IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1379 of 2001(D/B) Old No. 247 of 1998 1. Sarafat (since deceased), S/o Nabi Bux 2. Yaseen,(since deceased), S/o Nabi Bux 3. Mahboob, S/o Sarafat 4. Ibrahim, S/o Yaseen 5. Isamil, S/o Yaseen 6. Asghar, (since deceased) S/o Zafara 7. Akbar, S/o Hameed 8. Yaseen (since deceased), S/o Zahoora 9. Yameen, S/o Zahoora 10. Mustakim, S/o Zahoora 11. Riyasat, S/o Zahoora 12. Mubarik, S/o Yaseen 13. Akil, S/o Yameen 14. Irshad @ Sada, S/o Akhtar All R/o Village Mustafabad, P.S. Jwalapur District Haridwar ……….Appellants Versus State of Uttar Pradesh (now State of Uttarakhand) …………Opposite Party Shri J.C. Gupta, Senior Advocate, assisted by Shri Arvind Vashisth, Advocates, present for the appellants. Shri S.S. Adhikari, A.G.A., present for the State. Shri S.K. Shandilya, Advocate, present for the complainant. Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J. Oral: Hon'ble Prafulla C. Pant, J. -2- This appeal, preferred under section 374 of Code of Criminal Procedure (for short Cr.P.C) is directed against judgment and order dated 06.02.1998, passed by Ist Additional Sessions Judge, Haridwar, in Sessions Trial No. 442 of 1993, whereby the appellants namely Sarafat (since deceased), Yaseen,(since deceased), Mahboob, Ibrahim, Ismail, Asghar, Akbar, Yaseen, son of Zahoora (since deceased), Yameen, Mustakim, Riyasat, Mubarik, , Akil, and Irashad @ Sada, have been convicted under section 302 read with section 149 Indian Penal Code, 1860, (for short I.P.C), and also under section 201 read with section 149 IPC. Appellants Sarafat, Mahboob, Ibrahim, Asghar (since deceased), Akbar, Mubarik, and Akil are also convicted under section 147 IPC, and appellants Yaseen, Ismail, Yaseen, , Yameen, Mustakim, Riyasat, and Irshad @ Sada are also convicted under section 148 IPC. Each of the convicts is sentenced to rigorous imprisonment for life (under section 302/149 IPC) and rigorous imprisonment for a period of seven years under section (201/149 I.P.C). The seven convicts named above are sentenced to rigorous imprisonment for two years under section 147 IPC -3- and rest to rigorous imprisonment for a period of three years under section 148 IPC. 2. Heard learned counsel for the parties and perused lower court record. 3. Prosecution story, in brief, is that on 13.08.1992, at about 1:00 P.M., in the jungle of village Mustafabad, accused/appellants with common object formed unlawful assembly and committed murder of Abdul and Riyaz (both deceased). They were armed with deadly weapons rifle, TABAL (heavy sharped edged weapon), sword, GANDASA ( heavy sharped edged weapon), and LATHIES. They after committing murder of the aforesaid two persons namely Abdul, and Riyaz @ Seena ,threw their dead bodies in Ratmao river to cause disappearance of evidence of commission of crime. A first information report (Ex. A1) was orally given by P.W.1 Mansab (brother of the deceased) at Police Station Jwalapur, District Haridwar,which was registered as crime no. 335 of 1992, against the fourteen accused namely Sarafat, Yaseen, son of Nabi Bux, Mahboob, Ibrahim, Ismail, Asghar, -4- Akbar, Yaseen, son of Zahoora Yameen, Mustakim, Riyasat, Mubarik, Akil, and Irshad @ Sada, relating to offences punishable under section 147, 148, 149, 302, and 201 IPC. The investigation was taken up by Sub-Inspector Mukundi Lal Sharma. Later on, investigation was taken over by Sub-Inspector B.S. Negi (since deceased). The motive of commission of crime is said to be dispute between P.W.1 Mansab and the accused in respect of pouring the garbage in a pit in the village. In connection with said quarrel a Panchayat is said to had taken place earlier a day before but the dispute between parties could not be resolved. Prosecution case is that due to that enmity, on 13.08.1992, the accused/ appellants formed unlawful assembly and committed murder of the Abdul and Riyaz @ Seena and threw their dead bodies in the river. It is alleged in the first information report that accused Sarafat was armed with lathi, accused Yaseen with gandasa, accused Mahboob with lathi, accused Ibrahim with lathi, accused Ismail with sword, accused Asghar with lathi, accused Akbar with lathi , Yaseen with Gandasa, accused