HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 1163 of 2001 (Old no. 114 of 1991) 1. Babbu S/o Bashir, r/o Pipar Sana, P.S. Bhojpur District Moradabad, 2.Raju S/o Mahendra Singh, r/o Boliwala, P.S. Pakwada, District Moradabad. ------- Accused/appellants. Versus The State. ------- Respondent Sri B.N. Maulekhi, Adv. learned Amicus-Curiae, for the appellants. Sri Harish Pujari, learned Addl. Govt. Advocate for the State. Dated: August 1, 2008 Hon’ble Dharam Veer, J. This appeal, preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 30.11.1990 passed by the IV Addl. Sessions Judge, Nainital in Sessions Trial no. 324/1989 State vs. Babbu and another u/s 398/307 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and the connected Sessions Trial no. 325/1989 State vs. Babbu u/s 25 of The Arms Act, 1959 and Sessions Trial no. 326/1989 State vs. Raju u/s 4/25 Arms Act, whereby the learned IV Addl. Sessions Judge has convicted the accused/appellants Babbu and Raju for the offence punishable u/s 398, 307 I.P.C., the accused/appellant Babbu was further convicted for the offence punishable u/s 25 Arms Act and the accused/appellant Raju was convicted for the offence punishable u/s 4/25 Arms Act and awarded them sentence to undergo 7 years’ R.I. u/s 398 IPC, 4 years’ R.I. u/s 307 IPC. 1 year’s R.I. u/s 25 Arms Act and 1 year’s R.I. u/s 4/25 Arms Act. It was further directed that all the sentences shall run concurrently. 2 2. All the Sessions Trials have been arose out of the same incident and the witnesses were the same, therefore, the trial Court has decided all the session trials by a common judgment. 3. I have heard Sri B.N. Maulekhi, Adv. learned Amicus- curiae for the appellants and Sri Harish Pujari, learned Addl. Govt. Advocate for the State and perused the record of the Trial Court and entire material available on record. 4. The prosecution case, in brief, is that on 24.06.1989 when the complainant Chaman Singh, alongwith Bala Dutt, Kripal Singh and Dan Singh, after purchasing household goods from Ramnagar, was coming back to his village Terha and when they reached at Sookha Shrot at about 8:00 p.m., then the four persons who were ambushing in the bushes, armed with Tamancha and Knives appeared before them to commit robbery. One of the miscreants kept the Tamancha on his chest and the other miscreants surrounded the other people taking Knives in their hands and said that whatever things you have, took out those things, otherwise you would be killed. In the meanwhile, the person who was having Tamancha in his hand fired on the complainant with the intention to kill him, but the complainant bent down. On hearing the gun sound and screams of his companions, the villagers, namely Bhagwat Singh, Bali Ram and Hira Singh, who were also coming from Ramnagar, had also reached on the place of occurrence. Some other bye-passers had also reached there and they all challenged the miscreants. All the persons gathered on the place of occurrence have started beating to the miscreants with stones and DANDAS and all the four miscreants were apprehended with a Tamancha and three Knives. One country made pistol and three cartridges was recovered from the possession of the accused Babbu. Three knives, each in the possession of the rest of accused persons were recovered. On 3 account of the injuries inflicted by the people gathered at the place of occurrence, two of the miscreants namely, Prem and Chhotu were died and the accused/appellants were admitted in the hospital. The recovered pistol, cartridges and knives were given in the possession of the police at the Police Station. With the same averments, the First Information Report was lodged by Chaman Singh Rawat, that FIR is Ext. Ka-1. On the basis of this report, the Chik FIR was prepared by Constable Clerk Nar Ram at the Police Station Ramnagar on 24.06.1989 at 11:00 p.m. and a case crime no. 149/89 u/s 398/307 was registered against the present accused/appellants, the case crime no. 150/89 u/s 25 Arms Act was registered against the appellant Babbu and the case crime no. 151/89 u/s 4/25 Arms Act was registered against the accused/appellant Raju, the Chik report is Ext. Ka-6. Entry was made in the General Diary, the carbon copy of the G.D. is Ext. Ka-7. Investigation of the case was entrusted to S.I. A.K. Tyagi. A recovery memo Ext. Ka-2 was prepared in regard to the recovery of country made pistol 12 bore, three live cartridges and one empty cartridge, similarly the recovery memos Ext. Ka- 3, 4, 5 were prepared with regard to the recovery of three knives from the possession of each of the accused persons. The inquest report in regard to Prem Singh was prepared by the Police that inquest report is ext. Ka-8 and the connected Police Farm no. 33 is Ext. Ka-9, sketch of the dead body of Prem Singh is Ext. Ka-10. Inquest report Ext. Ka-11 in regard to Chhotu was prepared by the Police and the connected Police Farm no. 33 is Ext. Ka-13, sketch of the dead body of Chhotu is Ext. Ka-12. During the course of investigation, the Investigating Officer has prepared the site-plan of the place of occurrence i.e. Ext. Ka-14. The accused Babbu and Raju were examined by the medical officer on 24.06.1989 at 11:00 p.m. and these injury reports are Ext. Ka-16 and Ext. Ka-17. The Investigating Officer obtained sanction of the District Magistrate, Nainital for prosecuting the accused Babbu u/s 25 Arms Act that sanction is Ext. Ka-21. 