RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1497OF 2001 (Old No.1220/1995) Gulfam & another ……… Appellants Versus The State ……… Respondent Dated: October 07, 2009 Sri Parikshit Saini, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 04.07.1995 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.181/1991, State Vs. Gulfam & another and S.T. No.182 of 1991, State Vs. Nafis, whereby the learned Addl. Sessions Judge has convicted the appellants/accused Gulfam and Nafis u/s 394 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to three years’ rigorous imprisonment with fine of Rs.200/- each and in default, one month’s further imprisonment was awarded. Appellant-accused Gulfam was further convicted u/s 411 IPC and was sentenced to one year’s R.I. Appellant- accused Nafis was also further convicted u/s 25 of the Arms Act, 1959 [hereinafter to be referred as the Act] 2 and was sentenced to one year’s R.I. with fine of Rs.200/-. All the sentences were directed to run concurrently. Appellant-accused Nafees was acquitted for the offence punishable u/s 411 IPC. Both the appellants-accused were also acquitted for the offence punishable u/s 307 IPC. 2. On the basis of death report of appellant- accused No.2 Nafees given by CJM, Haridwar dated 09.06.2004, the appeal preferred by appellant/accused No.2 Nafees stands abated. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that complainant Nand Kishore (P.W.1) lodged an FIR on 30.05.1988 stating therein that he is the owner of Vikram No.UGX-9817 on which Gulfam (appellant- accused) is the driver. On 29.5.1988 at about 11 P.M., appellant-accused Nafees (now deceased) came to him and requested him to transport bucket of tomatoes from the village for the vegetable market. Since it was night, hence the complainant refused the appellant-accused Nafees for the same, however Nafees told him that he had taken the consent from the driver. On this, the complainant asked the appellant-accused Nafees to meet Gulfam (appellant-accused). Thereafter, both the appellants-accused Gulfam and Nafees talked with each other and thereafter they proceeded on the Vikram. The complainant also accompanied them, as it was night. When they reached at Bahadarabad, then the 3 complainant asked them about the bucket of tomatoes, then he was told by the appellants-accused that it is has been kept at nearby place and in the meanwhile, they reached at Kaliyar Sharif turn by driving the Vikram speedily. Thereafter, the appellants-accused turned the Vikram towards Kaliyar Sharif and starting looking towards each other, then the complainant again asked them as to where they were going. On this, appellant- accused Nafis said that they were going in the nearby Patreli village. When the complainant directed them to stop Vikram, then they stopped Vikram at once and meanwhile appellant-accused Nafees brought out a Tamancha from his pocket and appellant-accused Gulfam snatched a watch from him. On the noise raised by the complainant, appellant-accused Gulfam exhorted Nafees to kill the complainant. On this, appellant- accused Nafees fired upon the complainant with intention to kill him but the fire could not take place. On the noise of complainant, villagers from the nearby fields and police party reached there who could manage to save the complainant and arrested both the appellants- accused Gulfam and Nafees with the Tamancha and robbed watch. It was further stated that during that incident, the appellants-accused also caused injuries to the complainant at his left hand. This incident had occurred at about 11:45 P.M. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Nand Kishore on 30.5.1988 at 1:30 A.M. at P.S. Roorkee, Distt. Haridwar. On the basis of the FIR Ex.Ka-1, Head Moharrir Digvijay Singh prepared the Chik FIR, i.e. Ex.Ka-5. He also made entry in the G.D. in the same process, the carbon 4 copy of which is Ex.Ka-6. Investigation of this case was initially entrusted to S.I. Ram Pal Singh. The I.O. prepared a Fard for recovering a watch from the possession of appellant-accused Gulfam on the spot, i.e. Ex.Ka-2. The I.O. also prepared a Fard for recovering a Tamancha of 303 Bore and a live cartridge of 303 Bore from the possession of the appellant-accused Nafees and prepared a Fard, i.e. Ex.Ka-3. Injured Nand Kishore was medically been examined on 30.5.1988 at 11:15 A.M. by P.W.3 Dr. H.C. Purohit and medical report prepared is Ex.Ka-4. Later on the investigation was transferred to S.I. Uday Prakash Yadav (P.W.6), who during investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-7. The I.O. also obtained the sanction for prosecuting the appellant- accused Nafees u/s 25 of the Act from the D.M., Haridwar, i.e. Ex.Ka-9. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, filed the charge sheet against the appellants-accused Gulfam & Nafees u/s 394/412/307 IPC, i.e. Ex.Ka-8. He also prepared the site plan of the place of occurrence u/s 25 of the Act, i.e. Ex.Ka-10. Thereafter, he filed the charge sheet against the appellant-accused Nafees u/s 25/27 of the Act which is Ex.Ka-11. 5. After receiving the charge sheet, learned Addl. CJM, Roorkee committed the case to the court of Sessions on 30.05.1991 after giving necessary copies to the appellants-accused as provided under Section 207 Cr.P.C. The case was transferred to Addl. Sessions Judge by Sessions Judge for disposal according to law. 5 6. On 17.3.1992, learned Addl. Sessions Judge, Roorkee framed the charges against the appellants/ accused Gulfam & Nafees (now deceased) u/Ss 394, 411, 307/34 IPC. The charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried. Charge against the appellant- accused Nafees u/s 25 of the Act was also framed by Addl. Sessions Judge, Roorkee on 17.3.1992. This charge was also read over and explained to the appellant-accused Nafees who also pleaded not guilty against this charge and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Nand Kishore, complainant, P.W.2 Constable Ravindra Kumar, eyewitness, P.W.3 Dr. H.C. Purohit, who medically examined the complainant, P.W.4 Mahendra Giri, eyewitness, P.W.5 H.C. Mange Ram, also an eyewitness and P.W.6 S.I. Udai Prakash Yadav, I.O. of the case. 8. After that the statement of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of and stated that they have been falsely implicated due to enmity. 9. After hearing learned counsel for the parties and appreciating the entire material available on record, learned Addl. Sessions Judge, Roorkee vide judgment and order dated 04.07.1995 convicted and sentenced the appellants-accused as discussed above. Feeling 6 aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 10. Before any further discussion, it is pertinent to mention the injury report of injured Nand Kishore who was medically been examined on 30.05.1988 at 11:15 A.M. by P.W.3 Dr. H.C. Purohit. The following injuries were found in the injury report Ex.Ka.4 which are reproduced as below: - “1.Abrasion 1.5 cm x 1 cm on Palma surface of right hand 2 cm below wrist joint, blood wound present. Opinion- Above mentioned injury is simple, caused by blunt object, duration is about ½ day.” 11. To prove the above injury report, the prosecution has examined P.W.3 Dr. H.C. Purohit, who has proved the injury report prepared by him, i.e. Ex.Ka.4. He further stated that the above-said injury could be caused at about 11:45 P.M. in the night of 29.5.1988. 12. To further prove its case, the prosecution has examined P.W.1 Nand Kishore who stated that on the date of incident at 11:00 P.M., appellant-accused Nafees (now deceased) came to him and requested him to transport bucket of tomatoes from the village for the vegetable market. Since it was night, hence he refused the appellant-accused Nafees for the same, however Nafees told him that he had taken the consent from the driver. On this, the complainant asked the appellant- accused Nafees to meet Gulfam (appellant-accused). 