IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Criminal Appeal No. 1638/2001 ( Old No. 85 of 1996) 1- Dinesh 2- Vinod Sons of Murari, R/o Mohalla Nirmala Chhawni near Atma Niwas, P.S. Kotwali District Haridwar …………. Appellants. Vs. State …..Respondent. Sri S.K. Agarwal, learned Senior Advocate assisted by Sri Navneet Kaushik, learned counsel for the appellants. Sri Nandan Arya, learned A.G.A. for the State. Hon’ble B.C. Kandpal, J. Hon’ble Dharam Veer, J. [ Per: Hon’ble B.C. Kandpal, J.] This appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order of conviction and sentence dated 15-1-1996 passed by Sri V.D. Dubey, I Addl. Sessions Judge, Haridwar, in Sessions Trial No. 154/1995, State Vs. Murari and others convicting the appellants Dinsh and Vinod U/S 302/34 I.P.C. and sentencing both of them to undergo imprisonment for life. 2- Brief facts giving rise to this appeal are that Chandra Pal had two sons Rajendra and Naresh (deceased). Naresh was running a tea stall on Bilkeshwar Road near T.B. Hospital. The deceased Naresh had friendship with one Gulshan. The accused persons Murari, Dinesh and Vinod had enmity with Gulshan. According to prosecution story Naresh had sympathy for Gulshan and for this reason the accused persons developed animus 2 towards Naresh also. On 19-12-1994 Naresh and his brother Rajendra were at their tea-stall and their father came there and informed them about the illhealth of their mother due to fever. Chandra Pal after informing the deceased and his brother Rajendra about the illhealth of their mother went away. Naresh and Rajendra after closing the tea stall also followed Chandra Pal. When they reached near the house of Ram Das situated at Nirmala Chawni, accused Murari, Vinod and Dinesh met them. Murari was armed with Danda, Vinod was having a knife in his hand and Dinesh was having a pistol. Seeing Naresh Murari father of other two accused viz. Vinod and Dinesh, asked them Naresh has immense sympathy to Gulshan so he should be finished today. At this Naresh due to fear of the accused entered inside the house of Ram Dass and mother of Ram Dass locked the door from inside. The accused persons also entered inside the house of Ram Dass after breaking open the door and shot fire at Naresh and dragged him from the room upto the road where accused Vinod gave knife blows to Naresh. All the accused persons were standing there. The accused also threatened Rajendra and other witnesses present at the spot to kill them if any one would lodge the report. Thereafter they fled away from the spot. Thereafter Chandra Pal got scribed written report , Ext. Ka.1, from Brij Mohan and lodged it at Police Station. The police on the basis of written report prepared chick F.I.R. Ex.Ka.7 and lodged a case crime No. 1117/1994 U/S 302, 506 I.P.C. against the accused persons. 3 3- The investigation of the case was handed over to S.I. R.K. Sharma. He visited the place of occurrence and carried Naresh to Hospital where he he was declared dead by the doctors. Thereafter the I.O. recorded the statement of Rajendra Singh. On 20-12-1994 he performed inquest on the dead body and prepared inquest report Ext.Ka.2. He also prepared photo laas Ext. Ka.9, challan laas Ext. Ka.10, letter to C.M.O. Ext. Ka.11, letter to R.I. Ext. Ka.12 and sealed the dead body and prepared sample seal Ext. Ka.11 and sent the dead body for post mortem. The I.O. inspected the spot and prepared site-plan Ext. Ka.13. The I.O. also took into possession empty cartridge ( Ext. 12) and sealed it vide memo Ext. Ka.13. He also seized the simple and blood-stained earth from the place of occurrence vide memos Ext. Ka.3 and Ka.4 respectively. The I.O. sent the cloths and blood of the deceased for chemical examination to Agra. The Chemical Examiner Report is Ext. Ka.14. On 23-12- 1994 all the accused surrendered in the court. After completion of investigation the I.O. submitted charge sheet Ext.Ka.15 against all the accused persons. 4- The post mortem on the dead body of the deceased was perfomed by Dr. Suresh Mehta on 20-12-1994, at 2.30 P.M. in District Hospital Haridwar. According to him rigor mortis was present over both extremities. He found following anti-mortem injuries on the person of the deceased:- 1- Incised wound 3cm x 1cm x chest cavity deep at 6 O’clock position 3cm below the 4 left nipple. Clotted blood was present around the wound. 2- Incised wound 3cm x 1cm x chest cavity deep on the left side chest 2cm below injury No.1, at 5th O’clock position. Clotted blood was present around the wound. 3- Incised wound 2.5 cm x 1cm x bone deep on the right side chest at 11 O’clock position, 7 cm above the right nipple. 4- Incised wound 2.5cm x1cmx chest cavity deep on right side chest at 8 O’clock position, 1cm away from right nipple. 5- Incised wound 3cm x 1cm x chest cavity deep on the right side chest 2cm lateral to injury No.4. 