4 During the course of investigation, the Investigating Officer has recorded the statements of the witnesses. After completing investigation, the I.O. has submitted charge sheet Ext. K-15 u/s 398/307 I.P.C. against the present accused/appellants and another charge sheet Ext. Ka-18 u/s 4/25 Arms Act against the accused Raju and the charge sheet Ext. Ka-19 u/s 25 Arms Act against the accused Babbu. 5. Learned Addl. Chief Judicial Magistrate, Kashipur on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 18.09.1989. 6. The case was transferred to the Court of IV Addl. Sessions Judge, Nainital for hearing and disposal according to law. 7. Learned IV Addl. Sessions Judge, Nainital after hearing the parties on 16.01.1990 framed the charge of offence punishable u/s 307 read with Section 34 and 398 I.P.C. against the accused/appellants Babbu and Raju and on the same day the accused Babbu was separately charged for the offence punishable u/s 307 I.P.C. On the same day the accused/appellant Babbu was further charged for the offence punishable u/s 25 Arms Act and the accused/appellant Raju stood charge for the offence punishable u/s 4/25 Arms Act. The charges were read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 8. The prosecution, to prove its case, has examined PW-1 Chaman Singh-complainant and eye witness, PW-2 Kripal Singh-eye witness, PW-3 Bhagwat Singh-eye witness, PW-4 Constable Nar Ram- who has prepared the Chik First Information Report and made necessary entries in the G.D., PW-5 S.I. Ashok Tyagi-Investigating Officer and PW-6 Dr. 5 Narendra Singh-Medical Officer who has examined the accused/ appellants. 9. The oral and documentary evidence was put to the accused/appellants in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. The accused/appellants did not produce any oral or documentary evidence in their defence. 10. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned IV Addl. Sessions Judge Nainital vide his judgment and order dated 30.11.1990 convicted the accused/appellants and sentenced them as mentioned above. Aggrieved with the impugned judgment and order dated 30.11.1990, the present accused/appellants have come up in the instant Criminal Appeal. 11. To prove its case, the prosecution has examined PW-1 Chaman Singh-complainant who has stated that on 24.06.1989 he was coming from Ramnagar alongwith Bala Dutt, Kripal Singh and Dan Singh, after purchasing domestic articles and was going to his village alongwith his companions. When they reached about 1-2 Kms. ahead from Ramnagar, meanwhile four miscreants ambushed in the bushes came out of the bushes. Suddenly, the accused Babbu took out Tamancha and fired on the complainant with the intention to kill him, but he got succeeded in saving his life. The rest of the accused persons were armed with the knives. The robbers asked them to take out all the materials you possess otherwise they would kill them. On hearing the sound of the fire Bhagwat Singh, Hira Singh and Bali Ram were reached at the place of occurrence and some other people have also came on the place of incident. On being challenged by the person gathered there, 6 all the miscreants fled towards Kosi River. All the persons gathered at the place of occurrence have chased the miscreants and surrounded them and apprehended the miscreants. On seeing pistol and knives in the hands of miscreants, the persons gathered at the site have started beating the miscreants with stones and DANDAS and due to this Marpit, the accused/appellants and two other miscreants got injured. The pistol and knives were snatched from the miscreants. One pistol, three live cartridges and one empty cartridge was recovered from the possession of the accused Babbu, for which he had not licence. Three knives were recovered from the possession of rest each of the three accused persons. The accused persons who were caught by the people have disclosed their names as, Babbu, Raju, Chhotu and Prem. When the accused persons were taken to the hospital by the complainant and other persons, the accused Prem was succumbed to the injuries and the other miscreant Chhotu died in the hospital. The present accused/ appellants Babbu and Raju were admitted in the hospital. He has further averted that he lodged the First Information Report Ext. Ka-1 at Police Station Ramnagar. It is further stated that the above incident had taken place at about 7:30-8:00 p.m. He identified the recovered items before the Court i.e. the pistol Ext.