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2021 DIGILAW 473 (UTT)

STATE OF UTTARAKHAND v. DEVRAJ

2021-10-23

RAVINDRA MAITHANI

body2021
JUDGMENT Hon'ble Ravindra Maithani, J. (Oral) Instant appeal is preferred against the Judgment and Order dated 08.07.2003, passed in Sessions Trial No.484 of 1999, State vs. Devraj under Section 307 IPC and Sessions Trial No.485 of 1999, State vs. Devraj, under Section 25 of the Arms Act, 1959 (for short, “Arms Act"), by the court of 4th Fast Track Court/Additional Sessions Judge, Haridwar (for short, “the case"). 2. By the impugned judgment and order, the respondent Devraj (hereinafter referred to as “the accused") has been acquitted of the charges under Section 307 IPC and Section 25 of the Arms Act. 3. Facts briefly stated are that, on 25.05.1998, when PW1 Dhanpal Singh was asleep in his Ghair (a kind of courtyard). Suddenly, at 03:00 AM, he woke up and found that the respondent Devraj, the accused was standing near his cot holding a country made pistol in his hands. The DW1 Dhanpat Singh questioned the accused, at which, the accused fired at him. But, fortunately, the country made pistol could not fire. The informant raised alarm. Thereafter, Vijaypal, Dhanpat and other villagers came and apprehended the accused. From his possession, a country made pistol and a cartridge were recovered. An FIR of this incident was lodged. Investigation carried out. After investigation, a charge-sheet under Section 307 IPC and another charge under Section 25 of the Arms Act was submitted against the accused. These charge-sheets are basis of the cases. Accused was charged for the offences punishable under 307 IPC and Section 25 of the Arms Act, to which, he denied and claimed trial. 4. In order to prove its case, the prosecution examined four witnesses, namely, PW1 Dhanpal, PW2 Vijay Pal, PW3 Constable Charan Singh and PW4 Sub Inspector Dataram. Accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, “the Code"). According to him, he has been falsely implicated due to enmity. 5. In his defence, defence witness DW1 Sompal was examined. After hearing the parties, by the impugned judgment and order, accused has been acquitted. 6. Heard learned counsel for the parties and perused the record. 7. Learned State counsel would submit that the findings recorded in the impugned judgment and order are against facts. The statements of PW1 Dhanpal Singh and PW2 Vijay Pal inspire confidence. They have mutually corroborated their statements. 6. Heard learned counsel for the parties and perused the record. 7. Learned State counsel would submit that the findings recorded in the impugned judgment and order are against facts. The statements of PW1 Dhanpal Singh and PW2 Vijay Pal inspire confidence. They have mutually corroborated their statements. Their evidence is supported by the evidence of PW3 Constable Charan Singh and PW4 Sub Inspector Dataram. 8. It is submitted that merely because the recovery memo was not signed by the accused, it cannot be said that the whole case is false. There has been explanation for delay in lodging the FIR. Prosecution has been able to prove its case beyond reasonable doubt. But, the learned court below committed an error in acquitting the accused of the charges. Therefore, it is submitted that the appeal deserves to be allowed. 9. On the other hand, learned Amicus Curiae would submit that the recovery memo was not signed by the accused; FIR is delayed, but, there is no explanation for it; it is no injury case and the accused has categorically stated in his examination under Section 313 of the Code that he was picked up from his home, beaten up and taken to the police station. 10. Learned Amicus Curiae also argued that there is no forensic report to ascertain, that the allegedly recovered article was an arm. 11. Admittedly, there had been enmity between the accused and the informant. PW1 Dhanpal has admitted it. PW1 Dhanpal has reiterated the version of FIR in his examination before the court. According to him, on the date of incident, he was asleep at his Ghair, when at 03:00 AM in the morning he woke up, he saw the accused standing near his cot. He questioned the accused as to what was he doing there? At it, according to the witness, the accused tried to fire at the witness, but, it missed. The country made pistol could not fire. This witness raised alarm. At which, Vijay Pal, Dhanpal and other villagers came and caught hold of the accused. From the possession of the accused, a country made pistol and a live cartridge were recovered. The accused was brought back home and he was confined in a room whole night and in the morning FIR was lodged. 12. This witness raised alarm. At which, Vijay Pal, Dhanpal and other villagers came and caught hold of the accused. From the possession of the accused, a country made pistol and a live cartridge were recovered. The accused was brought back home and he was confined in a room whole night and in the morning FIR was lodged. 