HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Reference No. 1/2002 WITH Criminal Appeal No. 118/2002 1. Rajesh Sharma S/o Parmanand Sharma R/o Bhiwari, P.S. Bhiwari Haryana 2. Navin Sharma S/o Parmanand Sharma R/o Bhiwari P.S. Bhiwari, District Haryana ………Appellants Versus State of Uttaranchal ……..Respondent WITH Criminal Appeal No. 122/2002 1. Gulzar Khan alias Pappu S/o Sri Gulam Khan R/o Line No. 10, Haldwani, P.S. Haldwani, District Nainital 2. Nisar Khan alias Guddu S/o Sri Gulam Khan R/o Line No. 10, Haldwani, P.S. Haldwani, District Nainital 3. Bhura alias Shakil S/o Mohd. Isriel, R/o Kidwai Nagar Haldwani, District Nainital ………. Appellants Vs. State of Uttaranchal ……….Respondent WITH Government Appeal No.101 of 2002 State of Uttaranchal ……. Petitioner Versus 1. Nisar Khan @ Guddu 2. Gulzar Khan @ Pappu 3. Bhura @ Shakil …….Respondents Sri Nagendra Mohan, Sri Mahavir Singh learned counsel for the appellant and Sri R.S. Sammal learned Amicus Curiae. Sri D.K. Sharma learned G.A. Coram :- Hon’ble Irshad Hussain, J. Hon’ble J.C.S. Rawat, J. Dated :- 5th August, 2004 ORAL JUDGMENT (Per :- Hon’ble Justice J. C. S. Rawat) Appellants – Nisar Khan alias Guddu, Gulzar Khan alias Pappu, Bhura alias Shakil, Rajesh Sharma and Navin Sharma, alt the five, were convicted under sections 148, 302 read with 149 IPC and also under section 25 Arms Act, Each of them were sentenced to undergo RI for three years under section 148 IPC and RI for three years under section 25 Arms Act with fine of Rs. 1000/- Appellants – Nisar Khan alias Guddu, Gulzar Khan alias Pappu and Bhura alias Shakil were sentenced to undergo life imprisonment under section 302 read with 149 IPC and fine of Rs. 10,000/- Appellants Navin Sharma and Rajesh Sharma were sentenced to death under section 302 read with section 149 IPC. It was further directed that all the sentences would run concurrently. 2. A Government appeal has also been preferred against the judgment and order dated 9.5.2002 passed by the learned Sessions Judge, Nainital in S.T. No.96/2000 whereby the accused Nisar Khan alias Guddu, Gulzar Khan alias Pappu and Bhura alias Shakil were sentenced to life imprisonment. This Government Appeal has been filed for enhancement of the sentence against the said accused under section 302 read with 149 IPC form life imprisonment to death sentence. 3. The learned Sessions Judge who passed the impugned judgment and order has also made a reference for confirmation of death sentence against the appellants, namely Navin Sharma and Rajesh Sharma. 4. The facts of the case are that on 11.12.1999 at about 7:15 PM, Juned Alam (deceased-1) alongwith his partners Ishrat Ali (deceased-3), Mohammad Islam (deceased-4) and their workers Khalil (deceased-5) and Aslam (decease-2) were sitting in their office near Gaula Gate Purani Chorgalia Road, P.S. Haldwani and were doing their daily accounting relating to their business. At that time there was electric light inside and outside the office room. When the complainant Shoeb Alam (PW1) - brother of the deceased Juned Alam was alongwith Naeem Babu (PW4) taking tea to the office, a black Fiat N.E. Car No. DL-3-CB/0888 came and stopped outside the office. Appellants-Nisar Khan, Gulzar Khan, Bhura, Rajesh Sharma and Nivin Sharma armed with revolver, mousers and countrymade pistols stepped out form the car and entered in the aforesaid officer and started firing indiscriminately with the intention to kill Juned Alam and all those sitting with him in the office at that time. On alarm being raised and on hearing the noise of firing, few others came towards the scene of occurrence. All the above appellants then came out to escape form there. When car failed to start they started running towards the Gaula river. On being chased, the appellants ran away firing shots towards the witnesses. Juned Alam (deceased-1) and Aslam (deceased-2) died on the spot while Mohammad Islam (deceased-4) and Khalil (deceased-5) were taken to Haldwani hospital where they also succumbed to their injuries. Ishrat Ali (deceased-3) was referred to Bairelly but he also breathed his last on way to Bareilly. 