IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Criminal Appeal No. 1593 of 2001 (Old No. 2876/1984) 1. Kalbe Ali S/o Bhurey R/o Village Maseet P.S. Gadarpur, District Nainital 2. Anwar Hussain, S/o Altaf Hussain R/o Village Maseet, P.S. Gadarpur, District Nainital ........Appellants Vs. State of Uttaranchal ......Respondent Sri J.C. Gupta learned Senior Advocate for appellant no. 1 Sri Dharam Veer learned Advocate for appellant no.2 Sri D.K. Sharma learned G.A. Coram :- Hon’ble Irshad Hussain, J. Hon’ble J.C.S. Rawat, J. Dated :- 27th July, 2004 ORAL JUDGMENT (Per :- Hon’ble Justice J.C.S. Rawat) This is a criminal appeal under Section 374 of the Code of Criminal Procedure (for short ‘Code’) against the judgment and order dated 29.9.1984 passed by the Sessions Judge, Nainital in S.T. No. 207/1982 convicting the appellant no. 1-Kalbe Ali under Section 302 IPC and appellant no.2-Anwar Hussain under Section 302/34 IPC and sentenced them to undergo life imprisonment. 2. The brief facts giving rise to the present appeal are that Ashfaq Hussain-deceased was the younger brother of Mohd. Ishaq (PW-1) and Smt. Sharifan (CW-1) was the wife of the deceased. Shafi Ahmed (PW- 2) was the real brother of Smt. Sharifan and before her marriage with Ashfaq Hussain, Smt. Sharifan was married to one Abdul Rehman. After her divorce from first husband-Abdul Rehman, the marriage between Ashfaq Hussain and Smt. Sharifan had taken place about a year before the incident. After marriage, they were living together in village Maseet. The appellants-accused were also living in the same village and they were related to each other. Smt. Sharifan’s father had left about 20 acres of land at the time of his death. Ashfaq Hussain was cultivating the same land after his marriage with Smt. Sharifan. 3. Appellant-Kalbe Ali had told Smt. Sharifan to marry with him otherwise Ashfaq Hussain would sell away the entire property. She got annoyed with Kalbe Ali and complained to Ashfaq Hussain. The appellant-Kalbe Ali also asked Ashfaq Hussain to pay half of the price which was obtained by him by selling the land. 4. On 11.6.1982 at about 9:45 to 10 PM when Ashfaq Hussain alongwith Mohd. Ishaq (PW-1) and Shafi Ahmed (PW-2) were going to irrigate his fields and reached near the Pilkhan tree situated outside the house of Kalbe Ali, they found that the appellants were sitting under the tree. Kalbe Ali, who was armed with a rifle fired a shot which hit the victim-Ashfaq Hussain who fell down spontaneously. The accused were identified in the moon light and by their voice. Hearing the gun shot, Nazakat Ali (PW-4) and Muzaffar Ali (PW-3) the neighbours of the appellants came out from their respective houses and found both the appellants were dragging the body of Ashfaq Hussain to Kalbe Ali’s house and accused then threatened not to come forward. Due to fear none could dare to go to the house of appellant Kalbe Ali. 5. Thereafter, a report (Ex.Ka.1) was dictated by Mohd. Ishaq (PW-1) to scribe Nazakat Ali (PW4) and the same was handed over to the Head Constable Jai Prakash (PW-9) at the police station. On its basis, the check report (Ex.Ka.9) was prepared and an entry to that effect was made in the G.D., the copy of which was Ex.ka.10. S.I.- Laxmi Ram Arya (PW-10) was present at the police station when the case was registered on 11.6.1982. The I.O. started the investigation immediately after registration of the case and the statement of Mohd. Ishaq (PW-1) was recorded at the police station. On 12.6.1982 the I.O. reached the scene of occurrence and took the samples of the plain and blood stained earth from the place where the dead body of Ashfaq Hussain was lying inside the house of appellant Kalbe Ali (sealed in two tins material Exs. 7 & 8 under recovery memo Ex.ka.4). A pair of Chappal material Ex.5 under recovery memo Ex.ka.5, sample of plain & blood stained earth from the place where the shot was fired (sealed in two tins material Exts. 9 & 10 under the recovery memo Ex.ka.6) and sight protector of rifle (material Ex.11 under the recovery memo Ex.ka.7) were taken into possession. But the accused was not arrested at that time. The inquest report (Ex.ka.1) was prepared on 12.6.1982 in the presence of the witnesses. The photo lash (Ex.ka.12), Challan lash (Ex.ka.13) and other documents were also prepared by the I.O. Thereafter the dead body was sent to Kashipur Hospital for postmortem. The I.O. also inspected the scene of occurrence and recorded the statement of the witnesses under section 161 Cr.P.C. on 12.6.1982 at about 8 PM, the I.O. arrested the accused-Kalbe Ali from his house and recovered one licenced rifle .315 bore (material Ext.12), two used catridges (material Exts.13 & 14) and one cartridge belt (material Ext. 15) containing 15 live cartridges (material Exts. 16 to 30). The rifle alongwith other articles were sent to Ballistic Expert and Chemical Examiner for examination. The I.O. submitted the charge-sheet (Ex.ka.17) on 29.8.1982. 