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. 1998 of 2001 AND Criminal Appeal No.1993 of 2001 Date of decision :-07.08.2007 (Approved for Reporting) Not approved for reporting Date :-07.08.2007 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. 1998 of 2001 1. Islam @ Shamim s/o late Shri Mahmood 2. Naved S/o Shri Islam @ Shamin Both R/o village Akbarpur Dhadheki P.S. Manglore District Haridwar ...Appellants Versus State … Respondent AND Criminal Appeal No. 1993 of 2001 Shahid @ Kallu S/o Shabbir R/o Village Akhbarpur Dhadheki P.S. Manglore District Haridwar …Appellant Versus State … Respondent Delivery of Judgment : 07th August, 2007 Mr. Shashi Kant Shandilya learned Advocate for appellants Islam @ Shamim and Naved. Mr. Shashi Kant Shandilya learned Amicus Curiae for appellant- Shahid @Kallu. Mr. G. S. Sandhu learned Govt. Advocate with Mr. B. S. Parihar learned Brief Holder for State. Mr. S. P. S. Panwar learned senior Advocate with Mr. Sachin Panwar learned Advocate for the complainant. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J. C. S. Rawat, J. 1. Since both these criminal appeals have arisen out of the common impugned judgment & order dated 22.10.2001 passed by Sri Jaidev Singh, the then Addl. Sessions Judge, Roorkee (Haridwar) in S.T. No.77 of 1995 and No. 76 of 1995, hence these appeals have been heard together and are being disposed of by this common judgment. By the impugned judgment and order, the appellants-Islam @ Shamim, Naved and Shahid @ Kallu were convicted under section 302 read with section 34 IPC and each of the appellants were sentenced to undergo imprisonment for life under section 302/34 IPC and to pay fine of Rs.30,000/- each. In default of payment of fine under section 302/34 IPC, each of the appellants were to undergo for further three years S.I. The appellant Shahid @ Kallu was also convicted and sentenced to undergo for a period of one year R.I. and to pay fine of Rs.3000/- under section 25 Arms Act. In default of payment of fine under section 25 Arms Act, the appellant Shahid @ Kallu was to undergo for further three years S.I. Both the sentences were to run concurrently. 2. Brief facts for disposal of these two appeals are that on 03.11.1994 three murders were committed by the appellants-accused at three different places. (A) On 03.11.1994 at about 12:30p.m. Mansab PW3 and Rashid Ahmad PW4 were coming from Manglaure to their house on a bicycle and deceased Hanif was also coming with them on his bicycle. When they reached near ‘Bhatta’ at Nanheda Manglore road appellants-accused Islam @ Shamim, Naved and Shahid @ Kallu all of a sudden appeared there from the eucalyptus trees. The appellants came there on their bicycles. Islam @ Shamim was armed with double barrel gun (D.B.B.L.), whereas Naved and Shahid @ Kallu were armed with country- made pistols. All the appellants-accused started firing upon Hanif due to which he sustained injuries and fell from the bicycle and died at the spot. Mansab PW3 and Rashid Ahmad PW4 are the eye-witnesses of the murder of Hanif. (B) Thereafter, on the very same day at about 1p.m. the appellants-accused went on their bicycles to the house of Mohd. Hashim PW1 where Yasin was present in his ‘varanda’. Islam @ Shamim and Naved fired upon Yasin, but he did not sustain any fire-arm injury at that time. Deceased Yasin rushed towards the north and the appellants- accused chased him. Mohd. Hashim PW1 also ran towards them alongwith Rahil PW2 and one Mehboob. A little later the appellants-accused again fired gun-shots upon Yasin who fell down on the ground due the fire-arm injuries sustained by him. Appellant Naved also caused injuries on the head and chest of deceased Yasin with ‘Palkati’ (a sharp edged weapon). In this way, the appellants-accused committed the murder of Yasin at about 1p.m. on same day. Mohd. Hashim PW1 and Rahil PW2 were the eye-witnesses of the incident in which Yasin was murdered by the appellants. (C) After committing the murder of Yasin, the appellants-accused went to the fields where Mursalin PW6 alongwith his brother Anis was cutting the crop. The appellants-accused told them that they have killed Hanif and Yasin and they would kill them also. The appellants-accused then started firing upon them