RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.284 OF 2001 (OLD NO.597/1993) Mehboob S/o Sharif ……… Appellant Versus The State ……… Respondent Dated: June 10, 2009 Mr. Manish Arora, learned counsel for the appellant Mr. M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. 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 3.4.1993 passed by Additional Sessions Judge, Roorkee in S.T. No.197/1990, State Vs. Mehboob & two others, whereby the learned Additional Sessions Judge convicted the accused/appellant Mehboob u/s 324 of the Indian Penal Code, 1860 (hereinafter to be referred as the I.P.C.) and sentenced him to undergo rigorous imprisonment for a period of three years. However, the co-accused persons, namely, Khurshid and Sageer were acquitted of the charge levelled against them by the trial court. 2. I have heard Sri Manish Arora, learned counsel for the accused/appellant as well as Sri M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that Ishrar (P.W.1) lodged the F.I.R. at Police Station Bhagwanpur with the averments that on 5.10.1989 some altercation took place between his brother Bhura (deceased) and the 2 accused/appellant Mehboob in the shop. Keeping this incident in mind, the accused/appellant Mehboob armed with country made pistol and the co-accused Khurshid and Sageer armed with Lathi met his brother on 7.10.1989 at about 06:00 A:M when his brother Bhura had gone in the street for answering the call of nature. On the instigation of the accused/appellant Mehboob, the co-accused persons armed with Lathi ran behind his brother to beat him. His brother raised alarm. On hearing the noise, he along with Mashkur (P.W.2), Jinda and some other persons reached at the place of occurrence. Seeing these persons, the accused/appellant Mehboob with intention to kill his brother fired on him with the revolver which hit on his right hand. Thereafter the accused/appellant and the co-accused persons fled from the place of occurrence. With the same averments, the F.I.R. was lodged by Ishrar (P.W.1) at Police Station Bhagwanpur, District Haridwar on 7.10.1989 at 08:10 A:M. That F.I.R. is Ext.Ka-1. On the basis of that F.I.R., Chik F.I.R. (Ext.Ka-5) was prepared by Head Mohirror Sultan Singh (P.W.6). Initially the investigation of this case was entrusted to Sub Inspector Babu Ram Yadav (P.W.5). On the same day i.e. on 7.10.1989 at 08:40 A:M, the injured Bhura was medically examined by Dr. D.M. Sharma (P.W.3), Medical Officer and the injury report (Ext.Ka-2) was prepared. Later on injured Bhura died in the hospital. Thereafter, the I.O. prepared the inquest report which is Ext.Ka-6. On 26.10.1989 at 01:30 P:M, post-mortem examination of the dead body of the deceased was conducted by Dr. Vipin Kumar (P.W.4) and the post-mortem report thereof was prepared which is Ext.Ka-3. During the course of investigation, the I.O. recorded the statement of the witnesses and prepared the site-plan of the place of occurrence. That site-plan is Ext.Ka-4. Later on the investigation of this case was 3 entrusted to S.I. Diwan Singh (P.W.7), who on completion of the investigation, submitted the charge sheet against the accused/appellant and the other co-accused persons (acquitted by the trial court). That charge sheet is Ext.Ka- 7. 4. Learned Additional Chief Judicial Magistrate, Roorkee committed the case to the court of Sessions on 7.12.1990, after giving necessary copies to the accused/appellant and the co-accused persons as prescribed u/s 207 Cr.P.C. 5. On 4.2.1991, learned Additional Sessions Judge, Roorkee framed the charge of offence punishable u/s 304 r/w 34 I.P.C. against the co-accused Khurshid and Sageer (acquitted by the trial court) and the charge u/s 304 I.P.C. was framed against the accused/appellant. The charge was read over and explained to the accused/appellant and the co-accused, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Ishrar Ahmed, complainant; P.W.2 Mashkur, eyewitness; P.W.3 Dr. D.M. Sharma, Medical Officer, who medically examined the injured Bhura (now deceased); P.W.4 Dr. Vipin Kumar, who conducted the post-mortem examination of the dead body of the deceased; P.W.5 S.I. Babu Ram Yadav, Investigating Officer of the case; P.W.6 Head Mohirror Sultan Singh, P.W.7 S.I. Diwan Singh, I.O. of the case and P.W.8 Dr. Fariuddin. 7. Thereafter the statement of the accused/appellant and the other co-accused (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral 4 and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Roorkee vide his judgment and order dated 3.4.1993 convicted and sentenced the accused/appellant Mehboob as stated above. However, the co-accused Khurshid and Sageer were acquitted of the charge levelled against them by the trial court. Feeling aggrieved by the aforesaid judgment and order the accused/appellant has preferred the present appeal. 