IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No.17 of 2005 AND Criminal Appeal No.18 of 2005 AND Criminal Appeal No.19 of 2005 AND Criminal Appeal No.21 of 2005 AND Criminal Appeal No.22 of 2005 AND Criminal Appeal No.23 of 2005 AND Criminal Appeal No.24 of 2005 AND Criminal Appeal No.25 of 2005 AND Criminal Appeal No.95 of 2005 Date of decision :-14.06.2007 A.F.R. (Approved for Reporting) Not approved for reporting Date :-14.06.2007 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.17 of 2005 Chander S/o Shri Soma R/o village Daduvass Police station Bhagwanpur District Haridwar …….Appellant Versus State ……Respondent AND Criminal Appeal No.18 of 2005 Satish S/o Shri Amar Singh R/o village Daduvas Police Station Bhagwanpur District Haridwar ….Appellant Versus State … Respondent AND Criminal Appeal No.19 of 2005 1. Salekh S/o Birma 2. Pratap S/o Dhyan Singh 3. Karan Singh S/o Balwant Singh 4. Manga S/o Lekhram 5. Tirath S/o Kuradi 6. Bijander S/o Ratiram 7. Nathu S/o Mohar Singh All 1 to 7 R/o village Dadubas P.S. Bhagwanpur, District Haridwar 8. Sushil S/o Makhan Singh R/o village Madu Wala Fathepur P.S. Fathepur, District Haridwar ..Appellants Versus State …Respondent AND Criminal Appeal No.21 of 2005 Manga @ Man Singh S/o Jai Singh R/o village Daduvas Polcie Station Bhagwanpur District Haridwar …Appellant Versus State …Respondent AND Criminal Appeal No.22 of 2005 Piyara S/o Shri Soma R/o village Daduvas Police Station Bhagwanpur District Haridwar ……Appellant Versus State …Respondent AND Criminal Appeal No.23 of 2005 Soma S/o Jiwan R/o village Daduvas Police Station Bhagwanpur District Haridwar ……Appellant Versus State …Respondent AND Criminal Appeal No.24 of 2005 Rakesh S/o Jai Singh R/o village Daduvas Police Station Bhagwanpur District Haridwar ……Appellant Versus State …Respondent AND Criminal Appeal No.25 of 2005 Radha S/o Shri Soma R/o village Daduvas Police Station Bhagwanpur District Haridwar ……Appellant Versus State …Respondent AND Criminal Appeal No.95 of 2005 Karan Singh s/o Shri Balwant Singh R/o village Daduvas Police Station Bhagwanpur District Haridwar ……Appellant Versus State …Respondent Delivery of Judgment 14th June, 2007 Mr. S. K. Agarwal, senior Advocate with Rajendra Singh Advocate for the appellants-Chander, Satish, Manga @ Man Singh, Piyara & Radha. Mr. Nand Prasad, Advocate for the appellant-Rakesh. Mr. S. K. Agarwal, senior Advocate with Mr. Lok Pal Singh and Mr. Ajay Veer Pundir Advocates for the appellant-Karan. Mr. S. K. Agarwal, senior Advocate with Mr. B.M. Pingal, Mr. Udyog Shukla, Mr. Manish Arora, Ms. Krishi Shukla and Mr. M.S. Tyagi Advocates for the appellant-Salekh, Pratap, Karan Singh, Manga, Tirath, Bijander, nathu & Sushil. Mr. G.S. Sandhu, Govt. Advocate for the respondent-State. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. Since all criminal appeals have arisen out of the common impugned judgment and order dated 01.02.2005 passed by the Addl. Sessions Judge, Haridwar in S.T. No.156/2002 State Vs. Soma and others, hence all these appeals have been heard together and are being disposed of by this common judgment. By the impugned judgment and order, the appellants-Soma, Chander Piyara, Radha, Bijander, Manga alias Man Singh, Rakesh, Pratap, Satish, Salekh, Karan Singh, Manga S/o Lekhram, Nathu, Tirath and Sushil were convicted under section 302 IPC read with 149 IPC and each of them were sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/-. The appellants were also convicted under section 307 IPC read with 149 IPC and each of them were sentenced to undergo imprisonment for seven years and to pay a fine of Rs.3000/-. The appellants were further convicted and each of them were sentenced to undergo for one year and for six months and to pay fine of Rs.1000/- and Rs.500/- under section 148 IPC & 147 IPC respectively. All the sentences were to run concurrently. In default