IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 32 of 2002 Amir Ahmad (In Jail) S/o Wali Mohmad R/o Uzala Nagar, P.S. Haldwani (Indra Nagar Barsati Nahar Ke Pass) District Nainital. ……Appellant. Versus State .……….Respondent. Shri M.K. Agarwal, Advocate for the appellant. Shri H.C. Pujari, A.G.A. for the State. ALONGWITH Criminal Appeal No. 22 of 2002 Jamil Ahmad S/o Wali Mohmad R/o Uzala Nagar, P.S. Haldwani (Indra Nagar Barsati Nahar Ke Pass) District Nainital. ……Appellant. Versus State .……….Respondent. Shri M.K. Agarwal, Advocate for the appellant. Shri H.C. Pujari, A.G.A. for the State. AND Criminal Appeal No. 24 of 2002 1. Faiyaz alias China S/o Sri Abbas Khan R/o Nai Basti, Indra Nagar Haldwani, District Nainital. 2. Naeem, S/o Azizulla R/o Nai Basti, Indra Nagar Haldwani District Nainital. ……Appellants. 2 Versus State .……….Respondent. Shri Rajendra Kotiyal, Advocate and Shri Deep Joshi, Advocate for the appellants. Shri H.C. Pujari, A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Oral:-Hon’ble Prafulla C. Pant, J. All these three appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), are directed against the judgment and order dated 15.01.2002, passed by Additional Sessions Judge, Haldwani, in Sessions Trial No. 407 of 1998, whereby appellants namely Amir Ahmad, Jamil Ahmad, Faiyaz alias China and Naeem, are convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and each one of the convicts has been sentenced to imprisonment for life, and also directed to pay fine of Rs. 10,000/-. In default of payment of fine, the defaulter is directed to undergo rigorous imprisonment for a further period of six months. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 15.07.1998, at about 10:30 a.m., when Abdul Hamid (deceased) alias Middu Khan, was going towards Indira Nagar, along 3 with Shahid Khan (P.W. 1) and Saleem Ahmad (P.W. 2) on a scooter, bearing registration No. UMM 8029, they were stopped by accused/appellants Amir Ahmad, his brother Jamil Ahmad, Faiyaz alias China and Naeem. As soon as the scooter stopped, Abdul Hamid alias Middu Khan, was dragged by the four accused/appellants from the scooter. Accused/appellant Amir Ahmad, armed with BAANKA (a pointed sharp edged weapon with a wooden rod), assaulted Abdul Hamid alias Middu Khan, who fell down on the ground. Thereafter, accused/appellant Jamil Ahmad, Faiyaz alias China and Naeem, fired with country made pistols at Abdul Hamid alias Middu Khan, who died on the spot. On hearing shouts of Shahid Khan (P.W. 1) and Saleem (P.W. 2), complainant Majid Khan (P.W. 3) also reached at the spot. He lodged First Information Report (Ext. A-1) on the very day with police station Haldwani, at 11:30 a.m., which was registered as crime No. 1098 of 1998, against accused/appellants namely Amir Ahmad, Nayeem Ahmad, Jamil Ahmad and Faiyaz alias China, relating to offence punishable under Section 302 I.P.C. The police went to the spot and took the dead body of Abdul Hamid in their possession and prepared inquest report (Ext. A-2) in the presence of the witnesses. The crime was investigated by Sub- Inspector Yogesh Dikshit (P.W. 6). At the time of preparing inquest report, police form No. 13 (Ext. A-6), sample seal (Ext. A-7), sketch of the dead body (Ext. A- 4 8), and letter (Ext. A-9) to Chief Medical Officer, were prepared and dead body was sent for post mortem examination. On the very day, i.e. 15.07.1998, at about 4:50 p.m., Dr. D.P. Joshi (P.W. 5) conducted post mortem examination on the dead body of Abdul Hamid and recorded one fire arm wound of entry and four incised wounds. He prepared autopsy report (Ext. A-5) and opined that deceased had died due to shock and haemorrhage, as a result of ante mortem injuries. During investigation, police arrested accused/appellants, and recovered country made pistol from the possession of accused/appellant Faiyaz alias China, and BAANKA (a pointed sharp edged weapon with a wooden rod) from the possession of accused/appellant Amir Ahmad. Two separate crime numbers were registered against them for possessing the weapons without any license. Prosecution case is that said weapons were used in the crime. After interrogating the witnesses, and on completion of the investigation, charge sheet (Ext. A-15) was submitted by the Investigating Officer for trial of accused/appellants Amir Ahmad, Faiyaz alias China, Naeem and Jamil Ahmad, for their trial in respect of offence punishable under Section 302 I.P.C. Separate charge sheets were also filed against accused/appellants Amir Ahmad and Faiyaz alias Chinar, in respect of offences punishable under Sections 4/25 Arms Act, and under Section 25 Arms Act, respectively. 