IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 270 of 2007 Shompal, S/o Bhure R/o Ahmad Nagar Colony Gramsabha Khanpur, Paschim, P.S. Gadarpur,District Udham Singh Nagar …..…Appellant (In Jail) Versus State of Uttarakhand ……….Opposite Party Shri A.S. Gill, Advocate, present for the appellant. Shri Prabhakar Joshi, Brief Holder, present for the State. And Criminal Appeal No. 264 of 2007 Rohit Kumar @ Rohtas S/o Dev Prakadh Gramsabha Khanpur, Paschim P.S. Gadarpur,District Udham Singh Nagar …..…Appellant Versus State of Uttarakhand ……….Opposite Party 2 Smt. Pushpa Joshi, Advocate, present for the appellant. Shri Prabhakar Joshi, Brief Holder, present for the State. Hon'ble Prafulla C. Pant, J. Hon'ble V.K. Bist, J. Oral: Hon'ble Prafulla C. Pant,J. Both these appeals are directed against the judgment and order dated 28.06.2007, passed by Sessions Judge, Udham Singh Nagar in Sessions Trial no. 350 of 2004, Sessions Trial No. 351 of 2004, and Sessions Trial No. 352 of 2004, whereby said court has convicted accused/appellant Shompal under section 302, 452, 307/34 Indian Penal Code, 1860 (for short IPC), and under section 25 Arms Act, and another accused/appellant Rohit @ Rohtas under section 452, 307, 302 read with section 34 IPC,and also under section 25 Arms Act. Accused/appellant Shompal has been sentenced to imprisonment for life and directed to pay fine of `10,000/- under section 302 IPC, and rigorous imprisonment for a period of five years under section 307/34 IPC, rigorous imprisonment for a period of two years under section 452 IPC, and rigorous imprisonment for a period of one year under section 25 Arms Act. Accused/appellant Rohit @ Rohtas has been sentenced to imprisonment for life, and directed to pay fine of `5,000/- under section 302/34 IPC, rigorous imprisonment for a period of 3 five years under section 307 IPC , rigorous imprisonment for a period of two years under section 452 IPC, and rigorous imprisonment for the period of one year under section 25 Arms Act. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that in the intervening night of 20th and 21st of July 2004, at about 11:30 p.m., P.W.1 Omprakash (complainant) alongwith his his wife P.W.2 Shanti Devi were sleeping in the courtyard of their house in Village Ahmad Nagar within the limits of Police Station Gadarpur District Udham Singh Nagar. In the same house in another room, their son Balbir Singh (deceased) and his wife Pushpa (P.W.3) were sleeping. Accused/appellant Shompal alongwith his one associate (Rohit @ Rohtas) came in the courtyard and called Balbir Singh. When Balbir came out in the courtyard accused/appellant Shompal fired a shot from a country made pistol at him. After receiving firm arm injury Balbir Singh fell down on the cot of his mother. To save her son, Shanti Devi covered by lying down over injured Balbir, on which the associate (Rohit @ Rohtas) of the accused/appellant Shompal fired shot from the country made pistol in 4 his hand, and Shanti Devi also got injured in the incident. The incident was also witnessed by Pushpa (P.W.3), wife of the deceased who had also come from her room to the courtyard. After the incident, the two accused ran away. Information was given to the police on which the police jeep came in the village, and the injured were taken firstly to Gadarpur hospital, from there to Rudrapur, and finally base hospital Haldwani. Meanwhile, Balbir Singh succumbed to the injuries and died before reaching Haldwani. Injured Shanti Devi (P.W.2) was admitted in the hospital at Haldwani. At about 4:30 a.m. (on 21.07.2004) P.W.1 Omprakash lodged the first information report (Ex. A1) at Police Station Gadarpur. On the basis of the report, crime no. 208 of 2004 was registered relating to offences punishable under section 302, 307 and 452 IPC, against the two accused i.e., Shompal and a unknown person. Meanwhile, at S.S. Jina Base Hospital, Haldwani, at about 3:40 a.m. (on 21.07.2007) P.W.5 Dr. S.B. Olee recorded injury on the person of Shanti Devi, and prepared injury report (Ex. A3). The investigation was taken up by P.W.9 Sub-Inspector P.K. Tyagi. At about 7:15 a.m., on 21.07.2004, P.W.11 Sub-Inspector Ram Kumar Juyal took the dead body of Balbir Singh in his possession from S.S. Jina Hospital, Haldwani, and