6. The charges under Section 302 IPC and 302/34 IPC were framed by the learned Sessions Judge against the appellant Kalbe Ali and Anwar Hussain respectively. The appellants denied the charges and claimed the trial. 7. In order to prove its case, the prosecution examined twelve witnesses and filed affidavit of Sri Jai Prakash police constable with regard to formal evidence. Mohd. Ishaq (PW-1) and Shafi Ahmed (PW2) were the eye witnesses of the incident. They stated that they were going with Ashfaq Hussain on 11.6.1982 at about 9:45 to 10 PM to irrigate the fields of the deceased. When they reached near the Pilkhan tree situated outside the house of Kalbe Ali, they saw the appellants sitting under the tree. Kalbe Ali was armed with his rifle. At that time Shafiq Ahmad (PW- 2) was carrying spade while Ashfaq Hussain and Mohd. Ishaq were not carrying anything in their hand. Anwar Hussain co-accused then exhorted Kalbe Ali to shoot. On this, appellant Kalbe Ali fired a shot on Ashfaq Hussain. Ashfaq Hussain was hit by the bullet and fell down. Upon their hue and cry, Nazakat Ali (PW4) and Muzaffar Ali (PW-3), who are the neighbours of the accused-Kalbe Ali came there. They were carrying torches in their hands. Both these witnesses flashed their torches towards the passage which passes in front of their houses. Muzaffar Ali (PW3) and Nazakat Ali (PW4) claimed that they saw the appellant Kalbe Ali armed with the rifle at that time. Muzaffar Ali (PW3) further deposed that Mohd. Ishaq (PW1) and Shafi Ahmed (PW2) were standing thereby and shouting that their brother has been shot. 8. Muzaffar Ali (PW3) and Nazakat Ali (PW-4) stated that both the appellants were dragging the dead body of Ashfaq Hussain towards Kalbe Ali’s house. Kalbe Ali threatened them not to come forward and in case anyone comes forward he would be shot dead. Then the body of Ashfaq Hussain was dragged to the “varanda” of Kalbe Ali by the appellants. Inside his house Kalbe Ali again fired some shots. The witnesses could not dare to got to the house of Kalbe Ali due to fear. 9. The prosecution has produced Mohd. Ali as PW-6. He had stated that a year ago one Sub-Inspector had come to his village and he was called by him at the house of Afsar Ali. He had also stated that at the house of Afsar Ali appellant Kalbe Ali was also called by the police and the rifle and cartridges were taken in possession by the S.O. from Kalbe Ali in his presence. He has also stated that Ex.ka.2 was not scribed in his presence although it was signed by him. He has also stated that no used cartridges were recovered in his presence. The prosecution has also adduced the evidence of Rais Ahmed (PW-7), who stated that nothing was recovered by the police in his presence in relation to the case. Both these witnesses were declared hostile by the prosecution. These witnesses had not supported the prosecution regarding the recovery of the articles from the house of appellant Kalbe Ali. The evidence of PW-6 and PW-7 is of no avail to the prosecution. The learned Sessions Judge also discarded their evidence. 10. Dr. R.N. Singhal (PW-8) has conducted the postmortem of the dead body of the deceased on 12.6.1982. He stated that the dead body of the deceased was produced before him in a sealed cover and opined that the deceased was aged about 28 years and the deceased had been dead for about half a day and the death of the deceased would have been caused on 11.6.1982 at about 10 PM. The rigor mortis was present in the body and the medical officer found the following ante-mortem injuries on the dead body:- a) Gun shot wound of entry, 2cm x 2cm. X chest cavity deep, present over the left side of chest, back side at the posterior axillary line 12 cm below the inferior angle of scapula. Blood was oozing from the wound. Blackening around the wound was present. The direction was medially upward and forward. b) Gun shot wound of exit 2.5 cm x 1.5 cm present over right side of front of chest 5.5 cm above right nipple, third, fourth and fifth ribs on right side fractured. c) Gun shot wound of entry 2.5 cm x 2.5 cm present over middle side of right arm 3 cm below right axilla. The direction was laterally upward and forward. d) Gun shot wound of entry 1 cm x .5 cm present over medial side of right arm .5 cm below injury no.3. The direction was laterally upward and forward. e) Gun shot wound of exit 3 cm x 2.5 cm present over outer side of right arm upper one third, 3 cm below acromial process of right scapula. Pellet recovered from the wound and sealed. Injury is communicated with injury nos. 3 and 4. f) Contusion 3 cm x 2 cm present over right of gluteal region. 