SYED FAHIM Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) PW 1 Ajay Sharma wrote a complaint (Ext. Ka -1) to Station Officer, police station, Bhatraujkhan, on 05.04.1999, against four unknown persons, regarding an incident of robbery and murder which took place on 05.04.1999, at 02:00 P.M. Said complaint was registered on the selfsame day, at 06:25 P.M., as case crime no. 02 of 1999, at police station Bhatraujkhan, District Almora, in respect of the offences punishable under Sections 302, 394 of IPC. The distance between the place of incident and the police station concerned was 5 -6 kms. The FIR was lodged within a span of six hours and hence there appeared to be no delay in lodging the FIR. After the investigation of the case, a charge -sheet was submitted against accused Kishore Singh Rawat, Rajendra Singh s/o Narain Singh, Rajendra Singh s/o Jaman Singh, Deep Chand Bhatt and Syed Fahim, for the offences punishable under Sections 396, 412 of IPC. The case was committed to the Court of Sessions. When the trial began and prosecution opened it's case, charge for the offence punishable under Section 396 of IPC, in the alternative under Section 302 of IPC and Section 412 of IPC were framed against the accused persons, who pleaded not guilty and claimed trial.

(2.) PW 1 Ajay Sharma, PW2 Umesh Chand, PW3 Suresh Singh, PW4 S.O. J.C. Pathak, PW5 constable Yogesh Chandra and PW6 S.O. Anand Singh Gusain (I.O.) were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was given in defence. During the course of trial, the case of accused Rajendra Singh s/o Jaman Singh was separated. After considering the evidence on record, learned Sessions Judge, Almora, vide judgment and order dated 15.05.2002, acquitted accused Rajendra Singh s/o Narain Singh and Deep Chand Bhatt of the charges framed against them. Accused -appellants Kishore Singh and Syed Fahim were convicted under Section 396 of IPC. They were, however, acquitted of the charge under Section 412 of IPC. Both the convicts were sentenced to undergo rigorous imprisonment for a period of ten years under Section 396 of IPC and were also directed to pay a fine of Rs. 10,000/ - each. Feeling aggrieved against the impugned judgment and order, present criminal appeals were preferred by the accused -appellants. Since both the criminal appeals have arisen out of same FIR and same judgment under consideration, therefore, they are being decided together by this common judgment and order for the sake of brevity and convenience.

(3.) PROSECUTION led the evidence through PW1 (informant as well as the injured driver). In his examination -in -chief, PW1 supported the prosecution story, and proved the contents of his complaint (Ext. Ka -1). According to PW1, about three years ago (from the date of his deposition), more particularly on 05.04.1999, he was the driver of a Maruti van having registration no. UP 21G 2579, which was being run as taxi at Moradabad. On 05.04.1999, Syed Fahim and Kishore Singh came to him and booked taxi. They told him that PW1 has to go from Moradabad to Manila via Ramnagar and back to Ramnagar. The fare was settled. PW1 proceeded at 11:00 A.M. alongwith Fahim and Kishore Singh. Mahesh Chandra Sharma, owner of the taxi, also accompanied them. As soon as PW1 came in the outskirt of Moradabad, Kishore Singh and Syed Fahim told him to stop the taxi because they have to take tea. They reached Ramnagar at 12:30 P.M. Petrol was filled up in the vehicle. When the taxi reached 5 -6 kms. ahead of Mohan, they saw a jeep coming from the other side. Kishore Singh and Fahim had a feeling of vomiting. Mahesh Chandra Sharma asked PW1 to stop the taxi. The jeep coming from the opposite side also stopped. Two persons alighted from the jeep. One person pointed a country made pistol on PW1. He fired on PW1, but the same luckily missed the target. Three persons started assaulting Mahesh Chandra Sharma with hammer. One of the accused assaulted PW1 with the butt of country made pistol. The incident happened at around 02:00 P.M. Mahesh Chandra Sharma was killed and his dead body was thrown in a gorge. All the four accused persons, then started assaulting PW1, who resisted the blow of hammer from his hands, as a consequence of which, he sustained injuries. PW1 was beaten inside the taxi and thereafter was dragged outside the taxi. PW1 jumped into the bush. There was a village situated nearby. An old man was seen by PW1, who told him that he wouldn't be able to help him. Thereafter, PW1 went to Mohan Chowki police check post and lodged complaint (Ext. Ka -1). PW1 was not acquainted with Kishore Singh and Fahim before this incident. PW1 remained at police station, Bhatraujkhan for next three days. The names of Kishore Singh and Syed Fahim came into light after 6 -7 days of the incident. Said names were disclosed by a homeguard. PW1 also said that he did not go to jail for identifying any of the accused person. In his cross -examination, PW1 said that he and deceased were mohallites (belonging to same locality). When the taxi was not plied, the same used to be parked at Mahesh Chandra's residence. PW1 went to taxi stand at 07:00 A.M. Two persons came for booking of taxi at 11:00 A.M. PW1 and Mahesh Chandra were present at the taxi stand at that time. Report was lodged against four unknown persons, in as much as, four persons committed the crime, i.e., two persons, who were sitting in the taxi and the other two, who came subsequently in a jeep. PW1 denied the suggestion that he was not the taxi driver. He also denied the suggestion that he was not having valid driving licence to run the taxi. PW1 was not the relative of the deceased. Deceased was his mohallite. PW1 returned from police station, Bhatraujkhan to Moradabad. He denied that no such incident took place.