RESERVED IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 407 of 2003 1. Imran S/o Kurban 2. Nisar @ Ghada, S/o Nazir 3. Bhura S/o Haneef All R/o Sikandarpur, P.S. Bhagwanpur District Haridwar ……….Appellants Versus State of Uttaranchal (Uttarakhand) …………Opposite Party Alongwith Criminal Appeal No. 17 of 2004 Iqbal S/o Idrish @ Bhura R/o Village Sikandarpur P.S. Bhagwanpur, District Haridwar Versus State of Uttaranchal (Uttarakhand) …………Opposite Party Shri Sajjad Ahmad,Advocate, present for the appellant. Shri M.C. Kandpal, Senior Advocate, assisted by Shri Yogesh Sah, Advocate present for the appellants. Shri G.S. Sandhu, G.A., with Shri T.C. Agarwal, A.G.A., present for the state. -2- Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J. Oral: Hon'ble Prafulla C. Pant, J. These two appeals, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C) are directed against the judgment and order dated 06.12.2003, passed by IV Fast Track Court/Additional Sessions Judge, Haridwar, in Sessions Trial No. 312 of 2001 and Sessions Trial No. 313 of 2001, whereby appellants Imran, Bhura and Nisar are convicted under section 302 read with section 34, and under section 427 read with section 34 I.P.C. By the same judgment appellant Iqbal has been convicted under section 302 and 427 I.P.C. He has been further convicted under section 25 Arms Act, 1959. Each of the appellants Imran, Bhura, Nisar @ Ghada have been sentenced to imprisonment for life under section 302 read with section 34 IPC, and rigorous imprisonment for a period of one year under section 427 read with section 34 IPC. Appellant Iqbal is also sentenced to imprisonment for life under section 302 IPC, and rigorous imprisonment for a period of one year under section 427 IPC. He (Iqbal) has been further -3- sentenced to rigorous imprisonment for a period of one year under section 25 Arms Act, 1959. 2. Heard learned counsel for the parties and perused lower court record. 3. Prosecution story in brief is that Ramesh Chand (deceased), P.W.3 Balesh Kumar and Prakashi, purchased land situated in village Sikandarpur within the limits of police station Bhagwanpur, District Haridwar, in December, 2000. Names of the said purchasers were also recorded in the revenue record. On 08.04.2001, Ramesh Chand (deceased) alongwith his son P.W.1 Sandeep Kumar, P.W.2 Pradeep, P.W.3 Balesh, Pitamber Singh (father of the deceased) and one Janeshwar went to sow sugarcane over the land purchased. At about 11:15 a.m., accused/appellants Iqbal, Bhura, Imran, and Nisar armed with deadly weapons came to the spot and challenged Ramesh Chand (deceased) to dare sow the field, in reply to which Ramesh Chand also challenged the accused/appellants to stop him from cultivating the field if they can. The prosecution case is that accused/appellants Bhura, -4- Imran, and Nisar exhorted Iqbal to kill Ramesh Chand on which Iqbal fired shots at him. Ramesh Chand suffered fire arm injuries on the chest and died on the spot. P.W.1 complainant Sandeep Kumar and others raised alarm. However, the four accused after committing murder set a motor- cycle bearing registration no. U.P.M. 3685 on fire and asked the complainant and others not to dare come back again to take possession of the field. Leaving the dead body of his father Ramesh Chand at the spot, P.W.1 Sandeep Kumar went to the Police Station Bhagwanpur and gave first information report (Ex. A1) at 12:10 hours on 08.04.2001, on the basis of which check report (Ex. A11) was prepared, and crime no. 62 of 2001, was registered by the police, against the four accused/appellants namely Iqbal, Imran, Nisar and Bhura, relating to offences punishable under section 302, 436, 427, 506 IPC. The investigation was taken up by P.W.4 Sub-Inspector R.K. Awasthi, who went to the spot, sealed the dead body and prepared inquest report (Ex. A2). The Police also prepared sketch of the dead body (Ex. A6), police form no. (Ex. A8), sample seal (Ex. A9), and letter to the Chief Medical Officer (Ex. A7) -5- requesting for post-mortem examination of the dead body. The post-mortem examination was conducted by P.W5 Dr. Rajeev Verma, on the next day i.e. 09.04.2001, at about 11:30 a.m. The said medical officer found the two fire arm wounds of entry and two fire arm wounds of exit on the dead body as ante-mortem injuries and prepared the autopsy report (Ex. A10). He opined that cause of death of deceased was shock and hemorrhage as a result of ante-mortem injuries. Meanwhile the investigating officer took stained soil, simple soil and also burnt motor-cycle from the spot and prepared memorandums (Ex. A3 and Ex. A4). A site plan (Ex. A5) was also prepared by the Investigating Officer. The investigation later appears to have been entrusted to P.W.6 Sub- Inspector Rajpal Singh and finally completed by P.W.8 Sub-Inspector B.S. Sengar. After interrogation of witnesses and collecting the evidence, he (P.W8) submitted charge sheet (Ex. A14) against all the four accused/appellants namely Iqbal, Imran, Nisar, and Bhura for their trial in respect of offences punishable under section 302, 436, 427, 506 IPC. A separate charge sheet was filed against Iqbal for his trial in respect -6- of offence punishable under section 25 Arms Act, 1959, as pistol was recovered from his possession in respect of which crime no. 73 of 2001, was registered and investigated. 