Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 15 of 2006 amesh Chilwal alias Bombayya R ...…………. Appellant versus State of Uttarakhand ...…………. Respondent Along with Criminal Appeal No. 16 of 2006 amesh Chilwal alias Bombayya R ...…………. Appellant versus State of Uttarakhand ...…………. Respondent Mr. S.K. Agarwal, Sr. Advocate assisted by Ms. Krishi Shukla, Advocate, for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. Mr. Lalit Sharma, Advocate for the complainant. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. These two appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 are directed against the common judgment and order dated 07.01.2006, passed by Addl. Sessions Judge / Special Judge, Gangsters Act / II F.T.C., Nainital, in Special Sessions Trial No. 28 of 2005 and 2 Special Sessions Trial No. 118 of 2005, whereby appellant Ramesh Chilwal alias Bombayya has been convicted under Section 302 of the Indian Penal Code, 1860 (for short I.P.C.), and one punishable under Section 2/3{3(1)} of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (for short, Gangsters Act). In Special Sessions Trial No. 118 of 2005, he has been convicted under Section 25 / 27 of the Arms Act. He has been sentenced to undergo imprisonment for life and directed to pay a fine of ` 1,00,000/- under Section 302 of I.P.C., and rigorous imprisonment for a period of ten years and directed to pay a fine of ` 50,000/- under Section 2 / 3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. He has also been sentenced to undergo rigorous imprisonment for a period of seven years and directed to pay a fine of ` 25,000/- under Section 27 of the Arms Act. 2. Prosecution story, in brief, is that P.W.1 Satish Chandra Joshi (complainant) gave a written report (Ext. Ka- 1) to police station Kathgodam stating therein that on 01.11.2004, at about 05:00 P.M. a man (Lokman Singh Bisht) came to his residence and asked his son Vineet Joshi (deceased) to meet accused Ramesh Chilwal alias Bombayya at the Dharamkanta (weighment machine) owned by the accused. The complainant also stated that later on it came to his knowledge that Ramesh Chilwal alias Bombayya has murdered his son by pumping bullets on his person at Golagate Dharamkanta, Shishmahal. A number of persons present there also witnessed this incident. The accused later on fled away from the scene of occurrence. It has also been 3 stated in the FIR by the complainant that his elder son Pawan was also murdered in the same manner in January 1999. On the basis of the written report given by Kundan Singh (P.W.1), police registered first information report (Ext. Ka- 16) against accused Ramesh Chilwal alias Bombayya and Crime No. 580 of 2004 was registered against him relating to offence punishable under Section 302 of I.P.C. on the very day i.e. 01.11.2004 at about 15:45 hours. The investigation was initially taken up by S.I. Shiv Singh Gusain. During investigation Lokman Singh Bisht was also arrested in connection with the offence punishable under Section 302 read with Section 120-B of I.P.C. The Investigating Officer, during investigation, also requested remand of the accused Ramesh Chilwal under the provisions of Gangsters Act for commission of antisocial activities by creating terror among the members of the society. The same was granted by the competent court. The 9 mm pistol used in the crime was also recovered on pointing out of accused Ramesh Chilwal alias Bombayya. Meanwhile, after taking the dead body in their possession, the police inspected the spot, prepared site plans (Ext. Ka-7 and Ext. Ka-11), inquest report (Ext. Ka-8), sketch of the dead body (Ext. Ka-9), Police Form No. 13 (Ext. Ka-10), and other necessary papers, and the dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. Vimal Pant (P.W.6) on 01.11.2009, at 05:50 P.M., who prepared autopsy report (Ext. Ka-6). The Medical Officer after conducting postmortem examination, opined that the deceased had died due to haemorrhage and shock as a result of gunshot injuries. After interrogating the witnesses and on completion of 4 investigation, P.W.11 S.I. Chandan Singh Jadot filed charge sheet (Ext. Ka-22) against accused Ramesh Chilwal alias Bombayya and Lokman Singh Bisht for their trial in respect of offences punishable under Section 302 / 120-B of I.P.C. and under Section 3/2 of Gangsters Act. A separate charge sheet (Ext. Ka-27) was also filed by Investigating Officer P.W.12 S.I. Gajendra Singh Rautela in respect of offence punishable under Section 25/27 of the Arms Act against accused Ramesh Chilwal alias Bombayya. 