IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 54/2004 Ravi Mandal ….. Appellant. Versus State …… Respondent. Smt. Pushpa Joshi, Advocate for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. With Criminal Appeal No.59/2004 Shabbir ….. Appellant. Versus State …… Respondent. Sri Rajesh S. Nagarkoti, assisted by Sri Tarun P. Takuli, Advocate for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Dated: April 07, 2010. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] Both these appeals arise out against the same judgment dated 28-01-2004, passed by Addl. District & Sessions Judge/ I F.T.C. Haldwani, District Nainital in S.T. NO. 93/2002, State Vs. Shabbir Ahmad and Ravi Mandal U/Ss 302/34 and 201 I.P.C., S.T.No. 104/2002, State Vs. Shabbir Ahmad, U/S 25 Arms Act, and S.T.No. 105/2002 State Vs. Ravi Mandal, U/S 4/25 Arms Act, therefore, these appeals are being decided by this common judgment. 2- By the impugned judgment, the learned Addl. Sessions Judge convicted accused/appellants Ravi Mandal and Shabbir Ahmad U/S 302/34 2 I.P.C. and sentenced them to undergo life imprisonment and to pay a fine of Rs. 1,000/- each and U/S 201 I.P.C. both were convicted and sentenced to unergo R.I. for one year, in S.T.No.93/2002. In S.T.No. 104/2002, accused/appellant Shabbir Ahmad was convicted U/S 25 Arms Act and in S.T.No. 105/2002, accused/appellant Ravi Mandal was convicted U/S 4/25 Arms Act and both of them were sentenced to undergo one year’s R.I. each and to pay a fine of Rs. 5,00/- and in default of payment of fine to further undergo R.I. for one month. 3- The prosecution story, in brief, is that on 1.11.2001 complainant Man Singh lodged a written report, Ext. Ka.1, at P.S. Lalkuan with the allegations that today in the morning the blood- stained body of his son Chhotu @ Surjit was found about 150 meters away in western side of Government Inter College situated in Tanda Jungle. He also mentioned in the F.I.R. that there was a grievous injury on the right side of his body. The complainant also mentioned in the F.I.R. that his son was seen with his companions Govind and Ravi Bangali in the night of 31.10.2001 at about 9.00 p.m. He also suspected that Govind is a criminal and he was taking his son on wrong way. On the basis of above written report case crime No. 686/2001, U/S 302, 201 I.P.C. was registered against Govind and Ravi Bangali. During investigation complainant Man Singh gave an application dated 10-11-2001, Ext. Ka.2, at P.S. Lalkuan asserting therein that accused Shabbir and Ravi Bangali were in the company of his son Chhotu and as Shabbir Ahmad looks like Govind, 3 therefore the name of Govin has been wrongly written in the F.I.R. due to some confusion. He further mentioned in the application that on 30th October, Chhotu, Ravi Bangali and Shabbir had gone to the house of Ranjit Vishwas in Shakti Farm No.2 and when they returned in the morning of 31st October, then Govind was not with them. Babloo had named Govind on the threats given to him by shabbir. He also narrated that Maiku Lal of Richha also knew about the real factum. 4- On 1.11.2001 the I.O. visited the place of occurrence, seized the simple and bloodstained earth from the place of occurrence vide memo Ex. Ka.4, prepared inquest, Ext. Ka.7-A on the dead body of deceased Chhotu. The I.O. also prepared Police Form No.13 ( Ext. Ka.8), Sketch dead body (Ext. Ka.9), letter to CMO ( Ext. Ka.10), site plan (Ext. Ka.11) and sent the dead body for post mortem. 5- The autopsy on the dead body of deceased Chhotu was conducted by Dr. Anil Chandra Shah, Medical Officer, on 1.11.2001 at 3.30 P.M. in Soban Singh Jeena Hospital, Haldwani, and he has noted the following antemortem injuries on his person:- 1- Multiple abraded contusions, 6cm x 5cm to 4cm x 4cm on right forehead, right temporal region and right side face. 2- Abraded contusions 4cm x 4cm to 2 x 2cm on the left forehead. 3- Abraded contusions 4 x 4cm on the front of left shouler. 