IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 99 of 2010 Saeed S/o Shareef R/o Village Akbarpur Dhadeki P.S. Manglaur, District Haridwar. ...…………. Appellant (in jail) Versus State of Uttarakhand ...…………. Respondent Along With Criminal Appeal No. 141 of 2010 Abad S/o Saeed R/o Village Akbarpur Dhadheki P.S. Manglour, District Haridwar. ...…………. Appellant (in jail) Versus State of Uttarakhand ...…………. Respondent 2 Mr K.S. Verma, Advocate, with Mr. Pramod Tiwari, Advocate, present for the appellants. Mr. Amit Bhatt, Addl. Government Advocate, present for the State. Mr. A.V. Pundir, Advocate, present for the complainant. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Hon. Prafulla C. Pant, J. (oral) Both these appeals, are directed against the judgment and order dated 07.05.2010 / 12.05.2010, passed by Addl. Sessions Judge, Roorkee, in Sessions Trial No. 83 of 2009 and Sessions Trial No. 84 of 2009, whereby accused / appellants Abad and Saeed have been convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), and each one of them has been sentenced to imprisonment for life and directed to pay fine of ` 5,000/-. Accused / appellant Abad has been further convicted under Section 25 / 4 of Arms Act, 1959, and sentenced to rigorous imprisonment for a period of three years and directed to pay fine of ` 500/-. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 12.11.2008, at about 05:30 P.M., Irfan (deceased), in the village Akbarpur Dhadheki, within the limits of police station Kotwali Manglour, was going to buy a 3 bulb. At that point of time accused Saeed and Abad along with Mansoor (not chargesheeted) came out from their house, and intercepted Irfan. Accused / appellant Saeed caught hold of Irfan, and accused / appellant Abad inflicted knife blow on the chest of the deceased. After the incident, accused / appellants ran away from the scene of occurrence. The incident was witnessed by P.W. 1 Suleman (brother of the deceased) and P.W. 2 Saeed S/o Manjoora, and one Munsab (not examined). P.W. 1 Suleman gave first information report (Ext. A – 1) at police station Manglour on the very day (12.11.2008), at 09:00 P.M., on the basis of which Crime No. 473 of 2008 was registered at the police station, relating to offence punishable under Section 302 of I.P.C. against the accused / appellants Abad, Saeed and Mansoor (not chargesheeted). The investigation was taken up by P.W. 10 Sub Inspector Saran Singh Verma. The dead body of Irfan was taken by the police to the nearby hospital, where inquest report (Ext. A –2) was prepared by P.W. 6 Sub Inspector Devendra Singh Rawat in the presence of P.W. 3 Munfait and others, on 13.11.2008, at about 10:30 A.M. Police also got prepared sketch of the dead body (Ext. A –6), police form No. 13 (Ext. A –7), letter to the Chief Medical Officer (Ext. A –8), sample seal (Ext. A –9), and sent the dead body in sealed condition for postmortem examination. P.W. 4 Dr. S.N. Singh of Civil Hospital Roorkee, conducted postmortem examination on the dead body of Irfan on 13.11.2008, 4 at about 02:00 P.M., and prepared autopsy report (Ext. A –3). He recorded an incised wound on the left side of chest of the deceased. The Medical Officer opined that the deceased had died of shock and haemorrhage due to ante mortem chest injury. During investigation accused Abad was arrested by P.W. 7 Incharge Inspector Govind Singh Rawat on 20th of November 2008, and on pointing out of accused Abad, recovery of knife used in the crime was made. Since the length of the knife, said to have been recovered, was beyond the prescribed limit, a Crime No. 541 of 2008 was registered, in respect of offence punishable under Section 25 / 4 of Arms Act, against accused Abad, and the same was separately investigated. After interrogating the witnesses, and on completion of investigation a charge sheet (Ext. A –21) was filed by the Investigating Officer against the accused / appellants Abad and Saeed for their trial, in respect of offence punishable under Section 302 of I.P.C. A separate charge sheet (Ext. A – 23) was filed against accused Abad for his trial, in respect of offence punishable under Section 25 / 4 of Arms Act. 4) Judicial