RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.647 of 2001 (Old No.625/1997) Yakub Ahmed & others ………….Appellants Versus The State …….. Respondent Dated: November 17, 2009 Sri Rajendra Kotiyal, learned counsel for the appellants Sri Nandan Arya, learned AGA for the State/respondent Coram: Hon’ble B.C. KANDPAL, J. Hon’ble DHARAM VEER, J. PER HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants’ under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 27.03.1997 passed by the Special Judge/Addl. Sessions Judge, Nainital in Sessions Trial No.54 of 1993, State Vs. Yakub Ahmed & others, whereby the learned Special Judge/Addl. Sessions Judge has convicted the appellants-accused Yakub Ahmed, Margub, Sharif and Ayub for the offences punishable under Sections 302/34, 324/34 and 323/34 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). Each of the appellants-accused was sentenced to life imprisonment 2 u/s 302/34 IPC. For the offences punishable u/Ss 324/34 IPC and 323/34 IPC, for each of the offences, each of them was sentenced to six months’ R.I. All the sentences were directed to run concurrently. 2. We have heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that P.W.1 Khalil Ahmed lodged an FIR stating therein that the appellant-accused Margub Ahmed had taken the motorcycle of his son on 14.7.1991 and in the evening of that day, he returned the motorcycle in a damaged condition. The complainant’s son Iqbal directed the appellant-accused Margub to get that motorcycle repaired on which some altercation took place between them and the appellant-accused went from there by threatening to see complainant’s son in the morning. On 15.7.1991 at about 6:30 A.M., both of sons of complainant namely Iqbal and Mohammed Ahmed were going in the teashop of Suresh Thakur and then the appellants-accused Yakub, Ayub, Margub and Sharif stopped complainant’s sons from their back. Appellants-accused Yakub and Ayub were having spades in their hands, appellant-accused Margub was having a Lathi while the appellant-accused Sharif was having lance (Ballam) in his hand. Appellant-accused Margub exhorted other appellants-accused to kill complainant’s sons. On this, complainant’s sons raised a noise on hearing which complainant also reached on the spot. Then all the appellants-accused started beating complainant’s sons with their respective 3 weapons viz. spade, Lathi and lance. Appellant- accused Ayub inflicted injury of spade on the neck of Mohd. Ahmed with intention to kill him; appellant- accused Sharif caused injury of lance in his abdomen and complainant’s son Iqbal was also been injured by the appellants-accused with spade, lance and Lathi. When the complainant tried to intervene, then the appellant-accused Margub also gave a blow of Lathi on his foot. On the noise raised by the complainant and his sons in order to save themselves, Akhtar Ali (PW3), Vishaluddin (PW2) and Jarrar Khan came on the place of occurrence and witnessed the incident and also saved them. It was further stated that on the neck and abdomen of Mohd. Ahmed and on the head and hands and foots of Iqbal, serious injuries had come. With the same averments, the FIR Ex.Ka-1 was lodged by the P.W.1 Khalil Ahmed on 15.7.1991 at 9:15 A.M. at P.S. Kichha. On the basis of FIR (Ex.Ka-1), Head Moharrir Kavindra Mohan prepared Chik FIR of the case, i.e. Ex.Ka-7. In the same process, entry was also made in the G.D., the carbon copy of which is Ex.Ka-8. Investigation of this case was entrusted to P.W.4 Inspector D.P. Singh. Injured Mohd. Ahmed was medically been examined on 15.7.1991 at 6 A.M. by PW5 Dr. P.C. Pant and injury report Ex.Ka-12 was prepared. Likewise injured Iqbal Ahmed was also medically been examined by same medical officer on 15.7.1991 at 6:45 AM and medical report Ex.Ka-13 was also prepared. Injured Khalil Ahmed was also medically been examined by P.W.7 Dr. R. Singh on 15.7.1991 at 10:00 A.M. and after the medical examination, injury 4 report Ex.Ka-17 was prepared. Thereafter supplementary report of injured Iqbal was also prepared by the same medical officer, i.e. Ex.Ka-14. The I.O. during course of investigation recovered a burnt motorcycle into possession and prepared Fard, i.e. Ex.Ka-3. The I.O. also took in his possession the plain and blood stained clay from the place where the injured Mohd. Ahmed was beaten and prepared Fard, i.e. Ex.Ka-4. The I.O. also prepared a Fard for taking plain and bloodstained clay of the