Decided on June 27,2013



Umesh Chandra Dhyani, J. - (1.) INFORMANT Pratap, Chowkidar of Block Development Officer, Haldwani (Nainital) wrote a complaint (Ext. Ka -4) on 22.11.1999, which was addressed to the Block Development Officer, Haldwani, on the basis of which an FIR was registered on 22.11.1999, at 01:45 P.M., as case crime No. 1891 of 1999, for the offence punishable under Section 459 of IPC. After the investigation, charge -sheets were submitted against the accused persons namely, Sanjay Arya and Balam Singh for the selfsame offence. Separate charges were framed against the accused persons for the offence punishable under Section 459 of IPC, to which they pleaded not guilty and claimed trial. PW1 Ajit Singh, PW2 Smt. Munni, PW3 Sub Divisional Magistrate Neeraj Shukla, PW4 Pratap Singh, PW5 Dr. Shailendra Kumar Mishra and PW6 S.I. R.L. Gangwar were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was adduced in defence. After considering the evidence on record, accused persons namely, Sanjay Arya alias Sanju and Balam Singh were convicted of the offence punishable under Section 459 read with Section 34 of IPC. Each one of them was sentenced to undergo rigorous imprisonment for seven years alongwith a fine of Rs. 2,500/ -, vide judgment and order dated 16.03.2001. Aggrieved against the impugned order, present criminal appeal was filed by convict Balam Singh only.
(2.) INFORMANT Pratap was posted as Chowkidar in Block Development Office, Haldwani. He was on duty in the intervening night of 21st/22nd of November, 1999. Some thieves entered into the Block Office in the night, around 01:00 A.M. They trespassed in the Block Office. They broke open the locks of the office. They attempted break to open the cash chest. Informant Pratap heard the noise of breaking of cash chest. He made an attempt to apprehend the thieves. One of the accused showed him a country made pistol. Another accused gave a blow of khukhri (a sharp edged curved weapon) on the head of informant. Pratap sustained injuries on his head. He raised an alarm. On his raising alarm, Asstt. Development Officer, Ajit Singh, driver Bhagwat Singh and many other people came on the place of occurrence. The thieves jumped from the wall of the Block Office and fled away. The thieves were seen by the informant and other witnesses in the light of lamppost. One of the accused i.e. Sanjay, was named in the FIR. The informant indicated that he could recognize other thieves also. Three chappals (bathroom slippers) of the thieves were lying on the place of occurrence. The accused persons also created ruckus in the office. The incident took place in the intervening night of 21st/22nd of November 1999, and the chik FIR (Ext. Ka -6) was registered on the selfsame day at 01:45 P.M., within a span of 45 minutes. Prosecution led the evidence through PW4 Pratap Singh, who, in his examination -in -chief said, what was reported by him in the application addressed to the Block Development Officer. It was on the basis of such an application that the FIR was lodged. The examination -in -chief of PW4 was almost verbatim reproduction of the contents of complaint (Ext. Ka -4). In addition to the contents of the complaint, PW4 said that his injuries were examined in Government Hospital, Haldwani. He went to Sub Jail, Haldwani for identification proceedings. PW4 recognized accused Balam Singh correctly, when latter's identification parade took place. PW4 also identified Balam Singh in the court, when he came to depose before the Addl. Sessions Judge, Haldwani. PW4 also proved identification memo (Ext. Ka -3).
(3.) IN the cross -examination, PW4 said that he reached at the police station at around 01:15 A.M. He was accompanied with Mahendra Nagniyal, Bhagwat Singh and Ajit Singh. He reached the hospital at around 01:30 A.M. PW4 also said that all the four accused persons trespassed into the Block Office. PW4 fell on the floor, when he received injuries, but he recognized the accused persons before that. PW4 also said that, he mentioned the names, of Balam Singh and other three accused in his complaint. Bhagwat Singh and Ajit Singh stayed in the Block Office, who reached on the place of occurrence after 15 minutes. Blood spread on the floor at the place where the informant was assaulted. PW4 did not see the accused persons breaking open the locks of the Block Office. They went to the police station on motorcycle and scooters. When the incident took place, the mother and wife of PW4, also reached on the place of occurrence. They started weeping. It took about half an hour to 45 minutes to conclude the identification proceedings of the accused. He did not knew Balam Singh before this incident. He knew Sanjay before this incident. Balam Singh was seen by this witness (PW4) for the first time in District Jail. Thus, nothing came in the cross -examination of PW4 to indicate that he was telling a lie. The testimony of PW4 was worth believing and accepting. He was the Chowkidar of the Block Office, who, upon hearing the noise of the miscreants, reached near the cash chest of the office, only to find that the accused persons were attempting to break open the same. He was a natural witness, who cannot be said to be a chance witness by any stretch of imagination. Heavy reliance can be placed on the testimony of PW4.;

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