Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 78 of 2003 Dated of Decision: 12 .05.2010 Amarjeet alias Babloo …Appellant Versus State of Uttaranchal …Respondent Present: Mr. S.K. Agarwal, Sr. Advocate assisted by Mr. Mr. S.S. Bhandari, learned counsel for the appellant. Mr. Rajendra Singh, learned counsel for the complainant. Mr. S.S. Adhikari, learned A.G.A. for the State. Connected with Criminal Appeal No. 09 of 2003 Davendra …Appellant Versus State of Uttaranchal …Respondent Present: Mr. Navneet Kaushik, learned counsel for the appellant Mr. Rajendra Singh, learned counsel for the complainant Mr. S.S. Adhikari, learned A.G.A. for the State. And Criminal Appeal No. 08 of 2003 Davendra …Appellant Versus State of Uttaranchal …Respondent Present: Mr. Navneet Kaushik, learned counsel for the appellant Mr. Rajendra Singh, learned counsel for the complainant Mr. S.S. Adhikari, learned A.G.A. for the State. CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Nirmal Yadav, J. The abovementioned three appeals are being disposed of by this common judgment as these appeals are arising out of same judgment. Appellants-Amarjeet alias Babloo and Devendra alongwith Chhotu stood trial for the offences under Sections 302 read with Section 34, Section 392 read with 2 Section 34 and Section 120-B of the Indian Penal Code, 1860 (in short I.P.C.). Accused-Charmendra alias Pappu was tried for the offence under Section 120-B of the I.P.C. while accused- Devendra faced trial for the offence under Section 411 of the I.P.C. and 25 of the Arms Act also. The learned trial court, after taking into consideration the evidence and material facts available on record, convicted accused-Amarjeet alias Babloo and Devendra for the offences under Section 302 read with Section 34 and Section 307 read with Section 34 and accused-Devendra for the offence under Section 25 of the Arms Act also, while acquitted accused-Devendra, Amarjeet alias Babloo for the offence under Section 392 read with Section 34 and Section 120-B of the I.P.C. Accused-Devendra has been acquitted of the charge under Section 411 of the I.P.C. while accused-Charmendra and Chhotu have been acquitted by giving them benefit of doubt for the offences for which they were charged. The criminal law was set in motion on the complaint (Ex. Ka-1) submitted by Pramod Kumar (PW-1) to Station House Officer, Police Station Manglore. According to the complainant, he as well as his brothers Praveen Kumar and Manoj Kumar was running shops in Main Bazar, Manglore by the name and style of Kumar Medical Store and Goyal General Store. Accused-Amarjeet alias Babloo resident of Amin Nagar, Police Station Titawi was living in Gadarjudda also and had been visiting the shop of Praveen Kumar (since deceased) for extortion of money but Praveen Kumar (deceased) had clearly refused to give him any extortion money. On 23rd May 1998 at about 7:30 a.m., complainant-Pramod Kumar and his both brothers namely, Praveen Kumar and Manoj Kumar had opened their shops. At about 8:15 a.m. accused Amarjeet alongwith his two companion came on a motorcycle at their 3 shops. He and his companion indiscriminately fired at the brothers of the complainant. Accused-Amarjeet alias Babloo tried to escape but in the process a piece of shirt of accused- Amarjeet was torn and remained in the hand of complainant- Pramod Kumar. Resultantly, Praveen Kumar and Manoj Kumar died at the spot. Due to indiscriminate firing Nitin Goyal alias Tinku, nephew of the complainant was also injured. A lot of panic was created in the market and many persons gathered at the spot thus taking advantage accused-Amarjeet alias Babloo and his associates ran away from the spot. On the way they snatched a scooter bearing number U.P.-10B/6829 belonging to Anil Konsal and sped away from the spot while firing from their respective weapons. Complainant-Pramod Kumar alongwith persons from the market and other relatives removed both the deceased namely, Praveen Kumar, Manoj Kumar and injured Nitin alias Tinku to the hospital at Roorkee where Praveen Kumar and Manoj Kumar were declared dead. Complainant- Pramod Kumar after leaving the dead bodies and injured Nitin Goyal in the hospital went to the police station Manglore and submitted written complaint (Ex.Ka-1) on the basis of the said compliant Chick F.I.R. (Ex. Ka-9) was registered. The investigation was undertaken by S.O. J.P. Juyal (PW-8). The Investigating Officer accompanied with complainant-Pramod Kumar went to Civil Hospital, Roorkee and prepared inquest report (Ex. Ka-11) with regard to Praveen Kumar (deceased) and other relating papers. He also prepared inquest report (Ex. Ka-16) relating to Manoj Kumar (deceased). Both the dead bodies were sent for postmortem through constables Sheoraj and Ashok. Thereafter Investigating Officer went to the spot and recorded the statements