Magistrate, Roorkee, on receipt of the charge sheets, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the cases to the court of Sessions for trial. On 06.05.2009, after hearing the parties, the trial court framed charge of offence 5 punishable under Section 302 read with Section 34 of I.P.C. against the accused / appellants Abad and Saeed. [Separate charge appears to have been framed against the accused / appellant Abad, in respect of offence punishable under Section 25 / 4 of Arms Act]. Both the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Suleman (informant and eyewitness), P.W. 2 Saeed S/o Manjoora (another eyewitness), P.W. 3 Munfait (in whose presence inquest report was prepared), P.W. 4 Dr. S.N. Singh (who conducted the postmortem examination); P.W. 5 Constable Vipin Kumar Sharma (who prepared check report relating to crime No. 473 of 2008); P.W. 6 Sub Inspector Devendra Singh Rawat (who prepared the inquest report); P.W. 7 Incharge Inspector Govind Singh Rawat (who arrested the accused and got recovered knife on pointing out of the accused); P.W. 8 Sub Inspector Kailash Chandra Bhatt (who also witnessed the recovery of knife), P.W. 9 Head Constable Devendra Kumar Yadav (who prepared check report in respect of crime No. 541 of 2008, relating to offence punishable under Section 25 / 4 of Arms Act); P.W. 10 Sub Inspector Saran Singh Verma (who investigated the case relating to offence punishable under Section 302 of I.P.C.); and P.W. 11 Sub Inspector Prem Prakash (who investigated the crime relating to offence punishable under Section 25 / 4 of Arms Act). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in 6 reply to which both the accused alleged that they have been falsely implicated in the crime. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that accused / appellants Abad and Saeed were found guilty of charge of offence punishable under Section 302 read with Section 34 of I.P.C. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life and directed to pay fine of ` 5,000/-. Convict Abad was further convicted under Section 25 / 4 of Arms Act, and sentenced to rigorous imprisonment for a period of three years and directed to pay fine of ` 500/-. Aggrieved by said judgment and order dated 07.05.2010 / 12.05.2010, passed by Addl. Sessions Judge, Roorkee, in S.T. No. 83 of 2009 (arising out of Crime No. 473 of 2008), and S.T. No. 84 of 2009 (arising out of Crime No. 541 of 2008), these two appeals are filed by the convicts. 5) Before further discussion, we think it just and proper to mention here the ante mortem injury found on the body of Irfan (deceased) by P.W. 4 Dr. S.N. Singh on 13.11.2008, who prepared the autopsy report (Ext. A –3). The autopsy report shows following ante mortem injury found on the dead body of Irfan: “ i) 2 X 0.8 cm elliptical oblique incised wound trit anterior aspect of left side of chest 4 cm below left nipple corresponding to rib 8th and rib 9th. 7 Serum fluid coming out. Probing possible deeply.” On internal examination pericardium showed 3 X 2 cm elliptical hole. In the heart, 2 X 0.8 cm elliptical wound incised oblique was found with clear margins, anterior aspect of left ventricle, passing through with cavity. The Medical Officer opined that the deceased had died of shock and haemorrhage due to ante mortem chest injury. From the medical evidence on record it is established that Irfan died a homicidal death. Now, this court has to examine whether, the accused / appellants Abad and Saeed with common intention committed murder of Irfan as suggested by the prosecution, or not. It is further required to be seen whether the accused Abad is guilty of charge of offence punishable under Section 25 / 4 of Arms Act, 1959, or not. 6) P.W. 1 Suleman has stated that on 12.11.2008, he had gone to buy kerosene oil from the ration shop of Mursleen, and at that point of time Irfan and Abad were quarrelling over some matter. The villagers mediated and the two left the place. Later, on the very day (12.11.2008), at about 05:30 P.M., when Irfan was going towards the shop of Aslam, accused / appellants Saeed and Abad came out from their house. According to this witness, who is brother of the deceased, Saeed 8 caught hold of Irfan, and accused / appellant Abad stabbed him (Irfan) with a knife. It is further narrated by P.W. 1 Suleman that Irfan after receiving the injury fell down near the house of Safique, and died. The witness further proved that on the very day, he lodged first information report (Ext A –1). 