4 4- Gun shot wound of entry measuring 6cm x 6.5cm x cranial cavity deep present on the right side of blend, 2cm above the upper margin of right ear. Margins of the wound irregular, invertical schroching present around the margin of wound On further exploration of the wound right temporal, right paritel, right side occipital, right side frontal bone fractured and collateral meninfies of right side end cut. There is huge haematoma all over in side scalp. There is fracture of left foessa. In the opinion of the doctor the cause of death was due to shock and haemorrhage as a result of antemortem injuries. 6- On 24-11-2001 Sri P.K. Shah, Station Officer accompanied by some police personnel went in search of accused and got arrested them near Railway Crossing. During interrogation a country made pistol 12 bore and a live cartridge were recovered from the pocket of Shabbir and from the pocket of Ravi Bangali, a knife was recovered. The investigating officer prepared memos for taking into possession the country made pistol, cartridge and knife. Accused Shabbir has confessed his guilt and stated that on 25th and 26th October he killed Govind at Bareilly and on 31st October in the night he killed chhotu by shot of the country made pistol. He also confessed the guilt that he killed Chhotu with the help of Ravi. 7- The I.O. after completing the investigation submitted charge sheet Ext. Ka.12, 5 against accused Ravi Mandal, U/S 4/25 Arms Act, Ext. Ka.13, against accused Shabbir U/S 25 Arms Act and Ext. Ka.16, against accused Shabbir and Ravi Mandal, U/S 302/201 I.P.C. 8- The C.J.M. Nainital, vide his order dated 13-3-2002, committed the case to the court of Sessions for trial. 9- The learned Additional Sessions Judge, Haldwani, District Nainital framed charges U/Sss 302/34 and 201 I.P.C. against both the accused/appellants. Accused/appellant Shabbir was also charged U/S 25 Arms Act and accused/appellant Ravi Mandal was charged U/S 4/25 Arms Act. Both the accused/appellants have denied the charges and claimed to be tried. 10- The prosecution in support of its case has produced P.W.1, Man Singh, P.W.2, Chandan Singh, P.W.3, Smt. Urmila, P.W.4, Smt. Mithlesh, P.W.5, Mahendra Khurana, P.W.6, Hanuman Prasad, P.W.7, Babloo, P.W.8, Dr. Anil Chandra Sah, P.W.9, S.I. Nanhe Lal and P.W.10, Pramod Kumar Sah. 11- The accused in their statement U/S 313 Cr.P.C. have denied the prosecution case and alleged that they have been falsely implicated. However, no evidence in defence has been adduced. 12- The learned trial court after hearing learned counsel for the parties and considering the entire material available on record, found the accused/appellants guilty U/S 302/34 I.P.C. and 6 sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1000/- each. They were further found guilty U/S 201 I.P.C. and sentenced to undergo one years’s R.I. Accused/appellant Ravi Mandal was further found guilty U/S 4/25 Arms Act and accused/appellant Shabbir was also found guilty U/S 25 Arms Act and both of them were sentenced to undergo one year’s R.I. and a fine of Rs. 500/- each and in default of payment of fine to further undergo imprisonment for one month each. 13- Feeling aggrieved, the accused/appellants have preferred these appeals. 14- Heard learned counsel for the parties and perused the record. 15- Learned counsel for the appellants has submitted that the F.I.R. lodged by Man Singh, father of the deceased Chhotu, is highly doubtful. He has lodged the F.I.R. on the basis of suspicion, in which he mentioned that he had seen his son Chhotu in the night of 31.10.2001 along with Govind and Ravi Bangali, whereas in the application, Ext. Ka.2, moved by the complainant after about 10 days of the incident, he has changed the name of Govind and in his place inserted the name of Shabbir along with Ravi Bangali as an accused. In this way whole prosecution case becomes highly doubtful. 16- We do not find any force in the above submission of learned counsel for the appellants. The complainant has explained the situation by stating that on 30-10-2001 Ravi Bangali and 7 Shabbir were with Chhotu and they had gone to the house of Ranjit Vishwas in Shakti Farm No.2 and Babloo, (P.W.7) on the threats given by Shabbir had told the name of Govind in place of Shabbir Ahmad, when he had come to his house to take food for Chhotu. The statement of P.W.7, Babloo is very important on this point. He has deposed that on 31-10-2001 he was at the Gate of Ashok Takies Lalkuan. There Chhotu met him. Chhotu asked him to take food for him from his house, therefore, this witness went to the house of Chhotu and took food in three tiny boxes. When he reached at Cinema Hall no one was there, hence he placed the food in Cinema Hall. In the next morning he came to know that Chhotu had been murdered. This witness did not support the prosecution case, on other counts. 17- The prosecution case is that when Babloo (P.W.7) had come to the house of Chhotu to bring food for him then he had stated this fact to the mother of Chhotu Smt. Urmila Devi (P.W.3) that Ravi Bangali and Shabbir are along with Chhotu. P.W.3, Smt. Urmila Devi has deposed this fact that when Babloo had come to her house to bring food for Chhotu then he had told her that Ravi Bangali and Shabbir are also with Chhotu. Hence this part of prosecution case is fully proved. 18- As regards the circumstance of last seen is concerned, P.W.6, Hanuman Prasad, P.W.5, Mahendra Khurana and P.W.2, Chandan Singh have fully proved the same. P.W.6, Hanuman Prasad has deposed that on 31.10.2001 at about 12 in the mid night he was coming back in front of the gate of Cinema Hall, then he saw Chhotu, Ravi 8 Bangali and Shabbir were going towards the jungle talking with each other. Thereafter he went to his shop and in the morning he heard about the murder of Chhotu. Although this witness has not supported the other part of prosecution case but according to this witness in the night of 31.10.2001 accused Ravi Bangali, Shabbir and Chhotu were going towards the jungle. Therefore he has fully supported the last seen evidence in the case. 19- The another witness of last seen is P.W.5, Mahendra Khurana. He has deposed that he resides in ward no.5 Subhash Nagar Lalkuan. On the day of incident he had purchased the cinema ticket of 9- 12p.m. show. He did not see complete picture, as he was suffering from diarrhoea. At 11.30 P.M. he came out of the Picture Hall and had gone to finish the natural call in the bushes near Goyal Compound. This witness clarified that although there are latrines attached with the picture hall but he had gone to the bushes, as he had to pay money at the latrine of Picture Hall. The statement of this witness was recorded by the I.O.on the next day of the incident and he had given the statement to the I.O. that Govind, Chhotu, Ravi Bangali and Shabbir were going towards the jungle. This witness further deposed that he had not told the name of Govind to the I.O. This witness has deposed that he is not related to Chhotu. He has denied the suggestion that he had not seen the incident. Therefore, from the evidence of this witness also the last seen circumstance has been fully established. He had seen deceased Chhotu in the company of accused Shabbir and Ravi Mandal in the midnight of 31-10- 2001 going towards the jungle. 9 20- P.W.2, Chandan Singh, is also the witness of last seen. He has deposed that on 31-10- 2001 he was sitting in his shop situated at Bangali Colony, Lalkuan. At about 7.00 p.m. Ravi Bangali, Shabbir Ahmad and Chhotu came at his shop and they were making senless talks. After some time they went towards Picture Hall. This witness further deposed that he owns a house in Khatte which is about ½ kilometer away from his shop, and in that house his parents used to reside. This witness deposed that after some time he went to his house at Khatte and after taking his meal there, at about 12.30 A.M. in the night he was coming to his shop through the way coming from Goyal Compound. Then he saw Ravi Bangali and Shabbir Ahmad coming in a hurry. Being a neighbour of these persons he asked them as to from where they were coming in the night. This witness had seen that the hands and clothes of Shabbir were blood-stained and the clothes of Ravi Mandal were also having blood-stains. At this he became nervous. Accused Shabbir threatened him not to tell anything to anyone neither he would face same consequences as they had done with Chhotu Bangali. In the next morning he came to know about the murder of Chhotu in the jungle. This witness has deposed that due to the fear of accused persons he did not disclose this fact to any one. This witness also deposed that the police interrogated him. Therefore, from the evidence of above witnesses also this fact has been established that in the night of 31-10- 2001 deceased Chhotu was seen in the company of accused Shabbir and Ravi Mandal going towards the jungle and he also saw these accused persons 10 coming back from the jungle in the night itself having blood on their hands and clothes. 21- The another circumstance in the case is that the dead body of Chhotu was seen lying in the jungle where he was seen in the company of accused/appellants in the previous night by the prosecution witnesses. P.W.1, Man Singh, father of the deceased Chhotu @ Surjit, has deposed that his son was murdered in the night of 31st Octobr 2001 and in the next morning the dead body of his son was found in the jungle of 6 number depot, within P.S. Lalkuan. This witness further deposed that on 31.10.2001 at about 6 p.m. Babloo came to his house and told him that his son Chhotu, Ravi Bangali and Govind were demanding food. Thereafter his wife prepared food and Babloo went away with the food. He further deposed that he had gone to the place of occurrence and recognized the dead body of his son. Thereafter he went to police station along with the dead body of his son. He got scribed the F.I.R. by Balwant Khurana and lodged it at the police station. This witness further deposed that after some time of the incident, he came to know that when Babloo took food, at that time Govind was not with Chhotu and Ravi Bangali, but accused Shabbir was with them. Therefore, he gave another report Ext. Ka.2 at the police station in this regard. The investigating officer P.W.10, Pramod Kumar Shah, has inspected the place of occurrence and prepared the site-plan Ext. Ka.15 and the occurrence was committed in the jungle where Chhotu, and accused persons were seen by the prosecution witnesses in the previous night. Thus, we find that the prosecution has been successful in 11 establishing the recovery of dead body at the place of occurrence as has been narrated by the porsecution witnesses. 22- Learned defence counsel also pointed out that in a case based on circumstantial evidence inference of guilt can be justified only when all incriminating facts and circumstances are found incompatible with innocence of accused or guilt of any other person. Circumstances from which inference of guilt is drawn, must be proved beyond reasonable doubt and must be shown to be closely connected with the principal fact sought to be inferred. In support of her contention learned counsel has cited before us the case of Asraf S.K. and another vs. State of West Bengal, reported in [2008 (63) ACC 608] (Supreme Couurt). 23- The above submission of learned counsel is of no avail. The facts of cited case are different to the facts of the case in hand. As discussed in the earlier part of the judgment, this fact has been fully established by the evidence of P.W.2, Chandan Singh, P.W.5, Mahendra Khurana, P.W.6, Hanuman Prasad and P.W.7, Babloo, that in the night of 31.10.2001, Babloo took food to the deceased from his house. The deceased Chhotu was seen in the company of accused Shabbir and Ravi Mandal going towards the jungle where the dead body of the deceased was found in the next morning. P.W.2, Chandan Singh also disclosed this fact that when he was returning to his shop after taking his meal from his home, accused Shabbir and Ravi Bangali met him. They were in hurry and their hands and 12 cloths were blood-stained. They also threatned him not to disclose the incident to any one neither he would face the same consequence. Therefore, the above circumstances are incompatible with the innocence of accused and the only inference that can be drawn is that the accused Shabbir and Ravi Mandal committed the murder of deceased Chhotu @ Surjit. 24- It is also pertinent to mention here that the tiffin of food put inside the Cinema Hall by Babloo was got recovered by the I.O. on 1.11.2001 vide memo, Ext. Ka.3. On opening the tiffin rice and cooked fish was found inside the tiffin. Therefore, this fact also strengthen the truthfulness of prosecition version. 