Yameen with Tabal, accused Mustkim with Tabal, accused Riyasat with rifle, -5- accused Mubarik with lathi, accused Akil with lathi, and accused Irshad also armed with lathi at the time of incident. During investigation, only dead body of Riyaz @ Seena could be recovered on 16.08.1992. The dead body of the other deceased could not be traced out. The police, after recovery of dead body of Riyaz @ Seena prepared inquest report (Ex. A7), Sample seal (Ex. A8), sketch of the dead body (Ex. A10), police form no. (Ex. A11), and letter for post-mortem examination (Ex. A9). The dead body was sent for post-mortem examination. P.W.5 Dr. B.K. Gairola, conducted post-mortem examination on 17.08.1992, on the dead body of Riyaz and found as many as ten ante-mortem injuries. He opined in the autopsy report (Ex. A14) that cause of death was shock and hemorrhage due to ante-mortem injuries. After interrogating the witnesses, and on completion of investigation the Investigating officer submitted charge sheet (Ex. A3) against all the fourteen accused/appellants for their trial in respect of offences punishable under section 147, 148, 149, 302, 201, I.P.C. 4. The Additional Munsif/Judicial Magistrate -6- , First Class, Haridwar, 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 sessions for trial. Learned I Additional Sessions Judge, Haridwar, to whom the case was transferred on 06.11.1995, after hearing the parties, framed charge of offences punishable under section 148, 302 read with section 149 (for commission of murder of Abdul), section 201, and 302 read with section 149 (for commission of murder of Riyaz). Against all the fourteen accused namely Sarafat, Yaseen (S/o Nabi Bux), Mahboob, Ibrahim, Asghar, Akbar, Yaseen (S/o Zahoora), Yameen, Mustkim, Riyasat, Mubarik, Akil, and Irshad @ Sada and all of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Mansab (complainant and eye witness). P.W.2 Irshad, (eye witness of incident, and recovery of dead body), P.W.3 Sub-Inspector Vipin Bihari, who registered the FIR (Ex. A1) on the basis of oral report of the complainant, P.W.4 Sub-Inspector Mukundi Lal Sharma, who started investigation, P.W.5 Dr. B.R. Gairola, who conducted post-mortem examination on dead body of Riyaz @ Seena, and P.W.6 Constable Anil -7- Kumar. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged same to be false. They pleaded that they are innocent and falsely implicated. However, no evidence appears to have been given in defence. The trial court after hearing the parties found all the fourteen accused guilty of charge of offence punishable under section 302 read with section 149 IPC, and one punishable under section 201 read with 149 IPC, and convicted them accordingly. Accused/appellants Sarafat, Mehboob, Ibrahim, Asghar, Akbar, Mubarik, and Akil were further held guilty of charge of offence punishable under section 147 IPC while others namely Yaseen (S/o Nabi Bux), Ismail , Yaseen (S/o Zahoora), Yameen, Mustakim, Riyasat, and Irshad @ Sada were found further guilty of charge of offence punishable under section 148 IPC. After hearing the parties on sentence, each of the convicts was sentenced as already mentioned in para 1 of this judgment. Aggrieved by said judgment and order dated 06.02.1998, this appeal was filed by the appellants before Allahabad High Court on 09.02.1998, where it was admitted on 10.02.1998. The appeal is -8- received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal. 5. Before further discussion, we think it just and proper to mention the ante-mortem injuries found on the body of Riyaz @ Seena by P.W.5 Dr. B.K. Gairola on 17.08.1992, at 11:30 a.m. Said ante- mortem injuries mentioned in autopsy report Ex. A14 are being reproduced below:- (i) Multiple incised wound in an area of 14x12cm bone deep on the top of the head biggest and smallest being 8x2 cm and 3x1cm. (ii) Incised wound 2x3cm x bone deep on left side of forehead 1cm above the outer edge of left eye brow. (iii) Incised wound 2x1cm chest cavity deep on right side close to right nipple (iv) Incised would 3x1/2cm x muscle deep 3cm below injury No. 3. (v) Abraded contusion 12x10cm on the left side of face. (vi) Contusion 22x10 cm on the back and outer side of right