IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 913 of 2001 (Old No. 637 of 2000) Nisar Ahmad S/o Jumman R/o Mohalla Afghanan P.S. Dhampur, Bijnor. ...…………. Appellant Versus State of U.P. (now State of Uttarakhand) ...…………. Respondent Mr. T.A. Khan, Advocate, present for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate, present for the State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Hon. Prafulla C. Pant, J (oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 3rd of March 2000, passed by Special Judge (E.C. Act) / Addl. Sessions Judge, Nainital, in Sessions Trial No. 170 of 2 1994, whereby appellant Nisar Ahmad has been convicted under Section 302, 364 and 394 of the Indian Penal Code, 1860 (for short I.P.C.). He has been sentenced to imprisonment for life and directed to pay fine of ` 3,000/- under Section 302 of I.P.C., rigorous imprisonment for a period of ten years and directed to pay fine of ` 1,000/- under Section 364 of I.P.C., and rigorous imprisonment for a further period of ten years and also directed to pay fine of ` 1,000/- under Section 394 of I.P.C. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 27.01.1991, accused / appellant Nisar Ahmad and one Rashid (since deceased) took vehicle bearing registration No. DID / 2046 on hire from P.W. 2 Sunil Kumar, promising payment of ` 850/- for taking the same to Muzaffarnagar. Manohar Lal (deceased) was the driver of said vehicle. After the vehicle left Ramnagar on 27.01.1991, it did not come back, nor Manohar Lal returned. Chandra Devi (P.W. 3), mother of Manohar Lal, lodged first information report (Ext. A –1) at police station Ramnagar on 11.02.1991. Sunil Kumar (P.W. 2) whose vehicle was taken on hire by the accused / appellant Nisar and Rashid also gave a report against them complaining criminal misappropriation of property). On the basis of the reports given by Chandra 3 Devi (P.W. 3) and Sunil Kumar (P.W. 2), Crime No. 98 of 1991 was registered initially relating to offences punishable under Section 406 and 364 of I.P.C. at police station Ramnagar. During investigation it was revealed that on 28.01.1991 (i.e. next day of taking vehicle on hire), a dead body was found in District Muzaffarnagar in early hours of the day, within the limits of police station Mirapur. After taking the dead body in their possession, police of Mirapur prepared inquest report (Ext. A –19) and other necessary papers, and the dead body was sent in a sealed cover to Chief Medical Officer, Muzaffarnagar, for postmortem examination. The postmortem examination appears to have been done by Incharge Medical Officer of District Hospital, Muzaffarnagar, on 28.01.1991, at 04:00 P.M., who prepared autopsy report (Ext. A –17) on the very day i.e. 28.01.1991. The Medical Officer found three incised wounds on the body of the deceased and opined that shock and haemorrhage as a result of ante mortem injuries was the cause of death. It appears that after postmortem examination dead body was disposed of as unclaimed one, the clothes of the deceased were kept in a sealed cover. As to the vehicle which was taken by the accused on hire, the investigation revealed that on 02.02.1991, the vehicle registration No. DID / 2046 was found abandoned within the limits of police station Hapur, District Ghaziabad. A memorandum (Ext. A – 7) was prepared by Hapur police, and the vehicle was brought to the police station at Hapur. The clothes 4 belonging to the deceased were shown to P.W. 3 Chandra Devi, who identified them that the same belonged to her son Manohar Lal. Memorandums Ext. A–2 and Ext. A –10 were prepared by the Investigating Officer on 27.02.1991 and 28.02.1991 to this effect, and the crime registered at Ramnagar got connected with the dead body found within the limits of police station Mirapur on 28.01.1991. After interrogating the witnesses, and on completion of investigation, the Investigating Officer submitted charge sheet (Ext. A – 20) against accused Rashid (since deceased), Nisar Ahmad (present appellant), Mohd. Raza (since acquitted) and Sarif Ahmad (since acquitted), for their trial in respect of offences punishable under Section 302, 364 and 394 of I.P.C. 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., committed the case to the court of sessions for trial. Learned Special Judge / Addl. Sessions Judge, Nainital, on 23.11.1994, after hearing the parties, framed charge of offences punishable under Section 364, 302 and 394 of I.P.C. against all the four accused, including the present appellant. They pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Gopal Dutt; P.W. 2 Sunil Kumar (owner of the vehicle); P.W. 3 Chandra Devi (mother of the deceased); P.W. 4 Maqsood (declared hostile); P.W. 5 Akram Ali 5 (declared hostile); P.W. 6 Kishori Lal (declared hostile); P.W. 7 Fakir Chandra; and P.W. 8 Navin Chandra Bhatt. The genuineness of the documentary evidence was admitted by the defence counsel. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. No evidence in defence was adduced on behalf of the accused. The trial court, after hearing the parties, found that charge of offences punishable under Section 364, 394 and 302 of I.P.C. are proved as against accused Nisar Ahmad, and convicted him accordingly. As against accused Rashid the case stood abated due to his death during trial. As to accused Mohd. Raza and Sarif Ahmad, the trial court found that charge as against them were not proved, and they were acquitted of the same. After hearing on sentence, accused Nisar Ahmad was sentenced to imprisonment for life and directed to pay fine of ` 3,000/- under Section 302 of I.P.C., rigorous imprisonment for a period of ten years and to pay fine of ` 1,000/- under Section 364 of I.P.C., and rigorous imprisonment for a period of ten years and to pay fine of ` 1,000/- under Section 394 of I.P.C. Aggrieved by said judgment and order dated 03.03.2000, passed by Special Judge (E.C. Act) / Addl. Sessions Judge, Nainital, in Sessions Trial No. 170 of 1994, the convict preferred this appeal before the Allahabad High Court on 10.03.1000, where the same was admitted on 14.03.2000. The appeal was received by this court 6 under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of deceased by the Incharge Medical Officer of District Hospital, Muzaffarnagar, on 28.01.1991, at 04:00 P.M., who prepared the autopsy report (Ext. A –17). The same are being reproduced below: “ i) Incised wound 13 (Thirteen) in number in an area of 22 cm X 17 cm on lower part of chest and upper part of abdomen. Margins of wounds are clean cut, size varying from 2 cm X 1 cm to 1 cm X 1 cm in to chest and abdominal cavity deep. ii) Two incised wounds size 2 cm X 1 cm, each in to cavity deep on both side back (on both right and left side) of back on outer scapular region. iii) Incised wound 2 cm X 1 cm X muscle deep on right buttock.” The Medical Officer opined in the autopsy report that deceased had died of shock and haemorrhage on account of ante mortem injuries. 6) Though, the dead body on which the postmortem is conducted is shown as unknown male, aged about 24 years, but after the clothes of the 7 deceased which were kept in a sealed cover, were identified by P.W. 3 Chandra Devi, mother of the deceased, it is proved on the record that the dead body on which autopsy was conducted and disposed of, was that of Manohar Lal (son of Chandra Devi), as such, it is established on the record that Manohar Lal has died a homicidal death. 7) Now, we have to examine whether accused / appellant Nisar Ahmad committed murder of Manohar Lal, looted the vehicle registration No. DID / 2046 belonging to Sunil Kumar (P.W. 2), and whether he abducted the deceased with intention to kill him. 8) As far as the charge relating to offence punishable under Section 364 of I.P.C. is concerned, after going through the evidence on record, we are of the view that the same is not proved as against present appellant. What has been proved by P.W. 1 Gopal Dutt, P.W. 2 Sunil Kumar and P.W. 3 Chandra Devi is that on 27.01.1991, accused Nisar and his associate Rashid took the vehicle (registration No. DID / 2046) belonging to Sunil Kumar (P.W. 2) on hire to go to Muzaffarnagar, promising him to pay ` 850/- as the charges. It was Sunil Kumar (P.W. 2) who requested his driver Manohar Lal to take the vehicle, as such, the intention to abduct Manohar Lal is not proved on the record. 8 9) Also, as to the commission of robbery i.e. the offence punishable under Section 394 of I.P.C., for which the accused / appellant Nisar Ahmad is charged is not made out for the reason that the only property which could have been robbed was the vehicle registration No. DID / 2046, and same was found lying abandoned within the limits of police station Hapur, in respect of which memorandum (Ext. A –7) was prepared by Hapur police before taking the vehicle at the police station. In our opinion, the factum of robbery is also not established beyond reasonable doubt as against the accused / appellant. 10) But, so far as charge of offence punishable under Section 302 of I.P.C. is concerned, on going through the entire evidence on record, we find that said charge is proved against accused / appellant Nisar Ahmad from the circumstantial evidence established on record. Following are the circumstances which are brought on the record and proved as against accused / appellant Nisar Ahmad:- i) P.W. 2 Sunil Kumar has stated that on 27.01.1991, at about 07:00 A.M, accused Nisar Ahmad and Rashid came to him and asked for his vehicle Maruti Van to take the same to Muzaffarnagar on hire. The witness has further stated that ` 850/- was the amount which the accused promised to pay. P.W. 1 9 Gopal Dutt has also corroborated the above fact and stated that Nisar who came with Rashid told Sunil Kumar that his sister is unwell and he was required to go to Muzaffarnagar, and asked for the Maruti Van from Sunil Kumar. P.W. 1 Gopal Dutt has told that he knew Nisar, who works as a mechanic in Bhawani Ganj, Ramnagar. The fact that the vehicle was taken by accused Nisar Ahmad on hire is established also from the statement of P.W. 8 Navin Chandra Bhatt. ii) P.W. 8 Navin Chandra Bhatt has stated that when the accused asked for vehicle from Sunil Kumar he told that he has to go and come back on the very day. P.W. 2 Sunil Kumar has also stated that his driver Manohar Lal (deceased) when asked to take the vehicle to Muzaffarnagar showed his reluctance as he was recently married, but on being persuaded that he (Manohar Lal) would be coming back by evening, he agreed to take the vehicle. This evidence on the record shows that the deceased as well as the accused had to go together and come back together to Ramnagar. iii) Apart from the ‘last seen’ evidence adduced by P.W. 1 Gopal Dutt and P.W. 2 Sunil Kumar that Manohar Lal had gone with the two accused, P.W. 3 Chandra Devi has 10 proved on the record that before leaving for Muzaffarnagar her son Manohar Lal had his meals at about noon at her