7) From the statement of this witness it appears that he lodged first information report not only against Abad, who inflicted the knife blow, but also against his father Saeed and one Mansoor. He has further stated that he named Mansoor in the first information report inadvertently, as he caught hold of the deceased, probably to save him. Though, the statement of P.W. 1 Suleman so far as role of accused / appellant Abad is concerned, gets corroborated from the medical evidence on record, but as against the accused / appellant Saeed it cannot be ruled out that he (Saeed) being father of Abad was falsely implicated due to enmity. As far as role of commission of crime by accused / appellant Abad is concerned, to that extent the testimony of P.W. 1 Suleman and P.W. 2 Saeed S/o Manjoora appears to be natural and supported by the medical report already discussed above. But, false implication of accused / appellant Saeed, who is father of Abad, cannot be ruled out for the reason that the first information report discloses that on 12.11.2008, before the incident took place, Irfan had a quarrel with Mansoor S/o Ali Sher (not chargesheeted). As such, for a quarrel between Mansoor and Irfan it is not natural on the part of 9 Saeed to have come out to hold Irfan in order to make Abad inflict the knife blow. 8) So far as the recovery of knife used in the crime on pointing out of accused / appellant Abad is concerned, P.W. 7 Govind Singh Rawat (Incharge Inspector) has stated that on 20th November 2008, after arrest of accused / appellant Abad, he (accused) told that he can get recovered the knife concealed by him in a sugarcane field. The witness has further stated that the recovery of knife was made on the pointing out of the accused. The statement of P.W. 7 Govind Singh Rawat (Incharge Inspector) gets corroboration from the statement of P.W. 8 Sub Inspector Kailash Chandra Bhatt. P.W. 9 Head Constable Devendra Kumar Yadav has stated that on 20th of November 2008, after the recovery of knife, Crime No. 541 of 2008 was registered, relating to offence punishable under Section 25 / 4 of Arms Act against accused / appellant Abad. 9) Having re-examined the entire evidence on record, and for the reasons as discussed above, we find that the trial court has rightly found that charge of offence punishable under Section 302 of I.P.C. is proved against the accused / appellant Abad. We agree also with the finding that recovery of knife was made on pointing out of accused which further corroborates the prosecution story, and the trial court has committed no error of law in convicting accused / appellant Abad under Section 302 and under Section 25 / 4 of Arms Act. However, so far 10 as accused / appellant Saeed is concerned, on scrutiny of evidence, we find that it cannot be said for the reasons already mentioned by us in this judgment that the charge of offence punishable under Section 302 read with Section 34 of I.P.C. is proved against said accused beyond reasonable doubt. In our opinion, he (Saeed) is entitled to the benefit of reasonable doubt, and cannot be convicted. 10) Therefore, Criminal Appeal No. 99 of 2010, is allowed. The conviction and sentence recorded by the trial court against accused / appellant Saeed in respect of offence punishable under Section 302 / 34 of I.P.C., is set aside. He is in jail. He shall be set at liberty forthwith, if not required in connection with any other crime. However, the Criminal Appeal No. 141 of 2010, filed by accused / appellant Abad is dismissed. Conviction and sentence recorded against accused / appellant Abad, relating to offence punishable under Section 302 of I.P.C., and one punishable under Section 25 / 4 of Arms Act, is affirmed. Let a copy of this judgment be sent to the Superintendent of jail concerned. The lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. April 08, 2011. H. Negi 11