1 HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 42 of 2003 Kamil ……Appellant Versus State of Uttarakhand …… Respondent With Criminal Appeal No. 43 of 2003 Dilshad ……Appellant Versus State of Uttarakhand …… Respondent With Criminal Appeal No. 44 of 2003 Tasleem ……Appellant Versus State of Uttarakhand …… Respondent Mr. Rajendra Singh Advocate with Mr. Pramod Tiwari, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. for respondent/State. JUDGMENT Hon’ble J.C.S. Rawat, J. Since the above three appeals have arisen out of the common judgment and order dated 24.01.2003 passed by 1st F.T.C./Additional Sessions Judge, Haridwar in S.T. No. 374 of 2000, therefore, these appeals are being disposed of together by this common judgment. These appeals have been preferred against the aforesaid impugned judgment and order whereby the accused/appellants Kamil, Dilshad and Tasleem have been convicted u/s 307/34 and 342/34 I.P.C. The accused Kamil was sentenced to undergo 10 years rigorous imprisonment u/s 307/34 I.P.C. whereas the accused Dilshad and Tasleem were sentenced to undergo 7 years R.I. u/s 307/34 I.P.C. respectively. The accused/appellants were 2 further convicted and sentenced to undergo three months R.I. u/s 342/34 I.P.C. It was further directed that both the sentences would run concurrently. 2. Brief facts of the case are that a report (Ex.Ka.1) was lodged by Smt. Sushila Devi, mother of the injured Brijesh Kumar Singh on 27/06/2000 at about 0010 hrs. in the police station Kotwali Roorkee, Haridwar alleging therein that on 23/06/2000 her son Brijesh Kumar Singh who was employed in B.S.F. Jalandhar was coming to his village Bhangari on leave. When he reached in his village, he saw accused/appellant Kamil and other persons gambling on the road. He objected on the gambling and asked the accused/appellants not to gamble in between the road. Thereafter, the accused/appellants hurled abuses upon him but her son Brijesh Kumar Singh came to his house without protesting the accused/appellants. It was further alleged in the F.I.R. that on 26/06/2000 at about 8:30 p.m. her son Brijesh Kumar Singh started from his house to Roorkee Railway station to board on the train to attend his duties at Jalandhar. When he reached before the house of accused/appellant Kamil, the accused/appellants Kamil, Dilshad and Tasleem, all of a sudden, emerged before him. The accused/appellant Kamil was having country made pistol on his hand and he started assaulting her son by the butt of the said country made pistol. The accused/appellant Tasleem was having hammer on his hand and he started assaulting the injured by the hammer. When the said incident was communicated to the informant, she immediately rushed to the place of the incident and found that her son injured Brijesh Kumar Singh was taken inside the room of accused/appellant Kamil and the accused/appellants were 3 assaulted the injured Brijesh Kumar Singh. Her son, injured Brijesh Kumar Singh, narrated the incident to her. She requested the accused/appellants to release her son but they did not pay any heed to her request. Smt. Gulsana, the landord of the informant also reached at the spot alongwith the informant. When the injured was not released by the accused/appellants, they went to the police station where a report was scribe by the wife of the injured Smt. Binda Singh and the same was lodged by the informant Smt. Sushila Devi. Thereafter, the police reached at the spot; recovered the country made pistol alongwith six live cartridges; and took the injured to the police station. The matter was investigated and chargesheet was submitted after completion of the investigation against the accused/appellants. 3. After submission of chargesheet, the accused/appellants were committed to the court of Sessions for trial and the trial court framed charges u/s 307/34, 342 and 506 I.P.C. against the accused/appellants. The accused/appellants denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined as many as eight witnesses. Brijesh Kumar Singh PW1 is the injured witness who has narrated the incident. Smt. Sushila Devi PW2 is the mother of the injured, an eyewitness to some extent, who has lodged the report in the police station. Smt. Binda Singh PW3 is the wife of the injured Brijesh Kumar Singh who has scribed the report. Dr. Mange Ram Malik PW4 and Dr. Yogesh Kumar PW5 are the Medical Officers who have examined the injured. Smt. Gulsana PW6 is the landlord of the injured and the eyewitness to some extent of the incident. Shri Nautan Das PW7 is the Sub-Inspector who has 4 prepared the Chick F.I.R. and made necessary entries in the G.D. Shri Harish Chandra Saxena PW8 is the investigating officer of this case who has submitted the chargesheet against the accused/appellants. 