(1.) THIS appeal, preferred under Section 378(1) of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 31.08.1988 passed by Assistant Sessions Judge, Almora in Sessions Trial No. 10/1888, whereby, the learned Assistant Sessions Judge has acquitted the respondents for the offences punishable under Sections 436, 325, 338 & 448 r/w Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). In brief the prosecution story is that complainant Balkishan lodged a report with Naib Tehsildar, Almora alleging therein that on 4.11.1986 at about 9:00 P.M., the respondents namely Parmanand, Mohan Singh, Diwan Singh and Bhagwat Singh along with some other persons came at the shop of the complainant in village Tani. They started to hurl stones and also started destruction in the shop. When the complainant objected for the same, then the respondents hurled stones due to which complainant Balkishan and his mother were injured. For the purpose of safety, the complainant and his mother hid inside their house. The respondents along with some other persons broke open the door of the shop and began to destruct the goods and articles kept inside the shops. It was also stated that the respondents and other accomplices continued in destructing the shop till 12:00 A.M. It was also stated that they also set fire to the shop and the articles inside the shop with the hay and kerosene oil. In the meantime, Laxmi Dutt, who was called by the sister of complainant, came and attempted to intervene but the respondents also injured him by hurling stones on him. Thereafter, a noise of Truck came from the side of Bimola, then the respondents and their accomplices ran away threatening the complainant and his family members that they would burn them alive. Thereafter, the complainant and his family members came down and they extinguished the fire of the shop. The complainant Balkishan also came to know that the respondents took away the safe kept inside the shop which was containing Rs. 20,000/ - in cash, 3 golden Golobands, two Naths and three pairs of ear rings. Besides this, the respondents and their accomplices also took away the other goods and articles. The respondents, in this way, looted and destroyed the articles, amounting to Rs. 50,000/ -. Due to this reason, the complainant and his family members could not sleep in the night. Since the Patwari was not present at the relevant time at his station, so the report was lodged with Naib Tehsildar. With the same averments, the FIR was lodged with Naib Tehsildar, Almora on 5.11.1986 by Sri Balkishan, that report is Ex.Ka -3. (In the rural areas of State of Uttarakhand, the Patwaris and Kanungos are being vested with police powers). On the basis of this report, Shambhu Dutt, Kanungo prepared the Chik FIR and case was registered u/s 436/395 IPC, that Chik FIR is Ex.Ka -4. Injured Smt. Debuli Devi was also medically examined by Medical Officer, Distt. Hospital, Almora on 5.11.1986 at 4:15 P.M. and the injury report was prepared, i.e. Ex.Ka -1. Ex.Ka -2 is the X -ray report in respect of injured Smt. Debuli Devi prepared by Radiologist, H.G. Pant Hospital, Almora. The investigation of the case was also entrusted to Shambhu Dut, Kanungo. During the course of investigation, he inspected the place of occurrence and prepared the site plan i.e. Ex.Ka -5. The I.O./Kanungo, during the course of investigation, recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet u/s 436/ 457/323/325/427 IPC against the respondents in the court of CJM, Almora, the charge sheet is Ex.Ka -15.
(2.) LEARNED Chief Judicial Magistrate, Almora committed the case to the court of Sessions on 19.1.1988 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C.
(3.) TO prove its case, the prosecution got examined P.W. 1 Dr. M.L. Aggarwal who has medically examined the injured Smt. Debuli Devi, P.W.2 Smt. Debuli Devi, injured witness, P.W.3 Bal Kishan (complainant of the case), P.W.4 Jai Ballabh, brother of complainant, P.W.5 Mahesh Chandra, eyewitness and P.W.6 Shambhu Dutt, I.O. of the case.