IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1696 of 2001(D/B) Old No. 2340 of 1997 1. Rafiq (since deceased), S/o Ali Mohammad R/o Village Tailiwala, P.S. Doiwala District Dehradun 2. Ishaq, S/o Rahim Bux 3. Asghar (since deceased), S/o Mehboob Ali Both R/o Village Kurkawala, P.S. Doiwala Dehradun 4. Noor Mohammad @ Noor Hasan S/o Rafiq, R/o Village Tailiwala P.S. Doiwala,District Dehradun 5. Rafiq, S/o Ishaq 6. Jan Mohammad, S/o Faquir Mohammad Both R/o Village Kurkawala P.S. Doiwala, Dehradun ……….Appellants Versus State of Uttar Pradesh (now State of Uttarakhand) …………Opposite Party Shri R.S. Sammal, Advocate, with Shri Prem Kaushal, and Shri Vishal Singh, Advocates, present for the appellants. Shri Nandan Arya, A.G.A., present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J. Oral: Hon'ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure (for short Cr.P.C) is -2- directed against judgment and order dated 17/19.12.1997, passed by Ist Additional Sessions Judge, Dehradun, in Sessions Trial No. 13 of 1994, whereby said court has convicted the appellants namely Rafiq (since deceased) S/o Ali Mohammad, Ishaq and Asghar under section 147 and 302 read with section 149 Indian Penal Code (for short I.P.C), and Noor Mohammad @ Noor Hasan, Rafeeq (s/o Ishaq), and Jan Mohammad under section 148 and 302 read with section 149 IPC. Each of the appellants has been sentenced to rigorous imprisonment for life and to pay fine of Rs. 5000/- under section 302,149 IPC. Also each of the first three above named appellants Rafeeq (since deceased), Ishaq, and Asghar has been further sentenced to rigorous imprisonment for a period of one year under section 147 I.P.C. The remaining convicts (appellants) are further sentenced to rigorous imprisonment for a period of one year under section 148 IPC. 2. Heard learned counsel for the parties and perused lower court record. 3. Prosecution story, in brief, is that P.W.4 -3- Kallu Singh lodged a written report (Ex. A1) at Police Station Doiwala, on 30.05.1993. at 6:30 a.m., stating that his son Rakesh (deceased) had gone in the preceding night in village Kurkawala for irrigation in his field. At about 5:00a.m., he was attacked and assaulted by accused/appellants Rafiq (s/o Ali Mohammad), Asghar, Noor Mohammad, Ishaq, and Rafiq (S/o Ishaq) with rods and spades and thereby they committed his murder. The incident was said to have been witnessed by P.W.1 Nand Kishore, P.W.2 Dhalchand, and P.W.3 Nathu Singh. The case was registered under section 147, and 302 IPC at Police Station Doiwala where it was registered as crime no. 164 of 1993. The investigation was taken up by P.W. 12 Sub-Inspector Amar Singh, who took the dead body of the deceased in his possession and prepared inquest report (Ex. A11), sample seal (Ex. A12), police form no. 13 (Ex. A13), Sketch of the dead body (Ex. A 14), and letter to the Chief Medical Officer for post-mortem examination (Ex. A15). The post-mortem examination was conducted by P.W.6 Dr. Kuldeep Dutt on the very day i.e. 30.05.1993, at about 4:15 P.M. The Medical Officer recorded as many as 12 ante-mortem -4- injuries in the autopsy report (Ex. A2) and opined that cause of death of Rakesh Kumar (deceased) was shock and hemorrhage as a result of ante- mortem injuries on the vital organ. From P.W. 12 Amar Singh further investigation was taken up by P.W. 13 Sub-Inspector R.S. Rana who arrested the accused. Recovered blood stained, clothes and weapons said to have been used in the crime from the accused and prepared memorandums (Ex. A3 and Ex. A4). After completion of investigation charge sheet was filed against the accused/appellants namely Rafiq (deceased), Noor Mohammad @ Noor Hasan, Ishaq, Rafiq (S/o Ishaq), Jan Mohammad, and Asghar for their trial in respect of offences punishable under section 147/302 IPC. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C., appears to have committed the case to the court of session for trial. The trial court, after hearing the parties, framed charge of offences punishable under section 147, 148, 302 read with section 149 I.P.C., against all the six accused/appellants who pleaded -5- not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Nand Kishore, P.W.2 Dalchand, P.W.3 Nathu Singh, P.W.4 Kallu Singh, P.W.5 Amar Singh (S/o Hari Singh), P.W6 Dr. Kuldeep Dutt, who conducted post-mortem examination , P.W.7 Trilok Singh, P.W.8 Raja Ram, P.W.9 Ratan Lal, P.W.10 Nisar Ahmad, P.W.11 Noor Mohammad, P.W.12 Sub-Inspector Amar Singh (who started investigation), P.W.13 Sub- Inspector R.S. Rana, who completed investigation, and P.W. 14 Head -Constable Ziledar Singh. The oral and documentary evidence appears to have put to the accused by the trial court under section 313 Cr.P.C., whereafter on behalf of the defence D.W.1Ali Ahmad, D.W.2 Abdul Wahid, D.W.3 Abdul Razzak, D.W.4 Indra Singh, D.W.5 Mahboob Hasan, and D.W.6 Chiranjee Lal. After hearing the parties, the trial court found all the six accused guilty of charge of offence punishable under section 302 read with section 149 IPC. It further found that accused/appellants Rafiq (deceased), Asghar, and Ishaq are guilty of charge of offence punishable under section 147 IPC, and that accused/appellants Noor Mohammad, Jan Mohammad, and Rafiq (S/o Ishaq) are guilty of -6- charge of offence punishable under section 148 IPC. All the six were sentenced as mentioned in para 1 of this judgment. Aggrieved by said judgment and order dated 17/19.12.1997, passedby Ist Additional Sessions Judge, Dehradun, in Sessions Trial No. 13 of 1994, this appeal was filed by the convicts before Allahabad High Court on 22.12.1997, where it was admitted on 23.12.1997. The appeal is received by this Court under section 35 of U.P. Reorganization Act 2000 (Central Act 29 of 2000) for its disposal. Appellant no. 1 Rafiq (s/o Ali Mohammad), appellant no.3 Asghar (s/o Mehboob), and appellant no.4 Noor Mohammad @ Noor Hasan died during pendency of this appeal and their appeal stood abated. This appeal is being heard on behalf of the appellant no.1 Ishaq, appellant no.5 Rafiq,and appellant no.6 Jan Mohammad. 5. Before further discussion we think it just and proper to mention the ante-mortem injuries found on the body of the deceased by P.W.6 Kuldeep Dutt at the time of post-mortem examination, which are reproduced below from the autopsy report (Ex. A2):- -7- (i) Lacerated wound 1.5cmx2cm on right side forehead above right eye brow. (ii) Lacerated wound 1cmx2.5cm on right side above right eye brow. (iii) Contusion 6cmx5cm on right temporal region above right ear. (iv) Fracture right frontal, temporal, parital bone. (v) Lacerated wound 3cmx1.5cm. Muscle deep chest above right upper lip. (vi) Contusion in an area 8cmx6cm. Right shoulder (vii) Multiple contusions in an area 15cm x10cm above right arm with swelling. (viii) multiple contusions in an area 16cmx14cm over the top of left arm. (ix) Multiple contusions in an area 15cm x6cm over the area of half of left fore arm. (x) Contusion 4cmx5cm on the top of the right scapula. (xi) Contusion 2cmx1cm on top of right -8- shoulder 4cm above right clavicle. (xii) Contusion 1cmx4cm on top of right iliac spine. P.W.6, the medical officer (Dr. Kuldeep Dutt), after post-mortem examination, gave his opinion in the autopsy report that cause of death of Rakesh Kumar was shock and hemorrhage due to the ante-mortem injuries suffered on vital organ. 6. Though P.W.1 Nand Kishore, P.W2 Dalchand, P.W.3 Nathu Singh have stated in the statements that on 30.05.1993, at about 5:00a.m, they saw 5-6 persons chasing a boy who was shouting for help and was assaulted by accused/appellants Rafiq (s/o Ali Mohammad), Noor Mohammad, Ishaq, Asghar, Rafiq (s/o Ishaq), and Jan Mohammad, who left him dead on the spot. But on close scrutiny of their examination, the testimony given by the three alleged eye witnesses does not appear to be reliable and trust worthy. All the three appear to be chance witnesses. P.W.1 Nand Kishore states that he was going from his home to grind mill -9- (GHARAT) at about 4:30-4:45 a.m.. P.W.2 Dalchand says that he had gone to see embankment (BANDHA). P.W.3 says