PRAFULLA C.PANT,J. - (1.) 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 ` 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 ` 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. 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). 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 Vippin 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 ` 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.
(3.) 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. 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 ` 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 ` 5,000/- under section 393IPC. 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.;