4. The Magistrate, on receipt of charge sheets, after giving necessary copies, as required under section 207 Cr.P.C., appears to have committed the cases to the court of sessions for trial. Learned Sessions Judge, Haridwar, on 08.01.2002, after hearing learned counsel for the parties, framed charge of offences punishable under section 302 read with 34, 427 read with section 34, and 506 I.P.C., against accused Imran, Nisar and Bhura. As against Iqbal, charge of offences punishable under section 302, 427 read with 34 and 506 I.P.C., were framed. A separate charge in respect of offence punishable under section 25 Arms Act, 1959, was also framed against accused Iqbal. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Sandeep Kumar, (complainant), P.W.2 Pradeep (eye witness), P.W.3 Balesh (Also an eye witness), P.W.4 Sub-Inspector R.K. Awasthi, who started the investigation and -7- prepared inquest report and other necessary papers, P.W.5 Dr. Rajeev Verma, who got post -mortem examination done on the dead body of the deceased, P.W.6 Sub-Inspector Rajpal Singh, who took over investigation from Sub-Inspector R.K. Awasthi, P.W.7 Constable Rifaquat Ali, who registered the crime and prepared check report at the police station, P.W.8 Sub-Inspector B.S. Sengar, who completed the investigation, P.W.9 Sub- Inspector Rajpal Singh, who recovered country made pistol from the possession of accused Iqbal, P.W.10 Sub-Inspector Ram Pal Singh, who registered crime no. 73 of 2001, relating to offence punishable under section 25 of Arms Act, 1959, P.W.11 Constable Ayub Khan, also witness of recovery of the country made pistol and P.W.12 Head Constable E. Hussain, who investigated the crime relating to recovery of country made pistol and submitted the charge sheet in respect of said offence against accused Iqbal. The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged the evidence to be false. Accused Iqbal pleaded that the deceased and complainant wanted to grab his land and with that intention -8- implicated him in the crime in question. The other accused also pleaded that they have been falsely implicated due to enmity. However, no evidence in defence appears to have been given. The trial court after hearing the parties, found accused Iqbal guilty of charge of offence punishable under section 302 and 427 IPC, and in respect of offence punishable under section 25 of Arms Act, 1959. The other three accused Imran, Bhura,and Nisar were found guilty of charge of offence punishable under section 302 read with section 34 and charge of offence punishable under section 427 read with section 34 IPC. After hearing on sentence, each of the said three convicts was sentenced to imprisonment for life under section 302 read with section 34 IPC and rigorous imprisonment for a period of one year under section 427 read with section 34 I.P.C. Convict Iqbal was sentenced to imprisonment for life under section 302 IPC, rigorous imprisonment for a period of one year under section 427 IPC, and rigorous imprisonment for a period of one year under section 25 of Arms Act, 1959. Aggrieved by said judgment and order dated 06.12.2003, passed by IV Fast Track Court/Additional Sessions Judge, -9- Haridwar, in Sessions Trial No. 312 of 2001 and in Sessions Trial No. 313 of 2001, these appeals are preferred by the convicts. 5. Before further discussion, this Court thinks it just and proper to mention the ante-mortem injuries recorded by P.W.5 Dr. Rajeev Verma after conducting post mortem examination on the dead body of the Ramesh Chand. The same are reproduced below from Ex. A10 on the lower court record. (i) Fire arm wound of entry size 2x2cm cavity deep inverted on the chest 3cm lateral to left scapula. (ii) Fire arm wound of entry size 2x2.5cm obliquely placed 7cm lateral and below interior angle of left scapula. (iii) Fire arm wound of exit size 3.2cm averted and irregular 2cm interior medial to right nipple. (iv) Fire arm wound of exit size 3.2cm oval margins averted and irregular, right axilla. On internal examination P.W.5 Dr. Rajeev -10- Verma found that right ribs 3 to 6 were found fractured. 5, 6, 8 and 9 left ribs were also found fractured. The pleura was ruptured and 1 litre of blood was in the plural cavity. The right and left lungs were also found lacerated. According to the medical officer cause of death was shock and hemorrhage as a result of ante-mortem injuries. The above evidence of the medical officer read with the autopsy report and other papers on record establishes homicidal death of Ramesh Chand on record. Now this Court has to see as to whether the accused/appellants, with common intention, have committed murder of Ramesh Chand as alleged by prosecution or not . 