IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1649 of 2001 (Old No. 1847 of 1996) 1. Mahabir S/o Munshi R/o Shyam Nagar, P.S. Jewar, District Bulandshahr. 2. Harchandi S/o Kishan Lal 3. Kali Charan S/o Netra Pal 4. Jaswant S/o Netra Pal Appellants No. 2 to 4 R/o Harthala, P.S. Civil Lines, Distt. Moradabad. 5. Ravi S/o Pyare R/o Ghirora, P.S. Tegaon Distt. Faridabad (Haryana). 6. Tilka S/o Munshi R/o Shyam Nagar P.S. Jewar, Distt. Bulandshahr. ...…………. Appellants Versus State of U.P. (Now State of Uttarakhand). ...…………. Respondent Mr. Pankaj Miglani, Advocate (Amicus Curiae), present for the appellants. Mr. M.A. Khan, Brief Holder, present for respondent State Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 3rd of August 1996, passed by II Addl. Sessions 2 Judge, Haridwar, in Sessions trial No. 29 of 1993, whereby appellants Mahabir, Harchandi, Kali Charan, Jaswant, Ravi S/o Pyare have been convicted under Section 395 of 397 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each one of them has been sentenced to undergo rigorous imprisonment for a period of ten years. However, appellant Tilka has been convicted only under Section 412 of I.P.C., and sentenced to undergo rigorous imprisonment for a period of ten years. 2) Heard learned Amicus Curiae for the appellants and learned counsel for the State, and perused the lower court record. 3) Prosecution story, in brief, is that on 18.12.1990, P.W. 3 Mahendra Singh (complainant) was in his house. On that day he had lit fire to keep warm his cow, which has just delivered a calf. Apart from this, there was light of lamp and petromax in the house. Suddenly some 15-16 miscreants, armed with deadly weapons, came there. When P.W. 3 Mahendra Singh (complainant) challenged them, the miscreants fired a shot which hit on the back of the complainant. On this, P.W. 3 Mahendra Singh alarmed his sons, and also took a spade and gave a blow to one of the miscreants. Meanwhile, his sons P.W. 2 Sarvjeet Singh, P.W. 1 Mukhtar Singh and Paramjeet Singh also reached there. The miscreants, thereafter, fired more shots and all the 3 above three received injuries. Mahendra Singh (P.W. 3) also took out his licensed gun and fired shot in self defence without injuring anyone. The miscreants after injuring the aforesaid witnesses looted the blankets, shawls, shirts, pantlooms and utensils from the house of the complainant, and fled from the scene. Thereafter, two constables on patrol duty reached the village. On the very day, at about 08:30 P.M., the miscreants committed another robbery in the village Nalki, in the house of Shamshad and Altaf. From said village also they took the clothing, pair of shoes, wall clock, buckets and cash of Rs. 1,200/-. P.W. 3 Mahendra Singh along with his sons went in a jeep to the police station where he informed about the incident by giving a first information report (Ext. A –1), and rushed to the hospital for medical treatment. A crime No. 83 of 1990, was registered at police station Shyampur, on the basis of the first information report, in respect of offences punishable under Section 395 and 397 of I.P.C. Investigation was taken up by Sub Inspector Roshan Singh, who came to inspect the spot and prepared site plans (Ext. A –22 to Ext. A –27). The police also took the lantern, lamp and ash etc. in their possession, and prepared memorandum in respect thereof. Meanwhile, injuries on the person of the injured Mahendra Singh (P.W. 3), Mukhtar Singh (P.W. 1), Paramjeet Singh and Sarvjeet Singh (P.W. 2) were recorded by P.W. 13 Dr. Vipin Kumar Premi, who prepared injury reports (Ext. A –17 to Ext. A –20) on 4 18.12.1990, between 9-10 P.M. After about five days on 23.12.1990, P.W. 12 Sub Inspector Naresh Pal Yadav of police station Nagina, District Bijnor, along with police personnel reached Badhapur on receiving information of miscreants hiding there. After brief encounter, the eight miscreants were arrested on that day, which included accused / appellants Mahabir, Harchandi, Kali Charan, Jaswant, Ravi S/o Pyare and Tilka. From the possession of appellant Mahabir, apart from a D.B.B.L. gun (12 Bore) and eight cartridges, looted property (jewellery and cash) was recovered. Similarly, from the possession of appellant Harchandi, a D.B.B.L. gun and seven cartridges, and looted property (jewellery, clothes and blanket) was recovered. From the possession of appellant Tilka, one S.B.B.L. gun and five cartridges, and looted property (bed sheets and tehmad) was recovered. From the possession of appellant Kali Charan one country made pistol, and looted property (blanket, shawl, shirts) was recovered. From the possession of appellant Jaswant one knife, and looted property (jewellery, Philips Radio) was recovered. And, from the possession of appellant Ravi S/o Pyare one knife, and looted property (shirts, tehmad, bed sheets) was recovered. Necessary memorandums were prepared, and entries were made in the general diary. The investigation was later on transferred to Sub Inspector Satish Chand Pachori (P.W. 14). The looted property and the apprehended miscreants were put to identification before the 5 Magistrate, and on the basis of the identification reports of persons and properties, the Investigating Officer on the basis of interrogation of the witnesses, submitted charge sheet against 11 persons, including the present six accused / appellants. 