IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 321 of 2002 Gulzar, S/o Tufail R/o Mohalla Kassawala Qasba & P.S. Jwalapur District Haridwar ……….Appellant Versus State of Uttaranchal (Uttarakhand) …………respondent Shri Parikshit Sahni, Advocate, with Shri A.S.Gill, Advocate, present for the appellant. Shri M.A. Khan, Brief Holder, present for the state. Alongwith Criminal Appeal No. 325 of 2002 Munawar, S/o Kallu R/o Village Dadupur-Govindpur, Salempur P.S. Ranipur, District Haridwar ……….Appellant Versus State of Uttaranchal (Uttarakhand) …………Respondent Shri A.S.Gill, Advocate, present for the appellant. Shri M.A. Khan, Brief Holder, present for the state. 2 Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Oral: Hon'ble Prafulla C. Pant, J Both these two appeals are directed against judgment and order dated 22.11.2002, passed by Sessions Judge, Haridwar, in Sessions Trial No. 17 of 2000, whereby said court has convicted accused/appellants Gulzar and Munawar under section 302 read with section 34 of Indian Penal Code, 1860 (for short IPC), and sentenced each one of them to imprisonment for life. By the impugned judgment and order, learned trial court has further convicted each of the appellants Gulzar and Munawar under section 25/4 of Arms Act, 1959, in the connected Sessions Trial No. 18 of 2000, and Sessions Trial No. 19 of 2000. Each one of them has been sentenced to rigorous imprisonment for a period of one year on that count. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that Anees 3 (deceased) was brother of complainant Nafees (P.W.1). Anees had acquaintance in the house of Ninna of Village Salempur. Marriage of accused/appellant Munawar got settled with Phoolbano, daughter of Ninna, where after accused/appellant Munawar asked Anees to stop going to the house of of Ninna as he suspected that he (Anees) was having illicit relations with Phoolbano, however, Anees did not stop going to the house of Ninna. Two days before the incident i.e. 31.03.1999, at about 5:00 P.M., accused/appellant Munawar with his maternal uncle Gulzar (another accused/appellant) met Anees near Mazaar of Noorashah, and threatened him of dire consequences but, one Bhoora of Salempur came there and got separated the two sides. On 02.04.1999, at about 1:00 P.M., when Anees (deceased) accompanied with his brother Nafees (P.W.1) was coming back from village Garh, accused/appellants Munawar and Gulzar who were armed with knives stopped Anees , and said- “Yesterday you had again been to the house of Ninna, and we will not leave you now”. Thereafter the two accused assaulted Anees with knives. Complainant Nafees (P.W.1) attempted to 4 save his brother but accused/appellant Gulzar said to him- “If you intervene, you too would be finished”. Within a seconds Munawar and Gulzar killed Anees. Nafees (P.W.1) got written first information report (Ex. A1) through one Balbir Singh Chauhan , and gave it at the police station Ranipur at 3:10 P.M., on the very day (02.04.1999). On the basis of said report, the police registered crime no. 57 of 1999 relating to offence punishable under section 302 IPC, against the two accused Munawar and Gulzar, and prepared check report (Ex. A3). The investigation was taken up by P.W.7 S.I. Mandhata Samrat, who went to the spot, and took dead body of Anees in his possession from the field of Seede-Khan of Village Salempur, and prepared inquest report (Ex. A13). He also prepared sample seal (Ex. A14), letter to Chief Medical Officer (Ex. A15 requesting for post mortem examination), police form no. 13 (Ex. A17), sketch of the dead body (Ex. A18), and other necessary papers, and sent the dead body for post mortem examination. P.W.5 Dr. Akhilesh Agarwal conducted post-mortem examination on the dead body of Anees on 03.04.1999, at about 9:45 a.m., and recorded as many as 12 ante-mortem injuries 5 which included eleven incised wounds, and prepared autopsy report (Ex. A22). The Medical Officer opined that deceased had died due to shock and hemorrhage as a result of ante-mortem injuries. Meanwhile, the Investigating Officer interrogated the witnesses, and prepared site plan. On 11.05.1999, after arrest of accused Gulzar, and on 20.04.1999, after arrest of accused Munawar, the Investigating Officer could recover the two knives on pointing out of the two accused from the places they had concealed the weapons, and prepared memorandum of recovery (Ex. A20) dated 11.05.1999, and memorandum of recovery dated 20.04.1999 (Ex. A19). On the basis of said recovery memorandums, since the accused had no license to keep the knives with the blades of more than the prescribed limit, and separate crimes (crime no. 71 of 1999 against accused Munawar, and crime no. 78 of 1999 against Gulzar) under section 25/4 Arms Act, 1959, were registered at police station Ranipur. Investigation of said cases was conducted by P.W.8 S.I. P.M. Joshi. Both the Investigating Officers, after completion of investigation, submitted charge sheets against the accused Munawar and Gulzar. 6 4. The Magistrate, on receipt of the charge sheets, after giving necessary copies to the accused, as required under section 207 Cr.P.C., committed all the three connected cases to the court of sessions for trial . Learned Sessions Judge, on 27.03.2000, after hearing the parties, framed charge of offence punishable under section 302 read with section 34 IPC, against the accused Munawar and accused Gulzar, who pleaded not guilty and claimed to be tried. Separate charges appear to have been framed in respect of offence punishable under section 25/4 Arms Act, 1959, against the two accused to which also they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Nafees (complainant and eye witness), Mashroor @ Machhoo (another eye witness), P.W.3 Meerhasan (witness of recovery of knife at the instance of accused Munawar), P.W.4 Yakoob (witness of recovery of knife at the instance of accused Gulzar), P.W.5 Dr. Akhilesh Agarwal (who conducted post mortem examination), P.W.6 Assistant Sub-Inspector Subhash Chandra Bajpai (who prepared check FIR), P.W.7 S.I. Mandhata Samrath (Investigating Officer of the murder case), 7 and P.W.8 S.I. P.M. Joshi (who investigated the crime relating to recovery of knives). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that same is false. It is pleaded by them that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court, after hearing the parties, found both the accused guilty of charge of offence punishable under section 302 read with section 34 IPC, and also guilty of the charge of offence punishable under section 25/4 Arms Act, 1959, and after hearing on sentence, each one of the convicts was sentenced to imprisonment for life under section 302/34 IPC, and rigorous imprisonment for a period of one year under section 25/4 Arms Act, 1959. Aggrieved by said judgment and order dated 22.11.2002, passed by learned Sessions Judge, Haridwar, in Sessions Trial No. 17 of 2000, Sessions Trial No. 18 of 2000, and Sessions Trial No. 19 of 2000, these two appeals are filed by the convicts separately before this Court. 5. Before further discussion, we think it just and proper to mention the ante-mortem injuries 8 found on the dead body of the deceased (Anees) by P.W.5 Dr. Akhilesh Agarwal on 03.04.1999, and mentioned the same in the autopsy report (Ex. A2). The same are reproduced below:- (i) Incised wound of size 3cm X 1.5cm X bone deep on back of left forearm , middle part, vertically placed, tailing towards hand. (ii) Incised wound of size 2cm X 1cm X muscle deep on front of left forearm, vertically placed, tailing towards elbow, situated 1cm below elbow joint. (iii) Incised wound of size 2.5cm X 1.5cmX bone deep on front of left upper arm, middle part, transversally placed, tailing towards left. (iv) Incised wound of size 4cm X 2cm X bone deep on front of the shoulder, transversely placed, tailing towards right. (v) Incised wound of size 4cm X 2cm X bone deep on right side of front of neck on medial aspect of right clevical. Transversally placed , tailing 9 towards right. (vi) Incised wound of size 3cm X 1.5cm X chest cavity deep on right side of front and upper part of chest- situated 7cm above right nipple at 2'clock position, transversally placed. (vii) Incised wound of size 3cm X 1.5cm Z chest cavity deep on right side of front of chest-situated 5c, inner to right nipple at 3' clock position, transversally placed. ( viii) Abrasion of size 2m X 1cm on right side of lower part of front of chest- situated 12cm below right nipple at 5'clock position. (ix) Incised wound of size 5cm X 1cm X chest cavity deep on lower part of front of left side of chest. 10Cm below left nipple at 6'clock position, transversally placed. (x) Incised wound of size 7cm X 3cm X abdominal cavity deep on left side of abdomen -situated 10cm towards left from umblicus at 7'clock position, vertically placed. 10 (xi) Incised wound of size 3cm X 1cm X chest cavity deep on back of left side of chest, 4cm below left scapula, transversally placed. (xii) Incised wound of size 4cm X 1cm X bone deep on pleura of right hand at base of middle and index finger. On internal examination, the medical officer found corresponding cuts in pleura and lungs of the deceased (Anees). P.W.5 Dr. Akhilesh Agarwal opined in the autopsy report (Ex. A2) that deceased (Anees) had died of shock and hemorrhage as a result of ante-mortem injuries. From the evidence of medical officer read with autopsy report, it is established on the record that Anees had died a homicidal death on 02.04.1999. The medical officer (P.W.5) in his statement before the court had made