7 Thereafter, both the appellants-accused Gulfam and Nafees talked with each other and thereafter they proceeded on the Vikram. The complainant also accompanied them. When they reached at Bahadarabad, then he asked the appellants-accused from where the bucket of tomatoes was to be taken, then the appellants-accused speedily turned the vehicle (Vikram) towards Kaliyar Sharif and also started looking towards each other. He further stated that the appellants- accused had asked to go at Patreli village. Then the appellants-accused caught hold of him. Meanwhile appellant-accused Nafees brought out a Tamancha from his pocket and appellant-accused Gulfam snatched his watch and money from him. He raised noise while the money was being snatched from him. On the noise raised by him, appellant-accused Gulfam exhorted Nafees to kill him (this witness Nand Kishore). On this, appellant-accused Nafees fired upon him but the fire was missed. Then from the nearby village, two agriculturists Mahendra and Anand Giri came and constables of patrolling police also reached there on hearing the noise and all of them could manage to save him. The police personnel arrested the appellants- accused Nafees with Tamancha and Gulfam along with watch with the help of villagers. During this plundering, he also received injuries on the palm of his left hand. This incident had occurred at about 11:45 P.M. He also lodged the report of this incident in the police station, i.e. Ex.Ka-1. A sealed bundle was opened in the court in which he identified the watch Ex.1 and piece of cloth Ex.2. This witness was cross-examined at length by the 8 defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 13. P.W.2 is Constable Ravinder Kumar who stated that on the date of incident he along with Constable Mangeram was on picketing duty. At about 11:30 P.M., they proceeded for patrolling and as soon as they reached near Poultry Farm of Rehmatpur village, then they saw a three-wheeler found standing from where the noise of (cpkvks&cpkvks] ekj fy;k] ekj fy;k] ywV fy;k) was coming. Then they reached there by running and the two farmers working in the nearby fields also reached there. Both the appellants-accused were arrested by them, who on being arrested disclosed their names as Gulfam and Nafees. Nand Kishore informed that the accused had snatched his wrist watch and also beaten him. He further stated that the accused were committing scrambling and Marpit with Nand Kishore. He searched the appellant-accused Gulfam and from his right pocket of t-shirt, an HMT watch was recovered. While from the right hand of appellant-accused Nafees, a loaded Tamancha (303) and missed cartridge was recovered. Both the recovered watch and Tamancha were sealed separately and Fard was prepared. Fard of recovery of HMT watch is Ex.Ka-2 while Fard of recovery of Tamancha and 303 cartridge is Ex.Ka-3. 14. P.W.4 Mahendra Giri stated that on the date of incident he was working in the field along with Anant Giri. At about 11:45 P.M., he heard noise of fire. On this both of them came on the road from where they 9 saw two persons while committing robbery with Nand Kishore. At that time, two constables also came there. All four of them caught hold of the appellants-accused. An HMT watch from the possession of appellant-accused Gulfam was recovered while from the possession of appellant-accused Nafees (now deceased), a Tamancha was recovered. Fard of recovery of watch is Ex.Ka-2 while Fard of recovery of Tamancha is Ex.Ka-3. Both the articles were sealed separately and thereafter the recovered articles along with the appellants-accused were taken in the police station. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 15. The statement of P.W.5 H.C. Mange Ram also gets fully corroborated from the evidence of P.W.1 Nand Kishore, P.W.2 Constable Ravinder Kumar and P.W.4 Mahendra Giri. 16. P.W.6 S.I. Uday Prakash Yadav stated that on the basis of report given by Nand Kishore, H.M. Digvijay Singh prepared the Chik FIR, i.e. Ex.Ka-5. He also made entry in G.D., carbon copy of which is Ex.Ka.6. Initial investigation of this case was conducted by S.I. Ram Pal Singh and after his transfer, on 15.6.1988, investigation was entrusted to him. He inspected place of occurrence and prepared the site plan, i.e. Ex.Ka-7. After completing the investigation he filed the charge sheet against the appellants-accused, i.e. Ex.Ka-8. He also obtained the sanction for prosecuting the appellant- 10 accused Nafees from the District Magistrate, i.e. Ex.Ka.9. He also prepared the site plan in S.T. No.182 of 1991 i.e. Ex.Ka-10 and after completing investigation, he filed charge sheet in that trial also, i.e. Ex.Ka-11. 