11. The opinion of the Medical Officer with regard to the internal examination was that the brain and membranes were congested; the 3rd, 4th and 5th ribs on the right side were fractured; the chest was congested; both the lungs & heart were lacerated and semi digested food was present inside the stomach. 12. In the opinion of Dr. R.N. Singhal, the death of Ashfaq Hussain was caused due to shock and haemorrhage resulting from the ante-mortem injuries. He also proved the postmortem report (Ex.ka.8). 13. Head constable Jai Prakash (PW-9) proved the chick report (Ex.ka.9) and the entry G.D. (Ex.ka.10) about the commission of the crime. 14. S.I. Laxmi Ram Arya (PW-10) was posted as S.O. at P.S. Gadarpur and he was the Investigating Officer of the case. When the case was registered, he was present at the police station and started the investigation immediately after registration of the case. The investigation was taken up as usual which culminated into the submission of the chargesheet against the accused appellants. 15. The prosecution has also examined Ram Asre Pande as PW-11, who was the Ballistic Expert. He has stated that the used cartridges (Ex.1 & Ex.2) were fired from the rifle Ex.12. He had himself stated that it was not possible to give any definite opinion regarding the piece of lead but it was likely that the piece of lead in question was a part of the cartridge which was fired from the rifle in question. He proved his report Ex.ka.18 and photograph Ex.37 to 42. 16. S.I. Hira Singh Negi (PW-12) has corroborated the evidence of Laxmi Ram Arya (PW-10) on the question of arrest of the appellant- Kalbe Ali on 12.6.1982 and the recovery of one licenced rifle and two used cartridges and one cartridge belt containing 15 live cartridges etc from the house of appellant Kalbe Ali. He has also stated that the foresight protector was missing from the rifle (Ex.12). He also proved that the recovery memo Ex.ka.2 was prepared at the spot. 17. Smt. Sharifan was examined under section 311 Cr.P.C. by the court. Mohd. Ishaq PW1 had stated that the appellant-Kalbe Ali had asked her to marry with him otherwise after the death of her father, Ashfaq Hussain would sell the entire property which belongs to her father. He further sated that Smt. Sharifan (CW1) became annoyed and had complained to Ashfaq Hussain about the conduct of Kalbe Ali. He has also stated that Ashfaq Hussain had remonstrated with Kalbe Ali as to why he had talked with Smt. Sharifan (CW1) in this regard and at that time appellant Kalbe Ali had demanded his share in the price of the land which was sold away by Ashfaq Hussain. Smt. Sharifan (CW1) stated that before the murder of her husband-Ashfaq Hussain, the appellant- Kalbe Ali did not have any conversation with her. The appellant-Kalbe Ali did not lead any evidence in their defence. 18. The learned Sessions Judge on his appreciation of the evidence on record held that the prosecution evidence had clearly established that the appellant Kalbe Ali fired shot on Ashfaq Hussain on the exhortation of appellant Anwar Hussain. The learned Sessions Judge had further held that Kalbe Ali was guilty of offence punishable under section 302 IPC. Anwar Hussain exhorted Kalbe Ali to kill Ashfaq Hussain-deceased. After Ashfaq Hussain fell down on being hit by bullet, Anwar Hussain joined Kalbe Ali in dragging the deceased inside the house of appellant Kalbe Ali. The learned Sessions Judge held that appellant Anwar Hussain and Kalbe Ali had a common intention to commit the murder and as such Anwar Hussain was guilty of the offence punishable under section 302/34 IPC. 19. We have heard Sri J.C. Gupta & Sri Dharam Veer Sharma learned senior counsel for the appellants and Sri D.K. Sharma learned G.A. on behalf of the State. We have also gone through the evidence and material on record. 