CRLA/36/2005 of JAIPAL SINGH Vs STATE

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALCriminal Appeal No. 36 of 2005

Jaipal Singh

….. Appellant

Versus

State of Uttarakhand

….Respondent

Mr. Siddharth Bankoti, learned counsel holding brief of Mr. Vipul Sharma, learned Advocate for the appellant. Mr. A.K. Sah, learned A.G.A. along with Mr. Sachin Panwar, learned Brief Holder for the State.

Hon’ble R.C. Khulbe, J.

The present appeal is directed against the judgment and order dated 29.01.2005 passed by the Additional Sessions Judge/Second Fast Track Court, Udham Singh Nagar in Sessions Trial No.420 of 2002, State vs. Jaipal, whereby the appellant was found guilty for the offence punishable under Sections 307 and 324 of IPC, and was sentenced to undergo three years’ rigorous imprisonment under Section 307 of IPC and was sentenced to undergo one years’ rigorous imprisonment under Section 324 of IPC.

2. Brief facts of the present case, inter alia, are that the informant Jamuna Prasad gave written information at Kotwali- Khatima with the allegations that he was attending marriage ceremony in village Pakadiya, Melaghat Road at about 4:00 PM, after the departure of barat, he along with his relative were going to sit in scooter in order to go home, but suddenly accused Jaipal came and hit him two times on the head with khukri, due to which he received grievous injury. On the basis of that information chik FIR was lodged at Police Station- Khatima.

3. Investigating Officer conducted investigation in the matter and submitted the charge-sheet against

the appellant under Sections 307 and 324 of IPC on 31.07.2002.

4. The trial court framed charges against the appellant-accused for the offences punishable under Sections 307 and 324 IPC, to which he pleaded not guilty and claimed trial.

5. To prove the prosecution story, PW-1 Jamuna Prasad, who is the injured in the case and PW-2 Om Prakash, who is the eye witness of the case, were examined as prosecution witnesses. Thereafter, the statement of appellant-accused was recorded under Section 313 of Cr.P.C.

6. The trial court, having perused the entire material made available on record, vide judgment and order under appeal, convicted and sentenced the appellant, as mentioned hereinabove. Feeling aggrieved, appellant has preferred present appeal.

7. Heard learned counsel for the respective parties and perused the entire material available on the record.

8. It is argued by learned counsel for the appellant that there is no clinching evidence on record against the present accused and only statement of eye witness Om Prakash was recorded as PW-2 by the prosecution. But still eye witness PW-2 Om Prakash did not support the prosecution story as alleged in the FIR. But the trial court convicted the accused, while there is no clinching evidence against the accused.

9. From the perusal of the record, it is clear that the injured Jamuna Prasad appeared on 20.08.2004 as PW-1 in chief. He repeated the same story as given in the FIR. But by the order of the court, he was summoned again on 07.01.2005 in which he clearly

stated that at the time of occurrence many people were present there. But he did not see who caused the injury to him. He also stated that he could not see whether the accused-Jaipal was present there or not.

10. As per the prosecution story at the time of occurrence PW-2 Om Prakash was present there. Although, the first statement of PW-2 Om Prakash was given on 02.09.2004 in which he corroborated the prosecution story. But as per the direction of the court his statement was again recorded on 05.01.2005 in which he clearly stated that on 01.07.2002 when he reached at the spot after 15 minutes of the incident and many people were present there; at the time of incident he was not present there; the accused Jaipal did not cause injury to Jamuna Prasad in presence of him. He did not see the accused at the spot.

11. From the perusal of the statement of PW-1 Jamuna Prasad the accused did not cause any injury to him because at the time of incident crowed was there and he did not see the accused at the spot.

12. From the perusal of the statement of PW-2 Om Prakash, it is also clearly stated that he reached at the spot after 15 minutes of incident, when he reached at the spot many people were there. He could not identify the accused and the accused was not there.

13. Apart from that the above witnesses produced by the prosecution, there is no clinching evidence against the accused to prove the case under Section 307 and 324 of IPC.

14. From the reassessment of the evidence, I came to this conclusion that the trial court convicts the accused only on the basis of statements given in chief by both the witnesses. He did not assess the evidence

given during the cross-examination. From the reassessment of whole evidences as adduced by PW-1 and PW-2, I reached to this conclusion that there is no clinching evidence to convict the accused under Sections 307 and 324 of IPC.

15. For the reasons, as recorded hereinabove, the appeal preferred by the appellant is allowed and the conviction judgment and order dated 29.01.2005 passed by the Additional Sessions Judge/Second Fast Track Court, Udham Singh Nagar in Sessions Trial No.420 of 2002, State vs. Jaipal is, accordingly, set aside. Accordingly, the accused is acquitted under Sections 307 and 324 of IPC.

16. Accused is on bail. He needs not to surrender. His bail bond is cancelled and sureties are discharged.

17. copy of this judgment and order along with the LCR be sent to the Court below.

Balwant

(R.C. Khulbe, J.) 21.08.2019