Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 886 OF 2001 Roju and others. …………….Appellants. Versus State of Uttar Pradesh (Now State of Uttarakhand) …………..Respondents. Present: Mr. S.P.S. Panwar, Senior Advocate, assisted by Mr. H.C. Pathak, Advocate for the appellants. Mr. Prabhakar Joshi, Brief Holder for the State of Uttarakhand. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. 1. This appeal arises out of a judgment and order dated 31.7.2000 passed by 3rd Additional Sessions Judge, Haridwar in Sessions Trial No. 115 of 1995, by which trial court has convicted the present appellants, namely Roju (since deceased), Shamshad, Ejaj, and Liyaqat under Sections 302 read with Section 149, 307 read with Section 149, 325 read with Section 149, and under Section 323 read with 149 of Indian Penal Code, 1860 (from hereinafter referred to as IPC). Each one of the above four convicts has been sentenced to imprisonment for life under Section 302 / 149 of IPC, and fine of ` 2,000/-, in default of which, each one of the accused was directed to undergo further imprisonment for a period of eight months, further a rigorous imprisonment for a period of seven years under Section 307/149 IPC and fine of ` 1,000/-, in default of which, further imprisonment of four months was also given and a rigorous imprisonment for three years under Section 325/149 IPC and fine of ` 500/-, in default of which, each one of the accused was directed further 2 imprisonment for two months, and rigorous imprisonment of six months under Section 323/149 IPC. 2. Heard Sri S.P.S. Panwar, Senior Advocate, assisted by Mr. H.C.Pathak, Advocate for the appellants and Sri Prabhakar Joshi, Brief Holder for the State. 3. The story of the prosecution, as narrated in the First Information Report, is that on 7.7.1994, brother of the complainant (Sarvar), whose name is Jabbar, had gone to irrigate his agricultural land. The land adjacent to that of Sarvar belongs to one Roju, son of Rahmu, who hails from the same village. When the complainant’s brother (Jabbar) reached his land, he noticed that the “Naali” by which water used to reach his field was broken, as a result water could not reach the agricultural land of Sarvar. At this Jabbar asked Roju as to why he has done this. In reaction, Roju started abusing Jabbar, and thereafter threatened him that he better run away or he will be killed. Jabbar, thereafter retreating from the scene, stated that he will now have to call the police! After this incident, the same day at about 4 P.M., as soon as Jabbar reached his house, Roju son of Rahmu and all his sons, namely, Ejaj, Jabbar, Shamshad and Liyaqat surrounded Jabbar outside his house, and after abusing him said that he will be killed here itself. As a result of the alarm raised by Jabbar, his mother Jumia, sister Nabila, brother Shahjada, maternal uncle Deenu, cousin Noora (son of maternal uncle) and one Asgari (neighbour) came out of their houses and enquired from the assailants as to “why are you beating Jabbar?”, to which Roju directed his companions, “What are you looking? Finish all of them.” Thereafter, in order to kill all these 3 people, Ejaj Ali and Jabbar fired from their “Katta” (country made pistol). Shamshad who was armed with “Tabal” and Liyaqat & Roju who were armed with iron rod (Saria) started hitting Jabbar and others. On this, many persons of the same village, such as, Anwar, Shahbuddin, Safdar, Kripal and some persons of the nearby village Mewari, namely, Ikram Ali, Isbuddin came towards the scene of crime and saved Jabbar with much difficulty, and thereafter, Deenu (PW 7) and other persons of the village took injured persons to Roorkee Hospital for treatment. However, as a result of the injuries sustained in this “MAAR PEET” son of Deenu (PW 7), namely, Noora died in the hospital in the night itself and other injured remained admitted in the Hospital. The complainant (Sarvar) further stated in the First Information Report that he was member who could look after the injured persons. He further stated that son of his Mama, whose name is Noora, has already died and arrangements had to be made for his burial, and as such, there has been a delay in lodging of the First Information Report. The body of the deceased Noora is still in the Hospital. He further stated that what has been stated in the FIR has been told him by his mother Jumia, his brother Jabbar and his “Mama” Deenu. 