COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING {Chapter VIII, Rule 32(2)(b)} Description of the Case. CRIMINAL APPEAL No.311 of 2001 (Old No. 1968 of 1985) 1. Naresh Kumar alias Munna alias Jippi S/o Piray Lal R/o 76, Arhat Bazar, P.S. Kotwali, Dehradun 2. Sudesh Kumar S/o Ram Kishan Das alias Ram Kishan R/o 31 Sayeed Mohalla, Dehradun ………………..Appellants Versus The State …….. Respondent Sri S.K. Agarwal Sr. Advocate, assisted by Sri Lokendra Dobhal, learned counsel for the appellants Sri Amit Bhatt, learned Addl. G.A. and Sri M.A. Khan, learned brief holder for the State / Respondent Approved for reporting. Not approved for reporting. Date: July 9, 2007 (Dharam Veer, J.) IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.311 of 2001 (Old No. 1968 of 1985) 1. Naresh Kumar alias Munna alias Jippi S/o Piray Lal R/o 76, Arhat Bazar, P.S. Kotwali, Dehradun 2. Sudesh Kumar S/o Ram Kishan Das alias Ram Kishan R/o 31 Sayeed Mohalla, Dehradun ……………..Appellants Versus The State …… Respondent Dated: July 9, 2007 Sri S.K. Agarwal, Sr. Advocate, assisted by Sri Lokendra Dobhal, learned counsel for the appellants Sri Amit Bhatt, learned Addl. G.A. and Sri M.A. Khan, learned brief holder for the State/Respondent HON. DHARAM VEER, J. This appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 26.07.1985 passed by Additional Sessions Judge, Dehradun, in Sessions Trial No.55 of 81, Session Trial No. 56 of 81 and Session Trial No. 57 of 1981, whereby the learned Additional Sessions Judge has convicted the appellants u/s 392 r/w 34 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced to undergo five years R.I. and further to pay a fine of Rs.5,000/- each. In default of fine, it was directed that the appellants shall undergo further R.I. for six months each. Appellant Naresh was also convicted u/s 307 IPC and sentenced to undergo R.I. for three years. Appellants Naresh and Sudesh were further convicted u/s 25 of Arms Act and each of them was sentenced to undergo R.I. for one year. All the sentences except that of default in payment of fine were directed to run concurrently. 2. During the trial, the accused Sansar absconded and could not be traced out hence, his file was separated and the trial proceeded against the rest of the accused. When the trial of the three accused concluded, one of the accused, namely, Pawan was killed, as a consequence of which the proceedings against him were also abated. 3. Appellant Naresh Kumar alias Munna has been reported to be died. C.J.M., Dehradun by his report dated 22.1.2004 has informed that the appellant Naresh Kumar alias Munna alias Jippi has died on 25.5.2003 in a police encounter. Hence, the appeal against the appellant Naresh Kumar stands abated. Now, the appeal only survives against the appellant Sudesh Kumar. 4. The prosecution story, in brief, is that Jagdish Prasad P.W.2 resident of Vikasnagar, District Dehradun is a wholesale Beedi Merchant and he carries on his business in the name and style of M/s Madrasee Basant Beedi. His firm supply beedis to the retail shopkeepers of small town namely Purola, Badkot, Damra, Naugaon etc. Sri Jagdish Prasad goes to collect his dues from the retailers on every 15th day. On 7.3.1981 also he went to Purola, Badkot for realization of his dues and Shri Harish Chand Bhandari and Dharmanand Tewari were all traveling in Car No.DHB 6198 (subsequently changed to URM 1692) which was being driven by the driver Gyanendra Singh. While coming to Vikasnagar from Purola, Sri Jagdish Prasad and his companions had a halt at the curve of Katta Pathhar and when he alighted from the car with a view to ease himself, four miscreants came on one scooter No.UTL 8354 (Ex.1) and parked the said scooter in front of the motor car. Two of the miscreants were armed with revolvers and the remaining to had khukhries with them. All of them surrounded Jagsidh Prasad and directed him to handover the moneybag to them and they also threatened him to shoot dead if he would make any protest. Sri Jagdish Prasad being frightened of the miscreants quietly handed over the money bag containing about Rs.25,000/- to the miscreants. He had also given his wristwatch and a golden wring and Dharmanand Tewari was constrained to give case of Rs.230/- and the driver Sri Gyanendra Singh was compelled to give case of Rs.600/- to them. The fourth person sitting in the car namely Sri Harish Chand was forced to give his three wrist watches. The miscreants snatched away the keys of the car from its driver Gyanendra Singh and one of the miscreants ran away on the scooter along with the money bag while the remaining three boarded the car and fled away. Sri Jagdish Prasad identified Sri Pawan alias Pannu who drove away the car. Thereafter, a Truck No.UTL 6467 came at the site of the occurrence and Sri Jagdish and his other companions narrated the story to the driver and requested him to give them lift. On being permitted by the driver, the boarded the truck and after travelling for some distance, they saw that scooter was tow- chained with the car. Then they reached village Badowala where Shivratri fair was being celebrated. There they met Sri N.K. Tyagi, Station Officer of P.S. Vikasnagar, to whom the entire story of robbery was disclosed by them. In the meantime, a person came running and informed the Station Officer that a car had caused an accident and the driver ran away. The Station Officer along with S.I. Jeet Singh, Jagdish Prasad and Dharmanand Tiwari boarded on a bus No.USK 9260 and chased the car. They saw the car going towards Dakpathhar and the miscreant driving the scooter also entered the car and the scooter was seen being dragged. In a shortwhile, the bus came closer to the car and the Station Officer shouted at the miscreants and asked them to stop the car. The miscreants started firing from inside the moving car and the police also exchanged fire. S.I. N.K. Tyagi fired a shot which struck at the rear wheel of the car causing puncture therein and in consequence whereof, the miscreants had to stop the car. The two police officers when proceeded towards the car, the miscreants took to their heels and one of them fired at Station Officer N.K. Tyagi but he luckily escaped. This occurrence had taken place in Tons Colony, Dakpathhar. The Station Officer N.K. Tyagi chased the miscreants and succeeded in securing Naresh who had before his arrest fired at him. The other S.I. Jeet Singh had arrested the appellant Sudesh (who is the present alive appellant). After their arrest, the appellants were made Baparda by their woolen garments. Both the appellants were arrested at different places. Appellant Sudesh was arrested in front of Quarter No.25A and 27A of Tons Colony and other appellant Naresh was arrested in the other lane of the colony. Appellant Naresh resisted his arrest by striking at the Station Officer N.K. Tyagi by his country made pistol as a result of which Sri N.K. Tyagi sustained injuries. On the search of appellant Naresh, a country made pistol Ex.8, two cartridges Exs.9 and 10, case of Rs.415/- Ex.11 and two watches Exs.12 and 13 were recovered. The recovered articles were packed and sealed in two separate bundles Exs.14 and 15 and recovery memo Ex.Ka-8 was prepared at the site of the arrest. This recovery and witnessed by Sri Rajesh Kumar and Sri Shankar Singh who were the witnesses of locality. When Sri N.K. Tyagi came at the place of the car where S.I. Jeet Singh was standing there, informed him that he had succeeded in capturing one another miscreant Sudesh Kumar. After the arrest of Sudesh Kumar, S.I. Jeet Singh had taken his personal search and one Khukhari Ex.20, two cartridges Ex.21 and Ex.22, Rs.220/- in case Ex.23 and a watch Ex.24 were recovered from him. All these articles were packed and sealed in a bundle Ex.25 and a recovery memo Ex.Ka-16 was prepared by S.I. Jeet Singh. After the arrest of the appellant Sudesh, two inspectors took search of the car. A bag Ex.2 was recovered from the paddles of foot brakes and clutches etc. and when it was opened a sum of Rs.13,107/- with bills Exs.5, 6 and 7 was found therein. On the rear seat of the car, a 12 bore empty cartridge was lying. In the dicky of the car, beedi packets Ex.3 and Ex.4 were found. The scooter Ex.1 was lying behind the car and it was tied with the rear side of the car with a nylon string Ex.16 and a recovery memo Ex.Ka-9 was prepared. With regard to the empty cartridges recovered from near the place of car being parked, a recovery memo Ex.Ka-10 was prepared. The two police inspectors also fired 10 rounds out of which six by N.K. Tyagi and four by Sri Jeet Singh. All the empty ten cartridges were also taken into custody and recovery memo Ex.Ka-11 was prepared in respect thereof and they were packed and sealed in two separate bundles Ex.17 and Ex.18. The tyre, which got punctured, was marked as Ex.19. In the meantime, S.I. Ramesh Chand and S.I. Kishan Singh along with other police force also arrived there. The appellants along with recovered articles in sealed bundles were taken to Dakpatthar out post where FIR was lodged and Chik FIR Ex.Ka-14 was prepared and the entry was made in the G.D. at Report No. 15, copy of G.D. is Ex.Ka-15. 