IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL NO.263 OF 2008 Nawab The State Versus …..Appellant …..Respondent (2) CRIMINAL APPEAL NO.248 OF 2008 Mohd. Saleem The State Versus …..Appellant …..Respondent (3) CRIMINAL APPEAL NO.269 OF 2008 Nawab The State Versus …..Appellant …..Respondent (4) CRIMINAL APPEAL NO.273 OF 2008 Mohd. Saleem The State Versus …..Appellant …..Respondent Dated: May 13, 2010 Sri Atul Bhatt, Advocate on behalf of the appellant Nawab Sri K.S. Verma, Advocate on behalf of the appellant Mohd. Saleem Sri Prabhakar Joshi, Brief Holder for the State HON. DHARAM VEER, J. All the above-said criminal appeals have been arisen out of the common judgment and order dated 11.9.2008 and the incident in all these appeals is one and the same as well as the evidence is also common in the said trial, hence all of them are being disposed of by this common judgment and order. 2. These criminal appeals, preferred 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 11.9.2008 passed by Second Additional Sessions Judge, Haridwar in S.T. No.82 of 2006, State Vs. Nawab and others, S.T. No.83 of 2006, State Vs. Nawab and S.T. No.84 of 2006 State Vs. Mohd. Saleem, whereby the learned Second Addl. Sessions Judge convicted the appellants/accused Nawab and Mohd. Saleem under Section 393/34 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced each of them to seven years rigorous imprisonment with a fine of Rs.2,000/- each and in default of payment of fine, six months’ imprisonment was further awarded. These appellants/accused were further convicted u/s 326/34 and were sentenced to seven years R.I. and with a fine of Rs.2,000/- each and in default of payment of fine, six months’ imprisonment was further awarded to each of them. Appellant/accused Nawab was further convicted u/s 25 of Arms Act, 1959 (hereinafter to be referred as the Act) and was sentenced to one year’s R.I. with a fine of Rs.1,000/- and in default of payment of fine, two months’ imprisonment was further awarded. Appellant/accused Mohd. Saleem was further convicted u/s 25/4 of the Act and was sentenced to one year’s R.I. and with a fine of Rs.1,000/- and in default of payment of fine, two months’ imprisonment was further awarded. All the sentences were directed to run concurrently. However, the co-accused persons, namely, Saleem Painter/Mistri and Khurshid were acquitted of all the charges leveled against them by the trial court. 3. Heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that Pawan Kumar Singh Chauhan lodged a written report in the Police Station Laksar stating therein that he has a hospital at Haridwar Road, Village Sultanpur Phunhari and he and his wife are practicing there. Sehjad (PW2) is working as Compounding in the hospital. On 7.12.2005 at about 7:45 PM, after closing the hospital, he and Sehjad reached his house. He went inside the house and Sehjad was standing on the door. Meanwhile, four persons rang the door bell. When Sehjad opened the door, one miscreant out of four, with intention to kill Sehjad, fired upon him by Tamancha (country made pistol) but Sehjad could narrowly escaped and fought hand to hand with the four miscreants. One of them, gave a blow on the mouth of Sehjad by the butt of gun, due to which his teeth got broken. On the alarm raised by him and Sehjad, Sayeed Ahmed (PW5), Jahid (PW4), Tasleem, Munesh, Dinesh Saini and so many other persons arrived and caught hold two accused persons. One apprehend accused disclosed his name as Nawab and from his possession one Tamancha of 12 Bor loaded with one live cartridge (miss fire) was recovered. From the pocket of his pant, one live cartridge of 12 Bor was also recovered. Another accused disclosed his name as Mohd. Saleem from whose possession one knife was recovered. On being enquired, above-named accused persons told that they were called for robbery by co- accused Saleem Painter and the house and hospital of the complainant were seen to them by co-accused Saleem Painter. At the time of incident, he had dropped them near the house of complainant. These accused persons told that they had entered into the house of complainant with the intention of committing robbery. As told by the apprehended accused, the miscreants, who had run away from the place of incident, were Ayub and Ankit. At