IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1694 of 2001 (Old No. 2293 of 1997) Shashi … Appellant Vs State of U.P. … Opposite (Now Uttarakhand) Party Sri Lokendra Dobhal, learned Amicus Curiae for the appellant Sri Nandan Arya, learned A.G.A. for the State Oral Judgment (per Hon’ble B.C. Kandpal, J.) Hon’ble B.C. Kandpal, J. Hon’ble Dharam Veer, J. This appeal preferred by the appellant under Section 374 (2) Cr.P.C. is directed against the judgment and order dated 10.12.1997 passed by the learned Additional District & Sessions Judge, Roorkee in Sessions Trial No. 89 of 1991, whereby the learned Additional District & Sessions Judge has convicted the appellant/accused under Sections 302 of I.P.C. read with Section 34 of I.P.C. and awarded the sentence to undergo rigorous imprisonment for life. 2. In brief, the prosecution case is that the complainant – Mohd. Ahmed lodged the First Information Report (Ext. Ka.6) at Police Station Gangnahar on 10.10.1990 at 07:35 p.m. alleging therein that he was a resident of C.B.R.I. Colony. It was alleged in the First Information Report that on 10.10.1990 at about 07:00 p.m. when the complainant along with Saru, Aslam and Yasmin (deceased) was going towards Gurdwara, than the accused persons, namely, Sashi R/o Sainik Colony, Aslam R/o Saliyar and Afjal @ Rafta R/o Paniyala came on a Kawasaki motorcycle. The motorcycle at once stopped in front of them and the accused started firing with their respective Tamanchas (country made pistol) upon 2 Yashmin and flew away from the place of occurrence. On account of the injuries sustained by Yashmin, he died at the spot. On the basis of this complaint, Chik First Information Report (Ext. Ka. 3) was prepared. Sri Ramesh Chandra Chodhary prepared the Panchayatnama (Ext. Ka 1) of the dead body of the deceased – Yasmin. He proved the chik F.I.R., copy of the G.D., site plan etc. Thereafter, he sent the dead body for postmortem to the Chief Medical Officer concerned. Dr. K.P. Sarabhai (P.W.3) – Medical Officer, H.M.G. Hospital, Haridwar conducted the postmortem of the deceased – Yasmin on 11.10.1990 at 11.00 a.m. The Investigating Officer after completing the necessary formalities of the investigation submitted the chargesheet (Ext. Ka. 5) before the court concerned. 3. After submission of chargesheet, the accused- appellant was committed to the court of Sessions for trial and the trial court framed charges under Section 302/34 of I.P.C. against the accused/appellant. The appellant/accused denied the charges levelled against him and claimed for trial. 4. The prosecution in support of its case examined Aslam (P.W.1) – eyewitness of the occurrence, Suleman (P.W.2) – witness of the Panchayatnama, Dr. K.P. Sarabhai (P.W.3) – who conducted the postmortem of the deceased, Ramesh Chandra Chaudhary – S.I. (P.W.4) – Investigating Officer and Satish Chandra (P.W.5). The accused/appellant did not adduce any oral and documentary evidence in support of his case. 5. Thereafter, the accused/appellant was examined under Section 313 of Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has been falsely implicated 3 in this case due to earlier enmity, while he has not denied the recovery of cartridge from the place of occurrence, site plan, postmortem report etc. 6. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Additional District & Sessions Judge, Roorkee vide impugned judgment and order dated 10.12.1997 convicted and sentenced the appellant/accused as above. Feeling aggrieved with the said judgment and order, the appellant/accused has preferred the present appeal before the Allahabad High Court, which has been transferred to this Court after creation of separate State for disposal. 7. Heard Sri Lokendra Dobhal, learned Amicus Curiae for the appellant, Sri Nandan Arya, learned A.G.A. for the State and perused the record. 8. To prove its case, the prosecution has examined Aslam (P.W.1), who has stated in his deposition that on the date of occurrence, Yasmin, Ahmed and he was going towards Gurdwara on a scooter on the left side of the road. Suddenly, Sashi (present appellant) along with Aslam and Rafta came from the opposite direction on a motorcycle and stopped the motorcycle front of them. He has further stated that the motorcycle was being driven by Aslam. They started firing upon Yasmin with their respective Tamanchas (country made pistol) and the firearm hit on the head of Yasmin. This witness has further stated that in order to save himself, he hide himself in the Gurdwara and Mohd. Ahmed, lodged the report of the incident. 4 9. Suleman (P.W.2), has proved the Panchayatnama (Ext. Ka1) to the paper book. This witness has stated that the panchayatnama was prepared on 10.10.1990 at about 09:30 p.m. 10. P.W. 3 – is Dr. K.P. Sarabhai (P.W.3), who conducted the postmortem of the deceased – Yasmin. He has stated in his deposition that the autopsy of the deceased – Yasmin was conducted on 11.10.1990. The following ante mortem injuries were found on the person of the deceased:- 1. Firearm wound of entry 1cm X 1cm on left side following brain cavity deep in front of left ear. Tattooing scorching and bleeding present margins inverted. 2. Firearm wound of entrance 2cm X 1cm and cavity deep left side of the face 1cm below injury No. 1. Bleeing, Tattooing, scorching present and margins inverted. 3. Firearm wound of exit 7cm X 5cm X brain cavity deep on lateral side of head 4cm below left ear. There is fracture of left temporal bone, injuries No. 1 and 3 concide everted. 4. Abrasion 1cm X 0.5cm on right side head 8cm above right ear. 5. Firearm wound of Ent. 1cm X 1cm in full and medial aspect of of right forearm 8cm below elbow joint. Bleeding, Tattooing, scorching absent. Margin inverted. 5 6. Firearm wound of exit 1.5cm X 1cm a back lethal aspect of right forearm is opened. 5cm below elbow joint. Direction backward and upward from inside to outside. One bullet recovered from wound of exit. Margins everted in injuries No. 5 and 6 concide. 