HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.285 OF 2003 Shabbir .……….. Appellant Versus The State ..…….. Respondent Dated: November 5, 2009 Mr. Rajendra Singh, Advocate for the appellant Mr. Nandan Arya, AGA for the State Hon’ble B.C. Kandpal, J. Hon’ble Dharam Veer, J. Judgment: [Per Hon’ble Dharam Veer, J. (Oral)] This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 15.9.2003 passed by Sessions Judge, Haridwar in Sessions Trial No.26/2000, State Vs. Shabbir & others, whereby the learned Sessions Judge convicted the accused/appellant under Section 302 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous life imprisonment. However, the co-accused persons, namely, Naeem and Kabir were acquitted by the trial court of the charge levelled against them. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution story is that complainant Mushtafa lodged a written report at Police Station, Bhagwanpur stating therein that on 6/7.9.1999 in the night, he, his brother Behroj, nephew Waseem and his father Ali 2 Hasan were sleeping in the veranda, where the lantern was burning. At about 12 in the night after hearing the sound of footsteps he wake up and saw that the accused/appellant Shabbir armed with Palkati, his brother Kabeer armed with Farsa and Naeem armed with lathi were coming towards the veranda. Seeing these persons, his brother and nephew also wake up. He enquired the matter from the accused persons. On this, co-accused Naeem retorted **vyh glu lkyk dgk gSA og cgqr cM+k eqdnes ckt curk gSA vkt mlh dks ns[kuk gSA** Then co- accused Kabeer told that Ali Hasan is sleeping here. On this, the accused/appellant Shabbir inflicted a blow of Palkati on the neck of Ali Hasan (deceased). They ran towards them then the accused/appellant and the co-accused fled away from the place of occurrence. In the light of their torch and lantern, Fareed Akhtar @ Babu and Tehmur of the village had seen these accused persons while running from there. It is further alleged that litigation in respect of land is going on between them and the co-accused persons. His father is contesting this case and due to this animosity the said incident had taken place. With the aforesaid averments, Mushtafa (PW1) got the report scribed by Faiyaaz and lodged the same at Police Station Bhagwanpur on 7.9.1999 at 01:30 AM. That FIR is Ext.Ka-1. On the basis of this FIR, Chik FIR was prepared by Head Mohirror Prakash Veer, i.e. Ext.Ka-3. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-4. Investigation of this case was entrusted to Station Officer O.P. Sisodiya (PW7). On 7.9.1999, inquest report of the deceased was prepared by the I.O., which is Ext.Ka-5. Along with the inquest report, other papers viz. sketch of the dead body Ext.Ka-15, Police Form No.13 Ext.Ka-16, specimen of seal Ext.Ka-17 and letter sent to C.M.O. for conducting post-mortem of the deceased Ext.Ka- 18 were also prepared. Postmortem on the dead body of 3 deceased Ali Hasan was conducted by PW5 Dr. O.P. Sharma on 7.9.1999 at 4:15 PM, who after conducting the post-mortem prepared the report, i.e. Ext.Ka-2. The I.O. during the course of investigation inspected the place of incident and prepared the site-plan, i.e. Ext.Ka-6. The I.O. also recovered the bloodstained and plain clay and took the same into possession and prepared the Fard, i.e. Ext.Ka-7. He also got recovered the bloodstained clothes of the deceased vide Fard Ext.Ka-8. He also took in his possession the lantern burning at the time of incident and prepared the Fard Ext.Ka-9. On the pointing out of the accused/appellant Shabbir, the I.O. recovered the weapon Palkati used in the aforesaid crime and after taking the same in his possession prepared the Fard, Ext.Ka-10. The I.O. also prepared the site-plan of the place from where the Palkati was recovered, i.e. Ext.Ka-11. The I.O. also got recovered the torches which were lighting at the time of incident vide Fards Ext.Ka-12, Ka-13 and Ka-14. During the course of investigation, the I.O. recorded the statements of the witnesses and on completion of the investigation, submitted the charge sheet against the accused/appellant and the co-accused, i.e. Ext.Ka-19. 