6- Incised wound 2.5 cm x 1cm x chest cavity deep at 7 O’clock position 3cm below injury No.4. 7- Incised wound 1.5cm x 1cm x chest cavity deep at 6.30 O’clock position 2 cm below injury No.6. 8- Incised wound 2cm x 1cm x chest cavity deep at 7 O’clock position 4 cm lateral to injury No.6. 9- Abrasion (multiple) in an area of 9cm x 3cm front of left leg to its middle. Fire-arm injury- 10- Lacerated wound 1cm x 0.7 cm oval x chest wall deep on the left axillary region, 15 cm away from left axilla with inverted margins. Blackning and charring was present. Gun powder on cutting left side back. A single metallic bullet recoved from left infra clavicular region, 8cm below and back of wound of entry. Direction backward 5 and downwards. The doctor recovered single yellowish metallic bullet measuring 3cm in length and 0.7 cm in diameter. On internal examaination the doctor found that the right lung was having incised wound 1cm x 0.5cm x lung substance deep. The doctor further found another incised wound 1cm x 0.5cm x lung substance deep, 2cm below injury No.1, right upper lobe. According to the doctor the cause of death of the deceased was due to shock and haemorrhage as a result of extensive antemortem stab injuries. The doctor prepared the post mortem report Ext. Ka.6. 5- On 27-5-1995 the Chief Judicial Magistrate Haridwar committed the case to the court of Sessions for trial. The learned Addl. Sessions Judge framed charge U/S 302/34 I.P.C. against all the three accused persons. They pleaded not guilty and claimed to be tried. 6- The prosecution in order to prove its case has examined P.W.1, Chandra Pal, P.W.2, Rajendra, P.W.3, Ram Dass, P.W.4, Dr. Suresh Mehta, P.W.5, H.C. 79 Rajendra Prasad, and P.W.6, S.I. Rajeev Kumar Sharma. 7- The accused persons in their statement U/S 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated in the case due to enmity. The defence also produced D.W.1, Tota Ram. Accused Murari also examined himself in his defence. 6 8- The learned Sessions Judge after hearing learned counsel for the parties and considering the entire evidence available on record convicted accused Vinod and Dinesh for the offence U/S 302/34 I.P.C. and sentenced both of them to undergo Life Imprisonment. However accused Murari was acquitted of the charge U/S 302/34 I.P.C. levelled against him. 9- Feeling aggrieved the accused/appellants Vinod and Dinesh have preferred this appeal. 10- We have heard learned counsel for the parties and perused the record. 11- Learned counsel for the accused/appellants has firstly submitted that the F.I.R. in the case is anti-timed, therefore, the genesis of the prosecution case becomes highly doubtful and on the sole ground the whole prosecution case falls on the ground. 12- Perusal of record reveals that the incident has taken place on 19-12-1994 at about 4.30 P.M. The F.I.R. was lodged by Chandra Pal father of the deceased after getting scribed it from Brij Mohan. The written report Ext. Ka.1 bears the date 19-12- 94, the date of incident itself and it was lodged at the police station on the same day. The chick F.I.R. Ext.Ka.7 has been prepared on 19-12-94 itself and a case U/S 302/506 I.P.C. was registered against the accused persons at 5-15 P.M. in case crime No. 1117/94 dated 19-12-1994, the carbon copy of the G.D. is Ext. Ka.8. All the relevant facts have been mentioned in the F.I.R. The distance of the 7 police station from the place of occurrence has been shown ½ kilometer. Therefore, it cannot be said that the F.I.R. is anti-timed. Rather, it is quite clear that prompt F.I.R. has been lodged in this case. Promptness of F.I.R. also indicates that there could not be any possibility of the false roping of accused/appellants in this crime. The submission of learned counsel for the appellants has no force and is not accepted. 13- Learned defence counsel also contended that there are major contradictions in the statements of eye witnesses P.W.2, Rajendra and P.W.3, Ram Dass, therefore, the trial court has committed an error of law relying on such an evidence. 14- To evaluate the submission of learned defence counsel it will be reasonable to assess the evidence of eyewitnesses examined in the case. The prosecution has produced two eyewitnesses, P.W.2, Rajendra and P.W.3, Ram Dass. 15- P.W.2, Rajendra is the younger brother of deceased Naresh. He has deposed that on 19-12-94 at about 4.30 P.M. he along with Naresh was coming from the tea stall to his house. Gulshan has enmity with accused Murari, Vinod and Dinesh. Tota Ram is the nephew of Murari. Gulshan used to sit in the tea shop of Naresh and Naresh had fast friendship with Gulshan. The accused also started animus with Naresh. He has further deposed that his father came to the shop and informed about the illhealth of their mother due to fever hence they closed