12. The PW2 Vijay Pal has, in his examination in chief stated about the incident, as to how, after hearing the alarm raised by PW1 Dhanpal, they caught hold of the accused and recovered country made pistol and missed cartridge from him. The PW3 Constable Charan Singh has proved chik FIR Ex. A3, copy of General Diary entry Ex. A4. The PW4 SI Dataram is the Investigating Officer, he has proved the site plan, procured the sanction to prosecute the accused for the offences punishable under Section 25 of the Arms Act. 13. Defence Witness 1 Sompal has stated that some 2 years prior to the statement of this witness, Dhanpal and others had picked up the accused from his house and confined him in a room and thereafter, informed the police. This witness was examined in the year 2001. 14. Learned court below did not find the evidences of PW1 Dhanpal and PW2 Vijay Pal reliable. The court did not believe them. In the impugned order, it has also observed that the FIR is delayed and there is no signature of the accused in the recovery memo. The court also took notice of the fact that the source of light was not informed to the Investigating Officer. Other omissions of the witnesses have also been noted in the impugned judgment. 15. How to prove a thing, it is provided in the Indian Evidence Act, 1872 (for short, “the Evidence Act"). Section 3 of it defines proved. According to it, “Proved – A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." 16. Section 114 of the Evidence Act also makes provisions with regard to presumption. It is as hereunder:- “114. Court may presume existence of certain facts. Section 114 of the Evidence Act also makes provisions with regard to presumption. It is as hereunder:- “114. Court may presume existence of certain facts. –– The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." 17. Probability at the standard of a prudent man under the given circumstances is one of the criteria for proving and presumption can be made with regard to the common course of natural events, human conduct and public and private business in their relation to the facts of a particular case. 18. Here, in the instant case, enmity between PW1 Dhanpal and the accused is admitted. The incident, according to the prosecution, allegedly took place at about 03:00 AM in the morning. It must be dark outside, there is no source of light, shown in the site plan. In fact, the Court wanted to know from the learned State counsel to tell, as to how, in the midnight in the dark, the accused was identified, when for the first time according to the PW1 Dhanpal, he spotted a person near his cot? There is no reply to it. There are site plans in the record. No source of light has been shown in the site plans. 19. PW2 Vijay Pal has stated that there was light outside the house of Satpal. But, in the site plan, the house of Satpal is not shown, where was this light? The Investigating Officer, PW4 SI Dataram in his statement (at page 2) has stated that he was not told that there was light in the house of Satpal. The question is how at the first instance, the accused was identified? There is no evidence about it. PW2 Vijay Pal tells the court that the accused fired at PW1 Dhanpal with intention to kill him. How could this witness say so? He has not seen the accused firing at PW1 Dhanpal. He was not there, it was dark outside. 20. At one stage, in his statement PW1 Dhanpal, in paragraph 1 at page 3 of his statement (sixth line from bottom of the para) has stated that when the accused fired at him, then he raised alarm. He has not seen the accused firing at PW1 Dhanpal. He was not there, it was dark outside. 20. At one stage, in his statement PW1 Dhanpal, in paragraph 1 at page 3 of his statement (sixth line from bottom of the para) has stated that when the accused fired at him, then he raised alarm. In fact, according to the FIR, the accused could not fire. It was an attempt to fire. What is the truth? PW2 Vijay Pal (in page 2 paragraph 2), at one stage has stated that when they heard the fire shot, they were awake and not asleep. But, there was no fire shot at all. Sound of which fire shot, this witness is referring to, is not clear. 21. The PW1 Dhanpal would submit that after apprehending the accused, they took him back home and confined him in a room. The PW2 Vijay Pal would say that they tied the accused at their house. 22. The FIR was lodged in the morning after three hours. Why they did not go immediately after the incident because according to PW1 Dhanpal, many peoples had assembled there? There is an enmity between the parties as well. Why they waited? 23. The PW1 Dhanpal would submit that the police had come at the spot at 08:30 or 09:00 on the same day. Statement of PW1 Dhampal (page 3, last line), whereas, PW2 Vijay Pal would submit that the police had visited two days after the incident. Statement of PW2 Vijay Pal (page 2, paragraph 2). When did police come? Why the recovery memo was not signed by the accused? Why he was not asked to sign it? What had prevented the police to do so? 24. Considering all the facts and circumstances of the case, this Court is of the view that definitely the statement of PW1 and PW2 are not wholly reliable statements, they cannot be basis for conviction. The prosecution failed to prove its case beyond reasonable doubt. The learned court below did not commit any error in acquitting the accused. Accordingly, the appeal deserves to be dismissed. 25. The appeal is dismissed.