forearm. -9- (vii) Contusion 10x8cm on top of shoulder on left side. (viii) Contusion 8x6cm on front of left upper forearm. (ix) Contusion 10x12cm in front of neck and upper part of chest. (x) Injury in abdomen a lacerated wound extending from umblicus to both the thighs showing under line viscera and muscles a post-mortem injury probably due to animal bite. The Medical Officer, after conducting post- mortem examination, opined that the deceased had died due to shock and hemorrhage as a result of ante-mortem injuries. The autopsy report (Ex. A14) read the statement of P.W.5 Dr. B.K. Gairola, establishes on record that Riyaz @ Seena had died a homicidal death. The medical officer has observed in the autopsy report that the death of the deceased had occurred about four days back. Since, the dead body of another person Abdul could not be traced as such there is no post- mortem examination of said person. Now we have to see whether Riyaz @ Seena and Abdul were murdered by the accused/appellants with -10- common object as alleged by the prosecution and have they thrown the dead bodies in the river to cause of disappearance of the evidence . We have also to see whether they (accused/appellants) formed unlawful assembly and were armed with deadly weapons at the time of commission of crime. 6. There are only two witnesses of fact in this case. The one is P.W.1 Mansab (complainant). He has stated that he and his brothers had dispute with accused Sarafat over the throwing garbage in a pit in the village. A day before incident, there had been a Panchayat over the dispute. The decision of Panchayat was not acceptable to the Sarafat's family. On the next day, when the complainant alongwith his brothers Abdul, and Riyaz (both deceased) had gone to their fields and spreading manure, at about 1:00 P.M., accused/appellants Sarafat armed with lathi, Yaseen armed with GANDASA (heavy sharped edged weapon), Yaseen (S/o Zahoora) armed with GANDASA , Yameen armed with TABAL,(heavy sharped edged weapon), Mustakim armed with TABAL, , Riyasat armed with rifle, and Ismail -11- armed with sword, and other accused namely Mehboob, Ibrahim, Akil, Irshad @ Sada, Mubarik, and Akbar armed with lathies came there and shouted that the deceased and the complainant be not allowed to escape, and be killed. According to this witness he started running to save his life. He was chased by Yaseen and Ibrahim but he succeeded in saving himself. However, Abdul was assaulted by the accused persons, and killed. Riyaz too was assaulted and killed. Bodies of the two deceased were dragged by the accused and thrown in the river. P.W.1 Mansab further stated that he lodged the FIR at police station. 7. P.W.2 Irshad has also corroborated prosecution story as narrated by P.W.1 Mansab. He has further stated that body of Riyaz @ Seena was recovered in his presence from the river on 16.08.1992. The witness has further disclosed that the body of Abdul could not be traced out. 8. Learned counsel for the appellants argued before us that from the statement of both the witnesses of fact, it is clear that the enmity of the family of deceased was only with that of the -12- family of Sarafat. In this connection, our attention is drawn to the fact that appellant no. 1 Sarafat, appellant no.2 Yaseen are sons of Nabi Bux, and appellant no.3 Mahboob is son of Sarafat, while appellant no.4 Ibrahim , and appellant no. 5 Ismail are sons of Yaseen. As such , the first five appellants are the only persons who can be said to had motive as they were the members of family of Sarafat, son of Nabi Bux. In this connection, it is further contended that the other accused/appellants namely Asghar, Akbar,Yaseen, (S/o Zahoora),Yameen,Mustkim, Riyasat, Mubarik, Akil, and Irshad @ Sada are falsely implicated in the crime. Our attention is also drawn to the fact that accused/appellant no.8 Yassen, accused /appellant no. 9 Yameen, accused/appellant no. 10 Mustakim, accused/appellant no. 11 Riyasat are sons of Zahoora while accused/appellant no. 12 Mubarik son of Yaseen, accused/appellant no. 13 Akil, son of Yameen. It is submitted on behalf of the appellants that these appellants are members of family of Zahoora and are falsely implicated only due to enmity with that family also. As to the remaining three accused/appellants Asghar, Akbar,and Irshad, it is -13- pleaded on behalf of the appellants that they are not connected either to the family of Nabi Bux or that of Zahoora and they too have been falsely implicated. 