IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of the Case. Date of decision: 26.03.2008 Criminal Appeal No. 747 of 2001 (Old No. 579 of 1991) A.F.R. (Approved for Reporting) Not approved for Reporting (Initial of Judge) Date: 26.03.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 747 of 2001 (Old No. 579 of 1991) Mohd. Shamim alias Mohd. Yasin S/o Mohd. Shafi R/o Village Mustafabad Roorkee Saharanpur. ……Appellant. Versus State ………Respondent. Shri Raman Kumar Sah, Amicus Curiae, for the appellant. Shri Amit Bhatt, learned Additional Government Advocate for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per:- Hon’ble Prafulla C. Pant, J. This criminal preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 29.01.1991, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 111 of 1988, whereby the accused/appellant Mohd. Shamim alias Mohd. Yasin is convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and sentenced to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that Km. Zarina alias Kallo (P.W. 3) is daughter of Salimuddin (deceased), resident of Village Hasanpur, P.S. Sahaspur, District Dehradun. Accused/appellant Mohd. Shamim was Imam of the mosque in the village. Lost in love, Mohd. Shamim, was after Km. Zarina alias Kallo and wanted to marry her. His proposal for marriage was turned down by Salimuddin, who considered him (Mohd. Shamim) to be of immoral character as Mohd. Shamim had taken another girl Km. Parisha of the village out for joy trip. Salimuddin raised voice against the conduct of Mohd. Shamim and got ousted from the village as well as from the mosque. On this, Mohd. Shamim went to Village Bhoop Pur, Paonta Saheb (Himachal Pradesh), which is a place at a distance of 25 Kms. from Village Hasanpur and he became Imam of Mosque of said village. After his ouster from village Hasanpur, accused/appellant Mohd. Shamim, started harbouring enmity with Salimuddin (deceased). In the intervening night of 23/24-7-1998, Salimuddin was sleeping in his house. His wife Hasina and daughter-Km. Zarina alias Kallo (P.W. 3) were sleeping in a near by cot. At about 1:00 a.m., the two mother and daughter woke up hearing the screams of Salimuddin. They saw Salimuddin in a pool of blood. The two also saw a person running outside. P.W. 9 Mohd. Hanif (son of the deceased) who was sleeping in the vicinity also woke up on hearing the shouts and saw a person fleeing. He tried to chase the person but failed to apprehend as the person running escaped in the darkness. Zeer Mohd. (P.W. 7), Pradhan of the Village, was informed by Irfan, Irshad and Iqbal, brothers of Hanif. First Information Report was got scribed through Zeer Mohd. by Hanif, which was lodged with P.S. Sahaspur, at 6:15 a.m. (on 24.07.1988). The distance between the Village Hasanpur and P.S. Sahaspur is 8 Kms. Constable Brahmanand (P.W. 10) prepared check report (Ext. A-6) of the First Information Report and made necessary entry in the general diary, at serial number 5 (copy of the extract is Ext. A-7). Though the original First Information Report is said to have been lost and the same was not produced in the court, it is pertinent to mention here that from the check report, it is clear that no one was named in the First Information Report. On the basis of said report, crime No. 62 of 1988, was registered relating to offence punishable under Section 302 I.P.C. Sub-Inspector Jagmohan Tyagi (P.W. 11) took up the investigation. He along with Sub-Inspector Ashok Kumar and other police officials went to the spot. They seized a blood stained axe (Ext. 1), lying under the cot of the deceased and prepared memorandum (Ext. A-1). They also took the blood stained mattress, pillow etc (Ext. 2 to Ext. 11) and prepared memorandum (Ext. A- 2). Blood stained soil and simple soil is also collected from the floor and memorandum (Ext. A-3) was prepared. Thereafter, police took the dead body of Salimuddin in their possession and prepared inquest report (Ext. A-5). The investigating Officer also prepared site plan (Ext. A-8) of the spot. Sketch of the dead body (Ext. A-15), sample seal (Ext. A-14), police form (Ext. A-13), and letter to Chief Medial Officer for post mortem examination were prepared by the police and dead body was sent in a sealed cover for post mortem examination. Dr. V.P. Misra (P.W. 6), a Medical Officer of Coronation hospital, Dehradun, conducted post mortem examination at 4:10 p.m. on the very day i.e. 24.07.1988. He prepared post mortem report (Ext. A-4) and opined that the deceased had died on account of shock and haemorrhage due to ante mortem injuries. During investigation, it was revealed that accused/appellant Mohd. Shamim made extra judicial confession on 25.07.1988 to Mohd. Yusuf (P.W. 1) and Jabir Hussain (P.W. 2) in Village Bhoop Pur that he had committed a sin by killing Salimuddin due to infatuation with his daughter Km. Kallo. He also told them that a barber, Mohd. Islam of Village Kulhal accompanied him. It was also revealed by Mehfooz Ali (P.W. 5), who succeeded as Imam of mosque of Village Hasanpur that he (Mohd. Shamim) made him clear that he would kill Salimuddin, as he had not let him get married to Km. Zarina alias Kallo. According to the prosecution, after arrest of accused/appellant Mohd. Shamim, and co-accused Mohd. Islam, on their pointing out, a knife (Ext. 13) was recovered on 26.07.1988, and recovery memo (Ext. A-3/1) was prepared by Sub-Inspector Ashok Kumar. After completion of investigation, Investigating Officer submitted charge sheet (Ext. A-11) against accused/appellant Mohd. Shamim and co-accused Mohd. Islam, for their trial in respect of offences punishable under Section 302 and 120 B I.P.C. 4. The Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 Cr.P.C. committed the case to the Court of Sessions for trial. On 03.11.1988, the then Sessions Judge, Dehradun, after hearing the parties, framed charge offence, punishable under Section 302 I.P.C. against accused/appellant Mohd. Shamim and that of offence under Section 302 read with Section 34 I.P.C. against co-accused Mohd. Islam. Both pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Mohd. Yusuf (before whom extra judicial confession is made), P.W. 2 Jabir Hussain (another witness before whom extra judicial confession is made by accused/appellant Shamim), P.W. 3 Zarina alias Kallo (daughter of the deceased), P.W. 4 Jahid Hasan (witness of recovery of knife-Ext. 13), P.W. 5 Mehfooj Ali (witness to whom accused/appellant told that he is going to kill Salimuddin), P.W. 6 Dr. V.P. Misra (Medical Officeer, who conducted post mortem examination on the dead body of Salimuddin), P.W. 7 Zeer Ahmad (scribe of the First Information Report), P.W. 8 Mohd. Islam (son of Mohd. Shafiq, witness before whom recovery of blood stained clothes, blood stained soil was made from the spot), P.W. 9 Hanif (informant and son of the deceased), P.W. 10 Head Constable Brahmanand (who prepared check report- Ext. A-6 of the First Information Report and made necessary entry in the general diary, extract of which is Ext. A-7), P.W. 11 Sub-Inspector Jagmohan Tyagi, Investigating Officer and P.W. 12 Constable Poshaki Lal (who has proved that the First Information Report was sent to the court and Circle Officer and an entry was made by this witness, a copy of which is Ext. A- 12). Oral and documentary evidence was put to the accused under Section 313 Cr.P.C. to which they alleged to be false. It is alleged by them that they have been implicated due to enmity. However, no evidence is given in defence. After hearing the parties, the trial court found accused Mohd. Shamim guilty of charge of offence punishable under Section 302 I.P.C. However, co-accused Mohd. Islam (son of Mohd. Yasin) was not found guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C., as such, he was acquitted. After hearing on sentence, the convict (Mohd. Shamim) was sentenced to imprisonment for life. Aggrieved by judgment and order dated 29.01.1991, passed by learned Sessions Judge, Dehradun, whereby accused/appellant was convicted by the trial court in Sessions Trial No. 111 of 1988 of the charge of offence punishable under Section 302 I.P.C. and sentenced to imprisonment for life, thereafter, this appeal was preferred before Allahabad High Court on 01.04.1991. The appeal was admitted there on 02.04.1991. The appeal is received by transfer to this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussions, we think it just and proper to mention ante mortem injuries found by P.W. 6 Dr. V.P. Misra on post mortem examination of dead body of Salimuddin, who prepared autopsy report (Ext. A-4). The same is being reproduced below:- 1. Incised wound 6cm X 2.5cm X bone deep on the right side of the neck, 6cm below right root of ear. The wound was bone deep, tr. Of 5th cervical vertebra, carotid artery on the right side was cut. Other vessel-nerves on right side neck were also cut at the level of the wound. In the opinion of Dr. V.P. Misra (P.W. 6), the deceased had died due to shock and haemorrhage following injury in neck. The above evidence makes it clear that Salimuddin, has died homicidal death. From the nature of injury, it is also clear that the injury on the neck has been caused with intention to kill Salimuddin. Now the question before this Court is whether the accused/appellant Mohd. Shamim has committed murder of Salimuddin or not. 6. To prove the fact that Mohd. Shamim (accused/appellant), committed murder of Salimuddin, on behalf of the prosecution, P.W. 1 Mohd. Yusuf and P.W. 2 Jabir Hussain, were produced and got examined before whom, accused/appellant is said to have confessed his guilt. The two witnesses have stated that on 25.07.1988, it was IED (festival of Muslims). They further told the Mohd. Shamim was in the mosque of Village Bhoop Pur. The two witnesses had gone there to invite the accused/appellant to join them in the feast arranged by Village Pradhan on the day of IED. The two further stated before the trial court that accused/appellant told them that he had committed sin by murdering Salimuddin due to infatuation with his daughter Km. Kallo. The two witnesses have further told that accused/appellant Mohd. Shamim did not attend the IED celebration. P.W. 1 Mohd. Yusuf and P.W. 2 Jabir Hussain has stated on oath that Mehfooj Ali, when came to know accused/appellant is going to kill Salimuddin, though asked him not to do so, the accused/appellant told the two witnesses that he still went to the house of Salimuddin and committed murder of Salimuddin. 