IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 110 of 2001 Shabbir Ahmed S/o Talib Khan R/o Indira Nagar, Haldwani, District Nainital …………Appellant. Versus State ………Opposite Party Sri R.B. Agarwal and Sri M.K. Agarwal, Advocates, for the appellant. Sri S.S. Adhikari, Brief Holder, for the State-respondent. & Criminal Jail Appeal No. 41 of 2006 Sadiq S/o Abrar Khan R/o Indira Nagar, Haldwani, District Nainital ……Appellant (In Jail) Versus State ……Opposite Party Sri T.S. Phartiyal, Amicus Curiae, for the appellant. Sri S.S. Adhikari, Brief Holder, for the State-respondent. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral- Hon’ble Prafulla C. Pant, J.] These two appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), are directed 2 against the same judgment and order dated 21.04.2001, passed by learned Additional Sessions Judge, Haldwani, District Nainital, in Sessions Trial No. 513 of 1997, whereby accused / appellant Sadiq has been convicted under Sections 302/34, 366, 376 and 506(2) of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Another accused / appellant Shabbir has been convicted under Section 302 read with Section 34 I.P.C.. The accused / appellant Sadiq is sentenced to imprisonment for life and directed to pay fine of Rs.2,000/- (under Section 302/34 I.P.C.), rigorous imprisonment for a period of three years and directed to pay Rs.1,000/-, as fine (under Section 366 I.P.C), rigorous imprisonment for a period of ten years and directed to pay fine of Rs.2,000/- (under Section 376 I.P.C.), and rigorous imprisonment for a period of one year (under Section 506(2) I.P.C.). The accused / appellant Shabbir has been sentenced to imprisonment for life and directed to pay Rs.2,000/-, as fine (under Section 302/34 I.P.C.). However, accused / appellant Shabbir has been acquitted of the charge of offences punishable under Sections 363, 366, 376 and 506 I.P.C.. (2) Heard learned counsel for the parties and perused the Lower Court Record. 3 (3) Prosecution story in brief is that accused / appellant Shabbir introduced accused / appellant Sadiq to Israr Ahmed (deceased) and recommended him that he be given accommodation as tenant, in his house, situated in Indira Nagar, Haldwani. After sometime, accused Sadiq started teasing P.W.2-Israna (minor daughter of the deceased). On this, Israr Ahmed (deceased) got Sadiq (accused / appellant) evicted from his house. On 06.06.1997, at about 4.00 A.M., accused / appellant Sadiq along with accused / appellant Shabbir and one Farha (absconded during trial), came to the house of Israr Ahmed and asked him to get his daughter Israna (P.W.2) married to Sadiq. Israr Ahmed (deceased) refused to oblige them. On this, the three, with common intention committed murder of Israr Ahmed by getting him tied on a cot and strangulating him. Accused / appellant Shabbir and his associate Farha caught hold of the deceased while accused Sadiq strangulated with a Towel (ANGOCHA/GAMCHHA). Thereafter, the three took Israna forcibly and made her sit in a vehicle, parked outside, and abducted her. Meanwhile, information was sent to P.W.1- Shamshad in the neighbourhood, who came and witnessed the incident. He (P.W.1-Shamshad) gave a First Information Report (Ext.A-1) at the Police Station Haldwani on the very day i.e. 4 06.06.1997, at about 8.05 A.M.. On the basis of said report, Crime No. 813 of 1997 was registered against all the three accused, namely, Sadiq, Shabbir and Farha, relating to offences punishable under Sections 302/34, 363, 366 and 506 I.P.C. and investigation was taken up by P.W.10-Yogesh Dixit. P.W.11-Sub Inspector Rajesh Bhartiya, in whose presence Check Report of the First Information Report was prepared, also prepared the Inquest Report (Ext.A-17) and other necessary papers, after taking dead body of the deceased in his possession. Dead body of Israr Ahmed was sent for post mortem examination and autopsy was conducted on the very day i.e. 06.06.1997, at 4.00 P.M., by P.W.8- Dr. S.P. Ojha, who recorded a ligature mark and other injuries as ante mortem injuries and opined that the deceased had died due to asphyxia as a result of strangulation. After three days, accused Sadiq was arrested from Shisham Bagh Jungle and P.W.2-Israna (abducted victim) was also recovered from there. P.W.2-Israna disclosed that for three days she was raped by accused Sadiq. She was got medically examined by P.W.6-Dr. Shikha Jangpangi. On radiological examination, conducted by