Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 129 of 2009 Sahezad @ Azad … Appellant Versus State …Respondent With Criminal Appeal No. 130 of 2009 Galib … Appellant Versus State …Respondent With Criminal Appeal No. 131 of 2009 Talib … Appellant Versus State …Respondent And Criminal Appeal No. 132 of 2009 Sahezad @ Azad … Appellant Versus State …Respondent Mr. Vivek Shukla, Advocate for the appellant Mr. Nandan Arya, A.G.A. for the State/respondent 2 Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. (Delivered by Hon’ble B.C. Kandpal, J.) Since all the above four appeals arise out of the same judgment and order and similar question of fact of law is involved, they are being decided by this common judgment. 2- All the appeals arise out against the common judgment and order 17.8.2009 passed by Additional Sessions Judge/1st F.T.C. Roorkee, District Hardwar, in Sessions Trial No. 128 of 2003, State vs. Sahezad & others and Sessions Trial No. 129 of 2003, State vs. Sahezad, whereby the learned Sessions Judge convicted accused/appellants Sahezad @ Azad, Galib and Talib under Section 302 I.P.C. The Sessions Judge while convicting the said accused/appellants under Section 302 I.P.C. sentenced them to undergo life imprisonment and fine of Rs.5,000/- each and in default of payment of fine they were directed to further undergo rigorous imprisonment for one year each. Accused Sahezad has further been convicted under Section 25 Arms Act and has been sentenced to undergo three years’ rigorous imprisonment and fine of Rs.1,000/- and in default of payment of fine he was directed to further undergo imprisonment of three months. All the sentences were directed to run concurrently. 3 3- Accused/appellant Sahezad @ Azad preferred Criminal Appeal No. 129/2009, accused/appellant Galib has preferred Criminal Appeal No.130/2009, while accused/appellant Talib has preferred Criminal Appeal No.131/2009. Accused/appellant Sahezad @ Azad has also preferred Criminal Appeal No. 132 of 2009 against the conviction and sentence passed by the learned Additional Sessions Judge vide impugned judgment and order 17.8.2009 under Section 25 Arms Act. 4- Prosecution story in brief is that on 26.7.2002 complainant Azam, his brother Ajram and father Shakeel had gone to irrigate the field. At about 9.30 p.m. when the father of the complainant went to the field to see the water on tube well, then the complainant and his brother heard the sound of gunshot. On hearing the sound, they rushed towards tube well and they saw Maksood son of Basheer, Sahezad son of Maksood, Talib and Galib sons of Khaleel, running from there after committing murder of father of complainant and thereafter throwing him in Gole (water tank) of tube well. The written report (Ext.Ka.1) of the said incident was lodged by Mohd. Azam at Police Station Manglore on 26.7.2002 after getting it scribed by Sharif Ahmad and on the basis thereof, a criminal case no. 269/2002 under Sections 302 and 506 I.P.C. was registered against the accused persons. The investigation of the case was entrusted to Sri Ajay Chauhan, S.H.O. P.S. Manglore. During the investigation, the investigating officer prepared 4 the panchnama (Ext.Ka.2) of the dead body of deceased Shakeel and sent the dead body for post mortem examination to District Hospital, Haridwar. Thereafter, the investigating officer collected the bloodstained and simple earth from the spot and prepared its recovery memo vide Ext.Ka.3. The investigating officer recorded the statements of the witnesses and prepared the site plan of the spot on the pointing out of the complainant. Subsequently, the investigation of the case was transferred to Sri V.C. Tamta, the then S.H.O. Jhabreda, who after taking up the investigation recorded the statements of the witnesses. On 12.12.2002, accused Talib and Sahezad were surrendered before the court and their statements were recorded. 5- During the course of the investigation, on the pointing out of accused Sahezad, the police recovered the country made pistol (allegedly used in the commission of crime) and an empty cartridge of 315 bore. After recovery of the country made pistol and empty cartridge, the police sealed the same; prepared the sample seal and prepared its recovery memo. On the basis of the recovery memo, case crime no. 400/2002 under Section 25 Arms Act was registered against accused Sahezad at P.S. Manglore on 17.12.2002 at 18.05 p.m. The investigation of the said case was entrusted to H.C.P. Mahadev Singh Rana, who during the course of investigation prepared the site plan of the spot and recorded the statements of the witnesses. 