resident, and the vehicle was standing outside in which accused were sitting. Not only this, P.W. 7 Fakir Chand, who was coming in a truck with Ram Gopal (father of the deceased), near Barrage saw vehicle registration No. DID / 2046 which was being driven by Manohar Lal, and on stopping the truck father of Manohar Lal enquired from his son, who told his father that he is going to Muzaffarnagar and would be back by night. As such, before the deceased reached Muzaffarnagar, on his way, he was seen still going with the accused Nisar Ahmad towards Muzaffarnagar. iv) On the next day i.e. 28.01.1991, a dead body was found within the territorial limits of police station Mirapur, District Muzaffarnagar, regarding which inquest report (Ext. A –19) was prepared by the police personnel of said police station, and the dead body was sent for postmortem examination. It is also proved from the autopsy report (Ext. A –17) that the body was found by the police of police station Mirapur, District Muzaffarnagar, had suffered as many as three incised wounds mentioned in the report and the deceased had died of shock and 11 haemorrhage, as a result of ante mortem injuries. v) It is also established on the record from the statement of P.W. 3 Chandra Devi, mother of the deceased, read with the memorandum (Ext. A –2) which pertains to the clothes of the deceased, which were kept after his dead body was found in District Muzaffarnagar as an unclaimed one, establishes that the body found within the limits of police station Mirapur which was disposed of after preparing autopsy report was that of Manohar Lal (son of Chandra Devi and Ram Gopal). vi) As to the vehicle bearing registration No. DID / 2046 it is established on the record that after it was taken from Ramnagar by Manohar Lal on 27.01.1991, was found lying abandoned on 02.02.1991 within the limits of police station Hapur, regarding which a memorandum (Ext. A –7) was prepared by Hapur police. vii) Last and most important circumstance which completes the chain is that accused / appellant Nisar Ahamd neither informed Sunil Kumar as to why Manohar Lal and he had not returned back to Ramnagar, nor told as to what had happened to the deceased. Rather, the accused / appellant Nisar Ahmad and his associate Rashid kept hiding and absconded after the incident. 12 11) No doubt, P.W. 4 Maqsood, P.W. 5 Akram Ali and P.W. 6 Kishori Lal have not supported the prosecution story and were got declared hostile, but after going through their statement carefully, only this much can be said that these witnesses had no knowledge of the incident. But, there is still sufficient evidence on record already discussed by us as above, which proves the charge of offence punishable under Section 302 of I.P.C. as against accused / appellant Nisar Ahmad. It is pertinent to mention here that the defence counsel before the trial court admitted genuineness of all the documents filed by the prosecution, including the recovery memos, copies of the extract of General Diaries, inquest reports, site plans, autopsy report etc. 12) Learned counsel for the appellant argued that chain of circumstances as against the present appellant is not complete. But, we are of the view that there is no link missing in the chain of circumstances required to be proved the charge of murder of Manohar Lal as against accused / appellant Nisar Ahmad. We have already mentioned not only the chain of circumstances, but also the evidence by which the same are proved on the record. 13) It is also argued by Mr. T.A. Khan, counsel for the appellant that the possibility cannot be ruled out that 13 the deceased might have been killed by other persons, on his way back to Ramnagar. After scrutiny of the oral testimony of the witnesses, we find that had it been a case where accused / appellant Nisar Ahmad was not to return back in the vehicle, what is argued could have been accepted. But, in the present case, from the statement of P.W. 2 Sunil Kumar and P.W. 8 Navin Chandra Bhatt it is clearly proved that the deceased was not only required to take accused / appellant Nisar Ahmad and his associate Rashid to Muzaffarnagar, but they were to be taken back on the same night to Ramnagar. As such, we cannot take an imaginary or hypothetical situation that the driver might be coming all alone and killed by others in the night. 14) For the reasons as discussed above, this appeal deserves to be partly allowed. The conviction and sentence recorded by the trial court relating to offences punishable under Section 364 and 394 of I.P.C. against the appellant Nisar Ahmad is liable to be set aside, but the charge of offence punishable under Section 302 of I.P.C. deserves to be affirmed. Accordingly, the appeal is partly allowed. Conviction and sentence recorded by the trial court in respect of offences punishable under Section 364 and 394 of I.P.C. against accused / appellant Nisar Ahmad is set aside, but the conviction and sentence recorded in respect of offence punishable under Section 302 of I.P.C., is affirmed. The Accused / appellant Nisar Ahmad is on bail. His bail is cancelled. 14 He is directed to surrender before the court concerned to serve out the sentence awarded by the trial court against him in respect of offence punishable under Section 302 of I.P.C., only. Lower court record be sent back to make the accused / appellant Nisar Ahmad serve out the sentence affirmed by this court. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. March 09, 2011. H. Negi