due to which Anis sustained injuries on his person and died at the spot. (D) On same day at 2:20p.m. informant Mursalin s/o Hanif lodged the written report Ex.ka.1 at the police station Manglore alleging therein that the ancestral property was partitioned between his father Hanif (deceased) and uncle Islam @ Shamim (appellant).His uncle Islam @ Shamim also got one tube-well in his share. There was an outstanding dues of the electric charges which was to be paid by the accused Islam @ Shamim but he did not pay the dues so the recovery proceedings were started against deceased Hanif as the electricity connection of this tube-well was in the name of Hanif. After 10 years of partition, a sum of Rs.31,000/- towards the electric charges were paid by the father of the informant. The payment of electric bill was due on Islam @ Shamim and the father of the informant asked Islam @ Shamim to give money which was paid by him towards the electric bill. When he did not pay the outstanding bill, Mohd. Hanif got it disconnected. Due to this reason, there was enmity between them. On the basis of the written report, a case was registered against the accused persons under section 302 IPC. The investigation was entrusted to S.O.-R.K. Singh Yadav. The Investigating Officer prepared the inquest reports of the three deceased (Anis, Yasin & Hanif) and sent the dead bodies for postmortem. He took the sample of blood stained earth and plain earth from the place of occurrence. He also recorded the statement of the witnesses. He also prepared the site plan. After completing the investigation, the Investigating Officer submitted the chargesheet before the court against the appellants Islam @ Shamim, Naved and Shahid @ Kallu under section 302 IPC. 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 fourteen witnesses, Mohd. Hashim PW1 and Rahil PW2 are eye-witnesses of the incident in which Yasin was murdered by the appellants. Mansab PW3 and Rashid Ahmad PW4 are eye-witnesses of the murder of deceased Hanif. Jabir PW5 and Mursalin PW6- informant are eyewitnesses of the murder of Anis. Mursalin PW6 claimed that when the appellants fired upon them, he ran away from the spot and he sustained the injuries on his person by coming to the contact of trees and bushes. Dr. Virendra Kumar Sharma PW7 was the Medical Officer who conducted the postmortem of deceased Anis, Hanif and Yasin. Dr. R. D. Chaudhary PW8 was the Medical Officer who examined the injuries of informant Mursalin PW6. Constable Vinod Kumar PW9 took the dead bodies for postmortem. Head Constable Kailash Chand Tyagi PW10 has proved the chick FIR. He also proved the G.D. entry. S.I.-Ram Kumar PW11 was the Investigating Officer of this case. In his presence the case was registered in the police station against the appellants. He also visited the spot and recorded the statement of the informant. S.I. Sukhvir Singh PW12 prepared the inquest report on the direction of S.O.-R. P. Singh. He proved the panchayatnama. Constable C.P. Gangadas PW13 alongwith arresting officer recovered one country-made pistol 315 bore from the possession of Shahid @ Kallu and on the basis of said recovery he registered a case against Shahid @ Kallu under section 25 Arms Act. S.I.-Yogendra Kumar Sharma PW14 was the Investigating Officer of the case registered against Shahid @ Kallu under section 25 Arms Act. 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. Appellant Naved has stated that he was a ‘child’ being about 13½ years of age at the time of incident. 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 parties and perused the record carefully. 8. It needs to be mentioned here that it is not disputed that deceased Hanif died on account of firearm injuries sustained by him on the date of occurrence. Dr. Virendra Kumar Sharma PW7, Medical Officer conducted the postmortem of deceased Hanif on 04.11.1994 and found following ante-mortem injuries on the person of deceased Hanif:- (i) Firearm wound of entry 5cm x 4cm x right temple deep in font of right ear x skull & brain deep. Burning present round the wound margins inverted. (ii) Fire arm wound of exit 10 cm x 9cm x skull & brain deep. Margins inverted; on left side face & skull. Brain matter open coming out. Skull left side bones