Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 91 of 2007 B rijesh Aswal alias Bijju ...…………. Appellant Versus State of Uttarakhand ...…………. Respondent Mr. J.S. Virk, Advocate for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. JUDGMENT Coram : Hon’ble Tarun Agarwala, A.C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 24.02.2007, passed by Sessions Judge, Almora in Sessions Trial No. 08 of 2006, whereby accused / appellant Brijesh Aswal alias Bijju is convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life and also directed to pay a fine of ` 25,000/-. He is further convicted under Section 25 of the Arms Act, 1959 (in Sessions Trial No. 09 of 2006), and sentenced 2 to rigorous imprisonment for a period of three years and also directed to pay a fine of ` 5,000/-. 2. Heard learned counsel for the appellant and learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution story, in brief, is that P.W.1 Kailash Singh Negi (informant) lodged a first information report (Ext. Ka-1) with police station, Ranikhet stating therein that on 21.08.2005, in the afternoon, he received a phone call which is meant for his brother Devendra (deceased) asking him to be present in the office of Ranikhet Taxi Union where an election is going to be held for the post of President. On this, both the brothers proceeded on motorcycle towards the Taxi Stand situated near K.M.O.U. Station, Ranikhet and reached there at 04:30 P.M. His brother went inside the office of the Union and started talking with Bijju Aswal, President of the Taxi Union, resident of Timila, regarding election for the post of President of the Union, and he (Kailash Singh) remained outside the office. At about 05:15 P.M., he heard altercations between his brother and Bijju Aswal in relation to the election to be held for the post of President of Taxi Union. On this he took his brother out of the office and told him to come home with him. This brother (Devendra) after coming out of the office of the Union 3 started kicking his motorcycle standing at some distance, and the informant was there with him. All of a sudden, Bijju Aswal, President of the Taxi Union, came there, and after hurling abuses at Devendra fired shot from a country made pistol with an intention to kill him, which hit Devendra on his right temple. The assailant fled from the scene of occurrence. The brother of the informant collapsed and he started bleeding. This incident was witnessed by many persons assembled there. He immediately took his brother for treatment in Govt. Hospital, Ranikhet, in a vehicle, where he is undergoing treatment. On the basis of said FIR, the police registered crime No. 446 of 2005, in respect of offence punishable under Section 307 of I.P.C. against the accused Bijju Aswal, and prepared chick report (Ext. Ka-4). Later, on the death of Devendra, the case was converted to one punishable under Section 302 of I.P.C. The investigation of the case was taken up by P.W.6 Inspector Devendra Singh. He inspected the spot, prepared site plan (Ext. Ka-6) and recovery memo of blood stained soil and simple soil from the spot and prepared Ext. Ka-7 in this regard. On the same day i.e. 21.08.2005, at 09:50 P.M., the police took possession of the dead body of Devendra and prepared inquest report (Ext. Ka-14) and the dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. Dhirendra Bankoti (P.W.4) of Soban 4 Singh Jeena Base Hospital, Haldwani on 21.08.2005, at 11:45 P.M., who prepared autopsy report (Ext. Ka-2). The Medical Officer found one ante mortem injury below 5 cm from the ear of the deceased, and opined that the same could have been possible by a firearm. The Medical Officer also opined that deceased had died of shock and haemorrhage due to ante mortem firearm injury. Before his death Devendra was medically examined by P.W.5 Dr. R.D. Tewari in Civil Hospital, Ranikhet on 21.08.2005, at 05:45 P.M. The said Medical Officer opined that the injury could have been possible by a firearm. Meanwhile, on 24.08.2004, accused Brijesh Aswal alias Bijju was arrested by the police and memo (Ext. Ka-10) was prepared. On the same day, on the disclosure made by the accused, one plastic bag was recovered from a pit, in which a 12 bore country made pistol, two live cartridges 12 bore and one 12 bore empty cartridge which was struck in the barrel was recovered and memo of recovery (Ext. Ka-9) was prepared in the presence of witnesses. 4. After completing the investigation, charge sheet (Ext. Ka-15) was filed against the accused / appellant Brijesh Aswal @ Bijju, relating to offence punishable under Section 302 of I.P.C. A separate crime relating to offence punishable under Section 25 of the Arms Act was registered after recovery of the country made pistol from accused, which was also 5 investigated, and a separate charge sheet (Ext. Ka-22) was filed after obtaining necessary sanction (Ext. Ka- 21) from the District Magistrate, Almora, in respect of said offence. P.W.6 Inspector Devendra Singh also sent the country made pistol 12 bore, two live cartridges and one empty cartridge to Forensic Science Laboratory for examination. After interrogating the witnesses, and on completion of investigation, the Investigating Officers submitted the charge sheets (Ext. Ka-15 and Ext. Ka- 22) against the accused Brijesh Aswal alias Bijju for his trial in respect of offence punishable under Section 302 of I.P.C., and one relating to offence punishable under Section 25 of the Arms Act, 5. The Magistrate, on receipt of both the charge sheets, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned Sessions Judge, Almora on 20.06.2006, after hearing the parties, framed charge for the offence punishable under Section 302 of I.P.C., and another charge of offence punishable under Section 25 of the Arms Act against the accused / appellant Brijesh Aswal alias Bijju, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Kailash Singh (eyewitness and brother of the deceased); P.W.2 Vikram Singh Adhikari (another eyewitness); P.W.3 Devendra Singh alias 6 Deepu (declared hostile); P.W.4 Dr. Dhirendra Bankoti (who conducted the postmortem examination); P.W.5 Dr. R.D. Tewari (who examined the injuries on the person of Devendra); P.W.6 Inspector Devendra Singh (Investigating Officer); P.W.7 Kishan Singh Hyanki (who arrested the accused and prepared recovery memo); P.W.8 S.I. Rami Ram (witness of preparation of arresting memo) and P.W.9 S.I. Ganga Singh (who submitted charge sheet against the accused relating to offence punishable under Section 25 Arms Act). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged the same to be false and stated that he has been falsely implicated in the crime. In defence, D.W.1 Anand Singh (correspondent of newspaper Amar Ujala) was produced. The trial court, after hearing the parties, found accused / appellant Brijesh Aswal alias Bijju guilty of charge of offence punishable under Section 302 of I.P.C., and one punishable under Section 25 of the Arms Act. After hearing the parties, the trial court sentenced convict Brijesh Aswal alias Bijju to imprisonment for life under Section 302 of I.P.C. and rigorous imprisonment for a period of three years under Section 25 of the Arms Act. Fines were also imposed. Aggrieved by said judgment and order dated 24.02.2007, the convict preferred this appeal. 7 6. Before proceeding for further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of deceased Devendra by P.W.4 Dr. Dhirendra Bankoti, on 21.08.2005, at 11:45 P.M., who prepared the autopsy report (Ext. Ka-2). The same are being reproduced below: Single wound of size 4 cm x 3 cm x muscle and bone deep with through and through wound in right oral cavity, present over right side of neck, 5 cm posterio- inferior from right margins, directed anterosuperorly. Margins inverted, blackening and tattooing throughout margins. On exploration of wound, muscle and vessels of right side of neck are severed, body of mandible is fractured with multiple pellets lodged in muscle and chuk and oral cavity with one plastic cork lodged in vestibule of mouth. Total 31 pellets and one plastic cork is separated and sealed and handed over to accompanying police constable. Fracture of mandible. 7. The Medical Officer opined in the autopsy report that deceased had died of shock and haemorrhage due to ante mortem firearm injury. 8. The incident is alleged to have taken place on 21.08.1995 at 5:15 pm and the FIR is lodged on the same day at 6:20 pm. The distance between the taxi stand KMOU station Ranikhet and police station is half a kilometer and therefore, there appears to be no delay in lodging the FIR. The FIR is promptly lodged. The 8 FIR is lodged by Kailash Singh Negi. He has been examined as P.W. 1. He has stated in examination-in- chief that the deceased Devender Singh Negi was his elder brother. The incident took place on 21.08.2005 at approx 5:15 pm. His brother received a telephone call that he has to come to Ranikhet taxi stand union. The elections of the Presidentship of taxi union were due. The informant along with his elder brother reached Ranikhet by motorcycle from their village. They reached union office Ranikhet at 4:30 pm. His elder brother entered taxi union office, which is situated near KMOU bus stand. The accused-appellant Brijesh Singh Aswal alias Bijju was sitting there. He was standing at the get of the office of the union. An altercation took place between the elder brother /deceased and the accused-appellant. The informant, younger brother entered into the office and asked his elder brother to come home. The elder brother came out. The informant was at the gate. The bullet motorcycle of elder brother/deceased was standing nearby. His brother was about to start the motorcycle. In the meantime, the accused-appellant Brijesh Singh Aswal came to his elder brother and put a country made pistol on the neck of his elder brother and fired. He uttered “You have been made the President”. Devender Singh Negi (deceased) fell to the bullet of assassin. Blood dropped on the spot. He was carried to the Government hospital on Tata Sumo. He was treated in the Government 9 hospital. The informant has proved the FIR (Ext. Ka-1) lodged by him. The accused / appellant went away from the scene. Vikram Singh Adhikari, Mahendra Singh Bisht and many other people were present on the spot but he did not know them by their names. He had seen them at Ranikhet. Initially the FIR was lodged under section 307 IPC but when the victim died, it was converted into 302 IPC. When the informant went to police station, he received a telephone call that the victim is being taken to Haldwani for further treatment. When he reached Haldwani by another vehicle, he was informed that his brother Devender Singh Negi has succumbed to the injuries and died. 9. The informant was put to a very lengthy cross- examination. In his cross-examination, he has stated that Devender Singh Negi had a taxi. He was Deputy Block Pramukh. He had also the business of video photography. He is not aware whether his brother used to send the photo reels to the witness Vikram Singh for mixing. His real uncle (Mausa) Lal Singh Rautela is resident of Kathgodam where witness Vikram Singh too resides. The informant along with his elder brother used to visit Kathgodam. 10. On the date of incident, the telephone was received in the village in the morning that he has been called in the union office for the election of the President. He is not aware who had made the telephone 10 call but is definite that the election was not to be held on the date when the occurrence took place. The informant is not aware whether any meeting was convened in relation to the election or not. The informant has said that he had never been to the union office before this incident took place. There was no specific reason to come to union office along with his elder brother. His brother did not take meal before reaching union office. For about 2 &1/2 hours both the brothers did not remain together. Between 1:30 pm to 4:00 pm, both the brothers moved separately. The informant went to his brother-in-law’s shop at Ranikhet, which is situated at Ranikhet-Amora road at a distance of 250-300 meters from the union office. Ranikhet is situated at a distance of 25 kms from village Pitola. He and his brother owned two motorcycles individually. His brother was also owner of a taxi (Tata Sumo). The taxi driver belonged to Jolia Naula. His father-in-law Hukum Singh is President of another taxi union. The informant has categorically stated that they had no enmity with anybody, be it Brijesh Singh Aswal alias Bijju or anyone else. The report was scribed by him at the shop of his father-in-law Hukum Singh. His father-in-law was not present at that time but he reached there within 2-3 minutes. The same was scribed around 5:30 pm to 6pm. He has admitted that many a facts, as questioned by the learned counsel for the accused-appellant, have not been written in the FIR. 11 11. It is to be noted here that the FIR is not an encyclopedia of all the facts and minutest details. The victim was taken to hospital within 4-5 minutes of the incident in a taxi. (It was a different taxi from the one which was owned by the victim). On being questioned by the court, the informant said that the taxi stand is situated at about 20-30 feet from the union office. He has admitted that it is a crowded place where the incident took place. There is a petrol pump and a sweet shop near the taxi stand. All the shops were opened. Many people have witnessed this incident. He has admitted that he has not disclosed the names of the witnesses in the report because he did not know anybody by name. He had come along with his elder brother in the union office. The motor cycle was standing at a distance of about 7-8 feet from the union office near public toilet. When his brother was fired at (by the accused / appellant) he was kick starting the motorcycle. When he was starting the motorcycle, his brother’s left foot was on the earth and the right foot was on the motor-cycle. The height of the informant as well as his elder brother was almost the same but the assailant has little more height than his brother. The assailant / appellant fled away from the scene soon after firing at his brother. His brother fell down, no sooner he received the shot. His elder brother remained on the spot for about 5 minutes. No body had taken his photographs during this duration. The informant 12 remained with his brother till the victim was taken to hospital. He was categorical in his statement that no photographer or correspondent took his brother’s photographs. He has no knowledge whether his brother’s photo was published in any newspaper or not. He has categorically denied the suggestion that he was not present on the spot when the occurrence took place. He has also denied that some unknown assailant had injured his brother. It is true that his brother wanted to become the President of the taxi union. That day his brother did not operate his taxi in his presence. He had no idea whether two police constables remained on duty at the place of occurrence. He also did not remember whether any police constable accompanied his brother to hospital or not, but he had not seen any police person with his brother. He and the police personnel rang up from Sushila Tiwari hospital to Ranikhet police station that his brother has died. He is not aware whether any police person informed the Police Station about the incident from the place of occurrence or not. He is not aware whether Ranikhet police reached spot after this occurrence took place or not. The police did not arrive on the scene in his presence. He does not remember whether he had any conversation with Doctor or not. He does not remember whether the Doctor in the Ranikhet Hospital had asked him to take the patient/victim to the higher centre. This witness had his schooling in the village and has passed intermediate. He is not aware 13 whether Vikram Singh Adhikari and Mahender Singh Bisht were regular visitor to Lal Singh Rautela or not. He had not seen Vikram Singh and Mahender at Kathgodam before this occurrence took place. Vikram Singh and Mahender Singh Bist did not disclose their names to him. He does not remember whether these two witnesses have been to hospital or not ? When lifted his brother, his clothes were also stained with blood. The Investigating Officer had not taken his blood stained clothes. He had not shown these blood stained clothes to the Investigating Officer either. The Investigating Officer met him at police station alone and never thereafter. He had shown the place of occurrence to the Investigating Officer only on the date of occurrence. He did not take his elder brother to Haldwani Hospital directly. He along with his brother had reached union office around 4:30 pm. The Investigating Officer had taken his statements on the same day at the Police Station. He has denied that he is a