IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1463 of 2001 (Old No. 814 of 1994) The State ...…………. Appellant Versus Mohd. Hashim Iqbal S/o Akhtar R/o Village Majri P.S. Sahaspur, District Dehradun. ...…………. Accused / Respondent Mr. Tanuj Semwal, Addl. Govt. Advocate for the appellant / State. Mr. R.P. Nautiyal, Advocate for the accused / respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B. S. Verma, J. Hon. Prafulla C. Pant, J (Oral) This appeal, preferred under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) is directed against the judgment and order dated 03.02.1994, passed by learned Sessions Judge, Dehradun, in Sessions trial No. 126 of 1991, whereby accused / respondent Mohd. Hashim Iqbal S/o Akhtar has been acquitted of the charge of offence punishable under Section 302 of Indian Penal Code, 1860 (for brevity hereinafter referred as I.P.C.), and one punishable under Section 25 / 4 of the Arms Act, 1959. 2 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 03.08.1991, a bus bearing registration No. UP07 / 3512 proceeded from Vikasnagar at about 07:00 A.M. for Dehradun. P.W. 1 Narendra Pal Sharma (complainant) was conductor in said bus and P.W. 2 Khairati Lal was driving the bus. P.W. 3 Km. Mukta Rawat was one of the four passengers, who boarded the bus at Vikasnagar. One of the passengers out of the four, got down near Lehman Hospital, as such, only three passengers remained in the bus. The complainant Narendra Pal Sharma (P.W. 1) after demanding tickets from the three, came back to his seat. Soon thereafter, at about 07:20 A.M., some altercation took place between the two male passengers, and one of them (accused / respondent Mohd. Hashim Iqbal) inflicted knife injury to another (Pal deceased). The bus was immediately stopped and the person armed with knife was apprehended by the conductor with the help of the driver. He (apprehended person) disclosed his name as Mohd. Hashim Iqbal, son of Akhtar, resident of Village Majri, Police Station Sahaspur. The driver took back the bus to Lehman Hospital to provide medical treatment to the injured lying in the pool of blood inside the bus. However, the doctors in the hospital declared the injured, brought dead. On this, the driver and the conductor took the bus to nearest police out post 3 Herbertpur, Police Station Vikasnagar, and handed over the accused Mohd. Hashim Iqbal and the knife recovered from his possession. The conductor (P.W. 1 Narendra Pal Sharma) lodged the first information report (Ext. A –1) at about 08:30 A.M., on the very day i.e. 03.08.1991, on the basis of which the police registered at the out post as crime No. 18 of 1991 (which was later re-numbered with police station Vikasnagar as 203 of 1991) relating to offence punishable under Section 302 of I.P.C. against the accused Mohd. Hashim Iqbal. Relating to the knife recovered from the accused, a separate report (Ext. A – 2) was prepared and separate crime No. 204 of 1991, was registered against the accused Mohd. Hashim Iqbal, relating to offence punishable under Section 25 / 4 of the Arms Act, 1959. The investigation was taken up by Sub Inspector Gyan Chand Yadav (P.W. 9). He after interrogating the complainant and arresting the accused, proceeded to Lehman Hospital and took the dead body of Pal (deceased) in his possession, and prepared the inquest report (Ext. A –20) at 09:15 A.M. He also got prepared police form No. 13 (Ext. A –21), sketch of the dead body (Ext. A –22), police form No. 33 (Ext. A –23) and letter to the Chief Medical Officer, requesting for postmortem examination of the dead body (Ext. A –24). P.W. 6 Constable Vinod Kumar took the dead body in sealed condition for postmortem examination. The Medical Officer Dr. Rakesh Shamshery of Doon Hospital conducted the postmortem 4 examination on the dead body of Pal (deceased) and prepared autopsy report (Ext. A –33) (formal proof dispensed with on behalf of the accused / respondent). The Medical Officer recorded two incised wounds in the abdomen and back of the deceased and opined in the autopsy report that death of the deceased had occurred due to shock and haemorrhage on account of ante mortem injuries. During investigation, the bloodstained pieces of seat and the floor of the bus were taken by the Investigating Officer and the same were sent through P.W. 8 Constable Swaraj Singh for chemical examination. After completing the investigation, the Investigating Officer submitted charge sheet (Ext. A –27) against the accused Mohd. Hashim Iqbal for his trial in respect of offence punishable under Section 302 of I.P.C., police station Vikasnagar, District Dehradun. A separate charge sheet (Ext. A –32) was filed for the trial of accused / respondent in respect of offence punishable under Section 25 / 4 of the Arms Act, 1959. 