fractured with both jaws left side & upper jaw right side. (iii) Fire arm wound of entry 1.5cm x ½cm x chest on right side front of it 5cm from right nipple at 5 o’clock position. Margins inverted. (iv) Firearm wound of exit 3cm x 2cm x chest right side lower part of back of chest 2cm from midline. Injury no.3 communicating to 4. Margins inverted. In the opinion of Medical Officer, the death of deceased might have occurred before 12 hours. It was further stated by him that the death might have occurred at about 12:30p.m. on 03.11.1994. It was further opined that the death of the deceased was caused due to shock and haemorrhage resulting from the ante-mortem injuries. 9. Deceased Yasin died on account of fire-arm injuries sustained by him on the date of occurrence. Dr. Virendra Kumar Sharma PW7, Medical Officer conducted the postmortem of deceased Yasin on 04.11.1994 at 1:50pm and found following ante- mortem injuries on the person of deceased Yasin:- (i) Incised wound 4cm x 1 cm muscle deep on top of head. (ii) Fire arm wound of entry x 1½ cm x bone deep on right side of face 2cm from right ear. Profound wound present. Margins inverted. (iii) Fire arm wound entry 1cm x bone deep on right side forehead just above right eye brow. Margins inverted. (iv) Fire arm wound of 10cm x 8cm x brain & skull deep on left side head. Margins inverted. Skull bone fractured. Brain matter coming out. Injury no.2 & 3 communicating to no.4. (v) Fire arm wound of 2½ cm x 2½cm x chest deep on front & left side of chest 9cm below middle. Wound of entry margins inverted (vi) Fire arm wound of entry 4cm x 2.5cm x chest deep of left side back 4cm below the scapula. Margins inverted. no.5 communicating to no.6. (vii) Incised wound 2cm x 1cm x chest deep, transverse, tailing right side upwards. In the opinion of Medical Officer, the death might have occurred at about 1:00p.m. on 03.11.1994. It was further opined that the death of the deceased was caused due to shock and haemorrhage resulting from the ante-mortem injuries. Thus, it is amply established that deceased-Yasin died on account of fire-arm injuries sustained by him on the date of occurrence. 10. Dr. Virendra Kumar Sharma PW7, Medical Officer conducted the postmortem of deceased Anis on 04.11.1994 at 12:30 p.m. and found following ante- mortem injuries on the person of deceased Anis:- (i) Lacerated wound 4cm x 2cm x neck left side of it margins inverted. Blackening tattooing scratching not present. Wound of entry. (ii) Lacerated wound 5cm x 3cm neck deep on front of neck. Margins inverted carotid and trachea cut. Wound of exit injury no.1. communicating to injury no.2 (iii) Lacerated wound 1cm x 1cm x muscle on top of right shoulder. margins inverted. One bullet recovered from this wound. (iv) Lacerated wound 6cm x 2cm x chest deep right side fron t of chest just above right clavical. margins inverted. Injury no.3 communicating to it. The bullet written in No.3 actually recovered at muscles of injury no.4 (v) Lacerated wound 1cm x 1cm x neck deep on left side. margins inverted wound of entry. (vi) Lacerated wound 7cm x 3cm x chest deep in front of chest on right side, near to injury no.2 (adjacent) margins inverted. Wound of exit no.5 communicating to injury no.6. (vii) Lacerated wound 1cm x 1.75cm x chest deep 7cm below from right nipple. Burning present round the wound. Bullet recovered on left side deep below skin in parallel transverse line to injury no.7. margins inverted wound of entry. (viii) Lacerated wound 1cm x 1cm x muscle deep on left forearm in middle. Margins inverted. wound of entry. (ix) Lacerated wound 2cm x 2cm x muscle deep of right forearm in middle. Margins inverted injury no.9 communicating to injury noi.8 wound of exit. (x) Lacerated wound 1cm x 1cm on right side of back & muscle deep. Margins inverted. wound of entry. Bullet recovered on right side in upper part, just below the inferior of right scapulla. (xi) Firearm wound of entry 1½ cm x 1½cm x chest cavity deep at line with mid axillary line margins inverted. (xii) Firearm wound of exit 2½cm x 2cm x chest deep back of chest. Margins inverted no.12 communicating to no.11. (xiii) Firearm wound of entry 2½ cm x 1½cm x abrasion mark left side. margins inverted. (xiv) Firearm wound of exit 4cm x 3cm x abdominal cavity deep axillary line with ext. in lower part of it. margins inverted. no.14 communicating to no12. In the opinion of Medical Officer, the duration of death of the deceased was about half day old. The medical officer has also stated in his evidence that the death of deceased Anis might have occurred before 12 hours. It was further stated by him that the death might have occurred at about 1:30p.m. on 03.11.1994. It was further opined that the death of the deceased was caused due to shock and haemorrhage resulting from the ante-mortem fire-arm injuries. 