of payment of fine under section 302/149 IPC, each of the appellants were to undergo for further six months R.I. In default of payment of fine under section 307/149 IPC, the appellants were to undergo for three months R.I. and in default of payment of fine under section 148 IPC the appellants were to undergo for two months R.I. In default of payment of fine under section 147 IPC, the appellants were to undergo for further one month R.I. 2. The facts, in nutshell, are that the informant Sajjad alias Kala is the resident of village Dadubas, P.S. Bhagwanpur, District Haridwar. The appellants Bijander and Tirath have fired gun shots upon the informant in the matter of Soma’s daughter about two years ago from the date of incident and the said case was compromised in the court, due to this reason there was enmity between them. An incident of ‘marpeet’ took place between Pyara – son of Soma and Liyakat son of Noordin about four days ago from the date of incident with regard to the Metador (vehicle) charges and on the very next day at about 2pm the exchange of hot words took place between them. On 21.11.2001 Ayub - the brother of the complainant Sajjad @ Kala went to his filed situated near the river. The accused persons Soma, piyara, Chander and Radha came there and surrounded him, but he made his escape good from there. On the same day at about 10am soma, Piyara, Chander, Radha, Bijander, Tirath, Nathu, Manga S/o Jai Singh, Rakesh, Pratap, Satish, Salkh, Karan, Manga S/o Lekhram and Sushil armed with licensed guns and country- made pistols came near the house of the complainant. They abused the complainant party and challenged them to come out from the house. On this, the complainant and his family members alongwith the villagers tried to pacify them. But the accused persons fired indiscriminate gun shots towards the house of the complainant, due to which Gayur, Ikraar, Qayum, Israar, Ayub, Arshad, Ashruff, Iltaaf, Hamid, Naseem and Smt. Mehmuda sustained gun shot injuries. Mehroof S/o Naazar sustained gun- shot injury on his chest and he succumbed to his injury at the spot. Injured persons were taken to Rookee Hospital for their medical treatment. The dead body of the deceased- Mehroof was lying at the spot. Thereafter, the FIR Ex. Ka. 1 was lodged in the police station by the informant Sajjad @ Kala on the same day at about 11:45 and a case was registered against the accused persons. On 24.11.2001 at about 4:30am the injured Ikraar Ali succumbed to his injuries and the complainant gave a report Ex.Ka.2 to that effect to the police station, Bhagwanpur. The Investigating Officer started the investigation and sent the dead body for postmortem. The Investigating Officer also recovered the guns. The I.O prepared the site plan. He also recorded the statement of the witnesses. After completing the investigation, the Investigating Officer submitted the chargesheet before the court. 3. After submission of chargesheet the appellants- accused were committed to the court of Sessions for trial and the trial court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined as many as 13 witnesses, out of which, Gayur PW1, Sajjad @ Kala PW2, Ayub PW3, Ashraf PW4 are the injured eye witnesses of the incident. Dr. S. S. Lal PW5 has proved the postmortem report of the deceased- Mehroof. Dr. D. D. Lumba PW6 has examined the injured Ikraar, Arshad, Naseem, Ashruff, Smt. Mehmuda, Iltaaf, Qayum, Ayub, Israar and Hamid. Dr. Ajay Agarwal PW7 has examined the injured Sajjad @ Kala. Dr. R. K. Pandey PW8 conducted the postmortem of the deceased-Ikraar. Dr. Yogesh Kumar PW9 (Radiologist) has proved the X-ray reports of the injured Ikraar, Israar, Hamid, Ashruff, Naseem, Arshad and Iltaaf. S.I. R. K. Awasthi PW10 prepared the panchnama of the deceased Mehroof and Ikraar. Constable Vipin Kumar Kaushik PW11 has proved the chick FIR Ex.ka.47. S.I. – R. P. Singh Panwar PW12 has proved that the report of the death of injured Ikraar was recorded in the G.D. Ex.ka.48. Jodh Singh Adhikari PW13 was the Investigating Officer of this case. After completing the investigation, he submitted the chargesheet against the accused persons. 