IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 145 of 2004 Anwar … Appellant Vs State of Uttaranchal (Now Uttarakhand) … Respondent Sri Manish Arora, Advocate for the appellant Sri Nandan Arya, learned A.G.A. for the State/respondent Coram: Hon’ble B.C. Kandpal,J. Hon’ble Nirmal Yadav, J. [(Judgment Per: B.C. Kandpal, J. (Oral)] This appeal has been preferred by the accused/appellant – Anwar against the Judgment and order dated 17.04.2004 passed by learned Additional Sessions Judge, Roorkee, District Haridwar in Sessions Trial No. 114 of 2004, State Vs Anwar thereby convicting the appellant under Section 302 of I.P.C. and sentencing him for life imprisonment. 2. Brief facts of the case are that Smt. Rashida lodged a complaint on 04.10.2001 at 07:30 a.m. alleging therein that at about 02:00 a.m., when she was sleeping on the roof of the house her husband – Anwar came to her and told her that he had killed his son – Dilshad. On this, she came down the stairs and saw that his son was lying on the cot. She got scribed the report by Nasir Ahmad and submitted the same at police station. On the basis of the written report a case was registered at police station Manglore as Crime No. 288 of 2001 under Section 302 of I.P.C. The police inspected the spot and prepared the site plan (Ext. Ka. 4). The dead body of the deceased was taken into custody and sent for autopsy. The police prepared the Fard recovery of Spade (Fawra) (Ext. Ka. 3) and also taken the blood-stained soil (Ext. Ka. 2) into 2 possession. Sri Ajay Chauhan, investigated the matter and after completing the investigation, submitted the chargesheet against the accused/appellant before the court concerned. 3. After submission of chargesheet, the Judicial Magistrate, Roorkee committed the case to the court of Sessions for trial and the trial court framed the charge under Section 302 of I.P.C. against the accused/appellant. The appellant/accused denied the charges levelled against him and claimed for trial. 4. In order to support its case the prosecution has produced Smt. Rashida (P.W.1) – complainant and mother of the deceased, Anwari – (P.W.2) – sister of the deceased, Kalu (P.W.3) – brother of the deceased, Chota (P.W.4) – brother of the deceased, Nafis (P.W.5), Jahir Hasan (P.W.6), Ajay Chauhan (P.W.7) – Investigating Officer, Dr. O.P. Sharma (P.W.8) – who conducted the postmortem of the deceased, Uma Shankar Sharma (P.W.9) – Retired A.S.I., Nasir Ahmad and Mohd. Irfan (P.W.11). 5. The oral and documentary evidence was put to the accused/appellant – Anwar under Section 313 of Cr.P.C., in reply of which he alleged the same to be false. However, no evidence in defence was adduced. 6. The trial court after hearing the parties, found accused/appellant Anwar guilty and convicted him u/s 302 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced to undergo imprisonment for life. 7. Aggrieved by said judgment and order dated 17.04.2004, passed by learned Additional Sessions Judge, 3 Roorkee, in Sessions Trials No. 114 of 2002, the accused/appellant has preferred this appeal before this Court. 8. Heard Sri Manish Arora, learned counsel for the appellant, Sri Nandan Arya, learned A.G.A. for the State and perused the record. 9. The prosecution has produced Smt. Rashida as P.W. 1. This witness has stated in her deposition that on the date of occurrence she was sleeping on the roof of her house. She heard the noise of her neighbourer and came down the stairs and found that her son – Dilshad was lying dead on the cot. She did not know as to who murdered Dilshad. She has also stated that she did not lodge any such complaint against her husband. She has admitted this fact that her husband was in the custody of police. She has also deposed that her neighbour took her to the police station and she put thumb impression on one or two papers there. She has also stated that she is illiterate. She has also stated that she did not know to any Nasir Ahmad. She has admitted this fact that she is the wife of accused – Anwar and she has denied that her husband killed her son – Dilshad. 10. The prosecution further produced Anwari as P.W.2. This witness has stated that the deceased was his brother and she had seen her brother lying dead on the cot. She has also stated that there was injury on the neck of the deceased and that wound was perpetrated with some blunt object. 11. The prosecution has further produced Kalu and Chota as P.W. 3 and 4. These two witnesses are the real brother of the deceased and sons’ of the accused/appellant – 4 Anwar. Kalu (P.W.3) has stated in his deposition that he was not present in the house on the date of occurrence. However, he has stated that the deceased – Dilshad was not a good person, he used to quarrel with his father (accused). This witness has also stated that he does not know, who committed the murder of Dilshad. He has also stated that Dilshad (deceased) was living separately from his father. Chota (P.W.4) has also stated in his evidence that he does not know who killed Dilshad. 12. The prosecution has produced Nafis as P.W.5. This witness has stated on the date of occurrence, police came at the spot and prepared Panchayatnama of the dead body of the deceased and took the dead body of the deceased into custody. This witness proved the Panchayatnama. The prosecution produced Jahir Hasan as P.W.6 is the witness of recovery of Spade (Fawra). This witness has stated in his deposition that Darogaji came at the spot and took blood stained and plain sand into possession and prepared Fard of the same. He has further stated that he signed in a paper but he don’t know what was written in the same. Sri Ajay Chauhan (P.W.7) conducted the investigation of the case and submitted the chargesheet against the accused. 13. Dr. O.P. Sharma (P.W.8) conducted the postmortem of the deceased on 04.10.2001 at 03:00 p.m., at District Hospital, Haridwar. He has opined that the deceased was young boy of about 19 years of age. He has found following ante-mortem injuries on the body of the deceased:- i) Incised wound 6.5cm X 3.5 cm X cervicle vertibra deep left side neck, 3cm below left ear muscle and vessel of left side neck cut (carotid artery cut). 5 ii) Incised wound 5cm X 2.5cm X bone deep on left supra scapular region. iii) Multiple abraded contusion in an area of 8cm X 7cm on top and front of left shoulder. iv) Incised wound 13cm X 1.5cmXmuscle deep, 2cm below injury No. 2. v) Incised wound 3cm X 0.5cm X flesh deep on left scapular region 7cm below injury No. 4. 14. Besides the above injuries, the doctor further opined on internal examination that both the chambers of heart were empty and carotid artery was cut. In the opinion of the doctor the death was caused half-one day before. He has also opined that the death was caused due to ante- mortem injuries sustained by the deceased. 15. Uma Shankar Sharma (P.W.9) was engaged as A.S.I. at police station Manglore on the date of occurrence. This witness has stated that he prepared the Panchayatnama of the deceased and took the signature of the witnesses on it. He took the plain and blood stained earth from the place of occurrence and prepared the Fard. He also prepared the Fard of Spade (Fawra) and took the thumb impression of the witnesses. Another witness Mohd. Ifran (P.W.11) has stated in his deposition that Darogaji obtained his signature on a paper, but he did not read that paper. 16. Nasir Ahmed (P.W.10) has stated in his testimony that on 04.10.2001, Dilshad S/o Anwar had been murdered. He was called by son-in-law of Rashida. He has also stated that on the basis of oral transcription of Rashida, he scribed the report of the incident, on which she put her thumb impression. He has also singed the same as a scribe of the 6 report. This witness has further stated that after the occurrence, the police reached at the spot and prepared the Panchyatnama Ext. Ka. 1 and he had singed the same. He has also stated that he scribed the Report at the house of Rashida in the morning at about 08/09:00 a.m. in the presence of Rafeek and other persons were also present at there. 17. Learned counsel for the appellant has submitted that it is a case of circumstantial evidence and the prosecution has miserably failed to establish the complete chain of circumstances. He has submitted that the statement of witnesses do not appear to be trustworthy. He has further submitted that Rashida (P.W.1), Anwari (P.W.2, Kalu(P.W.3) and Chota (P.W.4) are the family members of the deceased - Dilshad as well as accused/appellant – Anwar. All these witnesses are highly interested witnesses. He has further stated that the First Information Report was scribed by Nasir Ahmad (P.W.10) on the saying of Rashida (P.W.1), but she has categorically denied having reported the matter to the police. Therefore, the contradiction in the deposition of witnesses clearly shows that the prosecution has failed to prove the guilt of the accused/appellant beyond reasonable doubt and the conviction and sentence is liable to be set aside. 18. Now, this Court has to see whether the prosecution has successfully proved that deceased Dilshad was murdered by his father accused/appellant Anwar, as held by the trial court. It is pertinent to mention here that it is a case of circumstantial evidence, as no eyewitness of occurrence is there in the present case. 7 19. This case is based on the First Information Report lodged by Smt. Rashida (P.W.1) – wife of the accused – Anwar who specifically stated in the report that her husband told her in the night at about 02:00 a.m. that he had killed his son – Dilshad and when she came down stairs then found that Dilshad was lying dead at the cot. The report of this incident was lodged on 04.10.2001 at 07:30 a.m. while the incident is alleged to have taken place on 04.10.2001 in the night at 02:00 a.m. 20. The prosecution in order to bring the guilt of accused to home produced Smt. Rashida (P.W.1), Anwari (P.W.2), Kalu (P.W.3) and Chota (P.W.4) as witnesses of the fact. Smt. Rashida was examined before the court, but she did not support the prosecution case. She had stated that she cannot tell as to who murdered Dilshad. She has also stated that she cannot tell as to when and by whom the report was lodged at police station. She has also stated that she woke up after hearing the noise and when she came down the stairs, saw her son – Dilshad lying dead on a cot. 21. Further the prosecution produced Anwari (P.W.2) who is the daughter of accused – Anwar. She has also not supported the prosecution case and has stated that she saw in the next morning that her brother was lying dead and some unknown persons had killed him. She has also stated that she cannot tell whether Anwar had killed his brother or not. This witness has further stated that at the time of the incident she was already married and she had been staying in her in-laws place. 