IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 297 of 2015

Umesh Sajwan @ Bablu ...... Appellant

Vs.

State of Uttarakhand ..... Respondent

Present:

Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Abhishek Anthwal and

Mr. Hemant Singh Mehra, Advocates for the appellant.

Mr. Siddhartha Bisht, A.G.A. for the State of Uttarakhand.

Criminal Appeal No. 326 of 2015

Prakash Pandey @ Vikash Tyagi ...... Appellant

Vs.

State of Uttarakhand ..... Respondent

Present:

Mr. Vipul Sharma and Mr. Maneesh Bisht, Advocates for the appellant.

Mr. Siddhartha Bisht, A.G.A. for the State of Uttarakhand.

Government Appeal No. 12 of 2016

State of Uttarakhand ...... Appellant

Vs.

Ghananand Joshi and Others ..... Respondents

Present:

Mr. Siddhartha Bisht, Advocate for the appellant/State.

Mr. Vipul Sharma, Advocate for the respondent no.1/Ghananand Joshi.

Mr. Sandeep Tiwari, Advocate for the respondent no.2/Suraj Verma.

None is present for the respondent no.3/Chaman Lohari.

JUDGMENT

Coram: Hon’ble Ravindra Maithani, J.

Hon’ble Alok Mahra, J.

Hon’ble Ravindra Maithani, J. (Oral)

All these appeals arise out from the common

judgment. Therefore, they are being decided by this common

judgment and order.

2. The instant appeals are preferred against the judgment and order dated 27.08.2015 and 31.08.2015, passed in

Sessions Trial No.40 of 2011, State Vs. Prakash Pandey @ Vikas Tyagi and Others, by the court of Additional Sessions Judge, II, Haldwani, District Nainital. By the impugned judgment and order, the appellants Umesh Sajwan @ Bablu and Prakash Pandey @ Vikash Tyagi have been convicted under Sections 302 read with 34 IPC and Section 25 of the Arms Act, 1959 (“the Act”), and sentenced as hereunder:-

A. Under Section 302 read with 34 IPC, to undergo rigorous imprisonment for life with a fine of Rs.10,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of one year.

B. Under Section 25 of the Act, to undergo rigorous imprisonment for a period of three years with a fine of Rs.5,000/-. In default of payment of fine, to undergo simple imprisonment for a further period of six months.

3. The respondents Ghananand Joshi, Suraj Verma and Chaman Lohari in GA No.12 of 2016 (hereinafter referred to as accused unless specifically named) have been acquitted. Accused- Ghananand Joshi and Suraj Verma have been acquitted of the charge under Section 120 B read with Section 302 IPC and accused Chaman Lohari has been exonerated of the charge under Section 302 read with 34 IPC and Section 25 of the Act. The appellant Prakash Pandey @ Vikash Tyagi preferred CRLA No.326 of 2015 and appellant Umesh Sajwan @ Bablu preferred CRLA No.297 of 2015 against their conviction, whereas the State has appealed against the acquittal of accused.

4. The prosecution case, briefly stated, is as follows:

(i) On 18.04.2010, at 07:45 PM, the deceased Uday Prakash Aggarwal alias Bablu was shot dead while he was shopping. A report was lodged by PW2, Satish Kumar Agarwal, the brother of the deceased, on the same date, based on which Case Crime No. 162 of 2010, under Section 302 IPC was lodged at Police Station Haldwani, District Nainital. The inquest of the dead body was done on 18.04.2010. The postmortem was conducted on

19.04.2010, at 9:00 AM.

.

(ii) According to the doctor, the cause of death is coma-shock and hemorrhage as a result of ante mortem firearm injury. The police conducted investigation, prepared site plans, took into custody the cartridge cases from the place of incident. According to the prosecution case, on 05.09.2010, PW13, Sanjay Kumar Pandey, who is the Investigating Officer (“IO”) got an information that the killer of the deceased Uday Prakash Agarwal are spotted at a place. The police intercepted three persons. They were the appellants and the accused Chaman Lohari. According to the prosecution, from the custody of all these three persons, country made pistols and cartridges were recovered, and at that spot, the accused Chaman Lohari confessed that in the mo