25- The another important circumstance in the present case is that after committing the murder of Chhotu, accused Shabbir Ahmad absconded from his house and he was arrested on 24-11-2001 at 3.30 P.M. near Baboor Gumati Railway Crossing. At the time of his arrest, accused Shabbir was having a countrymade pistol 12 bore and a live cartridge whereas accused Ravi Mandal was having a knife. The investigating officer also found an empty cartridge from the place of occurrence vide memo Ext. Ka.5. The arrest memo and recovery of countrymade pistal along with live cartridge and a knife from the possession of accused was prepared by the I.O. at the spot in presence of public witnesses, which is Ext. Ka.17. P.W.1, Man Singh has proved the recovery of empty cartridge from near the place of occurrence and identified his signature on memo Ext. Ka.5. Therefore, the 13 recovery of empty cartridege from the place of occurrence and absconding of accused persons after committing the crime and their arrest along with countrymade pistol, live cartridge and knife, also connect them in the commission of the crime. 26- Learned counsel for the appellants also argued that the prosecution has not been successful in establishing the motive for commission of the crime. 27- So far as the motive for commission of the crime is concerned, P.W.4, Smt. Mithlesh wife of Govind Singh has deposed that she knew the deceased as well as the accused persons. Accused Shabbir and Ravi Bangali had enmity with her husband. The accused had started visiting her house prior to the incident. Deceased Chhotu also used to live in the company of her husband Govind and that may be the reason that accused Shabbir bore grudge against Chhotu also. She also deposed that 8 to 10 days prior to the murder of Chhotu accused shabbir had called her husband and lateron she knew that her husband had been killed at Bareilly. P.W.3, Smt. Urmila is the mother of deceased Chhotu. She has stated that when Babloo had come to her house to take food, then Babloo had informed her that Ravi Bangali and Shabbir are also with Chhotu and she had told to Babloo that Shabbir had old enmity with her son Chhotu. Thereafter Chhotu did not return home on 31-10- 2001 and in the next morning his dead body was found in the jungle. From the above evidence, it is clearly proved that the accused persons had motive 14 to commit the murder of deceased Chhotu as they had old enmity with the deceased. 28- The medical version in the case fully corroborates the ocular version. According to the medical officer, P.W.8, Dr. Anil Chandra Shah, there were multiple abraded contusions on right forehead, left forehead, left shoulder, right temporal region and right side face. The doctor also found injury No.4 a gunshot wound of entry measuring 6cm x 6.5cm x cranial cavity deep present on the right side of blend, 2cm above the upper margin of right ear. The prosecution case is that an empty cartridge was found at the place of occurrence, and the doctor also found only one gunshot wound of entry on the person of accused. 29- In view of above discussion, we come to the conclusion that the circumstances relied upon by the prosecution have been satisfactorily proved. The circumstances put forward by the prosecution are consistent only with the hypothesis of the guilt of the accused/appellants. The chain of circumstances is complete and there is no reasonable ground for a conclusion consistent with the innocence of the accused and in all human probability it is proved that the murder of deceased Chhotu has been committed by the accused/appellants and none-else. 30- For the reasons recorded above, we find no merit in these appeals and the same are liable to be dismissed. 15 31- Accordingly, both the appeals are dismissed. The impugned judgment of conviction and sentences passed by the learned trial court is hereby confirmed. 32- Accused/appellant Shabbir is in jail. He shall be detained in jail to serve out the remaining sentences passed by the trial court against him. Accused/appellant Ravi Mandal was granted bail by this court but report from Sampoornand jail was received that he is still in jail as he could not file sureties, therefore, in case he has been released on bail, then he shall be taken into custody forthwith, and if he is already in jail, he also be detained there to serve out the sentences passed against him. 33- Let a copy of this judgment be placed in the file of Criminal Appeal No.59/2004. (Nirmal Yadav, J.) ( B.C. Kandpal, J.) ISB