prepared inquest report (Ex. A 27). He also got 5 prepared police form no. 13 (Ex. A28), sketch of the dead body (Ex. A29), letter to Chief Medical Officer (Ex. A30) requesting for post-mortem examination of the dead body. P.W. 4 Dr. Vimal Kumar conducted post-mortem examination on the dead body of Balbir Singh on 21.07.2004 at about 1:45 p.m.. He recorded the fire arm wound of entry as ante-mortem injury in the autopsy report (Ex. A2), and opined that deceased had died of shock and hemorrhage due to fire arm ante-mortem injury. The Investigating Officer interrogated the witnesses, inspected the spot, and prepared site plan (Ex. A11). Name of accused Rohit @ Rohtas figured in the statements of the witnesses with accused/appellant Shompal as his associate who committed crime with him. During investigation at the time of arrest of the accused/appellants Shompal and Rohit @ Rohtas two country made pistols one from the each accused was recovered by the police in respect of which separate crime nos. 216 of 2004, and 217 of 2004 were registered against each one of them in respect of offence punishable under section 25 Arms Act which were investigated by P.W. 8 Sub- Inspector Brijnandan. On completion of investigation, charge sheet (Ex. A23) was filed against the accused/appellant Shompal and Rohit for their trial in respect of offences punishable under section 452, 307, and 302 IPC. Separate charge sheets Ex. A12 and Ex. 6 A13 were filed against the accused/appellants Shompal and Rohit@ Rohtas respectively for their trial in respect of offence punishable under section 25 Arms Act alongwith the sanction (Ex. A14 and Ex. A15) given by the District Magistrate for their prosecution. 4. It appears that the Additional Chief Judicial Magistrate, on receipt of the charge sheets, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the three cases to the court of Sessions for trial. On 18.03.2005, after hearing the parties, learned Sessions Judge, Udham Singh Nagar, framed charge of offences punishable under section 452, 302, and 307 IPC, against accused/appellant Shompal. A separate charge was framed on the very day against accused Rohit @ Rohtas in respect of offences punishable under section 452, 302/34 and 307/34 IPC. Also, Separate charges were framed in respect of offence punishable under section 25 Arms Act against the two accused Shompal and Rohit. Both the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Omprakash (informant and eye witness), P.W.2 Shanti Devi (injured and eye witness), P.W.3 Pushpa Devi (widow of the deceased and eye witness), P.W.4 Dr. Vimal Kumar (who conducted 7 post-mortem examination on the dead body of Balbir Singh), P.W.5 Dr. S.B. Olee (who recorded injuries on the person of Shanti Devi), P.W.6 Constable Rajendra Singh (who prepared check report on the basis of FIR relating to offences punishable under section 302, 307 and 452 IPC, and made necessary entry in the General Diary), P.W.7 Sub-Inspector Amar Singh Negi (witness of recovery of fire arm from the two accused), P.W.8 S.I. Brijnandan (who investigated the crime relating to offence punishable under section 25 Arms Act),P.W.9 Sub-Inspector P.K. Tyagi (who investigated the crime no. 208 of 2004, relating to offences punishable under section 302, 307, 452 IPC), P.W.10 Arshad (declared hostile) and P.W.11 Sub- Inspector Ram Kumar Juyal (who prepared inquest report). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court, after hearing the parties, found accused/appellant Shompal guilty of charge of offences punishable under section 302, 307/34, 452 IPC, and one punishable under section 25 Arms Act. Accused/appellant Rohit @ Rohtas was found guilty of charge of offences punishable under section 302/34, 307, 452 IPC, and one punishable under section 25 Arms Act. After hearing on sentence, 8 accused/appellant Shompal was sentenced to imprisonment for life, and and directed to pay fine of `10,000/- under section 302 IPC, and rigorous imprisonment for a period of five years under section 307/34 IPC, rigorous imprisonment for a period of two years under section 452 IPC, and rigorous imprisonment for a period of one year under section 25 Arms Act. Accused/appellant Rohit @ Rohtas was sentenced to imprisonment for life, and directed to pay fine of `5,000/- under section 302/34 IPC, rigorous imprisonment for a period of five years under section 307 IPC , rigorous imprisonment for a period of two years under section 452 IPC, and rigorous imprisonment for the period of one year under section 25 Arms Act. Aggrieved by said judgment and order dated 28.06.2007, passed by Sessions Judge, Udham Singh Nagar in Sessions Trial No. 350 of 2004, Sessions Trial No. 351 of 2004, and Sessions Trial No. 352 of 2004, these two appeals were filed by the two convicts. 