RESERVED IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 74 of 2009 Pradeep Khandelwal S/o Late Shri Kailash Chandra R/o Heera Nagar, Police Station Haldwani District Nainital …………..…Appellant (in jail) Versus State of Uttarakhand ……………Respondent Shri Abhay Kashyap, Advocate, with Shri Gajendra Tripathi, Advocate, present for the appellant. Shri S.S. Adhikari, A.G.A., with Shri B.S. Parihar, Brief Holder, present for the State. And Criminal Appeal No. 94 of 2009 Vakeel Ahmad @ Guddu R/o C-13/280 Aurangabad P.S. Sigra District Varanashi (U.P.) …………..…Appellant (in jail) Versus 2 State of Uttarakhand ……………Respondent Shri Rajesh Sharma, Advocate, with Shri Anil Kumar, Advocate, present for the appellant. Shri S.S. Adhikari, A.G.A., with Shri B.S. Parihar, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J. Oral: Hon'ble Prafulla C. Pant, J. Both these appeals are directed against judgment and order dated 20.04.2009, passed by Learned Sessions Judge, Nainital, in Special Sessions Trial No. 71 of 2006, and Special Sessions Trial No. 7 of 2007, whereby accused/appellant Pradeep Khandelwal has been convicted under section 302 read with section 120B of Indian Penal Code, 1860 (for short IPC) and acquitted from the charge of offence punishable under section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. Appellant Vakeel Ahmad @ Guddu has been convicted under section 302 read with section 120B IPC, (in alternative under section 302 read with section 34 IPC). He has further been convicted under section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. Appellant Pradeep Khandelwal has been sentenced to imprisonment for life and directed to pay fine of ` 10,000/- under section 302/120B IPC. 3 Appellant Vakeel Ahmad @ Guddu has also been sentenced to imprisonment for life and also directed to pay fine of ` 10,000/- under section 302/120B IPC,( in alternative under section 302/34 IPC). He (Vakeel Ahmad) has been further sentenced to rigorous imprisonment for a period of five years and also directed to pay fine of ` 5,000/- under section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. 2. Heard learned counsel for the parties at length, and perused the lower court record. Background: 3. Prosecution Case: Prosecution case is that, accused/appellant Pradeep Khandelwal and his brother Pankaj Khandelwal (deceased), used to run their joint business in the name and style of 'M/s Jai Guru Jewelers' in Haldwani. From the income of said firm they also constructed a hotel in the name of 'Jai Guru'. Pradeep Khandelwal (accused/appellant) is elder brother, and Pankaj Khandelwal (deceased) was his younger brother. In the year 2000, the aforesaid two brothers, to expand their business, started construction of 'MONOLITH RESORT' over the land 4 earlier purchased by the two brothers and their wives. Prosecution case is that since the construction work of Monolith Resort started, the firm M/s Jai Guru Jewelers started suffering loss. Due to this, differences arose between accused/appellant Pradeep Khandelwal and his younger brother Pankaj Khandelwal (deceased.) In September 2000, Income Tax Department conducted a raid in the firm and the resort as a result of which, it is stated that the firm suffered further loss of ` 40,00,000/- (rupees forty lacs). Thereafter the differences widened and the two brothers by mutual settlement got partitioned their joint properties in the year 2002. Pankaj Khandelwal (deceased) got the firm M/s Jai Guru Jewelers, and the elder brother Pradeep Khandelwal (accused/appellant) Monolith Resort, and land and some money for starting his own business. Accused/appellant No. 1 Pradeep Khandelwal adjoining to the shop of firm M/s Jai Guru Jewelers, started his business after constructing a shop with name and style of “Shri Guru Jewelers”. According to prosecution, this further raised rivalry between the two brothers. A few days before the incident they had a quarrel with each other. 