P.W.9-Dr. P.C. Kapri, the age of the girl was found between 16-18 years. After interrogating the witnesses and on completion of investigation, Charge Sheet (Ext.A- 5 16) was submitted by the Investigating Officer against all the three accused for their trial in respect of offences punishable under Sections 302/34, 363, 366, 376 and 506 I.P.C.. (It appears from the record that during trial accused Farha absconded and her case was separated). (4) On receipt of the Charge Sheet, the Judicial Magistrate, after giving necessary copies to the three accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial. On 08.01.1998, learned Sessions Judge, Nainital, after hearing the parties, framed charge of offences punishable under Sections 302/34, 363, 366 and 506 I.P.C. against all the three accused. A separate charge of offence punishable under Section 376 I.P.C. was framed against accused Sadiq and Shabbir. All the three pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1- Shamshad, complainant; P.W.2-Israna, an eyewitness of murder and victim of kidnapping and rape; P.W.3-Aftab, minor eyewitness and son of the deceased; P.W.4-Mohd. Hanif, neighbour of the deceased (partly hostile); P.W.5-Iliyas Ahmed, witness of recovery memo (Ext.A-3); P.W.6-Dr. Shikha Jangpangi, who medically examined the victim on 10.06.1997; P.W.7-Dr. C.S. Hachanki, the pathologist; P.W.8-Dr. S.P. Ojha, who 6 conducted postmortem examination on the dead body of Israr Ahmed; P.W.9-Dr. P.C. Kapri, radiologist; P.W.10-Yogesh Dixit, Investigating Officer; and P.W.11-Sub Inspector Rajesh Bhartiya, who prepared Inquest Report and other papers soon after the incident, including recovery memo (Ext.A-2). Meanwhile, case was transferred to the court of Additional Sessions Judge, who continued further with the case. The oral and documentary evidence was put to the accused Sadiq and Shabbir, who alleged the same to be false. Accused / appellant Sadiq took the plea of alibi and told that he came from Moradabad only on 10.06.1997. However, no evidence in defence was adduced. The trial court, after hearing the parties, found accused / appellant Sadiq guilty of charge of offences punishable under Sections 302/34, 366, 376 and 506(2) I.P.C., and accused / appellant Shabbir guilty of charge of offence punishable under Section 302/34 I.P.C. only. He (Shabbir) was acquitted of rest of the charges. After hearing the parties on sentence, the trial court sentenced each of the accused / appellants Sadiq and Shabbir to rigorous imprisonment for life and also directed to pay fine of Rs.2,000/-, under Section 302/34 I.P.C.. In default of payment of fine, the defaulter was directed to undergo further two months’ rigorous imprisonment. Accused / appellant Sadiq was 7 further sentenced to rigorous imprisonment for a period of ten years and directed to pay fine of Rs.2,000/-, under Section 376 I.P.C., rigorous imprisonment for a period of three years and directed to pay Rs.1,000/-, as fine, under Section 366 I.P.C., and rigorous imprisonment for a period of one year, under Section 506(2) I.P.C.. In default of payment of fine on the count of Section 376 I.P.C., he was directed to undergo rigorous imprisonment for a further period of two months. In default of payment of fine of Rs.1,000/- (under Section 366 I.P.C.), he was directed to undergo rigorous imprisonment for a further period of one month. Aggrieved by said judgment and order dated 21.04.2001, appellant Shabbir filed Appeal No. 110 of 2001 before this Court, while accused / appellant Sadiq got sent his appeal at a belated stage through Superintendent of Sampurnanand Jail, Udham Singh Nagar, where he was serving out the sentence, in 2006. Appeal of Shabbir Ahmed was admitted in the year 2001. Appeal of Sadiq was admitted on 23.03.2006, after condoning delay in filing the appeal. (5) Before further discussions, we think it just and proper to mention the ante mortem injuries recorded by P.W.8-Dr. S.P. Ojha, who conducted postmortem examination on the dead body of Israr Ahmed (deceased) and prepared Autopsy 8 Report (Ext.A-7). The ante mortem injuries mentioned in said report are being reproduced below:- (i) Circular pale mark encircling neck between neck and chin. 34cm x 4cm ligature mark. On cutting margins found ecchymosed. (ii) Abrasion 1cm x 1cm on left tibia near knee joint. (iii) Multiple abrasion in an area of 10cm x 4cm at left forearm. (iv) Abrasion 2cm x 1cm on the left frontal knee joint. On