ARVIND KUMAR VISHNOI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) THE present criminal appeal as well as the Government appeal are directed against the same judgment and order dated 22.12.2001, passed by learned Sessions Judge, Nainital in Sessions Trial No. 328 of 1995, whereby accused / appellant Arvind Kumar Visnoi is convicted under Section 302 of the Indian Penal Code, 1860 and sentenced to imprisonment for life, and also directed to pay fine of Rs. 10,000/ - in default of payment of which he has been further directed to undergo rigorous imprisonment for a period of two years. Vide same judgment and order the accused / respondents Mahipal Singh, Sunil Kamboj alias Pappu and Brijesh Kumar have been acquitted of the charge of offence punishable under Section 302 read with Section 34 of I.P.C.

(2.) PROSECUTION story, in brief, is that P.W.1 Harendra Singh Dhillon had gone for some work to Kedar Singh Chauhan (deceased) resident of Nai Basti, Jaspur. After their meeting was over, Kedar Singh Chauhan offered Harendra Singh Dhillon to drop him at the bus station on his scooter. At about 06:00 P.M. near Singhal Nursing Home, a Maruti car bearing registration No. DDD 1784 came from the opposite direction and after overtaking the scooter obstructed its way. Accused Arvind Kumar Visnoi (A.S.D.M. Rudrapur), Mahipal Singh, Sunil Kamboj alias Pappu and his brother Brijesh Kumar, duly armed with weapons alighted from the car and after pushing Harendra Singh aside from the scooter, started firing at Kedar Singh Chauhan, who fell down on the ground. On raising the alarm and on hearing gunshots Rupendra Singh Bagga (P.W.2) resident of Bhagwantpur and many other persons came there, on which four accused made good their escape. There was sufficient light in which the informant Harendra Singh and the witnesses recognized the accused persons. P.W.1 Harendra Singh and P.W.2 Rupendra Singh Bagga brought the injured Kedar Singh to the police station on the same day i.e. 29.11.1992 at about 06:10 P.M., and lodged the first information report. On the basis of said first information report, chik FIR (Ext. Ka -1) was prepared and Crime No. 467 of 1992 was registered against accused Mahipal singh, Sunil Kamboj alias Pappu, Brijesh Kumar and Arvind Kumar Visnoi initially in respect of offence punishable under Section 307 of I.P.C. Injuries on the person of Kedar Singh Chauhan (before his death) were recorded by P.W.3 Dr. P.K. Dixit on 29.11.1992 at 07:15 P.M. who prepared injury report (Ext. Ka -2). On the same day, a dying declaration (Ext. Ka -6) of injured Kedar Singh was recorded by S.D.M. Kashipur (P.W.6) in the presence of P.W.3 Dr. P.K. Dixit, Cardiologist. In the dying declaration the injured before his death has stated that accused Arvind Kumar Visnoi s/o Udai Raj Singh Visnoi with his 12 bore gun fired twice at him. He further stated that accused Mahipal Singh, Sunil Kamboj and Brijesh Kumar were accompanying him. He has also stated that he had enmity with these persons and they robbed him of Rs. 20,000/ - cash. The incident took place near Singhal Nursing Home, Jaspur. At the end of the dying declaration it is stated that the accused had threatened him to kill, regarding which he had already informed the police. Dr. P.K. Dixit, Cardiologist had endorsed on the dying declaration that the patient was fully conscious and was in a position to make a statement. The next day i.e. 30.11.1992 Kedar Singh Chauhan succumbed to the injuries received by him and the dead body was taken for postmortem examination. Dr. J.K. Goel (P.W.4) conducted postmortem examination on the dead body on 31.011.1992 at 04.46 P.M. and prepared autopsy report (Ext. Ka -5). The Medical Officer recorded two gunshot wounds on the dead body. He opined in the report that the deceased had died of shock and haemorrhage as a result of ante mortem injuries. Police took the dead body in their possession and prepared inquest report (Ext. Ka -7) and other necessary papers. The investigation of the case was started by P.W.14 S.I. S.A. Zaidi, who inspected the spot and prepared memo regarding taking into possession of the scooter (Ext. Ka -14), memo regarding taking into possession of a hand bag (Ext. Ka -15) and site plan (Ext. Ka -17). After interrogating the witnesses and on completion of investigation successor Investigation Officer S.O. Brijendra Singh filed charge sheet (Ext. Ka -19) against the four accused for their trial in respect of offences punishable under Section 307/302/120 -B of I.P.C.

(3.) IT will be worthwhile to take up the ante mortem injuries first which have been recorded by P.W.4 Dr. J.K. Goel, who prepared autopsy report after postmortem examination on dead body of Kedar Singh Chauhan on 30.11.1992, at 04:45 P.M. The ante mortem injuries recorded in autopsy report (Ext. Ka -5) are being reproduced below: -