- (1.) J. C. S. Rawat, J. This is a criminal appeal against the judgment and order dated 10. 2. 2004 passed by the then Addl. Sessions Judge/fast Track Court, Tehri Garhwal in Sessions Trial No. 7 of 1996, State v. Umesh Charan Gusain, whereby the Addl. Sessions Judge has convicted the ap pellant under section 436, I. P. C. and sen tenced him to undergo RI for three years and to pay fine of rupees ten thousand. In default of payment of fine, the appellant shall further undergo RI for three months.
(2.) THE case of the prosecution, in brief, is that on 3. 10. 1994 at about 14. 15 p. m. the Uttarakhand Sangharsh Samiti agitators tried to burn the unoccupied resi dential house of the District Judge, Old Tehri. It is also pertinent to mention here that the District Judge was not residing in the said house, since he had shifted to his new residence at New Tehri. When the S. D. M. came to know of the above incident, he immediately reached at the residence and made arrangements to extinguish the fire. THE said information was given to the po lice station Tehri and a report was also lodged. Again on 4. 10. 1994, the agitators came at the unoccupied residential house of the District Judge, Old Tehri and set the house on fire. A report to this effect was also lodged by S. D. M. on phone to the po lice station. THE prosecution case further reflects from the evidence that the accused-appellant along with other persons came to the Court room of the District Judge, New Tehri on 27. 9. 1994, when the District Judge, New Tehri was hearing a civil case bearing No. LA 2 of 1988, Sliashi Bhusan v. State. During the course of the proceeding, the accused-appellant appeared before the District Judge and stated that he is the president of the Students' Union. THE ac cused-appellant requested the District Judge to handover his old residence situ ated at Old Tehri to the students. THE learned District Judge unequivocally stated that the property belongs to the High Court, hence shown his inability to provide the same to the students. THE accused-appellant alongwith the another compan ions came out of the Court-room and stated in an intimidated manner that if the resi dence is not provided to them, they will see other methods to get the same. THE prose cution has further alleged that on 4. 10. 1994, constables Suresh Chand PW8 and Ombir Singh PW 10 were on the security duty at the residence of the District Judge, Old Te hri. At about 12 noon, they saw that a pro cession of about 150 persons were coming from the side of the Ghantaghar to the un occupied residence of the District Judge, situated at Old Tehri. THE said procession was being headed by its leader Umesh Charan Gusain, the present appellant. THE persons who were in the procession, have bottles, canes and 'mashals' in their hands. THEy reached near the unoccupied resi dence of the District Judge, Old Tehri shouting slogans that if the said residence could not be provided to the students, then the District Judge would also not be al lowed to retain this house. THE eye witnesses Suresh Chand PW8 and Ombir Singh PW 10 tried to intervene but the per sons who were in the procession, started pelting stones upon them. Consequently, the eye-witnesses left the spot and the mis creants set the Bungalow/residence on fire by throwing bottles filled with some liquids and 'mashalas'. THE eye-witnesses con stables Suresh Chand PW8 and Ombir Singh PW 10 immediately went to the house of the S. D. M. which is situated nearby the place of the unoccupied resi dence of the District Judge, but the S. D. M. had gone at the post office at that time. THEreafter, both the eye- witnesses went to the post office and narrated the entire inci dent to the S. D. M. THE S. D. M. lodged a report in regard to the above incident on telephone in the police station at about 14. 15 p. m. on the same day. THE matter was initially investigated by the regular police and a charge-sheet was submitted by the police against thirteen persons, including the present appellant. It is pertinent to mention here that during the above proceeding, a writ petition bearing No. 32982/1994 was instituted by the Uttarakhand Sangharsh Samiti be fore the Allahabad High Court in which the Court ordered that the matters pertaining to the atrocities committed on the volun teers of 'uttarakhand Sangharsh Samiti' would be investigated by the C. B. I, and separate Courts would be set up for the trial of such cases. Pursuant to the said or der of the Division Bench of the Allahabad High Court, investigation was taken up by the CBI, Kishore Kumar, the Deputy Super intendent of Police, I. O. , CBI pursuant to the order of the Allahabad High Court, filed an application before the C. J. M. Tehri on 5. 5. 1995 (i. e. Ex. Ka 18) seeking permis sion to investigate the case and also for getting the original documents/certified copies of the documents filed by the local police in the Court pertaining to the above matter. After completion of the investiga tion by the CBI, charge-sheet was submit ted against the present appellant only, be fore the Court on 4. 10. 