JUDGMENT [Per : Hon’ble Prafulla C. Pant, J. (Oral)] Both these appeals are directed against judgment and order dated 05.02.2003, passed by Sessions Judge, Chamoli, in Sessions Trial No. 6 of 2000, whereby said court has convicted accused/appellants Balbir Singh and Tejpal Singh 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, and also directed to pay fine of Rs. 5,000/- in default of payment of which the defaulter is directed to undergo further imprisonment for a period of six months. The two accused/appellants are further convicted under Section 393 I.P.C., and each of them have been sentenced to rigorous imprisonment for a period of seven years and also directed to pay fine of Rs. 5,000/- in default of payment of which the defaulter is required to undergo further imprisonment for a period of six months. 2. Heard learned counsel for the parties, and perused lower court record. 3. Prosecution story, in brief, is that P.W.1 Virendra Singh Negi (complainant) runs a petrol pump in the name and style ‘Pindar Filling Station’ at Simli, Karanprayag. P.W.2 Ravi and Narendra Singh (deceased) were the employees engaged by the complainant in said pump. On 04.11.1999, at about 8:00 P.M., complainant was inside in his house at the petrol pump, and P.W.2 Ravi was cooking his meals. The two heard noise and came out with solar lamp in their hand they saw two young men, after assaulting Narendra Singh, running away. They tried to chase them but the two miscreants started running in different directions, as such, could not be apprehended. A scooter bearing registration no. UGX 5026 was found lying at the spot. Narendra Singh had suffered one injury on the head and a fire arm injury in the stomach. P.W.1 Virendra Singh Negi took the injured in his vehicle to the nearest hospital at Karanprayag, where he was declared dead. Before that, he had given telephonic information at Police Station that the two persons have attacked Narendra Singh. P.W.1 Virendra Singh came to know about the death of the deceased (Narendra Singh) in the hospital where he was told that apart from head injury, deceased had suffered a fire arm injury under arm pit. The complainant lodged first information report (for short I.P.C.) at Police Station Karanprayag at about 9:40 P.M. (on 04.11.1999). P.W.1 Virendra Singh came to know about the death of the deceased (Narendra Singh) in the hospital where he was told that apart from head injury, deceased had suffered a fire arm injury under arm pit. The complainant lodged first information report (for short I.P.C.) at Police Station Karanprayag at about 9:40 P.M. (on 04.11.1999). The distance between police station and petrol pump was 6 km. On the basis of the report (Ex. A1) crime no. 268 of 1999 was registered relating to offence punishable under section 302 I.P.C. against the two unknown persons regarding whom it was mentioned that the complainant would be able to identify them. The investigation was taken up by P.W.8 Inspector B.K. Sharma. P.W.5 Sub-Inspector Vijay Rana took the dead body of the deceased in his possession, and prepared inquest report (Ex. A16) on 05.11.1999 at 9:00 A.M. He (S.I. Vijay Rana) also got prepared sketch of the dead body (Ex. A17), police form No. 13 (Ex. A18), letter to Chief Medical Officer (Ex. A19) requesting for post-mortem examination, and sample seal (Ex. A20). P.W.6 Dr. N.K. Prasad, who conducted post-mortem examination on 05.11.1999, at 3.30 P.M. and recorded one incised wound on the head, and one fire arm wound injury on the left side below arm pit in the autopsy report (Ex. A21). Meanwhile, on the very day (05.11.1999) the Investigating Officer took scooter bearing registration no. UGX 5026 in his possession and prepared memorandum (Ex. A2). He also took in his possession solar lamp in the light of which witnesses could see faces of the accused and prepared memorandum (Ex. A6). Blood stained soil, and plain soil were also taken from the spot. Also, a button and cartridge were found and separate recovery memos were prepared in that connection. P.W.8 B.K. Sharma, Investigating Officer, inquired about the owner of the scooter from the office of the Regional Transport Officer and came to know that such scooter belonged to one Vipin Chandra Sharma. On interrogation of said person it was revealed, that he had sold said