4. Second leg of the prosecution story is that a dreaded proclaimed criminal Prakash Pandey also 5 known as 'PP' (based out side India allegedly in Vietnam), in an association with one Bhuppi, Rajesh and others used to run an organized gang to extort money from public, particularly businessmen. A red corner notice is said to have been issued against him but he continued his activities by making telephone calls to his associates Bhuppi, Satish Pandey and others, and also used to get murdered men on failing to take ransom. He (PP) started extracting money from accused/appellant Pradeep Khandelwal by making calls himself and through Bhuppi and thereby the two PP and accused/appellant Pradeep Khandelwal came in contact with each other. Incident:- 5. On 24.01.2006, at about 8:15 P.M., Pankaj Khandelwal (deceased), after closing his shop was about to enter in his car, parked on the road. He was accompanied by his wife (P.W.1 Rita Khandelwal), and son Parth Khandelwal. Suddenly two persons approached and fired bullets on the head of the Pankaj Khandelwal, who died on the spot. P.W.1 Rita Khandelwal (wife of deceased) raised alarm on which employees of the firm and others gathered. Parth Khandelwal immediately rang accused/appellant Pradeep Khandelwal and reported about the incident. He (Pradeep Khandelwal) reached at the spot. Rita 6 Khandelwal (P.W.1) got scribed first information report (Ex. A1) through him and lodged the same at Police Station Haldwani at 9:20 P.M.. On the basis of said report Head Constable Kishan Ram (P.W.3) registered crime no. 546 of 2006 at Police Station Haldwani, relating to an offence punishable under section 302 IPC, against two unknown persons and prepared check report (Ex. A5) and made necessary entry in the General Diary (copy Ex. A6) Subsequent developments and investigation:- 6. As many as four Investigating Officers namely Sub- Inspector Aizaz Alam Khan (P.W.4) Inspector R.S. Hyanki, Sundar Singh Dugtal (P.W.12), and Inspector Dinesh Chandra Dhaundiyal, (P.W.13 ) investigated the crime. P.W.4 Sub-Inspector Aizaz Alam Khan rushed to the spot immediately after the F.I.R., was lodged on 24.01.2006 and prepared the site plan (Ex. A7). He interrogated complainant Rita Khandelwal (P.W.1) and her son Parth Khandelwal. He took the dead body of Pankaj Khandelwal in his possession and prepared inquest report (Ex. A8). He further got prepared police form no. 13 (Ex. A9), sketch of the dead body (Ex. A10), letter to Chief Medical Superintendent (Ex. A11) requesting him for post-mortem examination by the midnight. P.W.4 Sub-Inspector Aizaz Alam Khan further took the sample seal and blood stained soil from the spot and 7 prepared memorandum Ex. A12. He also took broken bullet (Ex.1), broken spectacles (Ex.3), empty cartridge of a bullet (Ex. 2) from the spot and prepared memorandum (Ex. A13). Dead body of the deceased was sent in a sealed condition for post-moretm examination. P.W. 6 Dr. C.P. Bhainsora , conducted post-mortem examination on 25.01.2006, at about 9:00 A.M., on the dead body of the Pankaj Khandelwal, and recorded two fire arm bullet entry wounds and bursting out of brain matter from the left crenical cavity. He found skull's bone fractured. The Medical Officer opined that cause of death was injury to brain due to fire arm injuries. He prepared autopsy report (Ex. A14). On 26.01.2006, the investigation was taken over by Station House Officer, Rajendra Singh Hyanki, whereafter on 30.01.2006, it was handed over to Sub-Inspector Dinesh Chandra Dhaundiyal (P.W.13), further investigation was done from 10.02.2006, by P.W.12. S.S. Dugtal, Station House Officer of Police Station Chorgaliya from 10.02.2006 to 23.02.2006, and again the remaining investigation was given back to P.W.13 Inspector Dinesh Chandra Dhaundiyal. 