6. PW.1 Sandeep Kumar, complainant/ eye witness has stated that on 08.04.2001, he along with his father Ramesh Chand (deceased), P.W.2 Pradeep, P.W.3 Balesh, and Pitambar Singh went to village Sikandarpur to sow sugarcane in the field purchased by them. At about 11:30 a.m., accused/appellants Iqbal, Imran, Nisar and Bhura armed with Lathi and country made pistols came on the field and asked the complainant and his family members not to sow sugarcane in the field. -11- On this, according to the witness his father told that the land has been purchased by them and he would sow the crop. Accused/appellant Iqbal, got agitated and asked Ramesh Chand to dare to sow in the field. P.W.1 Sandeep Kumar, further stated that accused appellant exhorted Iqbal to kill Ramesh Chand on which Iqbal fired a shot from country made pistol which hit on the chest of the deceased. The witness further states that accused appellants thereafter attempted to assault other witnesses present there. However, they raised alarm. Thereafter, all the four accused set motor- cycle, bearing registration no. U.P.A. 3685 on fire and while leaving the place with, threatened that others would also meet the same fate. P.W.1 Sandeep Kumar further stated that his father Ramesh Chand died on the spot. According to the witness, thereafter he wrote F.I.R.(Ex.A.1) and gave it at the police station. He further told that the police came at the spot and took the dead body in their possession. In cross examination the witness states that he alongwith other witnesses had come to the spot from their village which is at a distance of 8 K.M. From his village. He stated that he had also brought a tractor trolly for doing -12- the sowing. The witness further told in the cross- examination that his father Ramesh Chand was a police official. He further told that dead body of Ramesh Chand was sealed at the police station and inquest report was prepared. 7. P.W.2 Pradeep Kumar, who is also an eye witness has narrated the same prosecution story as narrated by P.W.1 Sandeep Kumar, and corroborated the prosecution story. He has further stated in his examination in chief that he was also witness of inquest report (Ex. A2). He has further stated that police took blood stained soil and simple soil and the burnt motor-cycle in its possession and memorandums Ex. A3 and Ex. A4 were prepared. In the cross-examination this witness states that complainant Sandeep Kumar is son of friend of his father. The witness has further stated that his father and Ramesh Chand (deceased) were together posted in a jail. The witness further states that he had gone at the spot in the motor-cycle. He has further stated that on the request of Ramesh Chand (deceased), he ( P.W.2) had gone to help in the sowing. He has also stated that he did not knew accused/ -13- appellants from before and their names were disclosed to him by Balesh (P.W3) at the spot. 8. P.W.3 Balesh is real brother of Ramesh Chand (deceased), and he has also narrated the prosecution story in the manner the same is stated by P.W.1 Sandeep Kumar. He has also corroborated the fact that Sandeep Kumar lodged first information report at police station Bhagwanpur. He has also proved his signature in inquest report (Ex. A2). In the cross-examination the witness has stated that he alongwith others arrived to spot around 11:15 a.m., on the day of incident. He has further told that apart from Iqbal, who fired shot at Ramesh Chand, Imran also fired one shot in the air. As to the setting motor-cycle on fire he told that all the four accused set the motor - cycle on fire . 9. As far as, setting the motor-cycle on fire by all the four accused persons is concerned, the statement of three eye witnesses appears to be an exaggerated statement as it is not specified who lit the matchstick at the motor-cycle, nor it is narrated in what manner motor-cycle was set -14- ablaze. It is not clear from the evidence on record that actually which of the four accused has committed mischief in the setting motor-cycle on fire. Similarly, the statement of the three eye witnesses as to the exhortation role given to the three accused namely Nisar, Bhura, and Imran does not inspire much confidence as it cannot be said that the aforesaid three accused in chorus extorted Iqbal to kill Ramesh Chand. In the circumstances, we are of the view that it cannot be said that accused/appellants Nisar, Bhura, and Imran had common intention with accused Iqbal in commission of murder of Ramesh Chand. As such, charge of offence punishable under section 302 read with section 34 I.P.C., cannot be said to have been proved beyond reasonable doubt against the three accused/appellants namely Imran, Bhura, and Nisar. As far as, the conviction recorded by the trial court in respect of charge of offence punishable under section 427 IPC against all the four accused Iqbal, Imran, Nasir, and Bhura, is concerned, since it is not proved on the record as to who had actually set the motor-cycle on fire, we are of the opinion that even this charge cannot be said to have been proved beyond -15- reasonable doubt against any of the accused/appellants namely Iqbal, Imran, Nisar, and Bhura. 