7. Deep abrasion 3cm X 2 cm on top of the right shoulder. Spotted abrasions in an area 12cm X 7cm in total two on the right shoulder of above left upper arm. 8. Firearm deep abrasion 4cm X 2cm on the aspect of left upper arm 10cm below left shoulder. Large abrasion area 8cm X 5cm just above it. 9. Firearm would of entrance 1cm X 1cm upper part of the left buttock. Margins inverted. Tattooing and Scorching present. 10. Firearm would exit 1.5cm X 1.5cm epigastrium 6cm below, margins everted. No tattooing and scorching present. Iliac bone was fractured. Injuries No. 9 and 10 concide. One bullet recovered from injury No. 6. 3 wedding oral of vacity was coming. 68 small-sized pellets were recovered from wound of oral cavity. These article were given to the constable in order to handover the same to Deputy Superintendent of Police for investigation. 11. The doctor has also examined base of skull, middle cranial fossa and found left and right frontal fossa fractured. 6 Brain and its skin were congested. The peel of stomach was cut and there was one liter of blood present in the peritoneal cavity. The doctor has also opined that there was a semisolid food present in the stomach and big liver was cut and there was sediment was present. This witness has further stated that he had given the clothes and sandal of the deceased in a sealed cover to the constable. The doctor has further opined that the death was caused due to injuries sustained by him as well as bleeding and shock. The doctor further opined that the death was caused on 10.10.1990 at about 07:00 p.m. due to firearm injuries. 12. Ramesh Chandra Chaudhary (P.W.4) is the Investigation Officer of the case. This witness proved the Chik F.I.R. (Ext. Ka. 3), Copy of G.D. (Ext. Ka.4) and chargesheet (Ext. Ka.5). He has also deposed that the investigation of the case was conducted by previous station in-charge. He has further stated that the complainant – Mohd. Ahmed has died and in order to prove the First Information Report, the trial court summoned Aslam (P.W.1). 13. Learned counsel for the appellant has submitted before the Court that there is nothing on record, which may prove the prosecution story. There is only one witness, namely, Aslam (P.W.1) who had allegedly seen the occurrence and this witness on 03.03.1997 has stated before court that he was not present at the spot on the date of occurrence. Therefore, the whole story of the prosecution appears to be fake and the impugned judgment and order is liable to set aside. 14. From a perusal of the record, it reveals that the defence could not bring out anything which may prove the 7 statement of Aslam false during the course of cross- examination. The evidence further reveals that when the appellant could not establish his case, he absconded himself for two years and during the absconding period, another case was registered against him under Sections 307/304 of I.P.C. at District Pauri Garhwal. The trial court, considering the graviety of the crime committed by the accused/appellant, came to the conclusion that the accused/appellant threatened the main witness – Aslam (P.W.1) and due to apprehension, he came before the court in order to change his statement. If the accused/appellant would not have committed the crime, he would have certainly contested the trial and not abscond himself. It appears from the record that when Aslam (P.W.1) S/o Sarafat, who was the actual eyewitness of the occurrence deposed before the trial court, then the accused – Sashi absconded himself from the trial and non bailable warrant were issued against him and proceedings under Section 82/83 Cr.P.C. were initiated and on 02.01.1996 he was arrested in another case and produced before the trial court before the court concerned. Aslam (P.W.1) is the only eyewitness of the incident, who could save his life by eluding himself in the Gurdwara. This witness has deposed in his statement that the accused, namely, Sashi, Aslam and Rafta came on a motorcycle and started firing on Yasmin (deceased). The gunshot hit on the head of Yasmin, due to which, he died at the spot. This witness in order to make his escape good hid himself in the Gurdwara. Therefore, we do not find any reason to disbelieve of the testimony of this witness being absolutely a reliable witness of the incident and he has fully established the case of the prosecution. 15. Another important point, which establishes the prosecution case, is the promptness of First Information 8 Report. From the perusal of the record, it reveals that the First Information Report was lodged by Mohd. Ahmed at 7:35 p.m. on 10.10.1990, while the occurrence took place at about 07:00 p.m. on 10.10.1990 and the distance of the police station from the scene of occurrence is about 1½ kms. Therefore, there is no inordinate delay in lodging the First Information Report. Keeping in view the promptness of the First Information Report, the possibility of false implication of the accused persons does not appear on the part of the prosecution. There is nothing on record, which may support the case of the defence and the prosecution has established its case beyond reasonable doubt. 16. For the reasons stated above, we are of the considered view that the prosecution has been successful in establishing its case against the accused/appellant - Sashi beyond all reasonable doubts. We do not find any ground to interfere with the impugned judgment and order passed by the learned trial court. 17. We do not find any error of law committed by the trial court in awarding sentence vide impugned order. Therefore, the appeal lacks merit and is liable to be dismissed. 18. Accordingly, the appeal is dismissed. The impugned judgment and order convicting the accused appellant for the offence under Sections 302/34 of I.P.C. and sentencing him to undergo for life imprisonment, is upheld. 20. The accused/appellant – Sashi is on bail. His bail is cancelled. The Registry is directed to send the lower court record back to the trial court to take the accused/ appellant 9 into custody in order to serve out the sentence imposed by trial court, as above. (Dharam Veer, J.) (B.C. Kandpal, J.) 05.11.2009 ASWAL