5 4. The Magistrate, on receipt of the charge sheets, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the cases to the Court of Sessions, for trial. The cases relating to offences punishable under Section 4/25 Arms Act and one punishable under Section 25 Arms Act, were also committed to the Court of Sessions, as the same were connected with the offence punishable under Section 302 I.P.C. Learned Sessions Judge, on 19.12.1998, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against all the four accused namely Amir Ahmad, Faiyaz alias China, Nayeem and Jamil Ahamd. All the four pleaded not guilty and claimed to be tried. Separate charges appear to have been framed in respect of offence punishable under Section 4/25 Arms Act and under Section 25 Arms Act, against accused/appellants Amir Ahmad and Faiyaz alias China, respectively. The evidence of the three cases was recorded in the leading case i.e. Sessions Trial No. 407 of 1998, in which P.W. 1 Shahid Khan (declared hostile), P.W. 2 Saleem Ahmad (eye-witness), P.W. 3 Majid Khan (complainant and father of the deceased), P.W. 4 Mavwar Khan (witness of the inquest report), P.W. 5 Dr. D.P. Joshi (who conducted post mortem examination), P.W. 6 Sub-Inspector Yogesh Dikshit (Investigating Officer), P.W. 7 Waris Khan (scribe of the report), P.W. 8 Inspector Narendra Kumar Sharma, 6 P.W. 9 Sub-Inspector Sunder Lal Suman, P.W. 10 Head Constable Mahesh Chandra Lohni, P.W. 11 Head Constable Ashok Kumar, P.W. 12 Sub-Inspector R.L. Gangwar and P.W. 13 Sub-Inspector Ram Nath Singh were examined. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. In reply to which they alleged the same to be false and pleaded that they were falsely implicated due to enmity, by the police. However, no evidence in defence was adduced. The trial court after hearing the parties found that charge of offences punishable under Sections 4/25 Arms Act, against accused/appellant Amir Ahmad, and charge of offence punishable under Section 25 Arms Act, against accused/appellant Faiyaz alias China, are not proved and acquitted them of said charges. However, all the four accused namely Amir Ahmad, Faiyaz alias China, Naeem and Jamil Ahmad, were found guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C.. After hearing on sentence, each one of them is sentenced to imprisonment for life and also directed to pay fine of Rs. 10,000/-. Aggrieved by said judgment and order dated 15.01.2002, passed by the trial court (Additional Sessions Judge, Haldwani), these appeals are preferred by the four convicts. 5. Before further discussion, we think it just and proper to mention here the ante mortem injuries, recorded by P.W. 5 Dr. D.P. Joshi, who conducted post 7 mortem examination on dead body of Abdul Hamid alias Middu, at 4:50 p.m. on 15.07.1998, and prepared autopsy report (Ext. A-5). The ante mortem injuries are being reproduced below:- 1. Fire arm wound of entry 1cm X 1cm X cavity deep over back of chest right side, 14cm below top of neck at middle right side. 2cm away from midline. Margin inverted, irregular. Blackening and scorching from and around wound. On further exploration of wound, haemotoma and laceration of muscle of back with fracture of 7th and 8th rib on back side found and laceration of pleura (lower) and lower lobe of lung with one litre of liquid blood present in chest. One metallic bullet found embedded in the tissue of right lung (lower lobe). 2. Incised wound 28cm X 5cm X muscle and bone deep present obliquely over right side of neck and head (upper). Wound is extending from chin anteriorly in the occipital region, back of head. All muscle vessel nerve and parts of muscle cut through and through and cervicle C2 and C3 vertebra. Note- On further exploration of wound, a metallic bullet found but no wound of entry could be detected due to deep cut present right side. 3. Incised wound 22cm X 6cm X muscle trachea deep, traversely around the neck, between chin and thyroid cartilage. On further exploration of wound all muscle vessels of right and left side 8 of neck cut. All vessels of right and left side of neck cut from C4 C3 vertebra deeply. 