Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 656 of 2001 Old Criminal Appeal No. 70 of 1997 Dated of Decision: 02 .06.2010 Ram Kumar …Appellant Versus State of U.P. …Respondent Present: Mr. Vivek Shukla, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. Connected with Criminal Appeal No. 640 of 2001 Old Criminal Appeal No. 431 of 1997 Bijender …Appellant Versus State of U.P. …Respondent Present: Smt. Pushpa Joshi, learned counsel for the appellant Mr. Nandan Arya, learned A.G.A. for the State. CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Nirmal Yadav, J. Abovementioned appeals are being disposed of by this common judgment as both the appeals are arising out of the same judgment and order dated 16.01.1997 passed by Additional Sessions Judge, Haridwar in Sessions Trial No. 35 of 1994. Appellants-Ram Kumar and Bijender alongwith Raj Kumar stood trial for the offences under Sections 394, 397 and 411 of the Indian Penal Code, 1860 (in short I.P.C.). The learned trial court, after taking into consideration the evidence and material facts available on record, convicted accused-Ram Kumar and Bijender for the offences under Section 394 and 397 of the I.P.C. and sentenced them for life imprisonment while acquitted them of the charges for the offence under Section 411 2 of the I.P.C. Accused-Raj Kumar has been acquitted for all the charges levelled against him. The criminal law was set in motion on the complaint (Ex. Ka-1) submitted by complainant Krishna Bali (PW-1). According to complainant, on 10th August 1993 he alongwith his brother Kisore Bali (since deceased) was going on Hero Honda Motorcycle bearing number UP-11/9233 from sector 3 BHEL Ranipur, Haridwar towards their house. When they reached near E.T. Hostel, the speed of the motorcycle slowed down due to a speed breaker. Meanwhile some bad elements, four in number, came and stopped their motorcycle. One of assailants was carrying a country made pistol and another was having a cycle chain. They started hurling abuses and snatched one H.M.T. wristwatch with black dial and steel chain from Krishna Bali (PW-1). One H.M.T. wristwatch with white dial and one purse on which ILU was written containing 50 rupees were snatched by them from Kishore Bali. One of them fired one shot from a country made pistol, which hit on the chest of Kishore Bali (PW-2). Thereafter those persons snatched their motorcycle and ran away from the spot. Both Krishna Bali (PW- 1) and Kishore Bali (PW-2) had seen and identified those persons in the light of mercury streetlights and in the light of motorcycle. The complainant first removed his brother to their house and fromwhere he was removed in Maruti Car to the Nursing Home of Dr. Tripathi. The condition of Kishore Bali (PW-2) was serious, therefore, Dr. Tripathi asked the complainant to take him to the Government Hospital. Thus Kishore Bali (PW-2) was admitted in the Government Hospital. Thereafter complainant Krishna Bali (PW-1) went to the police station and submitted written report (Ex. Ka-1) in the police station Ranipur, Haridwar, on the basis of which Chick F.I.R. 3 Ex. Ka-17 was recorded at 11:00 p.m. on the same day. G.D. report in this respect is Ex. Ka-18. The investigation was handed over to S.O. Roshan Singh (PW-10). Information with regard to the incident was flashed on the wireless sets to all the police stations. S.I. Rajesh Sharma alongwith constable Narendra Singh (PW-5) started checking the vehicles on the check barrier. Near the police chawki at about 1:15 a.m., during the intervening night of 10/11 August 1993 one motorcycle was seen coming from Roorkee side, which was directed to stop with a torchlight. However, motorcycle driver tried to escape by turning back, but they were apprehended. The person who was driving the motorcycle disclosed his name as Ram Kumar and the pillion rider disclosed his name as Bijender. The motorcycle bearing number UP-11/9233 was recovered from the possession of Ram Kumar and an H.M.T. wristwatch with white dial and steel chain was also recovered from him. An H.M.T. wristwatch with black dial and steel chain was recovered from Bijendra. Both the wristwatches were taken into possession and put into separate sealed parcel. Both the accused were directed to cover their faces. They were brought to the police station and put into lockup. Both the accused were asked to remain with muffled faces and a memo Ex. Ka-8 was prepared and G.D. report Ex. Ka-19 was also entered in this respect. Information in this respect was sent through wireless set to police station Ranipur. On receipt of the information, S.O. Roshan Singh (PW-10) came to police station Manglore. He recorded the statements of both Ram Kumar and Bijender accused and took into possession the seized articles including the motorcycle. He recorded the statement of injured Kishore Bali (PW-2) on the same day and also took into possession bloodstained clothes of the injured vide memo Ex. Ka-4). Bloodstained earth as well as simple earth were also taken into possession vide memo Ex. Ka-2. 