5. On 11.12.1999 at 8:30 PM, the written F.I.R. (Ex.A1) was given at police station Haldwani by Shoeb Alam Chisti (PW-1). Then the case was registered against al the five appellants and investigation was taken up by S.H.O. Rajiv Kumar (PW-10). Inquest report (Ex.A9) of dead body of Ishrat, inquest report (Ex.A-10) of dead body of Islam, inquest report (Ex.A11) of dead body of Khalil, inquest repot (Ex.A34) of dead body of Aslam and inquest report (Ex.A35) of dead body Juned Alm were prepared on the same day at 22:00 hours onwards. The dead bodies of the all the five person were sent for autopsy to S.S.J. Base Hospital, Haldwani and the postmortem was conducted by Dr. R. A. Kedia (PW-3) on 12.12.1999. The postmortem reports are Ex.ka.2 to Ka.6. 6. The appellants – Nisar Khan and Bhura were arrested on 17.12.1999. At the instance of arrested appellants, namely Nisar Khan and Bhura, S.H.O. Rajiv Kumar (PW-1) alongwith the police party proceeded towards the bridge of Gaula River where on the pointing of appellant Nisar Khan, after removing the “Reta, Bajri and stones”, a pistol .12 bore and 3 live cartridges wrapped in a paper and on the pointing of appellant-Bhura alias Shakil one pistol 315 bore with two live cartridges wrapped in a paper were recovered on 17.12.1999. Recovery memo (Ex.A.7) was then prepared at the spot. S.H.O. came back to the police station at about 18:30 hours and a check FIR (Ex.A24) was prepared and register a case under section 25 Arms Act separately against the said two appellants-Nisar Khan and Bhura. 7. Remaining three appellants-Gulzar Khan, Rajesh Sharma and Navin Sharma were arrested on 22.12.1999 at the instance of the said appellants, the Inspector Rajiv Kumar (PW1)) alongwith other police personnel proceeded towards Gaula river where on the pointing of the appellant Gulzar Khan alias Puppu, after removing “Reta, Bajri”, from near the bushes a pistol 12 bore and one live cartridge was recovered. At the instance of accused Navin Sharam a countrymade pistol .32 bore was recovered form a nearby place. In the weapon magazine one live cartridge and remaining six empty cartridges were found. At the instance of Rajesh Sharma, one countrymade pistol 324 bor4e and one empty cartridge was recovered. All the above weapons were sealed on the spot and recovery memo (Ex.A8) was prepared. At 18:25 hours, FIR (Ex.A26) was lodged against the above three appellants and three separate cases under section 25 Arms Act were registered against them. 8. The other part of the investigation taken up as usual culminated in submission of the chargesheets against the five accused-appellants under sections 147, 148 149, 307, 302, 504, 506/34 IPC and under section 25 Arms Act. 9. The charges were framed by the learned Sessions Judge against the appellants namely Nisar Khan, Gulzar Khan, Bhura, Rajesh Sharma and Navin Sharma under sections 148, 302/149 and 307/149 and 25 Arms Act. The appellants pleaded not guilty and claimed the trial. 10. In order to prove its case, the prosecution examined fourteen witnesses. Out of these, the complainant-Shoeb Alam Chisti (PW1) and Mohammad Arif (PW2) were the eyewitnesses of the occurrence and they narrated the prosecution story. 11. Dr. R. A. Kedia (PW3) was the medical officer who conducted the postmortem examination of al the five deceased. Postmortem examination of Juned Alam (deceased-1) was conducted at 9 AM and the report (Ex.A6) was prepared. The following ante mortem injuries were detected:- (i) Fire arm wound of entrance 3.5 cm x 4 cm X oral cavity deep at left cheek, lacerated surrounding skin scorched blackening tattooed. Exit wound 16cm x 18cm X oral cavity deep, margins everted at the right side of the fact involving frontal including right eye, right temporal parishial, right upper jaw and right side of brain lacerated and torn at places. 4 pellets recovered from jaw and right side of c ranial cavity. (ii) Fire arm wound of entrance 4cm x 2 cm X thoracic cavity deep at left side of inter scapular region on back. 1.5cm lateral to middle line. Margins inverted. Blackening tattooing present around the wound. Wound of exit 2.5cm x 2cm just below the costal margin at ant. Axallery line on left side of upper part of abdomen. Left lung lacerated. Left thoracic cavity filled with 1-1.5litre of blood mixed fluid. (iii) Fire arm wound of entrance 4cm x 1.5cm X thoracic cavity deep, margins inverted at right side of inter scapular region, 0.5cm lateral to spinal cord (vertebral column). Blackening and tattoing present. Wound of exit 2cm x 2cm, 2cm medical to right nipple, margins irregular and lacerated right lung, lever lacerated, about one litre of blood mixed fluid present on right thoracic cavity. ½ litre of blood mixed fluid present in abdominal cavity. (iv) Fire arm wound of entrance 0.5cm x 0.5 cm thoracic cavity deep on right interscapular area, 6cm lateral to vertebral column, margins inverted, blackening and tattooing present. Wound of exit 2cm x 2.5cm, 1cm just below the middle end of clavical (right) upper part of right lung lacerated. (v) Incised wound 4cm x 0.5cm x muscle deep at lumber region (right), 6cm lateral vertebral colour. Lying obliquely. (vi) Incised wound 5cm x 0.5cm x muscle deep at left infra scapular region, 7cm lateral to vertebral colour, lying obliquely. The opinion of the Medical Officer with regard to the internal examination was that both the chambers of the heart were empty and semi digested food & gases were present in the stomach and the small intestine. In the opinion of Dr. R. A. Kedia (PW3), the cause of death was shock and haemorrhage resulting form the ante-mortem injuries about 12 hours ago. He also proved the postmortem report (Ex.A-6). 12. The medical officer conducted the postmortem of the dead body of Aslam (deceased-2) on 12.12.1999. The following ante-mortem injuries were found on the dead body of Aslam:- (i) Fire arm wound of entrance 1cm x 1cm thoracic cavity deep, margins inverted, blackening tattooing present at left lateral side of the lower part of neck. Wound of exit 6cm x 4cm at lateral part of right scapular region near shoulder, margins everted, right lung at upper part lacerated unto pieces and right thoracic cavity filed with blood mixed fluid. 2 bullets recovered from clothes adjacent to wound of exit. 13. The opinion of the medical officer with regard to the internal examination was that both the chambers of the heart were empty and semi digested food was present in the stomach. In the opinion of the medical officer, cause of death was shock and haemorrhage resulting from the ante-mortem injuries about 12 hours ago. 14. Dr. R. A. Kedia-Medical Officer conducted the postmortem of the dead body of Mohammad Islam (deceased-4). The following ante- mortem injuries were found on the dead body:- (i) Fire arm wound of entrance 2.5 x 2cm abdominal cavity deep at lower back lying at mid line, 25cm below C.T. vertebra, blackening tattooing present alongwith the multiples small rounder contusions around wound of entrance. On exploring the wound 17 pellets and one wad (a small rounded piece of non-metallic disc) recovered from omental fat, spleen and adjoining tissue, spleen lacerated into pieces, multiple penetrating wound at small intestine and kidneys, about 2-2.5 litre of blood mixed fluid present inside abdominal cavity. (ii) Fire arm wound of entrance at nose bridge in between both eye brows 4cm x 2cm x cranical cavity deep, margins inverted, blackening and tattooing present, frontal nosal bone fractured into pieces, brain matter lacerated at places and large haematomas present at places. Right eye lid haematoma with right black eye present. (iii) Fire arm wound of entrance 1cm x 1cm x thoracic cavity deep at lateral side of left scapular region, 17cm left lateral to vertebral column, blackening and tattooing present, margins inverted. On further exploring the wound left lung found lacerated and punctured at places and about one litre of blood mixed with fluid present on the left thoracic cavity. (iv) Lacerated wound 6cm x 2cm x muscle deep at upper part of neck near chin. (v) Four small incised wounds 2cm x 0.5cm, 2.5cm x 0.5cm, 2.5 x 0.5cm and 2cm x 1cm all bone deep at right hip region. (vi) Incised wounds 4.05 cm x scalp deep and 3cm x 0.5cm x scalp deep on the right of the scalp near vertex. (vii) Incised wound 5cm x 1cm x scalp deep at left side of scalp near vertex. 15. The opinion of the medical officer with regard to the internal examination was that both the chambers of heart were empty. There was semi digested food in the stomach. In the opinion of the medical officer, the death was caused due to shock and haemorrhage resulting from the ante-mortem injuries. 16. Dr. R. A. Kedia –Medical Officer conducted the postmortem report (Ex.A4) of the dead body of Khalil(deceased-5) on 12.12.1999 at 11:45AM. The following ante-mortem injuries were detected:- (i) Fire arm wound of entrance 2cm x 2cm x left thoracic and abdominal cavity deep, margins inverted, blackening and tattooing present. Circular shape wound lying at left lateral side of the body, 30 cms below the axilla. On further exploring the wound small intestine found punctured at places. Pellets found in omental fat and spleen. Spleen lacerated at places. Heart and left lung lacerated at places. Left thoracic and abdominal cavity filled with 2 – 2.5 liters of blood mixed fluid. 9 pellets and one wad (small non-metallic disk) recovered. (ii) Incised wound 6cm x 4cm x bone deep at right side of face in semi circle shape, 2cm right lateral to nose. (iii) Incised wound 5cm x 0.5cm x scalp deep on left side of scalp 8cm above left pinna and 10 cms above left eye brow. 17. The opinion of the medical officer with regard to the internal examination was that both the chambers of heart were empty. 100 M.L. of semi-digested food was present. In the opinion of the medical officer, the cause of death was shock and haemorrhage resulting from the ante- mortem injuries about 12 hours ago. 18 The same Medical Officer conduced the postmortem report (Ex.A3) of the dead body of the Israt Ali (deceased-3) at 12:30 PM on 12.12.1999. The following ante-mortem injuries on the dead body of Ishrat Ali were detected:- (i) Fire arm wound of entrance 1cm x 1cm x cranial cavity deep, circular at left side of scalp at vertex, 8cm above the left pinna, 10 cm above the left eye brow. On exploring further meninges and brain matter found lacerated, gross haematoma about 250 M.L. of blood present in cranial cavity, base of the brain and also scalp base pierced into oral cavity and one bullet recovered from oral cavity and one bullet recovered from oral cavity at soft plato. (ii) Fire arm wound of entrance 0.5cm x 0.5cm x left thoracic cavity deep circular in shape, blackening and tattooing present, at lower part of back a left infra scapular region, 0.5cm left lateral to vertebral column, on exploring the wound further lower part of left lung found pierced and about 1.5 litre of blood mixed fluid present in left thoracic cavity. (iii) Fire arm wound of entrance 0.5cm x 0.5cm x right thoracic cavity deep, circular in shape, at right scapular region 6 cm lateral to vertebral column and 8 cm below the upper border of shoulder, tattooing and blackening present. On exploration further right lung found lacerated at places and about one litre of blood mixed fluid present in right thoracic cavity. 