5. The accused-appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have further stated that the police have implicated them falsely in this case. They have further stated that they have inimical terms with Smt. Gulsana and she being the landlord of the injured, false evidence has been given against them. Accused/appellant Kamil has further stated in his statement recorded u/s 313 Cr.P.C. that on 26/06/2000 he was sitting in his house alongwith Tasleem and Dilshad. The injured Brijesh came there; called him out; and suddenly started firing upon him. Thereafter, he caught him and handed over to the police. 6. The accused/appellants Kamil appeared as DW1 and the defence also examined Nayeen as DW2 in support of their defence. 7. The learned Addl. Sessions Judge after appreciation of the evidence and hearing the parties convicted the accused/appellants and sentenced them as indicated above. 8. I have heard Mr. Rajendra Singh, Advocate with Mr. Pramod Tiwari, Advocate for the appellants; and Mr. Amit Bhatt, Addl. G.A. for respondent/State; and perused the record. 5 9. It is not disputed that the injured received the injuries on 26/06/2000 at about 8:30 p.m. on the place of incident. The prosecution has adduced the evidence of Dr. Mange Ram Malik PW4 who had examined the injured on 27/06/2000 at about 1:15 p.m. and found the following injuries on his person:- 1. Contused swelling 3.0 cm. x 2.0 cm. on left side forehead 4.0 cm. above eye brow. 2. Contused swelling 3.0 cm. x 3.0 cm. on left side head just behind left ear. 3. Abraded contused swelling 3.5 cm. x 2.0 cm. over right side forehead just above eyebrow. 4. Contused swelling 3.0cm.x2.5 cm. on right side face 2 cm. lateral to outer angle of right eye. 5. Abraded contusion right side face 2.0 cm. x 1.5 cm. 2.0 cm. lateral to left eye right angle of mouth. 6. Contusion 3.5 cm. x 2.5 cm. bridge of nose. 7. Abraded contusion 5.0 cm. x 3.0 cm. on left side face just below left eye. 8. Contused swelling 5.0 cm. x 3.0 cm. on upper lip. 9. Abraded swelling 4.0 cm. x 2.5 cm. on lower lip left half. 10. Contused swelling 9.0 cm. x 5.0 cm. on left side face over lower jaw. KUO. 11. Contused swelling 8.0 cm. x 6.0 cm. on left side neck 5.0 cm. below left ear. KUO. 12. Contused swelling 7.0 cm. x 5.0 cm. on upper aspect of left shoulder joint KUO. 13. Contusion 10 cm. x 5 cm outer aspect of left upper arm, deltoid region. 14. Multiple contusion over an area of 42.0 cm. x 2.5 cm. on left side back. On supra scapular, scapular and infrascapular region largest measuring 17.0 cm. x 3.0 cm. and smallest 5.0 cm. x 2.5 cm. KUO. 15. Multiple contusion over an area of 25 cm. x 18 cm. on right side back over back of right shoulder suprascapular, scapular and infrascapular region, largest measures 12.0 cm. x 3.0 cm. KUO. 16. Multiple abraded contusion over an area of 12.0 cm. x 7.0 cm. from of left shoulder and adjoining area of left side chest. 6 17. Contusion 5.0cm. x 2.5 cm. on back of left elbow. 18. Abraded contused swelling 14.0 cm x 9.0 cm. over back of left forearm lower part. KUO. 19. Contusion 6.0 cm x 4.0 cm. on back of side forearm middle part. 20. Contusion 7.0 cm. x 3.0 cm on outer aspect of left thigh middle part. 21. Contusion 5.0 cm. x 3.0 cm. on outer aspect of left thigh 5.0 cm. below injury No.20. 22. Contused swelling 5.0 cm. x 4.0 cm. on outer aspect of left knee joint. 23. Contused swelling 6.0 cm. x 4.0 cm on front of right leg upper half. 24. Contused swelling 9.0 cm. x 6.0 cm. on outer aspect of right ankle joint. KUO 25. Contused swelling 3.0 cm. x 3.0 cm. on outer aspect of left ankle joint. The doctor has opined that the injuries could have been caused by hard blunt object and the injuries were fresh in duration. The doctor has kept injury Nos. 10, 11, 12, 14, 15 and 24 under observation. The injured was referred to X-ray for the said injuries and Dr. Yogesh Kumar PW5 conducted the X-ray of the said injures and found the fracture on the left side of the ankle joint (injury No.24). According to Dr. Mange Ram Malik PW4, the injury No.24 was grievous in nature whereas rest of the injuries were simple in nature. 