3. The Magistrate, on receipt of the charge sheets, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the cases to the court of sessions for trial. Learned Special Judge (Gangsters Act) / II F.T.C., Nainital on 31.08.2005 / 03.10.2005, after hearing the parties, framed charges for the offences punishable under Section 302 read with Section 120-B of I.P.C. and one punishable under Section 2/3 of Gangsters Act against accused Ramesh Chilwal alias Bambayya and Lokman Singh Bisht. A separate charge was also framed by learned Addl. Sessions Judge / II F.T.C., Nainital, on 31.08.2005, against accused Ramesh Chilwal alias Bambayya in respect of offence punishable under Section 25/27 of Arms Act. Accused Ramesh Chilwal alias Bambayya pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Satish Chandra (informant and father of the deceased); P.W.2 Neeraj Joshi (an eyewitness); P.W.3 Deepak Sah alias Kannu (another eyewitness); P.W.4 Dinesh Chandra Phoolara (a witness of recovery of weapon used in commission of crime); P.W.5 S.S.I Haider Raza Zaidi 5 (witness of recovery of weapon); P.W.6 Dr. Vimal Pant (who conducted the postmortem examination); P.W.7 Addl. S.P. Mathura Prasad Juyal; P.W.8 S.I. Umesh Ram Arya; P.W.9 S.I. Shiv Singh Gusain (who started the investigation); P.W.10 Constable Ashok Kumar; P.W.11 S.I. Chandan Singh Jadot (who concluded the investigation) and P.W.12 S.I. Gajendra Singh Rautela (who submitted charge sheet under Section 25/27 of the Arms Act against the accused). The oral & documentary evidence and material exhibits was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged that he has been falsely implicated in the case. In defence, evidence of D.W.1 Manish Bhatt, Advocate was adduced. After hearing the parties, the trial court believed the testimony of the eyewitnesses and found that the accused was guilty of charge of offence punishable under Section 302 of I.P.C., and one punishable under Section 2/3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. The trial court also found the accused guilty of charge of offence punishable under Section 25 / 27 of the Arms Act. After hearing on sentence, accused Ramesh Chilwal alias Bombayya has been sentenced to undergo imprisonment for life and directed to pay fine of `1,00,000/- under Section 302 of I.P.C., and rigorous imprisonment for a period of ten years and directed to pay fine of ` 50,000/- under Section 2 / 3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. He has also been sentenced to undergo rigorous imprisonment for a period of seven years and directed to pay fine of ` 25,000/- under Section 27 of the Arms Act. Aggrieved by said judgment and order dated 07.01.2006, the convict preferred these two appeals. 6 4. We have heard learned counsel for the appellants, learned Additional Government Advocate for the State and learned counsel for the complainant and perused the record. 5. P.W.6 Dr. Vimal Pant found the following ante mortem injuries on the body of Vineet Joshi: 1(a) Gun shot wound of entry 1 cm X 1 cm present over neck below thyroid cartilage. Margin irregular and inverted. No blackening scorching and tattooing present. On further exposure of wound subcutaneous tissue, muscle, trachea, aesophagus, blood vessels, nerves lacerated. 1(b) Gun shot wound of exit 1.5 cm X 1.5 cm present over back, below neck in the right scapular region, margin irregular and everted. No blackening scorching or tattooing present. When a probe is passed through injury no. 1(a) passes through and through injury no. 1(b). 2(a) Gun shot wound of entry 1 cm X 1 cm present over left chest 3 cm below left nipple. Margin irregular and inverted. No blackening, scorching or tattooing present. On further exposure of wound subcutaneous tissues lacerated 4th and 5th rib fractured. Laceration of left pleura, lung tissue and 2 lb of blood in the plural cavity. Heart lacerated and blood in pericardial cavity. 2(b) Gun shot wound of exit 2 cm X 2 cm present over left back on the left infra scapular region at the level of 7th thoracic spine, margin irregular and everted. No blackening, scorching and tattooing present. On exposure of wound subcutaneous tissues and muscles 7 lacerated. Fracture of 7th and 8th rib posterior aspect fractured. 3(a) Gun shot wound of entry 1 cm X 1 cm present over left unfraclavieling region 4 cm below left clavicle. Margin irregular and inverted. No blackening, scorching and tattooing present. On further exposure of wound subcutaneous tissues, mussels present and left lung tissue lacerated. Blood in plural cavity. 3(b) Gun shot wound of exit 2 cm X 2 cm present over left auxiliary region, margin everted and irregular. No blackening, scorching and tattooing present. On exposure subcutaneous tissues, muscles, vessels and nerves lacerated. A probe passed through and through injury no 3(a) and 3(b). 