5 The investigating officer obtained the permission from the then District Magistrate, Haridwar, to launch the prosecution against the accused under Section 25 Arms Act and after completion of the investigation, the investigating officer having finding prima facie case against the accused submitted charge sheet under Sections 302 and 506 I.P.C. against the accused persons on 21.01.2003 and charge sheet against the accused Sahezad under Section 25 Arms Act on 17.02.2003 in the court of C.J.M. Roorkee, Haridwar. 6- After submission of the charge sheets the accused/appellants were committed to the court of Sessions on 23.04.2003 and learned Sessions Judge framed the charges under Section 302/34 I.P.C. against accused persons and under Section 25 Arms Act against accused Sahezad @ Azad. The charge was read over and explained to the accused persons, who pleaded not guilty and claimed to be tried. 7- The prosecution in support of its case got examined as many as nine witnesses, namely, PW-1 Mohd. Azam (complainant), PW-2 Ajram, PW-3 Zulfiqar, PW-4 Maksood, PW-5 S.I. Ajay Chauhan (first investigating officer), PW-6 S.I. V.C. Tama, PW-7 Cons. Ram Dhan, PW-8 Dr. K.K. Karauli, who conducted the post mortem of the deceased, and PW-9 Retired S.I. Mahadev Singh Rana (investigating officer of crime no. 400/2002 under Section 25 Arms Act). 6 8- The accused persons in their statements under Section 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated in the case. 9- The trial court having considered the entire evidence on record and hearing learned counsel for the parties found guilty accused Sahezad @ Azad, Galib and Talib of charges of offence punishable under Section 302 I.P.C. and convicted and sentenced them, as mentioned above. Accused Sahezad @ Azad has also been convicted under Section 25 Arms Act and sentenced, as mentioned above, vide impugned judgment and order dated 17.8.2009. 10- Feeling aggrieved, the appellants have preferred separate criminal appeals before this Court which have been placed before us for disposal. 11- Heard Sri Vivek Shukla, learned counsel for the appellants, Sri Nandan Arya, learned A.G.A. for the State and perused the record. 12- Before further discussion, it is pertinent to mention that post mortem of the deceased was conducted by Dr. K.K. Karoli (P.W.8) on 27.07.2002 at 01:30 p.m. at District Hospital, Haridwar. He found following ante mortem injuries on the body of the deceased:- 7 1. Firearm entry wound on left side of the chest, measuring 1 ½ cm X 1 ½ cm X chest cavity deep, blood clot and charring and tattooing were present on the wound, the wound was 6cm above left eye in the 12 O’ clock position. 2. Firearm exit wound on scapular region of waist, 3cm X 3 cm X chest cavity deep, blood clot was present. 3. Abraded wound over front side of waist below shoulder, 1.8cm X 1.5cm blood clot was present. The injury was 2 inch away from injury No. 2. 4. Punctured wound in front of left leg, 4cm X ½ cm X muscle deep with blood clot. 5. Abraded wound over left forehead 5cm above left eyebrow, 2.05 X 1.8 cm X scalp deep. 6. Abraded wound over left side of scalp, 2.08cm X 1.08cm X scalp deep. 7. Abraded wound over scalp 3 ½ cm above right eyebrow, 2 X 1cm X scalp deep. 8. Abraded wound in the middle of right side of the head 1.05 X 1.087 X scalp deep having blood clot. On internal examination the doctor found that all the scalp bones were broken and blood was clotted there. Right lung was also cut and broken. The chest cavity was having 100 c.c. blood clot. Heart was empty and stomach was 8 having 100 c.c. semi-digested liquid. In the opinion of the medical officer, the cause of death was due to shock and bleeding as a result of ante mortem injuries. He further opined that the time of death was 3/4 day earlier and the death could be caused at 9:30 p.m. in the night of 26.07.2002. The doctor has prepared the post mortem report (Ext. Ka. 15). 13- In this case, it appears from the record that the incident is alleged to have taken place on 26.7.2002 at about 9.30 p.m. in the night, while the First Information Report was lodged at Police Station on 26.7.2002 at 10.15 p.m. The distance of the Police Station from the place of occurrence appears to be 5 Kms. as per the chick F.I.R. PW- 1 Azam has stated in his deposition that the place of occurrence is about ½ Km. away from the locality. The place of occurrence is about 1 Km. away from the houses of the witnesses of this case. PW-1 Azam in his deposition further stated that he went to the Police Station from the place of occurrence straightaway. He has also stated that after the incident he remained at the place of occurrence