20. The learned counsel for the appellants contended that the prosecution has failed to prove the case against the accused-appellants beyond reasonable doubt and the evidence adduced by the prosecution is not sufficient to prove the charge against the appellants. The contentions of the defence was refuted by the learned G.A. 21. Mohd. Ishaq (PW-1) and Shafi Ahmed (PW-2) were the eye witnesses of the incident. Mohd. Ishaq (PW1) and Shafi Ahmed (PW2) stated that they alongwith Ashfaq Hussain were going towards the fields to irrigate the paddy crop. When they reached near the ‘Pilkhan’ tree near the house of appellant Kalbe Ali, they saw the appellant sitting under the tree. It was a moon lit night. The appellant Kalbe Ali had a rifle in his hand. On the exhortation of appellant Anwar Hussain, Kalbe Ali fired a shot on Ashfaq Hussain-deceased, who fell on the ground on sustaining the fire arm injury. PW1 and PW2 also stated that thereafter both the appellants dragged deceased-Ashfaq Hussain inside the house of the appellant Kalbe Ali. The appellants were recognized by the witnesses in moon light and also by their voice. Mohd. Ishaq (PW-1) was the real brother of the deceased while the PW-2, Shafi Ahmed was the real brother of Smt. Sharifan (CW-1) – the wife of the deceased. Whenever the villagers go to irrigate their fields in the night generally they do not go alone, they take one or two persons together in the night in the plains. The deceased was also accompanied by Mohd. Ishaq (PW-1) and Shafi Ahmed (PW-2) who were the close relatives of the deceased. Thus, their presence at the spot is natural. 22. Muzaffar Ali (PW-3) and Nazakat Ali (PW-4) have categorically stated that they were inside their respective houses at the time of incident and came out on hearing the noise of rifle shot. Muzaffar Ali PW3 was carrying a torch and flashed it towards the passage which passes in front of his house. He claimed that he saw the appellant-Kalbe Ali armed with rifle at that time and both the witnesses Mohd. Ishaq (PW-1) and Shafi Ahmed (PW-2) were then standing nearby and were shouting that Ashfaq Hussain had been shot dead. Both the appellants were seen dragging the deceased towards the house of the appellant-Kalbe Ali. On alarm being raised by the Muzaffar Ali (PW3) and Nazakat Ali (PW4), the appellant Kalbe Ali threatened them. Muzaffar Ali (PW-3) and Nazakat Ali (PW-4) also claimed that their houses are adjacent to each other, and in front of the house of appellant-Kalbe Ali and only a ‘kuchha lane’ separate the house of the Kalbe Ali. Thus, the presence of these witnesses was natural at the time of incident. The statements of all the four witnesses as indicated above are consistent and there are no variations or contradictions in their statement on the material points. It was natural that Muzaffar Ali (PW-3) and Nazakat Ali (PW-4) would come out from their respective houses on hearing the gun shot. Moreover, they could have also claimed that they were also present in the lane and saw the appellant- Kalbe Ali firing shot on the deceased but these witnesses had not stated a word as to who had fired the shot and they truthfully deposed about that event of the incident which they had seen. 23. The evidence of Mohd. Ishaq (PW1) found corroboration from in the FIR which was lodged at the police station with due promptness. The FIR came into existence with promptness which ruled out any occasion for outside consultation or manipulation. The occurrence took place at 10PM and the FIR was lodged at 11:05 PM in P.S. Gadarpur which is at a distance of 6KM from the scene of occurrence. He composed the FIR and got it scribed by Nazakat Ali and he had traveled 6KMs on a cycle. Keeping in view the above circumstances, the report was lodged promptly. 24. The evidence of the prosecution also stand corroborated from the medical evidence. According to PW8, Dr. R.N. Singhal, there were five gun shot injuries on the person of the deceased. The medical officer had opined that the death of Ashfaq Hussain was caused due to shock and haemorrhage resulting from ante-mortem injuries. Dr. R.N. Singhal had further stated that the death of the deceased would have been caused on 11.6.1982 at about 10PM. Thus the time of death and cause of death was also corroborated by the medical evidence. 