Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 26 OF 2005 Javed Khan ……Appellant. (In Jail) Versus State of Uttaranchal ..Opp. Party. Present:- Mr. K.S. Rautela, Amicus Curiae with Mr. C.K. Sharma, Advocate for the appellant. Mr. Amit Bhatt, AGA for the State of Uttarakhand. With CRIMINAL APPEAL NO. 177 OF 2004 Chunnan ….Appellant. Versus State of Uttaranchal. …Opp. Party. Present:-Mr. M.K. Goel, Advocate for the appellant. Mr. Amit Bhatt, AGA for the State of Uttarakhand. Coram: Hon’ble Nirmal Yadav, J. Hon’ble Sudhanshu Dhulia, J. JUDGMENT Sudhanshu Dhulia, J. 1. These two appeals (are of the co-accused) arise out of the judgment and order dated 9.6.2004 passed by Additional Sessions Judge / III F.T.C. Udham Singh Nagar in Sessions Trial No. 393 of 2001 State Vs. Javed and others under Section 452, 302, 354, 323, 504 and 506 of Indian Penal Code (from hereinafter referred to as IPC), Sessions Trial No. 392 of 2001 State Vs. Javed under Sections 25 of Arms Act, Sessions Trial No. 391 of 2001 State Vs. Chunnan under Sections 4/25 of Arms Act with Sessions Trial No. 45 of 2002 State Vs. Ibney Ali 2 under Section 25 of Arms Act. The learned Additional Sessions Judge has convicted the accused / appellant Javed under Section 302 IPC and sentenced him to undergo life imprisonment and a fine of ` 2000/-. Accused / appellant Javed has further been convicted under Section 452 IPC and has been sentenced to undergo three years and six months’ rigorous imprisonment and a fine of ` 500/- and in case he does not pay the fine, it was directed that he will undergo further rigorous imprisonment for two months. Accused/appellant Javed Khan has been further convicted under Section 354 IPC and has been sentenced to undergo rigorous imprisonment for one year. He has further been sentenced to undergo rigorous imprisonment for six months under Section 504 IPC and for six months under Section 506 IPC. Accused / appellant Javed Khan has further been convicted under Section 25 of Arms Act in Sessions Trial No. 392 of 2001 and has been sentenced to undergo rigorous imprisonment for two years. All these sentences have to run concurrently and in case of non-payment of fine, it was directed that the accused/appellant Javed Khan shall bear the aforesaid sentences separately. Accused / appellant has been acquitted under Section 323 IPC having been given the benefit of doubt. Accused / appellant Chunnan was acquitted under Section 302, 323, 504 and 506 IPC and under Section 4 / 25 of Arms Act but has been convicted under Sections 452 and 354 IPC and sentenced to undergo rigorous imprisonment for three and a half years under Section 452 IPC and to pay fine of ` 500/- and sentenced to undergo rigorous imprisonment for one year under Section 352. Co- accused Ibney Ali has been acquitted of all the charges 3 under Section 452, 354, 323, 504, 506 and 302 IPC and also Section 25 Arms Act. 2. These separate appeals have been filed by accused / appellants Javed Khan and Chunnan respectively, against their conviction and sentence. 3. Sri M.K. Goyal appears for the appellant Chunnan in criminal appeal No. 177 of 2004 but since the counsel shown for appellant Javed did not appear in spite of the list being revised and his name being called twice, the Court vide order dated 17.2.2011 appointed Mr. T.S. Rautela, Advocate as an Amicus Curiae and directed the Registry to prepare the paper book and to supply the same to the amicus curiae. Mr. M.K. Goyal, Advocate was, however, heard on 18.2.2011 as well, and the Amicus Curiae Sri K.S. Rautela and Sri M.K. Goel were heard at length on 21.2.2011. 4. From the arguments addressed on behalf of the learned counsel for the appellants, learned AGA Sri Amit Bhatt and from the perusal of the records, the case of the prosecution is as follows:- An FIR was lodged by the informant Sajid Khan, son of Shakir Khan on 5.9.2001 at about 8:30 p.m. stating that on 5.9.2001 in the morning two persons of the same village Javed Khan, son of Ahmad Khan as well as Chunnan S/o Sakaan Khan with an evil intentions entered the house of another person of the same village, namely, Sri Mahmood Ali, S/o Laddan Khan and started “CHHEDKHANI” with his wife, namely, Smt. Anno. It was further stated that Chunnan was carrying a “PATAL” (a 4 sharp edged weapon). When the husband of Smt. Anno, Sri Mahmood Ali resisted the advances made by these two persons, they started a fight with him and all of them came out of the house; scuffling with one another. It is further stated in the FIR that in the ensuing scuffle, injuries were caused on the hands of Javed and Mahmood Ali due to the PATAL held by Chunnan. The informant further states that in the neighbourhood his elder brother Washid Khan was standing who tried to stop Chunnan Khan and Javed and remarked as to whether they do not have mother and sisters in their house and if somebody does the same things with their mother and