4. As per the F.I.R. the incident had taken place on 7.7.1994 at about 4 P.M. The First Information Report was lodged at about 6.30 A.M. the next morning and the time when the deceased (Noora) died is 4 A.M. These are all admitted facts. The First Information Report (Exhibit A-1) was lodged at Police Station Manglore, Haridwar, which was registered as Crime No. 228/1994 against the accused persons, namely, Ejaj Ali, Jabbar, Shamshad, 4 Liyaqat and Roju under Section 147, 148, 149, 302, 307 IPC. The matter was investigated by PW5 Sub Inspector Maqsood Hasan, who after interrogating the witnesses and on completion of the investigation, submitted a charge-sheet (Exhibit A-15) against accused persons in respect of offences punishable under Sections 302/149, 307/149, 325/149, 323/149. 5. Since it was a case triable by Sessions, it was committed to the Sessions Court by the learned Judicial Magistrate, Roorkee, and subsequently it was transferred to 3rd Addl. Sessions Judge, Haridwar for trial. Learned 3rd Addl. Sessions Judge, to whom the case was transferred, framed charges of offences punishable under Section 302/149, 325/149, 323/149 IPC, after hearing the parties on 31.7.1996. Since all the accused pleaded not guilty and claimed to be tried, trial proceeded against the accused persons. 6. The first witness examined from the side of prosecution was PW1 Sarvar, son of Jamadar, who is the informant. It is important to note here that the complainant is not an eye witness to the incident. This he has clearly stated in the First Information Report itself. In his examination in chief, he reiterated that he is not an eye witness and what has been stated in the First Information Report by him is on the basis of information received from his mother, sister, brother and “Mama”. In other words, he stuck with the case of the prosecution in the First Information Report. Name of PW2 Kripal Singh figures in First Information Report as an eye-witness. This witness has, however, turned hostile. Nothing much was put to him in the cross examination also by the 5 prosecution. PW3 Asgari, who is a woman, and a neighbour of the deceased these injured, is another eye- witness to the incident. She was first examined on 24.1.1997 and her examination in chief was done the same day i.e. on 24.1.1997. She stated that she is a neighbor of Jabbar and supported the case of prosecution by saying that Roju and his sons had surrounded Jabbar in order to kill him and named those who had sustained injuries in this fight in which she also sustained injuries on her body and lower part of abdomen. She was medically examined on 7.7.1994 by Dr. S.K. Prabhakar (PW 6). Injuries sustained by Asgari are as follows: “1. Various gun shot injuries in the area 16 cm X 13 cm in front of lower abdomen and lacerated wound each of 0.2 cm X 0.2 cm size, from where blood was oozing. Depth of wound was not measurable. This injury was kept in supervision. 2. Ten lacerated wounds each of 0.2 cm X 0.2 cm size, depth of which was not measurable. In the area of 15 cm X 12 cm inside left thigh 20 cm above left knee. Blood was oozing. Injury No. 1 was kept under supervision and X-ray was advised. Advice was also given for X-ray of left thigh. All the injuries were caused by firearms. All the injuries were new. It was possible that all these injuries could have come in the evening of 7.7.1994.” 7. All of above injuries are gun shot wounds, which Asgari had sustained. Asgari is the star eye witness of the incident, who supports the case of the prosecution. In her statement that about two and half years back (she 6 was examined on 24.1.1997 and the incident is of 7.7.1994) at about 4 P.M. in the evening when she was in her house, she heard commotion and loud noise, when she came out and saw Roju, Liyakat, Shamshad, Ejaj Ali and Jabbar hitting Jabbar. Roju and Liyakat were armed with “Sariya” (Iron Rod), Shamshad was armed with “Tabal”. First it was stated that Jabbar was not having any weapon and then it was stated that Jabbar and Ejaj Ali had revolver and each with their weapon was hitting Jabbar. When this was going on, Asgari (PW 3) stated that she, Shahjada, Deenu and Noora tried to save Jabbar and when they were trying to save Jabbar, the other assailants were hitting Noora. She herself was hit by gun shot, which she sustained on her thigh and lower part of abdomen. This witness further states that when she shouted “do not fight”, Roju rebarked that “she must also be