HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal no. 1501 of 2001 (Old no. 1397 of 1995) Shamim Ahmad alias Pradhan. ------- Accused/appellant. Versus The State. ------- Respondent Sri Hari Om Bhakuni, learned Amicus-Curiae for the accused/appellant, Sri M.A. Khan, learned Brief Holder and Sri Tanuj Semwal, learned A.G.A. for the State. Dated August 13, 2008: Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per (Hon. Prafulla C. Pant, J.):- This appeal, preferred u/s 374 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.), is directed against the judgment and order dated 08.05.1995 passed by learned Addl. Sessions Judge, Roorkee in Sessions Trial No. 27-A/ 1993 whereby the accused/appellant Shamim Ahmad @ Pradhan has been convicted u/s 302 and 201 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced to undergo imprisonment for life and further directed to pay fine of Rs. 1,000/- u/s 302 I.P.C., and one year’s imprisonment and find of Rs. 500/- u/s 201 I.P.C. In default of payment of fine, the accused/appellant is directed to undergo further imprisonment for a period of six months. 2. We have heard Sri Hari Om Bhakuni, learned Amicus- Curiae for the accused/appellant and Sri M.A. Khan, learned Brief Holder & Sri Tanuj Semwal, learned A.G.A. for the State and perused the record. 2 3. The prosecution case, in brief, is that on 29.10.1989 at about 2:15 p.m. a First Information Report (Ext. A-1) was lodged by Iqbal (PW-3) with Police Station Mangalore, District Haridwar that his son Muneer, aged 8 years’ was missing since 21.10.1989. It is further narrated in the First Information Report that while search of the boy was on, he was told that Muneer was seen with one Sattar in a Jungle. It is alleged that Sattar used to ask for money from the complainant who could not fulfill his demand. On 29.10.1989 the dead body of Muneer was found in the southern side of Tara Nai Ka Bag. On receiving the First Information Report; a case crime no. 302/1989 was registered against the Sattar, relating to offence punishable u/s 302 and 201 I.P.C. Investigation of the case was taken up by Sub Inspector V.N. Sharma, who interrogated the witnesses, inspected the site and prepared site plan. He took in his possession bloodstained soil and simple soil from the place of occurrence. After arrest of Sattar, on his pointing out, a knife used in the crime was also recovered. Meanwhile, the dead body was taken in possession and inquest report was prepared. The dead body was sent for postmortem examination. The bloodstained soil and the simple soil was sent for examination to the Forensic Laboratory. After completion of the investigation, it appears that, two separate charge sheets were filed, one against the accused Sattar and another against the four accused, namely, Yashpal, Rashid, Kallu and Shamim (present accused/appellant) relating to offence punishable u/s 302 and 201 I.P.C. 4. The Magistrate, it appears to have committed two cases to the Court of Sessions for trial. 5. After hearing learned counsel for the parties, the learned Addl. Sessions Judge, to whom the case against the present accused/appellant was transferred, framed charge on 18.05.1993 against the four accused Yashpal, Rashid, Kallu 3 and Shamim Ahmad (Present accused/appellant) relating to offences punishable u/s 302 and 201 I.P.C. All the four pleaded not guilty and claimed to be tried. 6. It appears that, the accused/appellant Shamim Ahmad @ Pradhan remained in jail during trial. 7. The prosecution got examined PW-1 Chhota, PW-2 Noor Alam and PW-3 Iqbal. At that stage, the accused/appellant appears to have expressed desire to the trial court to confess the guilt. It appears that thereafter, the Sessions Trial relating to the accused/appellant Shamim Ahmad @ Pradhan was separated. 8. The trial court recorded the statement of the accused/ appellant u/s 313 Cr.P.C. putting him the evidence on record produced by the prosecution, in reply to which the accused/ appellant Shamim Ahmad admitted the evidence adduced by the prosecution and also confessed his guilt. 9. The trial court after hearing the parties, found accused/appellant Shamim Ahmad guilty of the charge of offences punishable u/s 302 and 201 I.P.C. and after hearing on sentence, the accused/appellant was sentenced to undergo imprisonment for life and further directed to pay fine to the tune of Rs. 1,000/- u/s 302 I.P.C. The accused/appellant was further convicted u/s 201 I.P.C. and sentenced to undergo imprisonment for a period of one year and also directed to pay fine to the tune of Rs. 500/-. 