4. After receiving the charge sheet, learned Addl. Chief Judicial Magistrate, Roorkee committed the case to the court of Sessions on 18.1.2000 after giving necessary copies to the accused/appellant as provided u/s 207 Cr.P.C. 5. On 1.7.2000, learned IIIrd Addl. Sessions Judge, Haridwar framed the charge u/s 302 r/w 34 IPC and further u/s 504 IPC against the accused/appellant and the co- accused persons (acquitted by the trial court). The charge was read over and explained to the accused/appellant and the co-accused, who pleaded not guilty and claimed to be tried. 4 6. In order to prove its case, the prosecution examined as many as seven witnesses. PW1 Mushtafa is the eyewitness and complainant of the case, PW2 Behroj, PW3 Tehmur and PW4 Waseem are also eyewitnesses of the case, PW5 Dr. O.P. Sharma is the Medical Officer, who conducted the postmortem on the dead body of the deceased and prepared the postmortem report Ext.Ka-2, PW6 Prakash Veer is the Head Mohirror and PW7 S.I. Om Prakash is Investigating Officer of the case. 7. Thereafter the statements of the accused/appellant and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In defence, they did not produce any documentary evidence, however, in oral evidence Shaukat as DW1and Jani as DW2 were produced by the accused persons. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Haridwar vide his judgment and order dated 15.9.2003 convicted and sentenced the accused/appellant as stated above. However, the co-accused Kabeer and Naeem were acquitted by the trial court of the charge levelled against them. Feeling aggrieved with the said judgment and order, the accused/appellant has preferred this appeal before this Court. 9. Before any further discussion, it would be pertinent to mention the ante-mortem injuries found on the body of the deceased Ali Hasan, whose postmortem was conducted by Dr. O.P. Sharma (PW5) on 7.9.1999 at 4:15 PM 5 and who also prepared the post-mortem report Ext.Ka-2. Following ante-mortem injury was found on the dead body of the deceased:- (i) Incised wound 12 cm x 7 cm x vertebral deep right side neck starting from 3.0 cm below right mandibular angle to right side back of neck obliquely placed horizontally forward. Margin clear cut well defined. 4th circle vertebral cut, all measure vertebral of right side neck, all margins cut. 10. To prove the aforesaid ante-mortem injury, the prosecution examined PW5 Dr. O.P. Sharma, Medical Officer who has stated that on 7.9.1999 he was posted on the aforesaid post at G.D. Hospital, Haridwar. On that day at 4:15 PM, he conducted the post-mortem examination on the dead body of the deceased Ali Hasan and found the above-noted ante-mortem injury on the dead body and also prepared the post-mortem report Ext.Ka-2. He further stated that the death of the deceased could have been caused in the intervening night of 6/7.9.1999. He further stated that cause of death was the ante-mortem injuries sustained by the deceased. 11. To prove its case further, the prosecution examined PW1 Mushtafa who has stated that on the date of incident at about 12 in the night he and his brother Behroj, his nephew Waseem and his father Ali Hasan (deceased) were sleeping in the veranda. After hearing the sound of footsteps, he wake up and saw that the accused/appellant Shabbir was armed Palkati, Kabeer was armed with Farsa and Naeem was armed with Lathi. He asked 6 accused/appellant Shabbir about the matter. On this, co- accused Naeem retorted **lkyk vyh glu dgk gS og cgqr cM+k eqdnesckt curk gS vkt mls gh ns[kuk gSA** Then the co-accused Kabeer told that Ali Hasan is sleeping here and then the accused/appellant Shabbir inflicted a blow of Palkati on the neck of his father Ali Hasan, who was sleeping at that time. Thereafter the accused persons fled from the spot. While running, Fareed Akhtar alias Babu and Tehmur identified these accused persons in the light of their torch and lantern. He further stated that a case in respect of land dispute is going on between them and the accused persons and his father was doing its Pairvi. He further stated that he got scribed the report of the said incident by Fayiaz and thereafter lodged the same in the police station. He has proved the report Ext.Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 12. PW2 Behroj is the eyewitness of the case who has corroborated the statements of PW1 Mushtafa as well as the contents of First Information Report. 13. PW3 Tehmur is the witness of the case who has also supported the statements of PW1 Mushtafa and PW2 Behroj. 14. PW4 Waseem is another eyewitness of the case who too has corroborated the statements of PW1 Mushtafa and PW2 Behroj. 