4(a) Gun shot wound of entry 1 cm X 1 cm present over left forearm (posterior aspect) 6 cm below elbow joint. Margin irregular and unvested. No blackening, tattooing and scorching present. On further exposure subcutaneous tissues lacerated, mussels, blood vessels and nerves lacerated. 4(b) Gun shot wound of exit 3 cm X 4 cm present over left palmer aspect, margin irregular and everted. No blackening, scorching and tattooing present. Subcutaneous tissues and muscles lacerated. 5(a) Gun shot wound of entry 1 cm X 1 cm present over left gluteus region. Margin irregular and inverted. No blackening, scorching and tattooing present. On further exposure of wound subcutaneous tissues, muscles, vessels lacerated. 5(b) Gun shot wound of exit 2 cm X 2cm present left thigh region 9 cm below anterior iliac spine. Margin irregular and everted. No blackening, scorching and tattooing present. A probe passed through and through injury no. 5(a) and 5(b). 8 6(a) Gun shot wound of entry 1 cm X 1cm present over right thigh region posterior aspect. Margin irregular and inverted. No blackening, scorching and tattooing present. 6(b) Gun shot wound of exit 2 cm X 2 cm present right thigh region. Margin irregular and everted. No blackening, scorching and tattooing present. Probe passed through injury no. 6(a) and 6(b) is through and through. 7. Lacerated wound 3 cm X 2 cm present over left chest just lateral to left nipple. 6. The Medical Officer while removing the clothes from the dead body during ante mortem examination, found one bullet. In the opinion of the Medical Officer the cause of death is due to haemorrhage and shock as a result of gun shot injuries. 7. A description of the documents, materials and articles, which have been proved by the prosecution, has been given by the learned trial court at page nos. 4 to 7 of the judgment. We need not repeat the same. 8. P.W. 1 Satish Chandra Joshi is the informant who has proved the information given to Police Station Kathgodam, Ext. Ka- 1. One Lokman Singh Bisht came to his residence to inform his son Vinit Joshi that the accused / appellant Ramesh Chilwal has called him. The informant knew Lokman Singh Bisht before this incident. Vinit Joshi (victim- deceased) left the house. Soon thereafter, a labour came to the residence of P.W.1 Satish Chandra Joshi to inform that accused / appellant Ramesh Chilwal alias Bombayya has 9 fired gunshot on the person of Vinit Joshi. Although the evidence tendered by P.W. 1 Satish Chandra Joshi is hearsay evidence but the information given by the labour within 10 to 15 minutes of leaving house by Vinit Joshi is a fact which is relevant to subsequent conduct. 9. P.W. 2 Neeraj Joshi is the eye witness who met Vineet Joshi at Kathgodam-Nainital Highway. He has stated that on the date of incident a truck of accused / appellant passed through society weighing machine without paying weighing tax. The weighing machine was installed by the State Government in order to curve illegal extraction from river Gola. Vineet Joshi was one of the members of the society to manage the affairs of weighing machine. On 01.11.2004 at about 3 p.m. when P.W. 2 Neeraj Joshi was with Deepak Balutia at Nainital main road, Vineet Joshi met and informed him that he will make it clear to Ramesh Chilwal that he will not be allowed to extract coarse sand and bajri without paying any royalty and will not be allowed any type of theft from river Gola. Vineet Joshi (deceased) and P.W. 3 Deepak Sah went together on TVS motorcycle of Vineet Joshi. Vineet Joshi went to the room of Ramesh Chilwal which was constructed on the first floor, adjacent to the weighing machine. P.W. 2 Neeraj Joshi and P.W. 3 Deepak Sah followed Vineet Joshi. Ramesh Chilwal threatened to kill Vineet Joshi. Accused / appellant Ramesh Chilwal fired gunshot on the person of Vineet Joshi with the revolver. On hearing the gunshot and voice of Vineet Joshi (since deceased), P.W. 2 Neeraj Joshi and P.W. 3 Deepak Sah rushed towards the ground floor and concealed themselves on 10 the eastern corner of the building. In the meantime, they also heard the sound of 3-4 more gunshots. Vineet Joshi came down from the staircase. Ramesh Chilwal chased him. No sooner Vineet Joshi turned his face towards the accused / appellant Ramesh Chilwal, the later pumped 3-4 bullets on his person. The victim covered a few yards distance while trembling and fell down near Devi Temple towards railway barrier. P.W. 2 Neeraj Joshi and P.W. 3 Deepak Sah tried to rescue the victim by taking him to Sobhan Singh Jeena Base Hospital, Haldwani, but to no avail. He was declared dead. 10. P.W. 3 Deepak Sah is also an eye witness who has corroborated the evidence of P.W. 2 Neeraj Joshi. The place of occurrence and manner of committing the crime has been corroborated by this witness. 11. P.W.3 Deepak Sah in his cross-examination has said that the Dharamkanta (weighment machine) belongs to the forest department. Forest officials were posted there who used to weigh the trucks and took royalty. Deepak Sah was the employee of the Society. Vineet Joshi was not. The Dumper of Ramesh Chilwal used to pass through without paying royalty. Ramesh Chilwal had threatened Vineet Joshi to kill him. The work of sand and bajri was looked after by Vineet Joshi and therefore Ramesh Chilwal threatened Vineet Joshi. The dispute, in fact, according to this witness, related to non-payment of royalty by Ramesh Chilwal whose truck used to carry sand and bajri without paying such tax. The weighment of sand and bajri was done at the Dharamkanta of Ramesh Chilwal. The Dharamkanta of society was to be 11 inaugurated on 01.11.2004 in the evening. The functioning of Society Dharamkanta had started since morning. This witness had categorically stated that he had seen the accused firing at Vineet Joshi. When Vineet Joshi came down from the staircase, Ramesh Chilwal fired at him from a distance of 10-12 paces. Panic was created. The shopkeepers ran away from their shops. Vineet Joshi fell near the temple. When the bullets hit him this witness and P.W. 2 Neeraj Joshi reached there. People came there with tempo. They cried for help and remained with Vineet Joshi till the tempo was brought. Thus, there is noting in the cross-examination of this eyewitness which could benefit accused / appellant. If certain discrepancies are there, they are natural. Every person looks at the thing in his own way. Every person has his own way of describing the things. The Intelligence Quotient (IQ) of every person is not the same. He replies to the question as per his own understanding. The Court has to visualize the things according to the understanding of the witness. The Courts have great role to play in appreciation of evidence. Judging by this yardstick, we are of the opinion that there is nothing in the cross-examination of P.W.2 Neeraj Joshi and P.W.3 Deepak Sah which has benefitted accused / appellant. They have proved, by their eyewitness account, the brutal murder of Vineet Joshi by Ramesh Chilwal. 12. Any person who witnesses an incident reacts the same in his own way. Some are stunned, some become speechless, some stand uprooted from the spot. Every individual reacts in 12 his own way. There are no fixed set of rules of natural reaction. Life is stranger than fiction. 13. P.W. 4 Dinesh Chandra Phuleria is the witness of recovery of revolver used in the commission of crime by the accused / appellant Ramesh Chilwal. In a nutshell, he is the witness before whom the accused / appellant got the revolver recovered under Section 27 of the Indian Evidence Act. The Statement to the Police was given by the accused / appellant while he was in Police custody. The statement was given to P.W. 5 SSI Haider Raza Zaidi and on the basis of his confessional statement the revolver, which was used in the commission of crime was recovered. P.W. 5 SSI Haider Raza Zaidi has deposed that initially the accused / appellant gave the statement that the weapon used in the commission of the crime is in Bombay. He kept on changing the statements and finally gave the statement to the Investigating Officer that he had concealed the weapon in a house at Kathgodam and he can provide the weapon. Pursuant to his statement in the presence of P.W. 4 Dinesh Chandra Phuleria, the recovery was made. 14. P.W. 6 Doctor Vimal Pant conducted the post-mortem of the dead body of the deceased Vineet Joshi. The cause of death was the effect of injuries found on the body of the deceased. According to the P.W. 6 Doctor Vimal Pant, ante mortem injuries were found on the body of the deceased, the details of which are given in paragraph no. 5 of the judgment. 13 15. P.W. 7 Mathura Prasad Juyal is the 1st Investigating Officer who has conducted the investigation to some length. P.W. 8 Umesh Ram Arya is the witness of Panchnama. P.W. 9 Shiv Singh Gusain is the 2nd Investigating Officer, P.W. 10 Ashok Kumar has proved chik FIR and certain entries in the General Diary. P.W. 11 Chandan Singh Jadaut is the 3rd Investigating Officer. P.W. 12 Gajendra Singh Rautela is the Investigating Officer, who has conducted investigation for the offence under section 25/27 Arms Act and filed charge sheet in relation to this offence. 