KAILASH CHANDRA KANDPAL Vs. STATE

JUDGEMENT

(1.) This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 11.10.1991 passed by IIIrd Additional Sessions Judge, Nainital in Sessions Trial No. 127/1990, State Vs. Kailash Chandra Kandpal, whereby the learned IIIrd Additional Sessions Judge, has convicted the appellant/accused u/Ss 394 and 397 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC) and was sentenced to three years R.I. u/s 394 Penal Code and seven years R.I. u/s 397 IPC. However, the appellant/accused was acquitted of the charge levelled against him u/s 411 IPC.

(2.) I have heard Sri S.C. Bhatt, learned amicus curiae for the appellant and Sri Prabhakar Joshi, learned brief holder for the State and perused the entire material available on record.

(3.) In brief, the prosecution case is that on 18.3.1989, Umesh Chandra Pant (P.W.1) lodged the F.I.R. at Police Station Mallital, Nainital with the averment that on 15.3.1989, Ganesh Dutt Kandpal was sent to Nainital from Vijaypur (Kanda), Almora to hand over a letter in the Office of Deputy Director, Education, Nainital and Rs.10,000.00 was also given to him for giving this amount to Sri Kishan Chandra Joshi, who was his (Umesh Chandra Pant) relative. He has further averted that on 17.3.1989 he got the information that Ganesh Dutt Kandpal is admitted in the hospital in injured condition. On this information, he along with Daya Krishan Kandpal reached Mallital, Nainital on 18.3.1989. There they enquired at B.D. Pandey Hospital and they found Ganesh Dutt Kandpal admitted in the emergency ward. They talked with Ganesh Dutt Kandpal and he told him that on 15.3.1989 at about 5:30 P:M in the evening he had reached at Tallital (Nainital) bus station and there he met the appellant/accused Kailash Chandra Kandpal along with two other persons. Kailash Chandra Kandpal was known to him prior to the said incident and he passed about two and a half hours with him and his two companions. At about 8 P:M in the night the appellant/accused and his two companions caught hold him near Balika Mandir and robbed Rs.10,000.00, a pant and official letter of the college. They also robbed Rs.70.00 from his pocket and wrist watch from him. After that the appellant/accused and his two other companions ran away from the place of occurrence. He (Ganesh Dutt Kandpal) does not know who has taken him to the hospital. With the same averments, Umesh Chandra Pant (P.W.1) has lodged the F.I.R. on 18.3.1989 at 5:30 P:M at Police Station Mallital, Naintal. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. was prepared by Head Mohirror Mohan Giri. That Chik F.I.R. is Ext.Ka-3. The necessary entry was also made in the G.D., carbon copy of which is Ext.Ka-4. Investigation of this case was entrusted to S.S.I. K.S. Hyanki. Injured Ganesh was medically examined by Dr. K.K. Bhatt (P.W.5) on 16.3.1989 at 7:35 A:M and the injury report was prepared by him i.e. Ext.Ka-5. X-ray of the injured was also conducted and the X-ray report is Ext.Ka-6. During the course of investigation, the Investigation Officer took the bloodstained clothes of the injured and the FARD was prepared i.e. Ext.Ka-2. Appellant/accused Kailash Chandra Kandpal was arrested by the police on 29.3.1989 and from his possession Rs.1,520.00, a pant, two photostat copies of the high school examination of Km. Jeevanti Devi and one passbook of District Cooperative Bank was said to be recovered. Thereafter the FARD was prepared at the spot i.e. Ext.Ka-7. On the same day i.e. on 29.3.1989, the I.O. also recovered the Pine wood and bloodstained pieces of the stone and the FARD was prepared i.e. Ext.Ka-8. The I.O. also prepared the site-plan i.e. Ext.Ka-9 of the place from where a pant and pieces of stone and other items were recovered. The I.O. prepared the site-plan i.e. Ext.Ka-10 of the place from where the accused was arrested and also prepared the site-plan i.e. Ext.Ka-13 of the place of occurrence where the incident was said to be taken place. Identification of the recovered pant was also done and the identification memo i.e. Ext.Ka-12 was prepared by P.W.10 Sri Rajendra Lal Sah, Sub Divisional Magistrate, Nainital. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation he filed the charge sheet against the appellant/accused u/Ss 394 and 411 IPC. That charge sheet is Ext.Ka-11.