Uttarakhand High Court
Kanchan Verma vs State Of Uttarakhand on 22 September, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.289 of 2012
Kanchan Verma ....... Appellant
Versus
State of Uttarakhand ...... Respondent
Mr. R.P. Nautiyal, Sr. Advocate assisted by Ms. Sangeeta Bhardwaj, Advocate, for the appellant.
Mr. Amit Bhatt, Dy. Advocate General, for the State.
(2) Criminal Appeal No.335 of 2012
Rupesh Tyagi ....... Appellant
Versus
State of Uttarakhand ...... Respondent
Mr. R.P. Nautiyal, Sr. Advocate assisted by Ms. Sangeeta Bhardwaj, Advocate, for the appellant.
Mr. Amit Bhatt, Dy. Advocate General, for the State.
(3) Criminal Appeal No.336 of 2012
Rupesh Tyagi ....... Appellant
Versus
State of Uttarakhand ...... Respondent
Mr. R.P. Nautiyal, Sr. Advocate assisted by Ms. Sangeeta Bhardwaj, Advocate, for the appellant.
Mr. Amit Bhatt, Dy. Advocate General, for the State.
(4) Criminal Appeal No.343 of 2012
Sudhir ....... Appellant
Versus
State of Uttarakhand ...... Respondent
Mr. Arvind Vashisth, Sr. Advocate assisted by Mr. I.A. Khan, Advocate, for the appellant.
Mr. Amit Bhatt, Dy. Advocate General, for the State.
(5) Criminal Appeal No.344 of 2012
Sudhir ....... Appellant
Versus
State of Uttarakhand ...... Respondent
Mr. Arvind Vashisth, Sr. Advocate assisted by Mr. I.A. Khan, Advocate, for the appellant.
Mr. Amit Bhatt, Dy. Advocate General, for the State.
2
Dated: September 22, 2017
Coram: Hon'ble Rajiv Sharma , J.
Hon'ble Sharad Kumar Sharma , J.
Per: Hon. Rajiv Sharma, J.
Since common questions of law and facts are involved in all these appeals, the same have been taken up together and decided by this common judgment.
These appeals are instituted against the judgment and order dated 11.09.2012 rendered by learned First Additional Sessions Judge, Rishikesh (Dehradun) in Sessions Trial Nos.61 of 2008, 62 of 2008 and 63 of 2008, whereby the appellants were charged with and tried under Sections 120-B, 302/34, 394/120-B, 412 IPC and Section 25 of the Arms Act. At the end of trial, the Trial Court convicted and sentenced the appellants as under: -
Name of Offence Substantive Sentence in lieu appellant(s) Sentence of payment of Fine Sudhir and 302/34 Life imprisonment Four months' Kanchan IPC with fine of imprisonment Verma Rs.5,000/- each Rupesh Tyagi 302 Life imprisonment Four months' IPC with fine of imprisonment Rs.5,000/-
Sudhir and Section Three years' R.I. Two months'
Rupesh Tyagi 25 with fine of imprisonment
Arms Rs.3,000/- each
Act
2. All the sentences of the appellants were ordered to run concurrently.
3. The case of the prosecution, in a nutshell, is that Kanchan Verma has lodged the report to the effect that on 4.2.2008 at about 7:30 P.M., he, after closing his shop was going to his house with his friend and artisan Proveer.
Proveer was the pillion rider on the motorcycle. They went to the house of Parvez Ansari. They stayed there for 10 3 minutes. Thereafter, he along with Proveer was going towards his house. However, when they reached near Ramnagar Ashram, Veerbhadra Road, one red colour motorcycle came parallel to them. He became suspicious. He tried to speed away. Then the person sitting on the pillion of motorcycle shot at Proveer and he fell down. He stopped the motorcycle. Assailants asked him about the gold. One of the assailants told that the gold was in the Dicky. Thereafter, the dicky was opened and bag was taken out. They also enquired about the cash. His motorcycle was also snatched. Appellants made their escape towards the barrage. Proveer was taken to hospital. He was declared dead.
The FIR was registered. The body was sent for post mortem examination. Cause of death was coma and shock due to ante-mortem firearm injury.
The matter was investigated and the challan was put up after completing all the codal formalities.
The prosecution has examined as many as fifteen witnesses to prove its case.
Statements of appellants were also recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. They have examined two witnesses.
Appellants were convicted and sentenced by the Trial Court, as noticed hereinabove. Hence these appeals.
Learned Senior Advocates, appearing on behalf of the appellants, have vehemently argued that the prosecution has failed to prove its case against the appellants beyond reasonable doubt.
4Learned Dy. Advocate General, appearing for the State, has supported the judgment dated 11.09.2012.
We have heard learned counsel for the parties and perused the entire material available on record carefully.
PW1 Parvez Ansari testified that on 4.2.2008 at about 7:30 PM, deceased Proveer and Kanchan Verma came to his house. He had to return the gold of Kanchan Verma. He told Kanchan Verma that he would return the gold on 5th. Thereafter, they left his house. Later on, he came to know that Proveer was murdered. Deceased used to collect gold from the jewelers at Rishikesh. He also used to sell gold to Proveer. The distance between the house of Proveer and Kanchan Verma was 4 kilometers. He admitted that no conversation took place between Kanchan and Proveer about the money transaction.
PW2 Ravi Saingar testified that he had gone to buy cigarette on 4.2.2008 at 8 PM. One person was shouting. He was shouting that one person was shot dead and his gold has been looted. He took that person to the spot on his motorcycle. One person was lying on the spot. He informed the police. In the meantime, Uma Shankar (PW3) came on the spot. Kuldeep Mishra was also with him. Uma Shankar lifted the injured and took him to Govt. Hospital, Rishikesh.
PW3 Uma Shankar testified that he was sitting in his car on 4.2.2008 at 7:30 PM. One person was shouting that his man has been shot dead and his gold has been looted. He went near that man. On humanitarian grounds, he, along with Kuldeep, took the injured to the 5 hospital. He lodged the report. Deceased was admitted in hospital.
PW4 Smt. Kajal is the wife of deceased. She testified that her husband was working as a goldsmith. He used to make jewellery in his house. Thereafter, he used to sell it to the shopkeepers. On 4.2.2008, her husband left the house at 4 PM to collect money from Kanchan Verma. At 9 PM, she got the news that her husband was shot dead. She suspected the role of Kanchan Verma. Her husband was under tension for 2-3 days since Kanchan Verma had to pay the money.
PW5 Netrapal Singh testified that he had given his mobile to his son Sanjay. He was declared hostile.
PW6 Sanjay deposed that on 28.2.2008, Sudhir had brought one Nokia Mobile phone to him. He put SIM Card in that phone. The I.D. was in the name of his father.
PW7 Shanti Prasad Dimri deposed that S.O. Nitin Chauhan informed him about the location of mobile phone of Netra Pal. They were told by one informant that the appellants were coming towards Mansa Devi Barrage. They were chased and apprehended. They disclosed their identity. One mobile phone was recovered from Sudhir. Money was also recovered from Amit Sharma. Sudhir admitted that the country made pistol was thrown near the bushes.
PW8 S.I. Rakesh Rawat has corroborated the statement of PW7 Shanti Prasad Dimri.
PW11 Ms. Sweety Aggarwal has deposed that the informant has given information that the appellants were seen near Natraj Chowk. She went in search of the 6 culprits. They were arrested. Their antecedents were noted.
PW12 S.I. Nitin Chauhan also corroborated the statements of other official witnesses.
The manner in which the country made pistol was recovered at the instance of appellant from the bushes has also been corroborated by PW8 S.I. Rakesh Rawat and PW11 Ms. Sweety Aggarwal.
PW10 Dr. N.S. Khatri has conducted the post- mortem examination. He has proved the post-mortem report. According to the post-mortem report, Proveer died due to coma and shock as a result of firearm injury.
DW1 Sanjay Tyagi has only deposed that Kanchan Verma was taken away by the police.
DW2 Din Dayal Verma is the brother of Kanchan Verma. He met his brother on 4.2.2008 and enquired about the incident. His brother told him that somebody has shot Proveer and looted the gold. In his cross- examination, he has admitted that he did not see the incident with his own eyes.
Deceased was the pillion rider on the motorcycle driven by Kanchan Verma. It has come in the statement of wife of deceased that her husband was under tension. He left the house to receive the money from Kanchan Verma. Deceased was working as a goldsmith. He used to take gold and thereafter to manufacture the jewellery. Proveer was found in injured condition by PW2 Ravi Sangar and PW3 Uma Shankar Bhatt. Appellant Kanchan Verma has not tried to save Proveer when he was fired at. His instinct should have been to save Proveer. According to PW2 Ravi Sangar and PW3 Uma Shankar Bhatt, Kanchan Verma 7 started shouting and thereafter PW2 Ravi Sangar took him to the spot where the injured was lying. Injured was taken to hospital by Uma Shankar Bhatt.
The weapon of offence i.e. country made pistol was sent for F.S.L. Examination. It has come in the report submitted by Forensic Science Laboratory, Uttarakhand (Ex.A-19) that the pistol marked 'A' along with one 8 mm/.315" bore the cartridge (in the barrel of pistol) marked 'C-1'. According to the opinion given in the report, when the barrel swabs of pistol marked 'A' were taken for chemical examination, firing discharge residues were detected in barrel of pistol marked 'A'. Thus, the pistol marked 'A' had been fired through. It was further opined that on thorough examination and comparison of individual characteristics marks present on the crime and test fired cartridge case under the comparison microscope, it was found that the .315"/8 mm bore cartridge marked 'C-1' had been fired through the pistol marked 'A'.
Thus, the weapon of offence recovered at the instance of convicts was used in the commission of crime. The criminal conspiracy has been hatched by the convicts to kill Proveer to whom Kanchan Verma owed the money. Kanchan Verma hired the assassins to shoot Proveer. There was a prior meeting of mind of appellants which resulted in the murder of Proveer. The weapon of offence has been recovered at the instance of the convicts from the bushes. The mobile used by the conspirators was also recovered by the police. The statements of official witnesses inspire confidence and the same are trustworthy.
Thus, in view of the observations and discussion, made hereinabove, we are of the considered view that the prosecution has proved its case to the hilt against the 8 appellants for the offences, under which, they have been convicted. We find no reason to interfere with the well reasoned judgment of the Trial Court in convicting and sentencing the appellants, as discussed hereinabove.
Consequently, the appeals fail and the same are hereby dismissed affirming the judgment and order, under challenge. Appellants are on bail. Their bail is cancelled. Their bail bonds and sureties are cancelled. Let they be taken into custody forthwith to serve out the sentence so imposed against them by the Trial Court.
Let a copy of this judgment and order along with the record be transmitted to the Court concerned for compliance.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) Rdang