Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 75 of 2002 Sanjeev Gupta @ Sonu Gupta & one another ...…………. Appellants versus State of Uttaranchal ...…………. opposite party along with Criminal Appeal No. 85 of 2002 Anil @ Naresh ...…………. Appellant versus State of Uttaranchal ...…………. opposite party ………………… Mr. Lokendra Dobhal, Advocate for the appellant Sandeep Vashisth. Mr. J.S.Virk, Amicus Curiae, for the appellants Sanjeev Gupta and Anil @ Naresh . Mr. Amit Bhatt, Addl. Govt. Advocate for the State/respondent. JUDGMENT Coram : Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. Both these appeals preferred under Section 374 of the Code of Criminal Procedure, 1973, are directed against the judgment and order dated 26.03.2002, passed by Additional Sessions Judge, Ist F.T.C, Dehradun in Sessions Trial No. 78 of 1995, whereby accused / 2 appellants Sanjeev Gupta alias Sonu Gupta, Sandeep Vashisth and Anil alias Naresh have been convicted and sentenced under Section 302 IPC read with section 34 IPC for imprisonment of life & a fine of ` 2000/- to each and in default of payment of fine, each one was directed to undergo one month’s further rigorous imprisonment. The accused / appellants were directed to undergo one month’s rigorous imprisonment for the offence punishable under Section 379 IPC. 2. Prosecution story in brief is that one Dilaram Raturi lodged a complaint (Ext. Ka-1) with the P.S. In charge IDPL, Veerbhadra, Rishikesh to the effect that on 05.10.1992 he along with his brother and nephew had come to Inter College IDPL to take sweets (prasad) of Durgapuja. He and his brother went inside the college to receive prasad. His nephew Ravindra waited near the gate of Inter College along with scooter no. UP-07B – 1544. When on 05.10.1992 at 10:45 a.m. he along with his brother came out, they found a good number of people assembled there. Sanjeev Gupta alias Sonu son of Mahendra Gupta, resident of B-957 IDPL, his brother Sri Krishna Gupta, Sandeep Vashisth son of Om Prakash Sharma resident of IDPL and Anil resident of Charkhiwala Gher, Khalapar, Thana Shahar Kotwali, District Saharanpur were inflicting blows of knife and gupti on Ravindra. On his (Dila Ram’s) raising alarm many a people came to his rescue. Accused persons fled away on scooter no. UP-07B – 1544. Accused Sandeep Vashisth was standing there. He too walked away into the crowd. The complainant and other persons tried to 3 chase them but to no avail. Ravindra felt unconscious, as he had sustained grievous injuries. He was taken to IDPL Hospital by Deependra Kandari and Mangal Singh Bisht but he was declared ‘brought dead’. On 28.02.1992 they had a quarrel but had terminated into compromise. Since then Sanjeev Gupta had enmity with Ravindra. Sanjeev Gupta, Sri Krishna Gupta, Sandeep Vashisth and Anil had killed his nephew. 3. Thus the role assigned to each of the accused as per FIR is that the accused persons inflicted injuries on Ravindra with concealed sword and dagger. All the accused fled away on injured Ravindra’s scooter. 4. After conducting the investigation, the Investigating Officer submitted the charge sheet against Sanjeev Gupta, Sandeep Vashisth and Anil for the offences punishable under Section 302/394 I.P.C. The charge sheet against the accused Sri Krishna Gupta was also submitted but during the course of trial he died and therefore case against Sri Krishna Gupta was abated on 02.02.2004. The said charge sheet (exhibit Ka-5) was submitted on 29.11.1992. 5. The case was committed by the Magistrate to the Court of Sessions. After giving the copies and hearing on charges, learned Addl. Sessions Judge framed the charges against the accused person for the offences punishable under Section 302 IPC read with Section 34 IPC and Section 379 IPC, to which the accused persons pleaded not guilty and claimed trial. The prosecution has examined P.W.1 Dila Ram Raturi; P.W.2 Atma Ram; 4 P.W.3 Digumbar Prasad; P.W.4 Dr. J.K. Satsangi and P.W.5 Inspector Ranveer Singh. Statements of the accused person were taken. They said that they have been falsely implicated in the case. No witness was examined in defence. 6. We have heard learned counsel for the accused, learned A.G.A. for the State and learned Amicus Curiae for the accused Anil @ Naresh and perused the lower court record. 