RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 406 OF 2001 (OLD NO. 2255/1997) Mustafa & Another ……… Appellants/accused Versus State of U.P. ……… Respondent July 14, 2009 Mr. Rajendra Singh, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State. HON’BLE DHARAM VEER, J. This appeal preferred by the appellants under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘Cr.P.C.’), is directed against the judgment and order dated 9.12.1997 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No. 238/91, State v. Mustafa & Anr., whereby the learned Additional Sessions Judge has convicted the appellants/accused under Section 307 read with Section 34 of Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced each of them to undergo rigorous imprisonment for a period of ten years along with fine of Rs. 10,000/- and in case of default in the payment of fine, the appellants/accused were directed to further undergo R.I. for a period of three months. 2. Heard learned Counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that PW1 Mohd. Tahseen has lodged an FIR in police station Jhabrera on 2.5.1991 with the averment that on 1.5.1991 he along with his brother Mohd. Hasim (PW2) were going for starting the tubewell for irrigation of water. On the same day at about 6 p.m. when they have reached near the field of Mahmood, then from the sugarcane field of Mahmood the appellants/accused Mustafa and Murtaza have come out armed with pistol (tamancha) and have told that today we will take revenge from you. On saying this word, both of the appellants/accused have fired with the pistols with intention to kill them. The fires hit on the left hand and on the mouth near the right eyes PW2 Mohd. Hasim who was ahead to him. Meanwhile Khurseed and Ozuddin have also come on the place of occurrence who were returning to their fields and have seen the said incident. The appellants/accused have run away after the fire towards the south side. He has taken his brother Mohd. Hasim to the Manglore for the treatment and his brother was admitted in the Manglore hospital. Along with the medical report he has filed the FIR Ex. Ka-1 in the police station Jhabrera. On the basis of this FIR, Head Moharrir Om Prakash (PW3) has prepared the chick FIR on 2.5.1991 at 00.30 a.m., that is Ex. Ka-2. Necessary entries were made in the GD by him. Carbon copy of the GD is Ex. Ka-3. 4. The investigation of this case was entrusted to PW4 S.I. Rambir Singh. The injured Mohd. Hasim (PW2) was medically examined by PW5 Dr. N.D. Arora on 1.5.1991 at 8.20 p.m. and prepared the injury report Ex. Ka-8. X- ray was also conducted on the medical advice and the X- ray report Ex. Ka-10 was prepared by Dr. Vinod Tyagi, Radiologist. After the X-ray report, PW5 Dr. N.D. Arora has also prepared a supplementary report Ex. Ka-9. During the course of investigation, the I.O. has prepared the site plan of the place of occurrence, that is Ex. Ka-4. He has also taken the blood stained sheet and trouser of the injured Mohd. Hasim and prepared a fard Ex. Ka-5. The Investigation Officer has also searched the house of the appellants/accused and prepared a fard of search Ex. Ka-6. During the course of investigation, the Investigation Officer has recorded the statement of the witnesses and after completing the investigation he has filed the chargesheet Ex. Ka-7 against the appellants/accused. 5. Learned Judicial Magistrate, Roorkee has committed the case to the court of Sessions on 8.7.1991 after giving necessary copies of the documents to the appellants/accused as required under Section 207 Cr.P.C. Learned Sessions Judge has transferred the trial to Additional Sessions Judge for disposal according to law. 6. Learned Additional Sessions Judge framed the charges against the appellants/accused on 24.1.1992 under Section 307 read with Section 34 and Section 504 IPC. The charges were read over and explained to each of the appellants/accused who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined PW1, Mohd. Tahseen, the complainant and eyewitness of the case; PW2 Mohd. Hasim, the injured eyewitness; PW3 Head Constable Om Prakash, who has prepared the chick FIR and made necessary entries in the GD; PW4 Rambir Singh, the I.O. of the case; PW5 Dr. N.D. Arora, who medically examined the injured Mohd. Hasim and prepared the medical report Ex. Ka-8 and supplementary report Ex. Ka-9 and PW6 H.N. Singh, who has proved the X-ray report Ex. Ka-10. 