daughter of the informant Bhola Nath. PW 1 said, among other things, that the incident took place in the dead of night. She woke up on hearing the sound of fire. Kalu and Bagga (absconders) fired with the country-made pistols upon Neetoo and Charan Nath. Neetoo and Charan Nath died. Some other 20-22 hooligans were also present there. She did not know the names of those hooligans, but could identify them. The miscreants set ablaze the dwelling places, robbed the belongings of the villagers and abducted PW 1’s sister Neeto and another girl Barkha. Tarvesh Kumar and Janeswar sustained injuries. She (PW1) was an illiterate woman. Some other 20-22 hooligans were also present there. She did not know the names of those hooligans, but could identify them. The miscreants set ablaze the dwelling places, robbed the belongings of the villagers and abducted PW 1’s sister Neeto and another girl Barkha. Tarvesh Kumar and Janeswar sustained injuries. She (PW1) was an illiterate woman. Neeto was raped. Her father lodged the report of this incident. [The fact of commission of rape was not mentioned by the father of victim in the complaint] In her cross-examination, she said that Daryav Singh and Vinod did not commit the incident in her presence. 4. PW 2 Kumari Neeto, who was the daughter of informant, said in her examination-in-chief that some 20-21 people fired upon them in the dead of night, as a result of which, many a people got injured. The hutments of some people were set ablaze by the accused-respondents. They also took her (PW 2) and Barkha Rani (PW 4) along with them. Jinder, Zaheer, Bagga and Raja molested them. In the cross-examination, PW 2 said that she (PW2) and PW 1 Nazma fell unconscious. She could not tell as to who set the hutments on fire. The discrepancies, which occurred in her statement recorded under Section 161 Cr.P.C. vis-à-vis the statement given in the court, were not reconciled. She admitted that respondents Vinod and Daryav Singh were not involved in the incident. A suggestion was put to her that some unknown people committed the offence, to which PW 2 denied. 5. PW 3 Bhola Nath (informant) said that the respondents caused the injuries to Charan Nath and Neetoo, who died on the spot. The respondents took Neeto and Barkha along with them, looted their (dwellers’) belongings and set the hutments on fire. In the cross-examination, PW 3 admitted that the names of respondents Nadeem and Kalu could not be mentioned in the complaint. The names of Nadeem and Kalu were not disclosed to the Investigating Officer. There was no light in PW 3’s room. The lamppost was erected at a distance of 10-12 yards from the scene of occurrence. PW 1 Nazma was assaulted. PW 2 Neeto and PW 4 Barkha were abducted. Neetoo’s wife fled away from her hut. Neetoo and Charan Nath were killed. The fact of abduction of Neeto and Barkha was conspicuous by it’s absence in first information report. The lamppost was erected at a distance of 10-12 yards from the scene of occurrence. PW 1 Nazma was assaulted. PW 2 Neeto and PW 4 Barkha were abducted. Neetoo’s wife fled away from her hut. Neetoo and Charan Nath were killed. The fact of abduction of Neeto and Barkha was conspicuous by it’s absence in first information report. In his cross-examination, PW 3 said that there were 13 accused in all. Nobody sustained injuries of burns. 6. PW 4 Barkha Rani said, among other things, in her examination-in-chief, that the respondents killed Charan Nath and Neetoo, set the dwelling houses on fire. PW 4 also said that Neeto was abducted, but was set at liberty in the jungle. She (PW 4) was also taken away forcibly. PW 4 also said that Kalu got her (PW 4) married to his (Kalu’s) son Sanjeet. She also admitted that respondent Vinod Kumar and Daryav Singh were not present when the alleged occurrence took place. She admitted that she did not see any of the respondents setting fire on the dwelling houses. On further cross-examination, PW 4 said that she was married to Peenoo, who was the son of informant Bhola Nath. [On an earlier occasion, she said that she was got married to Sanjeet forcibly]. 7. PW 9 Janeshwar Nath said that some 8-9 miscreants came and fired upon him, Neetoo and other people. He could mention the names of Kalu, Jinder, Bagga, Zaheer, Raja and Chand only, who, according to him, were seen in the electric light. PW 10 Tarvesh Kumar said that some 11-12 people trespassed into his dera (dwelling house). PW 10 admitted that he could recognize only a few of them. Others were not recognized by him. PW 13 Abid Husain did not identify any of the respondents, who were present in the court on the date of his deposition. 