the time of incident, there was electricity inside and outside the house by inverter. His Compounder received grievous injuries and without caring of his life, he saved the life of complainant and his family. He has taken the apprehended miscreants and the recovered weapons to the police station. With the same averments, the FIR was lodged by PW1 Dr. Pawan Kumar Singh Chauhan on the same day i.e. 7.12.2005 at 08:30 PM at P.S. Laksar. That FIR is Ext.Ka-1. On the basis of this FIR, Chik FIR of the case was prepared by C/c Kartar Singh (PW8), i.e. Ext.Ka-10. Necessary entries were also made in the G.D., copy of which is Ext.Ka-11. Fard of taking into possession the weapons recovered was also prepared by C/c Kartar Singh, which is Ext.Ka-12. Initially, the investigation of this case was entrusted to S.I. Hoshiyar Singh (PW7). Later on it was transferred to S.I. Ajay Singh (PW6) and thereafter to Dhan Pal Singh (PW9). On the same day i.e. 7.12.2005 at 9:30 PM, Sehjad (PW2) was got medically examined by Dr. Anil Kumar Verma (PW3), who after the medical examination, prepared the injury report Ext.Ka-2. Appellants/accused Mohd. Saleem and Nawab were also medically examined by the same medical officer on the same day at 9 PM and 9:15 PM, respectively. During the course of investigation, the Investigating Officer recorded the statement of the witnesses, visited the place of occurrence and prepared the site-plan i.e. Ext.Ka-4. On completion of investigation, the I.O. filed the charge sheet Ext.Ka-3 against the appellants/accused Nawab and Mohd. Saleem and co-accused Saleem Mistri u/Ss 393/307/326/120B IPC. The I.O. also filed the charge sheet u/s 4/25 of the Act against the appellant/accused Mohd. Saleem and charge sheet u/s 25 of the Act against the appellant/accused Nawab, which are Ext.Ka-7 and Ka-8, respectively. The I.O. also obtained sanction from the District Magistrate, Haridwar to launch prosecution against the appellant/accused Nawab u/s 25 of the Act. That sanction order is Ext.Ka- 9. 5. After receiving the charge sheet, learned Judicial Magistrate, Laksar committed the case to the court of Sessions on 22.3.2006, after giving necessary copies to the appellants/accused and co-accused as required u/s 207 Cr.P.C. 6. On 28.4.2006, Addl. Sessions Judge/Second F.T.C., Haridwar framed the charge of offence punishable under Sections 393 r/w 34 IPC, 307 r/w 34 IPC and 326 r/w 34 IPC against the appellants/accused and co-accused. Learned Addl. Sessions Judge/Second FTC also framed the charge u/s 25/4 of Arms Act and Sect. 25 of Arms Act against the appellants/accused Mohd. Saleem and Nawab, respectively. The charges were read over and explained to each of the appellants/accused, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined PW1 Dr. Pawan Kumar Singh Chauhan, eyewitness and complainant of the case, PW2 Sehjad, injured eyewitness, PW3 Dr. Anil Kumar Verma, Medical Officer, who medically examined the injured Sehjad and the appellants/accused Mohd. Saleem and Nawab, PW4 Jahid, PW5 Sayeed, PW6 S.I. Ajay Singh, Investigating Officer, PW7 S.I. Hoshiyar Singh, Investigating Officer, PW8 C/c Kartar Singh, who prepared the Chik FIR Ext.Ka-10 and made entries in the G.D. Ext.Ka-11 and also prepared the Fard Ext.Ka-12, PW9 S.I. Dhanpal Singh, Investigating Officer and PW10 Dr. Ashish Vashitha, Surgeon. 8. Thereafter the statement of the appellants/accused and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. They did not file any documentary evidence in their defence, however, in oral evidence, Sukhpal was examined as D.W.1. 9. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Second Additional Sessions Judge, Haridwar vide his judgment and order dated 11.9.2008 convicted and sentenced the appellants/accused as mentioned above. Against the said judgment and order dated 11.9.2008, the appellants/accused have preferred this appeal. 10. Before further discussion, it is pertinent to mention here the injury report (Ex.Ka-2) of injured Sehjad who was examined on 7.12.2005 at 9:30 PM by Dr. Anil Kumar Verma (PW3), which reads as under: - i) An abraded contusion present on the left side of forehead measuring 3 cm x 1 cm, reddish in colour. ii) An abrasion is present on the brif of nose 0.5 cm x 0.5 cm in size. Reddish colour is present. iii) A lacerated wound is present on the lower jaw IInd insizer is lost from their cavity. Opinion:- All are simple in nature except injury no.3 which is grievous in nature. All are caused by hard and blunt object. Duration fresh. 