for about 20 minutes, thereafter he went to the Police Station straightaway on tractor and it took about 15 minutes, then he lodged the report at Police Station. The time which took from the actual occurrence till lodging of the report is about 45 minutes and it appears that during this short span of time the First Information Report could not be lodged. In the First Information Report 9 this fact has not been disclosed that the informant had gone to Police Station on tractor. The theory of going of PW-1 Azam on tractor to Police Station from the place of occurrence has been developed later on at the stage of the deposition before the court below. The informant has also not stated before the investigating officer that he went to Police Station on tractor. This fact has not been denied by any of the witnesses that the distance of the Police Station from the place of occurrence is not less than 5 Kms. PW-2 Ajram has also deposed in his statement that the distance of the Police Station from the place of occurrence is 5 Kms. In case, if the Informant stayed at the place of occurrence about 20 minutes and thereafter he went to Police Station on tractor and after reaching at Police Station he got the First Information Report scribed by Sharif Ahmad, we think that this process could not be over within a span of only 45 minutes. The First Information Report in this case appears to be ante time on the ground also that all the entire papers prepared by the police i.e. inquest report, other recovery memos and plain and bloodstained earth, site plan, photo lash etc. nowhere indicates the names of the accused persons therein. PW-6 Vimal Chandra Tamta, who was the investigating officer of this case, has also stated in his deposition that informant Azam did not state before him that he had come to Police Station for lodging the report on tractor. All these circumstances of this case as well as the material available before us clearly 10 indicate that the First Information Report is ante time. 14- The second aspect of this case is that stronger motive in this case appears to be with the complainant side to falsely implicate the accused persons. It also appears that the accused persons had in fact no motive to commit this crime for the reason that the enmity of course is there with the accused and the complainant side, but both the witnesses PW-1 Azam and PW-2 Ajram have stated that a case of Marpeet was committed between the accused and the complainant side and in that case he cannot tell as to whether their father was a surety on behalf of Talib, one of the accused, or not. PW-2 Ajram has also stated that in the year 1995 there was a Marpeet between the complainant and the accused side and in that case his father was the informant and the accused persons were Maqsood, Arshad, Sahezad and Talib, but in the cross-examination this witness has stated that he cannot say as to whether his father stood surety on behalf of accused Talib. The specific suggestion has been put forward by the defence that deceased Shakeel, who was the father of witnesses Azam and Ajram, had good relation with accused persons and he also stood surety on behalf of one of the accused Talib in a case of Marpeet between the complainant and the accused side and on account of good relation between Shakeel, father of these witnesses and the 11 accused persons, the complainant side had falsely roped the accused persons into this offence. PW-6 V.C. Tamta, the investigating officer, has also stated in his deposition that during course of investigation the informant and the witnesses told him that the accused persons and the complainant are in inimical terms since long. Therefore, all these materials available on record before us clearly indicate that the motive with the accused persons is quite weak, while the motive with the complainant side to falsely implicate the accused persons appears to be on stronger footing. 15- The next point for consideration in this case is that the incident took place in the dark hours of the night. The time of the occurrence is the rainy season as it was the month of July. Both the witnesses (PW-1 and PW-2) produced by the prosecution have admitted that it was the rainy season. It is very important that on the field there must be source of light in which the witnesses could have identified the accused persons. The site plan prepared by the investigating officer nowhere indicates the distance from where the witnesses had seen the accused persons. It has come in the evidence that the distance from where the witnesses must have witnessed the incident would be at least 50- 60 paces. The