8. PW 5 Rohtas Singh was a formal witness. PW 6 Dr. Bipin Kumar Prem was a radiologist, who conducted x-ray of wrist and elbow of Neeto. She was aged 17 years. PW 7 SI Jodh Singh Adhikari was the Investigating Officer. PW 7 admitted in his cross-examination that Neeto did not tell her that Mausam Nath, Indra Nath and Akbar Nath committed rape with her. PW 8 Laxmi Nath was the signatory to the inquest reports of Charan Nath and Neetoo. PW 11 Dr. She was aged 17 years. PW 7 SI Jodh Singh Adhikari was the Investigating Officer. PW 7 admitted in his cross-examination that Neeto did not tell her that Mausam Nath, Indra Nath and Akbar Nath committed rape with her. PW 8 Laxmi Nath was the signatory to the inquest reports of Charan Nath and Neetoo. PW 11 Dr. R.K.Pandey was the radiologist, who conducted x-ray of wrist and elbow of Barkha, who was above 18 years of age. PW 12 Dr. Pradeep Kumar conducted postmortem on the dead bodies of Neetoo and Charan Nath and proved the PMRs (Ext. Ka-9 & Ext Ka-10). PW 14 constable Jagpal Singh was a formal witness. 9. PW 15 Dr. Arti Dhaundiyal medically examined Neeto and proved the reports (Ext. Ka-11 & Ext. Ka-12). No definite opinion about the rape could be given. PW 15 also medically examined Barkha and proved reports (Ext. Ka-13 & Ext. Ka-14). No definite opinion about the rape could be given in respect of Barkha also. 10. PW 16 Dr. O.P. Agarwal examined the injuries of injured Janeshwar Nath, Tarvesh Kumar, Babloo Nath, Nazma, Neeto and Abid and proved their injury reports. PW 17 SI O.P. Sirohi was one of the investigating officers, who conducted investigation at some length. PW 18 Deepak Malik was the other IO, who also conducted investigation at some length. 11. Learned trial court found that there were material contradictions and discrepancies in the statements of prosecution witnesses. Out of five accused, who were named in the first information report, three accused were absconding. First information report was lodged against Raja, Bagga, Kalu, Gurjar alias Zahir and Jinder, but Raja, Bagga and Kalu were declared absconders and therefore, they did not face the trial. Only Jinder and Gurjar alias Jahir, out of those five named accused, were put to trial. There was inconsistency in the statements of prosecution witnesses, in as much as, none of the prosecution witnesses could name all the accused. Some of the prosecution witnesses disclosed the names of some of the accused persons, while other prosecution witnesses revealed the names of different set of accused-respondents. The names of a few respondents came to light only when the informant wrote an application to SSP, Haridwar. In the first information report, there was no indication of the abduction of Neeto and Barkha Rani. The informant was none other than the father of Neeto. The names of a few respondents came to light only when the informant wrote an application to SSP, Haridwar. In the first information report, there was no indication of the abduction of Neeto and Barkha Rani. The informant was none other than the father of Neeto. Barkha said that Neeto was not molested in her presence. There was material contradiction on the factum of alleged rape in the statement of Neeto vis-à-vis the evidence tendered by PW 15 Dr. Arti Dhaundiyal. The identity of the miscreants was also in doubt and the same was not established. On the basis of material inconsistencies found in the statements of the prosecution witnesses, learned court below did not think it proper to hold the accused-respondents guilty of the crime alleged against them. It appears that the names of the miscreants were divulged by the prosecution witnesses only on the basis of suspicion. We find no reason to differ from the findings arrived at by the court below. 12. When this Govt. Appeal was admitted on 12.02.1007, notices were directed to be issued to respondents no. 1 to 8. Registry submitted a report on 22.08.2012 that respondents no. 1 to 3 were served personally. Respondents no. 4 & 5 were not served. Respondents no. 6 & 7 were not residing at the given addresses. On 06.12.2012, when the Govt. Appeal was listed for final hearing, none appeared for respondents 1 to 3. Instead of directing the service of notices upon the rest of the respondents once again, we thought it proper to hear learned counsel for the State and peruse the evidence on record. Since it was not necessary to hear the respondents in case there was no substance in the Govt. Appeal, therefore, we proceeded to hear learned Deputy Advocate General and concluded the final hearing. 13. There is no scope of interference with the judgment rendered by the court below. Government Appeal preferred against the judgment dated 30.09.2006 is liable to be dismissed and is accordingly dismissed.