sisters, then how would they feel! As a reply to this accused /appellant Javed Khan abused Washid, and threatened him that he would see him first. After this, both these persons (namely accused / appellants Javed and Chunnan) went away. After a few minutes, the accused/appellant Javed Khan with his brother Ibney Ali, carrying “Tamancha” (country made pistol) and “Paunia” (a country made pistol which has a barrel slightly longer than Tamancha), respectively, returned to the place of occurrence shouting abuses. The brother of the informant namely Washid Khan was standing near the house of one Rahmat Ullah. Accused / appellant Javed Khan fired from his country made pistol (Tamancha) on Washid Khan with an intention to kill him. Consequently after sustaining firearm injuries, Washid Khan fell to the ground and died on the spot. Accused/ appellant Javed Khan, who wanted to escape was overpowered by the first informant, Shahid Khan and Buddh Khan, and other who also snatched his “Tamancha”. However, Ibney Ali escaped. The report further states that accused / appellant Javed Khan has been detained in the village. It 5 has further been stated that the report be lodged and necessary proceedings be done. On the first information, a criminal case being Criminal Case No. 836 of 2001 was registered at Police Station Kichha, District Udham Singh Nagar. As per the prosecution case, the FIR was lodged at about 8.30 A.M. on 5.9.2001 and the investigation was started at 9.45 A.M. on the same day. After taking simple soil and blood stained soil into custody at 11 A.M., the Inquest Report was finally prepared. 5. The prosecution had produced as many as eleven witnesses. Out of these eleven witnesses, PW1 Sazid Khan, PW2 Smt. Anno Begum and PW3 Shahid Khan are the eye-witnesses to this incident. Apart from the deceased, there were three persons who sustained injuries in the incident, namely, Mahmood Ali, Shahid and Javed (accused/appellant). Shahid Ali is the brother of the informant. All the three injured were examined by the Medical Officer, Community Health Centre, Kichha, Udham Singh Nagar. 6. First person to be medically examined was accused/ appellant Javed. He was examined at 11.35 A.M. on 5.9.2001. In his medical examination, the following injuries were found on his body:- (1) Incised wound size 3.00 cm trans X 0.5 cm vert. X bone deep on Anterior side of right Hand 2.00 cm Above Metacorpophalangeal joint of right index finger. Red in colour profuse bleeding present. (2) Fine superficial linear incised wound size 1.00 cm trans X muscle deep on distal phalynx of left 6 ring finger. 1.5 cm above tip of left Ring Finger. Red in colour. Fresh bleeding present. (3) Linear abrasion size 1.00 cm vert. on anterior side of left thumb over distal phalynx just below inter phalangeal joint of left thumb. Red in colour. Slight fresh bleeding present.” 7. Second to be examined was Mahmood Ali who was examined at 12.15 Noon on 5.9.2001 and in his medical examination, the following injuries were found on his body:- “Incised wound size 5.5 cm oblique x 1.00 cm trans. x bone deep on right hand on anterior side extending from 0.5 cm below ulner end of right wrist joint towards downwards and outwards. Red in colour profuse bleeding present.” 8. Third was Shahid. He was examined at 12.35 Noon on 5.9.2001 and in his medical examination, the following injuries were found on his body:- “Incised wound size 3.5 cm trans. X 0.5 cm vert. X muscle deep on Anterior side of left hand 2.5 cm below base of left thumb. Red in colour. Fresh bleeding present.” 9. During investigation, the police got information about Ibney Ali, who was caught on 10:00 p.m. on 5.9.2001 in the vicinity of the same Police Station i.e. Police Station Kichha and on his pointing out, the country-made pistol was recovered. Other co-accused, namely, Chunnan was arrested at 7.00 A.M. on 7.9.2001 and on his pointing out, the “PATAL” was recovered from his house. PW1 Sazid Khan in his deposition narrated 7 the incident as he has stated in the FIR (being the first informant). There are only minor discrepancies in his statement as PW1 and as informant in the FIR. In his deposition, he has stated that when Javed Khan and Chunnan had entered the house of Mahmood Ali, Mahmood Ali tried to resist the advances made by these two persons, which resulted in scuffle and “MAAR PEET” between the parties. PW2 Smt. Anno Begum has also supported the case of the prosecution and has stated that when accused / appellants Javed and Chunnan were doing “CHHEDKHANI” with her, her husband Mahmood Ali resisted. PW3 Shahid Khan gave the same deposition as PW1 Sazid Khan and there are no discrepancies in the statements of PW1 and PW3. PW2, however, in her deposition does not mention the presence of PW3 Shahid Khan. PW6 is the Doctor, namely, Dr. P.S. Kwargi, who had done medical examination on PW1 Sazid Khan as well as PW3 Shahid Khan and accused / appellant Javed Khan. He stated that Mahmood Ali had received an incised wound measuring 5.5 cm X 1 cm bone deep on his right hand and at the time of medical examination, there was bleeding in the wound and such an injury could come from a sharp edged weapon, and has certified that he had medically examined Mahmood Ali. PW3 Shahid Khan has also corroborated the evidence given by PW1 Sazid Khan and PW2 Anno Begum and there is no major discrepancies between the statement of PW1 and PW2. In fact barring one or two minor discrepancies, their statements complement one another. 