HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 65 of 2006 Sandeep. .…..Appellant (in jail) Versus State of Uttarakhand ….Respondent Mr. K.S. Verma, Advocate with Mr. R.K.S. Verma, Advocate for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. Dated: December 16, 2011 Coram: Hon’ble Tarun Agarwala, J. Hon’ble V.K. Bist, J. Delivered by Hon.V.K. Bist.J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 16th May, 2006 passed by Addl. Sessions Judge/1st Fast Track Court, Roorkee, District Haridwar in Sessions Trial No. 208 of 1998 ‘State vs. Veer Singh and others’, whereby accused/ appellant Sandeep has been convicted under Section 302 with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.) and has been sentenced to undergo rigorous imprisonment for life with fine of ` 1,000/- under Section 302 with Section 34 I.P.C., and in default of payment of fine further rigorous imprisonment for a period of three months has been awarded. The learned trial Court vide the same judgment and order acquitted co- accused Veer Singh and Dharamveer of the charge of offence punishable under Section 302 and Section 34 I.P.C. The trial Court, in the connected Sessions Trial No. 209 of 1998 ‘State vs. Sandeep’, 2 acquitted accused/ appellant Sandeep of the charge of offence under Section 25 of Arms Act. The matter against the co-accused Mintu was remitted to the Juvenile Justice Board by the trial Court, vide its order dated 01.01.2003. 2. Heard learned counsel for the parties and perused the Lower Court’s Record. 3. Facts leading to the appeal, in precise, are that on 31.10.1997 at 4:10 a.m. complainant PW-1 Kale Hasan S/o Abdul Hameed, resident of village Dosni, Police Station Laksar, District Haridwar lodged a written report (Ext.A-1) with the police that on 30.10.1997 at night, while his father Abdul Hameed (deceased) and his mother Mangti were sitting in their courtyard and were talking to each other, at 9:45 p.m. accused persons Veer Singh S/o Jaswant Singh, Mintu S/o Molhar, Dharamveer S/o Brhampal and Sandeep S/o Ajmer all residents of village Dosni, came there and said to his father that they would teach him lesson for refusing them to give jaggery (GUR) and shot at his father. On hearing the sound of gun-shot, the complainant, alongwith Gufran (PW-2) and Naseem, reached the courtyard and saw that all the four accused persons, after shooting, were fleeing from the place of occurrence. The complainant saw that his father was injured, therefore, the injured was taken to the Govt. Hospital, Laksar for treatment, where the injured was declared brought dead on arrival. The dead body was taken to the Police 3 Station. On the basis of the first information report, Chik report (Ext.A-13) was prepared and a case crime no. 185 of 1997 under Section 302 IPC was registered against all the accused. Investigation was entrusted to Sub Inspector Satish Verma, who started investigation. The Investigating Officer first of all inspected the site of incident, and in presence of the witnesses, Inquest Report on the dead body of Abdul Hameed (Ext. A-4) was prepared. The Investigating Officer inspected the place of incident and prepared a site-plan (Ext.A-9). The Investigating Officer recorded the statements of the witnesses. On the same day i.e. on 31.10.1997, on pointing out by the accused/ appellant Sandeep, one country made pistol 12 bore and one empty cartridge were recovered from the possession of the accused/appellant, concealed in the cane field of Dharmdas under a transformer. The Investigating Officer prepared recovery memo (Ext. A-3) and site- plan of the place of recovery (Ext.A-10). On the same day, the I.O. also collected samples of bloodstained and plain earth and prepared memo (Ext.A-5), he also took into possession one torch containing three batteries and prepared memo (Ext.A-2), he also took into possession one bloodstained cot and prepared memo (Ext.A-6), he also took into possession one quilt-cover, one cotton blanket and one quilt and prepared memo (Ext.A-7), he also took into possession one lantern and prepared memo (Ext.A-11) The dead body of the deceased, in a sealed condition, alongwith Inquest Reports (Ext.A-4) alongwith other police papers, was 4 sent for post mortem examination. The Investigating Officer interrogated the witnesses, recorded their statements, and thereafter, filed Charge sheet (Ext.A-8) on 27.12.1997 against all the four accused, namely, Veer Singh, Dharamveer (acquitted by trial Court), Mintu (case was remitted to Juvenile Court) and Sandeep (appellant) for their trial in respect of offence punishable under Section 302 I.P.C. The Investigating Officer, after obtaining necessary sanction (Ext.A-17) from the District Magistrate, Haridwar submitted charge sheet (Ext. A-15) against the accused/appellant Sandeep for his trial in respect of offence punishable under Section 25 and Section 27 Arms Act. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the Court of Sessions for trial. On 04.10.2000, learned Addl. District Judge, Roorkee, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 I.P.C. against accused Veer Singh, Mintu, Dharamveer and Sandeep, who pleaded not guilty and claimed to be tried. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which, they alleged the same to be false. No witness, in defence, was got examined. After hearing the learned counsel for the parties, the trial Court vide order dated 16.05.2006 convicted accused/ appellant Sandeep under Section 302 read with Section 34 I.P.C. and sentenced him to 5 undergo rigorous imprisonment for life with fine of ` 1,000/- under Section 302/34 I.P.C., and in default of payment of fine further rigorous imprisonment for a period of three months was awarded. Being aggrieved by the impugned judgment and order dated 16.05.2006 passed by the trial Court in Sessions Trial No. 208 of 1998 accused/ appellant Sandeep has preferred this appeal. 5. In order to prove its case, the prosecution examined PW-1 Kale Hasan (complainant/eye witness), PW-2 Gufran Ali (eye witness), PW-3 Furkan (witness of recovery), PW-4 Akbar (witness of recovery of weapon), PW-5 Niyamul (witness of inquest report), PW-6 Jagat Kumar Singh, PW-7 Dr. R.R. Verma, who conducted postmortem, PW-8 Constable Ramdhan Singh, who prepared Chik report and entered the case in the G.D. and PW-9 Balraj Singh, who proved the investigation conducted by Sub Inspector Satish Verma. 6. Dr. R.K. Verma, Physician (PW-7) conducted post mortem examination on the dead body of the deceased Abdul Hameed, aged 70 years, on 31.10.1997 at 2:30 p.m. and prepared autopsy report. This witness has proved autopsy report (Ext. A-12). He recorded the following ante mortem injuries on the person of deceased Abdul Hameed:- (i) Firearm wound of entry 4cm. x 2cm. x muscle deep on medial side of right upper arm 9cm. below the axilla. Blackening and tattooing present around the wound. 6 Margins lacerated and inverted. Two pellets were recovered from the wound. (ii) Firearm wound of entry 3cm. x 2cm. x chest cavity deep on lateral side of right chest 11cm. below the axilla in mid axillary line. Tattooing and blackening present around the wound in an area of 1cm. Margins lacerated and inverted. 5th and 6th ribs are fractured. 7. According to Dr. R.K. Verma (PW-7) the deceased was average built, his eyes were closed, mouth was open, toothless, rigor mortis was present in both the limbs and his clothes were bloodstained. On internal examination he found that 5th and 6th ribs, right lung and right diaphragm were fractured; one litre of blood was present in right chest cavity, both heart chambers were empty; one litre of blood was present in abdominal cavity; forty seven pellets were recovered from the cavity; 250 gr. of semi digested food was present in the stomach; digested food was present in the small intestine and faecal matter & gas was present in the large intestine. The doctor opined that cause of death was due to shock and haemorrhage as a result of firearm ante mortem injuries and the death of the deceased could have been caused within 24 hrs. from the time of conducting postmortem. The doctor further opined that both wound of entry could be caused by one bullet. Thus, death of the deceased Abdul Hameed, was caused by firearm on 30.10.1997 at 7 9:45 p.m., and was proved beyond a reasonable doubt. 8. The prosecution has relied upon the report of Forensic Science Lab, Agra (Ext. A-18). The cotton blanket, quilt-cover, quilt, bloodstained and plain soil, undershirt, underwear and piece of cloth were sent for chemical examination. Upon examining the report of Scientific Officer, Forensic Science Lab, Agra (Ext.A-18) it is clear that in all the above items, human blood was found present. 9. The prosecution has also relied upon (Ext.A-3) i.e. recovery of 12 bore country made pistol and empty cartridge, used in the crime, made by the Investigating Officer on pointing out of the accused/appellant Sandeep in the presence of PW-4 Akbar. PW-4 has categorically stated that he was one of the members of the police party and in his presence, on pointing out by accused/ appellant Sandeep, one country made pistol, concealed in the sugarcane field of Dharamdas under a transformer, was recovered. Upon going through the testimony of this witness, we find that recovery of the one country made pistol and one empty cartridge, on pointing out of accused/ appellant Sandeep, is proved. During recording testimony of PW-4, a bundle containing country made pistol and empty cartridge was opened in the trial Court and this witness identified the pistol and empty cartridge (material exhibit-6 and 7). Similarly, the prosecution relied upon the testimony of PW-3 8 Furkan as well as the recovery of one torch (material exhibit no.1), one quilt (material exhibit no.-2), one cotton blanket (material exhibit no.-3), one quilt cover (material exhibit no.