5. Thereafter, S.I. Jit Singh was medically examined on 7.3.1981 at 10:00 P.M. in Y.P. Hospital, Dakpatthar by Dr. G.C. Nautiyal. He has found the following injuries on his body:- 1. Abrasions on dorsum of the left index finger size 2 cm x 1 cm. Covered with fresh blood clot. 2. Abrasions on the dorsum of the left hand at the base of mid & ring finger. Covered fresh blood clot. 3. Contusion 6 cm x 2 cm on the left arm as lateral side below the shoulder joint, colour red. 4. Abrasion on the base of the left thumb on dorsal surface 1.5 cm x 1 cm. The doctor has stated that all the injuries were simple in nature. Injuries No.1, 2 and 4 were caused by friction against rough object while injury No.3 was caused by blunt object. Duration of the injuries was fresh. He has proved the medical report Ex.Ka-3. 6. S.O. N.K. Tyagi P.W.4 was also examined on 7.3.1981 at 10:15 P.M. in Y.P. Hospital, Dakpatthar by doctor G.C. Nautiyal. He has found the following injuries on his body:- 1. Abrasion on the right index finger 2 cm x 1 cm. Covered with fresh blood clot 2. Abrasion on the Dorsum of mid finger near the nail bed. 1 cm x 1 cm in size 3. Scratch on the left little finger on the medial extended up to the bone of the top. 4. Contusion 4 cm x 3 cm on the right gluleal region, colour red. 5. Contusion with swelling on the left knee joint, 3 cm x 2 cm, colour red. The doctor has stated that all the injuries were simple in nature. Injuries No. 1 and 2 were caused by friction against rough object and injury No.3 was caused by a pointed object while injury No.4 and 5 were caused by sharp object. Duration of the injuries were fresh. He has proved the injury Report Ex.Ka-4. 7. Appellant Naresh Kumar was examined on 7.3.1981 at 9:10 P.M. by Dr. G.C. Nautiyal. He has found following injuries on his person:- 1. Lacerated wound on head (2.5 x .5 cm) on the fractal region; blood oozing out. 2. Lacerated wound 1.5 x .5 cm in occipital region; blood oozing out. 3. Abrasion 1 cm away from the above injury size 1x.5cm 4. Lacerated wound on the left paved region of the head 3 cm x 1 cm. 5. Lacerated wound 2.5 x 3 c on the head on fractal region7 cm far away from Injury No.1 6. Contusion on the right arm above the elbow, 8 cm x 3 cm on lateral side. Colour red 7. Contusion on the right forearm below the elbow 8 cm x 2 cm in size, colour red 8. Swelling on the wrist and right hand extending from the mid of the forearm. 9. Contusion on the left arm 8x2 cm just below the elbow joint on vertical surface 10. Swelling on the left arm and wrist joint and whole of the dorsum of the hand. 11. Contusion with swelling on the right knee just 3.5 x 3 cm, colour red 12. Contusion with swelling on the left knee joint just 3.5 x 2 cm, colour red. The doctor had advised X-ray for P.A. & lateral view of both the arms and wrist joint and palm. The doctor has opined that all the injuries except Injuries No.8 and 10 were simple in nature and were kept under observation. All the injuries were caused by blunt object. He has proved the injury Report Ex.Ka-5. 8. Thereafter, appellant Sudesh Kumar was examined on 7.3.1981 at 9:35 P.M. by Dr.G.C. Nautiyal. He has found following injuries on his person:- 1. Lacerated wound with swelling over the dorsum of left hand. Size of the wound 2 x 1 cm. 2. Abrasion on the right palm at base of ring finger. Size 1.5 x 1 cm. 3. Abrasion & contusion 2x.5 cm on the joint left thigh at mid point. 4. Contusion on the right lower thigh on lateral side remaining parallel to each side 7x1.5 cm. Red colour 5. C/o Pai on the back of the chest 6. C/o Pai on the both hand and 7. C/o Pai on the head The doctor has advised X-ray of the left forearm with wrist joint and whole of the palm. The doctor has opined that injury no.1 seems to be fracture and the opinion will be given after X-ray. All the injuries were simple in nature. Injuries No.1, 3 and 4 were caused by blunt object which injury No.2 is caused by friction against rough object. No opinion for injuries No.5 and 6 can be given. Duration of injuries were fresh about 2-3 hours. He has proved injury report, i.e. Ex.Ka-6. 