it clear that the above injuries except injury no.8 could have been caused by sharp edged weapon on 02.04.1999. Now, we have to see whether accused/appellants Munawar and Gulzar with common intention have committed murder of Anees. We are further required to examine whether the knives with blades beyond 11 prescribed limit were found from the possession of the two accused as suggested by the prosecution or not. 6. P.W.1 Nafees, is complainant and eye witness of the incident. He is brother of the deceased. This witness has stated that accused Munawar had suspicion that Anees (deceased) had illicit relations with Phoolbano, fiancé of said accused. It is further stated by the witness that two days before the incident (on 31.03.1999) at about 5:00 P.M., when accused/appellant Munawar with his maternal uncle Gulzar (another accused/appellant) met Anees near Mazaar of Noorshah, they gave threat to him (Anees) that if he dared to meet Phoolbano again he would face the consequences. P.W.1 Nafees further states that on 02.04.1999, when he (P.W.1) alongwith his brother Anees (deceased) were coming back from Village Garh Meerpur, at about 1:00 P.M., near Id- Gah, the two accused told Anees that since he did not stop going to house of Ninna (father of Phoolbano) hence they would not leave him. According to the witness thereafter the two accused armed with the knives assaulted Anees. 12 He further told that he tried to save his brother but accused Gulzar asked him to stay back else he would be killed. P.W.1 Nafees has further stated that the incident took place in the field of one Seede-khan of Salempur. The witness has proved the FIR (Ex. A1)lodged by him at the police station . He was subjected to lengthy cross-examination but nothing has come out which creates doubt in his testimony. 7. P.W.2 Mashroor @ Machhoo is another eye witness of the incident who has stated that on 02.04.1999, when he was going from Salempur, Garh Meerpur at about 1:00 P.M., he saw near the Id-Gah, in the field of Seede-khan that accused/appellants Munawar and Gulzar were assaulting Anees with Knives. He has further stated that Nafees (P.W.1) was also there. Though this witness is chance witness but his testimony cannot be disbelieved in the present case for the reason that his presence at the spot on his way to animal fair at day time cannot be doubted. He was also subjected to lengthy cross-examination, and nothing has been elicited which shakes his testimony. 13 8. The testimony of the two eye witnesses not only fully got corroborated from the medical evidence already discussed above,but also from the recovery of knives used in the crime, said to have been made on pointing out of the two accused. P.W.3 Meerhasan has stated that on 20.04.1999, police recovered knife (Ex.1) from a place near mango tree on pointing out of accused Munawar, and the police prepared memorandum of recovery (Ex. A19). P.W.4 Yakoob has stated that on 11.05.1999, the police recovered a knife on pointing of accused Gulzar at about 5:00 P.M., from the field of Shafakat, and memorandum of recovery (Ex. A20) was prepared. The witness has further stated that the knife had blood stains. The report of Forensic Laboratory (Ex. A26) shows that the knives (item nos. 5 and 6) contained blood stains. However due to disintegration classification of blood could not be done. In the same report (Ex. A26) received from Forensic Laboratory, It is also mentioned that blood stained soil sent for chemical analysis also contained blood stains. P.W.7 Mandhata Samrat , Investigating Officer has stated that he had taken the blood stained soil and sample soil from the 14 place of incident , and sent the same to chemical analysis. 9. Having gone through the entire evidence on record we agree with the findings of the trial court that the prosecution has successfully proved charge of offence punishable under section 302 read with section 34 IPC, against the two accused/ appellants namely Munawar and Gulzar. It has been amply proved beyond reasonable doubt that with common intention they committed murder of Anees .It is also proved on the record that they were found in possession of the knives with blades of more than prescribed limit which were recovered on their pointing out and as such, their conviction under section 25/4 Arms Act, 1959, also deserves to the affirmed. 10. Accordingly, both the appeals are dismissed. Impugned judgment and order dated 22.11.2002, passed by learned Sessions Judge, Haridwar, in Sessions Trial No. 17 of 2000, 18 of 2000, and 19 of 2000 is affirmed. Accused/appellants are in jail. Registry is directed to send copy of this judgment to the 15 Superintendent of the Jail concerned for their information. Lower court record be sent back. (Sudhanshu Dhulia, J.) (Prafulla C. Pant,J.) 03.12.2010 Parul