19. The opinion of the Medical Officer with regard to the internal examination was that both the sides of heart were found empty. Semi digested food was found in the stomach. In the opinion of the medical officer, the cause of death was shock and haemorrhage resulting from the ante-mortem injuries about 12 hours ago. 20. Naeem Babu (PW4) was also the eyewitness of the occurrence. He was declared hostile by the prosecution as he did not support the prosecution case. S.I. Surendra Singh Kushwaha (PW5) proved the factum of recovery of arms from the appellants-Gulzar Khan, Rajesh Sharma and Navin Sharma under section 27 of the Indian Evidence Act. S.I. R.L. Gangwar (PW6) proved the panchanama of the deceased Ishrat Ali (Ex.ka.9), Mohammad Islam (Ex.ka.10) and Khalil (Ex.ka.11). The prosecution also examined the constable Tarun Pratap (PW-7). He took are three dead bodies to Soban Singh Jina Base Hospital, Haldwani for postmortem examination . Head constable Mahesh Chandra (PW8) prepared check FIR (Ex.A21) of the incident. He also proved the G.D. report, Ex.A-22. Constable Rajendra Prasad (PW-9) prepared check FIR under section 25 of the Arms Act on 17.12.1999 against the appellants Gulzar Khan, Rajesh Sharma and Navin Sharma. He also proved the G.D. report, Ex.ka.27. S.H.O. Rajiv Kumar (PW-10) was the investigating officer who submitted the chargesheet. K.K. Verma (PW-11) prepared panchayatnama of the dead bodies of Juned Alam and Aslam. S.I. Mohd. Zahir Khan (PW-12) investigated the case under the Arms Act against the appellants Gulzar Khan, Rajesh Sharma and Navin Sharma and submitted chargesheets Ex.A47, Ex.A49, Ex.A48. S.I. Rakesh Singh (PW-13) investigated the case under the Arms Act against the accused-appellants Nisar Khan alias Guddu and Bhura alias Shakil and submitted the chargesheets Ex.A53 and Ex.A.54. S.I. Shyam Lal (PW-14) prepared the site plan (Ex.A57) of the scene of the occurrence on the instruction of S.I. Surendra Singh Kushwaha. 21. The appellants-Nisar Khan, Gulzar khan and Bhura had denied their presence at the place of incident. All the five appellants stated that they were falsely implicated in the case. They further stated that the statements of Shoeb Alam Chisti (PW-1) and Mohammad Arif (PW-2) recorded on 7.1.2002 after their recall for further cross-examination was correct and other evidence was false. The appellants-Nisar Khan alias Guddu and Gulzar Khan alias Pappu had also stated that they used to do the business of “Reta-Bazri”. On the other hand, the other three appellants-Bhura alias Shakil, Rajesh Sharma and Navin Sharma stated that they were not carrying the business of “Reta-Bazri”. All the five appellants stated that there was no light at the place of incident and they were kept in the police station for 3-4 days. 22. The defence produced in evidence Rais Babu as DW-1. He was truck driver who stated that on that ill-fated day at about 8 to 8:30PM he was carrying Reta Bazri in his truck and when he reached near the G.N. Traders he saw unknown assailants stepped out of the car and entered in the office and stated firing indiscriminately on the persons sitting there and thereafter they came to the car and when it did not start, they started running towards Gaula river. He further stated that the assailants were of black complexion and were not tall and seem to be from ‘Purbia’ community. He saw the incident in the head light of the truck. He stated that the crime was committed by those unidentified persons and not by the appellants. Another defence witness Tamash Khan (DW-2) stated that he saw five-six unidentified assailants firing at the scene at that time and that they were of 18-19 years of age. He also stated that he could not identify the assailants who were not looking as muslim by their profile. The defence also produced Rajendra Singh as DW-3. He was posted in Haldwani as J.E., Electricity Department. He stated that there was no power connection in G.N. Traders, Haldwani. Mohd. Arif DW-4 stated that the written report (Ex.ka.1) was scribed by him at the instance of police of police Inspector on 12.12.1999 at about 5A.M. 23. The learned Sessions Judge on the basis of his appreciation of the evidence in the case held the appellants - Nisar khan, Gulzar Khan, Bhura, Rajesh Sharma and Navin Sharma guilty and convicted them under sections 148, 302 read with 149 IPC and also under section 