4) The Magistrate, on receipt of the charge sheets, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed both the cases to the court of Sessions, for trial. Learned Sessions Judge on 11.10.1991, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. and one punishable under Section 25 / 4 of the Arms Act. The accused / respondent pleaded not guilty 5 and claimed to be tried. On this, prosecution got examined P.W. 1 Narendra Pal Sharma (complainant); P.W. 2 Khairati Lal (driver of the bus); P.W. 3 Km. Mukta Rawat (a passenger in the bus); P.W. 4 Sumer Chand (brother of the deceased); P.W. 5 Head Constable Braham Pal Singh (who prepared the check report of the first information report); P.W. 6 Constable Vinod Kumar (who took the dead body in sealed condition for postmortem examination); P.W. 7 Head Constable Roop Chand (who made necessary entry in the general diary); P.W. 8 Constable Swaraj Singh (who took the blood stained articles in sealed condition for chemical examination, and P.W. 9 Station Officer Gyan Chand Yadav (who investigated the crime). All the documentary and oral evidence was put to the accused, under Section 313 of Cr.P.C., in reply to which the accused alleged all the evidence to be false. However, no evidence in defence was adduced on behalf of the accused. After hearing the parties, the trial court opined that the prosecution has not been successful in proving the charge against the accused / respondent Mohd. Hashim Iqbal beyond reasonable doubt, and accordingly, acquitted him of the charges framed against him. Hence, this appeal was filed by the State before the Allahabad High Court on 13.05.1994, where the leave was granted on 19.02.1999 and the appeal admitted. The appeal is received by this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 6 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the dead body of Pal (deceased), as mentioned in the autopsy report (Ext. A –33) prepared by Medical Officer Dr. Rakesh Shamshery (formal proof of the document was dispensed with): i) Incised wound 3 cm X 2 cm on the right side of abdomen about 2 cm away from umbilicus. Omentum and intestines protruding from the wound. ii) Incised wound 5 cm X ½ cm on the right middle part of back. On internal examination, the Medical Officer found the peritoneum and stomach punctured. He also found that in the large intestine also there was punctured wound. In the opinion of the Medical Officer Dr. Rakesh Shamshery of Doon Hospital, as mentioned in the autopsy report (Ext. A –33) prepared on 04.08.1991, at 03:00 P.M., cause of death of the deceased was shock and haemorrhage due to ante mortem injuries. The time between death and postmortem examination is recorded by the Medical Officer in said report as 30 – 36 hours. The aforesaid medical report read with testimony of P.W. 1 Narendra Pal Sharma, proves homicidal death of Pal (the deceased). 6) Before going to the discussion on oral evidence we also think it proper to mention about the report given by the Chemical Examiner on the blood stained articles sent 7 to him. The report (Ext. A –5) discloses that the blood stained knife contained human blood. Report Ext. A –6 submitted by the Chemical Examiner discloses that in the blood stained shirt, blood stained piece of tin (of floor of bus) and blood stained seat cover, human blood was found. P.W. 9 Gyan Chand Yadav, Station Officer, who investigated the crime, has stated that there was bloodstains in the shirt of the accused, which was taken into possession and memorandum Ext. A –3 was prepared. He has also disclosed that in the bus where the murder was committed there was blood on the floor of the bus and on the seat of the bus, as such, tin piece of floor and the piece of seat were taken and memorandum Ext. A –4 was prepared. On reading the evidence of the Investigating Officer with the Chemical Examiner’s report, we find that it is established on the record that on the seat of the bus where the murder of Pal is said to have been committed by the accused Mohd. Hashim Iqbal, and the bloodstained knife with which the accused is said to have been armed, both contained human blood. 