1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 75 of 2005 Mohammad Umar S/o Mohammad Yusuf R/o Bansphoran , P.S Kashipur District Udham Singh Nagar .............….Appellant(In jail) Versus State of Uttranchal (Uttarakhand) …..................Respondent Shri B.S.Adhikari, Advocate (Amicus Curiae) present on behalf of the appellant Shri S.S.Adhikari, A.G.A with Shri B.S.Parihar, Brief Holder, present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J. Oral: Hon'ble Prafulla C.Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 2 22.10.2003, passed by Additional Sessions Judge/IIIrd Fast Track Court, Nainital, in Sessions Trial No. 70 of 1996, whereby said court has convicted accused/appellant Mohd. Umar under section 148 and under section 302/149 Indian Penal Code 1860 (for short I.P.C). The convict has been sentenced to rigorous imprisonment for a period of three years under section 148 I.P.C, and imprisonment for life under section 302 read with section 149 I.P.C. (2) Heard learned Amicus Curiae and learned counsel for the State and also perused the lower court record. (3) Prosecution story in brief is that deceased Ratnakar was working with motor cycle shop at Kashipur owned by one Shabban. On 10.08.1993, accused Mohd Umar along with his five other associates, namely Nazakat, Shahid, Mohd Akram, Bhura and Shakeel came to the repairing shop and got their motor cycles repaired. The deceased (Ratnakar) asked for payment of repairing charges. The accused and his associates had altercation with the deceased, and they asked him as to how he dared to ask for repairing charges. They further threatened that Ratnakar would see the fate for demanding the repairing charges. On the next day i.e. 11.08.1993 Ratnakar along with his brother PW1 Diwakar Sharma, 3 PW2 Avnendra Sharma and PW3 Nardeva Sharma were going to get the dispute settled between Ratnakar and accused Mohd Umar and his associates. At about 11.30 a.m when they reached near Luxmi Pur Patti, accused Mohd Umar and five other namely, Nazakat, Shahid, Mohd Akram, Bhura and Shakeel stopped Ratnakar and dragged him to some distance and thereafter, all the six with knives and GUPTI (sharp edged weapon) inflicted injuries on the person of Ratnakar, who died on the spot. The First Information Report (Ex A1) was got lodged by PW1 Diwakar Sharma at police station Kashipur at about 12.15 noon, on the basis of which crime no. 910 of 1993 was registered relating to offences punishable under section 147, 148, 149 and 302 I.P.C.,against accused Shahid, Nazakat , Mohd Akram, Bhura, Shakeel and Mohd Umar. The crime was investigated initially by Sub Inspector G.M.Singh and later investigation was handed over to Station House Officer T.P. Singh. Immediately after the First Information Report was lodged, at about 12.45 hours, the police reached at the spot, took dead body in their possession and prepared inquest report (Ex A2) in the presence of PW4 Mahendra Kumar Sharma and others. The police also prepared the other necessary papers and sent the dead body of the deceased for post mortem examination. PW5 Dr. Surendra Singh conducted post mortem examination on the dead body of Ratnakar on 4 11.08.1993, at about 5p.m. He found as many as 17 injuries including 16 incised wounds, which were recorded in autopsy report (Ex A3). The Medical Officer opined that deceased had died due to shock and hemorrhage as a result of ante mortem injuries. After interrogating the witnesses, inspecting the spot and completing the interrogation the Investigation Officer submitted charge sheet (Ex A5) against all the six accused for their trial in respect of offences punishable under section 147, 148, 149 and 302 I.P.C. (4) It appears that all the six accused claimed juvenility and out of the six, five were declared juvenile, and their case was separated from accused/appellant Mohd Umar. The case of Mohd Umar was committed to the court of Sessions for trial in October 1993. Learned Additional Sessions Judge, Nainital, after hearing the parties, framed charge of offences punishable under section 148 and 302 read with section 149 I.P.C., against accused Mohd Umar, who pleaded not guilty and claimed to be tried. (Earlier Tehsil Kashipur was part of district Nainital). The prosecution got examined PW1 Diwakar Sharma (complainant and eye witness), PW2 Avanendra Sharma (another eye witness), PW3 Nardeva Sharma (eye witness), PW4 Mahendra Kumar Sharma (witness of the inquest report) and PW5 Dr. Surendra Singh (who 5 conducted post morterm examination). Perusal of the papers on record shows that the defence counsel admitted the genuineness of the check report of the First Information Report, copies of general diary, recovery memo, site plan and other papers on record. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he alleged the same to be false. However, no evidence in defence was adduced. The trial court after hearing the parties found accused Mohd Umar guilty of charge of offences punishable under section 148 and 302 read with section 149 I.P.C. After hearing on sentence, the convict (present appellant) was sentenced to rigorous imprisonment for a period of three years under section 148 I.P.C., and imprisonment for life under section 302 read with section 149 I.P.C. Aggrieved by said judgment and order dated 22.10.2003, passed by Additional Sessions Judge/IIIrd Fast Track Court, Nainital, in Sessions Trial No. 70 of 1996, this appeal was filed by the convict Mohd Umar, before this court. (5) Before further discussion, we think it just and proper to mention here the ante mortem injuries recorded by PW5 Dr. Surendra Singh, after post mortem examination of the body of Ratnakar (deceased). The same are being reproduced from autopsy report (Ex A-3) as under :- 6 (i) Incised wound 6cm x 2 cm x muscle deep present right side cheek transverse starting from right angle of mouth. (ii) Incised wound 5cm x 2 cm present on lower lip and chin. Vertically placed, bone deep. (iii) Incised wound 