22. The prosecution further produced Kalu (P.W.3) who is the brother of the deceased and has stated that he cannot 8 tell as to how Dilshad was murdered. He has also stated that his father and Dilshad had not good relations with his father and they used to quarrel each other daily. As far as the factum of the murder of Dilshad is concerned, this witness could not through any light on this aspect and he has also been declared hostile. 23. The prosecution has also produced Chota (P.W.4) who has also stated that he cannot tell as to who murdered Dilshad. He has stated that his father did not murder Dilshad. This witness has also been declared hostile by the prosecution. 24. Apart of the aforesaid aspect that all the witnesses of fact did not support the prosecution case, at the same time all the witnesses have stated that Dilshad (deceased) used to reside separately from his father. Therefore, the position is quite clear that the prosecution could not establish the guilt of the accused beyond reasonable doubt and it is not clear as to whether the accused/appellant had in fact murdered Dilshad. 25. The prosecution has further produced two witnesses Jahir Hasan (P.W.6) and Irfan (P.W.11) who are the witnesses of the recovery of the weapon – Spade (Fawra), with which it is alleged that the murder was caused. But these two aforesaid witnesses have also turned hostile. Zahir Hussain has stated that no recovery of Spade (Fawra) at the pointing out of accused – Anwar was made in his presence. He has stated that Sub-Inspector of Police obtained his signature on a paper but he cannot tell as to what was scribed on that paper. Another witness Irfan (P.W.11) has also stated that the recovery of alleged Spade (Fawra) was not 9 made in his presence. He has stated that Darogaji obtained his signature on a paper but he did not read that paper. Therefore, the prosecution also could not establish the recovery of Favra at the pointing out of accused. 26. By way of any plausible and cogent evidence, the trial court has passed the conviction against the accused only on the basis of the deposition of witness – Nasir Ahmad (P.W.10) who is the scribe of the First Information Report. This witness has stated that he scribed the First Information Report on the saying of Smt. Rashida. He proved the First Information Report (Ext. Ka. 1). He has stated that he scribed the First Information Report at the house of Rashida in the morning at about 08/09:00 a.m. 27. Merely, by the statement of this witness, the conviction cannot be warranted, especially, under the circumstance when Rashida (P.W.1) has completely denied the First Information Report. She has specifically stated that she never lodged any report at police station and she cannot tell as to when and how and by whom the report was lodged at the police station. The testimony of Nasir Ahmad (P.W.10), who is the scribe the First Information Report, remains uncorroborated and on the basis of the uncorroborated evidence of Nasir Ahmad, the conviction of the accused under Section 302 of I.P.C. does not appear to be reasonable and convincing. The prosecution from any corner could not establish the guilt of the accused beyond reasonable doubt and under these circumstances; we are of the definite view that there is no clinching and cogent evidence available on record, connecting the accused/appellant – Anwar with the commission of crime. It is not the case of the prosecution 10 that the accused/appellant was the only person staying in the house in the night of the occurrence. Apart of the accused/appellant, Smt. Rashida, Anwari, Kalu and Chota had also been staying in the same house in the night of the occurrence. Therefore, it cannot be said that it was accused/appellant – Anwar who was present in the house all alone and there is a possibility that someone else could have committed the murder of Dilshad except the accused/appellant. 28. For the reason stated above, we are of the definite opinion that the prosecution utterly failed in establishing the guilt of the accused/appellant beyond reasonable doubt and there is no evidence available on record, which connects the accused/appellant – Anwar with the commission of crime. 29. Hence, the appeal is allowed. The impugned judgment and order dated 17.04.2004 thereby convicting the accused/appellant under Section 302 of I.P.C. and sentencing him for life imprisonment is hereby set aside. 30. Accordingly, the accused/appellant is acquitted of the offence under Section 302 I.P.C. levelled against him. The accused/appellant is in jail. Hence, the accused/appellant be released forthwith, if not wanted in any other case. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 10.06.2010 ASWAL