5. Before further discussion, we think it just and proper to mention the ante-mortem injury found in on the dead body of the Balbir Singh which were recorded by P.W.4 Dr. Vimal Kumar in the autopsy report (Ex. A2).The same are being reproduced below:- 9 (i) Fire arm wound of entry size 2.5cm X 2.5cm X cavity deep present over the right abdomen at the level of umblicus 20 cm below right nipple. The edges of wound are inverted and the skin around the wound is blackened.Omentum and blood coming out of the wound. On further exposure the peritonial cavity is found filled of blood and clots. Omentum mesentry small and large intestine, lever right kidney and urinary bladder lacerated at places. Fracture of 10th and 11th throcic vertibra. One plastic wad and 21 pellets recovered from abdomen cavity and thorasic region. The medical officer P.W.4 Dr. Vimal Kumar opined in the autopsy report that deceased had died of shock and hemorrhage as a result of ante-mortem fire arm injury. 6. P.W.5 Dr. S.B. Olee, who medically examined Shanti Devi (P.W.2) on 21.07.2004, at about 3:40 a.m., in S.S. Jina Hospital, Haldwani, has recorded following injuries on her person in the injury report (Ex. A3):- (i) Lacerated wound of 1cm diameter over right shoulder. Abraded collour around the wound. Clotted blood over wound. Tattooing and 10 blackening around wound. Advised X-ray right shoulder. PA view (ii) Lacerated wound 1cm diameter over right scapula area. Abraded contusion collour around the wound. Tattoing and blackening around the wound. X-ray chest. PA view. 7. P.W.5 Dr. S.B. Olee has stated that injuries could have been caused on the person of injured (Shanti Devi) on 20.07.2004 at about 23:30 hours. The supplementary medical report (Ex. A4) shows that injury no. 1 was simple in nature. As to the injury no. 2, fracture was found in the 4th and 5th rib, and that of right carcoid process of scapula and as such the injury was grievous in nature. 8. Now we come to the oral testimony of the eye witnesses who were got examined on behalf of the prosecution. P.W.1 Omprakash is the informant and eye witness who lodged FIR (Ex. A1). This witness has stated that on the day of incident at about 11:30 p.m., Balbir Singh (deceased) and his wife Puspa (P.W.3) were sleeping in one room of his house, and he alongwith Shanti Devi (P.W.2) were sleeping in the courtyard of the house. He further states that three bulbs were lighting at the time of the incident when he saw accused/appellant Shompal 11 and Rohit @ Rohtas both armed with country made pistols came to his house. According to P.W.1 Omprakash he called Balbir Singh, and when Balbir Singh came out of his room in the courtyard a fire was shot by Shompal at him. Narrating the incident the witness further states that injured Balbir Singh fell on the cot where after Shanti Devi fell on him to save her son. On this, accused/appellant Rohit fired shot from his country made pistol on Shanti Devi who also suffered the injury. P.W.1 Omprakash further states that the motive for commission of murder of Balbir Singh was that about few days before the incident Shompal had molested P.W.3 Pushpa Devi (wife of Balbir Singh), and for that reason Balbir Singh had taken him to the task. He has further stated that accused/appellant Rohit is relation of accused Shompal. The witness has further told that his injured son, and injured wife were taken for medical treatment firstly to Gadarpur then to Rudrapur, but before they could reach Haldwani the son (Balbir Singh) succumbed to injuries. P.W.1 Omprakash has further proved report (Ex. A1) lodged by him at Police Station Gadarpur. He was cross-examined at length but nothing has come out in his cross- examination which creates reasonable doubt in his testimony. 