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2013 DIGILAW 625 (UTT)

ALTAF v. STATE OF UTTARAKHAND

2013-10-04

BARIN GHOSH, U.C.DHYANI

body2013
JUDGMENT Per: U.C. Dhyani, J. 1. PW1 Hari Charan wrote a complaint (Ex.Ka-1) to the Station Officer, Police Station Gangnahar, District Haridwar on 09.02.2000 alleging therein that in the intervening night of 08/09.02.2000, at around 3:00 AM, his son Anuj heard the noise of opening of shutter of his shop. Anuj came out of the house. He was followed by the informant and his elder son Jaideep Singh. All the three saw three thieves inside the shop. One of the miscreants fired upon Anuj, no sooner an attempt was made to apprehend the miscreants. Some injuries were caused by the informant to one of the miscreants in a scuffle. All the three miscreants were young boys. They left their scooter bearing registration number R.P.F. 3380 LML Vespa (slaty colour) outside the shop. Anuj was taken firstly to Pal Nursing Home and thereafter to the Government Hospital, where he was declared ‘brought dead’. Many people from the locality came and saw the incident. The names of the miscreants were not disclosed in the FIR, but the informant stated in the FIR that they (informant and Jaideep Singh) could identify the accused persons. A chick FIR was registered on the basis of the said complaint on the selfsame day at 10:10 AM. There appears to be no delay in lodging the FIR. 2. Investigation began on the basis of said first information report. After investigation of the case, a chargesheet was submitted against the accused persons, namely, Raju, Altaf and Javed for the offence punishable under Section 460 I.P.C. The case was committed to the Court of Sessions. When the trial began and prosecution opened it’s case, charges against Altaf and Javed were framed for the offence punishable under Section 460 I.P.C. A separate charge was also framed against Altaf for the offence punishable under Section 25 of the Arms Act. Accused persons pleaded not guilty to the charge(s) and claimed trial. One of the accused Raju died and therefore case against him stood abated. 3. PW1 Hari Charan, PW2 Jaideep Singh, PW3 Balraj, PW4 Mahesh Chand, PW5 Dr. Pradeep Kumar, PW6 S.I. Anand Prakash and PW7 S.I. Y.P.S. Bhadoriya were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was given in defence. 4. Pradeep Kumar, PW6 S.I. Anand Prakash and PW7 S.I. Y.P.S. Bhadoriya were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was given in defence. 4. After conclusion of the trial, learned Additional Sessions Judge, Roorkee, District Haridwar, vide judgment and order dated 06.10.2009, convicted Altaf and Javed under Section 460 I.P.C. Both of them were awarded imprisonment for life. Each accused was also sentenced to pay a fine of Rs.10,000/-. In default of payment of fine, the convicts were directed to further undergo imprisonment for six months. Accused Altaf was exonerated of the charge under Section 25 of the Arms Act. Aggrieved against their conviction and sentence, present criminal appeal was preferred on behalf of the convicts Altaf and Javed. 5. PW1 Hari Charan, in his examination-in-chief, supported the contents of his complaint (Ex.Ka-1). He also proved his signatures on the same. While elaborating the incident, PW1 said that he got the complaint written with the assistance of scribe Rajeev Tyagi. Accused persons left their scooter outside the shop. They (PW1 & PW2) recognized the accused persons. The Investigating Officer took the scooter in his possession. PW1 was also a signatory to the recovery memo (Ex.Ka-7) of scooter. One Surendra (not examined as prosecution witness) of Mohanpura told the police on 09.02.2000 itself that the scooter was usually driven by Altaf, Raju and Javed, who were vendors of plastic utensils. The police took PW1, Jaideep Singh (PW2) and Surendra with them and started making a search for the accused persons. On the selfsame day at around 6:30 PM, when the police party alongwith PW1 and PW2 reached near Rampur toll barrier, three miscreants were seen coming on foot. PW1 identified those and told the police that they were the persons who committed the offence in the intervening night of 08/09.02.2000. Surendra Singh also affirmed their names as Javed, Altaf and Raju. All the three accused persons were apprehended by the police near Sapna Talkies at around 6:30 PM. PW1 also identified the accused persons in the open court. When they were apprehended near Sapna Talkies, two countrymade pistols and cartridges were recovered from the possession of Altaf and Raju. Scooter (Material Ex.1) was also produced before the trial court. All the three accused persons were apprehended by the police near Sapna Talkies at around 6:30 PM. PW1 also identified the accused persons in the open court. When they were apprehended near Sapna Talkies, two countrymade pistols and cartridges were recovered from the possession of Altaf and Raju. Scooter (Material Ex.1) was also produced before the trial court. Countrymade pistols and cartridges were also placed before the court below. PW1 was cross-examined by learned counsel for the defence at length, but nothing adverse came in his statement, so as to suggest that PW1’s testimony should be treated with suspicion. 6. PW2 was the son of PW1. PW2 was also present when the incident took place. He also identified the accused persons. He was also with the police party when the accused persons were apprehended. PW2 also proved prosecution story. He too was cross-examined by learned counsel for the accused persons in the trial court, but despite a lengthy cross-examination, nothing substantial came out so as to suggest that he was telling anything other than the truth. In this way, the testimony of PW1 was satisfactorily corroborated by PW2. 