11. Thus, it is amply established that deceased Hanif, Yasin and Anis died on account of fire-arm injuries sustained by them on the date of occurrence. These three deceased persons were shot dead within a span of one hour at three different places. Now, we have to consider whether the appellants-accused were responsible for causing death of these deceased persons. We will deal with the evidence of each incident separately. 12. We will first deal the incident in which deceased Hanif was shot dead. The prosecution has adduced the evidence of Mansab PW3 and Rashid Ahmad PW4 who are the eye-witnesses of the murder of deceased Hanif. Mansab PW3 and Rashid Ahmad PW4 has stated in their evidence that they knew accused persons Islam @ Shamim, Naved and Shahid @ Kallu as they belonged to their village. Both the witnesses have further stated in their evidence that they knew deceased Hanif also since before. They have further stated that on date of incident they were coming from Manglore to their houses on a bicycle and deceased Hanif was also coming with them on other bicycle. At about 12:30p.m. when they reached near ‘Bhatta’ at Nanheda Manglore road, the appellants-accused were present near the eucalyptus trees alongwith their bicycles. Appellant Islam @ Shamim was armed with ‘D.B.B.L. Gun’ while Shahid @ Kallu and Naved were armed with country-made pistol. When they moved ahead, all the appellant-accused fired upon Hanif due to which he sustained injuries on his person and fell down from his bicycle and died at the spot. Thereafter, the appellants-accused ran away from the spot towards Akbarpur. Both the witnesses have further stated in their evidence that they did not chase the accused persons due to fear. They have further stated that when they reached near the village, they came to know that the accused persons have also killed Yasin. Thereafter, they informed about the incident to Mursalin PW6. Mansab PW3 and Rashid Ahmad PW4 have corroborated the evidence of each other. They were coming to the village alongwith deceased Hanif and they have narrated the entire incident as to how it happened. 13. In order to prove the incident in which Yasin was shot dead by the appellants-accused, the prosecution has adduced the evidence of Mohd. Hashim PW1 and Rahil PW2 who were said to be the eye-witnesses of the incident. Mohd. Hashim PW1 has stated in his evidence that he knew the accused Islam @ Shamim, Naved and Shahid @ Kallu since before as they belonged to his village. On the date of incident i.e. 03.11.1994 deceased Yasin was sitting in his ‘varanda’. Appellants Islam @ Shamim, Naved and Shahid @ Kallu armed with fire-arms came there. Accused Islam @ Shamim was armed with a gun, whereas accused Shahid @ Kallu and Naved were armed with country-made pistols in their hands. Thereafter, appellants Islam @ Shamim and Shahid @ Kallu fired upon deceased Yasin, but he did not sustain any fire-arm injury at that time. Deceased Yasin rushed towards the north and the appellants-accused chased him. Mohd. Hashim PW1 also ran towards them alongwith Rahil PW2 and one Mehboob. A little later the appellants again fired upon Yasin who fell down on the ground due to the fire-arm injures sustained by him. Mohd. Hashim PW1 has further stated in his evidence that he raised hue and cry. Appellant Naved also caused injuries on the head and chest of Yasin by ‘Palkati’ (a sharp edged weapon). Thereafter, the appellants-accused ran away from the place of occurrence. He has further stated that he narrated the entire story to Mursalin PW6 who came there after the incident. Mursalin PW6 has also stated to him that the accused persons have also killed Anis. Mohd. Hashim PW1 has further stated to Mursalin PW6 that Naved has assaulted the deceased with ‘Palkati’ and other accused persons fired upon the deceased with the gun and country-made pistol. Rahil PW2 has corroborated the statement of Mohd. Hashim PW1 and narrated the entire incident as narrated by Mohd. Hashim PW1. 