15. PW6 is Prakash Veer, Head Mohirror, who has stated that on 7.9.1999 he was posted at P.S. Bhagwanpur. On that day, report Ext.Ka-1 was lodged by PW1 Mushtafa 7 on the basis of which he prepared the Chik FIR (Ext.Ka-3) of the case. Necessary entries were also made by him in the G.D, carbon copy of which is Ext.Ka-4. 16. PW7 S.I. Om Prakash is the Investigating Officer of the case, who has stated that in September/October he was posted as Station Officer at Police Station Bhagwanpur. On the basis of report Ext.Ka-1 lodged by Mushtafa (PW1), case u/s 302 and 504 IPC was registered in the police station and the investigation was entrusted to him. During the course of investigation, he prepared the inquest report (Ext.Ka-5) of the deceased. Along with the inquest report, he also prepared other papers viz. sketch of the dead body (Ext.Ka-15), Police Form No.13 (Ext.Ka-16), specimen of seal (Ext.Ka-17) and letter sent to C.M.O. for conducting post-mortem of the deceased (Ext.Ka-18). He also inspected the place of incident and prepared the site-plan Ext.Ka-6. He also recovered the bloodstained and plain clay from the place of occurrence vide Ext.Ka-7. He also recovered the bloodstained clothes of the deceased vide Fard Ext.Ka-8. He also took in his possession the lantern burning at the time of incident and prepared the Fard Ext.Ka-9. On the pointing out of the accused/appellant Shabbir, he also recovered the weapon Palkati used in the aforesaid crime and after taking the same into possession prepared Fard, Ext.Ka-10. Site-plan (Ext.Ka-11) of the place from where the Palkati was recovered was also prepared by him. He also recovered the torches by which the witnesses identified the accused persons while running from the place of incident vide Fards Ext.Ka-12, Ka-13 and Ka-14. During the course of investigation, he also recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet Ext.Ka-19 against the accused/appellant and the co-accused persons. 8 17. Thereafter the statements of the accused/appellant and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In defence, they did not produce any documentary evidence, however, in oral evidence Shaukat as DW1 and Jani as DW2 were produced by the accused persons. 18. DW1 Shaukat has stated that the deceased Ali Hasan was well-known to him. He has stated that in front of the drawing room of the deceased his drawing room was situated in the west. He further stated that on the date of incident at about 10:30/11:00 PM he was sleeping in his drawing room. Grandson of the deceased was shouting that his grandfather has been murdered. Then he went at the spot where no light was there. Thereafter Jani, Sultan, Mushtafa, Behroj and some other persons of the village also reached at the place of occurrence. Then Mushtafa burnt the lantern. He further stated that the said incident had not seen by anyone. Next date at 10/11 AM police reached at the spot. He further stated that the deceased and his son Behroj were not in good terms. In the cross-examination, he stated that he had not told the aforesaid fact to the police on the date of incident as police had not enquired anything from him. 19. DW2 Jani has stated that the deceased is well- known to him. On the date of incident at about 11:30 PM, he was in his house. Waseem raised shout that his grandfather has been killed. Then he reached at the spot and so many other persons also reached there. He further stated that when he reached at the spot there was no light. The persons present on the spot were only saying that Ali Hasan has been 9 murdered but no one was taking name of the accused persons. He further stated that he remained at the spot for about 10 minutes. In the cross-examination, he stated that he could not state who has burnt the lantern. He further stated that the Police had not enquired the matter from him and he also did not tell anything to the Police. 