IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1432 of 2001 (Old No. 560 of 1996) 1. Prakash S/o Natthu 2. Channi S/o Natthu (since deceased) Both residents of Noorpur Colony, Kundeshwari, P.S. Kashipur, Nainital. 3. Tilak Ram s/o Sahi Ram R/o Kundeshwari, P.S. Kashipur, Nainital. 4. Shauraj S/o Chhidda (since deceased) R/o Dhakiya No. 1, P.S. Kashipur, Nainital. ...…………. Appellants Versus The State ...…………. Respondents Mr. Rajendra Kotiyal and Mr. Pradeep Hairiya, Advocates for appellants. Mr. Prabhakar Joshi, Brief Holder for the respondent State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) is directed against the judgment and order dated 18.03.1996, passed by III Addl. Sessions Judge, Nainital, in Sessions trial No. 117 of 1993, whereby accused / appellant Prakash is convicted under Section 2 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.) in Sessions Trial No. 117 of 1993, and sentenced to imprisonment for life. He is further convicted under Section 25 of the Arms Act, 1959 (in Sessions Trial No. 115 of 1993), and sentenced to rigorous imprisonment for a period of one year. Other three accused / appellants, namely Channi (since deceased), Tilak Ram and Shauraj (since deceased) have been convicted under Section 302 read with Section 34 of I.P.C., and each one of them has been sentenced to imprisonment for life. During the pendency of this appeal, accused / appellants Channi and Shauraj have died, and appeal filed on their behalf stands abated. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 16.07.1992, at about 12:15 P.M., P.W. 4 Jogendra Singh (complainant) alongwith his brother Harpal (deceased), Shankar and P.W. 1 Gurmukh Singh was going on a tractor from village Mehtavan to Kundeshwari market. P.W. 1 Gurmukh Singh got the tractor parked near the shop of P.W. 2 Satbir Singh, and started getting some repair work done in the tractor. Meanwhile, the above named persons sat in a nearby shop of Shivcharan. Suddenly, accused / appellant Prakash alongwith accused / appellants Channi, Tilak Ram and Shauraj came there. They caught hold of Harpal. Accused / 3 appellant Prakash fired a shot from a country made pistol on the head of Harpal. Tilak Ram also fired at him. Injured Harpal died on the spot. When P.W. 4 Jogendra Singh and others shouted for help, the accused / appellants ran away towards Kundeshwari. P.W. 4 Jogendra Singh thereafter got lodged F.I.R. (Ext. A –1) with police outpost Kundeshwari, P.S. Kashipur, District Nainital (now part of district Udham Singh Nagar). On the basis of said report, a check report (Ext. A –3) was prepared at 14:05 P.M. on the very day i.e. 16.07.1992, registering Crime No. 587 of 1992, against accused / appellants Prakash, Channi, Tilak Ram and Shauraj, relating to offence punishable under Section 302 of I.P.C. Investigation was taken up by sub inspector Gajendra Singh. The police went to the spot and took the dead body of Harpal in their possession, and prepared the inquest report (Ext. A –10) on 16.07.1992, at about 14.30 P.M. The dead body was sent for postmortem examination. Dr. O.P.L. Srivastava conducted the postmortem examination on 17.07.1992, at 02:30 P.M., and prepared autopsy report (Ext. A –12). He found six ante mortem injuries including the gun shot injury. He opined that the deceased had died due to shock and haemorrhage on account of ante mortem injuries. Meanwhile, the Investigating Officer interrogated the witnesses and inspected the spot, prepared site plan (Ext. A –8). Thereafter, the accused / appellants were arrested and recovery of the country made pistol (Ext. 1) was made 4 on pointing out of the accused / appellant Prakash. A memorandum of recovery (Ext. A –2) was got prepared in the presence of the witnesses. After completing the investigation, charge sheet (Ext. A –15) was filed against the accused / appellants Prakash, Channi @ Charan Singh, Tilak Ram and Shauraj, for their trial in respect of offence punishable under Section 302 read with Section 34 of the I.P.C. A separate crime relating to offence punishable under Section 25 of the Arms Act was registered after recovery of the