the shop and started for their home. 8 Accused Murari, Vinod and Dinesh met them in front of the house of Ram Dass. Murari was armed with a Danda, Vinod was armed with knife and Dinesh was having pistol. Murari told to the other accused that Naresh has a great deal of sympathy for Gulshan therefore he should be finished today. Naresh ran inside the house of Ram Dass and bolted the door from inside the room. All the three accused broke-open the door and accused Dinesh fired shot at Naresh and pulled out Naresh and then accused Vinod gave knife blows to Naresh. He further alleged that the accused threatened him as well as the persons collected at the spot that whoever would lodge report with the police he would also be finished by them. Thereafter they fled away from the spot. This witness further alleged that he narrated the whole story to his father and thereafter got prepared the F.I.R. In the cross examination this witness has stated that they had gone to Police Station in the night and the report was got prepared at the Police Station and they had narrated the whole incident to Daroga Ji. Police had reached at the spot before he came there. This witness further deposed in the cross examination that he has not given this statement to the police that ‘when he reached to the place of occurrence the police had carried the deceased to hospital for treatment’. It is the case of the prosecution that when the police arrived at the spot there was some warmness on the body of the deceased so they brought him to hospital where he was declared dead by the doctor. P.W.6, S.I. R.K. Sharma, the I.O. of the case has also given this statement on oath. Therefore, the statement given by the witness P.W.1, Rajendra that he has not told the police that police had carried 9 Naresh to Hospital before he reached at the spot, has got no relevancy. This witness has been cross examined at a great length but nothing material has come out from his cross examination which may be fatal to the prosecution case. This witness seems to be a natural witness and his testimony is believable. Some minor contradictions are bound to come in the statement of the witness but the same do not go to the root of the case. 16- The another eyewitness examined by the prosecution is P.W.3, Ram Dass, in whose house the incident had taken place. He is an independent witness. This witness has fully supported the statement of P.W.2, Rajendra. He has deposed that on 19-12-1994 at about 4.30 P.M. he was sitting in his shop. Chandra Pal, Naresh and his brother passed through his shop. At some distance there is a lane where Murari was armed with Danda and he called his sons, Vinod and Dinesh. Vinod was armed with knife and Dinesh was having a pistol. Knife was open. Murari told his sons to finish Naresh. He further deposed that Naresh rushed towards his house and entered in a tinshed where his mother used to live. Naresh bolted the door of that room from inside, but Vinod and Dinesh broke open the door of that room and entered in the room and fired gun shot at Naresh. Thereafter both the brothers (accused) pulled Naresh from the room and broght him to outside the room. This witness further deposed that Vinod stabbed Naresh by knife and Murari did not beat Naresh. Thereafter all the accused fled away from the place of occurrence after extending threat to the persons assembled there that if any one would lodge the 10 report at police station he would also be finished by them. This witness has also been cross examined at a great length but nothing illogical came out from the cross examination which may shatter the prosecution case or which may be totally different from the statement of the another eye witness P.W.2, Rajendra. Rather we find that both the eye witnesses are consistent with each other on each count. There are no major contradictions in their cross-examination which may be fatal to the prosecution case and make the genesis of the prosecution case doubtful. 17- Further the prosecution case finds full support from medical evidence. The Medical Officer P.W.4, Dr. Suresh Mehta has found as many as 8 incised wounds and multiple abrasions on the person of the deceased. The doctor also found fire- arm entry wound measuring 1cm x 0.7 cm oval x chest wall deep on left axillary region, 15cm away from left axilla with inverted margins. Blackening and charring was present over the wound. The doctor further found two incised wounds on the right lung of the deceased. In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of extensive antemortem stab injuries. 