16. The learned trial court had also charged co-accused Lokman Singh Bisht under Section 302/120B IPC and Section 2/3 {3(1)}, U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986, but did not find any evidence of incriminating nature against Lokman Singh Bisht and hence he was acquitted of the charges framed against him. There is no State Appeal against such acquittal and hence we leave the matter here as it is. 17. Coming back to the case of accused / appellant Ramesh Chilwal, one witness D.W.1 Shri Manish Bhatt, Advocate was examined on behalf of the accused-appellant. Learned Advocate was permitted to remain present with the accused during his police custody remand for 7 days. 18. A perusal of the cross-examination of P.W. 2 Neeraj Joshi and P.W. 3 Deepak Sah reveals that nothing has come out in favour of the accused / appellant. Nothing favourable to the appellant has come out which may create a bonafide 14 doubt regarding the presence of these witnesses on the place of occurrence. The evidence tendered by these two witnesses is wholly reliable. Minor variations here and there are not going to affect the prosecution story adversely. The motive behind the killing is clear. It is true that enmity is a double- edged weapon. One can commit crime out of the enmity and there is also a possibility that a person can be falsely implicated on the pretext of enmity. When direct evidence is there and the murder has taken place in broad day light, the ocular version of the eyewitness is trustworthy and wholly reliable, the motive goes into the hindsight. Also their evidence cannot be discarded only on the pretext that they may be chance witnesses. The ocular evidence of P.W. 2 Neeraj Joshi has been fully corroborated by P.W. 3 Deepak Sah. It passes the test of the imagination of a common reasonable man. There may be variations in the words spoken by the accused / appellant before firing gunshots but the import of the words uttered by the assailant is the same. Variations, if any, in the cross-examination of P.W. 2 Neeraj Joshi and P.W. 3 Deepak Sah are natural variations. The incident has taken place in broad day light and none of them can be said to be partisan witness. P.W. 4 Dinesh Chandra Phuleria is the independent witness of confession of the accused / appellant which led to the recovery of weapon under section 27 of the Indian Evidence Act and so is the ocular testimony of P.W. 5 SSI Haider Raza Zaidi, who has corroborated in his evidence the circumstances leading to the recovery of revolver on disclosure of the accused-appellant. The ocular testimony of eye witnesses is duly supported by medical evidence. Otherwise also it is a settled principle of 15 law that in case of contradiction in the ocular version and the medical evidence, the ocular version shall prevail unless and until the medical evidence does not completely rule out the oral testimony. The statement of P.W. 6 Doctor Vimal Pant largely supports the oral testimony of the witnesses. 19. Thus the learned trial court has rightly found that the prosecution has been able to prove its case against the accused / appellant Ramesh Chilwal beyond reasonable doubt. Where there is direct evidence, the motive to commit crime is put to back burner but even then the motive to commit crime is proved in the instant case. The motive for committing the murder of Vineet Joshi was to facilitate extraction of coarse sand and bajri from river Gola without paying any royalty and Government tax. The accused / appellant Ramesh Chilwal had fired the bullets on the person of Vineet Joshi with intention to kill him. He fell to the bullets of assassin. Apart from the charges framed u/s 302/120B IPC, the offence punishable u/s 25/27 Arms Act and section 2/3 {3(1)}, U.P. Gangster & Anti Social Activities (prevention) Act, 1986 are also proved against the accused-appellant. These days when crime is looming large and humanity is suffering, the duties and responsibilities of the courts have increased manifold. The prosecution has also been able to prove that accused / appellant was a member of a gang by violence or threat of show of violence, or intimidation or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage of himself or of any other person, indulge in anti-social activities for any of the 16 criminal acts mentioned under Section 2(b) of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. 20. Learned Additional Government Advocate has argued that the FIR was promptly lodged by the father of the deceased. There are number of charges against the accused- appellant. He is a hardcore criminal. Recovery memo contains the signatures of the accused-appellant. The services of one learned counsel Shri Manish Bhatt were provided to him