country made pistol from accused Prakash which was also investigated, and a separate charge sheet was filed after obtaining necessary sanction (Ext. A –18) from the District Magistrate, Nainital, in respect of said offence, against accused / appellant Prakash, only. 4) On receipt of both the charge sheets, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., learned Magistrate committed the cases to the court of Sessions, for trial. On 10.01.1994, after hearing the parties, the charge of offence punishable under Section 302 of I.P.C., and another charge of offence punishable under Section 25 of the Arms Act were framed against the accused / appellant Prakash, who pleaded not guilty and claimed to be tried. The other three accused / appellants were charged of the offence punishable under Section 302 read with Section 34 of I.P.C., and they too pleaded not guilty and claimed to be tried. On this, prosecution 5 recorded the evidence of both the cases, and got examined P.W. 1 Gurmukh Singh (declared hostile); P.W. 2 Satbir Singh (declared hostile); P.W. 3 Harbhajan Singh (declared hostile); P.W. 4 Jogendra Singh (complainant and eyewitness); P.W. 5 Constable Jagram Singh (witness of recovery of country made pistol); P.W. 6 Constable Vishwa Bandhu (also witness of recovery of firearm and cartridges) and P.W. 7 Raghubir. The defence counsel admitted the genuineness of the documentary evidence, postmortem examination report (Ext. A –12), site plan (Ext. A –13), check report (Ext. A –14), charge sheet (Ext. A –15), site plan of the recovery of firearm (Ext. A –17), sanction from the District Magistrate (Ext. A –18), and other papers. The trial court, after hearing the parties, found accused / appellant Prakash guilty of charge of offence punishable under Section 302 of I.P.C., and one punishable under Section 25 of the Arms Act. It further found remaining three accused, namely Tilak Ram, Channi and Shauraj guilty of offence punishable under Section 302 read with Section 34 of I.P.C. After hearing the parties, the trial court sentenced convict Prakash to imprisonment for life under Section 302 of I.P.C., and rigorous imprisonment for a period of one year under Section 25 of the Arms Act. Each one of the remaining accused, namely Tilak Ram, Channi and Shauraj was also sentenced to imprisonment for life under Section 302 read with Section 34 of I.P.C. Aggrieved by said judgment and order dated 6 18.03.1996, passed by III Addl. Sessions Judge, Nainital, this appeal was filed on behalf of the appellants before the Allahabad High Court on 01.04.1996, where it was admitted on 02.04.1996. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, we thinks it just and proper to mention here the ante mortem injuries found by Dr. O.P.L. Srivastava, who prepared the autopsy report (Ext. A –12) on 17.07.1992, after conducting postmortem examination on dead body of Harpal. Genuineness of this document was admitted by the defence counsel as is apparent from the endorsement made in said report. The ante mortem injuries mentioned in the autopsy report are being reproduced below: i) Gunshot wound of entry measuring .5 cm X .5 cm on right parietal bone, 3 cm above right ear. Brain matter coming out from wound. No blackening or tattooing present. Margins are inverted. ii) Gunshot wound of exit measuring 1 cm X 1 cm on left occipital region, 5 cm from left ear. Margins everted. Brain matter coming out. iii) Lacerated wound on left side of scalp in occipital region 3 cm X 5 cm surrounding the 7 wound of exit. Margins are irregular. Blood clot present . iv) Entry of gunshot wound on palmer aspect of right hand measuring .5 cm X .5 cm. Margins inverted underlying 2nd Metacycle bone, both fractured. No blackening or tattooing present. v) Exit of gunshot wound on dorsal aspect of right hand measuring 1 cm X 1 cm. Margins everted. vi) Abraded contusion on lateral aspect of little finger left measuring 3 cm X 2 cm. The Medical Officer has opined in the autopsy report that cause of death of the deceased was shock and haemorrhage and coma due to ante mortem injuries. It is also mentioned in the autopsy report that the dead body was about a day old. From the autopsy report it is shown by the prosecution that deceased Harpal had died homicidal death on 16.07.1992. 