prosecution has tried to develop the case that in fact at the tube-well where the incident had taken place, there was an electric bulb. But, from the entire evidence, this type of 12 development in the evidence by the prosecution appears to be quite fishy. PW-2 Ajram in his cross-examination has clearly stated that his tube-well was not being operated by electricity. Further, the investigating officer has although indicated the place where the bulb was litting as letter “B”, but other necessary and important points have not been indicated by him in the site plan. We fail to understand that when the tube- well was not being operated by electricity, then how the electric bulb was litting at the scene of occurrence. The place of occurrence is at the middle of the field belonging to Shakeel. There cannot be any reason for having electric bulb at the tube-well especially when the tube well was not being operated by electricity. PW-5 Ajay Chauhan, who is the first investigating officer in this case, has admitted this aspect that in the First Information Report there is no mention of the source of light. We fail to understand as to why rest of the important points have not been shown by the investigating officer and he did not care to point out as to from where the witnesses had seen the occurrence and what is the distance from where the witnesses had seen the actual occurrence to the place where the accused persons had committed murder of Shakeel. Therefore, merely showing the point of light in the site plan creates a doubt on the entire prosecution case and we are in agreement with the counsel for the accused/appellants that the story of developing the source of light at the place of occurrence is a result of afterthought. 13 16- The next important aspect in this case is that it was the rainy season when the occurrence took place and it appears to be quite funny that during rainy season deceased Shakeel was present at the tube-well and was operating the tube-well for irrigating the field and these two witnesses (PW-1 and PW-2) were also present in the field for the purpose of irrigating the field. Both the witnesses have admitted that it was the rainy season and during rainy season the tube- well is not operated for the purpose of irrigation. It appears to us that in the rainy season the story with regard to the presence of these two witnesses for the purpose of irrigating the field has been shown only to establish their presence at the scene of occurrence, otherwise the theory of irrigating the field during rainy season by the deceased Shakeel and the presence of two witnesses in the dark night in the field, appears to be a cock-bull story. The distance of the houses of the witnesses from the place of occurrence is about 1 Km. and it is quite strange that why these persons will come to their fields for the purpose of irrigating their fields, particularly during rainy season. 17- The another important aspect in this case is that statements of two witnesses, namely, PW- 1 Azam and PW-2 Ajram, have been recorded by the prosecution after 3½ months of the occurrence. It is not a simple case but a case of heinous crime, like murder, and recording the 14 statements of the important witnesses, who are alleged to be the eye-witnesses of the occurrence, after a period of 3½ months, creates a strong doubt on the prosecution story. It is also important to note here that the prosecution has produced only two eye-witnesses relating to the occurrence and both the eye-witnesses are partisan and sons of the deceased. No independent witness has been produced by the prosecution. PW-1 Azam has stated in his deposition that his statement was recorded after three months at Jhabreda Police Station. PW-2 Ajram has also stated in his cross-examination that police recorded his and Azam’s statements after three months of the occurrence. He has further stated that before the period of three months, no statement was recorded. PW-5 Ajay Chauhan, who is the investigating officer of this case, has nowhere stated in his deposition that he recorded the statements of Azam and Ajram. PW-6 V.C. Tamta, the second investigating officer in this case, has stated that he took over the investigation of this case on 28.9.2002 and recorded the statements of Azam and Ajram on 25.10.2002. He has stated that from 28.9.2002 to 25.10.2002, he could not trace out Azam for recording his statement. This witness has not stated as to why the statement of Ajram could be recorded earlier than 25.10.2002. In a case of gruesome murder, recording of the statements of the material eyewitnesses after such a long gap creates a serious