8. Thereafter statement of the appellants/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that he was falsely implicated in this case. In defence, they did not produce any oral evidence. However, in documentary evidence they have filed the judgment and order dated 20.2.1996 passed by the Additional Sessions Judge, Roorkee in Session Trial No. 178/91, State v. Asraf & Ors. 9. After appreciating the evidence and after hearing learned Counsel for the parties, learned Additional Sessions Judge, roorkee vide his judgment and order dated 9.12.1997 convicted and sentenced the appellants/accused as discussed above. Against the aforesaid judgment and order dated 9.12.1997, the appellants/accused have preferred the present appeal. 10. Before further discussion, it is pertinent to mention the injuries found on the body of PW2 Mohd. Hasim who was medically examined by PW5 Dr. N.D. Arora on 1.5.1991 at 8.20 p.m. and has found the following injuries: “(1) Firearm wound on the right upper eyelid .5 cm x .5 cm, oval shape, blood clot present. Swelling around present. Bleeding on cleaning the wound. Blackening present. (2) Firearm wound on the right side of cheek. .5 cm x .5 cm x depth not probed 3 cm away from angle of the mouth. (3) Middle finger of left hand is blown up by its terminal phalynx. Black powder is present on the whole of finger. (4) Firearm wound on the middle left side finger 1.5 cm x 1 cm oval in shape adjacent & 1 cm is also deep at middle inter phalynx joint. Skin blackened. Bleeding. (5) Firearm wound on the left index finger at terminal phalynx. Tip is blown 2 cm x 3 cm, tip is blown away. Black powder is present. (6) Left firearm wound on the left index finger in area 3.5 cm each .1 cm x .5 cm, skin is cover with black powder, finger is swell. (7) Black powder skin burnt on the left ring finger at its tip area 1.5 cm x 2 cm and also on the left thumb by terminal phalynx. Remarks: (1) All injuries are firearm. Duration fresh. (2) Injury no. 3 is grievous in nature as terminal phalynx is anticipated by injuries. (3) Injury no. 1, 2, 3, 4, 5 and 6 are kept under observation and X-ray advised to see foreign body in respective parts.” 11. After that X-ray of Mohd. Hasim was conducted by Dr. Vinod Tyagi on 2.5.1991 and X-ray report Ex. Ka-10 was prepared. On the basis of the X-ray report Ex. Ka-10, PW5 Dr. N.D. Arora has also prepared the supplementary report Ex. Ka-9, which is reproduced as under: “X-ray left hand – one radio opaque shadow small present on the proximal part of proximal phalynx of left index finger. Three radio opaque, small shadows present on the terminal part of proximal phalynx of left index finger with comminuted fracture of terminal part of proximal phalynx of left index finger, lower part of middle phalynx and middle of terminal phalynx of left index finger. One small radio opaque shadow on the proximal part of proximal phalynx of left middle finger and comminuted fracture of distal phalnx of left middle finger. Remarks: (1) All injuries are confirmed firearm. (2) Injury no. 3 is grievous in nature. (3) Injury no. 4 & 5 are grievous in nature.” 12. To prove the injury report Ex. Ka-8 and supplementary report Ex. Ka-9, the prosecution has examined PW5 Dr. N.D. Arora who has stated that on 1.5.1991 he was posted at Primary Health Centre, Manglore and on that day at about 8.20 p.m. Mohd. Hasim was medically examined by him and found the above said injuries as mentioned in Ex. Ka-8 on his body. He has further stated that injury report Ex. Ka-8 was prepared by him and has further stated that all the injuries were fresh and could be caused by firearm and injury no. 3 was grievous in nature and rest of the injuries were kept under observation. X-ray was advised. He has further stated that all the injuries could be caused on 1.5.1991 at about 6 p.m. by the firearms. He has further stated that after receiving the X-ray report he has prepared the supplementary report (Ex. Ka-9) as per the X-ray report, Ex. Ka-10. On the basis of this X-ray report he has given the opinion that injuries no. 3, 4 and 5 were grievous in nature. He has also proved the supplementary report Ex. Ka-9. 13. To prove the X-ray report Ex. Ka-10, the prosecution has examined PW6 H.N. Singh, Pharmacist who has stated that he has been posted in the same hospital on the same post. Dr. Vinod Tyagi, Radiologist was posted in this hospital on 2.5.1991. Dr. Vinod Tyagi has died on 10.11.1996. He had seen Dr. Vinod Tyagi at the time of writing and signing. X-ray report Ex. Ka-10 was written and signed by Dr. Vinod Tyagi. 14. To further prove its case the prosecution has examined PW1 Mohd. Tahseen who has reiterated the averments made by him in the FIR and proved the FIR Ex. Ka-1 His statement was recorded in the court on 26.6.1995 who has stated that the appellants/accused who were present in the court were the resident of his village. He has further stated that the said incident was said to be taken place about four years and two months before. He along with his brother Mohd. Hasim (PW2) was going to start the tubewell. When on the chuck road they have reached near the field of Mahmood, the time was about 6 p.m., the appellants/accused Mustafa and Murtaza have come out from the field armed with the tamancha (Pistol) and have told that today we will take revenge from you. Mohd. Hasim (PW2) was ahead 4-5 steps from him. Each of the appellants/accused have fired on Mohd. Hasim with intention to kill him. The fires hit on the left hand and the right side of the mouth. At the time of the incident Ozuddin and Khurseed have come on the place of occurrence. After seeing the witnesses the appellants/accused have run from the place of occurrence. From there Hasim was taken to Manglore hopital on tractor where his brother Mohd. Hasim was medically examined and was admitted in the hospital. After admitting Mohd. Hasim in the hospital, he has gone to Jhabrera on tractor to lodge the report. On the way, some break down was taken place in the tractor. Then from the jeep he has gone to Jhabrera where the report was scribed by Jamal Akhtar and lodged in the police station. That report is Ex. Ka-1. They have not gone to the Jhabrera straightway due to the reason that on the way of Jhabrera, the house of the father of the appellants/accused is situated and the appellants/accused can attack on them in the way also. Due to this fear they have not gone to Jhabrera directly. The Investigation Officer has also taken his statement on the same night. The Investigation Officer has also inspected the place of occurrence in his presence. This witness was cross-examined at length but nothing has come out from the evidence which may create doubt about the incident. 15. PW2 Mohd. Hasim, the injured whose statement was recorded on 3.7.1995 has stated that the appellants/accused were the resident of his village. The said incident has happened about four years and two months before. He along with his brother Mohd. Tahseen (PW1) was going to start the tubewell at about 6 p.m. When they reached near the field of Mahmood, from the sugarcane field of Mahmood the appellants/accused have come out armed with tamancha (Pistol) and have told that we will take revenge from you today. Then with the intention to kill him, both of the appellants/accused have fired on him due to which he received the injuries on his left hand and his right cheek. After hearing the noise of the fire and the noise of his brother, Khurseed and Ozuddin have reached on the place of occurrence. They have also made the noise. Then the appellants/accused have run away towards the south. His sheet was blood stained due to these injuries and the trouser was also blood stained. He was taken to the Manglore hospital on tractor where he was medically examined and was admitted in the hospital. He remained admitted in the hospital for 8 days and in between his X-ray was conducted in the Roorkee hospital. His fingers were fractured. In the way of Jhabrera police station, the house of the appellants/accused was situated. The way goes to Jhabrera is in front of the house of the appellants/accused. Due to this fear they have not gone to Jhabrera directly. The blood stained clothes which he wore at the time of incident are trouser and sheet, which are Ex. 1 and 2. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create doubt in his statement. 16. PW3 Head Constable Om Prakash who has stated that on 2.5.1991, he was posted at thana Jhabrera. On the basis of the report Ex. Ka-1 given by PW1 Mohd. Tahseen, he has prepared the chick FIR Ex. Ka-2. Necessary entries were also made by him in the GD. Carbon copy of the GD is Ex. Ka-3. 17. PW4 S.I. Rambir Singh, the I.O. of the case has stated that on 2.5.1991 he was posted in Jhabrera police station. The investigation of this case was entrusted to him. During the course of investigation, he has recorded the statement of the witnesses and prepared the site plan of the place of occurrence Ex. Ka-4 on the pointing out of the complainant Mohd. Tahseen, PW1. He has also taken the blood stained clothes of the injured Mohd. Hasim in his possession and has prepared a fard Ex. Ka-5. He has also made a search in the house of the appellants/accused and a search memo was prepared, that is Ex. Ka-6. After completing the investigation, he has filed the chargesheet Ex. Ka-7 against the appellants/accused. 