7. The occurrence took place on 05.10.1992 at 10:45 a.m. The FIR is lodged with the police outpost IDPL, Veerbadra, Rishikesh on 05.10.1992 at 11:30 a.m. The distance between the place of occurrence and the police outpost is half kilometer. Thus there appears to be no delay in lodging the FIR. 8. The autopsy report (Exhibit Ka-2) was prepared on 05.10.1992 at 12:30 p.m. The panches were of the opinion that the death of Ravindra was occurred on account of injuries caused by sharp edged weapon. The post mortem on the body of Ravindra Raturi was conducted on 06.10.1992. Post mortem report is Exhibit Ka-3. As many as 21 ante mortem injuries had been depicted by Dr. J.K. Satsangi in the external examination of the deceased. All ante mortem injuries were in the nature of incised wounds ranging from chest, clavicle, shoulder, left arm, forearm, left hand, scapular region, right hand and one abraded contusion (multiple) on outer aspect of left forearm. 5 9. The cause of death of Ravindra was attributed to shock and haemorrhage as a result of ante mortem injuries. 10. P.W.1 Dila Ram Raturi has said that deceased Ravindra Raturi was son of his elder brother. He was a student of class X. On 05.10.1992 he along with his elder brother Atma Ram and nephew had been to A.B.P. Inter College I.D.P.L., Veerbadra, Rishikesh on a scooter no. UP-07 B – 1544. That was the last day of Durga Puja. They went to take sweets (prasad) of Durga Puja. He along with his elder brother Atma Ram went inside the school for taking prasad. His nephew Ravindra Raturi remained outside the school near the scooter. When they came out from the school after 15-20 minutes, they saw Sanjeev Gupta, Sri Krishna Gupta, Sandeep Vashisth and Anil @ Naresh near Ravindra Raturi. Sanjeev Gupta @ Sonu was inflicting blows of encased sword on the abdomen of Ravindra Raturi. Sri Krishna Gupta was inflicting blows of dagger (knife) on him. Sandeep Vashisth caught hold of Ravindra and Anil was standing there scaring public. P.W.1 Dila Ram Raturi exhorted the accused persons. Accused persons fled away on the scooter of Atma Ram. Accused Sandeep Vashisth also fled away from the scene. Yashpal Negi, Mangal Singh, Kandari and Digumbar Prasad, etc. came over there. Ravindra sustained injuries. Mangal Singh and Kandari took him to I.D.P.L. Hospital but the doctor declared him ‘brought dead’. 6 11. Regarding the motive to commit this crime, P.W.1 Dila Ram Raturi said that a quarrel had taken place within a year of this incident between them. Thereafter they entered into compromise. They became inimical to Ravindra Raturi since then. All the four accused were friends. Shri Krishan Gupta was the elder brother of Sanjeev Gupta. They reside in I.D.P.L. Sandeep Vashisth also resided in I.D.P.L. Anil belonged to Saharanpur and used to come to Sanjeev Gupta. 12. P.W.1 Dila Ram Raturi has proved written complaint (Exhibit Ka-1) on the basis of which chik FIR was lodged. This witness has also identified his signatures on autopsy report (Exhibit Ka-2). 13. In the cross-examination, P.W.1 Dila Ram Raturi has admitted that he did not write in the FIR that all the accused were inflicting injuries on Ravindra (although it is written in the FIR that the accused persons named therein were inflicting blows of concealed sword and dagger on Ravindra). There are certain facts which this witness did not remember while his cross- examination was on. It may be noted here that the occurrence took place in the year 1992 and this witness was examined on 21.11.1997 i.e. after a gap of 05 years. Everybody is not gifted with such a photogenic memory that one can remember everything by heart after a long gap. 14. P.W.1 Dila Ram Raturi was again summoned for remaining cross-examination on 21.06.2000. When he was cross-examined on behalf of Sandeep Vashisth and 7 Sanjeev Gupta, P.W.1 Dila Ram Raturi said that he did not go to hospital along with Ravindra. There were a good number of people present on the spot. He along with his brother tried to chase the assailants. The accused persons were inimical to Ravindra. A trial was initiated in the court in which this witness was acquitted. He has denied that all the four accused fled away from the spot. He has clarified that three culprits fled away on scooter and one ran away and managed to merge into the crowd. 15. It is to be noted here that there is slight deviation in the contents of FIR and oral testimony of P.W.1 Dila Ram Raturi. Whereas it is mentioned in the FIR that all the accused fled away on the scooter from the place of occurrence, this witness has said in the examination-in- chief that three accused persons viz., Sanjeev Gupta, Anil @ Naresh and Sri Krishna Gupta fled away on scooter and the fourth accused Sandeep Vashisth also ran away. In the cross-examination he has re-iterated that three persons ran away on scooter and one accused merged into the crowd. The mode of disappearance of Sandeep Vashisth has been distinguished from the others. Sandeep Vashisth has been assigned the role of catching hold of Ravindra in the FIR. 16. This witness did not lift Ravindra from the place of occurrence when he was being taken to hospital. Ravindra was lifted by Atma Ram. Bhandari took him to hospital in the scooter. It may be noted here that no question was asked on behalf of the accused Anil @ 8 Naresh in the cross examination of the informant – witness. 