IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1641 of 2001 (Old No. 140 of 1996) Bijendra S/o Sameru R/o Ranimazra P.S. Pathri, District Haridwar ……….Appellant (In Jail) Versus State of U.P. (now State of Uttarakhand) …………Respondent Shri Parikshit Saini, Advocate, present for the appellant. Shri M.A. Khan, Brief Holder, present for the state. Hon’ble Prafulla C. Pant, J. This appeal , preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C) is directed against the judgment and order dated 02.01.1996 passed by Ist Additional Sessions Judge, Haridwar, in Sessions Trial No. 101 of 1990 whereby accused/appellant Bijendra has been convicted under section 307 read with section 34 of Indian Penal Code, 1860 (for short I.P.C.), and -2- sentenced to rigorous imprisonment for a period of ten years. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 05.11.1989, P.W. 4 Sub-Inspector Gajram Singh of Police Station Pathri alongwith P.W.1 Constable Meer Singh, was going on a motor-cycle, on patrol duty. At about 6:00 P.M in village Badshahpur, the policemen got the information that three miscreants armed with illegal weapons have proceeded towards the crusher . On this, the two policemen proceeded towards that side. At about 6:15 P.M they saw three miscreants namely accused/appellant Bijendra, Co-accused Kehar Singh, and Bona were going together towards the crusher. On seeing them they (policemen) asked them to stop but the three fired at the policemen on which the fire arm injury was suffered to P.W. 4 Sub-Inspector Gajram Singh who fell down from the motor-cycle. Meanwhile, when the firing was on from the side of the accused, P.W. 1 Constable Meer Singh had already got down from the motor- -3- cycle. After the incident, P.W.1 Meer Singh chased the accused and could get catch hold of co-accused Kehar Singh , but he (Kehar Singh) succeeded in getting himself freed, and escaped. A Shawl, a pair of hawai chappal of the accused Kehar Singh were left at the place of incident. Sub-Inspector Gajram Singh was immediately taken to H.M.G. Hospital, Haridwar. A first information report (Ex. A1) was lodged by P.W. 1 Meer Singh at Police Station Pathri, at 18:57 hours (6:57 P.M.), on 05.11.1989. On the basis of said report crime no. 124 of 1989, was registered against the three accused Bijendra (present appellant), Kehar Singh (since deceased) and Bona (since deceased). The investigation was taken up by Sub-Inspector Suresh Chand Sengar, (P.W.5). Meanwhile fire arm injury on the person Gajram Singh (injured) was inspected by P.W.2 Dr. O.P. Sharma at 7:10 P.M., on 05.11.1989 who prepared injury report (Ex. A2). P.W.3 Dr. Vipin Kumar Premi conducted X-ray and prepared X- ray report and detected a bullet inside the body of the injured. After interrogating witnesses, inspecting spot, and completion of investigation P.W. 5 S.C. Sengar, Investigating Officer, submitted charge sheet (Ex.A8) against all the -4- three accused namely Bijendra, Kehar Singh, and Bona for their trial in respect of offence punishable under section 307 I.P.C. 4. The Magistrate, on receipt of the charge sheet, appears to have committed the case to the court of Sessions for trial, after giving necessary copies to the accused as required under section 207 of Cr.P.C.. Additional Sessions Judge, Haridwar, on 09.12.1991, after hearing the parties, framed charge of offence punishable under section 307 read with section 34 of I.P.C., against accused/ appellant Kehar Singh and Bijendra who pleaded not guilty and claimed to be tried. (Since accused Bona had meanwhile died, the trial against him stood abated). On behlaf of the prosecution, P.W.1 Meer Singh (eye witness), P.W.2 Dr. O.P. Sharma, P.W.3 Dr. Vipin Kumar Premi, P.W.4 Sub-Inspector Gajram (injured) and P.W.5 S.C. Sengar (Investigating Officer) were examined. The oral and documentary evidence were put to the accused/appellant Bijendra under section 313 of Cr.P.C., who alleged evidence adduced against him was false. However, no evidence in defence was given. (Co-accused Kehar Singh meanwhile -5- died as such case as against him after separation also got abated. After hearing the parties, the trial court found accused Bijendra guilty of charge of offence punishable under section 307 read with section 34 I.P.C. After hearing on sentence, the convict was sentenced to undergo rigorous imprisonment for a period of ten years. Aggrieved by said judgment and order dated 02.01.1996, passed by Ist Additional Sessions Judge, Haridwar, in Sessions Trial No. 101 of 1990, the convict (Bijendra) filed this appeal before Allahabad High Court, on 29.01.1996, where it was admitted on 05.02.1996. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal. 5. Before further discussion, this Court thinks it just and proper to mention the fire arm injury found on the person of Sub-Inspector Gajram Singh by P.W. 2 Dr. O.P. Sharma on 05.11.1989 at 7:10 P.M., which is recorded in injury report (Ex. A2). The said injury is being reproduced below:- “Fire arm wound of entry 1cm x -6- 1cmx penetrative deep post auxiliary line17 cm behind left nipple at 3 O'clock position surrounded by multiple circular abrasion in an area of 17.00cmx9cm of diameter 0.1cm. No blackening and no charring. Abrasion red in colour(on left side chest). Wound bleeding. Opinion:- injury caused by fire arm kept under observation X-ray advised multiple abrasion caused by gun powder, injury is fresh.” 6. P.W.3 Vipin Kumar Premi has stated that he got X-ray done of the chest of Sub-Inspector Gajram Singh, and found that X-ray film showing a bullet having size 3.3cmx.09cm. Said Medical Officer has stated that he prepared X-ray report (Ex. A3) on 06.11.1989. The report of the P.W.3 Dr. vipin Kumar Premi corroborates the report of P.W.2 Dr. O.P. Sharma. 7. Now the question before this Court is, as to who caused the aforesaid injury. P.W.4 Sub- -7- Inspector Gajram Singh has stated on oath before the trial court that on 05.11.1983 he was posted as Station Officer at Police Station Pathri. He has further stated that on that day he was on patrol duty on motor cycle with Constable Meer Singh (P.W.1). The witness further states that at about 6:00P.M., when he reached near village Badshahpur, he got information that three persons armed with illegal weapons had gone towards the crusher. P.W.4 Gajram Singh, further stated that on receiving information he alongwith Meer Singh proceeded on motor cycle towards the crusher. At about 6:15 P.M., he saw three persons near the crusher who were asked by the police officer to stop. However, the three miscreants started firing at the policemen. P.W. 5 Gajram Singh further states that he suffered a fire arm injury and fell down from the motor cycle. 8. The above statement of P.W.4 Gajram Singh, not only corroborated from the medical evidence, already discussed above, but also from the statement of the P.W.1 Constable Meer Singh who was accompanying him at the time of the incident. P.W.2 Constable Meer Singh has also -8- narrated the same story as narrated by P.W. 4 Gajram Singh. 9. Having reassessed the evidence on record, this Court does not find any error of law committed by the trial court in holding accused/appellant Bijendra guilty of charge of offence punishable under section 307 read with section 34 of I.P.C. 10. Learned counsel for the appellant argued that the accused/appellant cannot be said to have common intention to kill the policemen, as there is no evidence of prior meeting of mind on the part of the appellant with the co-accused for committing the crime. Had it been a case that only 1 or other two accused fired shot on the appellant , it could have been said that there was no prior meeting of mind on the part of the appellant with other co-accused. But the eye witnesses have stated that all the three fired at them but only one bullet hit P.W.4 Gajram Singh. That being so, there should be no hesitation in holding that the three had common intention to commit the offence punishable under section 307 I.P.C. In the above -9- circumstances, as far as conviction of the appellant is concerned, there appears no illegality committed by the trial court. 11. However, on the point of sentence, this Court agrees with the submissions of the learned counsel for the appellant that the period already spent by the appellant in jail during investigation, trial and appeal, if awarded, meets the ends of justice. On examination of the lower court record, this Court finds that the appellant Bijendra had surrendered before the trial court on 09.11.1989 and remained in jail till 21.05.1990, before he was granted bail during trial. Thereafter again he was arrested on 16.03.1994 during trial as he could not appear on one of the dates fixed in the trial. Thereafter he continued in jail till the conclusion of the trial. He could be released on bail only after Allahabad High Court directed to release him on bail on 05.02.1996. As such, for a period more than two years and five months, the appellant had been in jail. Considering the said period spent in jail, this Court is of the view that if the period of sentence is reduced to the period already undergone, it would meet the ends of justice. -10- Accordingly this appeal is dismissed, so far as it relates to the conviction of the appellant, recorded by the trial court under section 307 read with section 34 I.P.C.. However, the appeal is partly allowed so far as the sentence awarded by the trial court. The appellant is sentenced to the period already undergone, as mentioned above. With this modification in the sentence, this appeal stands disposed of. Appellant is on bail. He need not to surrender. Registry is directed to send back the lower court record to the trial court. (Prafulla C. Pant, J.) Dt. 19.07.2010 Parul