14. The prosecution has adduced the evidence of Jabir PW5 and Mursalin PW6-informant who are said to be the eyewitnesses of the murder of Anis. PW5 Jabir has stated in his evidence that he was working in the field alongwith his brother. He further stated that at about 1:30 Mursalin PW6 was also working in the field alongwith deceased Anis. Appellants Shahid @ Kallu and Naved armed with country made pistol and accused Islam @ Shamim armed with D.B.B.L. gun reached nearby the field of Mursalin and Hanif on their bicycles. The appellants accused shouted upon Anis deceased and Mursalin PW6 and told them that they have killed Hanif and Yasin and they would kill them also. Thereafter, the appellants fired upon Anis due to which Anis sustained fire-arm injuries. In order to escape from the assault, Mursalin PW6 and Anis tried to run away from there, but Anis fell down on the ground. The appellants again fired upon him. Anis died due to the fire arm injuries sustained by him. Mursalin PW6 who is the informant has also corroborated the evidence of PW5 Jabir. 15. Learned counsel for the appellants contended that the prosecution witnesses had admitted that there were other persons who had seen the incidents of the murders of the deceased persons, but they were not produced before the court. It was further contended that the prosecution has not produced any independent witness to corroborate the fact of incidents. It was further contended that the eye-witnesses of the prosecution are interested witnesses as some of them are related to the deceased persons. Mursalin PW6 is the son of Hanif and brother of Anis. It was further contended that all the eye witnesses belonged to the village Akbarpur and all of them are either neighbours or relatives of the deceased persons. The prosecution has failed to adduce the evidence of other persons who were present at the scene of occurrences. Learned G.A. refuted the contention. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining, the prosecuting case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. If already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In determining as to whether any witness is necessary or not, the court should ask itself as to whether in the facts and circumstances of the case it was necessary to examine such other witnesses, and if so whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable/trustworthy and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 6 eye-witnesses – two each of the three incidents – whose presence at the place of the incidents cannot be doubted at all. The genesis of the incidents is brought out by these witnesses. The learned trial court has on appreciation of evidence held that the murder of Hanif took place near the ‘Bhatta’ Nanheda Manglore road on 03.11.1994 in presence of Mansab PW3 and Rashid Ahmad PW4; the murder of Yasin took place on 03.11.1994 at about 1p.m. in presence of Mohd. Hashim PW1 and Rahil PW2; and the murder of Anis took place on the same day at about 1:30p.m. in presence of Jabir PW5 and Mursalin PW6. Nothing more could have been revealed by other people who were present at the three spots. The trial court has minutely scrutinised the statements of all the eyewitnesses and found them consistent and reliable. We do not find any infirmity in the findings recorded by the trial court. With the assistance of the leaned counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eyewitnesses consistent and reliable in their narration of the incidents. Moreover, it is a well settled position of law that it is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is the quality of the evidence and not the quantity, which is required. If the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy then increase in the number of witnesses cannot be the requirement of the case. It has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed lot. They are being threatened, intimidated and