Prafulla C. Pant, J. - (1.) THIS appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (hereinafter re ferred as Cr.P.C), is directed against the judgment and order dated 17.2.1994, passed by learned Sessions Judge, Harid-war, in Sessions Trial No. 77 of 1993 and Sessions Trial No. 68 of 1993, whereby said Court has convicted accused/appellant Aslam, under section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). The appellant (convict) has been sentenced to undergo imprisonment for life.
(2.) HEARD learned Counsel for the parties and perused the Lower Court Rec ord. Prosecution story in brief is that accused/appellant Aslam and his associ ates, used to tease the sisters of Raju (deceased), on which the deceased had ex pressed his annoyance. On 25.8.1991 all about 5.45 P.M., when P.W.I Rajendra (complainant) along with his brother Raju (deceased) and one Vinod (P.W.3) was sit ting on an over-bridge, within the limits of Police Station Kotwali, Roorkee, accused/appellant Aslam along with his associates Arshad and Parvej alias Bakra, came there. Arshad and Bakra caught hold of Raju and asked Aslam to kill him. On this, Aslam took out a country made pistol from his pants and fired on the head of Raju. He (Raju) fell down on the spot and three ac cused started fleeing away. On this, com plainant Rajendra along with others chased Aslam and apprehended him at the spot with the assistance of the public witnesses and Constable Devendra Singh (P.W.2). Arshad and Parvej alias Bakra succeeded if fleeing from the scene of occurrence. A country made pistol was recovered from accused Aslam on the spot. He was beaten while apprehended. Aslam was handed over to the Police. P.W.I Rajendra (brother of the deceased), who participated in ap prehending the accused, lodged First In formation Report (Ext.A-1) at Police Sta tion, Roorkee, at about 6.30 P.M.. A memo randum of recovery of country made pistol (Ext.A-2) was also prepared. The Police registered Crime No. 271 of 1991 on the basis of the report lodged by P.W. 1 Rajen dra against accused Aslam, Arshad and Parvej alias Bakra, relating to offence pun ishable under section 302 I.P.C.. A separate Crime No. 272 of 1991 was registered against accused Aslam, relating to offence punishable under section 25 Arms Act, 1959. After the crime was registered, the investigation was taken up by P.W.9 In spector Baljit Singh. Immediately, Police went to the spot, took the dead body of Raju in their possession and Inquest Report (Ext.A-3) was prepared at 18.40 P.M. on the very day i.e. 25.08.1991. Other necessary papers - sketch of the dead body (Ext.A-4), letter to Chief Medical Officer, requesting for post-mortem examination (Ext.A- 5), Police Form No. 13 (Ext.A-7) etc. were pre-y pared and dead body was sent for post mortem examination in a sealed cover. The post-mortem examination on the dead body was conducted on 26.8.1991 at 2.00 P.M. by P.W.6 Dr. S.K. Jain, who recorded the firearm entry wound and firearm exit wound as ante-mortem injury. The Medical Officer opined that cause of death of the deceased was shock and haemorrhage due to ante-mortem firearm injury. During in vestigation, the Police took blood stained soil from the place of incident and got it sent for chemical examination. The wit nesses were interrogated and after complet ing the investigation Charge-sheet (Ext.A-15) was filed against all the three accused Aslam, Arshad and Parvej, for their trial in respect of offence punishable under section 302 I.P.C. and one punishable under sec tion 5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. A separate charge-sheet was filed against Aslam for his trial in respect of offence punishable under section 25 Arms Act, 1959. The Magistrate, on receipt of the Charge-sheet, after giving necessary copies to the accused, as required under section 207 of Cr.P.C, appears to have committed the cases to the Court of Sessions, for trial. Both the cases were consolidated. Learned Sessions Judge, Haridwar, on 26.4.1993, after hearing the parties, framed charge of offence punishable under section 302 I.P.C. against accused/appellant Aslam. He framed a separate charge of offence pun ishable under section 302 read with section 34 I.P.C. against the other two accused Ar shad and Parvej alias Bakra. All the ac cused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.I Rajendra, complainant and brother of the deceased, P.W.2 Constable Devendra Kumar, an eye-witness, who assisted in apprehending the accused at the spot, P.W.3 Vinod Kumar (declared hostile), P.W.4 Sub Inspector Sardar Singh, who prepared the Inquest Report, P.W.5 Con stable Ram Sharan, who took the dead body in a sealed condition for post- mortem examination, P.W.6 Dr. S.K. Jain, who conducted post-mortem examination on the dead body of Raju. P.W.7 Km. Babita, sister of the deceased, P.W.8 Sub-Inspector Ramesh Chandra Chaudhary, who on receipt of telephonic information of the incident at 6.10 P.M., after making necessary entry in the General Diary, proceeded