Pradeep Khandelwal (In Jail) vs State of Uttarakhand

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 u/s 302 read with Section 120B of Indian Penal Code, 1860 (for short IPC) and acquitted from the charge of offence punishable u/s 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. Appellant Vakeel Ahmad @ Guddu has been convicted u/s 302 read with Section 120B IPC, (in alternative u/s 302 read with Section 34 IPC). He has further been convicted u/s 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 Rs. 10,000/- u/s 302/120B I.P.C. Appellant Vakeel Ahmad @ Guddu has also been sentenced to imprisonment for life and also directed to pay fine of Rs. 10,000/- u/s 302/120B IPC, (in alternative u/s 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 Rs. 5,000/- u/s 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986.

Heard learned Counsel forthe parties at length, and perused the lower court record.

Background:

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 oss of Rs. 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. AccusedJAppellant 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. Afew days before the incident they had a quarrel with each other.

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:

On 24.01.2006. at about 8:15 P.M.. Pankai Khandelwal (deceased), after closing his shop was about to enter in his car, parked on the road. He was accompanied by his wife (P.W.1 Rita Khandelwal), and son Parth Khandelwal. Suddenly two persons approached and fired bullets on the head of the Pankai Khandelwal, who died on the spot. P.W.1 Rita Khandelwal (wife of deceased) raised alarm on which employees of the firm and others gathered. Parth Khandelwal immediately rang accused/Appellant Pradeep Khandelwal and reported about the incident. He (Pradeep Khandelwal) reached at the spot. Rita Khandelwal (P.W.1) got scribed first information report (Ex. A1) through him and lodged the same at Police Station Haldwani at 9:20 P.M.. On the basis of said report Head Constable Kishan Ram (P.W.3) registered crime No. 546 of 2006 at Police Station Haldwani, relating to an offence punishable u/s 302 IPC, against two unknown persons and prepared check report (Ex. A5) and made necessary entry in the General Diary (copy Ex. A6).

Subsequent developments and investigation:

As many as four Investigating Officers namely Sub- Inspector AizazAlam Khan (P.W.4) Inspector R.S. Hyanki, Sundar Singh Dugtal (P.W.12), and Inspector Dinesh Chandra Dhaundiyal, (P.W.13) investigated the crime. P.W.4 Sub-Inspector AizazAlam Khan rushed to the spot immediately after the F.I.R., was lodged on 24.01.2006 and prepared the site plan (Ex. A7). He interrogated complainant Rita Khandelwal (P.W.1) and her son Parth Khandelwal. He took the dead body of Pankaj Khandelwal in his possession and prepared inquest report (Ex. A8). He further got prepared police form No. 13 (Ex. A9), sketch of the dead body (Ex. A10), letter to Chief Medical Superintendent (Ex. A11) requesting him for post-mortem examination by the midnight. P.W.4 Sub-Inspector Aizaz Alam Khan further took the sample seal and blood stained soil from the spot and prepared memorandum Ex. A12. He also took broken bullet (Ex.1), broken spectacles (Ex.3), empty cartridge of a bullet (Ex. 2) from the spot and prepared memorandum (Ex. A13). Dead body of the deceased was sent in a sealed condition for post-moretm examination. P.W.6 Dr. C.P. Bhainsora, conducted post-mortem examination on 25.01.2006, at about 9:00 A.M., on the dead body of the Pankaj Khandelwal, and recorded two fire arm bullet entry wounds and bursting out of brain matter from the left crenical cavity. He found skull''s bone fractured. The Medical Officer opined that cause of death was injury to brain due to fire arm injuries. He prepared autopsy report (Ex. A14). On 26.01.2006, the investigation was taken over by Station House Officer, Rajendra Singh Hyanki, whereafter on 30.01.2006, it was handed over to Sub-Inspector Dinesh Chandra Dhaundiyal (P.W.13), further investigation was done from 10.02.2006, by P.W.12. S.S. Dugtal, Station House Officer of Police Station Chorgaliya from 10.02.2006 to 23.02.2006, and again the remaining investigation was given back to P.W.13 Inspector Dinesh Chandra Dhaundiyal.

During investigation, P.W.13 Inspector Dinesh Chandra Dhaundiyal on 30.01.2006, came to know from the owner of Jagdigh Hotel that three persons had stayed in room No. 202 on 23.01.2006, and left on the same day without getting check out. On this, the Investigating Officer got opened lock of room No. 202,and found three begs lying inside the room which were taken into possession by the Investigating Officer who prepared memorandum (Ex. A20) on 30.01.2006. On inspecting the guest register of the hotel it was found that on 23.01.2006, the room No. 202 was found booked in the name of Guddu Sharma and his two friends namely Laloo and Vikas. They had given their address of Leader Road, Allahabad. The room was found booked at 9:3C A.M., on 23.01.2006, and time of leaving was not mentioned in the register. It was further found that the person who booked and stayed in the hotel had mentioned his mobile No. in the register as 9335667894 with his address. The Investigating Officer took the register (Ex. 13) in his possession and prepared memorandum (Ex. A21). On verification of said phone No. it was found that registered owner of the SIM was one Anil Pandey (the accused who has been acquitted by the trial court). An account No. 053010003908 with UTI Bank at Lucknow, was found to be in the name of Anil Pandey regarding which it was stated that amount of extortion or collection for commission of murders used to be deposited in it. Consequently, Anil Pandey was arrested on suspicion of his involvement in this case. During investigation it was further revealed that a mobile No. 9415988055 was used while talking from public call office (PCO) in Haldwani, and also from the PCO of Varanasi. The mobile No. 9335667894 was found to be used by accused/Appellant Vakeel Ahmad @ Guddu who stayed in Jagdish Hotel on 23.01.2006,with his two associates with a false name Guddu Sharma, it was found that real name of the two associates were Irfan and Shahid. Smelling rat, accused/Appellant Vakeel Ahmad @ Guddu who was on bail in connection with a case relating to offence punishable u rider Section 324 IPC, in Varanasi, got his bail cancelled, and went to Varanasi jail. On coming to know of said fact, the Investigating Officer moved an application to the court at Nainital for issuance of ''B'' warrant against accused/Appellant Vakeel Ahmad @ Guddu, and also made request before the Varanasi Court on 01.08.2006, to keep the accused/Appellant Vakeel Ahma d @ Guddu ''BAPARDA'' (face covered). The Investigating Officer thereafter interrogated accused Vakeel Ahmad and Anil Pandey.

On further interrogation of Smt. Rita Khandelwal (P.W.1) on 28.08.2006, she alleged that her brother-in-law Pradeep Khandelwal (accused/Appellant), by making payment to ''PP'' (a DON) got Pankaj Khandelwal murdered with the help of members of his gang and thereafter, on 28.09.2006, accused/Appellant Pradeep Khandelwal was arrested from his shop in Haldwani. His three; mobile phones were taken by the police vide recovery memorandum (Ex. A22). It is pertine nt to mention here that meanwhile it had also come to the light that one Rajesh and Satish were also working for ''PP''. Rajesh was arrested on 20.02.2006, but on 24.06.2006, three accused including Rajesh Broke Nainital District Jail, who were chased and all the three were killed. Satish could not be arrested by the police and was declared proclaimed offender. After compleition of investigation, the Investigating Officer submitted a charge sheet Ex. A23 against accu sed Anil Pandey (since acquitted).

The three mobile phones which were taken into possession by Investigating Officer from accused/Appellant Pradeep Khandelwal on examination found containing certain call details and conversations. With the permission of the trial court the contents in the mobile phones were down-loaded in a laptop on 26.10.2006, and the three mobile phones were given in the custody of Prateek Khandelwal (S/o accused Pradeep Khandelwal) and Divya Khandelwal (W/o Pradeep Khandelwal). The conversation (subsequent to incident) down-loaded indicated that ''PP'' had a talkwith accused/appcillant Pradeep Khandelwal. An application was moved by the Investigating Officer to record the voice sample of Pradeep Khandelwal but he refused to give the same and learned Sessions Judge vide order dated 10.05.2007, observed that accused cannot be compelled to break his silence. Much before this, police at Haridwar, kept telephone No. suspected to be that of''PP'' on surveillance, and certain conversation of''PP''with Rajesh, Satish Pandey, and Pradeep Khandelwal (l)efore his arrest) but after the incident were down-loaded. Said conversation (between ''PP'' and Pradeep Khandelwal) which relates to period after commission of murder of Pankai Khandelwal but before arrest of Pradeep Khandelwal were preserved in a compact disk (CD., Ex.6), and its transcription was placed before the court as Ex. 7. On the other hand, hand writing of Vakeel Ahmad (a) Guddu (accused/Appellant) is found in the Jaqdish Hotel guest register was compared with his sample signature and a report Ex. A16 was obtained from the handwriting expert. He (Vakeel Ahmad @ Guddu), after his transfer to Nainital Jail, and thereafter to Haldwani Sub-Jail, was identified by P.W.1 Rita Khandelwal, and P.W.5 Mohan Singh Mehra (Manager of Jagdish Hotel) in the test identification parade before P.W.10 Chandra Singh, Sub-Divisional Magistrate on 09.12.2006. Out of three witnesses except Trilok Singh other two witnesses named above (Rita Khandelwal and Mohan Singh) identified accused Vakeel Ahamd @ Guddu correctly on the basis of which Sub Divisional Magistrate prepared identification memorandum (Ex. A4). After completion of investigation the Investigating Officer filed charge sheet (Ex. A24) against accused/Appellants Vakeel Ahmad@ Guddu and Pradeep Khandelwal fortheirtrial in respect of offence punishable u/s 302 read with Section 120B IPC and also relating to offence punishable u/s 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. It was mentioned by the Investigating Officer in the charge sheet (Ex. A24) that the investigation in respect of remaining accused namely Satish Pandey, Bhuppi, Pappu Yadav, Prakash Pandey remained pending.

Committal by the Magistrate/Trial by the Sessions Judge:

The Magistrate, on receipt of the charge sheet Ex. A23, filed against accused Anil Pandey, and charge sheet Ex. A24 filed against accused/Appellants Vakeel Ahmad @ Guddu and Pradeep Khandelwal after giving necessary copies to the accused, committed the cases to the court of Sessions for trial. The case committed on the basis of charge sheet Ex. A23 was registered as Special Sessions Trial No. 71 of 2006, and on the basis of charge sheet Ex. A24, Special Sessions Trial No. 7 of 2007 was registered. On 15.06.2007, leaned Sessions Judge/Special Judge, Nainital, after hearing the parties, framed charge of offence punishable 302/120C IPC, and one punishable u/s 2/3 U.P. Gangsters &Anti Social Activities (Prevention) Act, 1986, to which accused Anil Pandey pleaded not guilty and claimed to be tried. On 09.10.2007, after hearing the parties in Special Sessions Trial No. 07 of 2007, learned Sessions Judge/Special Judge,Nainital, framed charge of offence punishable u/s 302/120B IPC, and one punishable u/s 2/3 U.P. Gangsters &Anti Social Activities (Prevention) Act, 1986, against the two accused/Appellants Pradeep Khandelwal, and Vakeel Ahmad @ Guddu to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Rita Khandelwal (complainant, and widow of the deceased),P.W.2 Poomanand Tiwari (accountant of firm Jai Guru Jewelers), P.W.3 Head Constable Kishan Ram, (who registered the crime at police station prepared check report and made entry in General Diary), P.W.4 Sub-Inspector AizazAlam Khan, (who started investigation, prepared inquest report, took blood stained soil, and sample soil and items spectacles, empty cartridge of broken bullet from the place of incident), P.W.5 Mohan Singh (Manager of Jagdish Hotel), P.W.6 Dr. C.P. Bhainsora, (who conducted post-mortem examination), P.W.7 constable Abrar Husain, (who was acquainted with the voice of ''PP'' and identified the same), P.W.8 Kishan Chand Sharma, (computer operator in SSP office), P.W.9 Nitayanand Pant, (Incharge Special Operation Group, who recorded the conversation between PP and accused Pradeep Khandelwal during surveillance), P.W.10 Chandra Singh, Sub-Divisional Magistrate,(who conducted Test Identification Parade of accused Vakeel Ahmad @ Guddu), P.W.11 Sub-Inspector Shivanand Mishra, (who was posted in Varanasi), P.W.12 Sub-Inspector Sundar Singh Dugtal, (who partly investigated the crime), and P.W.13 Incharge Inspector Dinesh Chandra Dhaundiyal, (who completed investigation of the case and submitted charge sheets).

The oral, documentaiy , and material evidence was put to the accused u/s 313 Code of Criminal Procedure, in reply to which they alleged same to be false. They pleaded that they have been falsely implicated. To the most of the queries accused Anil Pandey replied that he had no knowledge of the conversations of ''PP'' with the accused. He denied that any amount in connection with this case was ever deposited in his account No. at Lucknow. Accused/appeilant Pradeep Khandeiwal in reply of the queries made u/s 313 Code of Criminal Procedure , admitted that his brother was murdered but in respect of other evidence he pleaded same to be false. Lastly he stated that between PP and Pankaj Khandeiwal (deceased) there was a dispute on account of extortion by ''PP'' due to which earlier also''PP attempted to get him killed. He told the court in his reply u/s 313 Code of Criminal Procedure that though he had some dispute with his brother Pankaj Khandeiwal but after family settlement he and his brother had no enmity. Accused/Appellant Vakeel Ahmad (5). Guddu in his reply u/s 313 Code of Criminal Procedure , stated that evidence against him is false. He also pleaded that he was not kept ESAPARDA (face covered) when he was brought under a ''B'' warrant to Nainital. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that prosecution could not prove charge of offence punishable u/s 302 read with Section 120B,and one punishable u/s 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, against Anil Pandey, and acquitted him of the charge. As to the accused Pradeep Khandeiwal the trial court did not found charge of offence punishable u/s 2/3 of aforesaid Act, of 1986, proved against him but charge of offence punishable u/s 302 read with Section 120B IPC is found proved. He was accordingly convicted of said charge only. Accused/Appellant Vakeel Ahmad @ Guddu was found guilty on both the charges one punishable u/s 302 read with Section 120B IPC (in alternative u/s 302 read with Section 34 IPC for which charge was also amended during trial) and also u/s 2/3 of aforesaid U.P. Act, of 1986. After hearing on sentence, each one of the convicts namely Pradeep Khandeiwal and Vakeel Ahmad @ Guddu, was sentenced to imprisonment for life u/s 302 read with Section 120B IPC, and further directed to pay fine of Rs. 10,000/-ion said charge, in default of payment of which the defaulter was required to undergo further imprisonment for a period of two years. Accused/Appellant Vakeel Ahmad @ Guddu was further sentenced to rigorous imprisonment for a period of five years and also directed to pay fine of Rs. 5,000/- u/s 2/3 of aforesaid Act of 1986, in default of payment of which he was further directed to undergo rigorous imprisonment for a period of one year. Aggrieved by said judgment and order dated 20.04.2009, these two appeals are filed by the convicts, separately.

Post-mortem examination/medical evidence:

Before further discussion we think it just and proper to mention the ante-mortem injuries found on the dead body of the Pankaj Khandeiwal by P.W.6 Dr. C.R Bhainsora, at the time of post-mortem examination on 25.01.2006, at 09:00 A.M., who prepared the autopsy report (Ex. A14). The antemortem injuries as mentioned in the autopsy report are reproduced below:

(i) Splitted fire aim bullet entry wound circular in shape present over right side of forehead 1cm above from the medial aspect of right upper eye brow. Size of the wound 2X2cm, margins of the wound were inverted.

(ii) Fire arm bullet entrywoundoval in shape present over right temporal region of scalp of size 2X 1.5cm, 5cm above from mid of right ear pinna with abraded coller around the wound and small punctate shaped tattooing present around the wound and margin of the wound inverted.

(iii) Bursting of the whole of the left crenical cavity present with expulsion of brain matter from the left crenical cavity. Inside the crenical cavity there is blackening. Burning and tattooing present at place overthe exposed part of the brain matter, whole of the leftside skull bones were fractured Jn pieces.

The medical officer has opined in the autopsy report that cause of death of the deceased was injury to brain due to fire arm bullet injury. From the medical evidence on record it is sufficiently proved that Pankaj Khandelwa! had died a homicidal death on 24.01.2006, as suggested by prosecution. Now this Court has to see whether the accused/Appellants Pradeep Khandelwal and Vakeel Ahmad @ Guddu were involved in commission of the murder,and whether they had conspired with ''PP'' (DON) in committing murder of Pankaj Khandelwal or not.

Re: Accused/Appellant Pradeep Khandelwal, Evidence/Argument/Discussion:

It is a case of circumstantial evidence as against accused/Appellant Pradeep Khandelwal. Broadly speaking two main circumstances have been brought on record, enmity of the accused/Appellant Pradeep Khandelwal with his brother (deceased), and alleged conversation, subsequent to the incident between the DON (PP) and accused/Appellant Pradeep Khandelwal.

Simple rivalry and enmity?

P.W.1 Rita Khandelwal (widow of the deceased) has stated that on 21.01.2006, at about 8:15 P.M., she alongwith son and her husband (deceased) after closing the shop standing near their vehicle. Employees of the shop were putting locks in the shop when two persons came and fired shots on her husband who died on the spot. She further states that her son Parth Khandelwal rang to Pradeep Khandelwal (accused/Appellant) and called him. The complainant got scribed her first information report (Ex. A1) through Pradeep Khandelwal, and went to Police Station Haldwani, alongwith her son Parth Khandelwal and brother-in-law Pradeep Khandelwal to lodge the report. She has further stated that her husband Pankaj Khandelwal (deceased) and accused/Appellant Pradeep Khandelwal were two brothers who earlier used to run their joint business in the name and style of ''Jai Guru Jewelers''. From the earning of said business, the two brothers purchased some land and started construction of Monolith Resort. During the construction work of Monolith Resort, the firm Jai Guru Jewelers, started suffering losses. This led bickering between the two brothers. Meanwhile the raid was conducted by Income Tax Department in which joint firm suffered further loss of gold worth Rs. 40,00,000/- (rupees forty lacs). It is alleged by P.W.1 Rita Khandelwal (widow of the deceased) that Pradeep Khandelwal in construction work of Monolith Resort used to purchase stone and wood through a person known as Bhuppi. In the year 2002, partition took place between the two brothers. In the partition her husband got shop of ''Jai Guru Jewelers'', ''Jai Guru Hotel'', and a part of the house in which the deceased and complainant live, and some part in the property situated at Bhimtal. Accused/Appellant Pradeep Khandelwal got portion of Monolith Resort, remaining half portion of property at Bhimtal, and a portion on the ground floor of ''Jai Guru Jewelers'' in which Pradeep Khandelwal later opened his shop in the name and style of''Shri Guru Jewelers''. After the partition ''PP'' (a DON) and Bhuppi started making calls to Pankaj Khandelwal for extorting money. Pankaj Khandelwal suspected that his elder brother Pradeep Khandelwal (accused/Appellant) has his role in getting made calls from ''PP''. She has also stated that business of''Shri Guru Jewelers'' run by accused/Appellant Pradeep Khandelwal was not doing well unlike ''Jai Guru Jewelers'' run by Pankaj Khandelwal, and at times they used to quarrel (her evidence as against Vakeel Ahmad @ Guddu will be discussed later in this judgment).

Undoubtedly, the accused/Appellant and the deceased used to run joint business and thereafter there had been partition between the two brothers. This fact has been admitted in a answer to question No. 10 by the accused/Appellant Pradeep Khandelwal recorded u/s 313 Code of Criminal Procedure However, he has denied that he had any role in getting his brother murdered. Regarding the phone calls from PP, and Bhuppi to Pankaj Khandelwal, accused/Appellant Pradeep Khandelwal replied in response to question No. 11 u/s 313 Code of Criminal Procedure , that the two (PP and Bhuppi) used to make calls and, on not being obliged by the deceased, in earlier incident also fires were shot at him (Pankaj Khandelwal deceased), regarding which on the basis of his report certain arrests were made. P.W.1 Rita Khandelwal (complainant), in her cross-examination admits said prior incident, which occurred about 2-3 years before the present incident in question. Evidence of the factum of motive alleged by P.W.1 Rita Khandelwal regarding conspiracy on the part of accused/Appellant Pradeep Khandelwal with PP does not appear to be trust worthy. In our opinion at the most there appears to be simple rivalry between trie two brothers in their business but there appears no enmity between the two. Had there been enmity in which the accuses/Appellant Pradeep Khandelwal would have gone to the extent of conspiracy with DON to kill his brother, the complainant''s son Parth Khandelwal would not have rang his uncle Pradeep Khandelwal (accused/Appellant) immediately after the incident, and the complainant would not have got scribed report through him. This fact shows that relations between the two brothers were not enmical though might be not cordial. Otherwise also after the amicable partition in joint family business there was no reason for accused/Appellant Pradeep Khandelwal to get killed his brother In her first statement given to the first Investigating Office!" u/s 161 Code of Criminal Procedure , complainant did not disclose any such suspicion. It is only because of the calls made by PP to Pradeep Khandelwal, subsequent to the incident, the complainant suspected that her brother- in-law (accused/Appellant Pradeep Khandelwal) got killed the deceased (Pankaj Khandelwal).

P.W.2 Poornand Tiwari, an Accountant of Jai Guru Jewelers has simply corroborated the fact that Pankaj Khandelwal and Pradeep Khandelwal were two brothers who used to run joint business in the name and style of ''Jai Guru Jewelers'', and both the brothers jointly opened Monolith Resort in the year 2000, whereafter when due to the construction work of Monolith Resort, M/s Jai Guru Jewelers started running losses, Pankaj Khandelwal (deceased) asked Pradeep Khandelwal not to spend money of the Firm in Monolith Resort. Resultantly, a mutual partition took place between the two brothers on 31.08.2005. He has further stated that there had been dispute between the two brothers on the issue of widening of open side of the shop. In cross-examination he fails to disclose as to actually when the dispute took place in the year 2005. Statement of this witness also does not establish enmity between the two brothers.and whatever bickering had been there, it is stood resolved by the mutual partition. Merely for the reason that there had been some dispute on the issue of widening of the open side of shop, it cannot be said thai for that reason one brotherwould get killed another. Having reassessed the evidence of the witnesses of the fact on this point, we areof the opinion that the factum of enmity between the two brothers cannot be said to have been established, particularly when the properties between the two had already been mutually partitioned.

Conversation of the accused/Appellant Pradeep Khandelwal with PP (DON), subsequent to incident:

Second circumstance against accused/Appellant Pradeep Khandelwal which was heavily relied by the prosecution is that subsequent to the incident, there had been conversation between PP (A DON) and, accused/Appellant Pradeep Khandelwal. In this connection, P.W.7 constable Abrar Hussain, P.W.8 Computer Operator, Kishan Chand Sharma, and P.W.9 Sub-Inspector Nityanand Pant, Incharge Special Operation Group, have given their eviden ce on the point.

P.W.7 Constable Abrar Hussain says that in the year 1999, when he was posted Police Station Kaladhongi, PP @ Prakash Pandey was arrested in connection with some murder and he is acquainted with his voice. He identified the voice of Prakash Pandey in the conversation tape relating to this case.

P.W.8 Kishan Chand Sharma, Computer Operator, states that he down loaded the conversation found in the memory of mobiles taken from Pradeep Khandelwal in a laptop, and prepared a CD (Ex.1) on its basis on 06.05.2007.

P.W.9 Nityanand Pant, the then S.O.G Incharge, states that underthe Government Order No. surveillance/listening home-section-2 No. 1681/XX(20)/134/SURAKSHA/2003, dated 23.09.2005, read with another order dated 01.02.2006, mobile No. 9837048009 belonging to accused/Appellant Pradeep Khandelwal was kept under surveillance, it was found that he was receiving phone calls from No. 84902607586 (beginning No. ''84'' indicates call from Vietnam, like beginning No. ''91'' indicates phone calls from India). Said phone No. was being used by Prakash Pandey @ PP against whom red corner notice had already been issued not only from Mumbai Police, Delhi Police, Gujarat Police but also from Uttarakhand Police. This witness had stated that he got prepared CD of the conversation between PP and Pradeep Khandelwal, and script of said conversation is contained in CD.,Ex.7 on the record.

The conversaton by the prosecution is being reproduced below from Ex. A15 on the record which were in Hindi :

What is relevant in above mentioned conversation read with other conversations which are Ex. B1 and Ex. B2 on the record (copy proved by the defence from the same prosecution by witness) is that these are subsequent to the incident and there has been no talk in the above conversations regarding planning commission of murder of Pankaj Khandelwal. Another point which is to be kept in mind is that according to the prosecution witness this call came from PP (the DON) to Pradeep Khandelwal and not vice versa. If we read all the three conversations than it cannot be ruled out that accused/Appellant Pradeep Khandelwal is making request to the DON that not only he has satisfied demand of money but also lost his brothrr, and also he further pleaded that assailants who are involved in the commission of murder of Pankaj Khandelwal be made to surrender, in reply to this the DON says that he requires money for getting this done. We have also mentioned above in the background of the case that PP had started (much before the incident) extorting money from the businessmen including the accused/Appellant who used to oblige him. It has also come on the record that Pankaj Khandelwal (deceased) did not pay much heed to the demands made by the DON, and particularly after the partition between the two brothers, Bhuppi and Prakash Pandey, (the DON),wanted separate share from the business of Pankaj Khandelwal (deceased). When the extortion money did not reach him in respect of the business run separately by the younger brother, this made PP, the don, call directly to Pankaj Khandelwal who unlike his brother did not pay heed to the demands, and paid the price by losing his life. Everyone is not that bold. It has already been admitted by P.W.1 Rita Khandelwal herself that earlier also (2-3 years before the incident) shots were fired at her husband Pankaj Khandelwal.

Principles of admissibilitv of evidence of tape recorded voice:

On behalf of accused/Appellant PradeepKhandelwal, Shri Abhay Kashayap, drew our attention to the principle of law laid down in Ram Singh and Others Vs. Ram Singh, , and it is argued that following are the principles mentioned in para 32 of said judgment regarding admissibly of tape recorded voice in evidence:

(i) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

(ii) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.

(iii) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(iv) The statement must be relevant according to the rules of Evidence Act.

(v) The recorded cassette must be carefully sealed and kept in safe or official custody.

(vi) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

In the present case P.W.7 constable Abrar Hussain has recognized the voice in the CD., of PP (DON), by making a statement that he has heard him talking when he was arrested in the year 1999. As to the voice of accused/Appellant Pradeep Khandelwal, the evidence adduced by prosecution cannot be doubted for the reason that when the accused/Appellant (Pradeep Khandelwal) was asked to give the voice sample he refused to give the same. The adverse inference in the circumstances can be drawn in the matter. As to the possibility of tempering with the taped conversation, P.W.9 Nityanand Pant, Station House Officer has stated that the conversation was correctly recorded and on the basis of the downloaded conversations in the computer CD Ex. 6 and Ex.7 were prepared. As to the script transcribed in Ex. A15 (quoted above) P.W.7 constable Abrar Hussain has proved the same as the correctly transcribed conversation from the CD. In the circumstances, it cannot be said that Digital Forensic Etiquette was not followed in the present case.

Re: Accused/Appellant Vakeel Ahmad @ Guddu: Evidence/Arguments/Discussion:

P.W.1 Rita Khandelwal, complainant (widow of the deceased) has stated that on 24.01.2006, at about 8:15 P.M., when she alongwith her son and husband was standing out of their shop and getting the shop locked through employees two persons came and fired shots at her husband (Pankaj Khandelwal) who died on the spot. This witness has stated that in December 2006, she was called in Sub-Jail Haldwani, to identify the accused/Appellant Vakeel Ahmad @ Guddu in the Test Identification Parade (T.I.P.), before the Magistrate. She verified her signatures in T.I.P., memorandum (Ex. A4). Also, she identified Vakeel Ahmad in the court.

P.W.5 Mohan Singh Mehra, Hotel Manager of Jagdish Hotel, Haldwani, has stated that on 23.01.2006, three persons came in his hotel and asked for a room. They were given room No. 202 with regard to which one of them made entry in the hotel''s guest register as Guddu Sharma of Leader Road, Allahabad, accompanied with his colleagues namely Lalu and Vikas. He has further stated that the three left the room without getting check out done, and after 4-5 days police was informed about it. When police came, it opened the room and seized three begs from it. P.W.5 Mohan Singh Mehra, Manager of the hotel has further stated that he went in the jail, and participated in the Test Identification Parade. Pointing out accused/Appellant Vakeel Ahmad @ Guddu in the court, he stated that he identified this man correctly in the jail.

P.W.10 Chandra Singh, Sub-Divisional Magistrate, has stated that Rita Khandelwal (P.w.1), and Mohan Singh (P.W.5) correctly identified accused Vakeel Ahmad @ Guddu in the test identification parade held in Sub-jail, Haldwani, and he corroborated the statements of P.W.1 Rita Khandelwal, and P.W5 Mohan Singh. Reading the statement of the three witnesses together, it is sufficiently proved on the record by the prosecution that accused/Appellant Vakeel Ahmad @ Guddu is one of the two persons who fired shot at Pankaj Khandelwal on the day of incident, and he was the person who had stayed in Jagdish Hotel on 23.01.2006, with two others, and left the room alongwith his associates without getting check out done.

Shri Rajesh Sharma, learned Counsel for the accused/Appellant Vakeel Ahmad @ Guddu drew attention of this Court to case of Rajesh Govind Jagesha Vs. State of Maharashtra, and argued that identification parade held after long delay of arrest cannot be relied. The facts of said case are totally different to the present one. In the present case the testimony of the witnesses on the point of identification is clear and unambiguous and trust worthy. Accused/Appellant Vakeel Ahmad has pleaded that he was not kept BAPARDA before transfer from Banaras to Sub-jail Haldwani but it has come in the evidence adduced by the Investigating Officer that the accused was kept BAPARDA (face covered).

Apart from the evidence of the two eye witnesses that they correctly identified accused/Appellant Vakeel Ahmad in the jail, he was identified correctly in the court, and also there is report dated 31.01.2008, (Ex. A16) received from Forensic Science Laboratory, Dehradun, wherein it is mentioned that the similarities were found in the characteristics of the handwriting given in guest register of Jagdish Hotel recorded on 23.01.2006, relating to room No. 202 and the sample handwriting and signatures given by accused/Appellant Vakeel Ahmad @ Guddu in the court. That further corroborates the testimony of the eye witnesses P.W.1 Rita Khandelwal, and P.W.5 Mohan Singh, Manager of the Jagdish Hotel. Learned Counsel forthe accused/Appellant Vakeel Ahmad @ Guddu has failed to explain as to how the accused/Appellant (Vakeel Ahmad @ Guddu) who has given his address of Varanasi in his statement u/s 313 Code of Criminal Procedure , has came to Haldwani, on 23.01.2006, and stayed in Jagdish Hotel.

Having reassessed the entire evidence on record, we concur with the view taken by the trial court that as against accused/Appellant Vakeel Ahmad @ Guddu, prosecution has sufficiently proved the charge. It is also proved on the record that the murder of Pankaj Khandelwal was committed by the accused/Appellant Vakeel Ahmad @ Guddu with his associate.

Conclusion:

For the reasons as discussed above, we are of the view that the charge of offence punishable u/s 302 read with Section 120B IPC, is not proved beyond reasonable doubt as against accused/Appellant Pradeep Khandelwal, as the chain of circumstances is not complete, but the charge of commission of murder of Pankaj Khandelwal by accused/Appellant Vakeel Ahmad @ Guddu is proved beyond reasonable doubt on the record. Accordingly, criminal appeal No. of 74 of 2009 filed by Pradeep Khandelwal deserves to be allowed but the criminal appeal No. 94 of 2009, preferred by accused/Appellant Vakeel Ahmad @ Guddu is liable to be dismissed. Accordingly, criminal appeal No. 74 of 2009 is allowed. Conviction and sentence recorded against accused/Appellant Pradeep Khandelwal in respect of charge of offence punishable u/s 302 read with Section 120 IPC against him by the trial court, is sest aside. He is acquitted of the charge giving him benefit of reasonable doubt. He is in jail. He (Pradeep Khandelwal) shall be set at liberty if not wanted in connection with any other crime. Appeal No. 94 of 2009, filed by accused/Appellant Vakeel Ahmad @ Guddu is hereby dismissed. Conviction and sentence recorded against him by the trial court Sessions Judge, Mainital, in Special Session Trial No. 07 of 2007 is affirmed. He (Vakeel Ahmad @ Guddu) is in jail. He shall serve out remaining part of sentence awarded against him. Let the copy of this judgment be sent to the Superintendent of Jail concerned. Lower court record be sent back.