4 Empty cartridge was recovered from the place of occurrence vide memo Ex. Ka-3. He also prepared the site plan Ex. Ka-13 of the place of occurrence. On 12th August 1993 he arrested accused Banti alias Pankaj and recorded the statements of witnesses. On 22nd August 1993 he went to Sub Jail Roorkee and recorded the statement of accused Raju alias Raj Kumar. Accused Raju alias Raj Kumar got recovered one country made pistol and a purse. On 28th August 1993 identification parade was conducted in which the witnesses identified the three accused persons, namely, Raj Kumar, Ram Kumar and Bijender. On 20th September 1993 the witnesses identified the recovered articles. On completion of the investigation, charge sheet was submitted against accused Raj Kumar, Ram Kumar and Bijender. On the basis of the evidence and material facts available on record the accused persons were charge sheeted under Section 394, 397 and 411 of the I.P.C. to which they pleaded not guilty and claimed trial. In order to prove its case prosecution produced complainant Krishna Bali (PW-1), Kishore Bali (PW-2), the injured witness. Dr. S.K. Jain (PW-3) medico legally examined injured Kishore Bali (PW-2) on 10th August 1993 at 9:10 p.m. and found following injuries. (1) Lacerated wound with partial amputation 2 c.m. x 1.5 c.m. x bone deep on upper aspect of distal phalynx of left middle finger. Bleeding fresh. X-ray advised. (2) Abraided contusion in an area of 2 c.m. x 1.5 c.m. on front and back of distal phalynx of left ring finger radish in colour. (3) Multiple abraided gun shot wound of entry in an area of 20 c.m. x 10 c.m. on right side of 5 upper chest and 10 c.m. x 6 c.m. front and inner side of arm and shoulder. Each measuring about 2.5 c.m. x 2.5 c.m. in diameter. Fresh bleeding present. No charring and blackening present. X-ray advised. (4) Lacerated gun shot wound of entry 3.5 c.m. x 2.5 c.m. x depath not probed, on inner side of upper 1/4 of right arm directing inwards, backwards and upwards. Fresh bleeding present. Blackening present around the wound. Injury nos. (1), (3) and (4) were kept under observation. The duration was fresh and X-ray was advised. Injury no. (2) was declared simple and caused by friction and hard blunt object. Duration was fresh. As per the supplementary report (Ex. Ka-6) the opinion of the doctor is reproduced below:- (i) No bony lesion was seen, however, multiple radio opaque metallic density somewhat rounded shadows, each measuring 0.2 c.m. x 0.2 c.m. (pellets) was seen in the region of axilla and chest wall. (ii) No traumatic bony lesion was seen in the chest. Lungs fields were normal, however, multiple radio opaque metallic density somewhat rounded shadows each measuring 0.2 c.m. x 0.2 c.m. (pellets) were seen on the right side of chest wall. (iii) Acuminated fracture was seen in distal phalynx of middle finger 6 with loss of bone, however, no callus was seen. Injury no. 1 is a grievous hurt while injury no. 3 and 4 are simple and caused by firearm weapon. Dr. V.K. Premi (PW-4) had conducted the X-ray of injured Kishore Bali (PW-2). He proved x-ray plate Ex. Ka-8/1 to 8/4 and his report Ex. Ka-7. Constable Narendra Singh (PW- 5) is a witness with regard to the arrest and recovery of the articles from accused Ram Kumar and Bijender and also with regard to the fact that both the accused were kept with muffled faces till they were lodged in the police station. Rati Ram (PW- 6), the Special Magistrate had conducted the identification parade of the accused in jail. Shyam Lal (PW-7) was on duty during the night of 11th August 1993 from 3:00 a.m. to 6:00 a.m. and deposed with regard to the fact that accused remained with muffled faces during this period. Similarly Deepak Kumar (PW- 12) remained on duty on 11th August 1993 from 6:00 a.m. to 9:00 a.m. He also proved through G.D. no. 8 and 12 that accused remained with muffled faces during the period he remained on duty. Raj Kumar (PW-11) remained on duty from 9:00 a.m. to 12:00 a.m. on 11th August 1993 and he proved G.D. number 14 and 16 and the fact that during the period of his duty accused remained with muffled faces. Constable Dinesh Chand (PW-8) proved that he had brought accused with muffled faces alongwith S.O. Roshan Singh (PW-10) and produced accused persons before the Chief Judicial Magistrate, Haridwar and after remand lodged them in sub jail. He proved G.D. Ex. Ka-17 and Ex. Ka-11. Suresh Pal Singh (PW-9) stated that on 11th August 1993 at 3:30 p.m. he alongwith Sub Inspector Rajesh Kumar Sharma, constable Om Pal and constable Narendra Singh (PW-5) had lodged accused Ram Kumar and Bijender algonwith the recovered articles in the police station and 7 directed them to remain with muffled faces and recovered articles were deposited in the Maalkhana. He also proved the fact that till he remained on duty their faces were not shown to any one. S.O. Roshan Singh (PW-10) is the Investigating Officer. When examined under Section 313 Cr.P.C., the accused persons pleaded false implication. The accused did not produce any evidence in defence. The trial court after going through the entire evidence available on record convicted and sentenced the accused persons as referred to paragraph-1 of the judgment. We have heard Smt. Pushpa Joshi with Mr. Vivek Shukla, learned counsel for the appellants, Mr. Nandan Arya, learned A.G.A. for the State and perused the entire material available on record. Learned A.G.A. argued that prosecution case is fully corroborated and supported by two eyewitnesses i.e. the informant Krishna Bali (PW-1) and injured