7. During investigation, P.W.13 Inspector Dinesh Chandra Dhaundiyal on 30.01.2006, came to know from the owner of Jagdigh Hotel that three 8 persons had stayed in room no. 202 on 23.01.2006, and left on the same day without getting check out. On this, the Investigating Officer got opened lock of room no. 202,and found three begs lying inside the room which were taken into possession by the Investigating Officer who prepared memorandum (Ex. A20) on 30.01.2006. On inspecting the guest register of the hotel it was found that on 23.01.2006, the room no. 202 was found booked in the name of Guddu Sharma and his two friends namely Laloo and Vikas. They had given their address of Leader Road, Allahabad. The room was found booked at 9:30 A.M., on 23.01.2006, and time of leaving was not mentioned in the register. It was further found that the person who booked and stayed in the hotel had mentioned his mobile no. in the register as 9335667894 with his address. The Investigating Officer took the register (Ex. 13) in his possession and prepared memorandum (Ex. A21). On verification of said phone no. it was found that registered owner of the SIM was one Anil Pandey (the accused who has been acquitted by the trial court). An account no. 053010003908 with UTI Bank at Lucknow, was found to be in the name of Anil Pandey regarding which it was stated that amount of extortion or collection for commission of murders used to be deposited in it. Consequently, Anil Pandey was arrested on suspicion of his 9 involvement in this case. During investigation it was further revealed that a mobile no. 9415988055 was used while talking from public call office (PCO) in Haldwani, and also from the PCO of Varanasi. The mobile no. 9335667894 was found to be used by accused/appellant Vakeel Ahmad @ Guddu who stayed in Jagdish Hotel on 23.01.2006,with his two associates with a false name Guddu Sharma, it was found that real name of the two associates were Irfan and Shahid. Smelling rat, accused/appellant Vakeel Ahmad @ Guddu who was on bail in connection with a case relating to offence punishable under section 324 IPC, in Varanasi ,got his bail cancelled, and went to Varanasi jail. On coming to know of said fact, the Investigating Officer moved an application to the court at Nainital for issuance of 'B' warrant against accused/appellant Vakeel Ahmad @ Guddu, and also made request before the Varanasi Court on 01.08.2006, to keep the accused/appellant Vakeel Ahmad @ Guddu 'BAPARDA' (face covered). The Investigating Officer thereafter interrogated accused Vakeel Ahmad and Anil Pandey. 8. On further interrogation of Smt. Rita Khandelwal (P.W.1) on 28.08.2006, she alleged that her brother-in-law Pradeep Khandelwal (accused/appellant), by making payment to 'PP' (a 10 DON) got Pankaj Khandelwal murdered with the help of members of his gang and thereafter, on 28.09.2006, accused/appellant Pradeep Khandelwal was arrested from his shop in Haldwani. His three mobile phones were taken by the police vide recovery memorandum (Ex. A22). It is pertinent to mention here that meanwhile it had also come to the light that one Rajesh and Satish were also working for 'PP'. Rajesh was arrested on 20.02.2006, but on 24.06.2006, three accused including Rajesh Broke Nainital District Jail, who were chased and all the three were killed. Satish could not be arrested by the police and was declared proclaimed offender. After completion of investigation, the Investigating Officer submitted a charge sheet Ex. A23 against accused Anil Pandey (since acquitted). 9. The three mobile phones which were taken into possession by Investigating Officer from accused/ appellant Pradeep Khandelwal on examination found containing certain call details and conversations. With the permission of the trial court the contents in the mobile phones were down-loaded in a laptop on 26.10.2006, and the three mobile phones were given in the custody of Prateek Khandelwal (S/o accused Pradeep Khandelwal) and Divya Khandelwal (W/o Pradeep Khandelwal). The conversation (subsequent 11 to incident) down-loaded indicated that 'PP' had a talk with accused/appellant Pradeep Khandelwal. An application was moved by the Investigating Officer to record the voice sample of Pradeep Khandelwal but he refused to give the same and learned Sessions Judge vide order dated 10.05.2007, observed that accused cannot be compelled to break his silence. Much before this, police at Haridwar, kept telephone no. suspected to be that of 'PP' on surveillance, and certain conversation of 'PP' with Rajesh, Satish Pandey, and Pradeep Khandelwal (before his arrest) but after the incident were down-loaded. Said conversation (between 'PP' and Pradeep Khandelwal) which