RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1749 OF 2001 (Old No.222/1994) Niranjan & another ……… Appellants Versus The State ……… Respondent Dated: September 16, 2009 Sri Manish Arora, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 20.01.1994 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.448/1991, State Vs. Naresh & others, whereby the learned Addl. Sessions Judge has convicted the appellants/accused Niranjan and Satish u/s 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to three years’ rigorous imprisonment. Both of them were further convicted u/s 307 r/w Section 34 IPC and each of them was sentenced to 2½ years’ R.I. All the sentences were directed to run concurrently. Co- accused Naresh was acquitted by the trial court for the offences under which he was charged. 2 2. On the basis of death report of appellant- accused No.2 Satish given by CJM, Haridwar dated 25.7.2004, the appeal preferred by him already stood abated vide this Court’s order dated 5.5.2009. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that complainant Subhash Singh (P.W.3) lodged an FIR on 24.10.1990 stating therein that on the same day at 9:45 P.M., he along with his father Yashpal Singh, Pratap Singh and Rakesh Kumar was sitting in the courtyard of his house, meanwhile his uncle Rajendra Singh and Chandrama Singh came on a scooter. Both of them informed that as soon as they had reached ahead of the Military Hospital turn near the meat shop, then co-accused Naresh came at about 9:30 P.M. while driving a scooter. On that scooter, appellant-accused Niranjan was sitting behind the co-accused Naresh and Satish (now deceased) was sitting behind appellant- accused Niranjan. It was further stated that co-accused Naresh (acquitted by trial court) abused Rajendra and also threatened him that his (Rajendra’s) brother had insulted him and he will take revenge of that incident. As soon as Rajendra (P.W.1) slowed his scooter, co- accused Naresh exhorted the appellant-accused Niranjan to fire upon them. Thereafter, appellant- accused Niranjan and Satish (now deceased) fired from their pistols due to which Rajendra Singh (P.W.1) and Chandrama Prasad (P.W.2) sustained injuries. The accused persons were identified in the electric light. In 3 order to save their lives, the injured persons came to the complainant on their scooter. Thereafter, both of the injured were taken to the Military Hospital. After the primary medical aid, injured Rajendra was referred to the Meerut Medical College. However, the injured Chandrama Prasad was left in the military hospital. This incident was narrated to complainant Subhash by injured Rajendra and Chandrama Prasad and on the basis of the information received from them, the complainant lodged the report on 24.10.1990 at 11:00 P.M. at P.S. Kotwali Roorkee, Distt. Haridwar, i.e. Ex.Ka-1. On the basis of the report (Ex.Ka-1), Constable Clerk Rajveer Singh prepared the Chik FIR of the case, i.e. Ex.Ka-4. He also made entry in the G.D., the carbon copy of which is Ex.Ka-5. The investigation of this case was entrusted to P.W.4 S.I. Rambabu Singh. Injured Chandrama Prasad was medically been examined on 25.10.1990 at 5:15 P.M. and his injury report Ex.Ka-6 was prepared by P.W.7 Dr. Vinod Tyagi. Likewise injured Rajendra Kumar was also medically been examined on 25.10.1990 at 1:15 A.M. by P.W.6 Dr. Pradeep Korpal and his injury report Ex.Ka-8 was prepared. The operation on the person of injured Rajendra was conducted by P.W.5 Dr. A.M. Nagar and his report Ex.Ka-7 was also prepared. P.W.5 Dr. A.M. Nagar also wrote a letter to the I.O. for sending the two sealed packets containing the shot removed from the person of injured Rajendra as well as clothes of injured, that letter is Ex.Ka-9. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-3. The I.O. 4 during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the accused persons in the court, i.e. Ex.Ka-2. 5. After receiving the charge sheet, learned Addl. CJM, Roorkee committed the case to the court of Sessions on 29.11.1991 after giving necessary copies to the accused as provided under Section 207 Cr.P.C. The case was transferred to Addl. Sessions Judge by Sessions Judge for disposal according to law. 6. On 5.2.1992, learned Addl. Sessions Judge, Roorkee framed the charge against the appellant/ accused Niranjan and Satish (now deceased) and also against co-accused Naresh (acquitted by trial court) u/s 307/34 IPC. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Rajendra Kumar, injured, P.W.2 Chandrama Prasad, injured, P.W.3 Subhash Singh, complainant, P.W.4 S.I. Ram Babu Singh, IO of the case, P.W.5 Dr. A.M. Nagar, who conducted the operation on the person of injured Rajendra, P.W.6 Dr. Pradeep Corpal, who medically examined the injured Rajendra and P.W.7 Dr.Vinod Tyagi, who medically examined the injured Chandrama Prasad. 8. After that the statement of the appellants/ accused as well as that of co-accused recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to 5 each of them in question form, who denied the allegations made against each of and stated that they have been falsely implicated due to enmity. 