IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 77 of 2003 Shameem …Appellant Versus State …Respondent Sri Anurag Bisaria, Advocate for the appellant Sri H.C. Pujari, A.G.A. for the State/respondent With Criminal Appeal No. 75 of 2003 Akbar …Appellant Versus State …Respondent Sri J.S. Virk, Advocate for the appellant Sri H.C. Pujari, A.G.A. for the State/respondent With Criminal Appeal No. 76 of 2003 Masoom @ Furkan …Appellant Versus State …Respondent Sri J.S. Virk, Amicus Curiae for the appellant Sri H.C. Pujari, A.G.A. for the State/respondent With Criminal Appeal No. 85 of 2003 Sultan @ Saeru ...Appellant Versus State …Respondent Sri J.S. Virk, Advocate for the appellant Sri H.C. Pujari, A.G.A. for the State/respondent Dated: 14 -10-2009 Hon’ble B.C. Kandpal, J. Hon'ble B.S. Verma, J. (Delivered by Hon'ble B.C. Kandpal, J.) All these four criminal appeals under Section 374 of the Code of Criminal Procedure (for short 'Cr.P.C.') have been preferred against the common judgment and order of conviction and sentence 2 dated 19.02.2003 passed by Sessions Judge, Udham Singh Nagar, in Sessions Trial No. 57 of 2000, State vs. Sher Mohammad @ Shera and five others, under Sections 302/506 (II)/120B of the Indian Penal Code (for short 'I.P.C.'), whereby accused/appellant-Shameem was convicted for the offence under Section 302 I.P.C., while rest of the accused/appellants Akbar, Masoom @ Furkan and Sultan @ Sheru @ Sher Mohammad have been convicted for an offence under Section 302 read with Section 34 I.P.C. and each of them has been sentenced for life imprisonment. All the appellants were acquitted for the offence under Section 506 (II) I.P.C. By the impugned order the learned Sessions Judge had acquitted two other accused namely Sher Mohammad @ Shera and Mohd. Yaseen for the offence under Section 120B I.P.C. All the four convict/appellants have filed separate appeals before this Court; therefore, for the sake of convenience all the appeals are being decided by this common judgment. 2- The prosecution story, in brief, is that the complainant Ram Kishore (PW-1) son of Kallu Singh lodged a typed written report (Ext. Ka.1) with the Police Station Kotwali, Kashipur, Udham Singh Nagar alleging therein that on 05.10.1999 at about 7.00 p.m. he started from Ramnagar to Kashipur by Bus No. U.P.02A-0377 accompanied by Bharat Bhushan Juneja (PW-2), a resident of Kashipur, Udham Singh Nagar. In the same bus a relative of Bharat Bhushan namely Kishan Lal son of Nihal Chandra (a trader of fruits of Ramnagar) was also travelling and he was sitting 2-3 seats ahead of them. When the bus reached near village Dhanauri 3 at about 8.00 p.m. four persons namely Shameem son of Abdul Majeed, Masoom @ Furkan son of Iklas, Sultan @ Sheru son of Lal Mohammad and Akbar son of Abdul Majeed, residents of Kashipur, Udham Singh Nagar, armed with country made pistols, came from the back side and surrounded Kishan Lal and asked him that one Commission Agent (Arhati) was suffering great loss because of him. He (Kishan Lal) be done to death today. All those persons with intention to kill him fired shot from country made pistol at the temple (Kanpati) of Kishan Lal, with the result he got injured in a pool of blood. According to the complainant, the fire was shot by accused Shameem. After the incident all the four persons got the bus stopped terrorizing the passengers by firing in air. They also warned that if anybody tried to obstruct them, they would kill him and they made their escape good. The injured Kishan Lal was brought to the hospital at Kashipur in an injured condition. On the basis of the written report Chick F.I.R. (Ext. Ka.10) was prepared at the Police Station at 09.10 p.m. on the same night and the case was registered as Crime No. 1056/1999 under Section 307/506 I.P.C. and an entry to that effect was made in the General Diary at Report No. 66. 3- Injured Kishan Lal was given first aid at Kashipur Hospital from where he was taken to Apollo Hospital, Delhi for his treatment. He succumbed to his injuries on 17.10.1999 and death certificate was prepared vide Ext. Ka-2 showing the cause of death to be severe head injury due to gun shot leading to cardio-respiratory arrest and time of death 0.10 a.m. 4 4- S.I. Ashok Kumar (PW-5) of Police Station Sarita Vihar, Delhi wrote a letter on 6.10.1999 to the Chief Medical Officer of Apollo Hospital for recording the statement of the injured during his lifetime but the injured was not found in a position to give his statement. The letter written by the Sub- Inspector is Ext. Ka.9 on record. After the injured Kishan Lal succumbed to his injuries, S.I. Ashok Kumar (PW-5) wrote a letter to Autopsy Surgeon of AIIMS, New Delhi for conducting the autopsy on the body of the deceased vide Ext. Ka-4 on 17.10.1999 itself. The dead body of the deceased was identified by Darshan Lal, brother of the deceased Kishan Lal, at the mortuary of AIIMS Hospital. The police prepared a memo thereof vide Ext.Ka-5 on 17.10.1999 and Ext.Ka-6. 