killed”. As a result she got scared and ran inside her house, and closed the door behind her. When she was watching this incident from the window of her house, Ejaj Ali fired a shot at her from outside. In this “MAARPEET”, Shahjada received injuries by “Tabal” and Jawwada Hussain received gun shot injuries. Jumia sustained injuries in hand by gun shot and on her neck by “Sariya” (Iron Rod). They were all taken to the hospital for treatment. Noora died in the hospital. In her examination-in-chief, she (PW3) states that the other eye- witnesses have been purchased for ` 4 Laks and in fact assailants also tried to win over her but she did not relent. She further states that her life is in danger, and she fears that the accused will kill her. On cross- examination, she stuck to the statement given by her in her examination-in-chief. This eye-witness was again recalled by the trial court and was examined again by 7 orders of the court dated 18.3.1999. This examination afresh was done on 17.7.1999. There was no substantial change in her statement given by her during cross- examination on 17.7.1999 as well. In other words, she stuck to the story of the prosecution. 8. PW4 is Dr. P.K. Bhatnagar, who conducted post mortem on the dead body of deceased Noora on 8.7.1994 at about 7 P.M. While doing external examination of the dead body of deceased Noora, this witness stated that there were stiffness on the upper and lower arms of the body of the deceased. Both eyes were closed and the body was not depleted. PW4 Dr. P.K. Bhatnagar recorded as many as five ante mortem injuries, which are reproduced as under:- “1. Lacerated wound 1 cm X 0.5 cm X muscle deep 6 cm above right ear. 2. Contusion 10 X 6 cm right side of head 1 cm above right ear. 3. Abrasion 2 cm X 1 cm above right shoulder. 4. Contused swelling 6 cm X 4 cm on right chick. 5. Contusion 2 cm X 2 cm left side of head 10 cm above left ear. 9. In other internal examination, Medical Officer (PW4) recorded the following:- “Right temporal bone of the skull was broken. There was bleeding outside and inside in the gray matter. Left Middle meningial vessel was torn. In Gall Bladder, Dark coloured food was present. Approximately 4 Oz. 8 In Small Intestine, there was Digested food present. In Large Intestine, fecal matter was present Weight of the Lever was 1200 gm and it was pale. Weight of the Spleen was 120 gm and it was also pale. Urinary bladder was empty.” 10. According to the Medical Officer (PW4), the cause of death of deceased Noora was shock and haemorrhage due to ante mortem injuries. Dr. P.K. Bhatnagar (PW4) has clearly stated in his examination-in-chief that it is possible that the injuries sustained by the deceased could have come by the blow of iron rod (Saria). In his cross examination, Dr. P.K. Bhatnagar has stated that since Injuries No. 1, 2, 3 and 4 were only on the right side of the body of the deceased, it is possible that these injuries could have been sustained by a person, if he falls on the ground and bends his head on the side of “Naali”. 11. PW5 is Sub Inspector Maksood Hasan, who investigated the matter. He has stated in his examination in chief that on 8.7.1994 at about 6.30 A.M., the complainant (Sarvar, son of Jamadar) reported the matter to him. The matter was duly recorded in the GD No. 8 at 6.30 A.M. He promptly came to the Hospital and examined the body of the deceased and prepared the Inquest Report (Exhibit A-6), which was duly signed by him, and the normal process adopted in such cases was adopted. This witness merely narrated the procedure adopted by him and the consequent arrest of the accused persons, etc, etc. 9 12. The next witness is PW6 Dr. S.K. Prabhakar. He is the Doctor, who on 7.7.1994 was on duty at Government Hospital, Roorkee as a Medical Officer. Inter alia, he had examined all the injured persons, including Noora, who consequently succumbed to injuries in the morning. He has stated in his examination in chief that he had medically examined deceased Noora aged 21 years, son of Deenu on 7.7.1994 at 5.55 P.M. There were three injuries on the body of deceased Noora, which are reproduced below:- “1. Lacerated wound 0.5 cm X 0.15 cm X Scalp deep right side of head 7 cm above right ear. Blood was oozing. There was swelling of 4 cm X 3 cm around that injury. 2. Lacerated wound 0.5 cm X 0.15 cm X Scalp deep right side of head 5 cm back to right eye-brow and blood was oozing. 3. Lacerated wound 0.5 cm X 0.15 cm X Scalp deep right side of head 0.5 cm above injury no. 2. Blood was oozing.” 13. This witness (PW6) Dr. S. K. Prabhakar stated that all these injuries were of recent origin. The injured was immediately put on observation and admitted to the Hospital and his condition was very serious. He further stated that these injuries should have come at about 4 P.M. on 7.7.1994. He further stated that all these injuries can be sustained by an iron rod (Saria). He further admitted that the Medical Report (Exhibit –15A) which has been produced is written and attested by him, on which there is thumb impression of Noora. Dr. S. K. Prabhakar (PW6) further examined another injured Javed Hussain aged 25 years. He stated that at the time of 10 medical examination, following injuries were found on the body of injured Jawwad Hussain:- “1. Lacerated wound 0.2 cm X 0.2 cm X bone deep. Blood was oozing from the back side of right middle finger. 2. Lacerated wound 1.5 cm X 0.5 cm X Muscle deep. Blood was oozing from the front side of right little finger. 3. Gun shot injury interiorly 0.2 cm X 0.2 cm X Muscle deep. Blood was oozing from the left side of head 6 cm above left eye-brow. 14. Dr. S.K. Prabhakar (PW6) further examined injured Deenu aged 45 years. He stated that at the time of medical examination, following injuries were found on the body of injured Deenu:- “1. Lacerated wound 2 cm X 0.5 cm X Muscle deep, outside left wrist. Blood was oozing. 2. Contusion with scratch 6 cm X 3 cm. Blood was oozing from front side of left ankle joint. 3. Lined scratch 32 cm towards right chest. 13 cm below from the above side of the joint of right shoulder. Injury was vertical. Injury No. 1 was kept under supervision. Advised to get X-ray done of left wrist. Cause of injury was also under supervision. Injury Nos. 2 and 3 were simple. It was possible that Injury No. 2 could have come by some blunt thing. It was possible that Injury No. 3 could have come by some sharp edged weapon. All the injuries were new. It was possible that all these injuries could have come in the evening on 7.7.1994. It was 11 possible that Injury No. 2 could have come by ‘Saraia”. It was possible that Injury No. 3 could have come by the blow of “Tabal”. 15. After medical examination, thumb impression of Deenu was taken on the report and the report was attested by him. 16. PW6 Dr. S.K. Prabhakar further examined injured Smt. Asgari aged 50 years. He stated that at the time of medical examination, he found the following injuries on the body of injured Smt. Asgari:- “1. Many gun shot injuries in the area of 16 cm X 13 cm on front of the lower abdomen and lacerated wound each of 0.2 cm X 0.2 cm size, from where blood was oozing. The depth of the wound was not measurable. This injury was kept in supervision. 2. Ten lacerated wounds each of 0.2 cm X 0.2 cm size, depth of which was not measurable. In the area of 15 cm X 12 cm inside the left thigh 20 cm above left knee. Blood was oozing. Injury No. 1 was kept under supervision and advised to get X-ray done. Advice was also given to get X-ray done of left thigh. All the injuries were caused by firearms. All the injuries were new. It was possible that all these injuries could have come in the evening of 7.7.1994.” 17. PW6 Dr. S.K. Prabhakar further examined injured Smt. Navila aged 35 years. He stated that at the time of medical examination, he found the following injuries on the body of injured Smt. Navila:- 12 “1. Lacerated wound 2 cm X 0.5 cm X Muscle deep inside left wrist. Blood was oozing. 2. Lacerated wound 4 cm X 0.5 cm X Muscle deep, which was front side of right thumb. Blood was oozing. 3. Straight scratch 7 cm, in front of and in middle of left upper arm. All injuries were new. Injury No. 1 and 3 could have come by “Kundala” and some blunt weapon. Injury No. 2 could have come by some sharp edged weapon. All injuries were new. It is possible that all these injuries could have come at 4 P.M. on 7.7.1994. Injury No. 2 could have come by “Tabal”. Injury No. 1 and 3 could have come by “Saria”. 18. PW6 Dr. S.K. Prabhakar further examined injured Smt. Jumia, aged 70 years. He stated that at the time of medical examination, he found the following injuries on the body of injured Smt. Jumia:- “1. One lacerated wound 4 cm X 0.5 cm X bone deep on the upper side of head, one 11 cm above from the root of nose. Blood was oozing. 2. One lacerated wound interiorly 0.2 cm X 0.2 cm X Muscle deep in front of right upper arm 5 cm above elbow. Blood was oozing. Injury was kept in supervision. 3. Lacerated wound interiorly 0.2 cm X 0.2 cm X Muscle deep on front side of right arm, which was 13 cm below right shoulder. 4. Lacerated wound interiorly 0.2 cm X 0.2 cm X Muscle deep right side of chest 22 cm below right armpit. Blood was oozing. 13 5. Lacerated wound 0.2 cm X 0.2 cm X Muscle deep outside right hip.” 19. PW6 Dr. S.K. Prabhakar further examined injured Sahjada aged 22 years. He stated that at the time of medical examination, he found the following injuries on the body of injured Shahjada:- 1. Lacerated wound 3.5 cm X 1.5 cm X Facial deep in front of left upper arm 7 cm above left elblow. Blood was oozing. 2. Contusion with redness 4 cm X 2 cm in the right side of root of neck. All injuries were simple and new and they could have come by “Kundala” or some blunt weapon. It is possible that all these injuries could have come in the evening of 7.7.1994. Both these injuries could have come by “Saria”. 20. There are some minor discrepancies between the examination of the injuries of the decease and the injuries noticed thereafter by another Doctor in his Autopsy Report, but the discrepancy can be explained and has no major bearing on the story of the prosecution. 21. The next witness examined was Deenu, who was examined on 27.10.1997 as PW7. He has stated in his examination in chief that about three years back, this incident had happened and it was about 4-5 P.M. He was in his house. Some people came and started “Maarpeet” with him, his sister Jumia, his niece Navila and nephew Jabada, and Sahjada. He further stated that there were seven-eight persons, some of them were armed with “Tabal” and some of them were armed with “Saria”. He has further stated that since they had covered their faces with cloths, he could not identify them. He further stated 14 that he knows the complainant as well as the accused persons as they belong to the same village. He has further stated that all the five got injured and Sarvar had reported the matter. At this stage, this witness was declared hostile by the prosecution. However, in his cross examination, he stated something, which is of vital “importance”. This witness says that those persons, who had hit him and had also shot Asgari by firearms were the same persons, but then says that he does not know assailants and they do not belong to his village. However, he acknowledges the presence of Asgari on the scene of the crime and also states that Asgari had sustained injuries by the same assailants. 22. PW8 Shahjada states that he was in his house. At about 4 P.M. some assailants had come to his house. They had covered their faces. His mother Zumia, brother Jawwad and Asgari sustained injuries and Noora on account of the injuries sustained by him died in the hospital. It has further been stated that he along with others was medically examined in the Hospital. He says that he knows the accused persons, they were not the assailants. At this stage, this witness has also been declared hostile. However, this witness in his cross examination also admits that Asgari was in the scene of the crime and she was also hit by those assailants, who had come to hit them. In other words, this witness has also acknowledged the presence of Asgari (PW3). 23. PW9 Jawwad son of Jamadar has acknowledged that said incident had taken place at about 4-5 P.M. three years back. Some people came, who were armed with “Sariya”, “Tabal” and “Katta” (country made pistol). 15 Jawwad, Zumia, , Nabila, Shahjada and Noora sustained injuries. He further states that he knows all persons, who are related to him and those were not present in the “MAARPEET”. At this stage, this witness was declared hostile. 24. PW10 Zumia is the wife of Zamadar. She again stated that the incident had taken place at about 4-5 P.M. three years back. She further stated that she cannot say as to who were those assailants. At this stage, this witness was declared hostile. 25. PW11 Mrs. Nabila is wife of Ikram. She again admits the story of incident taking place at 4-30 P.M. three years back, but says that she does not know the assailants. She further submitted that she could not identify the assailants as they had covered their faces. At this stage, this witness was also declared hostile. 26. PW12 is Dr. Ajay Kumar who had done the radiology test on injured eye-witnesses Asgari aged about 50 years,