Kishore Bali (PW- 2). They categorically stated that while they were going towards their house from sector 3 BHEL Ranipur, Haridwar accused appellants alongwith their other companion had stopped their motorcycle. Thereafter one of them had caused firearm injury to Kishore Bali (PW-2). They snatched their wristwatches and motorcycle. They had identified all the accused in the streetlights as well as in the light of motorcycle. Injured Kishore Bali (PW-2) stated that when he resisted the accused persons, who were snatching his motorcycle, one of the accused caused firearm injury on his left hand middle finger as well as on right side of chest. They identified both the accused during the identification parade in the jail, which was conducted by Rati 8 Ram (PW-6), the Special Magistrate. Both the witnesses had correctly identified the articles, which were recovered from the accused persons. Learned A.G.A. further argued that matter was reported to the police with promptitude. The occurrence took place at 8:00 p.m. Thereafter complainant Krishna Bali (PW-1) removed his injured brother Kishore Bali (PW-2) to a private nursing home fromwhere he took the injured to the Government Hospital where the injured was admitted. The doctor from the Government Hospital informed the police about the incident and thereafter complainant Krishna Bali (PW-1) submitted a written complaint (Ex. Ka-1) in the police station. The medical evidence further supports the prosecution case. Injured Kishore Bali (PW-2) received four injuries on his body. Out of which injuries no. 1, 3 and 4 were caused by firearm weapon. Injury no. 1 was declared to be grievous in nature. Empty cartridge was recovered from the place of occurrence, which was proved by S.O. Roshan Singh (PW-10) the Investigating Officer as well as constable Narendra Singh (PW-5). The message was flashed to all the police stations through wireless set as a result thereof the checking was conducted at all the checking barriers. During the checking appellants Ram Kumar and Bijender were arrested on the same night at 1:20 a.m. alongwith motorcycle bearing number UP- 11/9233, which was looted by the accused persons in the incident. Learned A.G.A. further argued that entire link evidence is proved with regard to the accused having been kept with muffled faces. There is no evidence that the accused remained without muffled faces or they were seen by any 9 person during the time they remained in the police custody. It is pointed out by the learned A.G.A. that during the identification parade the accused were correctly identified by the witnesses. He therefore, argued that prosecution has successfully proved the case against both the accused persons. On the other hand, learned counsel for the appellants argued that keeping in view that the incident took place in the area of BHEL at 8:00 p.m., which was only at a distance of four kilometers from the police station, but the F.I.R. has been lodged at 11:00 p.m. The complainant is an advocate and this period of three hours was used by the complainant to concoct a false story. He pointed out that the prosecution has failed to prove the delay of three hours in lodging the F.I.R. Learned counsel for the appellants further argued that the trial court has acquitted one of the co-accused Raj Kumar whereas the evidence against him is similar to the appellants rather more serious than the appellants. Learned counsel for the appellants argued that as per the prosecution case a country made pistol was recovered from accused Raj Kumar and appellant Ram Kumar is stated to be having a cycle chain. He referred to the statement of complainant Krishna Bali (PW-1) who stated that Raj Kumar was armed with country made pistol. Therefore, it is argued that there is no evidence against accused Bijender that he had caused any injury or he had snatched any articles from the complainant or his brother. None of the witnesses have attributed any specific overt act to Bijender. The only evidence against him is the recovery of one H.M.T. wristwatch and from accused Ram Kumar is the alleged recovery of one H.M.T. wristwatch and motorcycle. Learned counsel for the appellants therefore, argued that there is no 10 evidence on record against the accused persons that they had committed any offence. Learned counsel for the appellants further argued that no offence under Section 397 of the I.P.C. is made out against the appellants. It is submitted that as per the statement of injured Kishore Bali (PW-2) he could not see as to who had caused the firearm injury to him. Thus there is no evidence that present appellants had caused injury by any deadly weapon or had caused grievous hurt to Kishore Bali (PW-2) and thus the trial court had erred in holding both the accused guilty under Section 397 of the I.P.C. It has been further argued by the learned counsel for the appellants that offence under Section 394 of the I.P.C. is also not made out, as there is no evidence on record as to who had caused injuries to injured Kishore Bali (PW-2). We have carefully considered the submissions made by learned counsel for the parties and from the evidence available on record and we are of the opinion that prosecution has been able to successful in establishing that both the accused appellants alongwith their companion had waylaid and robbed both complainant Krishna Bali (PW-1) and injured Kishore Bali (PW-2) of their belongings i.e. one wristwatch each and motorcycle bearing number UP-11/9233 from Krishna Bali (PW-1) and a purse belonging to injured Kishore Bali (PW-2). It is true that the allegation with regard to the use of deadly weapon is against Raj Kumar who has since been acquitted by the trial court. We are not quite satisfied with the reasoning given by the trial court with regard to his acquittal, however, no appeal against acquittal of Raj Kumar has been preferred by the State. 