10. The prosecution has also led the oral evidence of injured Brijesh Kumar Singh PW1, Smt. Sushila Devi PW2 and Smt. Gulsana PW6 who have stated in their evidence that the injured received the injuries on 26/06/2000 at about 8:30 p.m. The defence has not disputed the incident at the alleged time and place but only disputed the manner of the incident as alleged by the prosecution. The accused/appellants have also filed report Ex.Kha.-1 which 7 reveals that some scuffle took place and the injured sustained the injuries at the time and place of the incident. The evidence of accused/appellants Kamil DW1 and Nayeen DW2 also gives credence to the above fact. In view of the above, it is amply established by the evidence that the injured sustained the injuries on his person on 26/06/2000 at about 8:00 p.m. It is also not disputed that the injured was kept in the house of accused/appellant Kamil till the police reached at the spot. The prosecution evidence, defence evidence and the documents filed on behalf of the parties leads to take inference that the injured sustained the injuries at the place of incident and thereafter he was taken by the police from the place of the incident. 11. Now, I have to examine who is responsible for causing the injuries on the person of the injured. The prosecution in support of its case examined the injured Brijesh Kumar Singh PW1. He has narrated the entire story as has been stated in the preceding para 2 of my judgment. He has stated that on 26/06/2000 at about 8:30 p.m. he started from his house to Roorkee Railway Station to board on the train to go to his place of posting at Jalandhar. When he reached near the house of accused/appellant Kamil, the accused/appellants Kamil, Dilshad and Tasleem suddenly emerged before him. The accused/appellants Kamil assaulted him by the butt of the country made pistol which he was holding in his hand at the time of incident, Tasleem assaulted him by the hammer which he was holding in his hand at the time of the incident and Dilshad assaulted him by hockey which he was holding at that time. Thereafter, they took him inside the house and again assaulted him. He has further stated that his mother Smt. Sushila Devi PW2 and his landlord Smt. Gulsana PW6 8 reached at the spot and they tried to save the injured but the accused/appellants did not release him from their custody and they remained beating him inside the room of accused/appellant Kamil. Thereafter, her mother Sushila Devi PW2 lodged a report to the police station. Smt. Sushila Devi PW2 has also corroborated the incident. She is not the eyewitness of the earlier part of the incident. She reached at the spot when the accused/appellants were assaulting the injured inside the house of accused/appellant Kamil. The same fact has been corroborated by Smt. Gulsana PW6. 12. The learned counsel for the accused/appellants had disputed the participation of the accused/appellant Dilshad in the commission of the offence. So far as the participation of the accused/appellant Dilshad in the commission of the offence is concerned, injured Brijesh Kumar Singh PW1 has sated in his evidence as under:- “eq>s /;ku ugh eqyfte fny’kkn gkftj vnkyr eq>s ekjus okyks esa Fkk ;k ughA eSa ugh dg ldrk fd eq>s fny’kkn rFkk vlxj us ekjk Fkk ;k ughaA” Smt. Sushila Devi PW2, the mother of the injured has stated as under :- “eqyfte gkthj vnkyr esa eSa dkfey vkSj rlyhe dks igpkurh gWA ysfdu rhljk vkneh fny’kkn oks fny’kkn ugh gS tks ekSds ij esjs yM+ds dks ekj jgk FkkA” Smt. Gulsana PW6 has stated in her evidence as under :- “eq>s irk ugh fd xkWo esa fdrus fny’kkn gSaA tc ge ekSds ij x;s njoktk cUn Fkk eqyfte o czts’k vUnj dh f[kM+dh ls fn[kk;h fn;k ckdh eq>s fny’kkn gkftj vnkyr dks ekjihV djrs le; 'kDy ugh ns[kh FkhA tc iqfyl vk;h Fkh ;gh fny’kkn idM+k x;k FkkA” Gulsana PW6 has stated that Dilshad is the same person who was arrested by the police. Shri Nautan Das PW7 has stated 9 that after recording the F.I.R., police party reached at the spot and got the injured scot free from the possession of the accused/appellants. Thereafter, they took the injured to police station. He has further stated that the accused/appellants were not taken into custody at that time. He has further stated that recovery memo of country made pistol was prepared at the place of occurrence. The Investigating Officer, Shri Harish Chandra Saxena PW8 has also stated in his evidence that the accused/appellants were arrested on 27/06/2000 at about 0055 hrs. Thus, it is apparent from the evidence that the accused/appellants were not arrested by the police at the spot. Thus, the evidence of connecting the accused/appellant Dilshad in the commission of offence