25 Arms Act. They were sentenced to undergo RI for three years under section 148 IPC and RI for three years under section 25 Arms Act together with fine of Rs. 1000/-. Appellants – Nisar Khan, Gulzar Khan and Bhura were sentenced to undergo life imprisonment under section 302 read with 149 IPC and fine of Rs. 10,000/-. Appellants Navin Sharma and Rajesh Sharma were sentenced to death under section 302 read with section 149 IPC. 24. We have heard Sri Nagendra Mohan, Sri Mahavir Singh learned counsel for the appellants, Sri R.S. Sammal learned Amicus Curiae and Sri D.K. Sharma learned G.A. on behalf of the State. We have also gone through the evidence and material on record. 25. At the outset, it need to be mentioned that it is not disputed that the deceased had homicidal deaths on account of the injuries sustained by them on the date of occurrence. Dr. R.A. Kedia (PW-3) who was the medical officer had deposed that he conducted autopsy of the dead bodies of all the five deceased namely, Mohammad Islam, Ishrat ali, Khalil, Aslam & Juned Aslam and prepared the postmortem report thereof which are Ex.ka.2 to ka.6 respectively. He stated that the deaths of all the five deceased were caused due to shock and hemorrhage resulting from the ante-mortem injuries. This fact further stand corroborated from the statement of the eye witness Shoeb Alam Chisti (PW-1), Mohammad Arif (PW-2), Rais Babu (DW-1) and Tamesh Khan (DW-2). The ocular testimony of Shoeb Alam Chisti (PW-1) and Mohammad Arif (PW-2) further stand corroborated by the evidence of defence witnesses who had stand that the deceased were shot dead on 12.12.1999 by some unidentified assailants. 26. Now, the question for consideration is : whether the appellants were responsible for the injuries sustained by the deceased persons which resulted in their death. The prosecution in support of the case produced eye witnesses Shoeb Alam Chisti (PW-1), Mohammad Arif (PW-2) and Naeem Babu (PW-4). Shoeb Alam Chisti (PW-1) had stated that on the date of occurrence he was carrying tea alongwith Naeem Babu (PW-4) for the deceased. Mohammad Arif (PW-2) had stated that on the date of occurrence he went to see Juned Alam (deceased -1) towards his office near railway crossing. Both the witnesses have further stated that there was electric light inside and outside the office when they saw a black coloured N.E. car came at the office of the deceased and stopped there. The accused persons namely, Nisar Khan, Gulzar Khan, Bhura, Rajesh Sharma and Navin Sharma came out from the car with revolver and mousers etc. They entered into the office and started firing indiscriminately with the intention to cause death of Juned Alam and all those sitting with him in the office at that time. After doing so, they came to the car when it failed to start they ran away towards the Gaula river. Naeem Babu (PW-4) was declared hostile and did not support the prosecution case. 27. Shoeb Alam Chisti (PW-1) and Mohammad Arif (PW-2) produced by the prosecution before the court and thereafter they were cross- examined by the defence counsel on 13.2.2001. Their testimony remained intact during the cross-examination and the defence could not take out anything fatal to the prosecution form them. During the trial. Naeem Babu (PW-4) moved an application on 24.2.2001 before the learned Sessions Judge in which he alleged that he was being terrorized by the appellants. When Naeem Babu (PW-4) was examined on 22.3.2001 he did not support the prosecution version. It appear that he was terrorized by the appellants so that he may not depose against them. 28. The defence moved an application on 10.12.2001 in order to recall the witnesses Shoeb Alam Chisti (PW-1) and Mohammad Arif (PW-2) for further cross-examination on the ground that the defence has engaged a new counsel and certain questions are to be put to them with regard to the prosecution case. The application was allowed by the learned Sessions Judge and the said witnesses were