12 9. P.W.2 Shanti Devi is the star eye witness who herself got injured in the incident. She has narrated the same prosecution story, and given details of role of accused/appellants Shompal and Rohit @ Rohtas as to how they shot fire at her and Balbir Singh. Deposition made by this witness is fully corroborated from the medical evidence adduced by P.W.5 Dr. S.B. Olee read with injury report (Ex. A3) already discussed above. Her presence in her house is natural. Injury suffered by her itself makes her testimony reliable and trust worthy. 10. Apart from P.W.1 Omprakash and P.W.2 Shanti Devi (injured eye witness), P.W.3 Pushpa Devi (widow of the deceased) has further corroborated the entire prosecution story giving all details stating as to how accused/appellant Shompal fired shot at her husband Balbir Singh, and how thereafter when Shanti Devi covered her son (Balbir Singh) to save him by lying over him, was shot by accused/appellant Rohit @ Rohtas. This witness, like other two witnesses, has stated that there was electric light in the house. The witness has further discussed that both accused/appellants Shompal and Rohit @ Rohtas were known to her. She has further stated that Rohit @ Rohtas used to live in the neighbourhood. As to motive on the part of Rohit why he joined Shompal in 13 commission of crime, this witness has stated that Rohit @ Rohtas had suspicion on Balbir Singh (deceased) that he had illicit relations with Disha, sister of the said accused, and as such he harbored enmity against Balbir Singh, and joined hands with Shompal. She has subjected to lengthy cross- examination. But,more she was cross-examined by defence counsel, more the prosecution story appeared solid, and truthful as no query made by the defence counsel, remained unexplained. Her presence in her house like the other two witnesses in the night is most natural, and her statement is as reliable as that of injured eye witness Shanti Devi. Having gone through the statement of the eye witnesses, we concur with the findings of the trial court that prosecution has successfully proved charge of offences punishable under section 452, 302 IPC, and that of 307/34 IPC against accused Shompal, and charge of offences punishable under section 452, 302/34, and 307 IPC, against accused/appellant Rohit @ Rohtas. 11. Recovery of two country made pistols, unlawfully possessed, made during investigation from the accused is proved by P.W.7 Sub-Inspector Amar Singh Negi. Testimony of this witness read with recovery memo (Ex. A19) which is signed by accused/appellant Rohit @ Rohtas, and in which the 14 thumb impression is made by accused/appellant Shompal, makes it reliable, and the recovery made cannot be disbelieved. The sanction (Ex. A14 and Ex. A15) given by the District Magistrate for prosecution of the two accused Shompal and Rohit Kumar @ Rohtas appear to have been given after due application of mind on the part of said authority. The conviction recorded by the two accused under section 25 Arms Act also does not require interference of this Court. 12. Learned counsel for the appellants argued that it is not proved on the record that the country made pistols, recovered from the accused were used in the crime. Assuming for a moment that said fact is not proved on the record, the oral testimony given by the eye witnesses including the injured eye witness sufficiently proves the charge of offences punishable under section 302, 307, and 452 IPC, against the two accused/appellants. It is pertinent to mention here that it is not a case of circumstantial evidence. Possession of illicit fire arm is an independent offence punishable under section 25 Arms Act in respect of which the accused/appellants are convicted and sentenced by the trial court. 13. It is also argued on behalf of the appellants 15 that joint recovery from the two accused is no recovery in the eyes of law, and the evidence adduced on the point of recovery of fire arms could not be read under section 27 of Indian Evidence Act, 1872. We have examined the evidence on record carefully. Had there been recovery of one item on jointly pointing out of the two accused/appellants, it could have been said that the disclosure was doubtful but in the present case there is recovery of two fire arms, on pointing out of two accused each relating to one, as such it cannot be said that it is a case of recovery on joint disclosure. 