-4), one lantern (material exhibit no.5) and memo of bloodstained and plain soil taken by the police in presence of PW- 3 Furkan. This witness has proved the relevant recovery memos. 10. Learned counsel for the accused/ appellant assailed the impugned judgment and order on the ground, inter-alia, that the impugned judgment of the trial Court is based upon conjectures and surmises; the appellant has been acquitted under Section 25/27 of the Arms Act arisen out of the same crime, hence offence under Section 302/34 I.P.C. is improbable. He submitted that in the first information report Smt. Mangti has been shown as eye witness, but during trial, she has not been produced by the prosecution as witness. The prosecution failed to produce the star eye witness. He also submitted that the incident in question, according to prosecution, is of 30.10.1997 at 9:45 p.m. but no source of light has been shown, moreover that was a ‘Amavasya night’, therefore it is highly improbable for a person to identify anyone and lastly that when two co-accused, who have been shown on the same footing, as present appellant, have been acquitted, then on the basis of same set of evidence, accused/ appellant Sandeep cannot be held guilty of the charge levelled against him. 9 11. Now, we have to examine carefully, whether the prosecution has successfully proved its case against the accused beyond a reasonable doubt by producing cogent and reliable evidence and whether the evidence tendered by the witnesses is plausible and trustworthy. We take the oral evidence of the eye witnesses, led by the prosecution. At the outset, there is ocular evidence of the complainant PW-1 Kale Hasan, who has categorically stated that the occurrence had taken place on 30.10.1997 at about 9:45 p.m. when his parents Abdul Hameed and Smt. Mangti were sitting in their hut and were talking to each other. At that very moment, accused/appellant Sandeep armed with a country made pistol, Veer Singh armed with a BALLAM (a piercing edged weapon on its front side), Dharamveer and Mintu @ Satendra armed with LATHIES came at the door. Accused Dharamveer, Mintu and Veer Singh instigated accused/appellant Sandeep to shoot Abdul Hameed, who refused them to give jaggery (GUR). On this, accused/appellant Sandeep shot at Abdul Hameed, which hit the right side of his chest and arm. The complainant immediately reached the place of occurrence alongwith Gufran (PW-2) and Naseem. This witness has categorically stated that he saw the accused/ appellant Sandeep, while he was shooting at his father. He stated that after shooting, the accused persons fled away. This witness and other persons chased the accused persons, but could not catch them as a result of which, the accused fled away. The injured was 10 taken to hospital where the doctor declared him dead. This witness has proved the written report (Ext.A-1), which he lodged at the police station promptly, as the distance between the police station and the place of occurrence is 6 Kms. PW-2 Gufran Ali is another eye witness of the occurrence, who has stated that the incident had taken place on 30.10.1997 at night. The deceased Hameed and his wife Mangti were sitting inside their hut, where a lantern was lit and an electric bulb, hanged on a tree outside the hut, was glowing. The accused Veer Singh armed with a BALLAM, accused/appellant Sandeep armed with a country made pistol, accused Dharamveer and Mintu armed with LATHIES came at the courtyard. This witness has stated that he had a torch in his hand. All the three accused persons instigated accused/appellant Sandeep to shoot Abdul Hameed in order to teach him lesson for his refusal in giving jaggery (GUR). On this, accused/appellant Sandeep shot at the deceased with the country made pistol in his hand, which hit the deceased on the right side of his chest. This witness has stated that he witnessed the incident himself. He stated that Kale Hasan and Naseem were accompanying him and all of them attempted to catch hold of the accused, but the accused persons fled away. This witness is an independent witness. He proved the memo (Ext.A-2). These witnesses were cross-examined by the defence counsel, at length, but nothing has come out in their evidence, which may create any doubt. The evidence of these witnesses, on each and every point 11 of the prosecution story, is reliable, believable and trustworthy. 12. Learned counsel for the appellant has argued that there is no ballistic expert report about the country made pistol, the empty cartridge and the pellets recovered from the body of the deceased at the time of postmortem, which would connect directly the accused/appellant in commission of said crime. He further argued that no bloodstains were found on the clothes of the sons of the deceased, therefore the presence of the sons of the deceased at the time of incident was doubtful. He submitted that according to the F.I.R., identical role has been assigned to all the four accused persons and no specific role is assigned on the part of accused/appellant Sandeep. Learned counsel for the appellant cited the judgments of Hon’ble the Apex Court reported in (2010) 2 SCC 394, 2005 (1) CAR 448, 2002 CAR 621, 2006 (1) SCC Cri. 99 and 2004 (1) CAR 300. 