5cm x 3cm x muscle deep present upper part of right side neck. (iv) Incised wound 8cm x 3cm present in front of chest shifted to right side muscle deep. (v) Incised wound 12 cm x 5cm present in front of lower part of neck cut portion of trachea seen. Wound number 4 and 5 communicating with each other. (vi) Incised wound 5cm x 3cmx bone deep present left side head temporal region. (vii) Incised wound 3cm present lower part of left ear, cut through and through. (viii) Incised wound 4cm x 3cm present back of lower part of left fore arm of left wrist joint. (ix) Incised wound 7cm x 1cm x muscle 7 deep present on right cheek 3cm below right eye. (x) Incised wound 5cm x 3cm x muscle deep present on the right shoulder. (xi) Multiple abrasion present in front of left thigh. (xii) Incised wound 3cm x 2cm x muscle deep present back and medial part right wrist joint. (xiii) Incised wound 6cm x .5 cm x muscle deep on left side of the chest, (lower part). (xiv) Incised wound 4cm x 3cm x muscle deep present back of right side chest, scapular region. (xv) Incised wound 2 in number 3cm x 1cm x muscle deep, 2cm x 05 cm x muscle deep present back of left side chest. Both wounds transversely placed in one line. (xvi) Incised wound 3cm x 1cm x depth up to thoracic cavity present back of right side chest (lower portion). (xvii) Incised wound 4cm x 2cm x scalp deep present back of head in occipital region. 8 The above quoted medical evidence read with the statement of PW5 Dr. Surender Singh establishes on the record that the deceased was brutally murdered. Now the question before this court is as to whether accused/appellant Mohd Umar was one of the six persons, who said to have inflicted the aforesaid injuries on the person of the deceased. (6) PW1 Diwakar Sharma, complainant and eye witness has stated that Ratnakar Sharma (deceased)was his brother, who used to work with Shabban Mistry in the motor cycle repairing shop. On 11.08.1993. at about 5p.m, accused Mohd Umar along with Shahid, Nazakat, Mohd Akram, Bhura and Shakeel came at the shop of Shabban and got their motor cycle repaired. Ratnakar demanded money from them for getting the work done. This led to quarrel between Ratnakar and accused/appellant Mohd Umar and his associates . The accused and his associates told him that nobody dared to demand money from them, and after threatening Ratnakar that, they will teach him lesson for asking for payment of repairing charges, they left the place. PW1 Diwakar Sharma further stated that on the next day to settle the dispute, arisen between Ratnakar and accused Mohd Umar and other, he along with Avanendra Sharma (PW2) and Nardeva Sharma (PW3) was going at place Bansphoran . But when they reached near 9 Luxmi pur patti, accused persons stopped them, dragged Ratnakar to some distance and inflicted injuries on his person with knives and GUPTI (sharp edged weapon). The witness further told that Ratnakar succumbed to the injuries at the spot. PW1 Diwakar Sharma further states that soon thereafter, he lodged First Information Report (Ex A-1) at the police station. The defence counsel cross examined PW1 Diwakar Sharma at length but nothing came out in it, which shakes the testimony of the witness. (7) Statement of PW1 Diwakar Sharma is further corroborated by the statement of other two eye witnesses, namely PW2 Avanendra Sharma and PW3 Nardeva Sharma. These two witnesses have supported the prosecution story and stated that they were accompanied Ratnakar at the time of incident to get the matter settled between accused and the deceased. They have also narrated as to how the accused/appellant and his associates inflicted injuries with knives and GUPTI and killed Ratnakar Sharma brutally. The evidence of the three eye witnesses is fully corroborated by the medical evidence already mentioned above. It is day light incident in which the three eye witnesses have narrated the prosecution story. The First Information Report is also a prompt one. Not only this, soon after the incident, when First Information 10 Report was lodged, within half an hour dead body was taken by the police in their possession, inquest report was prepared, and on the same day at 5 p.m post mortem examination was also done. There is no reason on record suggesting as to why the three eye witnesses would falsely implicate the accused/appellant. Lower court record, which is received along with the record of the Juvenile Justice Board further reveals that other five accused were also convicted by the Board. (8) On behalf of the appellant it is submitted that appellant Mohd Umar was Juvenile on the day of the incident. However, the record shows that the question of Juvenility has already been examined before the case was committed to the court of Sessions, and except Mohd Umar(present appellant) other five accused were found Juvenile. That is why the case of accused Mohd Umar was committed to the court of Sessions. The said finding does not appear to have been challeged. In the facts and circumstance of the case, we are not inclined to remand back the case to the Juvenile Justice Board to further examine as to whether the accused/appellant Mohd Umar was juvenile or not. (9) Having considered submissions of learned counsel for the parties and after going through the evidence on record, we concur with the view taken by 11 the trial court that prosecution has successfully proved charge of offence punishable under section 148 I.P.C and that of one punishable under section 302 read with section 149 I.P.C., against the accused/appellant Mohd Umar. We do not find any reason to interfere with the sentence awarded by the trial court, either. (10) Therefore, the appeal is liable to be dismissed. The same is dismissed. The conviction and sentence recorded by the trial court is affirmed. Let a copy of this judgment be sent to the Superintendent of the jail concerned, where the accused was serving out the sentence. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) 17.09.2010 N.P