doubt on the prosecution story. Further, the deposition of these two witnesses 15 clearly indicates that they had no occasion to see the actual occurrence, as PW-2 Ajram has stated that from tube-well, Naka at western side is about 50-60 paces and between tube-well and Naka, sugarcane fields are there and in those sugarcane fields one can easily hide. This witness has also stated that he and Azam stayed at Naka for changing the ‘Med’ and their father went to the tube-well and as soon as he reached the tube-well, they heard the sound of fire and when they reached at the place of occurrence, they saw that the accused persons were throwing their father into well. The story of fire and then rushing towards tube-well appears to be quite shaky, as PW-1 Azam has stated that he heard the sound of fire and saw the accused persons throwing his father into well. In the First Information Report, it is not there that the accused persons fired at his father and threw him into well. The story in the First Information Report is only that they heard the sound of fire and then they rushed towards tube-well and saw that the accused persons were throwing Shakeel into well. PW-1 has further deposed in his cross- examination that the accused persons were throwing his father into well after firing at him. This is certainly a development in the statement of this witness and he had not seen the occurrence of firing at Shakeel. PW-2 has not stated in his deposition that the accused persons were throwing his father after firing at him. He has simply stated that accused persons were throwing his father into well. The statement of 16 PW-6, V.C. Tamta, investigating officer, is important on this aspect, as he has stated that witness Azam did not tell him that he had saw the accused persons throwing his father into well after firing at him. He has stated that it was told by the witness that sound of fire was heard and when they rushed towards tube-well, then they saw that the accused persons were throwing his father into well. It is also important to mention here that these two witnesses are close relatives of the deceased as they are the sons. Their testimony cannot be brushed aside in a casual manner, but in any case it has be scrutinized thoroughly. It is also to be seen as to whether testimony of these witnesses is trustworthy or appears to be safe to warrant the conviction or not. We are of the definite view that firstly, these witnesses did not have occasion to be present at the scene of occurrence in the dark hours of the night for the purpose of irrigating the field especially during rainy season, and secondly, that the place where they were standing at the time of occurrence, they could not have seen the actual culprits committing offence at tube-well. Another aspect in this regard is that the site plan, which has been prepared by the investigating officer, nowhere indicates the place where the witnesses were standing at the time of occurrence. As we have already noted in the previous paragraphs that the site plan prepared by the investigating officer in a cursory manner creates a serious doubt on the prosecution case and it cannot be fixed as to what is the specific 17 point from where witnesses had seen the accused persons committing the crime. We have also observed that the evidence with regard to light at the place of occurrence is also shaky and on account of shaky evidence with regard to source of light at the place of occurrence, it was not possible for the witnesses to have identified the actual culprits. 18- It is further important to note here that post-mortem report indicates that apart from one firearm entry wound and one firearm exit wound, there were six other abrasions and lacerated wounds on the person of the deceased. The learned State counsel has tried to convince us that these injuries could be a result of thrash while accused persons had thrown the deceased into well. But, we do not find any substance in this argument. PW-8 Dr. K.K. Karoli, who conducted the autopsy on the dead body of the deceased, found eight injuries on the person of the deceased. Out of eight injuries, two injuries were of firearm wounds of entry and exit, and out of rest six injuries, there were five abrasions and one lacerated wound. The doctor in his cross-examination has stated that rest of these injuries on the person of the deceased was caused from blunt object. The prosecution has not come forward specifically that these injuries could have been caused on account of throwing the deceased into well by the accused persons. It was the duty of the prosecution to offer a sufficient explanation with