9. The investigation of the case was entrusted to Sri R.C. Yadav, S.I. After the investigation of the case, the charge sheets Exs.Ka-31 to Ka-34 were submitted by him against the appellants and other two persons namely Pawan and Sansar. During the investigation, he has recorded the statements of the witnesses and prepared the site plans i.e. Ex.Ka-23, Ka-24 and Ka-25 and after completing the investigation, he has submitted the charge sheets Ex.Ka-31 and Ex.Ka-32 u/s 25 of Arms Act against the appellants Naresh Kumar and Sudesh Kumar; under Sections 392/279/338/307/412 IPC i.e. Ex.Ka-33 against accused Pawan & Sansar and under Sections 392/307/412 IPC i.e Ex.Ka-34 against the appellants Naresh Kumar and Sudesh Kumar. 10. After filing of the charge sheets, the case was committed to the court of Sessions by the order of Judicial Magistrate-I, Dehradun on 30.05.1981. 11. On 19.08.1981, the learned Additional Sessions Judge, Dehradun has framed the charge against the appellants u/s 392 r/w 34 IPC and also Section 25 of Arms Act. The charge was explained to them who pleaded not guilty and claimed to be tried. Appellant Naresh Kumar was further charges u/s 307 IPC. Accused Pawan & Sansar were charged u/s 392 r/w 34 IPC, 279 IPC and 338 IPC. The charge was also explained to them who also pleaded not guilty and claimed to be tried. 12. In support of its case, the prosecution examined P.W.1 Dharmanand Tewari, P.W.2 Jagdish Prasad, P.W.3 Dr. G.C. Nautiyal, P.W.4 N.K. Tyagi, P.W.5 Sri Balwant, P.W.6 Rajesh Kumar, P.W.7 Brijendra Kumar Aggarwal, P.W.8 S.I. Sahdev Singh, P.W.9 S.I. Ghasita Singh, P.W.10 Constable Roop Chand and P.W.11 R.C. Yadav, I.O. of the case. Thereafter, statements of the appellants were recorded u/s 313 Cr.P.C. who have denied the allegations made against them and in support of their case, they had examined D.W.1 Sri S.Dhawan, Deputy Jailor Dehradun. 13. After appreciating the evidence on record, the learned Additional Sessions Judge, Dehradun by his judgment and order dated 26.7.1985 convicted the appellant u/s 392 r/w 34 IPC and sentenced to undergo five years R.I. and further to pay a fine of Rs.5,000/- each. In default of fine, it was directed that the appellants shall undergo further R.I. for six months each. Appellant Naresh was also convicted u/s 307 IPC and sentenced to undergo R.I. for three years. Appellants Naresh and Sudesh were further convicted u/s 25 of Arms Act and each of them was sentenced to undergo R.I. for one year. All the sentences except that of default in payment of fine were directed to run concurrently. Feeling aggrieved by the said judgment and order dated 26.7.1985, the appellants have come up in appeal before this Court. 14. I have heard Sri S.K. Aggarwal, Sr. Advocate assisted by Sri Lokendra Dobhal, learned counsel for the appellants and Sri Amit Bhatt, Additional G.A. and Sri M.A. Khan, learned brief holder for the State/respondent. 15. In support of its case, the prosecution examined P.W.1 Dharmanand Tewari who has stated that he is a salesman and is in the employment of Jagdish Prasad who is a wholesale agent of Beedi. The supply of Beedi is in Vikasnagar, Barkot, Purola and he is the businessman of Madrasi Basant Beedi. Once in 15 days, they used to go to collect the price of Beedi. On 7.3.1981 at 5:00 A.M. in the morning, he had gone to recover the price of Beedi at Vikasnagar, Barkot, Purola etc. and he has gone from Car N.DHB 6198. Gyanendra Singh was driving the car and they started from Nogaon at about 1:00-1:30 P.M. On the way, they have also taken Harish Bhandari along with them and they have reached to Katta Pathhar at 4:30 P.M. in the evening. There were 2-3 bends in the road and in the last bend, he and Jagdish Prasad came out for easing out. Then four miscreants had reached there on a scooter Ex.1. They have stopped the scooter in front of the car and out of them, two had revolvers in their hands and two had Khukhris. They had abused them and told to give them whatever they have and then they have snatched the bag from the Jagdish Prasad and in that bag Rs.24,000-25,000/- were there. A ring and watch was also taken by the miscreants and from him Rs.20/- was taken. Rs.600/- was taken from the Gyanendra, three wristwatches of Harish Kumar were also taken and some money was also taken by them. They have taken key of the car from the driver and the driver was thrown out from the car. Three miscreants sat on the car and one miscreant had taken the scooter and bag was with the person who had the scooter. Jagdish Prasad, Gyanendra had identified one of the miscreants namely Pawan. After ten minutes, a Truck had come towards Purolla. They have asked for lift and they had narrated the incident to the truck driver and then the truck driver had given the lift to them. While coming from Kata Pathhar to Vikasnagar, there is a turn of about 2 Kms. and from one hill, another hill can be seen. Then he saw that the scooter was tow- chained and while chasing they reached Badwala Tiraha where the Shivratri fair was going on. There he met with S.O. N.K. Tyagi and S.I. Jeet Singh. Then the Jagdish Prasad narrated the incident to S.O. Then S.O. N.K. Tyagi & S.I. Jeet Singh along with Gyanendra and Jagdish Prasad have followed the car by bus. Then he came to know that from the car, miscreants had caused an accident with somebody. This witness was cross-examined at length but noting has come out which may create any doubt in his statement. The statement of this witness is trustworthy, reliable, and believable. 16. P.W.2 is Jagdish Prasad who is the victim. He has stated in his statement that he is a wholesale businessman of Madrasi Basant Beedi and he used to supply the Beedi in Purola- Barkot-Damta-Naugaon etc. He goes to collect the money after every 15 days. He has identified the accused Pannu in the court. He was working as a driver with Sardar Jogendra Singh. He has also stated the Punnu Knew that he used to collect the money after every 15 days. On 7.3.1981, he went to Purola-Barkot along with Gyanendra Singh and Dharmanand Tewari to recover the money and about 25,000/- rupees were recovered. They went by car and he was the owner of the car. He brought that car in the court and the new number of the Car is URM 1692. He had also got the copy of the registration certificate in the court i.e. Ex.Ka- 1. While coming from Damra, Harish Chand Bhandari came with them and at about 4:30 P.M., when they reached at Katapathhar bend, he alighted from the car for easing out. Then four persons came towards Badwala on a scooter, that scooter is Ex.1 and number is UTL 8354. They parked the scooter in front of the car. He was having a bag in his hand in which money was there. Then the miscreants had asked him to give whatever he was having otherwise he was threatened to life. Two persons were having revolvers and two were having Khukhris. He had handed over the bag to them due to their terror and he also did not oppose. They have also snatched one wrist watch of Rs.300/-, one golden wring of Rs.700/- and a bag in which Rs.24,000-25,000/- were there. They have also snatched Rs.230/- from the Dharmanand Tewari, Rs.600/- from the Gyanendra and three wristwatches from Harish Chand and they have also taken the keys of the car from Gyanendra Singh. One miscreant had run after taking the bag in the scooter and the rest of the three persons sat in the car. Pannu took away the car by driving and he knew him before the incident. The bag which was snatched by him was before him in the court i.e Ex.2. In the Dikki of the car, there were bundles of beedis and empty bags. The bundles of Beeris were marked as Ex.3 and empty bags were marked as Ex.4. There was one stepney also in the car. After 7-10 minutes, a Truck had come towards Barkot No.UTL 6467. Then they boarded on the truck and he has narrated the entire story to the truck driver and asked him to go fast. After going 2 Kms., he had seen that the scooter was toe-chained behind the car. Then they have reached to Badwala where Shivratri fair was being celebrated. N.K. Tyagi and Jeet Singh, S.I. were also there and he narrated the entire incident to them. Then one person came and stated that one vehicle had caused injuries to some person. After that he along with S.O., Jeet Singh and Gyanendra started to chase by a Bus No.USK 9260. Then he had seen that the car was going towards Dakpatthar and the man who was on the scooter, sat in the car and the scooter was dragged behind the car. When the bus reached behind the car, then they asked to stop the car and then the miscreants had fired and the S.O. and Jeet Singh also fired on them. Due to the fire, the back wheel of the car was punctured and car got stopped. Then the appellants started running and also made a fire and the fire was made towards the S.O. From the one side, S.O. N.K. Tyagi had chased the miscreants and on