18. Thereafter statement of the appellants/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they were falsely implicated in this case. In defence, they did not produce any oral evidence. However, in documentary evidence they have filed the judgment and order dated 20.2.1996 passed by the Additional Sessions Judge, Roorkee in Session Trial No. 178/91, State v. Asraf & Ors. 19. Learned Counsel for the appellants/accused argued that the prosecution has failed to prove the case against the appellants/accused beyond reasonable doubt. I do not find any substance in the argument raised by the learned Counsel for the appellants/accused as the PW2 Mohd. Hasim has stated that he along with his brother Mohd. Tahseen (PW1) was going to start the tubewell at about 6 p.m. on 1.5.1991. When they reached near the field of Mahmood, from the sugarcane field of Mahmood the appellants/accused have come out armed with tamancha (Pistol) from the fields and have told that we will take revenge from you today. Then with the intention to kill him both of the appellants/accused have fired on him due to which he received the injuries on his left hand and his right cheek. After hearing the noise of the fire and the noise of his brother, Khurseed and Ozuddin have reached on the place of occurrence. They have also made the noise. Then the appellants/accused have run away towards the south. His chadar (sheet) was blood stained due to these injuries and the trouser was also blood stained. He was taken to the Manglore hospital on tractor where he was medically examined and was admitted in the hospital. He remained admitted in the hospital for 8 days and in between his X-ray was conducted in the Roorkee hospital. His fingers were fractured. In the way of Jhabrera police station, the house of the appellants/accused was situated. The way goes to Jhabrera is in front of the house of the appellants/accused. Due to this fear they have not gone to Jhabrera directly. The statement of this witness is believable and reliable and inspire the confidence. 20. Statement of injured Mohd. Hasim (PW2) is corroborated from the statement of PW1 Mohd. Tahseen, the eyewitness of the case and the injury report, X-ray report and also from the statement of PW5 Dr. N.D. Arora and PW6 H.N. Singh. Statement of PW2 Mohd. Hasim is believable and reliable and inspire the confidence. Furthermore, in the supplementary report Ex. Ka-9 prepared by PW5 Dr. N.D. Arora, it has been stated on the basis of X-ray report Ex. Ka-10 that injuries no. 3, 4 and 5 found on the person of injured Mohd. Hasim, PW2 are grievous in nature. In this way, prosecution has proved beyond reasonable doubt that the appellants/accused have caused the injuries with the tamancha (firearm) with intention to kill Mohd. Hasim on 1.5.1991 at 6 p.m. near the field of Mahmood at Jangalgram Akbarpur Oza, Thana Jhabrera. 21. Moreover, the enmity is also proved from the evidence as it has come in the evidence that the litigation of land is pending between the appellants/accused and father of PW2 Mohd. Hasim in the High Court and appellants/accused have also filed copy of the judgment and order dated 20.2.1996 passed by the Additional Sessions Judge, Roorkee in Session Trial No. 178/91, State v. Asraf & Ors., which shows that there was enmity between the parties and sufficient motive was also there to commit the crime. Hence, motive to commit the said crime is also proved against the appellants/accused. 22. Learned Counsel for the appellants/accused has further argued that the sentence awarded to the appellants is on the higher side and he has submitted that each of the appellants/accused are living with their families peacefully and that no case was registered against them after this case and about 18 years have passed of the abovesaid incident. Therefore, lesser punishment should be awarded to the appellants/accused. 23. After considering all the facts and circumstances of the case, the gravity of the offence and the nature of injuries, seven years’ rigorous imprisonment would met the ends of justice. 24. In view of my above discussion and conclusion, appeal is partly allowed. Conviction of the appellants/accused is affirmed. Sentence of ten years’ R.I. awarded to each of the appellants/accused for the offence punishable under Section 307 read with Section 34 IPC is set aside. Each of the appellants/accused is sentenced to seven years’ R.I. along with fine of Rs. 10,000/- for the offence punishable u/s 307 read with Section 34 IPC and in case of default in payment of fine, each of the appellants/accused shall further undergo three months’ R.I. Judgment and order dated 9.12.1997 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No. 238/91, State v. Mustafa & Anr., is modified to the above extent. 25. Accused Mustafa and Murtza are on bail. Their bail bonds are cancelled. Sureties are discharged. Let the lower court record be sent back for compliance of this order. (Dharam Veer, J.) 14.07.2009 PRABODH