scooter to P.W.4 Vinod Pyal. Said witness (P.W.4) disclosed to the Investigating Officer that he had sold the scooter in July 1999 for Rs. 8,000/- to accused Balbir Singh. On interrogation of said person it was revealed, that he had sold said scooter to P.W.4 Vinod Pyal. Said witness (P.W.4) disclosed to the Investigating Officer that he had sold the scooter in July 1999 for Rs. 8,000/- to accused Balbir Singh. On this information, accused Balbir Singh was arrested by the police on 12.11.1999, with a country made pistol and two cartridges regarding which a memorandum was prepared, and a separate crime no. 271 of 1999 was registered in respect of offence punishable under section 25 Arms Act. In said memorandum it was mentioned by the Investigating Officer that accused Balbir Singh disclosed name and address of his associate. Thereafter, accused/appellant Tejpal Singh was also arrested. He (Tejpal Singh) was a police constable who was found to have absented from duty between 02.11.1999 to 05.11.1999. Both the accused were put to Test Identification Parade (for short TIP) on 08.12.1999 in District Jail Pauri where P.W.1 Virendra Singh Negi and P.W.2 Ravi identified the two accused correctly, P.W.7 Atul Kumar Gupta, Sub Divisional Magistrate, prepared TIP memo (Ex. A22). The Investigating Officer after interrogating the witnesses, and on completion of investigation, submitted charge sheet (Ex. A34) against the two accused for their trial relating to offences punishable under section 302, and 393 I.P.C. A separate charge sheet (Ex. A36) was filed by Sub-Inspector Dharamveer Singh who investigated the crime relating to offence punishable under section 25 Arms Act, against accused Balbir Singh. 4. The Chief Judicial Magistrate, Chamoli at Gopeshwar, on receipt of the charge sheet (Ex. A34), after giving necessary copies to the accused as required under section 207 Cr.P.C., have committed the case to the court of sessions for their trial. Learned Sessions Judge, Chamoli on 08.02.2000, after hearing the parties, framed charge of offence punishable under section 302 read with section 34, and one relating to offence punishable under section 393 I.P.C. against the two accused namely Balbir Singh and Tejpal Singh who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Virendra Singh (complainant and eye witness), P.W.2 Ravi (another eye witness), P.W.3 Constable Bachan Singh, P.W.4 Vinod Pyal (who states that he sold the scooter to Balbir Singh), P.W.5 S.I. Vijay Rana (who prepared inquest report), P.W.6 Dr. On this, prosecution got examined P.W.1 Virendra Singh (complainant and eye witness), P.W.2 Ravi (another eye witness), P.W.3 Constable Bachan Singh, P.W.4 Vinod Pyal (who states that he sold the scooter to Balbir Singh), P.W.5 S.I. Vijay Rana (who prepared inquest report), P.W.6 Dr. N.K. Prasad (who conducted post-mortem examination), P.W.7 Atul Kumar Gupta, Sub Divisional Magistrate (who conducted TIP), P.W.8 Inspector B.K. Sharma (who investigated the crime), and P.W.9 S.I. Dharamveer Singh. The oral and documentary 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. However, no evidence in defence was adduced. The trial court, after hearing the parties, found the two accused guilty of charge of offence punishable under section 302/34 IPC, and 393 IPC. After hearing on sentence, each one of the convicts is sentenced to imprisonment for life and directed to pay fine of Rs. 5,000/- under section 302 IPC. The two convicts were further sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 5,000/- under section 393 IPC. Aggrieved by said judgment and order dated 05.02.2003, in Sessions Trial No. 6 of 2000, these two appeals are filed by the convicts separately which are taken up and heard together. 