place where the injured Iqbal was beaten, i.e. Ex.Ka-5. The I.O. during investigation, inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-2. Looking to the serious condition of injured Mohd. Ahmed, he was referred to Distt. Hospital, Bareilly and the discharge slip of injured Mohd. Ahmed is on record. While taking to Distt. Hospital, Bareilly, injured Mohd. Ahmed succumbed to his injuries and the information in that regard was given in the police station by Hazi Shakur Ahmed on the basis of which case was converted to Section 302 IPC from Section 307 IPC and entry was also made in the G.D. on 15.7.1991 at 1:00 PM, the carbon copy of which is on record. Thereafter on the same day i.e. on 15.7.91 the inquest of deceased Mohd. Ahmed was conducted by S.I. P.C. Verma and inquest report was also prepared i.e. Ex.Ka.9. Along with the inquest, necessary documents viz. Challan Lash Ex.Ka-10 and sketch of dead body Ex.Ka-11 were also prepared. On 15.7.1991 at 4:30 P.M., the post- mortem of deceased Mohd. Ahmed was conducted by P.W.6 Dr. S.P. Ojha who after conducting the post- 5 mortem, prepared the post-mortem report, i.e. Ex.Ka- 16. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, filed the charge sheet against the appellants-accused under Sections 302/307/323 IPC, i.e. Ex.Ka-6. 4. After receiving the charge sheet, learned Munsif Magistrate, Rudrapur committed the case to the court of Sessions on 25.01.1993 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. The case was transferred to Special Judge (Addl. Sessions Judge), Nainital for disposal according to law. 5. Learned Special Judge (Addl. Sessions Judge), Nainital framed the charges against the appellants/accused Yaqub Ahmed, Ayyub, Margub and Sharif under Sections 302 r/w Section 34 IPC, u/s 307 r/w Section 34 IPC and u/s 323 r/w Section 34 IPC. The charges were read over and explained to appellants/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Khalil Ahmed, complainant and injured, P.W.2 Vishaludin, eyewitness, P.W.3 Akhtar Ali, eyewitness, P.W.4 Dy. S.P D.P. Singh, I.O. of the case, P.W.5 Dr. P.C. Pant, who initially examined Mohd. Ahmed and Iqbal, P.W.6 Dr. S.P. Ojha, who conducted the post-mortem and P.W.7 Dr. R. Singh, who examined the injured Khali Ahmed. 6 7. After that the statement of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Special Judge/Addl. Sessions Judge, Nainital vide judgment and order dated 27.03.1997 convicted and sentenced the appellants/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 9. Before any further discussion, it is pertinent to mention that injured Mohd. Ahmed was initially medically been examined on 15.7.1991 at 6:00 AM by P.W.5 Dr. P.C. Pant who in the injury report Ex.Ka-12 found the following injuries: - 1. “An incised wound 6 cm x 2 cm x cannot be probed, present on left side of neck 1 cm below left angle of mandible. Wound is present in horizontal direction, fresh bleeding present. Margins sharp and everted. 2. A stab wound 3 cm x 2 cm x cannot be probed is present in the left sub-costal region 15 cm away from umbilicus at 2 7 o’clock position. Margins clean and sharp, fresh bleeding present.” Inference-(1) Above both injuries are caused by some sharp object. Duration is fresh. Both injuries are dangerous to life. Both are under observation. Advised x-ray abdomen. 10. To prove the above-said injury report Ex.Ka- 12, the prosecution has examined P.W.5 Dr. P.C. Pant who has stated that on 15.7.1991 at 6:00 AM he had medically examined Mohd. Ahmed and recorded the above-noted injuries. He also stated that both the above-said injuries could be caused by some sharp edged weapon like spade and lance. Both the injuries were fresh and were dangerous to life. 11. Similarly, injured Iqbal Ahmed was also been medically examined on 15.7.1991 at 6:45 PM by P.W.5 Dr. P.C. Pant and the following injuries were found in his injury report Ex.Ka-13: - 1. “Lacerated wound 5 cm x 1.5 cm x bone deep is present at the top occipital bone in transverse direction. Margins of the wound irregular. Fresh bleeding present. 2. Lacerated wound 3 cm x 1 cm x bone deep is present in longitudinal direction the right end of injury no.1. Margins irregular, fresh bleeding present 8 3. Incised wound measuring 6 cm x 1.5 cm x muscle deep is on the left arm, 6 cm above left elbow joint. Margins clear and sharp, fresh bleeding present. 4. Punctured wound 1 cm x .5 cm x cannot be probed on the left arm on the lateral side, 10 cm below left elbow joint. Swelling is present around the wound 5. Contusion 6 cm x 3 cm is present on left side back over infra scapular region. Contusion is soft tender and red colour 6. Dry burn 5 cm x 4 cm is present on the right leg 15 cm above ankle joint on the lateral side, surface black colour”. Inference-Injury nos.1, 2 and 5 are caused by blunt object, 3 & 4 are caused by some sharp object. Injury No.6 is caused by some hot object. Duration of all injuries is fresh. Advised x-ray for injury no.1, 2 and injury no.4. Injury no.3, 5 and 6 are simple in nature, other are under observation. 12. After the x-ray, P.W.5 Dr. P.C. Pant also prepared the supplementary report of Iqbal and stated as under: - “X-ray injury no.1-Shows no boney lesion on skull according to x-ray report given by Suptt. UPHC Kichha, Nainital 9 X-ray injury no.4-Shows no boney lesion according to x-ray report given by Suptt. UPHC Kichha, Nainital” Inference-So above injuries are simple in nature. 13. To prove the injury report and supplementary report of Iqbal, the prosecution has examined P.W.5 Dr. P.C. Pant who has proved the injury report Ex.Ka- 13. He further stated that injuries no.1, 2 and 5 could be caused by some blunt weapon like Lathi and injuries no.3 and 4 could be caused by some sharp edged weapon like lance and spade. Injury no.6 could be caused by some hot object. All the injuries could have been caused before one hour of conducting the medical examination. He has also proved the supplementary report Ex.Ka-14 of Iqbal prepared by him. He also issued the discharge slip of Iqbal on 18.7.1991 i.e. Ex.Ka-15. 14. Injured Khalil Ahmed was also medically been examined on 15.7.1991 at 10:00 AM by P.W.7 Dr. R. Singh who in the injury report Ex.Ka-17 found the following injuries: - 1. Contusion of the size 10 cm x 3 cm present on the outer aspect of lower part of left thigh. 10 cm proximal to left knee joint, placed horizontally, colour red. Opinion-Injury is simple, caused by blunt object. Duration is fresh. 10 15. To prove the above-said injury report, the prosecution has examined P.W.7 Dr. R. Singh who stated that on 15.7.1991 at 10:00 AM he had medically examined the inured Khalil Ahmed and recorded the above-noted injury. He further stated that the injuries were simple and could be caused by Kundala. Those injuries could also be caused by a Lathi and the injuries were fresh. He has also proved the injury report Ex.Ka- 17 prepared by him. 16. Later on the injured Mohd. Ahmed succumbed to his injuries and his post-mortem was conducted by P.W.6 Dr. S.P. Ojha on 15.7.1991 at 4:30 P.M. The medical officer after conducting the post- mortem opined the cause of death as under: - “Patient died as a result of hemorrhage and shock due to ante-mortem injuries” 17. To prove the post-mortem report, the prosecution has also examined P.W.6 Dr. S.P. Ojha who stated that on 15.7.1991 at 4:30 PM he conducted the autopsy on the dead body of Mohd. Ahmed. He also stated that the cause of death was hemorrhage and shock due to ante-mortem injuries. He also proved the post-mortem report prepared by him, i.e. Ex.Ka-16. 18. To further prove its case, the prosecution has examined PW1 Khalil Ahmed who stated that prior to one day of the date of incident, appellant-accused Margub had taken the motorcycle of his son Iqbal but when he returned the motorcycle in the evening, it was 11 in a damaged condition. When Iqbal directed the appellant-accused Magrub to get the same repaired then some altercation took place. On the next day at 5:30 A.M., his son Iqbal and Mohd. Ahmed were going on the teashop of Suresh to have tea. On the way, the appellants-accused Margub, Ayub, Sharif and Yakub met them. Appellant-accused Sharif was having lance, Margub was having Lathi and Ayub was having spade, who stopped his sons from their back. On the exhortation of Magrub and Ayub, all the accused started beating his sons. Appellant-accused Sharif hit lance on the abdomen of his son Ahmed while the appellants-accused Ayub and Yakub hit on the neck of Mohd. Ahmed with spades. When he went to save his sons, then the appellant-accused Magrub also gave a blow of Lathi. Meanwhile, Jarraf, Akhtar and Vishaluddin came who intervened on which the appellants-accused ran away from there. The appellant- accused Magrub brought the motorcycle and the crossway and burnt the same. Thereafter he took his sons at the police station and later on at the hospital with the help of villagers. He also got the report scribed from Raish and lodged the same in the police station, i.e. Ex.Ka-1. In the hospital, he along with his sons Iqbal and Mohd. Ahmed was medically been examined. His son Mohd. Ahmed was referred for Bareilly and while taking him to Bareilly, on the way he succumbed to his injuries. He also stated that by mistake the time of incident was written as 6:30 A.M. in the FIR. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement 12 which may create any doubt in his statement. The statement of this witness is reliable and believable. 19. P.W.2 is Vishaluddin who stated that on the date of incident at about 5-5:30 AM, he was going to have tea in the hotel of Suresh. At once he heard noise. He was accompanied by Jarraf and Akhtar. Then he and his associates went on the place of occurrence where they saw that the appellant-accused Yakub was exhorting to kill. Appellant-accused Sharif was having lance (BALLAM), appellants-accused Yakub and Ayyub were having spades in their hands while the appellant- accused Magrub was having Lathi. Appellant-accused Sharif inflicted injury of lance on the abdomen of Mohd. Ahmed (deceased) while the appellant-accused Yakub hit spade on the neck of Mohd. Ahmed and then they pounced upon Iqbal to cause injury to him. Appellant- accused Ayyub also caused injury of spade on the neck of Mohd. Ahmed. When Khalil Ahmed went to save then the appellant-accused Magrub also gave a blow of Lathi to him. Then Mohd. Ahmed and Iqbal fell down and he went to get rickshaw. When he came after taking rickshaw then he saw that the appellant-accused Magrub was setting the motorcycle at fire. Thereafter, the injured persons were taken to hospital in rickshaw and after that he came back. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable. 13 20. P.W.3 Ashraf Ali, eyewitness of the case, has also fully corroborated the evidence of P.W.1 Khalil Ahmed and P.W.2 Vishalludin. 21. P.W.4 D.P. Singh, Dy. S.P., IO of the case, has stated that on 15.7.1991 he was posted as In- charge Inspector at P.S. Kichha and he started investigation of this case. He prepared the site plan of the place of occurrence i.e. Ex.Ka-2. He also recovered the damaged motorcycle Rajdoot No.WBH 5361 and prepared Fard, i.e. Ex.Ka-3. He also took the plain and bloodstained clay and prepared the Fards i.e. Ex.Ka.4 and Ex.Ka-5. After completing the investigation, he submitted the charge sheet against the appellants- accused, i.e. Ex.Ka-6. Head Moharrir Kavindra Mohan prepared Chik FIR of this case, i.e. Ex.Ka-7 and he also made entry in the G.D., carbon copy of which is Ex.ka- 8. Inquest report of deceased Mohd. Ahmed was prepared by SI P.C. Verma, i.e. Ex.Ka-9. Challan Lash and sketch of dead body was also prepared by S.I. P.C. Verma, i.e. Ex.Ka-10 and Ka-11 respectively. 22. After that the statement of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in defence. 14 23. Sri Rajendra Kotiyal, learned counsel for the appellants-accused argued that the prosecution has not proved its case against the appellants-accused beyond reasonable doubt. We do not find any force in this argument for the reasons which are to be given hereunder: - 24. This is a case of direct evidence. The prosecution in order to prove its case, has examined PW1 Khalil Ahmed, injured and the eyewitness of the incident, who stated that prior to one day of the date of incident, appellant-accused Margub had taken the motorcycle of his son Iqbal but when he returned the motorcycle in the evening, it was in a damaged condition. When Iqbal directed the appellant-accused Magrub to get the same repaired then some altercation took place. On the next day at 5:30 A.M., his sons Iqbal and Mohd. Ahmed were going on the teashop of Suresh to have tea, then on the way, the appellants- accused Margub, Ayub, Sharif and Yakub met them. Appellant-accused Sharif was having lance (BALLAM which is a sharp edged weapon), appellant-accused Margub was having Lathi in his hand and appellant- accused Ayub was having a spade, who stopped his sons from their back. On the exhortation of Magrub and Ayub, all the accused started beating his sons. Appellant-accused Sharif hit lance on the abdomen of his son Ahmed while the appellants- accused Ayub and Yakub hit on the neck of Mohd. Ahmed with spades. After that the appellants- accused pounced upon Iqbal. Iqbal was also been injured by the appellants-accused with their