7) In the light of the above medical evidence and the Chemical Examiner’s report, now, we are examining the oral testimony given by the witnesses. None of the witnesses namely, P.W. 1 Narendra Pal Sharma, conductor of the bus (complainant); P.W. 2 Khairati Lal (driver of the bus) or P.W. 3 Km. Mukta Rawat (a passenger in the bus) had any enmity with the accused / respondent Mohd. Hashim Iqbal. P.W. 1 Narendra Pal Sharma narrating the prosecution story states that on the 8 day of incident he was employed as conductor in bus registration No. UP07 / 3512. The witness further states that at about 07:00 A.M., the bus proceeded from Vikasnagar for Dehradun, and there were four passengers and one of the four got down at Lehman Hospital. When the bus proceeded about 2 kilometers ahead of the hospital near Herbertpur, out of the three passengers, the girl passenger shouted “BHAIYA! DHEKHNA KYA HO GAYA” (Oh Brother! see what has happened). When this witness turned his head back by then the knife injury had already been caused by one boy to another (who were the only other two passengers). P.W. 1 Narendra Pal Sharma further states that he immediately got stopped the bus and apprehended the accused along with the knife he possessed. The witness further states that the bus was taken back to the Lehman Hospital where the doctor declared the injured brought dead. Leaving the dead body there, according to this witness, he went to police out post Herbertpur, lodged the first information report (Ext. A –1) and another report relating to recovery of knife (Ext. A –2). This witness identified the accused Mohd. Hashim Iqbal in the court. It is pertinent to mention here that there is no delay in lodging the first information report. 8) The statement of this above witness P.W. 1 Narendra Pal Sharma gets corroboration from the statement of Khairati Lal, driver of the bus, who also states that on 03.08.1991, at about 07:00 A.M., he drove the bus registration No. UP07 / 3512 from Vikasnagar for 9 taking the same to Dehradun. The witness further states that at Vikasnagar there were three passengers. One girl and two boys. The witness further states that he was driving the bus and he could not see behind him who has killed whom. He further told the court that on being asked by the conductor he stopped the bus. This witness has further stated that he saw the injured boy. Regarding apprehending the accused at the spot this witness has stated that he did not apprehend, the conductor might have apprehended. On this the witness was got declared hostile. On being cross-examined, the witness admitted that accused Mohd. Hashim Iqbal and the bloodstained knife were handed over to the police by the conductor. 9) P.W. 3 Km. Mukta Rawat has further corroborated the prosecution story by stating that in first week of August 1991, at about 07:00 A.M., she was travelling in a bus from Vikasnagar. She further states that apart from driver and conductor there were in all four passengers. She further states that since she was preparing for B.Ed. examination, she got a nap after reading her book. Suddenly, she heard some noise and turned back and saw that out of the two passengers sitting behind her, one boy was standing and another was lying injured. According to this witness the conductor immediately came and apprehended the boy. This witness also identified accused Mohd. Hashim Iqbal in the court as the person who was caught by the conductor in the bus. When this witness stated that between Vikasnagar and Herbertpur some passenger got down, she was got declared hostile 10 by the prosecution. However, in her cross-examination by the defence, she stated that there were no other passengers except the three (she herself, the accused and the injured) at the time of the incident. She further stated in her cross-examination by the defence that the seat got bloodstained. She told that she did not go to the police station. At the end of her cross-examination she states that she doesn’t know the conductor but her brother might be knowing him. In this connection, it is relevant to mention here that P.W. 1 Narendra Pal Sharma has stated that he knew Mukta Rawat, as she was sister of his friend. P.W. 3 Km. Mukta Rawat has disclosed in her statement that she was a daily passenger. 