5. The accused persons were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case due to enmity and political reasons. 6. The learned trial court on appreciation of the evidence held the appellants guilty and convicted and sentenced them as mentioned above. 7. We have heard learned counsel for the appellants and learned Government Advocate for the respondent- state. Perused the record carefully. 8. At the outset, it needs to be mentioned here that it is not disputed that the deceased-Mehroof S/o Naazar died on the spot on account of fire-arm injury sustained by him on the date of occurrence. Dr. S. S. Lal PW5, Medical Officer conducted the postmortem of the deceased-Mehroof on 22.11.2001 at 1:30A.M. The autopsy surgeon found the following ante-mortem injury on the person of the deceased-Mehroof:- (i) Fire arm wound of entry 1cm x 1cm rounded in shape in front of left side of chest. 4cm away from left nipple at 10 o’clock position, margins inverted, blackening & tattooing present. 9. In the opinion of Dr. S. S. Lal PW5, Medical Officer, the death was caused due to shock and haemorrhage resulting from the ante-mortem fire-arm injury sustained by the deceased. The Medical Officer has also opined that the duration of the death was about half to one day back. He has proved the post mortem report Ex.Ka.3. Thus, it is amply established that deceased-Mehroof met a homicidal death on account of fire-arm injury sustained by him. 10. All the injured witnesses, including Ikraar Ali who died on 24.11.2001, were examined by Dr. D. D. Lumba PW6, Medical Officer of Roorkee Civil Hospital. The injured Ikraar Ali was medically examined on 21.11.2001 at 11:35 am and following injuries were found on his person:- (i) Lacerated wound 1cm x 0.5cm x through and through left pinna back middle part. No blackening, scorching and tattooing seen around the wound. (ii) Lacerated wound 1.0cm x 0.5cm x muscle deep tragus of left ear. No blackening, scorching and tattooing seen around the wound. (iii) Lacerated wound 1.6cm x 1.0cmx depth not probed middle of chin lower part. No blackening, scorching and tattooing seen around the wound. Adv. X-ray and fresh in duration. 11. Considering the precarious condition of the injured-Ikraar Ali, he was referred to a higher center for treatment on 21.11.2001 at 12:10pm. He was taken to P.G.I., Chandigarh from where he was referred to A.I.I.M.S., New Delhi, In view of his precarious condition, the injured-Ikraar Ali was allowed to take him to his house. Thereafter, the injured Ikraar Ali died on 24.11.2001. Dr. R. K. Pandey PW8, Medical Officer conducted the postmortem of the deceased- Ikraar Ali on 24.11.2001 at 2:30pm and found the following ante-mortem injuries on the person of he deceased-Ikraar Ali:- (i) Fire arm wound of entry 0.5cm x 0.08cm below in middle part of chin. Margins are incised. No blackening and tattooing seen around the wound, on explanation. Bullet traversed through brain substance, strike at occipital bone. There is fracture of occipital bone rebound through brain substance back of neck and recovered from space between C5 & C6 from muscle, fracture of C5 cervical vertebra. (ii) Abrasion 1.5cm x 1cm on the left pinna of tragus. 12. In the opinion of Dr. R. K. Pandey PW8, Medical Officer, the death was caused due to haemorrhage and coma resulting from the ante-mortem fire-arm injury sustained by the deceased-Ikraar. The Medical Officer has also opined that the duration of the death was about quarter to half day. Thus, it is amply established that deceased-Ikraar Ali met a homicidal death on account of fire-arm injury sustained by him. 13. It is also not disputed that the injured persons i.e. Gayur, Qayum, Israar, Ayub, arshad, Ashraf, Iltaaf Hamim, Nasim and Smt. Mahmuda have sustained injuries on their persons on the date of occurrence. Dr. D.D. Lumba PW6 has examined all the aforesaid injured person. He examined Gayur on 21.11.2001 at 12:45 a.m. and found the following injury on the person of the injured-Gayur:- (i) Lacerated wound 3.0cm x 2.0cm. x bone deep, left thigh, front 4.0cm above left knee joint with abrasion collar around the wound. No blackening, scorching and tattooing seen around the wound. The doctor has opined that the injury was fresh in duration. Further the injury was kept under observation and X-ray was advised. Dr. D.D. Lumba PW6 has also examined Arshad s/o Sayeed on 21.11.2001 at 1:10 p.m. and found the following injuries on the person of the injured :- (i) Lacerated wound 1.0cm.x 0.8cm. x depth not probed left clavicular region (above left clavicle) (ii) Lacerated wound 1.5cm x 1cm. x depth not probed, left side back upper part. No blackening, scorching and tattooing seen around both injuries. The doctor has opined that the injuries were fresh in duration. Further the injuries were kept under observation and X-ray was advised. X-ray report of injured is as follows:- “Radio-opaque shadows of small sized almost round shaped foreign bodies in seen infraclavicular region middle third part & at the level of 5-6 (fifth-6th) ribs of left side chest wall. Injuries are caused by discharge of firm- arm and simple in nature.” Dr. D.D. Jumba PW6 has examined Naseem Ahmad s/o Tahir on 21.11.2001 at 1:20 a.m. and found the following injury on his person:- (i) Lacerated wound 0.4 cm x 0.4cm x muscle deep, right upper-arm, back lower part. No blackening, scorching and tattooing seen around the wound. Mark of entry present on sleeve of Kurta & Kurta stained with blood. The doctor has opined that the injury was fresh in duration. Further the injury was kept under observation and X-ray was advised. X-ray report of injured is as follows:- “Ray right upper-arm – A small sized radio-opaque shadow of foreign body is seen on medial side of right upper-arm lower third region.” Dr. D.D. Lumba PW6 has examined Ashraf s/o Ibrahim on 21.11.2001 at 1:30 p.m. and found the following injuries on the person of the injured :- (i) Lacerated wound 0.5cm x 0.4cm x through & through, left lower lip, near midline with abraded swelling on gun (lower left). No blacking, scorching and tattooing seen around the wound. (ii) Lacerated wound 0.4cm x 0.4cm x muscle deep, right thigh, outerside, lower half. No blackening, scorching and tattooing seen around wound. Mark corresponding to injury present on ‘Tehmat’ which is stained with blood. The doctor has opined that the injuries were fresh in duration. Further the injuries were kept under observation and X-ray was advised. X-ray report of injured is as follows:- “X-ray face. A small sized almost round shaped in radio-opaque shadow of foreign bodies is seen on left side of face left mandibular region. X-ray Right thigh:- A small sized almost round shaped radio-opaque shadow of foreign body is seen in thigh lower third region. Injuries caused by discharge of fire-arm & simple in nature.” Dr. D.D. Lumba PW6 has examined Smt. Mehmuda w/o Gaffor on 21.11.2001 at 1:40 p.m. and found the following injury on the person of the injured:- (i) Lacerated wound 0.2cm x 0.2cm x muscle deep, right side neck, base, outerside. No blackening, scorching and tattooing seen around the wound. The doctor has opined that the injury was fresh in duration. Further the injury was kept under observation and X-ray was advised. X-ray report of injured is as follows:- “X-Ray neck region (right side) N.A.D. Hence, injury is caused by hard-blunt object & simple in nature.” Dr. D.D. Lumba PW6 has examined Iltaaf on 21.11.2001 at 1:45 p.m. and found the following injuries