IMTIYAZ MURTAZA, J. - (1.) PRESENT ap­peal has come up before me vide order dated 23.2.2009 passed by Hon. C.J. upon a reference being made under section 392 Cr.P.C. It would appear that the aforesaid appeal was heard by the Division Bench consisting of Hon. S.S. Kulshrestha and Hon. B.A. Zaidi JJ. and the judgment was reserved on 6.5.2008. Subsequently, on ac­count of Hon. Judges being divided in opinion, both the Hon., Judges wrote their separate judgments in the appeal which are placed before me for my opinion under section 392 Cr.P.C. The aforesaid appeal was preferred against the judgment and order dated 24.2.2007 rendered by Sri Ashok Pathak, Addl. Sessions Judge, Muzaffarnagar in S.T. No.886 of 2006 whereby appellants Pradeep and Sharanvir were convicted un­der section 302 IPC and were awarded the death penalties.
(2.) UPON the matter being referred to me for opinion under section 392 Cr.P.C, I have heard Sri P.N. Mishra learned Senior Counsel appearing for the accused appel­lant and also learned Government Advo­cate for the State at prolix length and have also been taken through the entire record including judgement rendered by both the Hon. Judges. In order to appreciate the view points in both the judgements, it would be useful to set out abridged version of the prosecu­tion case. The occurrence is stated to have occurred on 7.7.2006 in the Court premises. The author of the F.I.R. is constable Raj Pal Singh who had been deployed from police lines Muzaffarnagar for duty of escorting the under-trials from lock up to the Court and vice versa. It is alleged that on the day of occurrence, he alongwith A.P. Vijendra Singh was escorting accused persons Jaivir, Pappu, Mahboob, Dinesh from F.T.C Court to lock up situated in the Court premises. On way to lock-up, it is alleged, the con­stables heard the pattering and when they swivelled their heads to see as to what was the matter, they saw that accused Sharanvir son of Tikam Gurjar was wielding country made pistol and targeting under trial Dinesh, he opened fire which hit Dinesh and he staggered down on the ground. Before he could load the country made pistol, the accompanying constable Vijendra Singh swung into action and one of the accused namely Pradeep was pinned down and he was overcome and was taken into custody alongwith country made pistol and live cartridge. The other accused person namely Sharanvir managed to escape. In the meanwhile, police force of Civil Lines Po­lice Lines descended at the scene of occur­rence. He guided the reinforcement to­wards the side where Sharanvir had es­caped. The injured under-trial was re­moved to hospital. It is further alleged that the apprehended accused Pradeep was en­trusted to the custody at PAC camp and the other under-trials which he was escorting was taken to lock-up. It is further alleged that when the injured Dinesh was brought to hospital by S.I. Devendra Singh Bisht he was declared 'brought dead'. Upon written report, the case was registered at case crime No. 694 of 2006 under section 302 IPC against accused Sharanvir and Pradeep accused while another case was registered at case crime No. 695 of 2006 under section 25 Arms Act. In the case prosecution examined in all 7 witnesses out of which P.W. 1 Con­stable Raj Pal Singh, P.W. 2 Vijendra Singh are police constables who at the relevant time were deployed for duty at the Lock-up situated in the Civil Courts campus to es­cort under-trials including the deceased from lock-up to the Courts and vice versa. P.W. 3 is Satya Prakash Sharma. At the relevant time, he was posted as Tahsildar Sadar and on the day of occurrence, upon being directed by City Magistrate, he was assigned the work of preparing inquest. P.W. 4 is S.I. Rakesh Kumar who investi­gated the case. P.W.5 is Dr. Rajesh Singh who conducted autopsy on the dead body. P.W, 7 is constable Tej Pal who was posted at the relevant time as constable Moharrir at Civil Lines Police station and prepared the chik report.