5. Before further discussion, we think it just and proper to mention the ante-mortem injuries recorded by P.W.6 Dr. N.K. Prasad, who conducted post-mortem examination on the dead body of Narendra Singh on 05.11.1999, and prepared autopsy report (Ex. A21). The same are being reproduced below :- (i) Incised wound 9 cm x ½ cm x brain matter deep over the occipital area of the skull. Margins clear cut and sharp. (ii) Fire arm wound of entrance 1 cm x 1 cm x 36 cm thoracic cavity deep, wound over the left side of the middle of thorax .8 cm below the center of the left auxiliary pit. Margins lacerated inverted, pellets are recovered from the wound from deep to the skin over the right side thoracic cavity 9 cm below the right nipple. On internal examination the medical officer found fracture in the scalp under the incised wound noted above. He further found thorax cavity deep filed with blood pleura ruptured. Both lungs ruptured. Margins lacerated inverted, pellets are recovered from the wound from deep to the skin over the right side thoracic cavity 9 cm below the right nipple. On internal examination the medical officer found fracture in the scalp under the incised wound noted above. He further found thorax cavity deep filed with blood pleura ruptured. Both lungs ruptured. As to the cause of the death, the medical officer opined that deceased had died of shock and hemorrhage as a result of ante-mortem injuries. From the evidence of P.W.6 Dr. N.K. Prasad read with autopsy report it is established on the record that Narendra Singh died a homicidal death. Now we have to examine whether the prosecution has successfully proved that accused/appellants Balbir Singh and Tejpal Singh committed robbery and murder with common intention. 6. P.W.1 Virendra Singh (complainant) has stated that he runs a petrol pump with name ‘Pindar Filling Station’. He has further stated that there are two employees engaged in the pump as salesmen one of them was Narendra Singh Kandari (deceased) and second was Ravi (P.W.2). The witness further states that on 04.11.1999, at about 8:00 P.M., he was in his residence to his witness, suddenly he heard noise and came out with a solar lamp towards his petrol pump office. He saw that another lamp is lighting inside the office, P.W.1 Virendra Singh further states that he could see two persons who were young between 22-25 years in jeans and shirts were coming out of the office, and one of them assaulting with sharp edged weapon, Narendra Singh. When the two accused saw Virendra Singh coming towards the accused, one of them ran towards Narayanbagad while the other ran towards Simli Bazar. The witness further states that Ravi (P.W.2) was also with him but they could not apprehend the accused. P.W.1 Virendra Singh has further stated that after about half an hour he rang to the police. Thereafter, he took injured Narendra Singh to Karanprayag Hospital where the Doctor told him that Narendra Singh has already died and that he had also suffered a bullet injury. 7. P.W.2 Ravi, an employee of the petrol pump has corroborated the prosecution story as narrated by P.W.1 Virendra Singh. According to this witness, on 04.11.1999 at about 8:00 P.M., he was cooking meals when he heard sound of some explosion, and came out. 7. P.W.2 Ravi, an employee of the petrol pump has corroborated the prosecution story as narrated by P.W.1 Virendra Singh. According to this witness, on 04.11.1999 at about 8:00 P.M., he was cooking meals when he heard sound of some explosion, and came out. The witness further states that Negi Sahib (P.W.1) was having solar lamp with him. The witness further states that there was another lamp lighting inside the office. P.W.2 Ravi also states that he saw the two persons coming out of the office who had injured Narendra Singh. The witness further states that when he attempted to apprehend the accused they ran away. This witness also corroborates that one of the miscreants ran towards Narayanbagad while another ran towards Simli. 8. Both the eye witnesses P.W.1 Narenra Singh, and P.W.2 Ravi identified the two accused/appellants Balbir Sigh and Tejpal Singh in the court. They also identified the two accused (present appellants) in District Jail Pauri in TIP. Their statements to this fact are corroborated from the statement of P.W.7 Atul Kumar Gupta, Sub Divisional Magistrate read with TIP memorandum (Ex. A22). Learned counsel for the appellants argued that the accused were not kept BAPARDA (faces covered). In this connection, attention is drawn to the cross-examination of P.W.8 Inspector B.K. Sharma that in the third remand it is not mentioned that accused were kept BAPARDA. However, on going through the statement of P.W.1 Virendra Singh, and P.W.2 Ravi we find the two have stated that they saw the accused only at the time of TIP after they saw them at the time of incident. On carefully going through the evidence of point, we are satisfied and concur with the view taken by the trial court that evidence of the two witnesses relating to identification is natural, trust worthy, and cannot be doubted. 