IN THE HIGH COURT OF UTTARANCHAL, AT NAINITAL. No. 10- COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING. [ Chapter VIII, Rule 32(2) (b)] Criminal Appeal No. 2055 of 2001 Old No. 1314/1987 Ilmi and another Appellants. Vs. State Respondent. Decision on 01.05.2006 A.F.R. (Approved for Reporting) Not approved for reporting (P.C. Verma, J.) (B.C. Kandpal, J.) Date :-01-05-2006 1 In the High Court of Uttaranchal, at Nainital. Criminal Appeal No. 2055/2001 Old No. 1314/1987 1- Ilmi @ Mohd. Ielm S/o Chhuttan, R/o Village mahtosh, P.s. Gadarpur, District Nainital. 2- Wakil @ Wakil Ahmad S/o Kale, R/o Nankar Rani, P.S. Swar, District Rampur .. Appellants. Versus State .. Respondent. Sri M.S. Pal, Senior Advocate, learned counsel for the appellants. Sri G.S. Sandhu, learned A.G.A. for the state. Coram: Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. Dated: 1st may, 2006. This appeal has been preferred by the appellants against the judgment and order 1-5-1987, passed by Special Judge/Addl. Sessions Judge, Nainital in S.T. No. 271 of 1985 State Vs. Khurshid and S.T.No. 272 of 1985 State Vs. Ilmi and another, convicting the accused/appellants Ilmi and Wakil for the offences U/Ss 302/34 and 307 I.P.C. and sentencing each of them to undergo life imprisonment U/S 302/34 I.P.C. and R.I. for seven years U/S 307 I.P.C. The sentences were to run concurrently. However, the accused of the connected Sessions Trial, namely Khurshid was held not guilty and acquitted of the charges levelled against him. 2- The prosecution case in brief is that on 2-8-1985 at 2 P.M. Sabir and his brother Jabir came out of the mosque after finishing Namaz in the mosque and began to go their house. Accused Ilmi armed with Tamancha came there from the house of Wazid Hazi whereas accused Wakil armed with Tamancha came there from north side. Both the accused began to say that you had shucked their blood, today you would not be spared and opened the fire. The fire hit Jabir who ran towards the house of Munna Dhobi in 2 order to save his life. In the meantime accused Ilmi said that at first he should finish the life of Jabir. Sabir and Abdul Hamid went to save Jabir but these accused Wakil and Ilmi chased Jabir and began to fire on him. Due to this Jabir fell and died at the door of the house of Munna. Sabir and Abdul Hamid ran to arrest Ilmi and Wakil who again opened fire towards them in order to kill them. Due to the firing Abdul Hamid got injures on his left leg. Thereafter the accused persons fled away from the spot. Sabir went to the house of Munna Dhobi and there he saw that his brother Jabir had died on account of the injuries sustained by him. Sabir soon thereafter lodged the written report, Ext. Ka.1 at Police Station, Gadarpur, at 2.55 P.M. On the basis of the written report, chick F.I.R., Ext. Ka.6 was drawn at the P.S. Gadarpur. 4- Indra Bhusain, Station Officer, P.S. Gadarpur has investigated the case. The Investigating Officer on receiving the information about the incident went on the spot and performed inquest on the death body of the deceased. He prepared the inquest report, Ext. Ka.8. He sealed the dead body and prepared police form No.33, form No.13, photo of dead body and two letters to C.M.O., marked Exts. Ka. 11, 12, 13 and 9 and 10 respectively and sent the dead body for post mortem. Thereafter he prepared site-plan of the place of the occurrence, Ext. Ka.14. He also took into possession the blood-stained and simple earth vide, recovery memo Ext.Ka.15. The Investigating Officer went to the house of Munna Dhobi and took into possession one tickli and two pellets from the court-yard of the house of Munna. Again he got one live cartridge 12 bore and took it into possession. Recovery memo Ext. Ka.16 was prepared by him. He again took into possession cap of the deceased vide memo Ext. Ka.17. He also took into possession one pair of Hawai Chappal vide memo Ext. Ka.18. On the same day he took into possession the blood-stained Paijama vide memo Ext. Ka.19. The Investigating Officer could not arrest the accused as they had absconded and on his request the Magistrate initiated proceedings U/Ss 82/83 Cr.P.C. against the accused. The I.O. 3 prepared Fard Kurki Exts.22, 23, 24, 25, 26 and 27. after completing the investigation he submitted charge sheets, Ext. Ka. 28 and 29. 