9. Before further discussion, it is pertinent to mention that the injured Bhura (now deceased) was got examined by Dr. D.M. Sharma (P.W.3) on 7.10.1989 at 08:40 A:M and the injury report thereafter was prepared which is Ext.Ka-2. Injury report (Ext.Ka-2) is reproduced as under:- (i) G.S.W. 4.5 cm x 1 cm on the anterior-medial aspect of right forearm. 14 cm above the right wrist joint. Burning sign blackish in colour in the area measuring 7 cm x 6 cm around the injury. (ii) Swelling 10 cm x 8 cm on the posterior aspect of right elbow. Injury kept under observation, advised for X-ray. Opinion and Nature:- Injury No.1 is caused by some firearm and injury no.2 will be decided after X-ray report. Nature of both injuries decided after the X-ray report. Duration:- Fresh 5 10. Later on the injured Bhura died. Thereafter his post-mortem examination was conducted by Dr. Vipin Kumar (P.W.4) on 26.10.1989 at 01:30 P:M and the post- mortem report was prepared which is Ext.Ka-3. As per the post-mortem report (Ext.Ka-3), the medical officer has opined that since the cause of death could not be ascertained hence viscera was preserved. 11. To prove the injury report, the prosecution has examined P.W.3 Dr. D.M. Sharma, who has stated that on 7.10.1989 he was posted as Medical Officer at PHC, Bhagwanpur. On that day at 08:40 A:M, he medically examined the injured Bhura and found the above-noted injuries on the person of the injured Bhura. He has proved the injury report Ext.Ka-2. 12. P.W.4 Dr. Vipin Kumar has stated that on 26.10.1989 at 01:30 P:M he conducted the post-mortem examination of the dead body of the deceased. Thereafter the post-mortem report was prepared which is Ext.Ka-3. He further stated that since the cause of death could not be ascertained hence viscera was preserved. He further stated that the injured has not died due to the injuries caused to him. 13. P.W.1 Ishrar Ahmed has stated that on the day of incident at 06:00 A:M his brother Bhura had gone in the street then the accused/appellant Mehboob and other co-accused persons Khurshid and Sageer met his brother Bhura. Co-accused Sageer and Khurshid were armed with Lathi and the accused/appellant Mehboob was armed with country made pistol. Co-accused Khurshid and Sageer challenged to kill his brother Bhura. On hearing the noise of Bhura, he, his cousin brother Mashkur (P.W.2) and one Jinda reached at the spot 6 where they saw that the accused/appellant Mehboob fired on Bhura. They tried to catch the accused persons but all of them ran away. Injured Bhura was taken to Roorkee Civil Hospital for medical examination by him and Mashkur (P.W.2). There they were told that it is a police case then they came at Bhagwanpur Police Station. There he lodged the report (Ext.Ka-1). Then the Police took the injured Bhura to P.H.C. Bhagwanpur where his medical examination was done. His brother was referred to Roorkee hospital where he remained admitted for 5-6 days. Thereafter he was sent to Meerut Government Hospital and then to Pyare Lal Sharma Hospital. After 13-14 days of the said incident his brother died due to tetanus. Information to this effect was given in the Bhagwanpur Police Station. The I.O. prepared the inquest report. He further stated that before 15-16 years of the said incident Mumtayaj, real brother of the co-accused Sagir, had taken his real sister Mashkuran along with him. A report to this incident was lodged in the police station later on which was resolved as he (Mumtayaj) brought his sister back in 3-4 days. It was further deposed that before 8 months of the said incident, the co- accused Sagir had taken Sona, his brother’s wife, along with him to his house. Then Police recovered her from the house of the co-accused Sagir. He further deposed that the said incident happened due to the enmity of the above-said incidents. 14. P.W.2 Mashkur has stated that on the day of incident at about 06:00 A:M he was in the courtyard of his house then he heard the noise of Bhura (deceased). He saw that the accused/appellant Mehboob was armed with country made pistol and the co-accused persons Sagir and Khurshid were armed with Lathi. The accused/appellant Mehboob fired on Bhura which hit on 7 his right hand. When he alongwith some other persons reached at the spot then the accused/appellant ran away. Thereafter Bhura (deceased) was taken to Roorkee Hospital where they were told that it is a police case. Then injured Bhura was taken to Police Station, Bhagwanpur. 15. P.W.5 Babu Ram Yadav has stated that on 7.10.1989 he was posted as Sub Inspector at Police Station Bhagwanpur. The investigation of this case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses, sent the injured Bhura for medical examination and prepared the site- plan (Ext.Ka-4) of the place of occurrence. He has also prepared the inquest report which is Ext.Ka-6. He further stated that the Chik F.I.R. (Ext.Ka-5) was prepared by the H.C. Sultan Singh. After the death of the injured the investigation of the case was conducted by S.O. Diwan Singh (P.W.7). 16. P.W.7 S.I. Diwan Singh has stated that on 4.11.1989 he was posted at Police Station Bhagwanpur. Initially the investigation of the case was entrusted to S.I. Babu Ram but after 4.11.1989 it was conducted by him. He submitted the charge sheet which is Ext.Ka-7. 17. P.W.8 is Medical Officer Dr. Fariuddin, who has stated that on 23.10.1989 he was posted at Pyare Lal Sharma Hospital, Meerut. He has proved the report Ext.Ka-9. 18. Thereafter the statement of the accused/appellant and the other co-accused (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in 8 question form, who has denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 19. Learned counsel for the accused/appellant has argued that the prosecution has not proved the case beyond reasonable doubt against the accused/appellant Mehboob u/s 324 I.P.C. I do not find force in the argument advanced by learned counsel for the accused/appellant as Ishrar Ahmed (P.W.1), in his deposition, has clearly stated that on the day of incident i.e. on 7.10.1989 at 06:00 A:M when his brother Bhura (deceased) had gone in the street then the accused/appellant Mehboob armed with country made pistol and other co-accused persons Khurshid and Sagir armed with Lathi met his brother Bhura. Co-accused Khurshid and Sagir challenged to kill his brother Bhura. Injured Bhura raised alarm. On hearing the noise of Bhura, he, his cousin brother Mashkur (P.W.2) and one Jinda reached at the spot where they saw that the accused/appellant Mehboob fired on Bhura. They tried to catch the accused persons but remained unsuccessful. Injured Bhura was then taken to Roorkee Civil Hospital for medical examination by him and Mashkur (P.W.2) where it was told to them that it is a police case then they came at Bhagwanpur Police Station. There he lodged the report (Ext.Ka-1). Then the Police took the injured Bhura to P.H.C. Bhagwanpur where his medical examination was done. Injured Bhura was referred to Roorkee hospital where he remained admitted for 5-6 days. Thereafter he was sent to Meerut Government Hospital and then to Pyare Lal Sharma Hospital. After 13-14 days of the said incident Bhura died due to tetanus. Information to this effect was given in the Bhagwanpur Police Station. It was further deposed by P.W.1 Ishrar that before 15-16 years 9 of the said incident Mumtayaj, real brother of the co- accused Sagir, had taken his real sister Mashkuran along with him. A report to this incident was lodged in the police station later on which was resolved as he (Mumtayaj) brought his sister back in 3-4 days. It was further deposed that before 8 months of the said incident, the co-accused Sagir had taken Sona, his brother’s wife, along with him to his house. Then Police recovered her from the house of the co-accused Sagir. It was further deposed that the said incident happened due to the enmity of the above-said incidents. The statement of P.W.1 Ishrar Ahmed finds full support from the statement of Mashkur (P.W.2), who had also seen the said incident. Besides this, his statement is further corroborated from the statement of Dr. D.M. Sharma (P.W.3), who medically examined the injured Bhura on 7.10.1989 as well as from the injury report (Ext.Ka-2). Thus, the prosecution has successfully proved the case beyond reasonable doubt against the accused/appellant u/s 324 I.P.C. 20. Learned counsel for the accused/appellant has further argued that the sentence of three years’ R.I. imposed upon the accused/appellant u/s 324 I.P.C. by the trial court is extreme/maximum penalty provided under the law. Hence, he prayed that the sentence against the accused/appellant Mehboob may be reduced to the sentence already undergone by him. He further submitted that now the accused/appellant Mehboob is 46 years’ old and he is living with his family, who are entirely dependent on him. He further submitted that except this crime the accused/appellant has not committed any other crime before or after this incident and he is facing the present case for the last more than 18 years in various courts. Keeping in view all the facts 10 and circumstances, I think it just and proper that the sentence of two years’ R.I. would meet the ends of justice in this case. 21. For the aforementioned reasons, the appeal is partly allowed. The judgment and order dated 3.4.1993 passed by Additional Sessions Judge, Roorkee in S.T. No.197/1990, State Vs. Mehboob & two others, is confirmed as far as the conviction of the accused/appellant u/s 324 I.P.C. is concerned. However, the sentence of 3 years R.I. awarded by the trial court, is set aside. Instead, the accused/appellant is sentenced to undergo rigorous imprisonment for a period of two years out of which the period already undergone by him during trial and during the pendency of this appeal shall be set off. The appellant/accused Mehboob is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith in order to serve out the remaining sentence. 22. A copy of this judgment shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) 10.06.2009 RG