11. To prove the above-noted injury report, the prosecution has examined PW3 Dr. Anil Kumar Verma, who has proved the injury report Ext.Ka-2 and has stated that injury nos.1 and 2 were simple in nature and injury no.3 was grievous in nature. He opined that these injuries were possible to come on 7.12.2005 at 7:45 PM by the butt of Tamancha. 12. The prosecution also examined PW10 Dr. Ashish Vasthitha, Surgeon, who stated that on 8.12.2005 in between 10 AM to 1 PM, Sehjad came for the treatment of his teeth. On the examination of his mouth, he found that there is no front teeth of the lower jaw and the nearby teeth are also not fixed and for its treatment he gave him medicines. He proved the report Ext.Ka-14. X-ray of the teeth of Sehjad was also conducted by him. He proved the x-ray plate Material Ext.7 and its cover Ext.8. 13. To prove its case further, the prosecution has examined PW1 Dr. Pawan Kumar Singh, who has reiterated the version of FIR. He further stated that he along with others took the appellants/accused and recovered Tamancha, cartridges and knife in the police station. He proved the report Ext.Ka-1. He further stated that the police took the aforementioned weapons into possession and prepared its Fard. He also made his signatures on the same Fard. He stated that the Tamancha, one live cartridge and one live miss fire were recovered from the possession of appellant/accused Nawab. Tamacha is Ext.1, live cartridge is Ext.2, live miss fire is Ext.3 and the cloth in which these articles were sealed is Ext.4. He further stated that the knife was recovered from the possession of appellant/accused Mohd. Saleem. Knife is Ext.5 and the cloth is Ext.6. He further stated that the appellants/accused had come to his house with the intention of committing robbery but because of bravery of Sehjad they could not get success in their motive. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 14. PW2 Sehjad has stated that the said incident took place on 7.12.2005. He was working as Compounder with Dr. Pawan Kumar. At 7:45 PM, he was in the house of Dr. Pawan Kumar and at that time Dr. Pawan Kumar and his wife Smt. Shalini were also present there. As soon as, they went inside the house, somebody rang the door bell, on which he opened the door and saw the four miscreants standing. They entered into the house and one of them fired upon him by Tamancha but he could narrowly escaped. Then he raised alarm and fought hand to hand with them. The accused who had fired upon him then caused injuries on his mouth with the butt of Tamancha, due to which his front lower teeth broken. Same accused person also caused injuries to him on the forehead and nose. On his alarm, Dr. Pawan Kumar (PW1), his wife and neighbourers Sayeed Ahmed, Jahid, Tasleem, Dinesh, Munesh and so many others reached at the place of incident. Two accused persons were apprehended by the help of witnesses and rest succeeded in fleeing. One accused told his name Nawab from whose possession, one Tamancha of 12 Bor and one live cartridge of 12 Bor was recovered. Another disclosed his name as Saleem and from his possession one knife was recovered. On being asked, these accused persons told that they were sent by co-accused Saleem Painter for robbery and the house of Dr. Pawan Kumar was also seen to them by co- accused Saleem Painter and he had left them outside the house of Dr. Pawan Kumar. He further stated that at the time of incident, there was electricity inside and outside the house by inverter and in that light he had recognized the apprehended accused persons. Appellants/accused Nawab and Saleem and the recovered Tamancha, cartridge and knife were taken in the police station. Report of the said incident was lodged by Dr. Pawan Kumar in the police station. Thereafter he got medically examined at P.H.C., Laksar. Recovered articles were taken by the police into possession and its Fard was prepared on which he and other witnesses had made their signatures. Recovered Tamancha, cartridge and knife were sealed on separate cloths. This witness identified Tamacha Ext.1, live cartridge Ext.2, miss cartridge Ext.3, cloth Ext.4, knife Ext.5 and cloth Ext.6 in the court below. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 15. PW4 Jahid and PW5 Sayeed are the witness of fact. Both of them have corroborated the statements of PW1 Dr. Pawan Kumar Singh and PW2 Sehjad. 16. PW6 S.I. Ajay has stated that on 2.2.2006 he was posted as Sub Inspector at P.S. Laksar. Investigation pertaining to Crime No.208/05 u/s 393/307/326.120B IPC was being conducted by S.I. Hoshiyar Singh. As he was out of station on that day, therefore, on the oral order of Station Officer, he perused the case diary and filed the charge sheet against the appellants/accused Nawab and Mohd. Saleem and co-accused Saleem Mistri, i.e. Ext.Ka-3. 17. PW7 S.I. Hoshiyar Singh stated that on 7.12.2005 he was posted as Sub Inspector at P.S. Laksar. On that day, on the basis of written report lodged by Dr. Pawan Kumar, case crime no.208/05 u/Ss 393/307/326 IPC against appellant Nawab and others, crime no.209/05 u/s 25 of the Act against Nawab, Crime No.210/05 u/s 4/25 of the Act against Mohd. Saleem was registered, the investigation of which was entrusted to him. During the course of investigation, he recorded the statement of the witnesses and prepared the site-plan Ext.Ka-4 of the place of occurrence and on completion of investigation, he filed the charge sheet u/s 4/25 of the Act against the appellant/accused Mohd. Saleem, which is Ext.Ka-7. On the same day, he also filed the charge sheet u/s 25 of the Act against the appellant/accused Nawab, which is Ext.Ka-8. He also obtained the sanction from the District Magistrate for prosecuting the appellant/accused Nawab u/s 25 of the Act. That sanction order is Ext.Ka-9. 18. PW8 Kartar Singh has stated that on 7.12.2005 he was posted as Constable Clerk at Police Station Laksar. On that day, on the basis of written report of Dr. Pawan Kumar, he prepared the Chik FIR Ext.Ka-10 and also made entries in the G.D. Ext.Ka-11. He also prepared the Fard of taking into possession recovered Tamancha, cartridge and knife, which is Ext.Ka-12. 19. PW9 Dhanpal Singh stated that on 6.8.2006 he was posted as Sub Inspector at P.S. Laksar. On that day, investigation of Crime No.208/05 u/s 393/307/326/120B against the appellant/accused Nawab and others was entrusted to him. After perusing the case diary of previous I.O. he filed the charge sheet against the co-accused Khurshid, which is Ext.Ka-13. 20. Thereafter the statement of the appellants/accused and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. They did not file any documentary evidence in their defence, however, in oral evidence, Sukhpal was examined as D.W.1. 21. D.W.1 Sukhpal stated that he is familiar with Salim Painter, who is resident of Kunhari and who does work of painting. He also knows Dr. Pawan, who has a nursing home at Sultanpur. He further stated that two and a half or three years before, Salim painter had done work of white wash in the house Dr. Pawan. Some dispute with regard to money had arisen between co- accused Salim painter and Dr. Pawan. Saleem hurled abuses to Dr. Pawan on which Dr. Pawan retorted that he will implicate him somewhere. 22. As per the statement of PW2 Sehjad, he was working as Compounder with Dr. Pawan Kumar (PW1). On the date of incident i.e. 7.12.2005 at 7:45 PM, he was in the house of Dr. Pawan Kumar and at that time Dr. Pawan Kumar and his wife Smt. Shalini were also present there. As soon as, they went inside the house, somebody rang the door bell, on which he opened the door and saw the four miscreants standing. They entered into the house and one of them fired upon him by Tamancha but he could narrowly escaped. Then he raised alarm and fought hand to hand with them. The accused who had fired upon him then caused injuries on his mouth with the butt of Tamancha, due to which his front lower teeth broken. Same accused person also caused injuries to him on the forehead and nose. On his alarm, Dr. Pawan Kumar (PW1), his wife and neighbourers Sayeed Ahmed (PW5), Jahid (PW4), Tasleem, Dinesh, Munesh and so many others reached at the place of incident. Two accused persons were apprehended by the help of witnesses and rest succeeded in fleeing. One accused told his name Nawab from whose possession, one Tamancha of 12 Bor and