4) 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 II Addl. Sessions Judge, Haridwar, after hearing the parties, framed charge of offences punishable under Section 395, 397, 412 of I.P.C. against Mahabir (appellant), Harchandi (appellant), Kali Charan (appellant), Ravi S/o Shiv Lal and Ravi S/o Pyare (appellant). The trial court further framed charge of offences punishable under Section 395 and 397 of I.P.C. against Jaswant (appellant), Suresh, Rajendra and Dharma. A separate charge was framed against appellant Tilka under Section 412 of I.P.C. Also, charge was framed against accused Iqbal Singh, in respect of offence punishable under Section 395 read with Section 149 of I.P.C. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Mukhtar Singh (injured and son of the complainant); P.W. 2 Sarvjeet Singh (injured and son of the complainant); P.W. 3 Mahendra Singh (complainant and injured); P.W. 4 Samshad; P.W. 5 Altaf; P.W. 6 Constable Satvir; P.W. 7 Constable Veer Daman; P.W. 8 Ram Lakhan Singh 6 (the Magistrate in whose presence identification parade was conducted); P.W. 9 Constable Shankar Lal; P.W. 10 Constable Kalua Singh; P.W. 11 Constable Abhiraj Singh; P.W. 12 Inspector Naresh Pal Yadav (Investigating Officer); P.W. 13 Dr. Vipin Kumar Premi (who examined the injuries on the person of the injured); P.W. 14 Inspector Satish Chand Pachori (who completed the investigation) and P.W. 15 Station Officer Roshan Singh (in whose presence crime was registered). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they pleaded ignorance as to commission of dacoity in the house of Mahendra Singh, Shamshad and Altaf. They further pleaded that they are falsely implicated in the crime. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that the prosecution has successfully proved charge of offence punishable under Section 395 and 397 of I.P.C. against five accused, namely Mahabir, Harchandi, Kali Charan, Jaswant and Ravi S/o Pyare. The trial court further held that charge as against accused Tilka was found proved in respect of offence punishable under Section 412 of I.P.C. The other accused were acquitted of the charge framed against them. After hearing on sentence, each one of the convicts Mahabir, Harchandi, Kali Charan, Jaswant and Ravi S/o Pyare were sentenced to rigorous imprisonment for a period of ten years (under Section 395 / 397 of I.P.C.), and convict Tilka was sentenced to 7 rigorous imprisonment for a period of ten years (under Section 412 of I.P.C). Aggrieved by said judgment and order dated 03.08.1996, all the six convicts preferred this appeal before the Allahabad High Court on 3rd of October 1996, where it was admitted on 04.10.1996. The appeal is received by this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, this Court thinks it just and proper to mention the injuries said to have been suffered by the witnesses Mukhtar Singh (P.W. 1), Sarvjeet Singh (P.W. 2) and Mahendra Singh (P.W. 3) in the incident in question. P.W. 13 Dr. Vipin Kumar Premi has stated that he recorded following injuries on the persons of the above three. Injury found on the person of Mukhtar Singh (P.W. 1) as recorded in Ext. A –17, by P.W. 13 Dr. Vipin Kumar Premi, is reproduced as under: Gun shot wound of entry 0.3 X 0.3 cm with margins blackened on the posterio lateral side on the right thigh. Injury found on the person of Sarvjeet Singh (P.W. 2) as recorded in Ext. A –20, by the aforesaid Medical Officer, is reproduced as under: Gun shot wound of entry 4 X 3 cm cavity deep with multiple gunshot wound of entry in an area of 8 X 6 cm, each measuring 0.2 X 0.2 8 cm, and about 22 in number on the back of right shoulder and upper part of right scapula region. Wounds are inverted. Fresh blood present in the wound. Injury found on the person of Mahendra Singh (P.W. 3) as recorded in Ext. A –18, by the aforesaid Medical Officer, is reproduced as under: Gun shot wound of entry, each measuring 0.2 X 0.2 cm, in area of 3 X 3 cm on middle of back with traumatic swelling, 13 X 10 cm all around. Apart from this, Paramjeet Singh, the third son of Mahendra Singh (complainant) also suffered three injuries, recorded in Ext. A –19, but he was not examined by the prosecution. 6) In the light of the above injuries, the testimony of P.W. 1 Mukhtar Singh, P.W. 2 Sarvjeet Singh and P.W. 3 Mahendra Singh (complainant), who were the eyewitnesses of the incident of dacoity, appears to be trustworthy. All the three have stated that on 18.12.1990, in the evening, at about 07:30 P.M., they were in their home. They had lit a fire outside the house to keep their cow warm. Apart from this, there was a lamp and petromax in the house when the miscreants came and looted them. They have further stated that the miscreants fired shots at them, and they suffered injuries in the incident. It is also stated by the 9 three eyewitnesses that they resisted the dacoits, but in vain. It has been stated by the witnesses that they could identify the miscreants as there was sufficient light in the house. As to the items which were looted by the miscreants, it has come on the record that their clothes and utensils were looted. P.W. 4 Shamshad and P.W. 5 Altaf have proved that on the same day the same miscreants committed another robbery in their house, at about 08:30 P.M., in Village Nalki, and their jewellery, utensils and clothes were also looted. 7) As to the identity of the miscreants it has been proved by the prosecution that the five appellants, namely Mahabir, Harchandi, Kali Charan, Jaswant and Ravi S/o Pyare were correctly identified by the witnesses in the presence of P.W. 8 Ram Lakhan Singh (Magistrate). P.W. 8 Ram Lakhan Singh has stated that on 07.03.1991, the accused were put to the identification parade, where the accused were identified by the witnesses. The Magistrate proved the identification memos (Ext. A –10 and Ext. A –11). Apart from this, the witnesses also identified the accused / appellants Mahabir, Harchandi, Kali Charan, Jaswant and Ravi S/o Pyare in the court. The trial court has discussed the evidence at length that since the correct identification of the aforesaid accused is more than 50%, and they were also identified in the court, as such, there was no reason to disbelieve the testimony of the prosecution witnesses on the point of commission of 10 dacoity by the aforesaid accused on the day of the incident. Recovery of the looted articles was also proved from the accused, including from accused / appellant Tilka. However, Tilka’s identification as to his person in commission of dacoity was less than 50% correct, as such, he was given benefit of doubt, and acquitted of the charge of offences punishable under Section 395 and 397 of I.P.C. 8) Having re-assessed the evidence on record, this Court finds no error of law committed by the trial court in appreciating the evidence, and concluding that the prosecution has successfully proved charge of offences punishable under Section 395 / 397 against the accused / appellants Mahabir, Harchandi, Kali Charan, Jaswant, Ravi S/o Pyare, and the charge of offence punishable under Section 412 of I.P.C. against accused / appellant Tilka. So far as the sentence awarded to the accused / appellants Mahabir, Harchandi, Kali Charan, Jaswant, Ravi S/o Pyare is concerned, each one of them has rightly been sentenced to rigorous imprisonment for a period of ten years, as they have while committing the dacoity injured as many as three persons, and attempted to cause death of the three witnesses, namely P.W. 1 Mukhtar Singh, P.W. 2 Sarvjeet Singh and P.W. 3 Mahendra Singh. However, sentence awarded to accused / appellant Tilka, for commission of crime punishable under Section 412 of I.P.C. appears to be on the higher side, as only a woolen shawl and tehmad (out 11 of the looted property) are said to have been recovered from him. In the facts and circumstances, this Court think it just and proper to reduce the sentence awarded to accused / appellant Tilka to a period of five years, only. 9) Accordingly, the appeal of accused / appellants Mahabir, Harchandi, Kali Charan, Jaswant, Ravi S/o Pyare is dismissed. The appeal of accused / appellant Tilka is dismissed on the point of conviction, but partly allowed on the point of sentence, which is reduced to rigorous imprisonment for a period of five years, only. Except as to modification in the sentence of accused / appellant Tilka only, the appeal stands dismissed. The period already undergone by the accused / appellants shall be adjusted against the sentence affirmed / modified by this Court. Copy of this judgment be sent to the trial court along with the lower court record of this case, for making the accused / appellants to serve out the remaining part of sentence, if any. (Prafulla C. Pant, J.) [[ Dt. July 14, 2010. H. Negi