5- The autopsy on the dead body of deceased Kishan Lal Takkar was conducted on 17.10.1999 between 12.00 noon and 01.10 p.m. by Dr. Arun Kumar Agnihotri, Senior Demonstrator at AIIMS, New Delhi. The doctor found rigor motis present in face both upper and lower limbs. No signs of decomposition were noticed. Eyes and mouth was closed. The following ante mortem injuries were found on the body of the deceased Kishan Lal: (i) Entry wound- 3 c.m. X 2 c.m. with inverted margin at left side of base of occipat 10 c.m. away from temple of left ear, 6 c.m. above the neck and 11 c.m. away from left parietal eminence. Bullet piercing underneath soft tissue of scalp producing local hemotoma breaking underneath occipital bone 5 with levelled margin at inner table, as mentioned in the post mortem report. (ii) Exist wound-stitched at right side of fore head 1.5 c.m. X 1.5 c.m., 4 c.m. from lateral edge of right eyebrow, 2 c.m. from frontal hairline and 5 c.m. from the mid line. 6- In the opinion of the doctor death had taken place about 12 hours before the post mortem examination and death was caused on account of coma due to head injury resulting from close range fire arm shot, which was sufficient to cause death in the ordinary course of nature. The doctor has prepared post mortem report (Ext.Ka.13). 7- The investigation of the case was entrusted to S.I. Moin Uddin of P.S. Kashipur, Udham Singh Nagar (PW-9). The Investigating Officer prepared the site plan of the place where the fire was shot inside the bus on the identification of the complainant. The Investing Officer has shown relevant Khasra in the site plan (Ext.Ka.14). On 5.10.1999 the Investigating Officer took the bus in question in the police custody and thereafter the bus was given in the supurdugi of bus driver. He prepared memo Ext.Ka.15 to that effect. On 12.10.1999 the Investigating Officer went to the house of accused Akbar, but the accused was not found there. The Investigating Officer took search of the house and found a pant of the accused and from inside the pocket of pant he recovered a chit written in Urdu language and prepared a Fard thereof vide Ext. Ka.16. 6 8- The Investigating Officer received the post mortem examination report on 25.10.1999. Consequently, the offence against the accused was converted into Section 302 I.P.C. and the entry to that effect was made in the G.D. as report no. 29 at 10.00 a.m. at the same day vide Ext. Ka.17. During the course of investigation the Investigating Officer recorded the statement of witnesses under Section 161 Cr.P.C. and arrested all the six accused persons. After completing the investigation, the Investigating Officer submitted the charge sheet against all the six accused persons to the court of Chief Judicial Magistrate concerned. 9- The Chief Judicial Magistrate, Udham Singh Nagar committed the case of the accused to face their trial to the court of Sessions, on 10.02.2000. The Sessions Judge, Udham Singh Nagar framed charges under Section 302 read with Section 34 I.P.C. and 506 (II) I.P.C. against the four accused/appellants on 16.10.2000. The Sessions Judge also framed a charge under Section 120B I.P.C. against two other co-accused namely Sher Mohammad @ Shera and Mohd. Yaseen. The accused persons denied the charges levelled against them and claimed to be tried. 10- The prosecution in support of its case has examined as many as nine witnesses before the trial court namely PW-1 Ram Kishore and PW-2 Bharat Bhushan Juneja as witnesses of fact, PW-3 Mahesh Chandra Saxena, PW-4 Raj Kumar, PW-5 Ashok Kumar S.I. of P.S. Sarita Vihar, New Delhi, PW-6 S.I. Madan Narain Joshi of P.S. Kashipur, PW-7 Dr. Deepak Vats, Medical Officer of Apollo Hospital, 7 Delhi, PW-8 Dr. Sanjeev Lalvani who assisted Dr. Arun Kumar Agnihotri of AIIMS, New Delhi in conducting the autopsy on the dead body of the deceased and PW-9-Moin Uddin, the Investigating Officer of the case. 11- The statements of the accused persons were recorded under Section 313 Cr.P.C. In their statements the accused persons have denied the prosecution evidence led against them and pleaded their false implication on account of enmity. However, the accused appellants did not produce any evidence in their defence. 12- The learned Sessions Judge after hearing the parties and perusing the evidence led before the court below has come to the conclusion that the prosecution was successful in establishing the guilt of the accused/appellants for the offence punishable under Section 302 I.P.C. against the appellant Shameem and under Section 302/34 I.P.C. against accused/appellants against Akbar, Masoom @ Furkan and Sultan @ Sheru @ Sher Mohammad and accordingly convicted them and sentenced each of them to undergo life imprisonment vide judgment and order dated 19.02.2003. All the four accused appellants were acquitted for the charge under Section 506 (II) I.P.C. as mentioned earlier. Against the said order of conviction and sentence, all the convict/appellants have come up in appeal before this Court. 13- Heard Sri Anurag Bisaria, learned counsel for the appellant-Shameem, Sri J.S. Virk, learned counsel for rest of the appellants namely Akbar, 8 Masoom @ Furkan and Sultan, Sri H.C. Pujari, learned A.G.A. for the State and perused the record. 14- The First Information Report has been lodged promptly by Ram Kishore (PW-1). The incident had taken place on 5.10.1999 at 8.00 p.m. The F.I.R. was lodged on the same day at 21.10 p.m. Therefore, there is no chance to fabricate any cock and bull story against the accused/appellants by the complainant. The promptness in lodging the F.I.R. clearly indicates that there was no chance available with the complainant to make out a cock and bull story. The manner in which the incident had taken place and the deceased was taken to hospital straightaway from the place of occurrence by the same bus in which the occurrence had taken place and the complainant reaching to the police station leaving the injured victim in the hospital for lodging the F.I.R., makes the picture clear that the F.I.R. was lodged with all promptness and this F.I.R. on account of its promptness cannot be disbelieved. 15- As far as motive is concerned, the evidence on record indicates that in the instant case, the witnesses produced by prosecution Sri Ram Kishore PW-1 and PW-2 Bharat Bhushan, have clearly stated that the accused persons came to the deceased in the bus and uttered the following sentence: “rsjh eq>s ls ,d jkeuxj ds vk<rh dk uqdlku gks jgk gS vkt rsjk dke reke dj nsaxs] brus esa fd’kuyky dks 'kehe us mldh cka;h duiV`Vh ij xksyh ekj nhA^^ ”Thereafter, the accused Shameem shot fire at deceased and other accused 9 persons also terrorized the co-passengers sitting inside the bus with the fire arms in their hands. Both the eye-witnesses (PW-1 and PW-2) have stated that all the accused persons have come at the scene of occurrence with the firearms and they fled away from the scene of occurrence after making the fire in the air and terrorized the co-passengers of the bus. The case is based on ocular testimony of witnesses; therefore, the motive is not relevant at all. The direct evidence regarding the commission of offence in the instant case is worthy of credence and hence the question motive becomes, more or less, academic. The motive may be relevant in a case based upon circumstantial evidence only. 16- Further, it appears to us that the appellants are hired assassin and they have been hired only for the purpose of killing the deceased. The Hon'ble Apex Court in the case of Rajesh Govind Jagesha vs. State of Maharashtra, reported in (1999) 8 SCC 428, has observed that where the ocular testimony of a witness is found to be reliable, the question of motive becomes, more or less, academic. 17- The another important aspect is that the incident has occurred inside the bus and the assailants were well known to the complainant and the other witnesses. No chance of wrong identity of the assailants was there. Learned counsel for the accused/appellants has argued that place of incident appears to be doubtful for the reason that no bloodstains were found inside the bus where the occurrence is said to have been taken place. He has stated that the deceased was bleeding profusely after sustaining the injury but absence of 10 bloodstains either on the seat or on the floor of the bus makes the prosecution story doubtful and this aspect indicates that the place of incident thus appears to have been somewhere else except the bus in which the incident is alleged to have taken place. We fail to appreciate this argument advanced by learned counsel for the accused/appellants. In case, if the Investigating Officer could not collect any blood from the seat of the bus or from the floor of the bus, the prosecution case cannot be disbelieved on this count. The prosecution story also cannot be thrown out on account of latches of the Investigating Officer. The Investigating Officer although has stated in his deposition that he saw the seat on which the deceased was sitting but he could not find any blood. Merely absence of any blood on the seat on which the deceased was sitting at the time of incident or non-collection of the blood by the Investigating Officer from the floor of the bus in which incident had taken place, is not a basis for dislodging the prosecution story. 18- Learned counsel for the accused/appellants has further argued that neither the driver nor conductor of the bus nor any other co-passenger of the bus was produced by the prosecution in order to establish the prosecution case, therefore, the adverse inference can easily be drawn for disbelieving the prosecution story. We fail to appreciate the argument advanced by learned counsel for the appellants again. In the instant case, the prosecution has produced two material witnesses i.e. complainant and other witness Bharat Bhushan Juneja who is known to the deceased. Merely that one of the witnesses is in relation of the 11 deceased cannot be a ground for discarding his testimony. The witnesses are natural as they were travelling along with the deceased in the bus at the time of incident. Their presence cannot be doubted in any manner. Nothing adverse has come in their cross-examination which