9. The second argument advanced on behalf of the appellants is that there is no recovery of weapons from any of the accused, nor any blood stained soil is sent for chemical examination. Learned counsel for the appellants read out the statement of the witnesses of the fact namely P.W.1 Mansab ,and P.W.2 Irshad and pointed out that the two witnesses had criminal history. It is also pointed out that the deceased too had criminal history. 10. After going through the entire evidence on record, we feel it necessary, in the present facts and circumstances to separate chaff from grain to do complete justice between the parties. Where there are as many as fourteen persons named in the FIR in connection with commission of murder of Abdul and Riyaz @ Seena without specifying role of the accused/appellants as to who has done what, we have to see that innocent persons be not -14- included with actual culprits. It has come on the record that a day before incident, it was only the family of Sarafat with whom the family of the deceased had dispute and Panchayat was called at the instance on complaint of Mansab (P.W.1). The commission of crime by the accused/appellant no.1 Sarafat, accused/appellant no. 2 Yaseen (S/o Nabi Bux), accused/appellant no.3 Mahboob (S/o Sarafat), accused/appellant no.4 Ibrahim (S/o Yaseen),and accused/appellant no.5 Ismail (S/o Yaseen) can be said to be natural conduct on their part to react to the dispute raised by the complainant. But there appears nothing on record as to why accused/appellant Asghar, accused/appellant Akbar, accused/appellant Yaseen (S/o Zahoora), accused/appellant Yameen (S/o Zahoora), accused/appellant Mustakim (S/o Zahoora), accused/appellant Riyasat (S/o Zahoora), accused/appellant Mubarik (S/o Yaseen), accused/appellant Akil (S/o Yameen), and accused/appellant Irshad @ Sada joined hands with the members of family of Nabi Bux. There is no link evidence as to why these nine had committed crime with the members of family of Nabi Bux, as they had no motive of commission of -15- crime. In the above facts and circumstances of the case, their false implication due to enmity with the complainant, cannot be ruled out. That being so, we are of the view that nine accused/appellants namely Asghar, Akbar, Yaseen (S/o Zahoora), Yameen, Mustakim, Riyasat, Mubarik, Akil, and Irshad @ Sada should be given benefit of reasonable doubt. However, as to the role of the accused/appellants namely Sarafat, Yaseen (S/o Nabi Bux), Mahboob, Ibrahim, and Ismail, the testimony of P.W.1 Mansab, and P.W.2 Irshad cannot be doubted. The presence of P.W.1 Mansab on the field with his brothers is natural and trust worthy. As to their conviction in respect of offences punishable under section 147, 148, 302/149, 201/149, we concur with the view taken by the trial court that the prosecution has successfully proved charge as against them beyond reasonable doubt. 11. Accordingly, this appeal is partly allowed. The appeal of accused/appellants Mahboob, Ibrahim, Ismail is dismissed. Appeal of accused Sarafat, Yaseen (son of Nabi Bux), Asghar, and Yaseen (Son of Zahoora) stands abated due to -16- their death during the pendency of this appeal. Appeal of remaining accused/appellants namely Akbar, Yameen, Mustakim, Riyasat, Mubarik, Akil, and Irshad @ Sada is allowed giving them benefit of reasonable doubt. These seven appellants are acquitted of the charge of offences punishable under section 147, 148, 302/149, and 201/149 IPC. They are on bail they need not surrender. As far as the accused/appellants no. 3 Mahboob, accused/appellant no. 4, Ibrahim, accused /appellant no. 5 Ismail are concerned they are on bail. Their bail is cancelled they shall surrender before the court concerned to serve out the sentence awarded by the trial court against them. Copy of this judgment be sent to the trial court alongwith lower court record for compliance of the order. (Nirmal Yadav, J.) (Prafull C. Pant, J.) 31.08.2010 Parul