14. Smt. Pushpa Joshi, learned counsel for the appellant Rohit @ Rohtas vehementally argued that had the Rohit @ Rohtas been involved in the commission of crime, his name would have figured in the FIR (EX. A1). She further pleaded that accused/appellant Rohit has been framed in the case only due to enmity. No doubt, we find that in the FIR, P.W.1 Omprakash has mentioned that accused/appellant Shompal with his one associate came in the courtyard. It is also mentioned in the FIR that Shompal fired at Balbir Singh, and his associate thereafter fired shot at Shanti Devi. FIR does suggest that by 4:30 a.m., in the morning P.W.1 Omprakash had no knowledge that the associate of Shompal with 16 him in commission of crime was Rohit @ Rohtas. But identifying accused/appellant Rohit @ Rohtas by injured Shanti Devi, and P.W.3 Shanti Devi as their neighbour cannot be doubted. They have given complete, and natural statement how the incident had taken place, and in what manner the crime was committed by the two accused/appellants Shompal and Rohit @ Rohtas. These two eye witnesses are not persons who lodged FIR. In the statement of P.W.1 Omprakash who is old man has stated in para 16 in the cross-examination that his vision is weak. It is quite possible that in the night this old witness whose vision was weak could identify only one accused at the time of incident, and accordingly the name of other person not mentioned by him in the FIR which was lodged in the wee hours on 21.07.2004. In the same para of his statement the trial court has observed that the witness was asked to identify Rohit, in the court, and he successfully identified the person (Rohit @ Rohtas). 15. Shri A.S. Gill, learned counsel for the accused Shompal pointed out that in the inquest report (Ex. A27) in the column relating to apparent cause of death of Balbir Singh on the first page word 'AGYAT' (unknown) is mentioned, as such it cannot be said that any one had knowledge as to how Balbir Singh 17 had died. We do not find much substance in the argument as none of the witnesses are the witnesses of inquest report. 16. It is also submitted on behalf of the appellants that P.W.2 Shanti Devi has admitted that she was wife of Baburam, and after death of Baburam she lived with his brother P.W.1 Omprakash as his wife without going through the solemnization of marriage. In this connection, it is further submitted that Balbir Singh (deceased) was son of Shanti Devi (P.W.2) through her first husband, and Rishipal and other children were born through Omprakash. It is contended on behalf of the appellants that Balbir Singh and Rishipal were not in cordial relations, and it cannot be ruled out that murder might have been committed by Rishipal. Having gone through the lengthy cross-examination of the eye witnesses we find no iota of evidence that Balbir Singh and Rishipal were inimical to each other. Presence of Rishipal in the night in the house Baburam was also not shown who is said to have been resident of Delhi. Assuming for a moment Balbir Singh had enmity with Rishipal, his widow Pushpa Devi (P.W.3) would not have spared him that he committed the crime. 17. For the reasons as discussed above we do not 18 find any illegality in the impugned order challenged before us nor we find any wrong appreciation evidence on record. We concur with the findings of the trial court that the prosecution has successfully proved the charge for which the trial court has convicted the two, and sentenced them. The sentence awarded is also reasonable just and proper. Therefore, both the appeals are hereby dismissed. Accused/appellants Shompal is in jail. Let copy of this judgment be sent to Superintendent of Jail concerned for information of the accused/appellant Shompal. Accused/appellant Rohit @ Rohtas is on bail. His bail is cancelled. He shall surrender before the trial court to serve out the remaining part of the sentence awarded against him. Lower court record be sent back alongwith copy of this judgment, to make the accused/appellant Rohit @ Rohtas serve out remaining part of his sentence. (V.K.Bist, J.) (Prafulla C. Pant, J.) 26.03.2011 Parul