on the person of the injured :- (i) Lacerated wound 0.2cm x 0.2cm x muscle deep, right side neck, front upper-part. No blackening, scorching and tattooing seen around the wound. (ii) Three lacerated wound in an area of 7.0cm x 5.0cm x each measuring about 0.2cm x 0.2cm x muscle deep right upper arm, front outer, upper half. No blackening, scorching and tattooing seen around the wound. (iii) Lacerated wound 0.2 cm x 0.2 cm x muscle deep, left index finger, back px-interphalanged joint. The doctor has opined that all the injuries were fresh in duration. Further all the injuries were kept under observation and X-ray was advised. X-ray report o injured is as follows:- “X-ray Neck: A small sized almost round shaped radio-opaque shadows of foreign body is seen in neck at the level of C5- 6. X-ray Right Upper-arm: Small sized almost round shaped radio-opaque shadow of foreign bodies (three in no.) is seen in upper arm region upper third part. X-ray Left Index finger: A small sized almost round shaped radio-opaque shadow of foreign body is seen at the proximal interphalangeal bone region of index finger just below first I.P. joint. Injuries are caused by discharge of firearm and simple in nature.” Dr. D.D. Lumba PW6 has examined Qayum s/o Nazim on 21.11.2001 at 1:55 p.m and found the following injury on the person of the injured :- (i) Lacerated wound 0.4cm x 0.4cm x muscle deep, left thigh inner side middle part. No blackening scorching and tattooing seen around the wound. Corresponding to the injury mark of entry present on part which is stained with blood. The doctor has opined that the injury was fresh in duration. Further the injury was kept under observation and X-ray was advised. Dr. D.D. Lumba PW6 has examined Ayub s/o Hakimuddin on 21.11.2001 at 2:05 p.m. and found the following injury on the person of the injured :- (i) Abraded swelling 4.0cm x 3.0cm, left side chest, middle part. No blackening, scorching and tattooing seen around the wound. Injury by hard blunt object, simple and fresh in duration The doctor has opined that the injury was caused by hard blunt object. Further the injury was simple and fresh in duration. Dr. D.D. Lumba PW6 has examined Israar s/o Nazir on 21.11.2001 at 2:15 p.m. and found the following injuries on the person of the injured :- (i) Lacerated wound 1.5cm x 0.5cm x through, right mandible near chin. No blackening, scorching and tattooing seen around the wound. (ii) Lacerated wound 2.0cm x 1.0cm x through & through, left lower lip front. No blackening, scorching and tattooing seen around the wound. The doctor has opined that the injury No. 1 is communicating with injury No.1 & there is loss of lower right central and lat. Incisor teeth & right cavine tooth. The injuries were kept under observation. The injuries were fresh in duration. X-ray report of injured is as follows. “X-ray Face – Multiple small sized varied shaped radio-opaque shadows of foreign bodies are seen on right side mandibular region (chin area) with missing of Ist, IInd, IIIrd teeth of right lower jaw is seen. Fracture of mandible right medial side is also seen. Hence, injuries are caused by discharge of fire- arm and grievous in nature.” Dr. D. D. Lumba PW6 has examined Hamid s/o Maqsood on 21.11.2001 at 2:25 p.m. and found the following injury on the person of the injured. (i) Lacerated wound 2.0cm x 1.0cm x depth not probed, left side chest, 8.0cm below left nipple at about 5’O clock position. No blackening, scorching and tattooing seen around the wound. The doctor has opined that the injury was fresh. Further, the injury was kept under observation and X-ray advised. X-ray report of injured is as follows:- “A radio-opaque shadow of almost round shaped is seen on the left side of chest at the level of eighth and ninth rib. Hence injury is caused by discharge of fire-arm and simple in nature.” Perusal of the evidence of Dr. D. D. Lumba PW6 coupled with medical reports and supplementary reports of the injured persons reveals that the injuries sustained by the injured persons were caused by discharge of fire-arms. 14. Now, we have to consider whether the appellants- accused were responsible for causing injuries to the injured and the deceased persons. The prosecution had adduced the evidence of the injured eye-witnesses i.e. Gayur PW1, Sajjad @ kala PW2, Ayub PW3 and Ashraf PW4. 