4. Incised wound 5cm X 2cm X bone deep present vertically on left side of back of head, 3cm from left ear. 5. Incised wound 6cm X 2cm X muscle deep present obliquely over posterior part of left shoulder. The Medical Officer after post mortem examination opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. From the evidence of P.W. 5 Dr. D.P. Joshi, read with the autopsy report (Ext. A-5), it is established on record that the deceased had died homicidal death. Now this Court has to see whether accused/appellants Amir Ahmad, Jamil Ahmad, Faiyaz alias China and Naeem, have committed murder of Abdul Hamid alias Middu (deceased), with common intention. 6. P.W. 1 Shahid Khan, has supported the prosecution story in examination in chief that on 15.07.1998, at 10:00 a.m., when Abdul Hamid was going on a scooter with this witness and Saleem Ahmad (P.W. 2). According to this witness, scooter was got stopped and Abdul Hamid alias Middu was dragged by accused/appellants Amir Ahmad, Jamil Ahmad, Naeem and Faiyaz alias China. The witness has further stated that Amir Ahmad was armed with 9 BAANKA (a pointed sharp edged weapon with a wooden rod), who assaulted Abdul Hamid whereafter he (Abdul Hamid) fell down on the ground. According to this witness, thereafter accused/appellants Naeem, Faiyaz and Jamil Ahmad, fired from TAMANCHA (country made pistol) at Abdul Hamid. This witness has further stated that on his raising alarm, Majid Khan (P.W. 1) also reached at the spot. However, in the cross examination, this witness has stated that he did not see the incident (on which this witness was got declared hostile by the prosecution). Even otherwise, the statement of this witness does not get corroborated from the medical evidence, as against accused/appellants Naeem, Faiyaz and Jamil Ahmad. P.W. 1 Shahid Khan, has stated in his examination that three accused, fired shots from TAMANCHA (country made pistol). But the post mortem examination report shows that there were two bullets inside the body, while there was only one wound of entry of fire arm. It is difficult to say in the circumstances, that the three accused/appellants fired shots from TAMANCHA, as stated by this witness. 7. P.W. 2 Saleem Ahmad, is the only witness who has fully supported the prosecution story that on 15.07.1998, he along with Shahid (P.W. 1) and Abdul Hamid alias Middu Khan (deceased), were going on a scooter bearing registration No. UMM 8029. It is further stated by him that on the way, they were 10 stopped by four accused/appellants namely Amir Ahmad, Jamil Ahmad, Naeem and Faiyaz alias China. After the scooter was got stopped by them, they dragged Abdul Hamid. The witness further states that accused/appellant Amir Ahmad, armed with BAANKA (a pointed sharp edged weapon with a wooden rod), assaulted Abdul Hamid. When he (Abdul Hamid) fell down, accused/appellants Naeem, Faiyaz alias China and Jamil Ahmad, fired from TAMANCHA (country made pistol) and Abdul Hamid died on the spot. The testimony of this witness also as to the firing shots by three accused/appellants Naeem, Faiyaz alias China and Jamil Ahmad with country made pistols, does not get corroborated from the medical evidence, which shows only one fire arm entry wound but two bullets inside the body. Apart from this, even as to the role of accused/appellant Amir Ahmad in the examination in chief, the witness (P.W. 2) states that said accused was armed with BAANKA (a pointed sharp edged weapon with a wooden rod) with which he assaulted the deceased but in the cross examination, he states that the weapon was like a PATAL (heavy sharp edged weapon with small handle). 8. P.W. 3 Majid Khan, is complainant and father of the deceased, who has narrated the prosecution story, as if he witnessed the incident. But statement of P.W. 1 Shahid Khan and P.W. 2 Saleem, shows that on their 11 raising alarm, Majid Khan reached at the spot, which indicates that this witness (Majid Khan) had reached after the commission of crime. Address of P.W. 3 Majid Khan, shows that he is resident of Line No. 18 Banbhulpura. His presence at the place of incident appears to be doubtful. In the cross examination, this witness (P.W. 3) states that he had gone to ease himself out towards Gaula river. But occupation of this witness, as mentioned in his statement, shows that he is a Contractor. This further creates doubt as to the fact that this witness had actually gone to Gaula river to ease out in open, as a man of his status must be having a toilet in his house. The timing of 10:30 a.m. for going to get eased out also appears to be unnatural. Not only this, there is further reason not to believe the statement of this witness, as in his cross examination, this witness states that he could not reach at the spot immediately, as he had a broken leg. His statement, in cross examination, clearly shows that this man had not reached at the place of incident when the accused are said to have assaulted and fired at the deceased. 