tutored witness. He has denied that the lawyers also move through this road. If one proceeds from the place of occurrence to the Hopsital, then one finds the Police Station in between. The blood dropped on the place from where his elder brother was lifted. They reached to the hospital within 5 minutes at around 5:30 pm. The Doctor was available there. He has also denied the fact that he has not seen the occurrence and did not take his brother to hospital. He knew the accused / appellant from before this 14 incident took place. He had written complete name of the accused-appellant in the report. He had seen the accused / appellant earlier. He stayed in the hospital for 2-3 minutes. It takes about 5 minutes to reach the Police Station from the hospital. He is not aware whether there are two officials of the taxi union. He did not see any employee in the Union office. He did not see any sweeper over there. When he came back to the place of occurrence along with the Investigating Officer, motor cycle was shown to him. He is not aware whether any recovery memo pertaining to the motor cycle was prepared by the Police or not. He had shown the place of occurrence and the distance from where the fire was shot at his brother to the Investigating Officer. He had not seen his brother-in-law Ramesh or his father-in-law on the spot. When he had come to show the place of occurrence to the Police, his father-in-law accompanied him but he was not seen on the spot before that. It is true that his father-in-law was President of one of the taxi union. In all, there are four taxi unions. The accused-appellant Brijesh Singh Aswal alias Bijju was heading one of the unions. His father-in-law had arrived at the Police Station along with him. He has denied that the accused-appellant was falsely implicated at the behest of his father-in-law. He has denied that his elder brother was lying on the spot for very long and was bleeding profusely. He has denied that he reached the spot after his brother was shot at. The post-mortem of 15 his brother was conducted at Haldwani. He had not seen Vikram Singh and Mahender Singh when the cremation took place on the next day at village. He had seen Vikram Singh and Mahender Singh in the court after this incident. He had not seen any person known as Darshan Singh on the fateful day. He had not seen his brother-in-law Ramesh Chaudhary on the date of incident. The altercation between Brijesh and his brother took place inside the union office. No one else was present in the office then. He had not seen anybody coming out of the office. Questions on post-mortem report and inquest report were also asked to this witness. He had seen Bhagwat, Raju and Navin at Ranikhet Hospital at 5:25 pm. All of them belonged to the Ranikhet. 12. Subsequently, this informant/witness/younger brother of the deceased also identified the country made pistol (Ext. 1) by which the accused / appellant had fired at his brother. In the cross-examination, he has also said that no country made pistol was recovered in his presence but was emphatic in saying that the accused-appellant had this country made pistol (Ext. 1) in his hands. 13. If we scrutinize the evidence of this witness very closely, it is more than clear that this witness was present on the spot. In the most natural circumstances this witness accompanied his elder brother in the 16 motorcycle when his elder brother received telephonic call to come to the taxi union office. He was interested to contest the election of President ship. He entered in the Union’s office where he had altercation with the accused-appellant, who was the sitting President of the Union. After the altercation took place, deceased/victim came out of his room. The accused never wanted him to become the President of the Taxi Union and therefore, fired at him from close range with a country made pistol. The victim fell to the bullet of the assassin. He was fired at when he was about to kick start his motorcycle. It is natural that his brother was present there, as he was to be a pillion rider. The accused appellant fled away from the scene. The victim was bleeding. Within few minutes, he was taken to the nearest hospital where the Doctor referred him to the higher centre. In the meantime, the younger brother/informant came to the Police Station to lodge the FIR. He had shown the place of occurrence to the Police. He went to Haldwani Hospital thereafter, whereupon he was informed that his brother has died. His father-in-law, who happens to be President of another Taxi Union, also came along with him subsequently when he showed the site to the Police. The presence of this witness on the spot at the time of commission of offence cannot be doubted. No doubt, he is the younger brother of the deceased, a close relative and therefore, it was incumbent upon the court to have 17 scrutinized the evidence of this witness. It is not that the evidence of a close relative has to be discarded all the way at the very first site. The law only enjoins that the evidence of such a witness should be scrutinized with great care and caution. We have tried to mention the finest and minutest details of the examination-in- chief and the cross-examination of the informant/witness but we have not been able to find a single sentence of substance which may tend to harm or cause prejudice to the prosecution story. Various irrelevant questions were asked to this witness, but he has turned out unscathed. So far as his testimony is concerned, greatest caution was taken to find out whether there is single sentence of substance in favour of the accused, but unfortunately, for the appellant, we did