of the witnesses. He prepared the site plan (Ex. Ka-21) of the place of occurrence. He also took into possession bloodstained earth and simple earth, which were made into separate parcels and sealed with 4 his own seal. He also took into possession six empty cartridges of 30 bore pistol and one empty cartridge of 315 bore. He also took into possession the torn piece of shirt, which was handed over by the complainant stating that it was from the shirt of accused-Amarjeet alias Babloo. He also recorded the statements of the other witnesses and searched for the accused. On 29th May 1998 accused-Charmendra alias Pappu was arrested. On completion of the investigation, the challan was presented and accused persons were charge sheeted as referred to paragraph-1 of the judgment. In order to prove its case prosecution produced as many as eleven witnesses. Complainant-Pramod Kumar (PW-1) is the brother of the deceased. Nitin alias Tinku (PW-2) is the injured eyewitness and son of Praveen Kumar (deceased). Dr. D.D. Lumba (PW-3) medico legally examined injured Nitin alias Tinku (PW-3) on 23.05.1998 at 8:50 a.m. and found the following injuries: - (i) Lacerated wound .5 c.m.x.4 c.m. on the right side of the middle of the back. Edges of the injuries were abraded. Blackening, scorching and tattooing around the injuries were not seen. (ii) Lacerated wound .4 c.m. x .3 c.m. above the left shoulder at the outer side. No blackening, scorching and tattooing was seen. The injuries were kept under observation and advised to get the same x-rayed. The general condition of the injured was low. Detailed examination could not be done and he was advised to be shifted to some higher medical center. As per 5 the opinion of the doctor, the injuries could have been caused at about 8:15 a.m. in the morning. Dr. Anil Panwar (PW-4) is the surgeon in Dr. M. Prakash Hospital and Medical Centre, Meerut, who attended injured-Nitin Goyal (PW-3) on 23rd May 1998 at about 12:00 noon on the basis of the reference slip (Ex. Ka-3). He also operated upon injured Nitin Goyal (PW-3) and following operation note was prepared:- (i) Firearm injury was on the right shoulder, 6 c.m. from the spinal card. It started from the right side and contained towards the front side. It communicated with the second injury on the front side. The tissues under the injury were charred. The injury was treated and stitches were applied. (ii) The entry wound of the firearm injury was on the midline of the back on the left side. When it was examined with the help of an instrument a tunnel was found which was going to the right side of the shoulder. There was blackening and tattooing around the injury and margins were inverted. (iii) Lacerated wound on the right shoulder close to the shoulder bone. On examination with the instrument it was linked to injury no. 2. Margins were averted showing that it was an exit wound. As per the opinion of the doctor, the injuries were caused by firearm weapon within a period of less than six hours and could be dangerous to life. 6 Devendra Kumar Sharma (PW-5) was present during inquest proceedings. He had sealed the dead bodies which were sent to the Government Hospital, Haridwar for postmortem. Dr. K.K. Karoli (PW-6) who is the Senior Doctor in Government Hospital, Haridwar conducted the postmortem on the dead body of Praveen Kumar on the same day at about 4:10 p.m. The dead bodies were brought by constables Sheoraj and Ashok. Doctor found the following injuries on the person of Praven Kumar (deceased):- (i) Firearm injury 2 c.m. x 2 c.m. x chest cavity deep. One third portion on the right side of the chest. Tattooing, blackening and scorching was present. (ii) Firearm injury exit wound 2.5 c.m. x 2.5 c.m. x chest cavity 17 c.m. from the midline and 8 c.m. below the scapula angle. On internal examination right lung of the deceased was found cut and lacerated. 500 cc blood was clotted near the lower lobe of lung. Left lung was also congested and lacerated. Seventh and eighth ribs were found broken. Small and large intestines were cut and bloodstained. Liver was also found cut. Two litres blood was found in the abdomen. Cause of death was due to excess hemorrhage and on account of the abovementioned injuries. The death could have been possibly caused six hours prior to the postmortem. The injuries on the left and right lungs and intestines could be result of gunshot injuries. The death of the deceased could possibly have taken place at about 8:15 a.m. on 23rd May 1998. On the same day Dr. K.K. Karoli conducted the postmortem on the dead body of Manoj Kumar (deceased) at about 3:30 p.m. and found the following injuries:- 7 (i) Gunshot entry wound on the right side of the chest 1 c.m. x 1 c.m. and chest cavity deep 12 c.m. below the nipple. Tattooing, blackening and scorching were present. (ii) Gunshot exit wound 1.5 c.m. x 1.5 