25. It was further contended that there were five rifle shot injuries, out of which one wound of entry had been shown on the left side of the chest, back side at the posterior axillary line 12cm below the inferior angle of scapula. There was blackening around the wound and the gun shot injury no. 2 was on the right side of front of chest, 5.5cm above right nipple. The fourth gun shot entry wound was over and middle side of right arm, 0.5cm below injury no.3 and fourth gun shot wound of exit right arm below acronial process of right scapula. Pellet was recovered from the wound. The third, fourth and fifth ribs on right side were found fractured. The third gun shot injury was found over middle side of right arm below right axilla. The learned counsel for the defence contended that these gun shot wound were the result of only one gun shot. He submitted that the bullet entered from the backside of the chest causing blackening around the wound. The bullet then came out from the front side of the chest and the same bullet again entered into the right arm and came out from the backside of the arm. The ocular testimony clearly reveal that the appellant-Kalbe Ali shot fired on the deceased in the land which was in front of appellant’s house and then the deceased was dragged towards the house of Kalbe Ali by the appellants. Muzaffar Ali (PW-3) and Nazakat Ali (PW-4) have categorically stated that they heard the sound of two gun shots. The witnesses had not stated that they saw Kalbe Ali firing shots on the deceased. The possibility could not be ruled out that subsequent to the incident two shots were fired to create terror so that none could enter the house. Thus the medical evidence clearly corroborate the prosecution witnesses and all the injuries were most probably be caused by one gun shot. It was further found that the rib nos. third, fourth and fifth were found fractured and the bullet might have been broken into pieces and had again entered into the right arm and caused injury nos. 2, 3 &4. Pellet recovered from the gun shot injury no. 5 was probably the piece of the same bullet, which had broken into pieces. The Ballistic Expert Ram Asre Pande (PW-11) had stated that no definite opinion could be given regarding the piece of lead but it was likely that the piece of lead in question was a part of cartridge (bullet) which was fired from the riffle. Thus the report of the expert also do not rule out the possibility that this piece of lead could be a piece of lead of bullet fired by the riffle wielded by the appellant-Kalbe Ali. 26. The learned counsel for the defence also referred the statement of Medical Officer (Dr. R.N. Singhal-PW8) in which he has stated that there were five gun shot injuries and one contusion on the person of the deceased. He further deposed that all injuries were ante-mortem while according to PW-1 the dead body was dragged towards the accused-Kalbe Ali’s house. If it was so, there should have been the multiple contusions and abrasions on the person of the deceased but there were no multiple contusion or abrasion on the person of the deceased except one contusion injuries no.6. It was further contended that the medical evidence did not corroborate the testimony of the eye witnesses. It is not necessary that the injury might occur on the person of the deceased as a result of the dragging. It has been held in Alla China Apparao and others Vs. State of A.P. 2002 (2) SCC p440:- “8. Learned counsel then submitted that according to the evidence of PWs 1 to 4 the deceased was dragged to some distance and the latter portion of the incident had taken place thereafter, but curiously enough neither any dragging marks were found at the place of occurrence nor was nay injury found on the person of the deceased as a result of dragging. While considering this submission, the trial court observed that: It is true that PWs 1 to 4 unanimously deposed that the deceased was dragged to a dilapidated all and thereafter all accused inflicted injuries and major portion of the incident took place there itself. But it is also pertinent to note that the distance to which the accused dragged the deceased. It was elicited in the cross examination of PW-1 and other witnesses that the deceased was dragged to 4 to 5 yards. PW-1 says the distance as 5 to 6 yards while PWs 2 to 3 say it as three yards. Thus it indicates that the deceased Basari Sankararao was dragged for about 3 to 4 yards and it is a hard-surface road. In such a case there is no possibility to form dragging marks or dragging injuries as the deceased was dragged only to a maximum distance of 4 or 5 yards and when the person was dragged to such a distance, there may not be any injuries and therefore the contention raised on behalf of the accused that there are no injuries by dragging or otherwise do not render any assistance to their contention. In our opinion, the view taken by the trial court was a reasonable one, as such the High Court was quite justified in not taking this to be a ground for doubting the truthfulness or otherwise of the prosecution case.” 27. S.O. Laxmi Ram Arya (PW10) had proved that a foresight