1995 (Ex. Ka 33 ). Consequent under the orders of the High Court, the matter was tried/heard before a CBI Court, specially constituted under the orders of the Allahabad High Court passed in the Civil Miscellaneous Writ Petition No. 32982 of 1994. Meanwhile, an appeal was preferred by the State (U. P.) before the Hon'ble Apex Court against the final judgment and order of the Allahabad High Court in the Civil Miscellaneous Writ Petition No. 32982 of 1994. The Hon'ble Apex Court in the appeal preferred by the State (U. P.), set aside the order of the Allahabad High Court passed in the Civil Miscellane ous Writ Petition No. 32982 of 1994 in toto and, the direction by the High Court for the establishment of the separate Courts was also not allowed to remain in force, on the ground that if such Courts are allowed to remain in force, it would create only con fusion and provide room for pre-casting of the trials. For the ready reference, the said judgment of the Hon'ble Apex Court is in the case of A. K. Singh and others v. Uttarakhand ]an Morcha and others, 1999 (39) ACC 262 (SC ). After the quashment of the judgment of the Alla habad High Court by the Hon'ble Apex Court, the CBI moved an application before the Court concerned to remit the case to the Sessions Judge having the jurisdiction for the trial of the case. The said application was allowed by Allahabad High Court and the matter was remitted to the Sessions Judge, Tehri which was later on transferred to Addl. Sessions Judge, Tehri who was having the jurisdiction over the matter un der the provisions of the Criminal Proce dure Code. After submission of the charge-sheet by the C. B. I. , the accused-appellant was committed to the Court of Sessions Judge, Tehri Garhwal for trial and the Trial Court framed charge against the accused-appellant. The accused-appellant denied the charge levelled against him and claimed trial. At the time of trial, the prosecu tion in support of its case examined 11 wit nesses in support of its case. They are namely, Soban Singh Kaithat PW1, Jasmal Singh PW2, Trilok Singh Bisht PW3, Sampoornanand Nautiyal (fireman) PW4, Dr. Akhilesh Kumar Gautam PW 5, Rajendra Singh Bisht PW6, Karam Jung Singh Chauhan PW 7, Const. Suresh Chand PW 8, H. C. Pyare lal PW9, Const. Ombir Singh PW 10 and Kishore Kumar PW 11. Soban Singh Kaithat PW1, Tirlok Singh Bisht PW 3 and Karam Jung Singh Chauhan PW 7 are the witnesses to the fact that the accused-appellant alongwith his companions ap peared before the Court on 27. 9. 1994, when the District Judge, New Tehri was hearing a civil case bearing No. LA 2 of 1988, Shashi Bhushan v. State and during the course of the proceeding, the accused- appellant re quested the District Judge to hand over his old residence situated at Old Tehri to the students. The learned District Judge une quivocally stated that the property belongs to the High Court, hence shown his inabil ity to provide the same to the students. The accused-appellant alongwith his another companions came out of the Court room and stated in an intimidated manner that if the residence is not provided to them, they will see other methods to get the same. The prosecution has led the evidence of these witnesses i. e. Soban Singh Kaithat PW. 1, Trilok Singh Bisht PW 3 and Karam Jung Singh Chauhan PW 7 to show the motive of causing the mischief by setting the fire to the vacant residence of the District Judge, Constable Suresh PW8 and Ombir Singh PW 10 are the witnesses of the fact of the incident. Sampoornanand Nautiyal (fire man) PW 4 is the in-charge of the fire sta tion. He has received the information from the police station, Tehri on 4. 10. 1994 to take the fire brigade to the place of incident to extinguish the fire. On receiving the said information, Sampoornanand PW 4 alongwith other fire personnel reached the place of incident and extinguished the fire. PW 5 is Dr. Akhilesh Kumar Gautam and he has stated that on 4. 10. 1994, his driver came to him and took petrol from him stating that he had to take a patient by some other vehicle. PW 6 is Rajendra Singh Bisht SSI who was posted on the date of the incident at SP Office as ASI. He is a formal witness. H. C. Pyare lal PW 9 is the Head Moharir who has recorded the F. I. R. and he is also a formal witness and Kishore Kumar PW 11 is the Investigating Officer of this case.
(3.) THE accused-appellant was ex amined under section 313 of the Criminal Procedure Code. He denied all the averments made in the evidence and he has stated that he has been falsely implicated in the case. He has also stated that neither he had gone to the house of the District Judge nor he set the fire to the house of the Dis trict Judge, He further stated that he has been falsely implicated in the case, as he was a student leader at that time. THE ac cused-appellant did not adduce any evi dence either oral or documentary in sup port of this case. After appreciation of the evidence, the learned Sessions Judge convicted the accused-appellant under section 436, I. P. C. as indicated above, but was acquitted for the incident dated 3. 10. 1994 and from the charge-levelled under section 436 read with 511, I. P. C. for the same. I have heard the learned Counsel for the parties and perused the record.;