6) Now, we come to the statements of the eyewitnesses. No doubt, P.W. 1 Gurmukh Singh and P.W. 2 Satbir Singh have not corroborated the prosecution story, and both of them have been declared hostile. The two have stated that they did not see as to who had committed murder of Harpal. P.W. 3 Harbhajan Singh is witness of collecting of blood stained soil and simple soil by the police after the incident. However, he has stated that the papers were 8 not prepared in his presence, as such, he was also declared hostile. 7) The star witness of this case is P.W. 4 Jogendra Singh, who is complainant and eyewitness of the incident. This witness has stated that in the month of July 1992, he used to live in village Mehtavan along with his brother Harpal (deceased). The witness further states that when he alongwith Harpal, one Shankar and Gurmukh were going towards Kundeshwari in the tractor of Gurmukh, the tractor was stopped by Gurmukh near the shop of Satbir to get some repairing work. Meanwhile, this witness, Harpal and Shankar went away and sat near the shop of Shivcharan. Suddenly, from behind the shop, accused / appellants Tilak Ram, Prakash, Channi and Shauraj came there, and caught hold of Harpal. Thereafter, they fired shot at Harpal. P.W. 4 Jogendra Singh has further narrated that accused Prakash fired shot on the head of Harpal, and he (Harpal) died on the spot. He has stated that other accused also fired shots and thereafter they left in scooters and two wheelers towards Kundeshwari. P.W. 4 Jogendra Singh has further stated that he immediately reported the matter to the nearest police outpost Kundeshwari, where he gave report (Ext. A –1) to the police at about 02:00 P.M. He proved the report lodged by him. This witness has also proved recovery of country made pistol on pointing out of accused Prakash on 18.07.1992, by the police. 9 8) The factum of recovery of country made pistol on pointing out of accused / appellnat Prakash on the basis of which recovery memo (Ext. A –2) was prepared, is also corroborated by P.W. 5 Constable Jagram Singh and P.W. 6 Constable Vishwa Bandhu. Said fact gets further corroboration from the statement of P.W. 7 Raghubir. This Court on re-appreciation of the evidence on record finds that the testimony of P.W. 4 Jogendra Singh is not only natural, but also trustworthy, and he has no reason to falsely implicate the accused / appellant Prakash in the case. As against accused / appellant Prakash, we concur with the trial court that the prosecution has successfully proved that he (Prakash) committed murder of Harpal, and country made pistol was found from his possession, without license. 9) As far as accused / appellant Tilak Ram is concerned, even Jogendra Singh (P.W. 4) has not specifically stated that he fired any shot at Harpal. There is no recovery from him. As against him it cannot be said that the charge of offence punishable under Section 302 read with Section 34 of I.P.C. is proved beyond reasonable doubt. Accordingly, in our view, he (Tilak Ram) is entitled to the benefit of reasonable doubt. 10) For the reasons as discussed above, we are of the view that the appeal of appellant No. 1 Prakash is liable 10 to be dismissed, but appeal of appellant No. 2 Tilak Ram deserves to be allowed. The conviction and sentence recorded by the trial court against appellant Tilak Ram is set aside. He is acquitted of the charge of offence punishable under Section 302 read with Section 34 of I.P.C. He is on bail. He need not to surrender. The conviction and sentence recorded by the trial court in respect of accused / appellant Prakash is affirmed. His bail is cancelled. The trial court record be sent back so that accused / appellant Prakash is made to serve out the sentence awarded against him by the trial court in Sessions Trial Nos. 117 of 1993 and 115 of 1993. (Appeal of remaining two appellants Channi and Shauraj stands abated). (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. February 10, 2010. H. Negi 11