(3.) THE autopsy was conducted by Dr. Ra­jesh Singh who found the following injuries on the person of the deceased Dinesh. "1. Size 2.5 cm. x 1.5 cm. x chest cavity deep at back side of chest Rt side 8 cm. from Rt scapula region lower angle .05 cm. From Rt side midline. Margins are inverted, wound is cir­cular. Edges are contused. Blacken­ing present in direction of wound underlying 5, 4, 6th rib is fractured. The Rt lung is ruptured (lacerated). One plastic wad recovered from the wound. Metallic pallets No. eleven (11) are recovered from the wound. (2) Mutiple Pallet lying in an area of 34 cm. x 10 cm. on inner aspect of Right Thigh and leg. Size 0.5 mm x 0.5 mm. Black and Bluish in colour. Pallet metallic one received from the 2 sites of pallet injury. These are surgical and muscle deep. (3) Abrasion size 0.3 cm. x 0-.1 cm. on left knee. It was also opined by the Doctor that the death of the deceased might have been caused on account of fire arm injury on vital part." 4. I have traversed upon both the judgments. From a scrutiny of judgment rendered by his Lordship (Hon. S.S. Kulshrestha, J), it transpires that the learned Judge relied upon the deposition of the two ocular witnesses namely Raj Pal Singh P.W. 1 and Vijendra Singh P.W.2. These two witnesses are police constables and at the time of occurrence they were escorting the under-trials including the deceased from the Fast Track Court to the lock-up situated in the Court campus. The learned Judge dealt with the deposition of both the wit­nesses at prolix length and relied upon their testimonies as being natural witnesses being on duty. It is further observed that the witnesses had not made any exaggera­tion to establish the prosecution case. It is further observed that the witnesses had given the account of the incident and stated that they had seen both the accused per­sons opening fire. The Learned Judge fur­ther observed that accused Sri Pradeep was caught hold by them and the other accused namely Sharan Veer ran away from that place. Lastly, it was observed that both the witnesses namely Raj Pal Singh P.W. 1 and Vijendra Singh P.W. 2 were on duty and the deceased was shot dead when he was in their custody. In the light of the above discussion, the learned Judge converged to the conclusion that the witnesses cannot be excoriated as interested witnesses for fur­ther the prosecution version. The learned Judge also repelled the arguments that name of Sharan Veer Singh accused was interpolated under some pressure attended with further submission that he was not arrested on the spot and was not involved in the commission of the offence citing the instance that application for identification parade was rejected by the Trial Court seeing resistance from the side of the prosecution. The learned Counsel to prop up submission, also relied upon various decision including State of U.P. v. Shree Krishan, 2005 (51) ACC 738 (SC) = 2005 (27) AIC 714 (SC) and Jadunath Singh and another v. State of U.P., 1971 (8) ACC 290 (SC) = (1970) 3 SCC 518. The quintessence of both the aforesaid decision is that absence of test identification parade in all cases is not fatal. In connection with above submission, the learned Judge also relied upon decision of the Apex Court in Prakash Chand Sogani v. State of Rajasthan (Crl. Appeal) No. 92 of 1956 decided on January 15, 1957. Ultimately the learned Judge observed that such not arranging of identification parade would not in the given circumstances of the case affect the prosecution case. In connec­tion with the argument that the witnesses had not occasion to have known the ac­cused Sharan Veer Singh and for that rea­son the identification was claimed. The learned Judge referred to the deposition of witnesses in which it is clearly stated that Sharan Veer Singh was a hardened crimi­nal facing as many as 18 cases and he used to be brought to lock-up for being pro­duced in the Court every now and then. It has also come in the evidence that since the witness was on lock-up duty he came to know about the criminal antecedents of the accused. The learned Judge referring to the testimony of the witnesses observed that since the witness is in the police force and when a person having long criminal history and often visits lock-ups due to his criminal cases, there is no reason to disbelieve the testimony of Sri Raj Pal Singh P.W. 1 that he was well acquainted with the accused Sharan Veer Singh. The learned Judge also repelled the argument that evidence with regard to the recovery of the weapons and the cartridges and sending them to the Ballistic experts in a sealed wrap has not been proved by the prosecution observing that there is no evidence to show that nobody was permitted to tamper with the seal. The learned Judge also observed that the fact remains that the Ballistic Expert found empty cartridges to have been shot from these recovered weapons. Attended with the finding that there is no cross-examination from the side of the accused to challenge the acceptability of the report of the Ballistic Experts. The learned Judge also repelled the arguments that it was a case of culpable homicide not amounting to mur­der and that the accused appellants cannot be convicted under section 302 IPC. The learned Counsel also canvassed the point that the assailants had no intention to cause death. In connection with the argument the learned Judge observed that the intention of the assailants may well be inferred as the second fire was also made in that commo­tion and if the second fire missed the target or did not cause hurt at the vital part, it would not be construed that the assailants had no intention to cause death of the de­ceased. In ultimate analysis, the learned Single Judge affirmed tike conviction of both the accused but commuted the death penalty to imprisonment for life in so far as appellant Sharan Veer Singh is concerned. ;