15. The informant Sajjad alias Kala PW2 has stated in his evidence that on the date of the incident his brother Ayub PW3 was working in his field. The accused persons namely Soma, Piyara, Chander and Radha came there and surrounded him, but he made his escape good from there. He further stated that on the same day at about 10:00 a.m. Soma, Piyara, Chander, Radha, Bijandr, Tirath, Nathu, Manga S/o Jai Singh, Rakesh, Pratap, Satish, Salekh, Karan, Manga S/o Lekhram and Sushil armed with licensed guns and country-made pistols came near his house. They abused them and challenged them to come out from the house. On this, the informant and his family members alongwith the villagers tried to pacify them but the accused persons fired indiscriminate gun shots towards his house, due to which Gayur, Ikraar, Qayum, Israar, Ayub, arshad, Ashruff, Iltaaf, Hamid, Naseem and Smt. Mehmuda including Sajjad PW1 sustained gun shot injuries on their persons. Mehroof S/o Naazar sustained gun-shot injury on his person and he died at the spot. The injured persons were taken to Roorkee hospital for their medical treatment. Sajjad @ Kala lodged the F.I.R. Ex.Ka.1 in the police station on the same day at about 11:45. He has further stated that the injured Ikraar Ali has also died after 4th day of the incident. He has also proved the F.I.R. lodged by him. He has further stated in his evidence that appellants Bijander and Tirath have fired gun shots upon the informant in the matter of Soma’s daughter about two years ago from the date of incident and the said case was compromised, due to this reason there was enmity between them. He has further stated that the incident of ‘marpeet’ took place between sons’ of Soma namely Radhe, Pyara and Liyakat son of Noordin about four days ago from the date of incident with regard to the Metador (vehicle) charges and the matter was amicably settled by the complaint party and an incident took place at about 2:00 p.m. on the same day between them due to this reason there was enmity between them. 16. Gayur PW1 has stated in his evidence that he and his family members were in his house. The accused persons namely Soma, Chander, Pyara, Radha, Manga s/o Jai Singh, Rakesh, Manga S/o Lekhram, Karan, Pratap, Satish, Salekh, Sushil, Tirath, Bijender and Nathu came on the road near their house and they started abusing the complainant and challenged them to come out from the house. On this his brother Sajjad @ Kala and other family members including he himself came out from their house. They saw that the accused Nathu, Tirath, Bijender, Radhe, Payara, Manga were holding the country made pistols in their hands and the rest of the accused were having the guns in their hands. Sajjad and other family member including he himself tried to pacify them but the accused persons fired indiscrimate gun shots towards them out of which Kala, Ikraar, Qayum, Israar, Mehroof, Ayub, Arshad, Ashruff, Iltaaf, Hamid and Smt. Mehmuda including Gayur PW1 himself sustained gun shot injuries on their persons. He has further deposed tat Mehroof died at the spot due to the gun shot injuries fired upon him by the accused. Thereafter, they were taken to the hospital where they were medically examined by the doctor. Later on injured Ikraar also succumbed to his injuries. Auyb PW3 and Ashruff PW4 have narrated the entire incident as stated by Gayur PW1 and Sajjad @ Kala PW2 in their evidence. They have also sustained the