20. Mr. Rajendra Singh, learned counsel for the appellant/accused submitted that the prosecution has not proved the case against the accused/appellant beyond reasonable doubt. We do not find any substance in the submission of learned counsel for the appellant/accused. As per the statement of PW1 Mushtafa on the date of incident i.e. on 6/7.9.1999 at about 12 in the night he and his brother Behroj, his nephew Waseem and his father Ali Hasan (deceased) were sleeping in the veranda. After hearing the sound of footsteps, he wake up and saw that the accused Shabbir was armed Palkati, Kabeer was armed with Farsa and Naeem was armed with Lathi. His brother and nephew also wake up. He asked accused/appellant Shabbir about the matter. On this, co-accused Naeem retorted **lkyk vyh glu dgk gS og cgqr cM+k eqdnesckt curk gS vkt mls gh ns[kuk gSA** Then co- accused kabeer told that Ali Hasan is sleeping here and then the accused/appellant Shabbir inflicted a blow of Palkati (sharp edged weapon) on the neck of his father Ali Hasan, who was sleeping at that time. Thereafter the accused persons fled from the spot. While running, Fareed Akhtar alias Babu and Tehmur identified these accused persons in the light of their torches and lantern. It was further stated by him that a case in respect of land was going on between them and the accused persons and Ali Hasan (deceased) was doing its Pairvi. Report Ext.Ka-1 of the said incident was scribed by Faiyaz and then was lodged by him at police station. The evidence of this witness finds full support from 10 the statements of PW2 Behroj, PW3 Tehmur and PW4 Waseem. Besides this, his statement further gets corroborated from the medical evidence of PW5 Dr. O.P. Sharma as well as from the post-mortem report Ext.Ka-2. In the post-mortem report, cause of death was shown shock due to hemorrhage caused by ante-mortem injuries. 21. Learned counsel for the appellant/accused further argued that as per the opinion of Medical Officer Dr. O.P. Sharma (PW5) injury caused to the deceased on his neck was not possible to come by means of Palkati, it could have been caused if someone has caused injury to the deceased after falling down on his earth. Thus, on the basis of this statement given by medical officer, palkati recovered from the house of the appellant/accused does not get proved to be used in the said crime and as such the appellant/accused is entitled for benefit of doubt. We do not find any substance in the argument advanced by learned counsel for the appellant/accused as the Palkati which was said to be used in the said crime was shown to the medical officer at the time of recording his evidence i.e. about two years’ after the said incident and upto that period the weapon was kept in Malkhana that would probably be full of dust and the weapon would have lost its sharpness. Hence, this part of the doctor’s statement that the injury was not caused by Palkati does not falsify the prosecution story when there is direct evidence of four independent witnesses against the appellant/accused. Apart from this, one incised wound was found on the dead body of the deceased Ali Hasan while conducting the post-mortem and the cause of death of deceased was shock due to hemorrhage caused by ante- mortem injury. 11 22. Further, the FIR of the case is also prompt. The said incident took place on 7.9.1999 at 12 in the night and the FIR was lodged by the son of the deceased, Mushtafa (PW1) at 01:30 AM at Police Station, Bhagwanpur which was at a distance of 5 kilometers from the place of occurrence. This fact also strengthens the prosecution story. 23. Thus, as per the aforesaid detailed discussion, we are of the considered view that on account of the previous enmity, the accused/appellant Shabbir, on the date of incident i.e. on 6/7.9.1999 at 12 in the night, entered into the veranda of the house of Ali Hasan (deceased) and with intention to kill him caused injuries to him with Palkati (sharp edged weapon) when he was sleeping in his veranda. As a result of the injuries caused by the appellant/accused Shabbir Ali Hasan (deceased) died at the spot. The prosecution has been fully successful in proving the case against the accused/appellant under Section 302 IPC and the judgment and order of the court below, in view of the above narrated facts and circumstances of the case, is correct and justified and requires no interference. 24. For the reasons recorded above, the appeal is dismissed. The judgment and order dated 15.9.2003 passed by Sessions Judge, Haridwar in Sessions Trial No.26/2000, State Vs. Shabbir & others, is confirmed. Consequently, the conviction and sentence as directed by the court below, which has been discussed above, is also confirmed. 25. A copy of this judgment shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) (B.C.Kandpal, J.) 05.11.2009 RG