18- It is also pertinent to mention here that the specific case of the prosecution is that the accused Vinod and Dinesh entered inside the room where the deceased Naresh was hiding himself and there accused Dinesh shot fire from pistol on the deceased from a close range and that is the reason that the doctor has found blackening and charring 11 around the gun shot wound. It has also come in evidence that accused Vinod has given many knife blows to Naresh outside the room of Ram Dass and the doctor also found as many as 8 incised wounds on the person of the deceased. Therefore the medical evidence is consistent to the oral testimony of the eye witnesses produced in the case. 19- Learned counsel for the accused/appellants also submitted that the trial court has acquitted the co-accused Murari on the same set of evidence, therefore, these two accused/appellants Dinesh and Vinod are also entitled to get the benefit of acquittal of co-accused Murari. 20- We are unable to accept the above submission of learned counsel for the defence. As stated above P.W.3, Ram Dass is an independent eye witness of the occurrence. He has deposed that accused Murari did not take part in the occurrence. He neither went inside the room nor has beaten the deceased Naresh. No overtact was done by Murari, while the other two accused/appellants Dinesh and Vinod with their common intention broke-open the door of the room, fired shot at Naresh, dragged him outside the room and thereafter accused Vinod gave as many as 8 knife stab wounds to Naresh. Therefore, the act of these two accused persons comes within the category of common intention, but the co-accused Murari cannot be roped in with the common intention of other two accused/appellants Dinesh and Vinod. The learned trial court has rightly acquitted the co- accused Murari. The findings recorded by the trial court on this count needs no interference. 12 Therefore, the case of the present appellants did not come within the category where they should be extended the benefit of acquittal of co-accused Murari. 21- Learned counsel for the accused/appellants also submitted that accused Murari and his son Ashok are witnesses in a murder case instituted against Gullshan, deceased Naresh and others and for this reason they have been falsely implicated in this case. 22- To prove the above factum accused Murari has examined himself in defence and has deposed that Gulshan, Naresh, Vijay and others are criminal in nature, against whom case is pending for the murder of Ashok and he and his son Ashok are witnesses in that case and for this reason the complainant side has enmity with the accused persons. He further alleged that in Nirmala Chawni there has been murder of servant and in that case also name of deceased Naresh came in light. He also alleged that gambling and kidnapping cases were also pending against Naresh deceased. This accused has therefore tried to state that due to enmity false case has been instituted against them. It will not be out of place to mention here that enmity is like a double-edged weapon which cuts at both ends. As narrated by accused Murari they were deadly enemy of the deceased Naresh, therefore, accused persons had a strong motive to eliminate the deceased Naresh. The defence cannot get any benefit of the evidence of accused Murari examined in defence. Rather his statement proves sturdy 13 enmity of the accused persons with deceased Naresh. 23- Further D.W.1, Tota Ram has also been examined by the defence. This witness has tried to state that the I.O. has obtained his signature before conducting inquest proceedings. This witness is the nephew of accused Murari. It appears that this witness has been procured with a view to show that the inquest proceedings were not performed in the manner as stated by the prosecution. The interested statement of this witness cannot be accepted in the light of reliable and independent statement of P.W.3, Ram Dass as well as the documents prepared by the I.O. during the investigation. The statement of accused Murari also has no relevance in view of the promptness of F.I.R. as well as reliable and trustworthy deposition of P.W.3, and other supporting witnesses examined in the case. 24- For the discussion made above, we are of the definite view that the prosecution has been successful in establishing its case against accused/appellants Vinod and Dinesh beyond all reasonable doubt. The conviction and sentence awarded by the trial court needs no interference. The appeal lacks merit and is liable to be dismissed. 25- Accordingly the appeal is dismissed. The conviction and sentence of accused/appellants Dinesh and Vinod U/S 302/34 I.P.C. awarded by the trial court is hereby confirmed. 14 26- Both the accused/appellants are on bail. Their bail bonds are cancelled and sureties discharged. Let the accused/appellant Dinesh and Vinod be taken into custory forthwith so as to serve out the sentence awarded against them by the trial court. 27- Let the record of the case be transmitted to the trial court for compliance. (Dharam Veer, J.) ( B.C. Kandpal, J.) Dated: November 17, 2009. ISB 15