internal examination, the lungs were found congested. Hyoid bone found fractured. In the opinion of the Medical Officer (P.W.8-Dr.S.P. Ojha), the deceased had died as a result of asphyxia due to strangulation. The evidence, adduced by P.W.8-Dr. S.P. Ojha, read with postmortem examination, establishes that Israr Ahmed has died a homicidal death. Now, this court has to see whether the murder was committed by the two accused / appellants with common intention and whether the accused / appellant Sadiq abducted Israna (P.W.2) with 9 intention to marry her and raped her and threatened to kill her. (6) P.W.1-Shamshad has stated that deceased Israr Ahmed was his brother-in-law. According to this witness, on 06.06.1997, at 4.00 A.M., his nephew Aftab (P.W.3) came to his house and told that a quarrel is going on in his house. On receiving information, the witness has stated that he went to the house of Israr Ahmed and saw that Israr Ahmed was tied with ropes in a cot and accused Sadiq was strangulating him (Israr Ahmed) with a towel (GAMCHA/ANGOCHHA). P.W.1-Shamshad has further stated that when he asked the accused to leave Israr Ahmed, accused Shabbir took out a pistol. Meanwhile, Israr Ahmed died due to strangulation. The witness has further stated that after committing murder of Israr Ahmed accused Sadiq took Israna (P.W.2) forcibly and made her sit in a van, parked outside. While taking Israna accused Sadiq gave a threat that he would kill if anyone intervened. After the incident, P.W.1-Shamshad lodged First Information Report (Ext.A-1) with the Police. He has proved the written report submitted by him to the Police. This witness has further told that after lodging the First Information Report Police came in the house of Israr Ahmed and recovered Towel (ANGOCHA), used for committing the 10 crime, and ropes by which the deceased was tied at the time of committing his murder. (7) P.W.2-Israna, aged 16 years, is the star witness of this case. Her presence in her father’s house is natural at the time of commission of his murder. She has stated that on the day of incident accused Sadiq and Shabbir came to her house and started quarrelling with her father. She has further stated that accused Sadiq asked her father to get her married to him. On this, her father refused to agree. Thereafter, accused Farha and Shabbir tied her father (Israr Ahmed) on a cot and accused Sadiq pressed neck of her father with ANGOCHHA (Towel). P.W.2-Israna has further stated that meanwhile Aftab (P.W.3) went to the house of Shamshad and informed him about the quarrel going on in the house. P.W.2 has stated that she was picked up by accused Sadiq on the point of pistol and she was made to sit in a van, parked outside. She was taken to Shisham Bagh, where she was raped by him in Jungle. She has further stated that when Police came there she was recovered and got medically examined thereafter. Testimony of this witness gets fully corroborated from the postmortem examination, which shows that the deceased had died of asphyxia due to strangulation. 11 (8) The prosecution story is further corroborated by P.W.3-Aftab, minor son of the deceased. This witness has stated that on the day of incident in early hours he was in his house when accused / appellant Sadiq and accused / appellant Shabbir came there and asked his father to get married Israna (P.W.2) with Sadiq. The witness has further stated that his father refused to oblige them. On this, the accused / appellants started quarreling with his father and meanwhile his maternal uncle Shamshad (P.W.1) came there and told him (P.W.3) to go to his house as he was frightened. The witness has further stated that he remained thereafter in the house of his maternal uncle. Though this witness P.W.3-Aftab has not seen the accused / appellants committing murder of the deceased and abducting his sister, but he has corroborated the prosecution story to the extent that in the early hours of the day of incident, accused / appellants Sadiq and Shabbir came to his house and quarreled with his father Israr Ahmed. His explanation that since he was frightened and was asked by his maternal uncle to go to his house appears to be the natural part of conduct of the two witnesses. It is pertinent to mention here that witness Aftab 12 (P.W.3) was aged only 8-9 years at the time of incident. (9) P.W.4-Mohd. Hanif, though declared hostile, has also partly corroborated the prosecution story to the extent that in the