17. After that the statement of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of and stated that they have been falsely implicated due to enmity. 18. Sri Parikshit Saini, learned counsel for the appellant-accused argued that the case against the appellant-accused is not proved by the prosecution beyond reasonable doubt. I do not find any force in this argument for the reason that P.W.1 Nand Kishore who stated in his evidence that on the date of incident i.e. 29.5.1988 at 11:00 P.M., appellant-accused Nafees (now deceased) came to him and requested him to transport bucket of tomatoes from the village for the vegetable market. Since it was the night, he refused the appellant-accused Nafees for the same, however Nafees told him that he had taken the consent from the driver. On this, the complainant asked the appellant- accused Nafees to meet Gulfam (appellant). Thereafter, both the appellants-accused Gulfam and Nafees talked with each other and thereafter they proceeded on the Vikram and he also accompanied them. When they reached at Bahadarabad, then he asked the appellants from where the bucket of tomatoes was to be taken, then they speedily turned the vehicle (Vikram) towards 11 Kaliyar Sharif and also looked towards each other. He further stated that the appellants-accused had asked to go at Patreli village. Then the appellants-accused caught hold of him. Meanwhile appellant-accused Nafees brought out a Tamancha from his pocket and appellant- accused Gulfam snatched a watch and money from him. He raised noise while the money was being snatched from him. On the noise raised by him, appellant- accused Gulfam exhorted Nafees to kill him (this witness Nand Kishore). On this, appellant-accused Nafees fired upon him but the fire was missed. Then from the nearby village, two agriculturists Mahendra and Anand Giri came and constables of patrolling police also reached there on hearing the noise and all of them could manage to save him. The police personnel arrested the appellant Nafees (deceased) with Tamancha & cartridge and the appellant-accused Gulfam along with the watch with the help of villagers. During this plundering, he also received injuries on the palm of his left hand. This incident had occurred at about 11:45 P.M. He also lodged the report of this incident in the police station on 30.5.1988 at 1:30 A.M., i.e. Ex.Ka-1. The statement of this witness is reliable, believable and natural. The same also gets full corroboration from the evidence of P.W.2 Constable Ravindra Kumar, PW4 Mahendra Giri & P.W.5 H.C. Mangey Ram, who are also the eyewitnesses of the incident as well as from the medical evidence of P.W.3 Dr. H.C. Purohit and his injury report Ex.Ka-4. P.W.3 Dr. H.C. Purohit has also stated that the injury on the person of injured Nand Kishore could be caused on 29.5.1988 at about 11:45 P.M., therefore, the medical 12 evidence also supports the prosecution case. As such, in view of the aforesaid discussion, case against the appellant-accused Gulfam u/s 394 IPC and 411 IPC is fully made out by the prosecution beyond reasonable doubt. 19. For the reasons as recorded above, the case against the appellant-accused Gulfam is proved beyond reasonable doubt for the offences punishable u/s 394 IPC and also u/s 411 IPC and the trial court has rightly convicted and sentenced him as discussed above. 20. Accordingly, the appeal preferred by appellant-accused Gulfam is dismissed. The judgment and order dated 04.07.1995 passed by Addl. Sessions Judge, Roorkee in S.T. No.181 of 1991, State Vs. Gulfam, convicting and sentencing the appellant-accused Gulfam as discussed above, is affirmed. He is on bail. Let him be taken into custody forthwith to serve out the sentence as awarded against him. His bail bonds are cancelled. However, the period already undergone by him during investigation, trial or appeal shall be adjusted after verifying the records. Needless to say that the appellant-accused Nafees has died as per the report of CJM Haridwar dated 9.6.2004, as such the appeal filed by him stands abated. 21. Let a copy of this order be sent to the trial court concerned forthwith for compliance. (Dharam Veer, J.) October 07, 2009 Rdang