relates to period after commission of murder of Pankaj Khandelwal but before arrest of Pradeep Khandelwal were preserved in a compact disk (C.D., Ex.6), and its transcription was placed before the court as Ex. 7. On the other hand, hand writing of Vakeel Ahmad @ Guddu (accused/appellant) is found in the Jagdish Hotel guest register was compared with his sample signature and a report Ex. A16 was obtained from the handwriting expert. He (Vakeel Ahmad @ Guddu), after his transfer to Nainital Jail, and thereafter to Haldwani Sub-Jail, was identified by P.W.1 Rita Khandelwal, and P.W.5 Mohan Singh Mehra (Manager of Jagdish Hotel) in the test identification parade before P.W.10 Chandra Singh, 12 Sub-Divisional Magistrate on 09.12.2006. Out of three witnesses except Trilok Singh other two witnesses named above (Rita Khandelwal and Mohan Singh ) identified accused Vakeel Ahamd @ Guddu correctly on the basis of which Sub Divisional Magistrate prepared identification memorandum (Ex. A4). After completion of investigation the Investigating Officer filed charge sheet (Ex. A24) against accused/appellants Vakeel Ahmad@ Guddu and Pradeep Khandelwal for their trial in respect of offence punishable under section 302 read with section 120B IPC and also relating to offence punishable under section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. It was mentioned by the Investigating Officer in the charge sheet (Ex. A24) that the investigation in respect of remaining accused namely Satish Pandey, Bhuppi, Pappu Yadav, Prakash Pandey remained pending. Committal by the Magistrate/Trial by the Sessions Judge: 10. The Magistrate, on receipt of the charge sheet Ex. A23, filed against accused Anil Pandey, and charge sheet Ex. A24 filed against accused/appellants Vakeel Ahmad @ Guddu and Pradeep Khandelwal after giving necessary copies to the accused, 13 committed the cases to the court of Sessions for trial. The case committed on the basis of charge sheet Ex. A23 was registered as Special Sessions Trial No. 71 of 2006, and on the basis of charge sheet Ex. A24, Special Sessions Trial No. 7 of 2007 was registered. On 15.06.2007, leaned Sessions Judge/Special Judge, Nainital, after hearing the parties, framed charge of offence punishable 302/120C IPC, and one punishable under section 2/3 U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986, to which accused Anil Pandey pleaded not guilty and claimed to be tried. On 09.10.2007, after hearing the parties in Special Sessions Trial No. 07 of 2007, learned Sessions Judge/Special Judge,Nainital, framed charge of offence punishable under section 302/120B IPC, and one punishable under section 2/3 U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986, against the two accused/appellants Pradeep Khandelwal, and Vakeel Ahmad @ Guddu to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Rita Khandelwal (complainant, and widow of the deceased),P.W.2 Poornanand Tiwari (accountant of firm Jai Guru Jewelers) , P.W.3 Head Constable Kishan Ram, ( who registered the crime at police station prepared check report and made entry in General Diary), P.W.4 Sub-Inspector Aizaz Alam Khan, (who started investigation, 14 prepared inquest report, took blood stained soil, and sample soil and items spectacles, empty cartridge of broken bullet from the place of incident), P.W.5 Mohan Singh (Manager of Jagdish Hotel), P.W.6 Dr. C.P. Bhainsora, (who conducted post-mortem examination), P.W.7 constable Abrar Husain, (who was acquainted with the voice of 'PP' and identified the same), P.W.8 Kishan Chand Sharma, (computer operator in SSP office), P.W.9 Nitayanand Pant, (Incharge Special Operation Group, who recorded the conversation between PP and accused Pradeep Khandelwal during surveillance), P.W.10 Chandra Singh, Sub-Divisional Magistrate,(who conducted Test Identification Parade of accused Vakeel Ahmad @ Guddu), P.W.11 Sub-Inspector Shivanand Mishra, (who was posted in Varanasi), P.W.12 Sub-Inspector Sundar Singh Dugtal, (who partly investigated the crime), and P.W.13 Incharge Inspector Dinesh Chandra Dhaundiyal, (who completed investigation of the case and submitted charge sheets). The oral, documentary , and material evidence was put to the accused under section 313 Cr.P.C, in reply to which they alleged same to be false. They pleaded that they have been falsely implicated. To the most of the queries accused Anil Pandey replied that he had no knowledge of the conversations of 'PP' with the accused. He denied that any amount in connection 15 with this case was ever deposited in his account no. at Lucknow. Accused/appellant Pradeep Khandelwal in reply of the queries made under section 313 Cr.P.C., admitted that his brother was murdered but in respect of other evidence he pleaded same to be false. Lastly he stated that between PP and Pankaj Khandelwal (deceased) there was a dispute on account of extortion by 'PP' due to which earlier also 'PP' attempted to get him killed. He told the court in his reply under section 313 Cr.P.C., that though he had some dispute with his brother Pankaj Khandelwal but after family settlement he and his brother had no enmity. Accused/appellant Vakeel Ahmad @ Guddu in his reply under section 313 Cr.P.C., stated that evidence against him is false. He also pleaded that he was not kept BAPARDA (face covered) when he was brought under a 'B' warrant to Nainital. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that prosecution could not prove charge of offence punishable under section 302 read with section 120B,and one punishable under section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, against Anil Pandey, and acquitted him of the charge. As to the accused Pradeep Khandelwal the trial court did not found charge of offence punishable under section 2/3 of aforesaid Act, of 1986, 16 proved against him but charge of offence punishable under section 302 read with section 120B IPC is found proved. He was accordingly convicted of said charge only. Accused/appellant Vakeel Ahmad @ Guddu was found guilty on both the charges one punishable under section 302 read with section 120B IPC (in alternative under section 302 read with section 34 IPC for which charge was also amended during trial) and also under section 2/3 of aforesaid U.P. Act, of 1986. After hearing on sentence, each one of the convicts namely Pradeep Khandelwal and Vakeel Ahmad @ Guddu, was sentenced to imprisonment for life under section 302 read with section 120B IPC, and further directed to pay fine of ` 10,000/-ion said charge, in default of payment of which the defaulter was required to undergo further imprisonment for a period of two years. Accused/appellant Vakeel Ahmad @ Guddu was further sentenced to rigorous imprisonment for a period of five years and also directed to pay fine of ` 5,000/- under section 2/3 of aforesaid Act of 1986, in default of payment of which he was further directed to undergo rigorous imprisonment for a period of one year. Aggrieved by said judgment and order dated 20.04.2009, these two appeals are filed by the convicts, separately. Post-mortem examination/medical evidence 17 11. Before further discussion we think it just and proper to mention the ante-mortem injuries found on the dead body of the Pankaj Khandelwal by P.W.6 Dr.C.P. Bhainsora, at the time of post-mortem examination on 25.01.2006, at 09:00 A.M., who prepared the autopsy report (Ex. A14). The ante- mortem injuries as mentioned in the autopsy report are reproduced below: (i) Splitted fire arm bullet entry wound circular in shape present over right side of forehead 1cm above from the medial aspect of right upper eye brow. Size of the wound 2X2cm, margins of the wound were inverted. (ii) Fire arm bullet entry wound oval in shape present over right temporal region of scalp of size 2X 1.5cm, 5cm above from mid of right ear pinna with abraded coller around the wound and small punctate shaped tattooing present around the wound and margin of the wound inverted. (iii) Bursting of the whole of the left crenical cavity present with expulsion of brain matter from the left cranical cavity. Inside the crenical cavity there is blackening. Burning and tattooing present at place 18 over the exposed part of the brain matter , whole of the left side skull bones were fractured in pieces. 