- (1.) THE appeal preferred under section 378 of Code of Criminal procedure, 1973, (hereinafter re ferred as Cr. P. C.), is directed against the judgment and order dated 7. 1. 1991, passed by learned Sessions Judge, Uttarkashi, in Sessions Trial No. 2 of 1990, whereby re spondent Jethu has been acquitted of charge of offences punishable under sec tion 354 and one punishable under section 302 of India Panel Code, 1860 (hereinafter referred as I. P. C. ).
(2.) HEARD learned Counsel for the parties and perused the entire lower Court record. Prosecution story in brief is that on 9. 1. 1990, P. W. 2 Deepa was cutting grass in the Jungle within the limits of village Malli, Patwari Circle, Badhangaon, District Uttarkashi. At some distance P. W. 1 Smt. Sauna Devi (mother of Deepa) and de ceased Darshan Singh (father of Deepa) were also cutting grass. At about 6 p. m. accused Jethu came near Deepa (P. W. 2) and with intention to outrage her modesty dragged her towards a bush. She raised an alarm on which the parents of Deepa rushed towards her. They objected to the conduct of accused (present respondent Jethu), on which after running 250 paces away the accused hurled stone at Darshan Singh, which hit on his head. Accused after throwing stone at Darshan Singh ran away from the place of incident. Darshan Singh, who received injuries succumbed to the same on next morning at about 6 a. m. On this P. W. 2 Deepa went to P. W. 4 Shishpal Singh and one Makar Singh and informed them about the incident. P. W. 4 Shishpal Singh scribed report (Ext. A-2) and gave it to Patwari Chauki of the area (In Uttara-khand hills in certain areas Patwaries, Revenue Officials, are given police pow ers ). Meanwhile, eye-witness Sauna Devi (P. W. 1) had already lodged a First Infor mation Report orally with Patwari at 7. 30 a. m. on 10. 1. 1990, on the basis of which check report (Ext, A-6) was prepared. P. W. 7 R. S. Panwar, Patwari (Investigating Offi cer) proceeded to the house of Darshan Singh and took his dead-body in his pos session and prepared the inquest report (Ext. A-1), sketch of body (Ext. A-8), Police Form No. 13 (Ext. A-9) and site plan (Ext. A-10 ). He also recovered blood stained clothes and prepared memorandum (Ext. A-11 ). The body of Darshan Singh was sent for post- mortem examination. P. W. 6 Dr. A. Gairola, Medical Officer of District Hospi tal, Uttarkashi conducted the autopsy on the dead-body on 12. 1. 1990 at about 10. 30 a. m. , and prepared the post-mortem report (Ext. A-5 ). On the next day i. e. 13. 1. 1990, P. W. 5, Dr. S. K. Pant, medically examined P. W. 2 Deepa and prepared injury report (Ext. A-4 ). Stone by which the injury is caused was also recovered and memoran dum (Ext. A-3) was prepared by the Inves tigating Officer. On completion of the in vestigation the Investigating Officer sub mitted charge-sheet (Ext. A-12) before the Chief Judicial Magistrate, Uttarkashi, against accused (present respondent Jethu) for his trial relating to offence punishable under section 302 of I. P. C. The Magistrate on receipt of the charge-sheet, after giving necessary copies to the accused as required under section 207 of Cr. P. C. committed the case to the Court of Sessions for trial. Learned Sessions Judge, Uttarkashi after hearing the prose cution framed charge of two heads i. e. first relating to offence punishable under sec tion 354 of I. P. C. and the second relating to offence punishable under section 302 of I. P. C. on 22. 5. 1990. The accused Jethu pleaded not guilty and claimed to be tried. On this prosecution got examined P. W. 1 Smt. Sauna Devi, complainant and eye witness, P. W. 2 Deepa, eye- witness, PW 3 Pyar Chand, a villager to whom the inci dent is narrated by Deepa, P. W. 4 Shishpal Singh, the reporter of Ext. A-2 P. W. 5 Dr. S. K. Pant, who medically examined Deepa, P. W. 6 Dr. A. Gairola, who conducted the post-mortem on dead-body of Darshan Singh and P. W. 7 R. S. Panwar fabri Patawari (Investigating Officer ). Oral and documentary evidence was put to the ac cused Jethu under section 313 of Cr. P. C. to which he alleged that the evidence ad duced against him is false and he has been implicated due to enmity. However, no evidence in defence is adduced. After hearing the parties the trial Court found accused Jethu not guilty of the charge or offences punishable under sections 354 and 302 of I. P. C. and acquitted him. Aggrieved by said judgment and order dated 7. 1. 1991, passed by learned Sessions Judge, Uttarka shi, in Sessions Trial No. 2 of 1990, this ap peal under section 378 of Cr. P. C. was pre ferred by the State before Allahabad High Court on 8. 4. 1991. Allahabad High Court granted the leave to appeal on 16. 7. 1992 and admitted it. This appeal is received by this Court by transfer under section 35 of U. P. Reorganisation Act, 2000, for its dis posal.
(3.) BEFORE further discussions, it is pertinent to mention here the injuries found on the person of Km. Deepa (P. W. 2), who was medically examined on 13. 1. 1990 by P. W. 5 Dr. S. K. Pant), who prepared in jury report Ext. A-4. The injuries recorded are being quoted below: " (1) Contusion 4 cm. x 2 cm. over the outer aspect of right upper arm. Colour bluish. (2) Contusion 2. 5 cm. x 2 cm. over the outeraspect of right forearm lower 1/3. Colour bluish. (3) Traumatic swelling 4 cm. x 2 cm. over the outer surface of right hand at the 5th metacompo phalangeal junction. (4) Traumatic swelling over the outer aspect of left elbow joint measuring 3 cm. x 2. 5 cm. (5) Linear abrasion 2 cm. over the outer surface of left forearm about the wrist. Scab-formed" The Medical Officer found injuries simple in nature and opined that injury Nos. 1 to 4 were caused by blunt object. He also gave the opinion that the injuries were three days' old. We also think it just and proper to reproduce the ante-mortem injuries re corded by P. W. 6 (Dr. A. Gairola), who conducted post-mortem examination on the dead-body of Darshan Singh (father of Deepa) on 12. 1. 1990 at 10. 30 a. m. and pre pared autopsy report (Ext. A-5 ). There is only one ante- mortem injury, which is be ing quoted below: "lacerated wound size 4 cm. x 1 cm. , 1. 5 cm. deep extending up to bone with depressed fracture. 7. 5. cm. above nose. Blood clot present. ";