10. Sri Hari Om Bhakuni, learned Amicus-Curiae argued that the accused/appellant cannot be convicted on the basis of the admissions made by him in his statement recorded u/s 313 Cr.P.C. We do agree with the argument of learned Amicus- Curiae to the extent that it is the duty of prosecution to prove 4 the charge and the accused cannot be convicted solely on the basis of some of the admissions made by him in his statements recorded u/s 313 Cr.P.C., but in the present case; not only PW- 1 Chhota, PW-2 Noor Alam and PW-3 Iqbal are examined on behalf of the prosecution but also the accused/ appellant Shamim Ahmad @ Pradhan himself moved an application from Jail on 26.04.1995 expressing his desire to plead for the guilty. It appears that learned Addl. Sessions Judge (trial court) took all precautions and did not record his plea on that day. The endorsement on the application dated 26.04.1995 (paper no. 10-Ga of the trail court record) shows that the trial court passed following orders on the application received from the Jail:- “Put up on 01.05.1995. Accused to reconsider it. (Sd.) 26.04.1995.” 11. It appears that even on 1st May 1995, the trial court avoided to record the confessional statement of the accused/ appellant and again one more opportunity was provided to the accused/appellant to reconsider his request for confessing the guilt. The remand memo u/s 309 Cr.P.C. on the trial court’s record shows that on 01.05.1995 and again on 03.05.1995 the accused/appellant Shamim Ahmad @ Pradhan was called from the Jail in the Court and only thereafter on 05.05.1995 i.e. on the 3rd date fixed the trial court recorded the statement of the accused/appellant u/s 313 Cr.P.C., after prosecution evidence was closed, putting the prosecution evidence to him. The accused/appellant Shamim Ahmad @ Pradhan admitted all the evidence adduced by the prosecution in his statement recorded u/s 313 Cr.P.C. on 05.05.1995. Not only that; he confessed his guilt in clear cut words, which is evident from the replies given by him to the question nos. 8, 13 and 14. These questions and their answers recorded by the trial court are being reproduced as below:- 5 “ iz’u ua0-8 vfHk;kstu lk{; esa vk;k gS fd vfHk;ksxh us vius yM+ds dks ryk’k fd;k yM+dk ugha feyk] fnukad 29-10-89 dks rkjk ukbZ ds ckx ds ikl dksBjs ij vkids o vkids lkfFk;ksa ds lqiqnZ equhj dks dj fn;kA bl ckjs esa D;k dguk gSA mRrj%& lRrkj] equhj dks mBkdj yk;k Fkk rFkk gekjs gokys mlus dj fn;kA ----------------------------------------------------------------- iz’u ua0-13 vfHk;kstu i{k dk dFku gS fd vkius vius lkfFk;ksa ds lkFk feydj :Ik;k u feyus ij equhj dh gR;k dj nh o yk’k rkjk ukbZ ds ckx ds nf{k.k esa Qsad nhA bl ckjs esa D;k dguk gSA mRrj%& th gkWA eSaus o esjs lkfFk;ksa us equhj dh gR;k :i;s u feyus ij dh o yk’k dks rkjk ukbZ ds ckx ds nf{k.k esa Qsad fn;kA iz’u ua0-14 vfHk;kstu i{k dk dFku gS fd vkius vius lkfFk;ksa ds lkFk "kM+;a= djds :i;s ekaxus ds fy, fpV~Bh fy[khA bl ckjs esa D;k dguk gSA mRrj%& th gkW] lgh gSA””” 12. Prosecution evidence read with the above mentioned replies of the accused/appellant Shamim Ahmad @ Pradhan clearly establish the charge framed against the accused/ appellant Shamim Ahmad @ Pradhan. The trial court, while recording the statements u/s 313 Cr.P.C. on 05.05.1995, has made another expression of endorsement that before the accused/appellant confessed the guilt, he was cautioned that if he did so, such confession can be read against him, still he confessed his guilt. 13. Having gone through the papers on the Lower Court’s Record and after considering the submissions made on behalf of the accused/appellant and the prosecution, we do not find any error of law or error in appreciating evidence, committed by the trial court in convicting the accused/appellant Shamim Ahmad @ Pradhan for the offences punishable u/s 302 and 201 I.P.C. and sentencing him as above. 14. For the reasons as discussed above, this appeal is liable to be dismissed and the same is dismissed. 6 15. Let a copy of this judgment, alongwith the record of the Court below be sent back to the trial court. Registry is directed to send a copy of this judgment also to the Superintendent Jail concerned. (Dharam Veer, J.) (Prafulla C. Pant, J.) 13.08.2008 NCM: