Dharam Veer, J.@mdashThis appeal, preferred by the Appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Code of Criminal Procedure ), is directed against the judgment and order dated 2.1.1996 passed by Sessions Judge, Nainital in Sessions Trial No. 108/1990, State v. Jagir Singh and Ors. whereby the learned Sessions Judge convicted the Appellant/accused Jagir Singh under Sections 147, 323 read with Section 149 and 304 Part II read with Section 149 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced him to undergo R.I. for one year u/s 147 IPC, six months R.I. u/s 323/149 IPC and five years R.I. u/s 304 Part II r/w 149 IPC. All the sentences were directed to run concurrently. However, the co-accused persons, namely, Noor Hussain, Zahoor Hussain, Bade Hussain alias Majid, Shahid Ali, Mahendra, Chhote Lal alias Chhotta, Yamin alias Aamin and Sukha were acquitted of all the charges levelled against them by the trial court.
2. Heard learned Counsel for the parties and perused the entire material on record.
3. In brief, the prosecution case is that complainant Amarjeet Singh lodged the First Information Report in the Police Station Sitarganj stating that in the intervening night of 28/29.8.1989 his pair of bullocks were stolen from the Gaushala. He has doubt on the Appellant/accused Jagir Singh for the reason that he was roaming in the village one day before. In the morning at 5 AM, he and other people of his village, namely, Jagtar Singh, Hukum Singh, Ishwar Singh. Gurdayal Singh, Amar Singh, Darshan Singh, Pooran Singh, Bhajan Singh, Surjan Singh, Hadat Singh, Pyara Singh and Jagir Singh went for search of his bullocks and reached at Halduwa Road of Village Sissiya then they found the Appellant/accused Jagir Singh sitting on the Pulia of canal, who on seeing the aforesaid persons, moved away from there. He and other persons stopped him and while they were enquiring about the bullocks from the Appellant/accused, Noor Hussain, Zahoor Hussain, son of Safed Miyan, Bade Hussain, Chotta, Mahendra, Sukhe and elder son of Sukhe being armed with lathies and dandas came there and started assaulting them. On raising alarm, Appellant/accused Jagir and his accomplice, ran away from the spot. Jagtar Singh and Hukum Singh got seriously injured in the said incident. The injured were taken to Sitarganj Hospital. It is further stated that the above incident took place at about 8 AM. With the same averments, the F.I.R. was lodged by P.W.1 Amarjeet Singh on 29.8.1989 at 12:30 PM at P.S. Sitarganj, District Nainital. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. of the case was prepared, i.e. Ext.Ka-2. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-4. On the same day at 12 in the daytime, injured Hukum Singh was medically examined by the Medical Officer, P.H.C., Sitarganj, who after the medical examination, prepared the injury report Ext.Ka-3. Same day in the evening injured Jagtar Singh died in the hospital at Bareilly. Thereafter the inquest report was prepared which is Ext.Ka-7. Along with the inquest report, other papers viz. sketch of dead body Ext.Ka-8, Police Form No. 13 Ext.Ka-11 and specimen of seal Ext.Ka-12 were also prepared. The post-mortem of the dead body of deceased was conducted on 30.8.1989 at 03:30 PM. Post-mortem report is Ext.Ka-13. During the course of investigation, the Investigating Officer of the case recorded the statement of the witnesses and prepared the site-plan of the place of occurrence i.e. Ext.Ka-5 and also prepared the site-plan of the place from where the bullocks were stolen i.e. Ext.Ka-6. On completion of investigation, the I.O. filed the charge sheet against the Appellant/accused and co-accused persons (acquitted by the trial court). That charge sheet is Ext.Ka-14. (Genuineness of all the documents on record were admitted by the defence counsel).
4. After receiving the charge sheet, learned Chief Judicial Magistrate, Nainital, committed the case to the court of Sessions on 20.4.1990 after giving necessary copies to the accused persons as prescribed u/s 207 Code of Criminal Procedure.
5. On 13.1.1994, learned Sessions Judge, Nainital framed the charge of offence punishable under Sections 147, 323/149 and 302/149 of IPC against the Appellant/accused Jagir Singh and others. The charge was read over and explained to each of the accused persons, who pleaded not guilty and claimed to be tried.
6. In order to prove its case, the prosecution has examined P.W.1 Amarjeet Singh, eyewitness and complainant of the case, P.W.2 Hukum Singh, injured eyewitness, P.W.3 Ishwar Singh, eyewitness, P.W.4 Bhajan Singh, P.W.5 Gurdayal Singh, P.W.6 Darshan Singh, P.W.7 Amar Singh, P.W.8 Surjan Singh and P.W.9 Pooran Singh.
7. Thereafter the statements of the Appellant/accused and the co-accused were recorded u/s 313 Code of Criminal Procedure The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence.
8. After appreciating the entire evidence on record and hearing learned Counsel for the parties, learned Sessions Judge, Nainital vide his judgment and order dated 2.1.1996 convicted and sentenced the Appellant/accused Jagir Singh as mentioned above. However, the co-accused persons, namely, Noor Hussain, Zahoor Hussain, Bade Hussain alias Majid, Shahid Ali, Mahendra, Chhotee Lal alias Chhotta, Yamin alias Aamin and Sukha were acquitted of all the charges levelled against them by the trial court. Against the said judgment and order dated 2.1.1996, the Appellant/accused has preferred this appeal.
9.Before further discussion, it is pertinent to mention that the injured Hukum Singh was medically examined on the same day i.e. 29.8.1989 at 12 PM at Primary Health Center, Sitarganj. The Medical Officer found the following injuries on the person of Hukum Singh:
(i) Traumatic contusion of 8 cm � 3 cm on outer aspect of arm obliquely placed with reddish colour.
(ii) Lacerated wound of 2 cm � 1/2 cm on left lower 1/3 arm outer aspect with reddish colour around it with oozing of blood. Kept under observation.
(iii) Lacerated wound around contusion of 2 cm � 1 cm on left outer side of forehead profused oozing of blood, wound caused by some blunt object.
(iv) Contusion of 4 cm � 3 cm on left dorsum of leg, reddish in colour.
(v) Contusion of 3 cm � 2 cm on left knee with reddish colour.
(vi) Contusion with distal wound of left little finger 2 cm x 1� cm upto proximal and outer phalangeal joints. Kept under observation. Advised X-ray.
(vii) Contusion over back of left shoulder of 3 cm � 2 cm.
(viii) Contusion over upper part of arm outer aspect obliquely placed, caused by blunt object.
Inference:-Injury No. 2 and 6 kept under observation. Advised X-ray left arm. Other injury No. 1, 3, 4, 5, 7, 8 are simple. Duration fresh, caused by blunt object.
10. On the same day i.e. 29.8.1989 at about 07:20 PM injured Jagtar Singh died in the hospital. Thereafter, on 30.8.1989 at 03:30 PM post-mortem of the dead body of deceased Jagtar Singh was conducted. Following ante-mortem injuries were found on the person of deceased:
(i) Alacerated wound 3 cm � 1/2 cm � scalp deep on the right side forehead, 7 cm above right eyebrow.
(ii) A lacerated wound 3/4 cm � 1 cm � bone deep on the left side of top of head, 11 cm above left ear.
(iii) Abrasion 2 cm � 1 cm on the front of right knee joint.
Cause of death:-Coma, shock and hemorrhage due to ante-mortem injuries.
11. To prove its case, the prosecution has examined P.W.1 Amarjeet Singh, who has stated that his bullocks were stolen in the night about which he came to know in the morning. He alongwith Ishwar Singh, Hukum Singh, Darshan Singh, Bhajan Singh, Hardat Singh, Gurumukh Singh and Jagtar Singh went to Village Mohalia which is at a distance of 6-7 kms from their village. At 8 AM in the morning, the Appellant/accused met them on pulia. When they enquired about the bullocks from him, he used lathi. Noor Hasan, Zahoor Hasan and some others, whose name he does not know, were with the Appellant/accused. There were total 9-10 assailants. In the said incident, Jagtar Singh and Hukum Singh have sustained injuries. After the said incident, he along with others went from the spot and thereafter took Jagtar Singh to Sitarganj Hospital. Hukum Singh was also with them, who have also received injuries. The injured got admitted in the hospital and the report of the said incident was lodged at P.S. Sitarganj, which is Ext.Ka-1. He further deposed that one day before the said incident he had seen the Appellant/accused Jagir Singh in his village and therefore he had doubt of committing theft of bullocks on him. Jagtar Singh was sent to Khatima Hospital from Sitarganj and thereafter to Bareilly Hospital.
12. P.W.2 Hukum Singh has stated that bullocks of Amarjeet (P.W.1) were stolen. Next day in the morning, he, Shisha Singh, Gurdayal Singh, Darshan Singh, Hardat Singh, Surjan Singh, Dalip Singh, Jagtar Singh and others reached Village Sissiya where they found the Appellant/accused sitting on the pulia of canal. On seeing them, he started running. They caught him at 8 AM. He further deposed that co-accused Noor Hasan and 7-8 accused persons were also there who assaulted them with Lathies. He and Jagtar Singh received injuries. During marpeet, Jagtar Singh fallen into the water and was taken out from water after half an hour. After the said incident they went to Sitarganj hospital where he and Jagtar got medical treatment. At this stage, this witness was declared hostile by the prosecution.
13. P.W.3 Ishwar Singh has stated that he was told by Amarjeet that his bullocks have been stolen. He, Gurdayal, Amarjeet, Hukum Singh, Jagtar Singh, Darshan Singh, Bhajan Singh, Surjan Singh, Jagir Singh, Hardat Singh and others reached Village Halduwa in search of bullocks. Then when they came on Pulia of canal at Village Sissiya they found the Appellant/accused. They enquired about the bullocks from the Appellant/accused. Thereafter on the call of Appellant/accused Jagir Singh, co-accused Noor Hasan, Zahoor Hasan and others arrived and assaulted them with Lathies due to which Jagtar Singh received injuries. He deposed that it was 8-9 accused persons who beaten them with Lathi. In the incident of marpeet, Hukum Singh, Jagtar Singh and he received number of injuries. Thereafter, the police was informed, who then took Jagtar Singh in the jeep with them.
14. P.W.4 Bhajan Singh, P.W.5 Gurdayal Singh, P.W.6 Darshan Singh, P.W.7 Amar Singh, P.W.8 Surjan Singh and P.W.9 Pooran Singh have not supported the prosecution case and all of them were declared hostile.
15. Sri D.C.S. Rawat, learned amicus curiae on behalf of the Appellant/accused Jagir Singh argued that co-accused persons, namely, Noor Hussain, Zahoor Hussain, Bade Hussain alias Majid, Shahid Ali, Mahendra, Chhotee Lal alias Chhotta, Yamin alias Aamin and Sukha have been acquitted by the trial court on the similar role and on the similar set of evidence and on this very ground the accused/Appellant has been convicted by the trial court which is not sustainable in the eye of law. I find substance in the argument of the learned amicus curiae for the reason that P.W.1 complainant Amarjeet Singh, in his deposition, took the name of Appellant/accused Jagir Singh and co-accused Noor Hasan and Zahoor Hussain and regarding others he stated that he does not know their name. However, he stated that there were total 9-10 assailants. P.W.2 Hukum Singh, who is the injured eyewitness of the case, stated that on the date of incident they found Appellant/accused Jagir Singh sitting on the Pulia of canal. He took the name of Noor Hussain among the assailants and stated that besides him there were 7-8 other assailants who assaulted them with lathies. P.W.3 Ishwar Singh stated that on the call of Appellant/accused Jagir Singh, Noor Hasan, Zahoor Hasan and others came at the spot who assaulted them with Lathies. Rest of the witnesses, who were shown to be present at the place of occurrence on the relevant date and time, did not support the prosecution case and they were declared hostile. The trial court on the basis of same set of facts and evidence convicted the Appellant/accused Jagir Singh while acquitted the rest of the accused persons. Thus, I am of the view, that on the basis of same set of facts and evidence when the co-accused Noor Hussain, Zahoor Hussain, Bade Hussain alias Majid, Shahid Ali, Mahendra, Chhotee Lal alias Chhotta, Yamin alias Aamin and Sukha have been acquitted by the trial court, then the benefit of acquittal should also be extended to Appellant/accused. I am fortified in my view with the verdict of Hon''ble Apex Court in the case of Deepak Rajak v. State of West Bengal reported in AIR 2007 SCW 5740. Paras-2, 3, 5 and 6 of this judgment are essential to mention here, which are reproduced hereunder:
2. The factual details need not detain us as undisputedly the co-accused have been acquitted by this Court in
3. Learned Counsel for the Appellant placed reliance on various decisions of this Court contending that the benefit of acquittal should be extended to the Appellant.
5. The position in law as to what happens in case of acquittal of similarly placed co-accused on the same set of facts and on similar accusations has been considered by this Court in several cases.
6. A departure may be made in cases where the accused had not surrendered after the conviction in addition to not filing an appeal against the conviction. But as in the present case, after surrender, the benefit of acquittal in the case of co-accused on similar accusations can be extended.
16. For the foregoing reasons, the appeal deserves to be allowed and is accordingly allowed. The judgment and order dated 2.1.1996 passed by Sessions Judge, Nainital in Sessions Trial No. 108/1990, State v. Jagir Singh and Ors. is hereby set aside. Consequently, the conviction and sentence, as directed by the court below, which has been discussed above, is also set aside. The Appellant is on bail. He need not surrender unless required in any other case.
17. Let the lower court record be sent back.