13. On the other hand Mr. Amit Bhatt, the learned A.G.A. submitted that defective investigation is not lethal to prosecution, where ocular testimony is found credible and cogent and non sending of bloodstained clothes for chemical examination and weapons of assault and pellets for ballistic examination was not fatal in discarding the prosecution case. He submitted that the Court has to be circumspect while evaluating the evidence led by the prosecution. In this context, the learned 12 counsel brought our attention to paragraph-8 of the judgment of Hon’ble the Apex Court rendered in ‘Dhanaj Singh alias Shera and others vs. State of Punjab’, reported in 2004 SCC (Cri)-851. Banking on the judgment of Hon’ble the Apex Court, rendered in Leela Ram vs. State of Haryana and another’, reported in AIR 1999 Supreme Court- 3717, learned A.G.A. contended that any irregularity or even an illegality during investigation, should not be treated as a ground to reject the prosecution case. 14. We have considered the submissions advanced by the learned counsel for the parties and have gone through the decisions cited by the respective parties. The judgment cited by the learned counsel for the appellant is distinguishable and is not applicable to the present facts and circumstances of the case. In the present case, the prosecution has led the ocular evidence of eyewitnesses i.e. PW-1 and PW-2 out of whom PW-2 Gufran Ali is an independent witness. It had come in the evidence that the accused was seen while he shot the deceased and escaped from the place of occurrence. It has also come in the evidence that at the time of occurrence there was sufficient source of light for identification of the accused. In so far as not producing Smt. Mangti, as prosecution witness, besides her presence shown in the F.I.R. as an eye- witness, we are of the view that the lapse on the part of the I.O. is insufficient to discard the ocular evidence led by the prosecution. Further, it has 13 come in the testimony of the eyewitnesses that it was only the accused/appellant, who shot the deceased and not the other co-accused. Further the accused shooting the deceased once or twice is immaterial especially when the doctor has opined that both wound of entry could be caused by one bullet. The doctor has opined that cause of death was due to shock and haemorrhage as a result of firearm ante mortem injuries and that the death of the deceased could have been caused within 24 hrs. from the time of conducting postmortem. The accused also could not show any enmity with the deceased or with the eyewitnesses, before the incident. The accused/ appellant could not show any plausible ground to implicate him in the crime as the shooter, who shot the deceased, leaving the real culprit. One 12 bore country made pistol and empty cartridge, used in the crime, was recovered on the pointing out by the accused/ appellant, which was concealed in the sugarcane field of Dharamdas under a transformer. In the fact and circumstances, where ocular evidence of the witnesses in respect of recovery of weapon, used in the crime, from the possession of the accused Sandeep, is available, accused/ appellant cannot take the plea that he has been acquitted by the trial Court in connection with the charge under Section 25/27 Arms Act. Besides it, one torch, one quilt, one cotton blanket, one quilt cover, one lantern, bloodstained and plain soil were taken by the police in custody. It is clear that in all the above items, human blood was found present. The prosecution 14 story is not at all shaken by the defence. We are of the firm view that all the above circumstances are sufficient to draw inference against the accused/ appellant. We are of the opinion that the evidence brought on the record proves the prosecution case and fully establishes that the accused/ appellant is guilty of the charge levelled against him. We concur with the findings recorded by the trial Court, holding the accused/ appellant Sandeep guilty of the charge levelled against him and sentencing him under Section 302/34, I.P.C. Consequently, the appeal deserves to be dismissed. Conviction and sentence awarded to accused Sandeep is sustained. 15. For the preceding reasons, we do not find any force in the appeal and the same is dismissed. The conviction and sentence recorded by the trial Court against accused Sandeep, in respect of offences punishable under Section 302/34 I.P.C, is hereby affirmed. Accused/appellant Sandeep is in jail. Let a copy of this judgment be sent to the superintendent of the jail concerned. Lower court record be sent back. (V.K. Bist, J.) (Tarun Agarwala, J.) 16.12.2011 NCM: