Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 607 of 2001 (Old no. 1423 of 1989) 1. Vijai Kumar S/o Shankar Lal, 2. Kaluwa S/o Ram Kumar, 3. Rupa S/o Ram Kumar, -------(Since deceased) All r/o Bamba Gher Dhima Basti, P.S. Ramnagar, Distt. Nainital. ------- Accused/appellants. Versus The State. ------- Respondent Sri L.K. Tewari, Adv. holding brief of Sri Dinesh Chandra Gahtori counsel for the appellants, Sri Nandan Arya, learned A.G.A. for the State. Dated: April 10, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 26/27th June 1989 passed by the Sessions Judge, Nainital in Sessions Trial no. 171 of 1986 State vs. Vijai Kumar and others and in Sessions Trial no. 172 of 1986 State vs. Vijay Kumar whereby the learned Sessions Judge has convicted the accused/appellant Vijay Kumar for the offence punishable u/s 307 The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and awarded sentence to undergo rigorous imprisonment for a period of 4 years’ and the co-accused/ appellants Kaluwa and Rupa were convicted for the offence punishable u/s 307 read with Section 34 I.P.C. and each of them were awarded sentence to undergo rigorous imprisonment for a period of 4 years’. 2. The prosecution case, in brief, is that P.W.1 Hariraj Maheshwari-complainant lodged a written report Ext. Ka-1 on 07.07.1986 at 10:20 p.m. at Police Station Ramnagar in regard to the incident occurred on the same day at about 9:30 p.m. with the averments that his nephew Sanjay Kumar S/o Chandra 2 Mohan Maheshwari who is resident of Purani Abkari, Bambagher, Tehsil/P.S. Ramnagar was employed as compositor in Hemant Printing Press. On 07.07.1986 at about 9:30 p.m., the accused persons Vijay S/o Shankar Lal resident of Bambagher Dheemar Basti, Kaluwa and Roopa sons of Raj Kumar residents of Dheemar Basti Bambagher called Sanjay outside at the road from inside the press. At that time Sri Tasleem Ahmad S/o Abdul Hameed r/o Purani Abkari Bambagher and Sri Dinesh Arora S/o Sri Lakshmi Narayan Arora r/o Motimahal, Ramnagar were standing there. At the very moment at the road the accused persons Kaluwa and Roopa had caught hold of Sanjay and the accused Vijay after taking out a knife from his pocket stabbed Sanjay on his abdomen. Sanjay Kumar faltered and fell on the road. Thereafter all the three had beaten Sanjay with fists and kicks. Then the accused persons left for their house. Though the witnesses saw the entire incident, but out of fear they could not rescue Sanjay. The injured Sanjay was admitted in the hospital by the witnesses and residents of the Mohalla. On the basis of the written report Ext. Ka-1 the Chik report Ext. Ka-7 was prepared by Constable Sumer Singh on 07.07.1986 at 10:20 p.m. in regard to crime no. 174/1986 u/s 307/323 I.P.C. police station Ramnagar and an entry in this regard was made in the G.D. on 07.07.1986 a copy of which is Ext. Ka-8 on the record. 3. The injured Sanjay Kimar was medically examined by the Medical Officer P.W.5 Dr. B.C. Lohani on 07.07.1986 at about 10:20 p.m. at Combined Hospital, Ramnagar and prepared the injury report Ext. Ka-3. 4. The investigation of the case was entrusted to P.W. 7 S.I. Ramesh Kumar who has investigated the case. The Investigation Officer has recorded the statements of the witnesses and during the course of investigation on 09.07.1986 he has taken in his possession the bloodstained shirt of the 3 injured which the injured wore at the time of the incident and a recovery memo Ext. Ka-10 was prepared in the presence of Vijay Prakash and Dipak Kumar. The Investigating Officer has also prepared site-plan of the place of occurrence on 08.07.1986 which is Ext. Ka-9 on the record. Thereafter the investigation was transferred and entrusted to P.W. 8 SI Ranvir Singh from 12.07.1986 who during the investigation arrested the accused Vijay Kumar. He also recorded statements of some of the witnesses and after completing the investigation, the Investigation Officer P.W.8 filed charge sheet against the accused/appellants u/s 307/323 I.P.C. on 24.07.1986 The charge sheet is Ext. Ka-11 on the record. 5. On 18.07.1986 when SI B.S. Verma alongwith Constable Amarnath came to the Court at Judicial Magistrate, Kashipur for obtaining warrant-B in some other case crime no. 162/86, then outside the Court on the road he saw accused Vijay S/o Shankar Lal and caught hold of him in the presence of Naresh P.W.4 and Devendra Kumar and on the pointing out of accused Vijay inside a box in his house situated at Mohalla Bambagher Dheemar Basti, Ramnagar, recovered the Knife i.e. the weapon used in crime no. 174/1986. A recovery memo Ext. Ka-2 was prepared on the spot. The knife was kept in a sealed cover and sample seal was taken. On the basis of the recovery memo the Chik report Ext. Ka-4 was prepared by Constable Clerk Ramesh Chandra on 18.07.1986 at 6:40 p.m. in regard to case crime no. 183/1986 u/s 4/25 Arms Act at police station Ramnagar and an entry was made in the G.D. a copy of which is Ext. Ka-5 on the record. Investigation of the this case was conducted by SI Dinesh Chandra Nautiyal and after completion of the investigation he submitted charge sheet on 19.07.1986 against the accused Vijay Kumar u/s 4/25 Arms Act which is Ext. Ka-6 on the record. 4 6. Learned Judicial Magistrate, Kashipur on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 18.08.1986 u/s 209 Cr.P.C. 7. Learned Sessions Judge, Nainital after hearing the parties on 14.11.1986 framed the charge of offence punishable u/s 307 against the accused Vijay Kumar and another charge of offence punishable u/s 307/34 I.P.C. against the accused persons Kaluwa and Roopa. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. And on 19.11.1986, after hearing the parties, the accused Vijay was further charged for the offence punishable u/s 25/4 of the Arms Act. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 8. The prosecution, to prove its case, has examined PW-1 Hariraj Maheshwari, the complainant, PW-2 Tasleem Ahmad, eye witness, PW-3 Sanjeev Kumar, the injured, PW-4 Naresh witness of recovery of knife, PW-5 Dr. B.C. Lohani, who conducted medical examination of the injured, PW-6 SI Bhawan Singh Verma, PW-7 SI Ramesh Kumar, Investigating Officer of the case and PW-8 SI Ranvir Singh, another Investigating Officer. 9. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. The accused persons did not produced any evidence in their defence. 10. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge convicted the accused/appellant Vijay Kumar for the 5 offence punishable u/s 307 I.P.C. and awarded sentence to undergo rigorous imprisonment for a period of 4 years’ and the co-accused/ appellants Kaluwa and Rupa were convicted for the offence punishable u/s 307 read with Section 34 I.P.C. and each of them were awarded sentence to undergo rigorous imprisonment for a period of 4 years’. Aggrieved with the impugned judgment and order the accused/appellants have preferred the present appeal. 11. I have heard Sri L.K. Tewari, Adv. holding brief of Sri Dinesh Chandra Gahtori learned counsel for the accused/appellants and Sri Nandan Arya, learned A.G.A. for the State. 12. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Sanjeev Kumar. Medical examination of the injured Sanjeev Kumar was conducted by P.W. 5 Dr. B.C. Lohani on 07.07.1986 at 10:20 p.m. at Combined Hospital, Ramnagar, Nainital who prepared the medical report, which is Ext. Ka-3 on the record. The following injury was found on the body of the injured Sanjeev Kumar:- “An incised stab wound 2.0 cm. (two cm.) in length, margins clear, horizontal and 10.0 cm. left lateral to umbilicus. Omentum is out. Fresh bleeding. Situate at Left of abdomen.” In the opinion of the medical officer, the only wound is caused by some sharp, pointed object. Duration fresh. The injury was kept under observation and the patient was referred to L.D. Bhatt hospital, Kashipur. 13. The prosecution to prove its case, first of all, has examined PW-1 Hariraj Maheshwari, the complainant, who has stated that he knows the accused persons Vijay, Kaluwa and 6 Roopa, present in the Court. The incident was of 07.07.1986. At 10 O’ Clock he was sitting in his friend’s shop. Some known persons informed him that about half an hour before; his nephew Sanjay Kumar was stabbed with a knife by the said accused persons and injured him seriously. After knowing about the incident he fled to hospital. Many people were gathered there and his nephew was lied down in a bandage room of the hospital in injured condition. At that time two persons Mohd. Tasleem and Dinesh Kumar, already known to him, were also standing there who narrated the incident to him and accordingly the First Information Report was written by Sri Ashif Khan on his dictation. He put his signatures on the report. He identified his signatures on the written report Ext. Ka-1. He lodged the report at Police Station Ramnagar. Thereafter he reached to the Civil Hospital from police station where his nephew Sanjay Kumar was admitted. The doctors opined about the critical condition of the injured, therefore he took the injured to Civil Hospital, Kashipur and admitted him there. 