10. One of the main arguments of learned counsel for accused / appellant Javed Khan is that the case of prosecution is that about 7.30 in the morning while 8 Chunnan was carrying a PATAL (sharp edged weapon) and Javed was carrying a country made pistol and they did some “CHHEDKHANI” with PW2 Anno Begum, and thereafter in the scuffle, Javed, Mahmood Ali and Shahid Khan sustained injuries, and more particularly, accused / appellant Javed Khan sustained injuries which is incised wound size 3.00 cm trans. X 0.5 cm vert. X bone deep on anterior side of right hand 2.00 cm above metacorpophalangeal joint of right index finger and it was profusely bleeding, yet how can such an injured person fire a trigger from a country made pistol immediately after 7 or 8 minutes? All the same, this question was also put to the expert witness Dr. P.S. Kwargi, who clearly gave his expert opinion and stated that looking to the nature of the injuries on the person of accused / appellant Javed, it was possible that he could have fired gun-shot after 7 or 8 minutes after sustaining the injuries. 11. Learned counsel for appellant / accused Javed has also stated that the prosecution story is totally unbelievable, particularly the manner in which the arrest of the assailant Javed has been shown. According to the prosecution, accused / appellant Javed was arrested on the spot. Learned counsel for appellant / accused has stated that in case Javed was overpowered, which is firstly unbelievable as he was carrying a pistol with him and normally in such circumstances, public is hesitant to overpower a person who is carrying a fire-arm with him. But considering that they had caught Javed, since two of them were the brothers of the deceased and there were many other villagers as well, they would have badly beaten up Javed and Javed would have sustained 9 injuries on his body. All the same, no such beating has been alleged, which cannot be considered normal under the circumstance. Although there is some strength in the argument of the appellant, yet we cannot loose sight of the fact that both the assailants of the deceased belongs to the same village. Some are also related to each other. Therefore, if Javed was overpowered and caught and yet not beaten, it is not entirely unbelievable. What is important here is that the incident is of about 7.30 A.M. and there is a prompt FIR of the incident at about 8.30 A.M. and immediately thereafter Police comes to the spot and Javed was arrested. There are no discrepancies in the statements of the witnesses, who have given statements to this effect. In the defence of appellant Javed, Amicus Curiae Mr. K.S. Rautela, Advocate has further stated that statement of PW2 Anno Begum cannot be accepted to be true and there are many discrepancies in her statement. There are definitely some minor discrepancies in her statement such as her appreciation of distance, date, time, etc., but this Court cannot again loose sight of the fact that this witness is an illiterate village woman and these minor discrepancies in her statement are natural. Counsel for appellant Javed has further stated that name of Shahid Khan does not figure in the First Information Report and comes for the first time in the statement of PW1 Sazid Khan. It also does not occur in the statement given by PW2 Anno Begum. It is true that the name of Shahid Khan PW3 who is an injured witness does not figure in the First Information Report, but considering the injuries sustained by him, as is given in the statement of PW1 and in his own deposition as PW3, which fully corroborates with that of other eye witnesses, there is no reason not to believe the 10 presence of PW3 on the place of incident. Another argument raised by appellant Javed is that as per the case of the prosecution, the deceased was killed at about 7:30 A.M. and autopsy was done on the same day at about 3 P.M. Thus, between the death of the deceased and autopsy, there is a gap of about 7 ½ or 8 hours, however, rigor mortis was observed on the body of the deceased. Counsel for appellant Javed has relied upon the statement given by the Expert Witness PW5 that in the month of September, rigor mortis occurs between 10 to 12 hours. Therefore, according to the statement given by the Expert Witness, the death has not taken place at 7:30 A.M., but has taken place somewhere at about 3 O’clock in the night. This Court has examined the statement given by the Expert Witness, which definitely states that rigor mortis can occur before 10 to 12 hours of death, however, according to Modi’s Medical Jurisprudence & Toxicology, Twenty-Second Edition (Student Edition), rigor mortis can occur at different times depending upon the persons as well as season, and it is possible that rigor mortis starts within three to six hours of the death of the deceased. Therefore, there can be no discrepancy in the case of the prosecution and the time of death, and it cannot be said that time of the death is incorrect. 