5- On committal of the accused persons to the court of Sessions, charges U/Ss 302/34 and 307 I.P.C. were framed against accused/appellants Wakil and Ilmi whereas charge U/S 302/120-B I.P.C. was framed against accused Khurshid in connected sessions trial. They pleaded no guilty and claimed to be tired. 6- The prosecution to prove its case, examined nine witnesses. P.W.1, Sabir is the brother of deceased Jabir. He has narrated the prosecution version as mentioned in the first information report. This witness has deposed that the accused/appellants Wakil and Ilmi fired at his brother Jabir with Tamancha and when the deceased ran away from the spot they chased him and again opened the fire due to which he fell down at the door of the house of Munna Dhobi and died. He also deposed that when he and Abdul Hamid tried to save Jabir, both the accused also fired at them which hit to Abdul Hamid on his left foot. This witness also deposed that he got the written report prepared from one Abdul Ali and handed over it at P.S. Gadarpur. He has proved the written report, Ext. Ka.1. 7- P.W.2, Abdul Hamid is the injured eye witness of the occurrence and he has corroborated the statement of P.W.1, Sabir. 8- P.W.3, Jahid Ali is also an eye witness of the occurrence. According to him on the day of the incident he was going to his home after offering Namaz along with the injured Abdul Hamid, Sabir and the deceased. When Jabir reached near the door of the house of Munna, accused Wakil from north side and accused Ilmi from west side reached there having Tamanchas in their hands and both the accused told that you have shuked our blood today you will not be spared. At this both the accused opened fire at Jabir, who ran towards the house of Munna. Both the accused chased him. Witness Abdul Hamid and Sabir also went there to save Jabir but the accused again opened the fire which 4 hit to the leg of Abdul Hamid. He also deposed that he heard the sound of fire and when they reached inside the house of Munna, he saw that Jabir had died. Thereafter Sabir Ali and Abdul Hamid went to P.S. Gardarpur. 9- P.W.4, Dr. A.S. Saxena conducted the post mortem examination on the dead body of deceased Jabir on 3-8-1985, at 2 P.M. in L.D. Bhatt Hospital, Kashipur and found the following ante-mortem injuries on his person:- 1- Gun shot wound of entry 2.5cm x 2.5 cm skull cavity deep on left eye. Margins inverted ad lacerated. Blackening present around the wound. One tickli, two small shots recovered from brain tissue. 2- Multiple gun shot wound of entry in an area of 7 cm x 10cm in front of left side chest, front of left upper limb upto wrist level on chest just below nipple of an lacerated empty 4 of average size 0.2 cm x 0.2cm cavity deep on chest and muscle deep on left upper limb. 3 shots recovered from heart and two shots from muscle of arm. No bleeding and tattooing. Margin inverted and lacerated. 3- Gun shot wound of entry 2.5cm x 2 cm chest cavity deep on back of chest left side. Margin midline inverted and lacerated. Blackening present around the wound. Large shot recovered from left lung tissue. 4- Gun shot wound of exit 1cm x 1cm x injury No.3 on back of chest left side, lateral scapular border of left side, 3 cm below level of injury no.3. Margin everted and lacerated. 5- Lacerated wound 2cm x 0.5cm x muscle deep front of left fore arm, 3cm above wrist. In the opinion of the doctor the death was caused due to shock and haemorrhage. This witness has proved the post mortem examination report, Ext.Ka.2. 10- P.W.5, Dr. H.B.M. Pant examined the injuries on the body of Abdul Hamid on 2-8-1985 at 3.45 P.M. in P.H.C. Gadarpur and found following injuries on his person:- 5 1- Punctured wound .5cm x .5 cm x muscle deep, over front of left thigh, 14 cm above the medial candyl of femur. Fresh blood oozing was from the wound. 2- Punctured wound .5cm x .5cm x muscle deep over front of left thigh, 4cm lateral from injury No.1. 3- Punctured wound .5cm x .5cm x muscle deep over front of left thigh, 2cm vertically downwards from injury No.2. 4- Punctured wound .5cm x .5cm over medial aspect of left leg, 6cm below left medial candyl of femur. In the opinion of the doctor the injuries were caused high velocity missile (gun shot). X-ray was also advised. He proved the injury report, Ext. Ka.3. This witness on the basis of X-ray report again prepared supplementary injury report and proved the same as Ext.Ka.5. 11- P.W.6, Constable No. 399 Satish Kumar filed his affidavit in order to prove the fact that the dead body of deceased Jabir was in his custody and it remained intact with him when he handed over it at the hospital. 12- P.W.7 Dr. V.K. Saxena has proved his x-ray report, Ext. Ka.4. He found the following facts during on the body of injured during x-ray:- 1- Four radio opaque shadows of metallic density ranging from .3cm x .3cm to .4 cm x .7 cm in left thigh 2- Three radio opaque shadows of metallic density ranging from .3 cm x .2cm to .4 cm x .7cm in left leg. He also proved the x-ray plates material Exts. 1 and 2. 13- P.W.8, Safdar Alihas deposed that when he was taking tea in the hotel of Nanhe there he saw the accused persons tlking and he heard their talks of conspirary with regard to the murder of Jabir and complainant Sabir. 14- P.W.9, Indra Bhusan is the Investigating Officer. He has deposed about the investigation carried by him and also proved the papers prepared by him during investigation. 15- The accused person in their statements U/S 313 Cr.P.C. denied the prosecution allegations and stated that they have been falsely implicated in the case. They adduced no evidence in their defence. 6 16- The Sessions Judge having perused the evidence on record came to the conclusion that the prosecution has been successful in establishing its case against accused/appellants Wakil and Ilim U/Ss 302/34 and 307 I.P.C. and accordingly sentenced each of them to undergo life imprisonment U/S 302/34 I.P.C. and seven years R.I. U/S 307 I.P.C. The Sessions Judge however was of the opinion that the prosecution was not successful in proving its case against the co-accused of connected sessions trial and acquitted him for the charges U/Ss 302/120-B I.P.C. levelled against him. 17- Feeling aggrieved, the accused/appellants Wakil and Ilmi have come up in appeal before this Court. 18- We have heard the learned counsel for the appellants, learned A.G.A. and perused the record. 19- First of all we have to consider as to whether the prosecution has successfully established the motive for commission of this offence. The record reveals that P.W.1, Sabir has categorically deposed that there was enmity between him and the appellants. He has stated in his deposition that there was an election of Pradhan, four years ago, in which accused/appellant Khurshid and deceased Jabir contested the election and since that time the appellants had enmity with the deceased and his brother. Some days ago to this incident, the appellants also tried to assault Jabir and his brother at flour mill and the report was lodged by Sabir against the appellants in this regard. P.W.2, Abdul Hamid is another injured eye witness of the occurrence and he has also stated that there was enmity between the deceased Jabir and the accused appellants, therefore, there is a clear motive available with the accused/appellants to commit the murder of Jabir. 20- The another aspect of this case is the promptness in first information report. The record shows that the incident has taken place on 2-8-1985 at 2 P.M. where-after the first information report was lodged immediately by Sabir at Police Station, Gadarpur at 2.55 P.M. The distance of the Police Station from the place of the occurrence is about 6 ½ kilometers. P.W.1, Sabir has deposed that he got the report scribed from one Abdul Ali 7 and then lodged the same at Police Station, Gadarpur. P.W.9, Indra Bhushan has stated that complainant Sabir was at the Police Station at 2.15 P.M. There may be difference of timing to some extent because the complainant was not supposed to tell the time according to the watch. But anyhow it may be stated that the first information report was lodged promptly at the Police Station. The promptness in the first information report, clearly rules out any possibility of any deliberation, manipulation, concoction or fabrication of a false case against the accused/appellants. 21- As far as the ocular evidence is concerned, P.W.1, Sabir Ali is the complainant of this case an he is an eye witness of the occurrence. He has categorically stated that on the date of the occurrence he was required to be present in the Court of Munsif Magistrate. Rudrapur, as he was an accused in a case punishable U/S 60 Excise Act, but on that date Presiding Officer was not present, then he got the date from the Reader and returned to his village after 11 A.M. He has further stated that he participated in Namaz in the mosque of his village in the noon. Therefore, the presence of this witness at about 2 P.M. in the village along with his brother Jabir appears to be quite natural. Nothing could be pointed out in the cross-examination of this witness, which may suggest that the presence of this witness at the spot, would appear to be doubtful. This witness has been cross-examined at length, but nothing could be elicited to discredit his testimony. 22- P.W.2, Abdul Hamid is an injured eye witness and he has also sustained the fire arm injuries on his person. This witness was medically examined by Dr. Pant, P.W.5 on 2.8.85 at 3.45 P.M. and the doctor found gun shot wounds on his person. The doctor opined that the injures were caused by high velocity missile in the left thigh as well as in the left leg. Keeping in view the injury sustained by Abdul Hamid P.W.2, it becomes quite clear that his presence cannot be doubted at the place of the occurrence in any manner. An injured witness will not falsely implicate an innocent person leaving aside the real culprit. We also do not find anything in the cross-examination of this witness 8 which may discredit his testimony. This witness is also not related to P.W.1, Sabir rather he is related to accused/appellants, therefore, he is an independent injured eyewitness and has supported the prosecution case, which finds corroboration by the medical evidence. The prosecution has further examined P.W.3, Jahid Ali as an eyewitness. This witness has also corroborated the version of P.W.1, Sabir and P.W.2, Abdul Hamid. Merely for the reason that Jahid Ali is the father of complainant P.W.1, Sabir and deceased Jabir, does not create a ground to discredit his testimony. It is true that the name of P.W.3, Jahid Ali does not find place in the first information report but it reveals from the first information report that the occurrence was seen by so many persons. Therefore, the complainant was not required to mention the name of all the persons witnessing the incident. Jahid Ali was also cross-examined at length but nothing could be pointed out in his cross-examination which may discredit his testimony. 23- As far as the medical version is concerned, the post mortem report of Jabir Ali shows that he sustained one gun shot wound of entry skull cavity deep on left eye, multiple gun shot wound of entry in front of left side chest and gun shot wound of entry chest cavity deep on the back of chest left side. The post mortem report also reveals that the doctor found gun shot wound of exit through and through injury No.3, on the back of chest. Therefore the post mortem report of deceased Jabir shows that he sustained fire arm injuries on his person. The ocular version establishes this aspect that the appellants had fire arms in their hands and they caused fire arm injuries on the person of Jabir due to which he succumbed to injuries. The appellants also fired gun shots which hit Abdul Hamid who also sustained fire arm injuries on his person. Thus the prosecution has successfully established the guilt of the appellants that the incident took place on 2.8.1985 at 2 P.M. and the accused/appellants are responsible for causing the fire arm injuries on the person of Jabir, who died at the spot, as well as for causing the injuries on the person of Abdul Hamid. 9 24- We are, therefore, of the view that the appellants Ilim alias Mohd. Ielm and Wakil alias Wakil Ahmad are guilty for committing the offences punishable U/Ss 302/34 and 307 I.P.C. 25- For the reasons stated above the appeal being devoid of merit is liable to be dismissed. 26- Accordingly the appeal is dismissed. The impugned judgment and order dated 1.5.1987, passed by the Sessions Judge, convicting the accused/appellants Ilmi @ Mohd. Ielm and Wakil @ Wakil Ahmad U/Ss 302/34 I.P.C. and 307 I.P.C. and sentencing each of them to undergo imprisonment for life U/S 302/34 I.P.C. and seven years R.I. U/S 307 I.P.C. is hereby confirmed. 27- The record immediately be sent back to trial court in order to take the steps for arresting the appellants to serve out the sentences imposed against them by the trial court. (B.C. Kandpal, J.) (P.C. Verma, J.) ISB