17. P.W.2 Atma Ram has stated that on 05.10.1992 he along with Ravindra and Dila Ram Raturi went to I.D.P.L. Inter College where the closing ceremony of Durga Puja was scheduled. They kept the scooter outside. His nephew Ravindra sat outside with his friends. When they came out of the pandal they saw that Sanjeev Gupta is inflicting blows of concealed sword/encased sword (gupti) on Ravindra. Shri Krishan Gupta was inflicting blows of dagger (knife) on Ravindra. Accused Sandeep caught hold of Ravindra and the fourth accused Anil @ Naresh was threatening public. On their raising alarm accused persons fled away from the place of occurrence on the scooter of Asha Ram (they are three brothers viz., Asha Ram, Atma Ram and Dila Ram). Ravindra was taken to hospital by Kandari and Mangal Singh on a scooter but the doctor declared him “brought dead”. He acknowledged his signatures on autopsy report (Exhibit Ka-2). The accused persons harboured grudge against Ravindra before this incident took place. 18. In his cross-examination P.W.2 Atma Ram has said that he had been to hospital on a scooter. The cross- examination of this witness took place on 05.01.2001. He did not remember as to who was the owner of the scooter in which he went to the hospital. He did not ascertain on the spot whether Ravindra is alive or dead (when anybody is injured in an incident, the endeavor of well wishers is to provide medical aid to the victim at an earliest and 9 therefore, it was natural for the witness to have taken the victim to hospital without further loss of time). First of all they tried to chase the accused. When they came back to the place of occurrence they found that Kandari and another had already taken him to hospital. Many a questions were asked in the cross-examination of this witness but these questions had hardly any connection with incident or the place of incident. The questions asked were who went to the hospital first, whether he or his elder brother; whether he knew Bhandari and Mangal Singh by name; whether he had any talks with Bhandari and Mangal Singh or not; whether he or his brother made a telephone call to police outpost; when did the police come; whether police enquired something from him or not; whether he went to the police outpost alone or along with his brother; whether the report was lodged when both the brothers reached police outpost or not, etc., etc. what difference this would have made, had this witness replied otherwise? The police station and hospital at Rishikesh are adjoining each other. Accused persons fled away on scooter. They tried to chase them. The witness chased them on foot. He did not remember as to who had chased assailants, besides him? 19. Thus, there is nothing in the cross-examination of this witness which may caste shadow of doubt on the oral testimony of this witness. He is not a chance witness. He is the most natural witness who has narrated everything. It has to be kept in mind that he was being cross-examined after a gap of approx. 08 years. 10 20. He has supported the testimony of P.W.1 Dila Ram Raturi who is also the most natural witness of the gruesome murder in which as many as 20 incised wounds had been inflicted on the person of Ravindra (since deceased). 21. So far as accused Sanjeev and Sri Krishna Gupta are concerned they have inflicted blows of encased sword and dagger. They are the perpetrators of the crime. The case against Shri Krishna Gupta has abated and nothing is being discussed against him except to the extent, it is required to narrate and appreciate the prosecution story. We will discuss the role of Sandeep Vashisth and Anil in the following paragraphs of the judgment. But let us discuss the evidence of P.W.3 Digumbar Prasad first. 22. P.W.3 Digumbar Prasad has supported the prosecution story. He is not one of the three scooter riders who were related to each other. Digumbar Prasad has said that when he was going to I.D.P.L. Inter College on 05.10.1992 to see Durga Puja and reached the gate of Inter College, he saw that three persons Sanjeev Gupta, Sandeep Vashisth and Sri Krishna Gupta were inflicting blows of dagger on Ravindra (many a people cannot differentiate between a gupti and dagger). When he raised alarm, Dila Ram and Atma Ram came rushing to the place of occurrence. Three accused took the scooter of Ravindra and ran away. Dila Ram and Atma Ram tried to chase them but to no avail. Two passers-bye took Ravindra to hospital on scooter. Later on this witness came to know that Ravindra has died. The 11 incident took place between 10:30 – 10:45 a.m. Accused Anil was present and standing there. He had stopped the public. 