12. Based on the evidence before the trial court, this Court is of the view that the prosecution had proved its case against Javed and he has been rightly convicted under Sections 302, 452, 354, 504, 506 IPC and 25 of Arms Act. We, therefore, find no cause to interfere in the finding and sentence of the trial court against Javed. It is a day light incident, where a gun-shot was fired by a 11 country made pistol on the vital part of the deceased, which stands proved by the statements given by the three eye-witnesses before the trial court i.e. P.W. 1 and P.W. 2 and PW3. This court, therefore, finds no occasion to interfere with the findings and sentence of the trial court as regarding the conviction of Javed under Sections 302, 452, 354, 504, 506 IPC and 25 of Arms Act, and uphold the sentence of life imprisonment and a fine of ` 2000/- under Section 302 IPC, three years and six months of rigorous imprisonment and a fine of ` 500/- under Section 452 IPC, in default of which further rigorous imprisonment for two months, rigorous imprisonment for one year under Section 354 IPC, rigorous imprisonment for six months under Section 504 IPC and rigorous imprisonment for six months under Section 506 IPC and rigorous imprisonment for two years under Section 25 of Arms Act. 13. We must now revert to the case of Chunnan and his role in the incident and the evidence produced by the prosecution against him. There are two incidents, which occurred on 5.9.2001 at a gap of about 7 to 8 minutes. The first incident is of 7.30 A.M., where it has been alleged that Javed along with Chunnan entered the house of Mahmood Ali and tried to do “Chhedkhani” with his wife. In other words improper advances towards the wife of Mahmood Ali were made by these two persons which was resisted by Mahmood Ali and these two persons, namely, Javed and Chunnan thereafter came out of the house, scuffling with Mahmood Ali. It is stated that in the scuffle Javed, Mahmood Ali and Shahid Khan sustained injuries on their hands. It is no body’s case that any assault was made by the PATAL which was allegedly being carried 12 by Chunnan. Moreover, the person, who was carrying “PATAL” i.e. Chunnan has not received any injuries, on his body. Further, there are discrepancies in the statements of PW1, PW2 and PW3, regarding this particular incident. Based on the evidence, it cannot be ascertained that Chunnan was actually carrying a “PATAL” while he entered the house of Mahmood Ali. In fact, his presence in the house of Mahmood Ali is highly doubtful. He has only been convicted and sentenced under Sections 452 and 354 IPC. Section 354 IPC in any case is not made out against Chunnan as there was no assault or criminal force made by him with an intention to outrage the modesty of a woman, definitely none was proved. Similarly, no case of house tress-pass under Section 452 IPC is also not made out against Chunnan as his presence on the site of occurrence seems to be doubtful. Based on the evidence on record and particularly because of the fact that no injuries have been sustained by Chunnan in the alleged scuffle, who was carrying “PATAL”, which is alleged to have caused injuries to these persons, as there was a scuffle between them and there being no finding of any assault being made by Chunnan with the “PATAL”, the presence of Chunnan in the scene of occurrence which occurred on 7.30 A.M. on 5.9.2001 appears to be doubtful, and he is liable to be given the benefit of doubt. 14. Therefore, this court is of opinion that based on the insufficient evidence produced before the trial court Chunnan was liable to be given the benefit of doubt. Accordingly the Criminal Appeal No. 177 of 2004 is hereby allowed, the conviction and sentence recorded by the trial court against the accused Chunnan is set aside. 13 He is on bail. His bail bonds are cancelled, and sureties are discharged. He need not surrender before the court. 15. Criminal Appeal No. 26 of 2005 of Javed is dismissed. Conviction and sentence recorded by the trial court against accused/appellant Javed is affirmed. He shall serve the remaining part of the sentence awarded by the trial court. 16. Let a copy of this order along with lower court record be sent back for its compliance. (Sudhanshu Dhulia, J.) (Nirmal Yadav, J.) 25.2.2011 Rathour