may suggest that either they are telling lie or their presence on the scene of occurrence is doubtful. One of the prosecution witnesses is an independent witness and he is not related with the deceased in any manner, therefore, his testimony being an independent witness cannot be thrown out. 19- The prosecution has examined Ram Kishore and Bharat Bhushan Juneja, who are the eye witnesses of the incident, as PW-1 and PW-2. Both the witnesses have deposed in their testimony that there was involvement of all the assailants in the commission of crime. According to PW-1 Ram Kishore, on 5.10.1999 at 7.00 p.m. when he was coming to Kashipur from Ramnagar in the bus. Bharat Bhushan (PW-2) and Kishan Lal, brother-in- law (Bahnoi( of Bharat Bhushan, were also sitting in the bus. When the bus reached near Dhanauri Farm and passengers began to get down from the bus, at the same time Akbar, Shameem, Sultan and Furkan came from behind and surrounded Kishan Lal. All of them were armed with country made pistols. They said that due to him (deceased) one businessman (Arahati) of Ramnagar is suffering loss. At the same time, Shameem shot a fire on the temple (Kanpati) of left ear. After firing assailants got the bus stopped and fled away by extending threat to the passengers for dire consequences by firing in air. The informant and others brought 12 Kishan Lal to the hospital by same bus in injured condition. PW-2 Bharat Bhushan, who is an independent witness of the incident, has given the same version before the trial court. The testimony of PW-2 Bharat Bhushan Juneja being an independent witness cannot be discarded. 20- Further, the medical evidence corroborates the ocular evidence in the case. PW-1 and PW-2 Ram Kihsore and Bharat Bhushan Juneja respectively, the eye witnesses of the case, have narrated that the bullet was fired by putting the country made pistol on the left temple (kanpati) of the deceased. This version of the eye witnesses is fully corroborated by PW-8 Dr. Sanjeev Lalwani, who has deposed that there was firearm wound on the back side of the head of the deceased. 21- As far as involvement of other three accused persons is concerned, Sri J.S. Virk, learned counsel for accused/appellants Akbar, Masoom @ Furkan and Sultan, has submitted that these persons in fact have not attributed any active role in the commission of offence. The role which has been attributed for firing at the deceased is with accused/appellant Shameem, hence, the remaining accused/appellants are entitled for benefit of doubt. 22- The argument advanced by learned counsel for remaining accused/appellants Akbar, Masoom @ Furkan and Sultan, does not carry any force in view of the fact that four accused persons including accused/appellant Shameem appeared at the spot with firearms in their hands. Their intention to kill Kishan Lal is quite clear on the basis of testimony of 13 the eye witnesses. In attracting the provisions of Section 34 I.P.C., no premeditation or previous meeting of mind is necessary. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the accused persons. No direct evidence of common intention is necessary. The Hon’ble Apex Court in a case of Rajesh Govind Jagesha vs. State of Maharashtra (supra) has categorically observed that “for the purposes of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. It is to be seen that there is pre-determined mind of the accused which shows that accused persons had come with the intention to kill the deceased.” 23- In the instant case, the evidence clearly shows that all the four accused/appellants had prior meeting of mind which unfolded during the course of occurrence, as after Kishan Lal was shot by accused Shameem, rest of the accused/appellants fired in air in order to terrorize the co-passengers of the bus and they also scolded the passengers of the bus not to follow them, otherwise all of them shall face dire consequences. 24- The presence and act of all the accused persons indicate their pre-determined mind to kill the deceased. Therefore, we are of the view that the trial court has rightly convicted other three accused persons namely Akbar, Masoom @ Furkan and Sultan, under Section 302/34 I.P.C. Their presence 14 and the act done by them during the course of incident make the picture crystal clear that they actively participated in the commission of crime. 25- For the reasons stated above, we do not find any merit in these appeals. The appeals are dismissed. The judgment and order dated 19.02.2003 passed by the trial court thereby convicting and sentencing the accused/appellants, needs no interference and is accordingly confirmed. The appellants, Akbar and Sultan @ Saeru are on bail. Their bail bonds are cancelled and sureties are discharged. Let them be taken into custody in order to serve out the sentence. Appellants Shameem and Masoom @ Furkan are already in jail. They shall remain in jail in order to serve out the sentence. 26- Let a copy of this judgment be placed in the files of Criminal Appeal Nos. 75/2003, 76/2003 and 85/2003. (B.S. Verma, J.) (B.C. Kandpal, J.) SP