c.m. and chest cavity deep 5 c.m. away from the midline and 9 c.m. above the left scapula. (iii) Multiple abrasions in the area of 15 c.m. x 9 c.m. singeing present 9 c.m. above Elia crash. (iv) Blackening, singeing in the area of 1 x 1 c.m. in the front portion of left thigh. On internal examination left lung was found cut and lacerated. Eleventh ribs were broken. Upper part of liver was cut and lacerated and one-litre blood was present. As per opinion of doctor the death was caused due to shock, excessive hemorrhage and on account of ante mortem injuries. The death could possibly have been caused six hours prior to the postmortem at about 8:15 a.m. on 23rd May 1998. The injuries on lungs and liver could be the result of gunshot wound. Clothes of both the deceased were made into parcel and handed over to the constables alongwith the inquest report and other relating papers. Dr. Tanuj Garg (PW-7) is the Radiologist in Dr. M. Prakash Hospital and Research Center, who stated that on 23rd May 1998 Dr. Anil Panwar (PW-4) had referred injured Nitin alias Tinku (PW-3) for x-ray. He got x-ray of injured-Nitin Goyal (PW-3) done in his supervision. The x-ray plate is Ex.-1 and x-ray report is Ex.Ka-8. Dr. Tanuj Garg (PW-7) came to the conclusion that on the person of injured-Nitin, under the chest and lungs, emphysema was present and therefore, cartilage 8 were torn due to air. The injury was declared to be dangerous to life. Mr. J.P. Juyal (PW-8) is the Investigating Officer. He identified the signature of Head Muharrir-Nepal Singh who had recorded Chick Report (Ex-Ka9) and General Diary No. 12 (Ex. Ka-10) in this regard. Sub Inspector Om Prakash Sisaudiya, Police Station Gang Nahar on receipt of secret information went to Bus Stand Manglore at about 7:30 p.m. on 18th June 1998 where constable Neeraj and public witnesses Mubin and Riyasat were joined in the police party. Thereafter they went to village Gadar Judda at Jhhabreda Road. He constituted two police parties, one party near the eastern side of the bridge and other party on the other side of the bridge and waited for the accused. Meanwhile they saw a scooter. On seeing the police party, accused persons tried to turn back but the person, who was driving the scooter, was apprehended, however, the other person managed to escape. The person who was apprehended disclosed his name as Devendra. On taking his search a country made pistol was recovered from the right pocket of his Paijama and one live catridge of 315 bore was found from the right pocket of his Kurta. Recovered scooter was bearing number U.P.-10B/6829, which was snatched on 23rd May 1998 from Anil Konsal from the market of Manglore. On interrogation it was disclosed that recovered country made pistol was used in the murder of two businessmen of Manglore. This country made pistol was given to him by co-accused Chhotu and scooter was also snatched by Amarjeet alias Babloo and Chhotu on the date of incident. The country made pistol, live cartridge and scooter were taken into possession vide memo Ex. Ka-24. Country made pistol is Ex.-15 and live cartridge is Ex.-16. 9 Mr. Ram Khiladi Sharma (PW-10) had investigated the case (State Versus Devendra) under Section 25 of the Arms Act. He prepared the scaled site plan of the place of occurrence and from where the country made pistol and live cartridge were recovered. Thereafter sanction from the District Magistrate for the prosecution of Devendra under Section 25 of the Arms Act was obtained. Sub Inspector Vinod Kumar Sharma (PW-11) had arrested accused-Devendra on 18th June 1998 with the help of Mr. Om Prakash Sisaudiya (PW-9). When examined under Section 313 Cr.P.C., the incriminating evidence was put to accused-Devendra, he denied all the allegations and pleaded false implication. Accused- Amarjeet alias Babloo stated that he was arrested from his house. He also pleaded false implication as police of police station Manglore was having grudge against him. The other accused also denied all the prosecution allegations put to them. The trial court after taking into consideration the evidence and the documents available on record acquitted accused- Charmendra and Chhotu of all the charges levelled against them and convicted accused-Amarjeet and Devendra as referred to paragraph-2 of the judgment. We have heard Mr. S.K. Agarwal, learned Sr. Advocate assisted by Mr. S.S. Bhandari, learned counel for the appellants, Mr. Rajendra Singh, learned counsel for the complainant, Mr. S.S. Adhikari, learned A.G.A. for the State and perused the entire material available on record. Learned counsel for the appellant-Amarjeet argued that F.I.R. was not actually recorded at 8:30 a.m. and it has 10 been shown ante time. He pointed out that occurrence took place at 8:15 a.m. and it was not possible for complainant- Pramod Kumar to reach police station within 15 