7. Learned senior counsel for the appellants made an attempt to establish discrepancy in the recovery memo vis-à-vis statement of PW1. The arrest-cum-recovery memo was dated 09.02.2000, i.e., the date when the alleged incident took place. Recovery memo indicated that the appellants were arrested at 6:30 PM. It is also mentioned therein that while the police personnel were on the look-out of the accused persons, one Surendra Singh told police personnel at 3:00 PM that he has often seen scooter no. R.P.F. 3380 in possession of Altaf, Raju and Javed, who were vendors of plastic utensils. Thereafter, the police personnel alongwith PW1 and PW2 proceeded further in search of the appellants, who were apprehended near Sapna Talkies at around 6:30 PM. Learned counsel for the appellants drew attention of this Court towards the statement of PW1 (more particularly at para 13) that police personnel came to him at 5:00 PM. Learned counsel for the appellants argued that when the police personnel came to PW1 at 5:00 PM, how can it be said that PW1 alongwith PW2 were there with police at 3:00 PM? Learned counsel for the appellants argued that when the police personnel came to PW1 at 5:00 PM, how can it be said that PW1 alongwith PW2 were there with police at 3:00 PM? The said contention of learned counsel for the appellants carries no force, in as much as, a closer scrutiny of recovery memo would reveal that only Surendra Singh was with police personnel at 3:00 PM, and not PW1 alongwith PW2. It was only when Surendra Singh gave a clue to the police personnel, then they took PW1 and PW2 alongwith them. It will, therefore, be wrong to contend that PW1 and PW2 were with police personnel on 09.02.2000 at 3:00 PM, for, they (PW1, PW2) were taken by the police subsequently after 3:00 PM (maybe, 5:00 PM). The appellants were apprehended at around 6:30 PM and not before that. It will therefore be wrong to contend that there was discrepancy in the arrest-cum-recovery memo vis-à-vis statements of PW1 and PW2. 8. PW3 was one of the ‘panches’, who made signatures on inquest memo. PW4 filled up the inquest memo. He was one of the key-witnesses, who arrested appellants on 09.02.2000 at around 6:30 PM and recovered countrymade pistols alongwith cartridges from the possession of Altaf and Raju. Altaf was, however, exonerated under Section 25 of the Arms Act. He also witnessed arrest-cum-recovery memo. He also conducted investigation at some length. He was also cross-examined at length, but nothing fruitful came out in favour of the accused persons. 9. PW6 proved the site plan (Ex.Ka-17) and chargesheet (Ex.Ka-14), which were in the handwriting of S.I. Y.P.S. Bhadoriya, who himself appeared as PW7 in the witness box. PW7 investigated the main case under Section 460 I.P.C. M. Z. Kazim investigated the case under Section 25 of the Arms Act against appellant Altaf. PW7 was also cross-examined but nothing came out in his cross-examination to suggest that the investigation conducted by him was a farce. Two eye-witnesses, i.e., PW1 and PW2 thus fully established the prosecution case, subject to corroboration by PW5, who conducted postmortem on the dead body of Anuj (deceased). PW5 found firearm wounds of entry and exit while conducting postmortem. According to the Medical Officer (PW5), cause of death of victim was shock and haemorrhage as a result of ante-mortem firearm injuries sustained by the victim. PW5 found firearm wounds of entry and exit while conducting postmortem. According to the Medical Officer (PW5), cause of death of victim was shock and haemorrhage as a result of ante-mortem firearm injuries sustained by the victim. The ocular testimony of PW1 and PW2 was, thus, duly corroborated by PW5 and police personnel. 10. Learned counsel for the appellants further argued that Surendra Singh, who told the police personnel that the scooter was usually driven by Altaf, Raju and Javed, was not examined by the prosecution. It is true that Surendra Singh was not examined, but his non-examination made no difference to the prosecution story, in as much as other witnesses fully supported the prosecution story and withstood the rigour of cross-examination successfully. Investigation regarding ownership of scooter was not necessary, on the face of direct ocular evidence. PW1 and PW2 saw the assailants during the course of midnight and the assailants were nabbed on the selfsame day at around 6:30 PM. Minor discrepancies here and there will not adversely affect the ‘core’ of the prosecution story. 11. The FIR was promptly lodged. The arrest of the appellants was promptly done. There was hardly any time on the part of the informant or the police personnel to create a false story. The scooter was left by the assailants outside the shop. Surendra Singh gave a clue to the police personnel that he saw the appellants driving such scooter. On receiving such a clue from Surendra Singh, police personnel, alongwith PW1 and PW2, proceeded further in search of the appellants, who were apprehended within a span of 3-4 hours. A countrymade pistol alongwith cartridges was recovered from the possession of Altaf. The Forensic Science Laboratory (F.S.L.) gave a report (Paper No.21Ka) that the bloodstained soil contained human blood. In another report of F.S.L., an inference was drawn that the cartridge emanated from the countrymade pistol, which was recovered from the possession of appellant Altaf. Prosecution story was thus fully proved and established on the strength of such quality-evidence. 12. Learned trial court discussed and appreciated the prosecution evidence correctly. Learned trial court, therefore, committed no mistake in holding that the prosecution was able to prove it’s case against the accused-appellants beyond a shadow of reasonable doubt. We also assessed the prosecution evidence independently to come to the conclusion that the prosecution story was proved against the accused-appellants to the hilt. Learned trial court, therefore, committed no mistake in holding that the prosecution was able to prove it’s case against the accused-appellants beyond a shadow of reasonable doubt. We also assessed the prosecution evidence independently to come to the conclusion that the prosecution story was proved against the accused-appellants to the hilt. No interference is, thus, called for in the impugned judgment and order. 13. Criminal appeal preferred by the accused-appellants is, therefore, dismissed. The conviction and sentence awarded to the accused-appellants is hereby affirmed. The accused-appellants are on bail. Their bail is cancelled. They are directed to surrender before the Court concerned forthwith to serve out the sentence awarded to them by learned trial court. 14. Let a copy of this judgment alongwith lower court record be sent to the Court below for ensuring compliance of this order.