IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 679 OF 2001 (Old No. 1985 of 2000) Noor Ahmad ………….Appellant. (In Jail) Versus State …..Respondent. Present:- Sri A.D. Tripathi, Advocate for the appellant. Sri M.A. Khan, Brief Holder for the State. And CRIMINAL APPEAL NO. 887 OF 2001 (Old No. 112 of 2000) 1. Rifaqat, 2. Shamsher ………….Appellants. (In Jail) Versus State …..Respondent. Present:- Smt. Gaura Devi Dev, Advocate (Amicus Curiae) for the appellants. Sri M.A. Khan, Brief Holder for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral) 1. Both these appeals are directed against the judgment and order dated 7.8.2000, passed by 3rd Additional Sessions Judge, Haridwar, in Session Trial No. 455 of 1993, whereby said court has convicted the appellants Noor Ahmad, Rifaqat and Shamsher under Section 302 of Indian Penal Code, 1860 (for short, IPC), and directed each one of them to imprisonment for life. Each one of the convicts has further been directed to pay fine of ` 1,000/-, in default of payment of 2 which, the defaulter convict is required to undergo further three months’ imprisonment. 2. Heard learned counsel for the appellants, learned Amicus Curiae and learned counsel for the State, and perused the lower court record. 3. Prosecution story, in brief, is that on 14.10.1992, at about 10.05 A.M., P.W. 1 Saleem lodged a First Information Report (Ex. A-1) at Police Station Jwalapur. It is disclosed in the First Information Report that Naseem (deceased), aged around 25 years, had gone on 13.10.1992 to see a match of KABADDI in village Ratanpur. About one month before the day of incident, daughter of one Liyakat was eloped by some people, in which police arrested later Jabir, Sabir and Jakir (brothers of appellants). The accused appellants, namely, Noor Ahmad, Rifaqat and Shamsher suspected that Naseem had got the above three arrested. In the intervening night of 13-14 of October, 1992, when Naseem was coming, around 1.00 A.M., towards his village, accused appellants, namely, Noor Ahmad, Rifaqat and Shamsher dragged him towards sugarcane field of Sayeed. They were armed with PALKATI (heavy sharp edged weapon) and knives. All the three (accused-appellants) assaulted Naseem, and killed him on the spot. The incident was witnessed by P.W. 2 Jameel and P.W. 3 Niyadar, who were also coming after enjoying the KABADDI match in village Ratanpur, with Naseem. P.W. 3 Niyadar, immediately after the incident, ran to the village, and informed P.W. 1 Saleem (brother of the deceased) about the incident. On this, Saleem came at the spot. Since it was night, and police station was 20 kilometers away, they remained there till morning hours, whereafter, Saleem went to Police Station Jwalapur, and after getting scribed First Information Report 3 (Ex. A-1) through Islam, gave it at the police station. On the basis of the said report, police registered Crime No. 452 of 1992 relating to offence punishable under Section 302 IPC, against all the three accused, namely, Noor Ahmad, Rifaqat and Shamsher. The police party went to the spot. P.W. 6 Sub Inspector R.P. Mishra started investigation. An Inquest Report (Ex. A-2) was prepared by the police. On 14.10.1992, at about 10.45 A.M. The Investigation Officer got further prepared letter to Chief Medical Officer (Ex. A 16 requesting for post-mortem examination), Police Form No. 13 (Ex. A 18), sketch of the dead body (Ex. A 19) and Sample Seal (Ex. A 11). P.W. 7 Constable Meharban Ali took the dead body in a sealed condition for post- mortem examination. P.W. 4 Dr. T. C. Parmar conducted post- mortem examination, on 15.10.1992, on the body of Naseem, and prepared Autopsy Report (Ex. A 12). He recorded as many as 17 incised ante mortem injuries on the body of the deceased. He opined that the deceased had died of shock and haemorrhage, as a result of ante mortem injuries. After interrogating witnesses, and completion of investigation, police submitted charge-sheet (Ex. A 26) against all the three accused, namely, Noor Ahmad, Rifaqat and Shamsher. Blood stained soil and simple soil were also taken from the spot during investigation by P.W. 5 Inspector Bijendra Singh, who prepared Memorandum (Ex. A 21). 4. The Magistrate, on receipt of the charge-sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed to the court of Sessions for trial. Learned 3rd Additional Sessions Judge, Haridwar, on 1.5.1995, after hearing the parties, framed charge of offence punishable under Section 302 IPC, against all the three accused, namely, Noor Ahmad, Rifaqat and Shamsher. They 4 pleaded not guilty, and claimed to be tried. On this, prosecution got examined P.W. 1 Saleem (complainant), P.W. 2 Jameel (eye-witness and brother of deceased), P.W. 3 Niyadar (eye-witness), P.W. 4 Dr. T.C. Parmar (who conducted post- mortem examination), P.W. 5 Inspector Bijendra Singh (in whose presence, the crime was registered, and who also inspected the spot, and got prepared Inquest Report), P.W. 6 Sub-Inspector R.P. Mishra (who investigated the crime) and P.W. 7 Constable Meharban Ali (who took the dead body in a sealed condition for post-mortem examination). Oral and documentary evidence were put to the accused under Section 313 Cr.P.C., in reply to which, they alleged the same to be false. They pleaded that they have been falsely implicated due to enmity. They also pleaded that eye-witnesses are relatives of complainant. However, no evidence in defence was adduced. The trial court (3rd Additional Sessions Judge, Haridwar), after hearing the parties, found all the three accused, namely, Noor Ahmad, Rifaqat and Shamsher guilty of charge of offence punishable under Section 302 IPC. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life, and directed to pay fine of ` 1,000/-. Aggrieved by said order, these two appeals were filed by the convicts, before the Allahabad High Court, from where the same are received under Section 35 of the U.P. Reorganisation Act, 2000, for their disposal. 5. Before further discussion, we think it just and proper to mention the ante mortem injuries, recorded in Autopsy Report (Ex. A 12), by P.W. 4 Dr. T.C. Parmar. The same are being reproduced below :- “1. Incised wound 8 cm. x 1 cm. x bone deep, longitudinal on right side of head, 7 cm. 5 above the right ear. The underlying bone is cut and depressed. 2. Incised wound 9 cm. x 1cm x bone deep, longitudinal, 3 cm. left to injury no. 1, underlying bone is cut. Tailing backward. 3. Incised wound 6 cm. x 1cm. x bone deep, longitudinal, 1.5 cm. left to injury no. 2. Underlying bone is cut, tailing backward. 4. Incised wound 6 in number of varying size from 3 cm. x 1 cm. x bone deep to 1 cm. x 0.5 cm. x bone deep transverse on the back side of head in an area of 6 cm. x 4 cm. 5. Incised wound 3 cm. x 1 cm. x muscle deep on right side of neck, transverse 3 cm. below the angle of right mandible. 6. Incised wound 9 cm. x 4 cm. x cervical vertebra deep, transverse, in front of neck, trachea and oesophagus is cut and protruding outside. Tailing to left. 7. Incised wound three in number, of varying size from 3 cm. x 0.5 cm x muscle deep on left side face in an area of 3 cm. x 3 cm. 8. Incised wound four in number, of varying size from 3 cm. x 2 cm. x bone deep to 1.5 cm. x 0.5 cm. x bone deep on back side of left elbow joint, transverse, the gent is cut in an area of 8 cm. x 7 cm. 9. Incised wound 3 cm. x 1 cm. x bone deep, transverse, on the lateral side of right wrist. 10. Incised wound 1 cm. x 0.5 cm. x bone deep on anterior side of right forearm, 4 cm. above the right wrist joint. 6 11. Incised wound 1 cm. x 0.5 cm. x bone deep on right elbow. 12. Incised wound 3 cm. x 1 cm. x muscle deep on the right side, at the root of the penis. 13. Incised wound 3 cm. 1 cm. x muscle deep on the left side at the root of penis. 14. Incised wound five in number, of varying size from 2 cm. x 0.5 cm. x bone deep to 1 cm. x 0.5 cm. x bone deep on the inner side of lower part of the right leg, transverse, in an area of 8 cm. x 5 cm. 15. Incised wound 2 cm. x 1 cm. x bone deep on anterior part of left leg 4 cm. above the left ankle joint. 16. Incised wound 3 cm. x 1 cm. x muscle deep, longitudinal, on the right palm. 17. Incised wound 2 cm. x 5 cm. x muscle deep on the upper lip on left side, transverse. 6. The Medical Officer (P.W. 4) Dr. T.C. Parmar has opined that the deceased has died of shock and haemorrhage, as a result of ante mortem injuries. The aforesaid medical evidence clearly establishes on record that deceased (Naseem) was brutally murdered. Now, we have to see, whether the deceased was murdered by the accused/appellants, in the manner suggested by the prosecution. 7. P.W. 1 Saleem is complainant, who has himself not seen the incident. He has stated that in the intervening night of 13th/14th of October, 1992, he was told by Niyadar (P.W. 3) that Naseem has been murdered by the three accused, namely, Noor Ahmad, Rifaqat and Shamsher. The witness has further stated 7 that though he went at the spot in the night, but he could not dare to go in the odd hours to lodge First Information Report. Only in the morning, he went to the police station, and lodged First Information Report (Ex. A 1), which he got scribed through one Islam. He has identified the handwriting of the scribe, and his (P.W.1) signatures, on the report. 8. P.W. 2 Jameel is eye-witness and brother of the deceased. He states that on the day of incident, accused appellants, namely, Noor Ahmad, Rifaqat and Shamsher caught Naseem, and dragged him, and assaulted him with PALKATI (heavy sharp edged weapon) and knives. The witness has further stated that accused Noor Ahmad was armed with PALKATI, while Rifaqat and Shamsher were armed with knives. P.W. 2 Jameel has further stated that in the night, when the incident took place, he along with his brother Naseem and others was coming back, after watching KABADDI match in village Ratanpur. He further states that he and Niyadar (P.W. 3) shouted for help, but could not do anything, as they (P.W. 2 and P.W. 3) were unarmed. As to the motive for commission of crime, P.W. 2 Jameel states that in Laksar, there had been an incident of eloping a girl, in which Jabir, Jakir and Sabir, brothers of the accused appellants, were arrested in connection with the said case, due to which the accused appellants suspected role of Naseem in disclosing the names of the brothers of the accused appellants, and for that reason, they dragged and killed Naseem. This witness has been subjected to lengthy cross-examination, but nothing has come out, which creates doubt, in his testimony. 9. P.W. 3 Niyadar, another eye-witness, has fully corroborated prosecution story, and stated that at the time of 8 the incident, accused appellants, namely, Noor Ahmad, Rifaqat and Shamsher dragged Naseem, and killed him with PALKATI (heavy sharp edged weapon) and knives. The witness has further stated that Saleem (P.W. 1, brother of the deceased) initiated a criminal case against him (P.W. 3), which is still pending. This fact shows that he (P.W. 3) is an independent witness, as he had no interest with Saleem or Naseem to implicate the accused appellants. 10. On behalf of the appellants, it is argued by the learned counsel for the appellants, and the learned Amicus Curiae that there is no source of light, suggested by prosecution, in which eye-witnesses could see the accused appellants committing the crime. We have already discussed above that it has come on the record that it was a moon lit night, when the accused appellants were seen by the eye- witnesses, committing the crime. From the record, it is clear that all the accused appellants and the eye-witnesses belong to same village Margubpur. Since the witnesses and the accused were known to each other, in the moon lit night, there could be no difficulty in identifying the accused, at the time of commission of crime. 11. It is further contended on behalf of the appellants that no specific role has been assigned to the accused appellants. We have carefully gone through the evidence on record, and perused the nature of the injuries, and the arms with which the accused are said to have been armed. We find that all the three accused have allegedly committed murder of Naseem, by inflicting blows with knives and PALKATI (heavy sharp edged weapon). The nature of the injuries, and the number of injuries, corroborate the statement of the eye- 9 witnesses, on this point. When three persons are simultaneously killing a person, it is difficult for the eye- witnesses to say, which of the seventeen injuries was caused by whom. 12. It is also argued on behalf of the appellants that it is strange that the eye-witnesses witnessed the crime but they did not save Naseem. We do not find force in the argument for the reason that the witnesses were unarmed, while the accused appellants were armed with deadly weapons. It is also pointed out that no cut/tear is shown in the KURTA and PAIJAMA of the deceased, and this creates doubt that Naseem was killed in the manner suggested by the prosecution. Most of the injuries are in the open part of the body. It has further been narrated by the witnesses that when the injuries on the private parts were caused, the trousers of the deceased was lowered up to the knee. In the circumstances, we feel that there is sufficient explanation for there being no mark of cut/tear in the cloths. 13. Having re-appreciated the entire evidence on record, and for the reasons, as discussed above, we concur with the view taken by the trial court that charge is proved against accused appellants beyond reasonable doubts, and find no substance in these appeals. 14. Accordingly, both the appeals are dismissed. Conviction and sentence recorded by the trial court against the accused appellants, namely, Noor Ahmad, Rifaqat and Shamsher is affirmed. They are on bail. Their bail is cancelled. Lower court record be sent back to make the accused appellants serve out the sentence awarded by the trial court. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 20.12.2010 Avneet