7. The statement of above two witnesses P.W. 1 Mohd. Yusuf and P.W. 2 Jabir gets corroborated from the statement of P.W. 5 Mehfooj Ali, who has stated that on 23.07.1988, after offering Namaj (prayer by Muslims) at 7:30 p.m., accused/appellant Mohd. Shamim, complained to him that since Salimuddin is coming on his way of his love with his daughter, as such, he would kill him. The witness further states that he asked him not to do so. It is further stated by this witness that at the time Shamim was accompanied with Mohd. Islam, P.W. 5 Mehfooj Ali further states that after sometime both the accuse left the mosque. 8. As to the motive of commission of crime, P.W. 3 Km. Zarina alias Kallo (daughter of the deceased) has stated that accused/appellant Shamim was annoyed with her father as he did not agree to the proposal of Shamim to marry her. P.W. 3 Zarina alias Kallo has further stated that her father got Shamim ousted from the mosque also. 9. Having gone through the statements of the witnesses, produced by the prosecution before the trial court, we agree with the trial court that following circumstances are proved on the record, as against accused Mohd. Shamim:- I. Mohd. Shamim (accused/appellant) was lost in love with P.W. 3 Km. Zarina alias Kallo (daughter of the deceased) and made a proposal in this regard to Salimuddin (deceased). II. Salimuddin (deceased) did not agree to the proposal made by accused/appellant and at his instance, accused/appellant was removed from the imamship of the mosque of the village and turned out of the village. III. Before commission of murder of Salimuddin, Mohd. Shamim made his intentions clear to Mehfooj Ali (P.W. 5), who asked him not to execute his intentions. IV. After commission of murder, accused/appellant Mohd. Shamim made extra judicial confession on 25.07.1988, to P.W. 1 Mohd. Yusuf and P.W. 2 Jabir Hussain when they had gone to invite him for feast of IED, that he had committed murder of Salimuddin. V. P.W. 7 Zeer Mohd. has proved the fact that accused/appellant did not attend the IED feast and the two witnesses, Mohd. Yusuf and Jabir Hussain had told him that the accused/appellant confessed to them as to the commission of crime and he could not come to join the feast. VI. P.W. 5 Mehfooj Ali, has established on record that after commission of murder, accused/appellant Mohd. Shamim made extra judicial confession to him also that he has killed Salimuddin. 10. In the above circumstances, established on record, rule out other possibilities and suggest one and only one fact that it was accused/appellant Mohd. Shamim, who committed murder of Salimuddin (deceased). 11. Having heard learned counsel for the parties, and after going through the papers on record, we also agree with the trial court that the prosecution has failed to prove the recovery of knife (Ext. 13) on pointing out of accused/appellant Mohd. Shamim, beyond reasonable doubt. We further agree with the trial court that even after ignoring said recovery, the charge of offence punishable under Section 302 I.P.C. is proved on the record, as accused/appellant Mohd. Shamim from the circumstances established, as discussed above. Learned Amicus Curiae argued that once recovery of the knife is found to be doubtful, the prosecution story cannot be believed that it was accused/appellant, who committed murder. However, for the reasons, as discussed above, we find no substance in the argument, advanced on behalf of the accused/appellant. 12. It is also contended on behalf of the appellant that extra judicial confession is a weak evidence and the conviction cannot be based solely on such confession. Having gone through the entire record, we find that extra judicial confession is made by the accused/appellant to three different persons. The testimony of the witnesses before whom extra judicial confession is made is natural and beyond the shadow of reasonable doubt. They have no enmity with the accused/appellant, nor they have any affinity with the deceased. The three are independent witnesses. 13. Lastly, it is submitted on behalf of the appellant that the chain of circumstances is not complete. But it is not pointed out on behalf of the accused/appellant that what link is missing in the prosecution story, which creates any reasonable doubt as to the commission of murder of Salimuddin by accused/appellant. We have already discussed the evidence and the circumstances on the basis of which the charge is proved against accused/appellant Mohd. Shamim that he committed murder of Salimuddin. 14. For the reasons, as discussed above, we do not find any merit in this appeal and the same is liable to be dismissed. The appeal is dismissed. Lower court record be send back to the trial court to make the accused/appellant Mohd. Shamim, serve out the sentence awarded by the trial court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 26.03.2008 Sweta