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2010 Supreme(All) 3419
2010 (71) ACC 244
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Prafulla C. Pant, Nirmal Yadav, J.
Pradeep Khandelwal …………..…Appellant (in jail)
Versus
State of Uttarakhand ……………Respondent
Criminal Appeal No. 74 of 2009 and 94 of 2009
Decided on : 28.09.2010
Shri Abhay Kashyap, Advocate, with Shri Gajendra Tripathi, Advocate, present for the appellant.
Shri S.S. Adhikari, A.G.A., with Shri B.S. Parihar, Brief Holder, present for the State.
And
Headnote:
The court found that the prosecution had not proven beyond a reasonable doubt that the accused, Pradeep Khandelwal, had conspired with a dreaded criminal, Prakash Pandey (PP), to murder his brother, Pankaj Khandelwal. However, the court did find that the second accused, Vakeel Ahmad @ Guddu, was guilty of murder and conspiracy to commit murder. The court relied on circumstantial evidence, including Pradeep Khandelwal's conversations with PP, his motive for wanting his brother dead, and the fact that he had been seen with Guddu shortly before the murder.
Fact of the Case:
Pankaj Khandelwal was shot and killed outside his shop on January 24, 2006. His wife, Rita Khandelwal, and son, Parth Khandelwal, witnessed the murder and identified the accused, Vakeel Ahmad @ Guddu, as one of the shooters. Guddu was arrested and later identified by Rita Khandelwal and Mohan Singh Mehra, the manager of the Jagdish Hotel, where Guddu had stayed the night before the murder. Pradeep Khandelwal was also arrested and charged with conspiracy to commit murder. The prosecution alleged that Pradeep Khandelwal had hired PP to kill his brother due to a business dispute.
Finding of the Court:
The court found that the prosecution had not proven beyond a reasonable doubt that Pradeep Khandelwal had conspired with PP to murder his brother. The court noted that there was no evidence of any direct communication between Pradeep Khandelwal and PP, and that the conversations between PP and Guddu did not mention Pradeep Khandelwal by name. The court also found that the prosecution's theory of motive was weak, as there was no evidence that Pradeep Khandelwal had any financial or personal gain to be made from his brother's death. However, the court did find that Guddu was guilty of murder and conspiracy to commit murder. The court relied on the eyewitness testimony of Rita Khandelwal and Mohan Singh Mehra, as well as the fact that Guddu had been seen with Pradeep Khandelwal shortly before the murder.
Issues: 1. Whether the prosecution had proven beyond a reasonable doubt that Pradeep Khandelwal had conspired with PP to murder his brother, Pankaj Khandelwal. 2. Whether the prosecution had proven beyond a reasonable doubt that Vakeel Ahmad @ Guddu was guilty of murder and conspiracy to commit murder.
Ratio Decidendi: The court held that the prosecution had not proven beyond a reasonable doubt that Pradeep Khandelwal had conspired with PP to murder his brother. The court noted that there was no evidence of any direct communication between Pradeep Khandelwal and PP, and that the conversations between PP and Guddu did not mention Pradeep Khandelwal by name. The court also found that the prosecution's theory of motive was weak, as there was no evidence that Pradeep Khandelwal had any financial or personal gain to be made from his brother's death. However, the court did find that Guddu was guilty of murder and conspiracy to commit murder. The court relied on the eyewitness testimony of Rita Khandelwal and Mohan Singh Mehra, as well as the fact that Guddu had been seen with Pradeep Khandelwal shortly before the murder.
Final Decision: The court allowed Pradeep Khandelwal's appeal and acquitted him of the charges of murder and conspiracy to commit murder. The court dismissed Guddu's appeal and upheld his conviction and sentence for murder and conspiracy to commit murder.
Prafulla C. Pant, J.
Both these appeals are directed against judgment and order dated 20.04.2009, passed by Learned Sessions Judge, Nainital, in Special Sessions Trial No. 71 of 2006, and Special Sessions Trial No. 7 of 2007, whereby accused/appellant Pradeep Khandelwal has been convicted under section 302 read with section 120B of Indian Penal Code, 1860 (for short IPC) and acquitted from the charge of offence punishable under section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. Appellant Vakeel Ahmad @ Guddu has been convicted under section 302 read with section 120B IPC, (in alternative under section 302 read with section 34 IPC). He has further been convicted under section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. Appellant Pradeep Khandelwal has been sentenced to imprisonment for life and directed to pay fine of ` 10,000/-under section 302/120B IPC. Appellant Vakeel Ahmad @ Guddu has also been sentenced to imprisonment for life and also directed to pay fine of ` 10,000/-under section 302/120B IPC, (in alternative under section 302/34 IPC). He (Vakeel Ahmad) has been further sentenced to rigorous imprisonment for a period of five years and also directed to pay fine of 5,000/-under section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986.
2. Heard learned counsel for the parties at length, and perused the lower court record.
Background:
3. Prosecution Case: Prosecution case is that, accused/appellant Pradeep Khandelwal and his brother Pankaj Khandelwal (deceased), used to run their joint business in the name and style of 'M/s Jai Guru Jewelers' in Haldwani. From the income of said firm they also constructed a hotel in the name of 'Jai Guru'. Pradeep Khandelwal (accused/appellant) is elder brother, and Pankaj Khandelwal (deceased) was his younger brother. In the year 2000, the aforesaid two brothers, to expand their business, started construction of 'MONOLITH RESORT' over the land earlier purchased by the two brothers and their wives. Prosecution case is that since the construction work of Monolith Resort started, the firm M/s Jai Guru Jewelers started suffering loss. Due to this, differences arose between accused/appellant Pradeep Khandelwal and his younger brother Pankaj Khandelwal (deceased.) In September 2000, Income Tax Department conducted a raid in the firm and the resort as a result of which, it is stated that the firm suffered further loss of ` 40,00,000/-(rupees forty lacs). Thereafter the differences widened and the two brothers by mutual settlement got partitioned their joint properties in the year 2002. Pankaj Khandelwal (deceased) got the firm M/s Jai Guru Jewelers, and the elder brother Pradeep Khandelwal (accused/appellant) Monolith Resort, and land and some money for starting his own business. Accused/appellant No. 1 Pradeep Khandelwal adjoining to the shop of firm M/s Jai Guru Jewelers, started his business after constructing a shop with name and style of “Shri Guru Jewelers”. According to prosecution, this further raised rivalry between the two brothers. A few days before the incident they had a quarrel with each other.
4. Second leg of the prosecution story is that a dreaded proclaimed criminal Prakash Pandey also known as 'PP' (based out side India allegedly in Vietnam), in an association with one Bhuppi, Rajesh and others used to run an organized gang to extort money from public, particularly businessmen. A red corner notice is said to have been issued against him but he continued his activities by making telephone calls to his associates Bhuppi, Satish Pandey and others, and also used to get murdered men on failing to take ransom. He (PP) started extracting money from accused/appellant Pradeep Khandelwal by making calls himself and through Bhuppi and thereby the two PP and accused/appellant Pradeep Khandelwal came in contact with each other.
Incident:-
5. On 24.01.2006, at about 8:15 P.M., Pankaj Khandelwal (deceased),