one live cartridge of 12 Bor was recovered. Another disclosed his name as Saleem and from his possession one knife was recovered. On being asked, these accused persons told that they were sent by co-accused Saleem Painter for robbery and the house of Dr. Pawan Kumar was also seen to them by co-accused Saleem Painter and he had left them outside the house of Dr. Pawan Kumar. He further stated that at the time of incident, there was electricity inside and outside the house by inverter and in that light he had recognized the apprehended accused persons. Appellants/accused Nawab and Saleem and the Tamancha, cartridge and knife recovered from their possession were taken in the police station. Report of the said incident was lodged by Dr. Pawan Kumar in the police station. Thereafter he got medically examined at P.H.C., Laksar. Weapons recovered were taken by the police into possession and its Fard was prepared on which he and other witnesses made their signatures. The statement of this witness gets full corroboration from statement of P.W.1 Pawan Kumar Singh, PW4 Jahid and PW5 Sayeed and their statements are also corroborated by the medical evidence of P.W.3 Dr. Anil Kumar and PW9 Dr. Ashish Vasthitha as well as from the injury report Ext.Ka-2 and report of surgeon Ext.Ka-14. Further, the FIR is also prompt and there is no delay in lodging the FIR. Thus, on the basis of the evidence discussed above, the case is well proved against the appellants-accused Nawab and Mohd. Saleem under the aforesaid sections and finding recorded by the trial court in convicting the appellants on the basis of the evidence discussed above is justified and as per law. I am also in full agreement with the findings recorded by the trial court for the conviction of the appellant. 23. Sri K.S. Verma, learned counsel appearing on behalf of the appellant Mohd. Saleem and Sri Atul Bhatt, learned counsel appearing on behalf of the appellant Nawab submitted that the conviction of the appellants under the aforesaid sections is correct and justified and they do not want to challenge the conviction part of the appellants. They only prayed that the sentence imposed upon the appellants by the trial court may be reduced to the sentence already undergone by them. They further submitted that the appellants are in jail since 7.12.2005 and as per the evidence discussed above, they only attempt to commit robbery. They further submitted that both the appellants are labourers and they are the only earning member of their family. Further, this was their first crime and except this they have not committed any other crime. 24. After considering all the facts and circumstances of the case and hearing learned counsel for the parties, it would be in the interest of justice to reduce the sentence of each of the appellants. 25. Accordingly, the appeals are partly allowed. The judgment and order dated 11.9.2008 passed by Second Additional Sessions Judge, Haridwar in S.T. No.82 of 2006, State Vs. Nawab and others, S.T. No.83 of 2006, State Vs. Nawab and S.T. No.84 of 2006, State Vs. Mohd. Saleem, in convicting the appellants need no interference by this court and is hereby made affirmed. However, the sentence as directed by the court below, is set aside. Instead the appellants Mohd. Saleem and Nawab are sentenced to five years’ R.I. u/s 393/34 IPC and with a fine of Rs.2,000/- and in default of payment of fine, three months’ simple imprisonment is further awarded. Each of appellants is further sentenced to five years’ R.I. u/s 326/34 IPC with a fine of Rs.2,000/- and in default of payment of fine, three months’ simple imprisonment is further awarded. Appellant Nawab is further sentenced to one year’s R.I. u/s 25 of the Arms Act and with a fine of Rs.1,000/- and in default of payment of fine, one month’s simple imprisonment is further awarded. Appellant Mohd. Saleem is sentenced to one year’s R.I. u/s 25/4 of the Arms Act with a fine of Rs.1,000/- and in default of payment of fine, one month’s simple imprisonment is further awarded. All the sentences are directed to run concurrently. The period of sentence already served out by the appellants during investigation, trial and appeal shall be set off after verifying from the records. 26. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 13.5.2010 RG