IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 261 of 2008 Babloo @ Davender S/o Mangey Ram R/o Village Dadli Police Station Bhagwanpur District Haridwar ……….Appellant (in jail) Versus State of Uttarakhand …………Opposite Party Alongwith Criminal Appeal No. 274 of 2008 Vikas, S/o Ratan Singh R/o Village Gaidola Police Station Gagalehri District Saharanpur ……….Appellant (in Jail) Versus State of Uttarakhand …………Opposite Party Criminal Appeal No. 286 of 2008 Babloo @ Davender S/o Mangey Ram 2 R/o Village Dadli Police Station Bhagwanpur District Haridwar ……….Appellant (in jail) Versus State of Uttarakhand …………Opposite Party & Criminal Appeal No. 290 of 2008 Vikas, S/o Ratan Singh R/o Village Gaidola Police Station Gagalehri District Saharanpur ……….Appellant (in Jail) Versus State of Uttarakhand …………Opposite Party Smt. Pushpa Joshi, Advocate, and Shri H.C. Pathak, Advocate, present for the appellants. Shri Amit Bhatt, A.G.A., present for the state. Hon’ble Prafulla C. Pant, J. All these four appeals are directed against the judgment and order dated 28/30.08.2008, passed by Additional Sessions Judge/ I Fast Track Court, 3 Haridwar, in Sessions Trial No. 281 of 2007, Session Trial No. 282 of 2007, and Sessions Trial No. 283 of 2007, whereby said court has convicted the appellants Babloo and Vikas under section 307 read with section 34 IPC, and also under section 25 Arms Act. Each one of the convicts has been sentenced to rigorous imprisonment for a period of ten years, and directed to pay fine of ` 10,000/-. Each one is further sentenced to rigorous imprisonment for a period of five years, and directed to pay fine of ` 5,000/- under section 25 Arms Act. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that on 19.04.2007, P.W.2 Kalu Ram lodged First Information Report at Police Station Bhagwanpur with the allegation that P.W.1 Brahm Pal (injured) was in his clinic in Bhagwanpur, when accused / appellants Babloo and Vikas came on a motor-cycle, and fired shots at Brahm Pal. P.W.1 Brahm Pal suffered two injuries. The two accused were chased, and arrested at the spot with the help of the witnesses present. On the basis of the FIR, check report (Ex. A11) prepared by the police, and crime 4 no. 80 of 2007, relating to offence punishable under section 307 and 326 IPC, was registered against both the accused. Investigation was conducted by Sub- Inspector B.L. Bharti (P.W.7). The injured (Bhram Pal) was medically examined by P.W.5 Dr. Ajay Mohan Agarwal on 19.04.2007, who prepared inquest report (Ex. A2). After receipt of x-ray film, supplementary report (Ex. A3) was prepared by the medical officer. Separate crime nos. 81 of 2007 and 82 of 2007, were registered against the two accused in respect of offence punishable under section 25 Arms Act. After interrogating the witnesses, and completion of investigation one charge sheet relating to offences punishable under section 307/326 IPC, was filed against the two accused, and two separate charge sheets relating to offence punishable under section 25 Arms Act, were filed against them separately. 4. The Magistrate, on receipt of the charge sheet, and after giving necessary copies to the accused as required under section 207 Cr.P.C., committed all the three cases to the court of sessions for trial. On 10.09.2007, the trial court after hearing the parties, framed charge of offences punishable under section 307/34, 326/34 IPC, against the two 5 accused/appellants Babloo and Vikas, and separate charges were framed in respect of offence punishable under section 25 Arms Act, against them. They pleaded not guilty, and claimed to be tried. All the three Sessions Trials were taken up together, and prosecution got examined P.W.1 Brahm Pal (injured), P.W. 2 Kalu Ram (complainant), P.W,3 Rakesh Kumar (Eye witness), P.W. 4 Meherban Ali (Eye witness), P.W.5 Dr. Ajay Mohan Agarwal (who medically examined the injured), P.W. 6 Naresh Dhimani, and P.W. 7 S.I B.L. Bharti (Investigating Officer). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged same to be false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found both the accused guilty of charge of offences punishable under section 307/34 IPC, and under section 25 Arms Act. After hearing on sentence, each one of the convicts namely Babloo and Vikas was sentenced to rigorous imprisonment for a period of ten years, and directed to pay fine of ` 10,000/-. Each one of them was further sentenced to imprisonment for a period of five years, and directed to pay fine of ` 5,000/-. The trial court directed that both the sentences shall run 6 concurrently. Aggrieved by said judgment and order dated 30.08.2008, passed by Additional Sessions Judge/ I Fast Track Court, Haridwar, in Sessions Trial No. 281 of 2007, 282 of 2007, and Sessions Trial No. 283 of 2007, these appeals are preferred by the convicts challenging their conviction and sentences on two separate counts. 