to wards the spot and P.W.9 Inspector Baljit Singh, who investigated the crime. All the oral and documentary evidence including the material Ext. 1, the country made pistol, recovered from the accused Aslam, was put to the accused, under section 313 Cr.P.C., in reply to which he alleged the same to be false. However, at the end of his reply, he has stated that Raju (deceased) and his neighbours had suspicion that he (Aslam) used to tease his sister Babita. It is further stated by him that on the day of incident, he was beaten with lathies and dandas by Raju and others. When he was running to save his life, associates of Raju fired at him (Aslam), but it hit Raju. How ever, no evidence in defence is adduced by accused/appellant. After hearing the par ties, the Trial Court found ac cused/appellant Aslam guilty of charge of offence punishable under section 302 I.P.C.. It further found the other accused Parvej alias Bakra and Arshad guilty of offence punishable under section 302 read with section 34 I.P.C.. However, the ac cused/appellant Aslam was not convicted under section 25 Arms Act, 1959, for the reason that there was no sanction on the record from the District Magistrate to prosecute the accused. The accused/appellant Aslam, aggrieved by his conviction under section 302 I.P.C. filed this appeal before Allahabad High Court on 1st March, 1994, where it was admitted on 8th March, 1994. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000), for its disposal.
(3.) BEFORE further discussions, we think it just and proper to mention the ante-mortem injuries found on the person of the deceased by P.W.6 Dr. S.K. Jain, on 26.8.1991, at the time of the post-mortem examination, recorded in Autopsy Report (Ext.A-10), which are being reproduced below: - (i) Firearm wound of entry, circular in shape with inverted margins, 1.7 cm x 1.2 cm x buckle cavity deep, with lacerations in an area of 4 cm x 3 cm x muscle deep around the wound of entry. This wound is sur rounded by slight blackening. Wound of entry is situated on right cheek 4 cm below middle of right eyebrow and wound is directed upwards and towards on left side, (ii) Firearm wound of exit with exerted margins, 10 cm x 5 cm x communicating with wound of entry in front and with cervical vertebrae deep at back, situated 1 cm below left mastoid process and on the left side of neck 2 cm below left ear. On opening, there are fractures on upper jaw of mandible on both sides of nasal bone, frac ture of right maxillae, fracture of left maxillae and fracture of 2nd cervical vertebrae through and through. Fracture was also found on left tempo ral bone and middle fossae on left side ex tending to middle fosse right side. The Medical Officer (P.W.6-Dr. S.K. Jain), who conducted the post-mortem examination, opined that cause of death of the deceased was shock and haemorrhage due to ante-mortem - firearm injury. The Autopsy Report (Ext.A-10) read with statement of P.W.6 Dr. S.K. Jain, proves on record that Raju (deceased) had died a homicidal death. 7, Now, the question before this Court is whether it is proved that the ac cused Aslam committed murder of Raju or not. P.W. 1 Rajendra, complainant and brother of the deceased, who is also an eye witness, has narrated the prosecution story. He has stated that he had two brothers and three sisters. Deepak was his eldest brother. Next to him was Raju, and Rajen dra (P.W.I) was the youngest brother. The three brothers had three sisters, namely, Meera aged 24 years, Babita aged 22 years and Sangita aged 14 years. P.W.I Rajendra is a Sweeper. He has further stated that his sisters were unmarried. This witness has further stated that as there was a country liquor shop near their house, the accused Aslam along with Parvej and Arshad used to come to the liquor shop and they used to tease his sisters by singing - @ Hindi @ Sweeper's daughter, on some pretext). Three days before the incident, on 22nd August, 1991, when deceased expressed his annoyance to the accused/appellant, he threatened him to see. On 25.8.1991 at about 5.45 P.M., Rajendra (P.W.I) was sit ting along with his brother Raju (deceased) and Vinod (P.W.3) on an over-bridge and there was a Raksha Bandhan Fare in Lal Kurti Bazar. After sometime accused Aslam along with Arshad and Parvej alias Bakra came there. The accused Parvej and Arshad caught hold' of Raju and Aslam took out country made pistol from his pants and fired at Raju. Raju fell down. According to the witness, thereafter, ac cused ran towards Manglaur. P.W.I Rajen dra has further stated that he started chas ing the accused. From the other side one Policeman (Constable Devendra Kumar) came and with the help of the Policeman accused Aslam could be apprehended at the spot. The other two accused Parvej and Arshad succeeded in fleeing. After appre hending, country made pistol (Ext.l) was recovered from the accused. P.W.I Rajen dra wrote a First Information Report (Ext.A-1). The accused and the country made pistol were handed over to the Police and the report was lodged. 