early hours of the day of incident he was coming back after getting eased out when he met Shamshad, who was going towards the house of Israr Ahmed and accompanied him. The witness has further stated that he saw accused Sadiq strangulating Israr Ahmed who died. The witness has further stated that Israna (P.W.2) was in her house at that time. However, as against Shabbir this witness has not corroborated the prosecution story and as such declared hostile. (10) Sri T.S. Phartiyal, learned Amicus Curiae, on behalf of appellant Sadiq, argued that there is no mention of offence punishable under Section 376 I.P.C. in the First Information Report and the allegations against the accused are after thought. On going through the evidence, we found that there is no substance in the argument for the reason that the First Information Report has been lodged soon after murder of Israr Ahmed and abduction of Israna but before rape was committed on her, as such there could have been 13 no mention of offence punishable under Section 376 I.P.C. in the First Information Report. (11) Next, it is argued that no opinion as to rape has been given in the report (Ext.A-4), prepared by P.W.6-Dr. Shikha Jangpangi. Mere mentioning in the medical report that no opinion can be given as to rape does not mean that the victim was not subjected to rape. The Medical Officer is not an eyewitness. The testimony of P.W.2- Israna, who alone could have deposed what had happened with her for three days in Shisham Bagh where she was made to live with accused Sadiq, cannot be disbelieved in the facts and circumstances of the case. (12) Thirdly, it is argued on behalf of accused / appellants that P.W.2-Israna and P.W.3-Aftab are tutored witness. On careful re-examination of evidence on record, we find that nothing appears to be tutored to them. P.W.3-Aftab has corroborated the prosecution story only to the extent that in the early hours of the incident a quarrel took place between the accused / appellants and his father, whereafter, when Shamshad (P.W.1) came by then he was frightened and asked to go to his maternal uncle’s house. Had he been tutored he could have further supported the prosecution story as 14 to murder of his father and abduction of his sister. Similarly, there is nothing in the statement of P.W.2-Israna, aged 16 years, on the basis of which she can be said to be a tutored witness. Even, the hostile witness P.W.4-Mohd. Hanif has corroborated the prosecution story to the extent he accompanied Shamshad (P.W.1) and saw accused Sadiq strangulating Israr Ahmed, who died on the spot. The testimony of P.W.1-Shamshad is also natural as he is resident of Indira Nagar and in the same mohalla his brother-in-law Israr Ahmed used to live, as such when the quarrel took place in the neighbourhood, naturally he rushed to the house of his brother-in-law after coming to know that quarrel is going on there. Learned counsel for the appellants pointed out certain minor contradictions in the statement of eyewitnesses but the same were not found material to dislodge the ring of truth in the prosecution story as against the accused / appellants Sadiq and Shabbir. Mere contradictions as to who informed Shamshad (P.W.1) about quarrel in the house of the deceased, is not sufficient to discard testimony of P.W.2-Israna and P.W.3-Aftab. (13) Having considered the submissions of learned counsel for the parties and after re- examining the evidence on record, we fully 15 concur with the trial court’s finding that as against accused / appellant Sadiq, charge of offences punishable under Sections 302/34, 366, 376 and 506(2) I.P.C. are proved beyond all reasonable doubt. We further concur that as against accused / appellant Shabbir only charge of offence punishable under Section 302/34 I.P.C. is proved. We also find that sentence awarded by the trial court is just and proper. Therefore, for the reasons as discussed above, we are of the view that these appeals have no force, which are liable to be dismissed. Both the appeals are dismissed. Accused / appellant Sadiq is in jail. Registry is directed to send a copy of this order to the Superintendent of the Jail where the appellant Sadiq is lodged. We further direct the Registry to send back the Lower Court Record so that accused / appellant Shabbir be made to serve out the sentence awarded against him by the trial court. He is on bail. His bail is cancelled. (B.S. Verma, J.) (Prafulla C. Pant, J.) 14.05.2009 NS 16