respective 15 weapons viz. spade, lance and Lathi. When Khalil Ahmed went to save his sons, then the appellant- accused Magrub also gave a blow of Lathi to him. Meanwhile, Jarraf, Akhtar (PW3) and Vishaluddin (PW2) came, who intervened in the matter on which the appellants-accused ran away from there. Thereafter, Mohd. Ahmed was taken to the hospital. The appellant- accused Magrub brought the motorcycle on the crossway and thereby burnt the same. He also got the report scribed from Raish and lodged the same in the police station, i.e. Ex.Ka-1. In the hospital, he along with his sons Iqbal and Mohd. Ahmed was medically been examined. His son Mohd. Ahmed was referred for Bareilly and while taking him to Bareilly, on the way, he succumbed to his injuries. He also stated that by mistake the time of incident was written as 6:30 AM. In the FIR. The statement of this witness is reliable, believable and natural and the same gets full corroboration from the direct evidence of P.W.2 Vishalludin and P.W.3 Akhtar Ali, who are also the eyewitnesses of the incident. 25. The statement of Khalil Ahmed also gets corroboration from the medical evidence. Initially, the injured Mohd. Ahmed was medically examined by P.W.5 Dr. P.C. Pant on 15.7.1991 at 6:00 AM. The medical officer has stated that both the injuries found on the body of Mohd. Ahmed could be caused by some sharp edged weapon like spade and lance. Both the injuries were fresh and were dangerous to life. Looking to the serious condition of Mohd. Ahmed, he was referred to Bareilly District 16 Hospital, where on the way, he succumbed to his injuries. Thereafter, the post-mortem on the dead body of Mohd. Ahmed was conducted by P.W.6 Dr. S.P. Ojha on 15.7.1991 at 4:30 PM., who has stated opined that the cause of death was hemorrhage and shock due to ante-mortem injuries. Similarly, injured Iqbal was also medically been examined by P.W.5 Dr. P.C. Pant on the same day i.e. on 15.7.1991 at 6:45 AM and the medical officer about his injuries has also stated that injuries no.1, 2 and 5 could be caused by some blunt weapon like Lathi and injuries no.3 and 4 could be caused by some sharp edged weapon like lance and spade. Injury no.6 could be caused by some hot object. Likewise, injured Khalil Ahmed (PW1) was also medically been examined on the same day at 10:00 AM by P.W.7 Dr. R. Singh and the medical officer on his person found contusion of the size 10 cm x 3 cm on the outer aspect of lower part of left thigh. 10 cm proximal to left knee joint, placed horizontally, colour red. P.W.7 Dr. R. Singh has also stated that the injuries found on the person of Khalil Ahmed were simple and could be caused by Kundala. Those injuries could also be caused by a Lathi and the injuries were fresh. Therefore, it is proved that medical evidence also fully corroborates the version of the eyewitnesses as well as the entire prosecution case. 26. Learned counsel for the appellants-accused further argued that in the FIR, the incident was said to be happened on 15.7.1991 at 6:30 AM while P.W.1 Khalil Ahmed and other witnesses have disclosed the 17 time of incident at 5:30 AM, which creates a reasonable doubt in the prosecution story. We again do not find any force in this argument because all the three eyewitnesses have disclosed the time of incident as 5:30 AM. Even P.W.1 Khalil Ahmed has stated in his examination in chief that the time of incident was wrongly been written as 6:30 AM and in his cross- examination, he clearly stated that the time of incident was 5:30 AM. Even the deceased Mohd. Ahmed was initially medically been examined by P.W.5 Dr. P.C. Pant on 15.7.1991 at 6:00 A.M., then in that context also, it is not possible that the incident had occurred at 6:30 AM. Therefore, it is also clear that the time of incident was wrongly been written by Raish, scriber of the FIR, and by mistake he wrote the time of incident as 6:30 AM instead of 5:30 AM. 27. It was further argued on behalf of the appellants-accused that P.W.3 Akhtar Ali has stated that the appellant-accused Sharif was having a gun in his hand, however as per the prosecution evidence, lance (BALLAM) was shown in the hand of appellant- accused Sharif and there is no injury of gun on the body of deceased, which creates a reasonable doubt in the prosecution story. We again find ourselves in disagreement with this argument because from the very beginning of the case i.e. in the FIR, the appellant-accused Sharif was shown