5. Before further discussion, this Court thinks it just and proper to mention the ante-mortem injuries recorded by P.W.5 Dr. Ajay Mohan Agarwal on 19.04.2007. Same are being reproduced below from Ex. A2:- (i) Lacerated wound 4X0.5 cm right side occipital region of scalp, 12cm sepero position to right ear, bleeding present, bone deep, kept under observation. Advised x-ray. (ii) Lacerated wound 20 X 15cm, dorsal aspect of left hand, bone deep, with all the muscles, bones, tandous exposed, irregular shaped, bleeding present, kept under observation. Advised x-ray. The medical officer opined that both the injuries were fresh, and caused by hard blunt object. The supplementary report (Ex. A3) prepared by the 7 medical officer on 31.05.2007, after receiving x-ray reports opined that only injury no. 2 was grievous. From the evidence on record, it is clear that P.W.1 Brahm Pal has suffered aforesaid injuries , and this Court has to examine whether the same was caused by the accused/appellants with intention to commit his murder. It is further required to be seen whether the country-made pistols as alleged by the prosecution were recovered from the accused/appellants without any license. 6. P.W.1 Brahm Pal has stated that on 19.04.2007, at about 3:00 P.M., he was sitting in his clinic Chudiyala Road, Bhagwanpur. His younger brother Rakesh (P.W.3) who works as compounder in the clinic was also present. The witness further states that suddenly two accused namely Babloo and Vikas came on a motor-cycle, and after getting down entered in his clinic. They fired shots with country-made pistols, and one of the fire hit his left hand due to which one of his fingers got cut, and fell down. The witness further states that the two accused were arrested at the spot with the help of the witnesses present in the clinic, and they were taken to the police station. P.W. 2 Kalu Ram who was one of the witnesses present at the spot lodged 8 the FIR (Ex. A1). P.W.2 Brahm Pal has further stated that he was medically examined in the Government Hospital, Roorkee. The statement of this witness gets corroboration from the statement of P.W.5 Dr. Ajay Mohan Agarwal who prepared injury report (Ex. A2) on 19.04.2007. 7. The statement of the injured eye witness (P.W.1) not only get corroboration from the medical evidence discussed above but also from the statements of the eye witnesses namely P.W. 2 Kalu Ram (informant), P.W.3 Rakesh Kumar, and P.W. 4 Meherban Ali. P.W.2 Kalu Ram has further proved that he lodged FIR (Ex. A1) soon after the incident at police station Bhagwanpur. Other eye witnesses P.W. 3 Rakesh Kumar, P.W. 5 have also corroborated the prosecution story narrated by P.W. 1 Bhram Pal (injured). 8. In the above circumstances, this Court does not find any infirmity in the conviction recorded by the trial court in respect of the offence punishable under section 307/34 IPC, against the two accused/appellants namely Babloo and Vikas. Since the accused/appellants were arrested at the spot with the country-made pistols as such the trial court 9 has rightly convicted them under section 25 Arms Act. 10. So far as sentence awarded by the trial court is concerned, the same appears to be excessive. The injury no. 2 which is said to be grievous is not on the vital part of the injured. The two accused/ appellants are in jail since April 2007, and have already completed four years imprisonment during pendency of the trial and the pendency in these appeals. Considering the facts, and circumstances of the case, this Court thinks it just and proper to reduce the sentence awarded by the trial court to the period already undergone by the appellants on both the charges for which each one of them is convicted. Both the sentences awarded by the trial court were to run concurrently. 11. In the above circumstances, all these four appeals are allowed partly. So far as the conviction recorded by the trial court in respect of offences punishable under section 307/34 IPC, and 25 Arms Act, against each one of the convicts (present appellants) is concerned, the same stands affirmed. And to that extent appeals stand dismissed. But all the four appeals are partly allowed so far as it 10 relates to sentences awarded by the trial court. Each one of the appellants namely Babloo @ Davinder and Vikas sentenced to rigorous imprisonment for a period of four years on each of the counts i.e. 307/34 IPC, and 25 Arms Act, and both the sentences of each of the convicts stand undergone concurrently. The sentence of fine is not interfered with. Both the appellants Babloo @ Davinder and Vikas are in jail for more than four years and served said period of sentence on both counts. They shall be set at liberty if they are not required in connection with any other cases, and deposit the fine as directed by the trial court. Lower court record be sent back. Let the copy of this judgment be sent to the Superintendent of Jail concerned. (Prafull C. Pant, J.) Parul 06.06.2011