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2013 DIGILAW 565 (UTT)

Mahak Singh v. State of Uttarakhand

2013-08-30

ALOK SINGH

body2013
JUDGMENT : Alok Singh, J. Present appeal is directed against the judgment and order dated 09.05.2013, passed by Additional Sessions Judge, Roorkee, District Haridwar in Sessions Trial No. 391 of 2012, whereby appellants were held guilty for the offence punishable under Section 308 read with Section 34 IPC and under Section 452 IPC; appellants were sentenced to undergo rigorous imprisonment for a period of 05 years and to pay fine of Rs.3,000/- each, in default in making payment of fine, to undergo additional imprisonment of one year for the offence punishable under Section 308 IPC read with Section 34 IPC; to undergo rigorous imprisonment for a period of 03 years and to pay fine of Rs.2,000/- each, in default in making payment of fine, to undergo additional imprisonment of six months, for the offence punishable under Section 452 IPC. Brief facts of the present case inter alia are that on 30.10.2008, at 06:30 p.m., an FIR was got registered by PW1 Ramesh Kumar with Police Station Kotwali Manglaur, District Haridwar inter alia stating therein that on 20.10.2008, at about 09:00 p.m. in the night, he was having dinner with his wife Smt. Bala (PW2) in his house; meanwhile, appellants armed with sticks and iron rods entered into the house of the PW1 and PW2 and started abusing them and told to PW1 that you would be given lesson for registering the FIR against them for the kidnapping of his daughter; thereafter appellants started beating PW1 and PW2 with the sticks and iron roads, carried by them; having heard hue and cry, Sugan Pal (PW3) and Samay Singh (PW4) arrived at the spot and witnessed the incident and saved PW1 and PW2 form the clutches of the appellants; appellants fled away from the spot having extended the life threat by saying today you could be saved, however, PW1 and PW2 would be killed in future; thereafter PW1 and PW2 were taken to the Government Hospital, Roorkee, where they were provided medical treatment and medico legal report was prepared. Learned trial court, after submission of the charge-sheet and committal of the trial to the court of Sessions, was pleased to frame the charges against the appellants for the offences punishable under Section 308 IPC read with Section 34 IPC, Section 323 IPC read with Section 34 IPC, Sections 452, 504, 506 IPC. Appellants denied the charges and claimed trial. Learned trial court, after submission of the charge-sheet and committal of the trial to the court of Sessions, was pleased to frame the charges against the appellants for the offences punishable under Section 308 IPC read with Section 34 IPC, Section 323 IPC read with Section 34 IPC, Sections 452, 504, 506 IPC. Appellants denied the charges and claimed trial. To prove the prosecution story, injured Ramesh Kumar (PW1), his wife Smt. Bala (PW2), Sugan Pal (PW3), Samay Singh (PW4), Dr. Raj Kumar (PW5), Constable Vipin Kumar (PW6) and SI V.L. Bharti (PW7) were examined and thereafter statements of the appellants were also recorded under Section 313 of the Code of Criminal Procedure. From the side of the defence, DW1 Smt. Renu, daughter of PW1 and PW2 was examined as defence witness. Learned trial court, having perused entire material available on the court’s record, was pleased to acquit the appellants for the offence punishable under Section 323 IPC read with Section 34 IPC, Sections 504, 506 IPC, however, appellants were found guilty for the offence punishable under Section 308 read with Section 34 IPC and under Section 452 IPC. Feeling aggrieved, appellants have preferred present appeal. I have heard Ms. Neetu Singh, learned counsel for the appellants and Mr. S.K. Chaudhary, learned AGA for the State and have carefully perused the record. Appellant Mahak Singh, in his statement, recorded under Section 313 of the Code of Criminal Procedure, in reply to question nos. 13 and 15, stated that Renu (DW1), real daughter of PW1 got married with the brother of the appellant Mahak Singh, namely, Shiv Kumar, out of her free will without the consent of PW1 and PW2, therefore, PW1 and PW2 got registered a false case against them due to enmity. It was further stated that complainant was habitual drinker and on the date of incident, he fell down having consumed liquor and his head stucked with the hand pump and he sustained head injury, PW1 lodged an FIR with concocted story. Renu, real daughter of PW1 and PW2, stated on oath that she was in love of Shiv Kumar, real brother of appellant Mahak Singh and she got married with him out of her own free will without any pressure or coercion without the consent of PW1 and PW2, therefore, his father (PW1) was having enmity with the family of Shiv Kumar, therefore, appellants were implicated falsely. Let me now examined prosecution case in the light of probable defence, stated by the appellants before the learned trial court. Incident is said to have taken place on 20.10.2008, at about 09:00 p.m. while FIR in question was got registered on 30.10.2008, after ten days. The explanation furnished was that PW1 and PW2 were busy in compromising the matter as well as in the treatment of PW1, therefore, report could not be lodged promptly. The explanation furnished in lodging the FIR with delay of 10 days does not inspire confidence. As per the prosecution story, PW1 and PW2, both received injuries while no medico legal report of PW2 was produced on the court’s record, only medico legal report of PW1 was produced. As per the medico legal report of PW1, Dr. Raj Kumar (PW5) noticed only two injuries on the persons of PW1 i.e. one lacerated wound on the right forehead and complaint of pain on the left shoulder. Ms. Neetu Singh, learned counsel for the appellants, seems to be correct in arguing that had there been assault by all the three appellants with sticks and iron rods, PW1 would have received more injuries and abrasions on his persons. The defence of the appellants that PW1 received injury by falling on the hand pump cannot be ruled out completely. There is another aspect of the matter, PW1 during his cross-examination, stated that before witness i.e. PW4 and PW3 could arrived he had received the injuries, PW3 Sugan Pal also stated that PW1 and PW2 received injuries before his arrival in their house. PW3 further stated that Samay Singh (PW4) arrived in the house of PW1 and PW2 after the PW3. In view of the statement of PW1 and PW3, PW3 was not eyewitness and he allegedly arrived in the house of PW1 and PW2 after the incident and admittedly PW5 reached in the house of PW1 and PW2 after the arrival of PW3, therefore, PW5 was also not eyewitness. Blood stained clothes of PW1 were also not handed over to the police as stated by Investigating Officer (PW7). This Court is conscious about the fact that sole testimony of the injured can be relied upon if same seems to be reliable and trustworthy. Blood stained clothes of PW1 were also not handed over to the police as stated by Investigating Officer (PW7). This Court is conscious about the fact that sole testimony of the injured can be relied upon if same seems to be reliable and trustworthy. However, in view of the defence that PW1 sustained injuries by falling on the hand pump cannot be ruled out completely, therefore, reasonable doubt has cropped up about the genuineness of the prosecution story, therefore, statement of PW1 cannot be relied upon. Consequently, present appeal is allowed. Impugned judgment and order passed by learned Additional Sessions Judge, Roorkee, District Haridwar in Sessions Trial No. 391 of 2012, is set aside. Appellants stand acquitted from the charges leveled against them. Appellants are in jail. They shall be released forthwith if not wanted in any other case. Registry is directed to send a copy of this judgment to the court below along with lower court record for information and compliance.