CHANDRA DHARI SINGH,J. - (1.) Heard Mr. Ashish Malhotra learned Amicus Curiae for the appellant, Ms. Usha Kiran, learned A.G.A. for the State and perused the record.
(2.) This instant jail appeal has been filed against the impugned order dated 19.11.2008, passed by the Additional District and Sessions Judge, Gautam Budh Nagar in Session Trial No. 349 of 2006, whereby the accused-appellant was convicted for offence punishable under Section 394 read with Section 34 and under Section 302 read with section 34 I.P.C. and sentenced to seven years rigorous imprisonment and Rs. 50,000/- fine for offence under Section 394 read with section 34 I.P.C. In default of payment of fine, he further suffers six months simple imprisonment. Sentences under both the sections shall run concurrently.
(3.) Brief facts of the case. (I) The story of the prosecution is that on 17.08.1998, when the complainant Smt. Niti Pandit was sleeping with her husband namely Rajiv Pandit and her in-laws were sleeping in their respective rooms. At about 1-1:30 a.m., 3-4 unknown persons entered in her house with lathi and started beating them ruthlessly. Family members of the complainant got serious injuries. The miscreants looted/robbed cash, jewelry etc. from the house. After the miscreants left the house, then the complainant called on 100 number and informed the police about the incident. After 10 minutes, police arrived at the place of incident. All injured persons were sent to Kailash Hospital through ambulance. On the same day i.e. 17.08.1998, the complainant Niti Pandit lodged the F.I.R. at around 4:30 a.m. in the police station Sector-20, Noida, District Gautam Budh Nagar against unknown persons. (II) In the hospital, Rajiv Pandit, Ravi Pandit, Vinita Pandit, Sanjeev Pandit and Niti Pandit were medically examined. The injures of the respective injured persons are as follows: Injuries of Rajiv Pandit i. Fracture mandible ii. Lacerated wound upper lip 4 x 1 cm. and 3 x 1 cm. on lower lip. iii. Scalp wound - mid front 2 x 1/2 cm. iv. Fracture left collar bone and fracture on index finger of right hand. v. Blood clot found on the left side of the brain as per C.T. Scan. Injuries of Ravi Pandit i. Lacerated wound of 2.5 cm. x 1 c.m. x bone deep on the middle of scalp. ii. Lacerated wound of 2 cm. x 5 cm. x muscle deep on back side of the right temporal region. iii. Lacerated wound of 1 cm. x 5 cm. x muscle deep on right occipital region. iv. Fracture on left collar bone. v. Fracture on upper part of the index finger of the right hand. vi. Blood clot found on the left side of the brain as per C.T. Scan. Injuries of Vinita Pandit i. Lacerated wound of 6 x 2 cm. on the right side of forehead. ii. Lacerated wound of 1 x 5 cm. on the right eye lower lid. iii. Contusion on the right shoulder and arm Injuries of Sanjeev Pandit i. Lacerated wound of 10 cm x 3 cm. x bone deep on the right frontal region. ii. Lacerated wound of 8 x 2 cm on the right parietal region. iii. Lacerated wound of 6 x 2 cm over left parietal region. iv. Abrasion over face and neck. v. On both eyes there were blackish mark of wound. vi. Fracture on the upper portion of the index finger of right hand. vii. Blood clot found on the left side of the brain as per C.T. Scan. Injuries of Niti Pandit i. Lacerated wound of 4 x 1/2 cm x bone deep over right temporal region. ii. Lacerated wound of 2 x 1/2 cm through and through over right lip. iii. Right incisor tooth half broken. iv. Fracture 5th meta carpol bone. III. PW-7 Dr. Lalit Mohan Upadhyay who has conducted the post-mortem of the dead body of Kusum Pandit on 17.08.1998 about 3:00 p.m. According to post-mortem report, the following injuries were found on the dead body : i. Multiple contusion ranging from .05 cm x 5 cm. in an area of 26 cm x 15 cm on the front of face (whole) including both cheeks and nose. ii. Lacerated wound of 4 x 1/2 cm x bone deep on the left side of the face near the jaw towards lower direction. iii. Lacerated wound 5 cm x 1/2 cm x bone deep on right side of scalp (right parietal area of head), 4 cm. above and backward from top of right ear and 4 cm above hair line of neck. iv. Lacerated wound of 7 cm x 3 cm x bone deep on right occipital area of head, 11 posterior to right ear, 10 cm, hair line. v. Lacerated wound 6 cm x 4 cm inside