14. PW-2 is Tasleem Ahmad, the eye witness, who has stated that he knows the accused persons Vijay, Kaluwa and Roopa. The incident was of 07.07.1986 at 9:30 p.m. at night. He runs a grocery shop at Bambagher. On the date of incident, after closing the shop he had gone for a walk to market. In the way he met with his friend Dinesh Arora and they planned to view a picture in Himalaya Talkies, Ramnagar. He called one Iddu contractor in regard to some money, at Idgah, near the picture hall. All these happenings were of Kasba Ramnagar. At that time he saw three persons on the road beside the Himalaya Picture Hall. There was electric light. Manjit Auto Garage was near to it and a mercury bulb was lit there in front of the door. He identified all the three persons in that light whose names were Vijay Kumar, Kaluwa and Roopa. He identified the accused persons in the Court. He has further stated that Hemant Printing Press is beside the said Auto Garage. Then all 7 the three accused persons called Sanjeev Kumar @ Sanjay from the Hemant Printing Press. He saw that Sanjeev Kumar while coming outside the Press reached to the accused persons. At the very moment the accused persons Roopa and Kaluwa had caught hold of Sanjeev Kumar and the accused Vijay stabbed with something in the abdomen of Sanjeev after taking it out from his pocket. On receiving injury, Sanjeev Kumar fell down but the accused persons had beaten him with fists and kicks even after he fell down. After receiving injury as soon as Sanjeev Kumar screamed they ran toward him and the accused persons fled towards the graveyard. Till then one or two more persons reached there and on their support Sanjeev Kumar was taken to hospital at Ramnagar. Apart from him the incident was seen by Dinesh Arora. He and Dinesh Arora were standing at the south western corner of the house of Iddu contractor. The incident had taken place at a distance of about 10 to 12 steps to the western direction from the place where they were standing. The playground is situated to the north direction of the place of incident. And some vacant space is there. In the southern direction there was road after Idgah. The place of occurrence was fill with light with the help of a lamp fixed at the door of Manjeet Auto Garage. In para-8 of his cross examination, this witness has stated that as soon as Sanjeev Kumar reached to them, the accused persons pounced upon him and while scuffling him they took him to the west side where he was stabbed with a knife. This witness has been cross examined by the defence counsel at length; but nothing has come out in his cross examination which may create doubt in his statements. 15. PW-3 is Sri Sanjeev Kumar Maheshwari, the injured, whose statement was recorded in the Court on 18.02.1987. In his statement, this witness has stated that the incident of 07.07.1986 which took place at about 9:30 p.m. He does the work of composing in the Hemant Printing Press. Diler Singh also makes copies in the same Hemant Printing Press. On that 8 day in the night at about 9:30 p.m. the accused Vijay called him. Hearing the calls, he came at the door of the Press. The accused persons were standing at a distance of 5-6 steps outside the Press. Door of the Press opens towards the northern direction. The accused persons abused him and pushing him they took him to a little ahead towards the west. There is a tap within a distance of 2-4 steps from the wall of Idgah. The accused persons started tussling with him first then the accused persons Kaluwa and Roopa caught hold of him behind him and the accused Vijay stabbed him with a knife. After receiving knife blows, he fell down. Thereafter all the three accused persons had beaten him with fists and kicks. It is further stated that when he came out of the Press, he saw Tasleem and Arora there who have also seen stabbing him with knife. A bulb was lit there above the Manjeet Auto Garage and light was there on the place of occurrence. He identified the assailants in said light. One day before this incident he and Diler Singh were passing by the Madhuvan Talkies, Ramnagar at that moment the accused Roopa, present in the Court, had stopped Diler Singh and after grabbing his collar he abused him. He and two other persons have interfered with. Roopa and Diler had old enmity. After receiving injury when he fell down then Tasleem, Dinesh Arora, Diler Singh and 2-4 other persons took him to hospital. The accused had intention to kill him in stabbing the knife blows because he had interfered in the incident occurred one day before. His shirt was bloodstained. His condition was very serious in the hospital on account of the injury received by him therefore he was sent to Kashipur for treatment. His shirt was taken into possession at Kashipur. One sealed bundle was opened and a shirt was taken out, seeing which he identified and said that this was the shirt which he had wore at the time of the incident and was taken in possession by Daroga in the hospital at Kashipur. A mark of knife blow is on it and it is stained with blood which oozed out from his wound and marked as Ext.-I. The knife blow was caused to him by the 9 accused Vijay on the road at about 15 steps towards west direction of Hemant Printing Press. Manjit Auto Garage is located to a distance of 5-6 steps towards west from the press. At the time of the incident a mercury bulb was lit at the door of the said Garage. The place of occurrence was fill up with light with the help of that bulb. After the MARPIT all three assailants fled towards the graveyard, which is located to the north west direction of the place of occurrence. He had no prior enmity with the accused persons. This witness has been cross examined by the defence counsel at length; but nothing has come out in his cross examination which may create doubt in his statements. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 16. PW-4 is Naresh, who is the eye witness of recovery of the knife which is used as a weapon in the incident occurred on 07.07.1986. This witness has stated that he knows the accused Vijay present in the Court. About a lapse of one year, he has gone to the Court at Kashipur. One year before at about 12:30 p.m. he and one Devendra of Ramnagar were standing outside the Court. One Sub Inspector of Ramnagar caught hold of the accused Vijay in the road heading to the Court. On being inquired by the Sub Inspector in his presence the accused had told that he had hidden the knife in his house, used in inflicting injury to Sanjay, and he can hand over the same. Thereafter he alongwith the Daroga and the accused went to Ramnagar. After reaching Ramnagar the accused Vijay took them to his house He took the key of a box from his mother and after unlocking a box he took out the knife from a box and told that it is the same knife. The recovered knife was sealed and a recovery memo was prepared at the spot. The recovery memo was read over and then he put his signatures on it. The recovery memo is Ext. Ka- 2. One sealed bundle was opened and a knife was taken out on seeing which he identified the same that it was the same knife 10 which the accused Vijay had handed over to Daroga Ji and marked as Ext.-II. 17. PW-5 is Dr. B.C. Lohani, Medical Officer who has conducted medical examination of the victim. He has stated that on 07.07.1986 he was posted as Medical Officer at Combined Hospital Ramnagar. On that day at 10:20 p.m. the injured Sanjeev Kumar was brought by Sri Diler Singh in the hospital. He examined medically to him and found the injury mentioned in para-12. The injury was caused by some sharp edged weapon. The injury was fresh and kept under observation. Police was informed. The patient was referred to L.D. Bhatt Hospital, Kashipur. He prepared the medical report in his hand writing and thumb impression of the injured was taken on the report. The medical report is Ext. Ka-3. It is opined that the injury could have been caused by the knife. 18. PW-6 is SI Sri Bhawan Singh Verma, who has arrested the accused Vijay and on his pointing out he recovered the knife Ext.-II, i.e. the weapon used in the crime. He has stated that on 18.07.1986 he was posted at Police Station Ramnagar. On that day at about 12:30 p.m. he arrested the accused Vijay on the road towards west side outside the Court premises. At that time the witnesses PW-4 Naresh and Devendra Kumar were present. After arrest of the accused he inquired from the accused and the accused Vijay had told that he would hand over the knife which he has kept hidden in his house. Taking the accused with them he alongwith the witnesses came to Ramnagar. After reaching Ramnagar, the accused took them in his house and after obtaining keys from his mother he unlocked a box and took out the knife from the box. The knife was sealed and a recovery memo Ext. Ka-2 was prepared which is in his hand writing. Signatures of the accused and the witnesses were taken on the recovery memo. The recovery memo was read over. The knife which he took in his possession is Ext. II. He returned back to 11 police station with the accused and the recovered knife and lodged the report u/s 4/25 Arms Act against the accused. The Chik report is before him which was prepared by Constable Clerk Ramesh Chandra in accordance with the FARD and marked as Ext. Ka-4. An entry was made in the G.D. no. 49 at 6:40 p.m. a carbon copy of the G.D. is Ext. Ka-5. The offence punishable u/s 4/25 Arms Act was investigated by SI Sri Dinesh Chandra Nautiyal, who after completion of investigation submitted charge sheet Ext. Ka-6 on 19.07.1986 against the accused Vijay Kumar. The charge sheet is in the hand writing and under the signature of SI Dinesh Chandra Nautiyal whose signatures and hand writing were identified. 19. PW-7 is SI Ramesh Kumar, Investigating Officer of the case, who has stated that he was posted as Sub Inspector in the Police Station Ramnagar from 07.07.1986 to 10.07.1986. Ext. Ka-1 was submitted by Sri Hariraj Maheshwari in the police station in his presence. The Chik report Ext. Ka-7 was prepared by the Constable Clerk Sumer Singh which in his hand writing and under his signatures. On the basis of the Chik report, Sumer Singh has made entry in the G.D. no. 45 the carbon copy of which is in the hand writing and under the signatures of Sumer Singh which is Ext. Ka-8 on the record. He conducted investigation of the case from 07.07.1986. He recorded statement of the complainant Hariraj in the Police Station and after reaching in the hospital he recorded the statements of injured Sanjeev. He departed from the hospital in the evening of 08.07.1986 for making search of the accused persons. Thereafter, he recorded statement of Tasleem Ahmad and others. He made spot inspection and thereafter prepared the site plan, the site plan Ext. Ka-9 is on his hand writing. On 09.07.1986 he reached at L.D. Bhatt Hospital, Kashipur where the injured was referred. The bloodstained shirt of the injured Sanjeev Kumar, which according to the injured he had wore at the time of the incident, was taken by him in his possession. 12 The shirt is Ext.-I. Recovery memo of the shirt Ext. Ka-10 was prepared by him which is on his hand writing. The recovered shirt was kept under sealed cover and the same was submitted in the police station on 10.07.1986. He remained in search of the whereabouts of the accused persons and on the information of the informer he arrested the accused persons Roopa and Kaluwa on 10.07.1986 from Kosi BAIRAJ, Ramnagar. The investigation of the case was handed over to S.O. Ranvir Singh, who during the investigation recorded the statements of the witnesses. After completing the investigation charge sheet Ext. Ka-11 was submitted on 24.07.1986. The charge sheet is in the hand writing of S.O. Ranvir Singh, he is acquainted with his handwriting. 20. PW-8 is the Station Officer, Ranvir Singh, who has taken the investigation in his hand, from SI R.K. Rastogi vide orders of Police Superintendent. Investigation of the case was entrusted to him from 12.07.1986.During investigation he made search of accused Vijay. The accused Vijay Kumar was arrested by SI Bhagwan Singh Verma. He also inquired from the accused Vijay and recorded the statements of SI Bhagwan Singh and others. On 24.07.1986 he submitted charge sheet Ext. Ka-11 against accused persons Vijay, Kaluwa and Roopa. 21. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. The accused persons did not produced any evidence in their defence. 22. Learned counsel for the appellants has submitted that on the basis of the evidence produced by the prosecution no case u/s 307 I.P.C. is proved against the accused/appellants beyond reasonable doubt. But the prosecution, in order to prove its case 13 has examined the injured PW-3 Sanjeev Kumar who in his statement has categorically stated that on 07.07.1986 at about 9:30 p.m. he was working in the Hemant Printing Press at that time the accused