BRIJESH ASWAL ALIAS BIJJU Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 24.02.2007, passed by Sessions Judge, Almora in Sessions Trial No. 08 of 2006, whereby accused / appellant Brijesh Aswal alias Bijju is convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life and also directed to pay a fine of '25,000/-. He is further convicted under Section 25 of the Arms Act, 1959 (in Sessions Trial No. 09 of 2006), and sentenced to rigorous imprisonment for a period of three years and also directed to pay a fine of '5,000/-.

(2.) Heard learned counsel for the appellant and learned Addl. Government Advocate for the State and perused the lower court record.

(3.) Prosecution story, in brief, is that P.W.1 Kailash Singh Negi (informant) lodged a first information report (Ext. Ka-1) with police station, Ranikhet stating therein that on 21.08.2005, in the afternoon, he received a phone call which is meant for his brother Devendra (deceased) asking him to be present in the office of Ranikhet Taxi Union where an election is going to be held for the post of President. On this, both the brothers proceeded on motorcycle towards the Taxi Stand situated near K.M.O.U. Station, Ranikhet and reached there at 04:30 P.M. His brother went inside the office of the Union and started talking with Bijju Aswal, President of the Taxi Union, resident of Timila, regarding election for the post of President of the Union, and he (Kailash Singh) remained outside the office. At about 05:15 P.M., he heard altercations between his brother and Bijju Aswal in relation to the election to be held for the post of President of Taxi Union. On this he took his brother out of the office and told him to come home with him. This brother (Devendra) after coming out of the office of the Union started kicking his motorcycle standing at some distance, and the informant was there with him. All of a sudden, Bijju Aswal, President of the Taxi Union, came there, and after hurling abuses at Devendra fired shot from a country made pistol with an intention to kill him, which hit Devendra on his right temple. The assailant fled from the scene of occurrence. The brother of the informant collapsed and he started bleeding. This incident was witnessed by many persons assembled there. He immediately took his brother for treatment in Govt. Hospital, Ranikhet, in a vehicle, where he is undergoing treatment. On the basis of said FIR, the police registered crime No. 446 of 2005, in respect of offence punishable under Section 307 of I.P.C. against the accused Bijju Aswal, and prepared chick report (Ext. Ka-4). Later, on the death of Devendra, the case was converted to one punishable under Section 302 of I.P.C. The investigation of the case was taken up by P.W.6 Inspector Devendra Singh. He inspected the spot, prepared site plan (Ext. Ka-6) and recovery memo of blood stained soil and simple soil from the spot and prepared Ext. Ka-7 in this regard. On the same day i.e. 21.08.2005, at 09:50 P.M., the police took possession of the dead body of Devendra and prepared inquest report (Ext. Ka-14) and the dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. Dhirendra Bankoti (P.W.4) of Soban Singh Jeena Base Hospital, Haldwani on 21.08.2005, at 11:45 P.M., who prepared autopsy report (Ext. Ka-2). The Medical Officer found one ante mortem injury below 5 cm from the ear of the deceased, and opined that the same could have been possible by a firearm. The Medical Officer also opined that deceased had died of shock and haemorrhage due to ante mortem firearm injury. Before his death Devendra was medically examined by P.W.5 Dr. R.D. Tewari in Civil Hospital, Ranikhet on 21.08.2005, at 05:45 P.M. The said Medical Officer opined that the injury could have been possible by a firearm. Meanwhile, on 24.08.2004, accused Brijesh Aswal alias Bijju was arrested by the police and memo (Ext. Ka-10) was prepared. On the same day, on the disclosure made by the accused, one plastic bag was recovered from a pit, in which a 12 bore country made pistol, two live cartridges 12 bore and one 12 bore empty cartridge which was struck in the barrel was recovered and memo of recovery (Ext. Ka-9) was prepared in the presence of witnesses.