9. Learned counsel for the appellants drew attention of this Court that Abdul Hamid alias Middu (deceased) was a hardened criminal and it cannot be ruled out that he might have been killed by the police or by other persons, who were enimical to the deceased. In this connection, learned counsel for the appellants drew attention of this Court to the statement made by P.W. 3 12 Majid Khan (father of the deceased) in his cross examination that the deceased was facing number of trials including case relating to murder of son of one Lala, another case of murder of one Naeem alias Sidda, third case of murder of one Israr and fourth case of murder of one Takir and three women, apart from the case of attempt to commit murder of one Naseem. P.W. 3 has further stated that his son was further facing three trials relating to N.D.P.S. Act, for possession of charas weighing 15Kg, 3 ½ Kg and 7 ½ Kg. Not only this, P.W. 3 further discloses that his son (deceased) remained detained under National Security Act and U.P. Gangsters and Anti Social Activities (Prevention of Atrocities) Act, 1986. With this kind of criminal history of the deceased, it cannot be ruled out that the deceased might have been killed by some other persons also who were enmicial to him. 10. P.W. 3 Majid Khan and P.W. 2 Saleem Ahmad, have stated that only one fire hit the person of the deceased. If this is the correct story then prosecution should have explained as to how two bullets were found in the body of the deceased by P.W. 5 Dr. D.P. Joshi, at the time of post mortem examination of dead body of Abdul Hamid. Non explanation of this fact on the part of the prosecution further creates reasonable doubt as to the manner suggested by the prosecution, the deceased was murdered. 13 11. Though the prosecution has adduced evidence of P.W. 6 Yogesh Dikshit, Investigating Officer, that BAANKA, used in the crime, was recovered on pointing out of the accused/appellant Amir Ahmad and country made pistol, used in the crime on pointing out of accused/appellant Faiyaz alias China, but said weapons were not produced by the trial court and that is why the two accused were acquitted of the charge of offences punishable under Section 4/25 Arms Act and one punishable under Section 25 Arms Act, respectively. Non production of these important weapons, before the trial court, in the present circumstances of the case, which are discussed above, further creates reasonable doubt as to the manner in which the prosecution alleges that accused/appellants committed murder of Abdul Hamid alias Middu. 12. For the reasons, as discussed above, we are of the view that the prosecution has failed to prove charge of commission of murder of Abdul Hamid alias Middu by accused/appellants Amir Ahmad, Jamil Ahmad, Faiyaz alias China and Naeem, with common intention, beyond reasonable doubt. Therefore, accused/appellants are entitled to the benefit of reasonable doubt in this case. Accordingly, all these three appeals deserve to be allowed. The same are allowed. The impugned judgment and order dated 15.01.2002, passed by Additional Sessions Judge, Haldwani, in Sessions Trial No. 407 of 1998, relating to 14 conviction and sentence, recorded against the appellants, is set aside. Accused/appellants Amir Ahmad, Jamil Ahmad, Faiyaz alias China and Naeem, are acquitted of charge of offence punishable under Section 302 I.P.C. Accused/appellants Jamil Ahmad, Faiyaz alias China and Naeem, are on bail. They need not to surrender. Accused/appellant Amir Ahmad is in jail. He shall be set at liberty, if not wanted in connection with any other crime. The registry is directed to send copy of this judgment to the Superintendent of Jail, where the accused/appellant Amir Ahmad is serving out the sentence. Lower court record be sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:16.07.2009 Sweta 15 16 17 18 19 20