-1, three live cartridges and one empty cartridge Ext. Ka 2 to 5, knife Ext. 6 which was recovered from the accused Raju, knife Ext.-7 recovered from Chhotu and knife Ext.-8 recovered from Prem Singh. All these articles were given in the possession of the Police. Recovery memo Ext. Ka-2 in regard to the pistol with 3 live cartridges and one empty cartridge and recovery memos Ext. Ka-3, Ext. Ka-4 & Ext. Ka-5 in regard to three knives were prepared. He identified his signatures on the recovery memos Ext. Ka2, Ka3, Ka4 & Ka5. This witness has been cross examined by the defence counsel at length; but nothing has come out in his statement which may create doubt in his evidence. The evidence of this witness on each and every 7 aspect is reliable, believable and trustworthy. The prosecution has further examined PW-2 Kripal Singh and PW-3 Bhagwat Singh and they have also deposed in identical manner as per the evidence of PW-1 Chaman Singh. The evidence of PW-1 Chaman Singh is corroborated from the evidence of PW-2 Kripal Singh and PW-3 Bhagwat Singh who are also the eye witnesses of the above said incident. 12. Prosecution has further examined PW-4 Constable Nar Ram who has stated that on 24.06.1989 he was posted at Police Station Ramnagar. On that day after receiving the written report Ext. Ka-1 from the complainant, he prepared the Chik F.I.R. Ext. Ka-6 and entry in this regard was made in the G.D., a copy of which is Ext. Ka-7. 13. PW-5 S.I. Ashok Tyagi has conducted investigation of the case, who has stated that on 24.06.1989 he was posted as Sub Inspector at the police station Ramnagar. The investigation of the crime was entrusted to him. On the same day he made the entries of FIR, recovery memos of one pistol, three live cartridges and one empty cartridge in the case diary. During the course of investigation he recorded the statements of the witnesses. He took in his possession the dead body of Prem Singh and prepared the inquest report Ext. Ka-8. He proved Ext. Ka-9 and Ka-10. He took the dead body of Chhotu in his possession and prepared the inquest report Ext. Ka-11. He proved Ext. Ka-12 and Ka-13. After making spot inspection he prepared the site plan Ext. Ka-14 of the place of occurrence. After completing investigation, he submitted charge sheet Ext. Ka-15 against the accused/appellants. 14. PW-6 Dr. Narendra Singh, Medical Officer was also examined by the prosecution, who has stated that on 24.06.1984 he was posted at Civil Hospital, Ramnagar and on that night at 11:00 p.m. he medically examined the accused 8 Babbu and a medical report was prepared by him which is Ext. Ka-16. On the same day he also medically examined the accused Raju and prepared the medical report Ext. Ka-17. 15. The oral and documentary evidence was put to the accused/appellants in the form of questions u/s 313 Cr.P.C. who, in reply, have denied the allegations made against them and have stated that they have been falsely implicated in the case. The accused/appellants did not produce any oral or documentary evidence in their defence. 16. Learned Amicus-Curiae for the appellants has contended that as per the evidence produced by the prosecution, no offence punishable u/s 398/ 307 I.P.C., u/s 25 Arms Act and that of punishable u/s 4/25 Arms Act, is made out against the accused/appellants. But in order to prove its case, the prosecution has examined PW-1 Chaman Singh-complainant who has stated that on 24.06.1989 he was coming from Ramnagar alongwith Bala Dutt, Kripal Singh and Dan Singh after purchasing domestic articles and was going to his village alongwith his companions. When they reached about 1-2 Kms. ahead from Ramnagar, meanwhile four miscreants came out of the bushes. Suddenly, the accused Babbu took out Tamancha and fired on the complainant with the intention to kill him, but he got succeeded in saving his life. The rest of the accused persons were armed with the knives. The robbers asked them to take out all the materials you possess otherwise they would kill them. On hearing the sound of the fire Bhagwat Singh, Hira Singh and Bali Ram were also reached at the place of occurrence and some other people have also came on the place of incident. On being challenged by the person gathered there, all the miscreants fled towards Kosi River. All the persons gathered at the place of occurrence have chased the miscreants and surrounded them and apprehended the miscreants. On seeing pistol and knives in the hands of the miscreants, the 9 persons gathered at the site have started beating the miscreants with stones and DANDAS and due to this Marpit, the accused/appellants and two other miscreants got injured. The pistol and knives were snatched from the miscreants. One pistol, three live cartridges and one empty cartridge was recovered from the possession of the accused Babbu, for which he had not licence. Three knives were recovered from the possession of the rest of each of the three accused persons. The accused persons who were caught by the people have disclosed their names as, Babbu, Raju, Chhotu and Prem. When the accused persons were taken to the hospital by the complainant and other persons, the accused Prem was succumbed to the injuries and the other miscreant Chhotu died in the hospital. The present accused/ appellants Babbu and Raju were admitted in the hospital. Evidence of PW-1 Chaman Singh is quite convincing, natural and inspires confidence and there is no reason to disbelieve his evidence. Evidence of PW-1 Chaman Singh is corroborated from the evidence of PW-2 Kripal Singh and PW-3 Bhagwat Singh who are also the eye witnesses of above said incident. The testimony of PW-1 Chandan Singh is fully corroborated with the other material and oral evidence adduced by the prosecution. 17. Thus, the prosecution has proved beyond reasonable doubt that on 24.06.1989 at 8:00 p.m. the accused/appellant alongwith their two other associates Chhotu and Prem Singh tried to commit robbery to the complainant and his other companions on the highway (motor road) when they were coming from Ramnagar to their respective villages, after purchasing necessary items for their houses, and when the miscreants could not succeed to get snatch the items from the complainant and his companions, the accused/appellant Babbu fired with the country made pistol on the complainant Chaman Singh but fortunately he succeeded to save his live and the other accused/appellant Raju tried to commit robbery 10 on the highway using deadly weapon like knife. In this way the accused/appellants have committed offence punishable u/s 398/307 I.P.C. and the prosecution has successfully proved its case beyond reasonable doubt. One country made pistol 12 bore, three live cartridges were recovered from the possession of the accused/ appellant Babbu on the date of the said incident i.e. on 24.06.1989 for which he had no licence. The accused Babbu also used the pistol as a weapon and fired on the complainant Chaman Singh to commit robbery. For prosecuting the accused Babbu u/s 25 Arms Act, the Investigating Officer has also obtained sanction Ext. Ka-21 from the District Magistrate, and the District Magistrate has accorded permission on 30.08.1989 after examining the necessary papers to prosecute the accused Babbu u/s 25 Arms Act. In this way the accused/appellant Babbu has committed offence punishable u/s 25 Arms Act. From the possession of the accused/appellant Raju a knife of prohibited measure was recovered on the date of incident i.e. on 24.06.1989 and he also tried to commit robbery alongwith his associates in the highway and used the deadly weapon like knife of the prohibited measurement to commit robbery. In this way the accused/appellant Raju has committed offence punishable u/s 4/25 Arms Act and the prosecution has successfully proved its case beyond reasonable doubt. 18. The accuse/ appellants could not show as to what was the reason to implicate them falsely, leaving behind the real culprits. Thus, from the evidence discussed above, the prosecution has proved its case against the accused/appellants beyond reasonable doubt and my view is also concur with the view taken by the Trial Court and the judgment and order dated 30.11.1990 passed by the learned IV Addl. Sessions Judge, Nainital is justified and correct as per the evidence available on the record and as per the discussions above, which 11 does not warrant interference at this stage and the appeal preferred by the appellants is liable to be dismissed. 19. Accordingly, the appeal preferred by the accused/ appellants Babbu and Raju is hereby dismissed. The conviction and sentence awarded by the learned IV Addl. Sessions Judge, Nainital to the accused/ appellants vide judgment and order dated 30.11.1990, is hereby affirmed. The accused/ appellants are on bail; their bail-bonds are hereby cancelled. 20. Let a copy of this judgment, alongwith the record of the Court below, be sent back to the Trial Court to make accused/appellants to serve out the sentence awarded to them. (Dharam Veer, J.) 01.08.2008 NCM: