Uttarakhand High Court
State Of Uttarakhand vs Surjeet Batra And Ors on 8 October, 2015
Bench: Alok Singh, Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Government Appeal No. 65 of 2010
State of Uttarakhand. .......Appellant.
Versus
Surjeet Batra and others. .......Respondents.
Present:
Mr. A.S. Gill, Deputy Advocate General assisted by Mr. Milind Raj, Brief Holder for State of
Uttarakhand /appellant.
Mr. Lalit Sharma and Mr. Rajesh Sharma, Advocates for respondents.
With
Criminal Revision No. 36 of 2010
Dileep Singh. .......Revisionist.
Versus
State of Uttarakhand and others. .......Respondents.
Present:
Mr. Suresh Kumar Mishra, Advocate for revisionist.
Mr. A.S. Gill, Deputy Advocate General assisted by Mr. Milind Raj, Brief Holder for State of
Uttarakhand/ respondent no. 1.
Mr. Lalit Sharma and Mr. Rajesh Sharma, Advocates for private respondents.
Coram:
Hon'ble Alok Singh, J.
Hon'ble Servesh Kumar Gupta,J.
Per: Alok Singh, J (Oral) Present appeal and revision are preferred assailing the judgment and order dated 21.12.2009 passed by Sessions Judge, Udham Singh Nagar in Sessions Trial No. 233 of 2005 (State Vs. Suresh Batra and others) whereby all the 6 accused / respondents, herein, were acquitted of charges punishable under Section 147, 148, 307/149, 302/149, 452, 506, 427 IPC.
Brief facts of the present case, inter alia, are that PW1 Suresh Singh has handed over written report to police station Gadarpur at about 08.30 p.m. on 22.08.2004 stating therein that today i.e. on 22.08.2004 at about 05.00 p.m. Surjeet Batra, son of 2 Diwan Chandra, Ramesh Chandra Batra, son of Deshraj Batra, Sandeep Batra son of Lal Chandra Batra, Praveen, son of Ram Lal Narang, Sahab Singh, son of Santa Singh Batra, Harish Munjal, son of not known, after breaking the door of complainant's house entered into his house and started assaulting PW1 Suresh Singh (complainant), his brother Kamal, Krishna, Dharam Singh, Dilip Singh, son of Pan Singh and his mother Brahma Devi with the butt of gun and country made pistol; they have also used sword, PATA, iron rod; entire incident was witnessed by Vinod son of Maniraj, Tribhuwan son of Ramu and Lal Mann, son of Manohar and others; they have also tried to save the complainant party from the hands of miscreants; on the written report, Chik FIR was got registered with police station Gadarpur under Sections 147, 148, 307, 452, 323, 504, 506, 427 IPC on 22.08.2004 at 20.30 p.m. Krishna, who sustained head injury, was first of all taken to Gadarpur, therefrom to Rudrapur and thereafter, to Haldwani, however, he expired on 23.08.2004, therefore, Section 302 IPC was added in the matter. Postmortem was conducted on the dead body of Krishna on 24.08.2004 by PW9 Dr. Vimal Pant.
To prove the prosecution story, informant Suresh Singh (PW1), Kamal Singh (PW2), Dilip Singh (PW3), Brahma Devi (PW4), Rajesh Kumar (PW5), Inspector Anand Singh Gusain (PW6), Dr. J.C. Mandal (PW7), SI Gopal Singh Bisht (PW8), Dr. Vimal Pant (PW9), Dharam Singh (PW10), SI Praveen Kumar Tyagi (PW11), SI Sheesh Pal Singh (PW12), Bachhi Ram (PW13), Dr. Rajesh Kumar Sinha (PW14) and Dr. Asha Devi (PW15) were examined.
It is important to mention here that alleged eye witness namely Vinod, Tribhuwan and Lal Mann were not 3 examined as prosecution witness rather Lal Mann and Tribhuwan were examined as defence witness DW1 and DW2.
As per the F.I.R. accused entered into the house of complainant, after breaking the main door, however, when Police reached on the spot, door was not found broken. PW1 Suresh Singh, PW2 Kamal Singh and PW3 Dilip Singh have stated that accused persons have also fired shot, however, surprisingly, from the spot, no shell of the used cartridge was recovered by the Investigating Officer.
PW9 Dr. Vimal Pant has conducted the post mortem on the body of Krishna and stated that all the injuries sustained by Krishna were possible due to fall on hard surface. PW7 Dr. J.C. Mandal, PW14 Dr. Rajesh Kumar Sinha and PW15 Dr. Asha Devi, who have examined other injured, have also stated that none of the injuries found on the person of the injured was serious in nature and was possible due to fall.
DW1 Lal Mann and DW2 Tribhuwan have stated that when injured party went on the agricultural field and started quarrelling, all the villagers gathered on the spot finding themselves encircled by the villagers, complainant party started running and they were being chased by the villagers and meanwhile, injured party including Krishna fell on the ground and sustained injuries.
In view of the medical reports and statements of PW7 Dr. J.C. Mandal, PW9 Dr. Vimal Pant, PW14 Dr. Rajesh Kumar Sinha and PW15 Dr. Asha Devi, injuries sustained by Krishna as well as other injured by falling on the hard surface, i.e. ground, cannot be ruled out completely.
There is another aspect of the matter. Although Chik F.I.R. was alleged to have been registered on 22.08.2004 at 4 about 20:30 p.m., however, copy thereof was sent to the Ilaqa Magistrate only on 31.08.2004. Not only this, Chik F.I.R. contains overwriting about the time of incident. It seems that F.I.R. was ante time.
There is yet another aspect of the matter. PW1 Suresh Singh has stated that written report was written by Sandeep on his dictation, however, later on, at page No.12, PW1 Suresh Singh has stated that report was written by Sandeep as dictated by Daroga Ji. Thus, it is not made clear as to whether incident was narrated by PW1 Suresh Singh himself as witnessed by him or was narrated as per the dictation of Daroga Ji.
This is settled position of law that in an appeal against the judgment of acquittal, ordinarily, view taken by the Trial Court should be allowed to prevail, even if, two views are possible. Judgment of acquittal can be reversed and disturbed by the higher forum only when Appellate Court finds that judgment of acquittal is totally perverse or prosecution is able to point out that some important piece of evidence was left to be considered by the learned Trial Court, which could have resulted into conviction. No such evidence has been pointed out before us. Therefore, we are not inclined to interfere in the impugned judgment.
Mr. Suresh Kumar Mishra, learned counsel for the revisionist, submits that sole revisionist has died, therefore, revision is dismissed as abated and appeal is dismissed on merit. Let copy of this judgment be placed in connected file.
(Servesh Kumar Gupta, J.) (Alok Singh, J.) 08.10.2015 SKS 5