brain cavity near occipital region. vi. Multiple contusions in the area of 16 cm x 11 cm of left shoulder. vii. Contusions of 8 cm. x 4 cm. on the lateral aspect of middle right thigh. viii. Contusions of 8 cm x 6 cm on left knee and on left foot over 5 cm of upper portion. ix. Contusions of 4 cm x 2 cm on the joint of left knee. The doctor opined that the injuries caused by sariya or lathi. The injured Kusum Pandit died during treatment on 17.08.1998. IV. The Investigating Officer has taken the statement of all the witnesses, collected the evidence and made site plan. Since no information of the unknown accused persons were obtained by the police, therefore, the police had filed a final report on 01.09.1998 before the concerned court. Due to the instructions of the higher police officers, the investigation of above said case was continuing and meanwhile Sri R.L. Pandit came in the police station Sector-20 and gave an application and informed the police that in Manohar Kahani, published on June, 2000, the story of the incident was published with photograph of the accused. After seeing the photograph, he identified the accused persons. He also met Inspector Mr. Chawla of crime branch and informed the same facts. He further informed the police that the accused persons will be produced in the court of Karkardooma and in the court of Bahadurgarh. He went to Karkardooma court and he saw the accused person in the court premises at the time of his production before the court, he identified the accused. When he identified the accused, he asked the name of accused and accused told him that his name is Harphool @ Kala. He got the information that some accused person will also be produced in the court of Bahadurgarh, Haryana on 29.06.2000. He went to court of Bahadurgarh and identified one accused and asked the name of accused, he told his name Rishal Singh. He stated in the application that on his information and identification the police may proceed in the case in which the final report had already been filed by the police. V. On 03.11.2000 the S.H.O., police station Noida, Sector- 20 submitted an application to S.P., Noida for cancellation of final report bearing No. 336/99 dated 01.09.1998 in pursuance of new development in the case. He stated in the application that during the investigating, it was brought in the notice that Harphool @ Kala son of Rishal Singh and Rishal son of Ranjeet Bavariya, resident of Vikaspuri, Delhi were involved in the crime. There were sufficient evidence against both the accused for the purpose of filing the charge-sheet. He enclosed all documentary/material evidence along with the application for perusal and further action. VI. After completing investigation, the police has filed the charge-sheet under Sections 394 and 302 I.P.C. against the accused Harphool @ Kala and Rishal Singh in the court below. During trial the accused Rishal was died, therefore, the case against him was abated. VII. To bring the guilt of the accused-appellant, the prosecution has examined PW-1, PW-2, PW-3 and other relevant witnesses for incriminating. The evidence and circumstances were put to accused-appellant under Section 313 Cr.P.C, 1973 and the appellant denied all the charges leveled against him. He stated in the statement that he was falsely implicated in the present crime. VIII. In the statement under Section 313 Cr.P.C., 1973 the accused had taken plea that he was falsely implicated in the said crime. He is innocent and committed any crime. IX. The trial court after concluding the proceedings, vide judgment and order dated 09.11.2008, convicted the appellant herein for committing the offence punishable under Sections 394/34 I.P.C. and 302/34 I.P.C. and sentenced him to life imprisonment and fine of Rs. 50,000/- for offence punishable under Section 302/34 I.P.C., in default of payment of fine further will go for six months. He was awarded sentence for seven years and fine of Rs. 50,000/- for offence punishable under Sections 394/34 I.P.C., in default of the payment of fine he will further undergo for six months simple imprisonment. All the sentences shall run concurrently. X. Aggrieved by the said judgment and order dated 09.11.2008 of Additional District and Session Judge, Gautam Budh Nagar, the instant jail appeal was filed.;