9. P.W.4 Vinod Pyal has stated before the trial court that Bajaj Super scooter bearing registration No. UGX 5026 belonged to Vippin Chandra Sharma from whom he purchased it for Rs. 9,000/- and after using the same for sometime sold it to accused Balbir Singh for Rs. 8,000/-. On behalf of the appellants, it is contended that Vippin Chandra Sharma has not been examined on behalf of the prosecution, as such, it cannot be said that the scooter bearing registration No. UGC 5026 found at petrol pump belonged to Balbir Singh. 9,000/- and after using the same for sometime sold it to accused Balbir Singh for Rs. 8,000/-. On behalf of the appellants, it is contended that Vippin Chandra Sharma has not been examined on behalf of the prosecution, as such, it cannot be said that the scooter bearing registration No. UGC 5026 found at petrol pump belonged to Balbir Singh. In our opinion either seller or purchaser can prove that the sale of the vehicle has taken place. In the present case Vinod Pyal is the person who purchased the scooter from Vippin Chandra Sharma and sold it to Balbir Singh, as such, his testimony sufficiently proved the fact that the scooter belonged to Balbir Singh and cannot be doubted. 10. On behalf of the accused/appellant Tejpal Singh, it is stated that there is no connecting evidence to implicate him in the crime, we do not find substance in this argument, for the reason that the two eye witnesses have seen him at the time of the incident, and identified him in TIP, and also in the court as such it cannot be said that there is insufficient evidence to hold him guilty. P.W.8 Inspector B.K. Sharma has stated that when the name of Tejpal Singh came into light in the incident, during investigation it was found that he was absent without leave from his duty from 02.11.1999 to 05.11.1999. The Investigating Officer has further stated that accused Tejpal Singh who was a police constable, was arrested from Police Line Gopeshwar, after obtaining permission from the higher authorities. In the memorandum of arrest of Balbir Singh it is mentioned that he disclosed name and address of his associate as such, we find that there is sufficient link evidence against accused/appellant Tejpal Singh also. 11. Having reassessed entire evidence on record, we concur with the view taken by the trial court that the prosecution has successfully proved charge of offence punishable under section 302 read with section 34 IPC against the accused/appellants Tejpal Singh and Balbir Singh relating to commission of murder of Narendra Singh. However, as far as offence punishable under section 393 is concerned neither it is mentioned in the FIR as what was the property robbed, nor any such statement is made by the two eye witnesses. We hold that the charge of offence punishable under section 393 IPC is not sufficiently proved against the two accused/appellants. 12. However, as far as offence punishable under section 393 is concerned neither it is mentioned in the FIR as what was the property robbed, nor any such statement is made by the two eye witnesses. We hold that the charge of offence punishable under section 393 IPC is not sufficiently proved against the two accused/appellants. 12. Therefore, both the appeals are partly allowed. The conviction and sentence recorded by the trial court against accused/appellants Tejpal Singh and Balbir Singh relating to offence punishable under section 393 is set aside. They are acquitted of the charge of offence punishable under section 393 IPC. But the appeal of the two appellants is dismissed so far as their conviction and sentence recorded by the trial court relates to offence punishable under section 302 read with section 34 IPC. Accused/appellant Tejpal Singh is on bail. His bail is cancelled. He shall surrender to serve out the sentence awarded against him under section 302 read with section 34 IPC. Accused/appellant Balbir Singh is in jail. Let the copy of this judgment be sent to the Superintendent of the jail concerned. Also, lower court record be sent back to make accused/appellant Tejpal Singh serve out the sentence relating to offence punishable under section 302/34 IPC.