10. But so far as the charge of offence punishable under section 302 IPC as against accused/appellant Iqbal is concerned the testimony given by P.W.1 Sandeep Kumar, P.W.2 Pradeep, P.W.3 Balesh is natural and trust worthy, and there appears no embroidery done in the prosecution story to that extent. The incident is a day-light incident. The first information report is prompt one. The oral testimony of the witnesses gets corroboration from the medical evidence on record. Therefore, we concur with the finding recorded by the trial court that the charge of offence punishable under section 302 IPC as against accused Iqbal, is proved beyond reasonable doubt. 11. So far as, charge of offence punishable under section 25 Arms Act, 1959, is concerned, the said charge is sufficiently proved by P.W.9 Sub- Inspector Rajpal Singh and P.W.11 Constable Ayub Khan. The sanction dated 13.06.2001, given -16- by the District Magistrate, Haridwar (Ex. A20) is also proved on the record. Therefore, we are not inclined to interfere with the finding recorded by the trial court, as to the conviction of the accused/appellant Iqbal on that count. 12. On behalf of accused/appellant Iqbal, it is argued that none of the eye witnesses belonged to the village Sikandarpur, where the incident is said to have taken place, as such, merely on the basis of evidence of interested witnesses, it cannot be said that charge of offence punishable under section 302 IPC as against accused/appellant Iqbal stands proved. We have re-examined the evidence on record. What is relevant in our opinion is, the natural presence of the witnesses at the spot. No doubt the three accused did not belong to village Sikandarpur but their presence at the spot is natural for the reason that Ramesh Chand (deceased) had purchased land in village Sikandarpur and he (Ramesh Chand) alongwith his son Sandeep (P.W1), brother Balesh (P.W.3) and Pradeep (son of his friend) had gone to sow the field. Had it been a case that the three eye witnesses had by chance in reached village -17- Sikandarpur, it could have been said that their testimony requires further corroboration. But in the present case they have fully explained their natural presence at the spot as already discussed above. 13. It is also contended on behalf of the appellant Iqbal that the deceased and his family wanted to grab the land which was recorded in the name of wife of accused/appellant Iqbal and for that reason the accused/appellant has been implicated falsely. Whether the land actually belonged to the wife of the accused/appellant Iqbal or to his father from whom deceased is said to have purchased the land, is not required to be decided by this Court in these proceedings. The fact remains that there is not only evidence of commission of murder of Ramesh Chand by accused/appellant Iqbal but the circumstances also stand explained in which the murder was committed by the appellant Iqbal. 14. For the reasons as discussed above, we are of the view that the appeal no. 407 of 2003 filed by Imran, Bhura, and Nisar deserves to be allowed. -18- Criminal appeal no. 17 of 2004 filed by accused/appellant Iqbal is liable to be dismissed so far as it relates to his conviction and sentence recorded by the trial court in respect of offence punishable under section 302 IPC and 25 Arms Act, 1959. So far as the offence punishable under section 427 IPC is concerned, the same is liable to be set-aside. Accordingly, said appeal deserves to be partly allowed. 15. Therefore, appeal no. 407 of 2003, is allowed. Conviction and sentence recorded against accused/appellants Imran, Bhura and Nissar relating to offence punishable under section 302/34 and one punishable under section 4/24 IPC are hereby set-aside. They are acquitted of the charge. They are on bail. They need not to surrender. Appeal no. 17 of 2004 is partly allowed. Conviction and sentence recorded against accused/appellant Iqbal under section 302 IPC and one punishable under section 25 Arms Act, 1959, by the trial court, is affirmed. However, the conviction and sentence recorded against accused/ appellant Iqbal under section 427 IPC is set aside giving him benefit of reasonable doubt he is -19- acquitted of said charge. He is on bail. His bail application is cancelled. The lower court record sent back to the trial court to make accused/appellant Iqbal serve out the sentence affirmed by this Court in respect of offence punishable under section 302 IPC and under section 25 Arms Act, 1959. (Nirmal Yadav,J) (Prafulla C. Pant, J) Dt. 11.08.2010 Parul