he was going to ease out himself. In cross-examination he (P.W3) discloses that distance from his home to the place of incident was 1km. As such presence of none of the three witnesses at the spot is natural. Apart from this, the testimony given by these witnesses appears to be not convincing also for the reason that they have attempted to conceal their relationship with the complainant. There is categorical statement of D.W.6 Chiranjee Lal that he is younger brother of P.W.1 Nand Kishore. He has further stated that P.W.2 Dalchand is real nephew of P.W.4 Kallu Singh (complainant) he has further disclosed that P.W.3 Nathu is son of real brother-in-law of Kallu Singh. 7. The other witnesses examined on behalf of the prosecution are not eye witnesses of the incident. P.W.5 Amar Singh (S/o Hari Singh) states that about four days before the day of incident Rakesh had some altercation (dgk lquh½ with accused Asghar, and Jan Mohammad gave Rakesh a slap on his face. Thereafter Asghar and -10- Jan Mohammad threatened Rakesh that they will see and kill him. P.W.2 Dalchand states that altercation between Rakesh (Deceased) and Asghar took place 2-4 month before the date of incident. As such the contradiction between the statement on that point is so major that there appears the motive being shown on the part of the accused/appellants to commit murder of Rakesh is not convincing. It has been stated by P.W.8 Raja Ram and P.W. 13 Sub-Inspector R.S. Rana that blood stained clothes, rods, and spades were recovered from the possession of the accused on 02.06.1993. Merely on the ground that on 02.06.1993, certain clothes, spades were recovered from the possession of the accused/appellants, it cannot be said that the prosecution has adduced sufficient evidence to prove the charge against the accused beyond reasonable doubt. There appears no injury suffered by the deceased from blade of any spade as is evident from the post-mortem report. P.W.1 Nand Kishore in his examination in chief states that Rafiq (deceased), Ishaq, and Asghar were armed with lathi while rest of the accused were said to be armed with spade. -11- 8. Perusal of the FIR (Ex. A1) and check report (Ex. A17) shows that accused/appellant Jan Mohammad is not even named in the FIR. We also went through the forensic laboratory report (Ex. A23) in which the forensic laboratory in its report dated 20.11.1993, has observed that clothes of more than one person should not have been sent in one bundle. Out of the 14 items sent, the human blood was found on the clothes of the deceased (item no. 10 to 13) which does not reflect that the crime was committed by the accused/appellants. Three spades said to have been recovered from the accused were found containing human blood but we have already discussed above that there is no injury of the blade of spades on the body of the deceased. Merely, on the basis of the fact that the shirt and Tehmat of the Jan Mohammad was found with the stains of human blood, it cannot be said that charge is sufficiently proved against him. 9. For the reasons as discussed above, after reappreciating evidence on record, and hearing the parties, this Court finds that from the evidence on record, it cannot be said that charge of offences punishable under section 147, 148, 302 read with -12- section 149 IPC, is proved beyond reasonable doubt against the accused/appellants Ishaq, Rafiq (s/o Ishaq), and Jan Mohammad. Therefore, giving them benefit of reasonable doubt their appeal deserves to be allowed. Accordingly, the appeal of accused/appellants Ishaq, Rafiq (S/o Ishaq), and Jan Mohammad is allowed. Conviction and sentence recorded against them by the trial court is set aside. They are acquitted of charge of offences punishable under section 147, 148, 302 read with section 149 IPC. They are on bail. They need not to surrender. Their sureties are discharged. Trial court record be sent back. (Appeal of other three accused stands abated due to their death during the pendency of this bail). (Nirmal Yadav,J) (Prafulla C. Pant, J) Dt. 16.08.2010 Parul