minutes. As per his statement, he went from the place of occurrence to Roorkee and where he scribed the complaint and thereafter went to police station Manglore, which was at a distance of 7-8 kilometers. As a matter of fact, it was recorded after the inquest had already been conducted. It was further argued that F.I.R. was registered at the behest of local MLA, who was present in the Police Station at the time of registration of the F.I.R. Learned counsel for the appellant further argued that the inquest reports as well as other relating papers do not find mention of the offence under Section 307 of the I.P.C. and even the names of the accused are not mentioned therein. Learned counsel for the appellant further argued that the incident did not take place at the shop as alleged by the prosecution. It might have taken place at some other place. The prosecution has failed to establish the place of occurrence. Learned counsel for the appellant vehemently argued that from the evidence available on record, it is apparent that complainant-Pramod Kumar was not an eyewitness. As per his own statement accused had fired indiscriminately but Pramod Kumar (PW-1) did not sustain even a single injury. He also pointed out that it appears to be improbable that Pramod Kumar (PW-1) had caught hold of accused-Amarjeet even then accused-Amarjeet did not cause any injury to him. Learned counsel for the appellant further pointed out that though Pramod Kumar (PW-1) is alleged to have removed the injured and both the deceased to the hospital but neither his hands nor his clothes had any bloodstains. If his clothes were stained with blood, they were not taken into possession by the Investigating Officer. 11 Learned counsel for the appellant further argued that Pramod Kumar (PW-1) did not name any of the accused except Amarjeet alias Babloo in the F.I.R. Even before the court he could not identify any of the accused except Amarjeet alias Babloo. He did not specifically name accused-Devendra in the F.I.R. nor identify him. Learned counsel for the appellant further argued that as per the statement of complainant- Pramod Kumar, accused-Amarjeet alias Babloo had climbed over the platform and thereafter fired but no platform has been shown in the site plan (Ex. Ka-21). Learned counsel for the appellant has challenged the testimony of injured-Nitin Goyal alias Tinku (PW-2). He pointed out that injured-Nitin (PW-2) did not disclose the name of any of the assailants during his medical examination to the doctor in M. Prakash Hospital. Learned counsel for the appellant argued that complainant-Pramod Kumar (PW-1) was all alongwith him from the place of occurrence to the hospital but injured-Nitin Goyal (PW-2) did not disclose the name of accused-Devendra to his uncle Pramod Kumar (PW-1). Injured- Nitin Goyal (PW-2) clearly stated that he was conscious after the receipt of firearm injuries and remained conscious till the time he reached the hospital at Roorkee alongwith his uncle Pramod Kumar (PW-1). He was confronted with the statement under Section 161 Cr.P.C. before the police where he did not disclose the name of the person who had fired gunshot injuries. This witness further had feigned ignorance if during the period, he remained in the hospital, he had disclosed the name of accused-Devendra to any of his relative. Learned counsel for the appellant therefore, argued that the presence of injured-Nitin Goyal (PW-2) at the place of occurrence is highly doubtful. Learned counsel for appellant-Devendra argued that it is quite possible that accused-Devendra was not one of the 12 assailants and therefore, injured-Nitin Goyal (PW-2) did not disclose his name either to the doctor or to his uncle Pramod Kumar (PW-1) or any of his relative till his deposition before the court. Learned counsel for the appellant argued that no independent witness has been examined despite being available at the place of occurrence. Admittedly both witnesses Pramod Kumar (PW-1) and injured-Nitin Goyal (PW-2) have stated that shops were opened by the shopkeepers and many persons were present at the time of occurrence and they had witnessed the occurrence. Learned counsel for the appellant argued that the prosecution has miserably failed to prove that the accused had any motive to cause the death of Praveen Kumar and Manoj Kumar and caused such injures which were dangerous to life to injured-Nitin Goyal (PW-2). On the other hand Mr. S.S. Adhikari, learned A.G.A. for the State argued that the testimony of Pramod Kumar (PW- 1) and Nitin Goyal (PW-2), the injured witness is wholly reliable, consistent and truthful. It was argued that Pramod Kumar (PW-1) had apprehended accused-Amarjeet at the spot, though he managed to escape from his grip. Learned A.G.A. further pointed out that the F.I.R. was lodged with promptitude and Pramod Kumar (PW-1) was cross-examined