12. The medical officer has opined in the autopsy report that cause of death of the deceased was injury to brain due to fire arm bullet injury. From the medical evidence on record it is sufficiently proved that Pankaj Khandelwal had died a homicidal death on 24.01.2006, as suggested by prosecution. Now this Court has to see whether the accused/appellants Pradeep Khandelwal and Vakeel Ahmad @ Guddu were involved in commission of the murder,and whether they had conspired with 'PP' (DON) in committing murder of Pankaj Khandelwal or not. Re: Accused/appellant Pradeep Khandelwal, Evidence/Argument/Discussion: 13. It is a case of circumstantial evidence as against accused/appellant Pradeep Khandelwal. Broadly speaking two main circumstances have been brought on record, enmity of the accused/appellant Pradeep Khandelwal with his brother (deceased), and alleged conversation, subsequent to the incident between the DON (PP) and accused/appellant Pradeep Khandelwal. 19 Simple rivalry and enmity? 14. P.W.1 Rita Khandelwal (widow of the deceased) has stated that on 21.01.2006, at about 8:15 P.M., she alongwith son and her husband (deceased) after closing the shop standing near their vehicle. Employees of the shop were putting locks in the shop when two persons came and fired shots on her husband who died on the spot. She further states that her son Parth Khandelwal rang to Pradeep Khandelwal (accused/appellant) and called him. The complainant got scribed her first information report (Ex. A1) through Pradeep Khandelwal, and went to Police Station Haldwani, alongwith her son Parth Khandelwal and brother -in-law Pradeep Khandelwal to lodge the report. She has further stated that her husband Pankaj Khandelwal (deceased) and accused/ appellant Pradeep Khandelwal were two brothers who earlier used to run their joint business in the name and style of 'Jai Guru Jewelers'.From the earning of said business, the two brothers purchased some land and started construction of Monolith Resort. During the construction work of Monolith Resort, the firm Jai Guru Jewelers, started suffering losses. This led bickering between the two brothers. Meanwhile the raid was conducted by Income Tax 20 Department in which joint firm suffered further loss of gold worth ` 40,00,000/- (rupees forty lacs). It is alleged by P.W.1 Rita Khandelwal (widow of the deceased) that Pradeep Khandelwal in construction work of Monolith Resort used to purchase stone and wood through a person known as Bhuppi. In the year 2002, partition took place between the two brothers. In the partition her husband got shop of 'Jai Guru Jewelers', 'Jai Guru Hotel', and a part of the house in which the deceased and complainant live, and some part in the property situated at Bhimtal. Accused/appellant Pradeep Khandelwal got portion of Monolith Resort, remaining half portion of property at Bhimtal, and a portion on the ground floor of 'Jai Guru Jewelers' in which Pradeep Khandelwal later opened his shop in the name and style of 'Shri Guru Jewelers'. After the partition 'PP' (a DON) and Bhuppi started making calls to Pankaj Khandelwal for extorting money. Pankaj Khandelwal suspected that his elder brother Pradeep Khandelwal (accused/appellant) has his role in getting made calls from 'PP'. She has also stated that business of 'Shri Guru Jewelers' run by accused/appellant Pradeep Khandelwal was not doing well unlike 'Jai Guru Jewelers' run by Pankaj Khandelwal, and at times they used to quarrel (her evidence as against Vakeel Ahmad @ Guddu will be discussed later in this 21 judgment). 15. Undoubtedly, the accused/appellant and the deceased used to run joint business and thereafter there had been partition between the two brothers. This fact has been admitted in a answer to question no. 10 by the accused/appellant Pradeep Khandelwal recorded under section 313 Cr.P.C. However, he has denied that he had any role in getting his brother murdered. Regarding the phone calls from PP, and Bhuppi to Pankaj Khandelwal, accused/appellant Pradeep Khandelwal replied in response to question no. 11 under section 313 Cr.P.C., that the two (PP and Bhuppi) used to make calls and , on not being obliged by the deceased, in