23. The testimony of P.W.3 Digumbar Prasad is perfectly in consonance with the testimony of earlier two eyewitnesses. P.W.1 Dila Ram has said that Anil was standing there. He was scaring the public. Sandeep Vashisth caught hold of Ravindra. All the assailants had fled away from the place of occurrence. P.W.2 Atma Ram has endorsed that Sandeep Vashisth caught hold of Ravindra Raturi and Anil was threatening the public. The slight deviation which may be noticed in the testimony of this witness is that whereas the first two witnesses assigned Sandeep Vashisth the role of catching hold, the third witness said that they were inflicting blows of dagger on Ravindra. It is a general statement. So far nothing has come out in favour of Sanjeev, Sri Krishna Gupta (abated) and Sandeep Vashisth. We will discuss the role of Anil in a short while from now. Let us peruse the cross-examination of P.W.3 Digumbar Prasad. 24. Digumbar Prasad has said in the cross- examination that he recognizes the accused persons by face. He is not aware of their parentage. He did not talk to anybody on the place of occurrence. The accused persons as well as the victim were school (college) going students. Sandeep Vashisth and others were studying in I.D.P.L. Inter College. The Investigating Officer made interrogation with him after about a fortnight. This witness did not know about other witnesses. Dila Ram 12 and Atma Ram had met him earlier at the police station, besides the day when his evidence in the court was being recorded. This witness is not aware as to who had disclosed his name as a witness. He could know about the death of Ravindra from the people. This witness has denied that the accused persons were not the students. He has also denied that he is telling a lie. 25. Thus, nothing has come out in the cross- examination of P.W.3 Digumbar Prasad. He is also not a chance witness. In a Hindu society most of the people go to offer prayers during Durga Puja and these witnesses were doing exactly the same. It is all the more unfortunate that the assailants had chosen this occasion for killing of an innocent boy. There is no infirmity in the testimony of three eyewitnesses. Their oral testimony has withstood the test of cross-examination and consequently this court, subject to appreciation of the evidence of formal witnesses, is of the opinion that the prosecution has been able to prove the case against Sanjeev Gupta and Sandeep Vashisth beyond reasonable doubt. No verdict is being given on the role of Anil right now. 26. P.W.4 Dr. J.K. Satsangi was posted as Senior Pathologist in the Coronation Hospital, Dehradun on 16.10.1992. He had found following ante mortem injuries when he conducted post mortem on the body of Ravindra: 13 1. Incised wound 2cm×1cm×chest deep on the mid of the chest-3cm below the external notch. 2. Incised wound 2cm×1cm×chest cavity deep on the mid of the chest 5 cm below the injury no.1. 3. Incised wound 2cm×1cm×chest cavity deep on the right side of the chest 8cm below the right nipple. 4. Incised wound 1.5cm×1cm×chest cavity deep on the right side of the chest 3cm outer to right nipple. 5. Incised wound 1.5cm×1cm×chest cavity deep on the left side of chest 5 cm above the left nipple. 6. Incised wound 1.5 cm×1cm×chest cavity deep in the left nipple region of the chest. 7. Incised wound 2cm×1cm×chest cavity deep on left auxiliary pit. 8. Incised wound 2cm×1cm×muscle deep on the outer half of left clavicle. 9. Incised wound 1.5cm×1cm×muscle deep on the top of the left shoulder. 10. Incised wound 4cm×1cm×muscle deep on the upper half of the left arm. 11. Incised wound 2cm×1cm×muscle deep on the mid of left arm. 12. Incised wound 2cm×1cm×muscle deep on the mid of the left forearm. 13. Incised wound 6cm×1cm×muscle deep on the dorsum of left hand. 14. Incised wound 1.5cm×1cm×muscle deep in the dorsum of left hand. 14 15. Incised wound 3cm×2cm×muscle deep on the lower end of left forearm, on its radial aspect. 16. Incised wound 1cm×0.5cm×muscle deep on the mid of left forearm on its inner surface. 17. Incised wound 1cm×0.5cm×muscle deep on left scapular region. 18. Incised wound 3cm×1cm×muscle deep on dorsum of right hand fist below the wrist. 19. Incised wound 2cm×1cm×muscle deep on the dorsum of right hand. 20. Incised wound 4cm×1cm×muscle deep on the palm aspect of right hand. 21. Multiple abraded contusions in an area of 7cm×1cm on the outer aspect of left forearm. 27. Dr. Satsangi has proved post mortem report (Exhibit Ka-3) and has attributed death of Ravindra to shock and hemorrhage as a result of ante mortem injuries. The death of Ravindra could be caused on 05.10.1992 at 10:45 a.m. by inflicting blows of concealed / encased sword and dagger (sharp edged weapons) according to the doctor. 28. P.W.5 Inspector Ranveer Singh has investigated the case and has proved site plan (Exhibit Ka-4) and charge sheet (Exhibit Ka-5). Earlier, he had taken statements of the witnesses and affected arrest of the accused persons. He recovered the scooter of the victim in abandoned condition. Many a questions were asked in his cross-examination but nothing fruitful has come out in favour of the accused / appellant except a fact of over 15 writing on paper no.1A/66 in which the numbers 12.00 have been changed to 12.10. 29. To recollect the prosecution evidence, P.W.1 Dila Ram is the lodger of FIR and uncle of deceased Ravindra. One death has taken place. The injuries are, among others, chest deep. Three accused ran away by scooter from the place of occurrence, one accused fled away otherwise. While in FIR all the accused persons have been assigned the role of inflicting blows by incased sword / dagger, later evidence has suggested that two of the accused viz., Sanjeev Gupta and Sri Krishna Gupta inflicted blows of sword (gupti) and dagger. Accused Sandeep caught hold of Ravindra and accused Anil was standing and threatening the public. There are three eyewitnesses including one independent witness. Abandoned scooter had been recovered but not from any person. Entire case is based on eyewitness account. Inquest was conducted in ambulance room in hospital. The nature of ante mortem injuries is chest deep including one on the clavicle (collar bone). There are injuries of sword on the chest. Although most of the attacks came from the left side, but the victim sustained injuries on the right side also. Gupti used in the commission of crime is concealed sword / encased sword. It is shorter in length than the sword. Sumurai is longer in length but effective in the same way. The victim sustained 21 injuries. The victim was defenceless. If the person is defenceless it will take not more than half a minute to inflict these injuries by one person. Here there were two. Three of the assailants got hold of scooter of victim. It is a co- 16 incidence. It started in a kick. Out of three eyewitnesses, two are uncles and the third one is disinterested witness. The third witness (Digamber) was neither tutored nor interested witness. He has at least discharged his civil responsibility to come to depose before the court. If one is catching hold of the accused and fleeing away either on the same scooter or otherwise, the ingredients of Section 34 IPC are established. He has also intended the murder of the deceased. The offence was also intended to have been committed by Sandeep Vashisth. He has committed the crime in order to facilitate use of gupti and dagger by Sanjeev and another. The elements of common intention are proved against Sandeep Vshisth. 30. Learned counsel for the accused Sandeep Vashisth submitted that accused / appellant Sandeep Vashisth tried to save the victim. This contention is not acceptable. Sandeep left the place either in the same scooter or fled away otherwise. It shows the signs of a guilty mind. Did he stay on the spot to save Ravindra or take him to hospital? He did not do so. He helped Sanjeev and another to facilitate use of encased sword and dagger. He shared common intention with Sanjeev and Sri Krishna Gupta. Why should the prosecution evidence be disbelieved on this count? 31. Learned counsel for Sanjeev Gupta and Sandeep Vashisth also submitted that there are variations in the testimony of eyewitnesses. Learned A.G.A. has opposed that there is none. A close scrutiny of the eyewitness account suggests that there are no material contradictions 17 in the testimony of these witnesses. The evidence of these rustic people must be understood in the background of the situation, the environment in which they live and their knowledge. They have passed the test of cross- examination successfully. 32. While in the FIR all the accused have been shown the role of assaulting deceased, the clouds of suspicion have dispelled when the witnesses came to depose. Much emphasis was laid by learned counsel for Sanjeev Vashisth on the statement of P.W.1 Dila Ram Raturi that Sanjeev Vashisth went away from the spot. Yes, he ran away but after committing the crime. His presence and common intention therefore, does not become doubtful. Who