at length in this respect. Pramod Kumar (PW-1) categorically stated that he immediately went to Roorkee alongwith injured-Nitin Goyal (PW-2) and Praveen Kumar (deceased) and Manoj Kumar (deceased). He left the vehicle by which he came to the hospital and thereafter straightway went to police station Manglore in another vehicle and submitted the report in the police station. Learned A.G.A. argued that it is not necessary that name of the accused needs to be mentioned in the inquest report or other relating papers, however, all the police papers bear the crime 13 number and the offence except offence under Section 307 of the I.P.C., which might have been left out due to inadvertent mistake. Moreover, by that time, the Investigating Officer had not received the opinion of the doctor that the injuries on the person of injured-Nitin Goyal (PW-2) were dangerous to life. Learned A.G.A. further pointed out that the prosecution has categorically put forth the motive for committing the crime. Complainant-Pramod Kumar (PW-1) and injured-Nitin Goyal (PW-2) have stated that accused- Amarjeet had been visiting Praveen Kumar (deceased) and asking for extortion money but Praveen Kumar (deceased) had refused to oblige him. Learned A.G.A. further pointed out that Pramod Kumar (PW-1) and injured-Nitin Goyal (PW-2) have categorically stated that there is a platform near the two shops and that platform is further close to the road. Accused persons had fired by standing on the platform from where the empty cartridges had also been recovered. Learned A.G.A. further argued that the name of accused-Devendra, having not been mentioned in the F.I.R., does not in any way adversely affect the prosecution case. It is argued that complainant-Pramod Kumar (PW-1) did not know accused-Devendra. It is only injured-Nitin Goyal (PW-2) who knew accused-Devendra prior to the incident. He identified accused-Devendra as well as Amarjeet in the court. Learned A.G.A. further argued that medical evidence, recovery of weapon in committing the crime and empty cartridges fully support the prosecution case. On careful consideration of the rival submissions made by learned counsel for the parties and careful scrutiny of the medical evidence and documents available on record, we find that the prosecution case mainly rests on the testimony of 14 two eyewitnesses i.e. complainant-Pramod Kumar (PW-1) and Nitin Goyal (PW-2), who also received injuries in the incident. It is true that both the eyewitnesses, Pramod Kumar (PW-1) and Nitin Goyal (PW-2) are related and interested witnesses. Complainant-Pramod Kumar (PW-1) is the brother of both the deceased namely, Praveen Kumar and Manoj Kumar and injured-Nitin Goyal (PW-2) is the son of Praveen Kumar (deceased). However, the presence of both the witnesses at the place of occurrence cannot be doubted. Admittedly Praveen Kumar (deceased) as well as Manoj Kumar (deceased) and complainant-Pramod Kumar (PW-1) were having shops at the same place. They had opened the shops in the morning at 7:30 a.m. and injured-Nitin Goyal (PW-2) was also present at the spot. After the shops were opened and the deceased persons as well as both the eyewitnesses were busy in their shops, accused persons came on a motorcycle and opened indiscriminate firing. Pramod Kumar (PW-1) has categorically stated that accused- Amarjeet alias Babloo alongwith two associates came on a motorcycle and immediately on reaching the spot; he fired at his brother Praveen Kumar (deceased). In the cross- examination, this witness stated that accused-Amarjeet alias Babloo, present in the court, climbed on the platform and immediately he fired at his brother Praveen Kumar (deceased) and thereafter fired at his another brother Manoj Kumar (deceased) and Nitin Goyal (PW-2). He apprehended accused- Amarjeet alias Babloo and raised alarm. Injured-Nitin Goyal (PW-2) has of course named accused-Devendra in his deposition before the court; however, he did not disclose his name at the first opportunity. Rather he did not disclose the name of any of the accused persons during his medical examination before Dr. D.D. Lumba (PW-3) in M. Prakash Hospital. He admitted in the cross-examination that he did not disclose the name of accused-Devendra to any of his 15 relatives from the time of the occurrence till he remained admitted and discharged from the hospital. He, of course, stated that he had disclosed the name of accused-Devendra to the Investigating Officer but he was confronted with his statement under Section 161 Cr.P.C. before the police where he did not disclose the name of accused-Devendra. He rather admitted that he had disclosed the name of accused-Devendra for the first time in the court. According to him, his uncle Pramod Kumar (PW-1) had accompanied him to the hospital but to him also he did not disclose the name of accused- Devendra. Both