8. P.W.2 Constable Devendra Kumar has fully corroborated the statement of P.W.I Rajendra that accused Aslam was apprehended after the incident by getting him chased and country made pistol (Ext. 1) with empty cartridge, used in the crime was recovered from him. P.W.3 Vinod Kumar did not support the prosecution story and was got declared hostile. P.W.7 Km. Babita did corroborate the prosecution story only to the extent that some miscre ants used to tease her. However, she has not corroborated the prosecution story further. 9. The statement of P.W.I Rajendra and P.W.2 Devendra Kumar, read with post-mortem examination report (Ext.A-10), prepared by P.W.6 Dr. S.K. Jain, fully proves the prosecution story beyond all reasonable doubt against accused Aslam, who was apprehended at the spot after the incident with country made pistol (Ext. l) with empty cartridge. It is pertinent to mention here that the First Information Re port is prompt one, as the same was lodged without unreasonable delay. Chemical Examiner's report dated 7.10.1991 (Ext.A-19) shows that on examination of country made pistol (Ext. l) recovered, it was found that the empty cartridge found therein showed that the same was fired from the pistol recovered. 10. This Court cannot close its eyes to the fact that accused has admitted his pres ence at the place and time of incident as is clear from his replies recorded under sec tion 313 Cr.P.C. 11. On behalf of appellant, attention of this Court is drawn to the judgment and order dated 22.5.2004, passed by Division Bench of this Court, in Criminal Appeal No. 1746 of 2001 (Old No. 302 of 1994), re- ported in 2004 (2) Uttaranchal Decisions, page 1, and it is pointed out that co-accused Parvej alias Bakra and Arshad have already been acquitted in this case. We have gone through the judgment and found that the Division Bench of this Court, which decided said appeal, has opined that the prosecution could not prove common intention on the part of accused Parvej alias Bakra and Arshad, as such it cannot be said that the charge is proved against them, be yond reasonable doubt. Merely for the rea son that co- accused regarding whom it is not proved by prosecution if they had a common intention with the present appel lant, it cannot be said that the appellant is also entitled to acquittal. The case and role of appellant is quite different to the ac cused Parvej alias Bakra and Arshad. The eye-witnesses have clearly stated that it was accused/appellant Aslam who fired shot from close range at the deceased. Apart from this, it is proved beyond all reasonable doubt by the prosecution, as discussed above, that the ac cused/appellant Aslam was arrested at the spot immediately after the incident by chasing him. As against this, the case of Parvej alias Bakra and Arshad was differ ent, as they were not apprehended after chasing. Therefore, benefit of doubt given to other co-accused, , cannot be applied to the case of the present appellant for as against the present appellant Aslam the evidence is clinching and tight, leaving no room of doubt as to the commission of murder by him. 12. Learned Counsel for the appellant further drew attention of this Court to the fact that Check Report (Ext.A-12) of the First Information Report, shows that the First Information Report was lodged at the Police Station at 6.45 P.M., while P.W.I Rajendra, in his examination states that he lodged the report at about 8.00 P.M.. We are of the view that this is a minor contra diction, not material to disbelieve the prosecution story. We have to appreciate the evidence on record in the facts and circumstances of the case. P.W.I Rajendra is a Sweeper and cannot be said to highly lit erate person to tell the exact time. 13. It is also pointed out, on behalf of the appellant that P.W.7 Km. Babita has not supported the prosecution story. We have gone through the statement of P.W.7 Km. Babita. She is witness of the fact that some boys used to tease her. She is sister of the complainant and the deceased. She is not witness of the incident when the murder was committed by the accused of Raju (deceased). It has come on the record through the statement of P.W.I Rajendra that after Raju (deceased) expressed his annoyance on 22.8.1991 to accused Aslam, the accused committed his murder on 25.8.1991. 14. For the reasons as discussed above, we concur with the Trial Court that the prosecution has successfully proved charge of offence punishable under section 302 I.P.C. against accused Aslam. As such, we hold that the Trial Court has committed no error of law in convicting the accused Aslam on said count and sentencing him to imprisonment for life. Therefore, the appeal is liable to be dismissed. The appeal is dis missed. Accused Aslam is on bail. His bail is cancelled. The Registry is directed to send the Lower Court Record back so that the accused/appellant Aslam may be taken into custody and made to serve out the sen tence awarded to him by the Trial Court. Appeal Dismissed.;