11 The prosecution case mainly rests on the testimony of complainant Krishna Bali (PW-1) and his injured brother Kishore Bali (PW-2) who had received injuries in the incident. As per medical report, he received four injuries out of which injuries no. 1, 3 and 4 are stated to be caused by firearm weapon. Injuries nos. 2, 3 and 4 have been declared to be simple in nature while injury no. 1 has been declared to be grievous in nature. As per the provisions of Section 397 of the I.P.C. if, at the time of committing robbery, the offender uses any deadly weapon, or causes grievous hurt to any person, he shall be liable to punishment. In the present case as per the evidence available on record both the appellants have not used any deadly weapon or have caused grievous hurt to complainant Krishna Bali (PW- 1) or his brother Kishore Bali (PW-2) and as per the evidence available on record the firearm injury was caused by Raj Kumar who has since been acquitted and therefore, no offence under Section 397 of the I.P.C. would be made out against the accused appellants. However, offence under Section 394 of the I.P.C. is clearly made out. For reference we may refer to the provisions of Section 394 of the I.P.C., which reads as under: - “394. Voluntarily causing hurt in committing robbery.:- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which amy extended to ten years, and shall also be liable to fine.” A perusal of above provisions shows that if any person, in committing or attempting to commit robbery, voluntarily causes hurt, such person and any other person jointly concerned in committing or attempting to commit such 12 robbery, he shall be liable to punishment. From the language, it is therefore, evident that not only the person who causes hurt but an associate also would equally be liable for the mischief contemplated by the section. Though as per the evidence both the appellants have not caused any injury to injured Kishore Bali (PW-2) but his companion i.e. Raj Kumar, who has since been acquitted, is alleged to have caused grievous hurt to the injured and therefore the appellants are also equally liable to punishment for the offence punishable under Section 394 of the I.P.C. In these circumstances referred to above, both the appellants cannot be held liable for the offence punishable under Section 397 of the I.P.C. and thus they are acquitted of the charge levelled against them under Section 397 of the I.P.C. However, prosecution has successfully proved its case against both of them under Section 394 of the I.P.C. as the presence of the complainant Krishna Bali (PW-1) and his injured brother Kishore Bali (PW-2) at the time and place of occurrence has been fully established. There is positive evidence on record that the appellants had snatched and took away the belongings of the informant and injured witness. There is nothing on record that the complainant had any enmity against the accused persons, therefore, there cannot be chances of false implication. The prosecution has fully proved the arrest and recovery of articles from both the appellants during the same night i.e. just few hours after the occurrence. Both the accused appellants were correctly identified by complainant Krishna Bali (PW-1) and injured Kishore Bali (PW-2) during the identification parade and they also identified articles recovered from the accused appellants. The prosecution has also proved that the appellants remained with muffled faces till the time of their arrest and upto the time of conducting the identification parade, which was held on 28th August 1993. 13 Learned counsel for the appellants lastly argued that both the accused are the young men within the age group of 23- 25 years. They do not have any criminal history. It has also not come in the evidence that they caused any injury to injured Kishroe Bali (PW-2) and therefore, they may be given a chance for reformation. After taking into consideration all the circumstances and the evidence available on record, the appeals are partly allowed and the sentence for life imprisonment is reduced to seven years of rigorous imprisonment and also a fine of Rs. 7500/- each. Out of the recovered amount of fine, Rs. 10,000/- shall be paid to injured Kishore Bali (PW-2). In default of payment of fine, the accused appellants shall further undergo one year of rigorous imprisonment each. Appellant Bijender is in jail while appellant Ram Kumar is on bail, his bail bonds are cancelled and sureties discharged and he shall be taken into custody forthwith to serve out the sentence awarded by this Court. The office is directed to send back lower court record for compliance of the order. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG 02.06.2010