10) Having read the testimony of the eyewitnesses in the light of the autopsy report and the report of the Chemical Examiner, we have no hesitation in holding that the prosecution has successfully proved that the accused / respondent Mohd. Hashim Iqbal, armed with knife, was apprehended on the spot inside the bus, after he inflicted the knife injuries on the person of Pal (deceased) on 03.08.1991, and thereby committed his murder. We are also of the opinion that it is established on the record from the testimony of the above witnesses that the bloodstained knife was recovered by the conductor from the accused after the incident. The recovery memo (Ext. A –2) which is also signed by the accused himself shows that he was possessing the knife having the length of the blade beyond the prescribed limit 11 mentioned in Government Notification No. 3411 D-VI P- 5-682-90 dated 22.10.1990. 11) On behalf of the accused / respondent it is argued that no motive is established on the record for commission of the crime and P.W. 4 Sumer Chand, brother of the deceased, was declared hostile, on this point. No doubt, P.W. 4 Sumer Chand, brother of the deceased, has stated that Pal (deceased) and Mohd. Hashim Iqbal (accused) had no quarrel relating to payment of money in his presence. This witness was declared hostile. The above testimony of this witness does not shake the testimony of eyewitness P.W. 1 Narendra Pal Sharma, conductor of the bus; P.W. 2 Khairati Lal, driver of the bus and P.W. 3 Km. Mukta Rawat, (who was travelling in the bus on the said date when the incident has taken place). P.W. 4 Sumer Chand was not travelling in the bus on that day. Even if the motive is not established, it cannot be said that the testimony of the eyewitnesses is false. 12) Mr. R.P. Nautiyal, learned counsel for the accused / respondent further pointed out certain discrepancies and inconsistencies in the evidence of the witnesses. He pointed out that P.W. 1 Narendra Pal Sharma (conductor) and P.W. 3 Km. Mukta Rawat have stated that there were four passengers when the bus proceeded from Vikasnagar, while P.W. 2 Khairati Lal (driver) states that there were three passengers. The conductor is the best person to disclose as to how many persons boarded the 12 bus at Vikasnagar and that one person alighted from the bus at Lehman Hospital, before it proceeded further to Herbertpur when the incident took place. The driver might not have noticed the exact number of passengers, as he is always supposed to look ahead. 13) It is also contended on behalf of the accused / respondent that the Medical Officer who conducted the postmortem examination was not got examined by the prosecution, as such, the injuries mentioned in the autopsy report cannot be read in evidence. We have perused the document viz. autopsy report (Ext. A –33) in which there is clear endorsement from the side of the accused / respondent made by his counsel ‘formal proof dispensed with’. Once that endorsement is made the document can be read in evidence. 14) Having considered all the evidence discussed above, we are of the view that the trial court has erred in law in acquitting the accused on the trivial inconsistencies pointed out on behalf of the accused / respondent to create a doubt in the prosecution story. It is a case of spot arrest with the weapon and the dead body. The trial court should not have ignored said fact while appreciating the evidence. It is not each and every doubt on which the accused is required to be acquitted, but only ‘reasonable doubt’ on which the accused can be said to be entitled to get benefit of. 13 15) For the reasons as discussed above, this appeal deserves to be allowed. The same is accordingly, allowed. The impugned judgment and order dated 03.02.1994, passed by Sessions Judge, Dehradun, in Sessions Trial No. 126 of 1991, is hereby set aside. The accused / respondent Mohd. Hashim Iqbal is convicted under Section 302 of I.P.C. and also under Section 25 / 4 of the Arms Act, 1959. After hearing learned counsel for the accused / respondent and learned Addl. Government Advocate for the appellant / State, on sentence, we sentence the accused / respondent Mohd. Hashim Iqbal to undergo imprisonment for life under Section 302 of I.P.C. and rigorous imprisonment for a period of one year under Section 25 / 4 of the Arms Act. Both the sentences shall run concurrently. Also, it is observed that the period already undergone by the accused / respondent during trial shall be remitted from the sentence awarded to him. Copy of this judgment shall be made available free of cost to the counsel of the accused / respondent. The Registry is directed to send back immediately the record of this case to the trial court so that the accused / respondent may be taken into custody by said court and sent to jail to serve out the sentence awarded by this Court. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. March 30, 2009. H. Negi 14