is not established. Whereas the evidence of injured Brijesh Kumar Singh PW1 is concerned, he has not identified accused/appellant Dilshad who had participated in the crime. The injured was the only person who could have identified the accused/appellant Dilshad. Smt. Sushila Devi PW2 and Smt. Gulsana PW6 have stated in their evidence that they had seen the participation of accused/appellant Dilshad in the incident by peeping inside the room through the window affixed in the room of accused/appellant Kamil. Perusal of the site plan reveals that there was no window in the room of accused/appellant Kamil where the incident occurred. Shri Nautan Das PW7 has stated as under:- “fy[kki<h geus dkfey ds /kj esa cSBdj dh FkhA eq>s /;ku ugha fd dkfey dk ?kj fdl eqgkuk gSA fczts’k ,d dejs esa cUn FkkA ?;ku ugh fd fdl eqgkuk FkkA dejs ds ckgj cjkank Fkk ;k ughA mlds vkl ikl feys gq;s edku Fks mues f[kM+dh ugha FkhA dkfey ds dejs esa dksbZ f[kM+dh ugha FkhA” Shri Harish Chandra Saxena PW8 has stated in para 4 as under:- 10 “dkfey ds dejs dh yEckbZ pkSM+kbZ 8x10 QhV gSA ;g eSaus uD’ks esa Index ls ugh fy[kk gSA dsl Mk;jh esa fy[kk gS dejs esa dksbZ f[kM+dh ugh FkhA eq>s xqylkuk us ;g ugh crk;k Fkk ftlesa eqyfte )kjk fczts’k dks ekjrs gq;s f[kM+dh esa ls ns[kk FkkA eq>s xqylkuk us vius c;ku esa ;g ckr ugha crk;h Fkkh fd eSaus ;g ?kVuk f[kM+dh ls djhc 15 dne nwj ls ns[kh Fkh vksj ugh xqylkuk us ?kVuk ds le; vius [kMs+ gksus dk LFkku crk;k FkkA” 13. The site plan Ex.Ka-8 shows that there is no window in the room of accused/appellant Kamil. Thus, there was no occasion to Smt. Sushila Devi PW2 and Smt. Gulsana PW6 to peep inside the room where the injured was being beaten by the accused/appellants. The F.I.R. which was written immediately at the time of the incident did not mention the participation of the accused/appellant Dilshad in the commission of offence or having hockey in his hand at the time of the incident. Thus, the evidence of injured Brijesh Kumar Singh PW1 and the evidence of the prosecution witnesses coupled with the circumstances narrated above did not connect the identity of the accused/appellant Dilshad in the participation of the offence. In view of the above, the accused/appellant Dilshad is entitled to get the benefit of doubt. 14. So far as the participation of the accused/appellants Kamil and Tasleem is concerned, the evidence of injured Brijesh Kumar Singh PW1 is consistent and nothing could be elicited in his cross examination. It is settled position of law that injured eyewitness stands on a higher pedestal than an ordinary witness. It is also well settled principle of law that the testimony of an injured witness is sufficient to base the conviction and no further corroboration is required. The presence of the injured witness cannot be discarded lightly. 11 There is no doubt about the presence of the injured witnesses at the time of the incident. 15. I have gone through the entire evidence alongwith the document of the prosecution and defence. It is admitted to both the parties that the incident occurred at the place of incident but the manner and mode of the incident has been narrated in different ways. The defence has produced the copy of the report Ex.Kha.-1 which was given to the police by accused/appellant Kamil S/o Rashid. The defence has taken a case that the injured Brijesh Kumar came to the house of accused/appellant Kamil and called him out from his house to have some discussion. Thereafter, he was taken to some distant where the injured took out his country made pistol and tried to fire upon him but he caught his hand and made noise. Upon which, accused/appellants Dilshad and Tasleem came and caught the injured Brijesh Kumar Singh. Thereafter, they took the injured inside the house and later on handed over to the police. In the statement recorded u/s 313 Cr.P.C., the accused/appellant Kamil has stated that the injured Brijesh Kumar Singh fired upon him. Thus, the evidence of accused/appellant Kamil DW-1 as well as the statements recorded u/s 313 Cr.P.C. had a different theory about the use of the weapon, i.e. country made pistol. The evidence led by the defence is that the injured called the 12 accused/appellant Kamil outside his house for some discussion. Thereafter, the injured took him to some distant and tried to fire upon accused/appellant Kamil. Whereas in the statement recorded u/s 313 Cr.P.C., the injured called Kamil from his room and immediately thereafter he fired upon him by the country made pistol. Thus, there are two different versions of the defence on the same point. It is also pertinent to mention that only Ex.Kha-1 was given to the police by the accused/appellants. No case was registered against the injured by the police; no complaint was made on behalf of the accused/appellants against the injured Brijesh Kumar Singh; and no action was taken by the police on the report of the accused/appellant Kamil. The entire evidence of the defence did not inspire confidence. It is also stated in Ex.Kha-1 that the injured Brijesh Kumar Singh tried to fire upon accused/appellant Kamil and thereafter he was apprehended and taken to the room. There is no iota of evidence that the injured was handed over to other persons who caused injuries upon his person. He remained in the custody of accused/appellants. It was for the accused/appellants to explain how the injured sustained the injuries on his person. Section 106 of the Indian Evidence Act provides that if any fact is the knowledge of the person who states the fact he must establish it. 13 16. There is convincing and clinching evidence of the prosecution that the injured was assaulted by the accused/appellants. The defence version as against the said evidence is not plausible and is liable to be rejected. The evidence of the prosecution is totally credible and cogent. Nothing could be elicited from their cross-examination to discredit their evidence. The evidence of the prosecution further supported by the prompt report lodged at the police station. The evidence of Shri Nautan Das PW7 reveals that he reached at the spot after lodging the report and got the injured scot free from the clutches of the accused/appellants. Further, the evidence found credence from the evidence of Dr. Mange Ram Malik PW4 and Dr. Yogesh Kumar PW5 who have examined the injured. 25 injuries have been found on the person of the injured out of which injury No.24 was grievous. Thus, the entire prosecution story is credible and cogent. 17. The injured Brijesh Kumar Singh PW1 has narrated the entire story of the prosecution case. It is further supported by the evidence of Smt. Sushila Devi PW2 and Smt. Gulsana PW6 who reached at the spot immediately during the incident. They have stated in their evidence how the injured was dealt by the accused/appellants at the spot. Smt. Sushila Devi PW2 had also stated that she made request to accused/appellants to release the injured and not to cause further assaults on him but they did not pay any heed to her request and remained assaulting the injured. Thereafter, she lodged the report in the police station, upon which Shri Nautan Das PW7 alongwith other police personnel reached at the spot. Thereafter, her son injured was released from the 14 clutches of the accused/appellants. The evidence of Smt. Sushila Devi PW2, Smt. Binda Singh PW3, Smt. Gulsana PW6 and Shri Nautan Das PW7 after a thorough scrutiny is credible and cogent and nothing could be elicited from their evidence. 18. Learned counsel for the accused/appellants further contended that the offence u/s 307 I.P.C. is not made out against the accused/appellants Kamil and Tasleem. To constitute an offence u/s 307 I.P.C two ingredients of the offence must be present – (i) an intention of or knowledge relating to commission of murder; and (ii) the doing of an act towards it. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence ‘of attempt to murder’. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. The prosecution case is that the accused/appellant Kamil was having country made pistol in his hand whereas accused/appellant Tasleem was having hammer in his hand at the time of incident. The accused/appellants caused 25 injuries on the person of the injured. These injuries were abrasions and contusions. It was further contended that if the accused/appellants had to kill the injured, the accused/appellant Kamil had a country made pistol in his 15 hand with six live cartridges, he could have not waited till the police reached at the spot. The accused/appellant Tasleem had a hammer and only a strike of the hammer is sufficient to cause the death of the injured. It was contended that the accused/appellants had sufficient time to kill the injured with these weapons but they only caused the injuries on his person. According to the prosecution as well as defence, the injured remained in the custody of the accused/appellants for a long time but they did not cause much harm than injuries as mentioned above. Thus, the intention of the accused/appellants was only to cause the injuries