9. After hearing learned counsel for the parties and appreciating the entire material available on record, learned Addl. Sessions Judge, Roorkee vide judgment and order dated 20.1.1994 convicted and sentenced the appellants-accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 10. Before any further discussion, it is pertinent to mention the injury report of injured Chandrama Prasad who was medically been examined on 25.10.1990 at 5:15 P.M. by P.W.7 Dr. Vinod Tyagi. The following injuries were found in the injury report Ex.Ka.6 which are reproduced as below: - 1. A Stitched wound of 3.5 cm in length is present on the outer and inferior aspect of left lower lip 2. A stitched wound of 3 cm in length is present on the inner aspect of lower lip of left side with traumatic swelling of whole lower lip. 3. A stitched wound 3 cm in length on the front of left lower jaw. 4. The left lower incisor teeth are missing base of which are swollen. 6 5. Multiple abraded contusions are present on the right side face front of nose and right side of nose lower part. Size varying from 0.2 cm to 0.3 cm blue and red. Opinion-No opinion can be given regarding injury nos.1, 2 and 3. For injury no.4 the case is referred to Dental Surgeon, Civil Hospital, Roorkee for expert opinion. Injury no.5 kept under observation and advised x-ray. Duration of injury no.5 is about one day. 11. To prove the above injury report, the prosecution has examined P.W.7 Dr. Vinod Tyagi, who has proved the injury report prepared by him, i.e. Ex.Ka.7. He further stated that no opinion about the weapon and duration could be given as the wounds were stitched. 12. Likewise, injured Rajendra (P.W.1) was also medically been examined on 25.10.1990 at 1:15 A.M. by P.W.6 Dr. Pradeep Korpal and the following injuries were found in the injury report Ex.Ka-8: - “1. A 1½” x 1” irregular lacerated wound sub cut deep present in the right post axillary line at the level of a point midway between the xiphoid process and the umbilicus. The wound has trickle of old blood and is surrounded by an area of multiple small punctuate wounds about 2” all around.” 7 13. To prove the above-said injury report, the prosecution has examined P.W.6 Dr. Pradeep Korpal who has proved the copy of register in which the above-said injuries were mentioned, i.e. Ex.Ka-8. He has stated that the above-injuries were dangerous to life. 14. Injured Rajendra was also been operated and the operation on his person was conducted by P.W.5 Dr. A.M. Nagar and the following injuries were found by the medical officer while conducting operation: - “Lacerated liver 1½” x 2½” x 2” inches gunshot wound of entry. Outer aspect of inferior border of liver right lobe stitched. Another wound of entry of 1½” x ½"x 2” posterior aspect of gall bladder fossa, stitched. Stomach two wounds of entry and exit 1” x ½” x linear lining stitched.” 15. To prove the above-said report, the prosecution has also examined P.W.5 Dr. A.M. Nagar who has proved the Photostat copy of register in which the above-said injuries were mentioned, i.e. Ex.Ka-7. 16. To further prove its case, the prosecution has examined P.W.1 Rajendra Kumar who stated that on the date of incident at 9:30 P.M., he along with Chandrama Prasad (P.W.2) was going to village Dhandera from Roorkee. As soon as they reached ahead the turn of Military Hospital on the Laksar Road near the meat shop, then three boys came on a 8 scooter. He could not properly see the person who was driving the scooter. The appellants-accused Niranjan and Satish were sitting behind the driver of scooter. The person who was driving the scooter exhorted the appellants-accused Niranjan and Satish (now deceased) to fire on him (this witness) and Chandrama was also sitting with him. Appellant-accused Niranjan fired upon him while the appellant-accused Satish (now deceased) fired upon Chandrama Prasad. He identified the appellants-accused in the electric light however he could not identify the scooter number. After receiving the firearm injury, they reached at the Military Hospital where the first aid was given. Thereafter, he was referred to Meerut where in M. Prakash Nursing Home, his medical examination was conducted. Injured Chandrama was admitted in the military hospital. He has informed this incident to Subhash, his nephew, who wrote the report of this incident. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 17. P.W.2 Chandrama Prasad has stated that on the date of incident at 9:30 P.M., he along with Rajender was going at village Dhandera from Roorkee. When they reached on the place of occurrence, then three boys had come on a scooter. The name of the person who was sitting behind the driver of scooter was Niranjan (appellant-accused) while the name of the person who was sitting behind Niranjan, was Satish (appellant-accused, now deceased). At that time, the 9 name of driver was make known as Naresh, but he was not Naresh. Appellant-accused Niranjan fired upon Rajendra Singh while the appellant-accused Satish (now deceased) fired upon him which hit on his mouth. After that they came at their village from where they were taken to the military hospital. Thereafter, injured Rajender was referred for Meerut Medical College and he was admitted there being an ex-military man. He and Rajendra received one firearm injury respectively. Co-accused Naresh was not known to him. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable. 18. P.W.3 is Subhash Singh, complainant of the case who has also corroborated the statements of P.W.1 Rajendra and P.W.2 Chandrama Prasad. He also proved the FIR Ex.Ka-1 lodged by him. 19. P.W.4 is S.I. Ram Babu Singh, IO of the case, who stated that investigation of this case was entrusted to him. During investigation, he recorded the statements of witnesses. He also received the medical reports of injured from the hospital. On completion of investigation, he filed the charge sheet, i.e. Ex.Ka-2. He also prepared the site plan of the place of occurrence, i.e. Ex.Ka-3. Chik FIR of this case was prepared by H.C. Rajvir Singh who died in an accident, that Chik FIR is Ex.Ka-4. The entry was also made by him in the G.D. in the same process, i.e. Ex.Ka-5. 10 20. After that the statement of the appellants/ accused as well as that of co-accused recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of and stated that they have been falsely implicated due to enmity. 21. Sri Manish Arora, learned counsel for the appellant-accused argued that the case against the appellants-accused is not proved by the prosecution beyond reasonable doubt. I do not find any force in this argument for the reason that P.W.1 Rajendra Kumar, who is the injured witness of this case, has stated that on the date of incident at 9:30 P.M., he along with Chandrama Prasad (P.W.2) was going to village Dhandera from Roorkee. As soon as they reached ahead the turn of Military Hospital on the Laksar Road near the meat shop, then three boys came on a scooter. He could not properly identify the person who was driving the scooter. The appellants-accused Niranjan and Satish (now deceased) was sitting behind the driver of scooter. The person who was driving the scooter exhorted the appellants-accused Niranjan and Satish (now deceased) to fire on him (this witness) and Chandrama, who was also sitting with him. Appellant- accused Niranjan fired upon him while the appellant- accused Satish (now deceased) fired upon Chandrama Prasad. He identified the appellants-accused in the electric light, however he could not identify the scooter number. After receiving the firearm injury, they reached at the Military Hospital where the first aid was given. Thereafter, he was referred to Meerut where in 11 M. Prakash Nursing Home, his medical examination was conducted. Injured Chandrama was admitted in the military hospital. He has informed this incident to Subhash who is his nephew, who wrote the report of this incident. The statement of this witness is reliable, natural and believable and inspires confidence. The same also gets corroboration from the evidence of P.W.2 Chandrama Prasad and from that of P.W.3 Subhash Singh, complainant of the case. The case of the prosecution further gets supported from the injury report of injured Chandrama Prasad Ex.Ka-6, injury report of injured Rajender Kumar Ex.Ka-8 as well as from the operation report of injured Rajender i.e. Ex.Ka-7 and also from the report of medical officers. P.W.6 Dr. Pradeep Korpal has stated in his evidence that the injuries caused on the body of injured Rajendra were grievous in nature and dangerous to life. Likewise, P.W.5 Dr. A.M. Nagar has also specifically stated in his medical evidence that on the operation of injured Rajender, two gunshot wounds in the liver were found. Likewise, two wounds in the stomach of injured Rajendra was also found. Therefore, the medical evidence also fully corroborates the evidence of prosecution witnesses. As such, in view of the aforesaid discussion, case against the appellant-accused Niranjan u/s 307 and 307/34 is fully made out. 22. A compounding application No.791 of 2009 has been filed before this Court along with which a joint compromise arrived at in between the appellant- accused Niranjan and injured Rajendra Singh has been 12 filed in which it is stated that on the basis of the compromise arrived at between the parties, the offence may be compounded. This compromise cannot be accepted firstly on the ground that the compromise has been filed only on behalf of the injured Rajendra while in the present case there were two injured persons i.e. Rajendra and Chandrama Prasad. No compromise has been filed by injured Chandrama Prasad. Secondly, in view of the aforesaid discussion, it is proved that the injuries on the person of injured were on the vital part and they were grievous and dangerous to life. As per section 320 Cr.P.C., Section 307 IPC is not compoundable. Therefore, in view of the foregoing discussion, the present compounding application is liable to be rejected and the same is rejected accordingly. 23. For the reasons as recorded above, I concur the view taken by the trial court in convicting and sentencing the appellant-accused as discussed above and there is no ground to interfere with the judgment and order passed by the trial court. 24. Accordingly, the appeal preferred by appellant-accused Niranjan is dismissed. The judgment and order dated 20.1.1994 passed by Addl. Sessions Judge, Roorkee in S.T. No.448 of 1991, State Vs. Naresh & others, convicting and sentencing the appellant-accused Niranjan is affirmed. He is on bail. Let him be taken into custody forthwith to serve out the sentence as awarded against him. His bail bonds are cancelled and sureties are discharged. At the cost 13 of repetition, it is stated that the appellant-accused Satish has died and the appeal filed by him stood abated vide order dated 5.5.2009 passed by this Court. 25. Let a copy of this order be sent to the trial court concerned forthwith for compliance of the order. (Dharam Veer, J.) September 16, 2009 Rdang