IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.769 of 2001 (Old No.1350 of 1991) Yaseen S/o Bhau Hashmat, R/o Badli Tanda, P.S. Badli Tanda, District Rampur …….….…. Appellant Versus The State …………… Respondent Dated: July 21, 2008 Sri Deep Chandra Joshi, learned counsel for the appellant Sri Harish Pujari, learned Addl. G.A. for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 11.07.1991 passed by IInd Additional Sessions Judge, Nainital in Sessions Trial No.149 of 1990, State Vs. Yasin & others, whereby the learned IInd Additional Sessions Judge has convicted the appellant/accused Yaseen under Section 201 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to two years’ rigorous imprisonment with fine of Rs.500/- and in default of payment of fine, further six months R.I. was awarded. However, the appellant/ accused Yaseen was acquitted of the charge punishable u/s 302 IPC. Co-accused Mohd. Sabir & Zamil were also acquitted of the charge punishable under Section 201 IPC. 2. I have heard Sri Deep Chandra Joshi, learned counsel for the appellant and Sri Harish Pujari, learned Additional Government Advocate for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 19.3.1989, Balbir Singh S/o Sohan Singh, Village Pradhan, Gaon Sabha Ummedpur, P.S. Ramnagar, has informed at Police Station Ramnagar that a dead body was lying in the area of Village Motipur Negi. The said information was noted in the G.D., the copy of G.D. is Ex.Ka-7 and the said information was received in the P.S. Ramnagar on 19.3.1989 at 11:10 A.M. The dead body was later on identified to be the dead body of Saeed Ahmed. On this information, the police reached on the spot and prepared the inquest report of the dead body, the inquest report is Ex.Ka-6. Letter sent by the I.O. to M.O. In-charge, Civil Hospital, Kashipur for conducting the post-mortem on the person of deceased Saeed Ahmed is Ex.Ka-10, report of P.S. Ramnagar is Ex.Ka-11, Photo Lash is Ex.Ka-12 and Police Form No.13 is Ex.Ka-13. The post-mortem on the body of deceased Saeed Ahmed was conducted on 19.3.1989 at 4:30 P.M., the post-mortem report is Ex.Ka-5. On 20.3.1989, P.W.1 Iqbal (brother of deceased Saed Ahmed) lodged the FIR in the Police Station that on 18.3.1989, he had gone to Bareilly. When he came back at his house on 20.3.1989 at 8:00 A.M., then P.W.3 Krishan Avtar and Mohd. Akhtar informed him that his brother Saed Ahmed (deceased) was last seen by them on 18.3.1989 at 10:00 P.M. along with Shakur, Sharif, Zamil (co-accused acquitted by the trial court), Yaseen (present appellant), Jumma and Sabir (co-accused acquitted by the trial court). The said report was given by P.W.1 Iqbal in the P.S. Ramangar on 20.3.1989 at 9:15 A.M., on the basis of which Chik FIR was prepared, the carbon copy of that Chik FIR is Ex.Ka-8. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-2. S.O. J.D.Arya of P.S. Ramnagar himself started the investigation of the case. During the course of investigation, the I.O. took the appellant/accused Yaseen on police remand by the order of ACJM, Kashipur on 3.4.1989. It was also shown that on 4.4.1989, on the pointing out of appellant/accused Yaseen, a wristwatch and a purse was recovered from the bushes. For that purpose, a recovery memo was also prepared, i.e. Ex.Ka-1. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plans i.e. Ex.Ka-3 & Ex.Ka-4. After completing the investigation, the I.O. submitted the charge sheet against the appellant/accused Yaseen and also against the co- accused Mohd. Sabir & Zamil in the court u/s 302/201 IPC, i.e. Ex.Ka-9. 4. Learned ACJM, Kashipur has committed the case to the court of Sessions on 17.05.1990 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 5. The case was transferred to IInd Additional Sessions Judge, Nainital by Sessions Judge, Nainital for disposal according to law. 6. On 31.07.1990, learned IInd Additional Sessions Judge, Nainital framed charge against the appellant/ accused Yasin under Sections 302/201 IPC and also against co-accused Mohd. Sabir & Jamil (acquitted by the trial court) u/s 201 IPC. The charge was read over and explained to the appellant and other co-accused persons, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Iqbal, complainant and brother of deceased Saeed, P.W.2 Sabur, eyewitness, P.W.3 Krishna Avtar, last seen witness, P.W.4 Rais Ahmed, eyewitness of the recovery and brother of deceased, P.W.5 Babu, P.W.6 Mohd. Sarif, and P.W.7 Constable Nar Ram. 8. Thereafter, the statements of the appellant/ accused Yasin and other co-accused Sabir & Zamil (acquitted by the trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against them. However, in defence, they had not produced any oral or documentary evidence. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned IInd Additional Sessions Judge, Nainital vide his judgment and order dated 11.07.1991 convicted the appellant/accused Yaseen under Section 201 IPC and sentenced him to two years’ rigorous imprisonment with fine of Rs.500/- and in default of payment of fine, further six months R.I. was awarded. However, the appellant/accused Yaseen was acquitted of the charge punishable u/s 302 IPC. Co-accused Mohd. Sabir & Zamil were also acquitted of the charge punishable under Section 201 IPC. Feeling aggrieved with the aforesaid judgment and order dated 11.7.1991, the present appeal has been preferred by the appellant/ accused Yaseen. 10. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the person of deceased Saeed Ahmed, which are reproduced as under:- 1. Lacerated wound 4 x 3 cm x bone deep, left side of scalp 10 cm above left eye, fracture present underneath. 2. Multiple abraded contusion 1x1 cm to 4x3 cm on whole of the forehead. 3. Abraded contusion 3 cm x 2 cm on Nose. 4. Abraded contusion 3 x 2 cm over right side of face, 2 cm below right eye 5. Abraded contusion 4x3 cm on right kneecap. 6. Abraded contusion 3x2 cm over left kneecap. 7. Abraded contusion 3x2 cm to 2x1 cm in an area of 6x6 cm over outer aspect of right wrist 8. Abraded contusion 2 cm x 1 cm to 1x1 cm over outer aspect of right forearm. The doctor also opined that the deceased had died due to ante-mortem head injury and due to brain injury. 11. To prove its case, the prosecution has examined P.W.1 Iqbal Ahmad, who has stated that some people have informed him about the murder of his brother, on the basis of which he lodged the report in the police station. In the report, he had named Sabir, Jumma, Sakur, Yaseen (present appellant). However, he had not identified the appellant/accused Yaseen in the court. In cross-examination, he has stated that somebody had informed him that near the dead body, wristwatch and the purse was missing, hence, he narrated this fact in the FIR. 12. P.W.2 is Shabur, who has not supported the prosecution case and was declared hostile. 13. P.W.3 is Krishan Awtar, who has given the information about the last seen of deceased Saeed to P.W.1 Iqbal Ahmed. On the basis of his information, the FIR was lodged by P.W.1 Iqbal Ahmed in the police station. This witness has also not supported the prosecution case and was declared hostile. 14. P.W.4 is Rais Ahmed, who has stated that he was called by S.O. in the police station. After that the appellant/accused Yaseen was taken from the lock-up and on the pointing out of the appellant/accused Yaseen, a wristwatch and a purse was recovered from the bushes. The above-said articles were sealed on the spot and a Fard of recovery was also prepared, i.e. Ex.Ka-1. He also identified the said wristwatch and the purse in the court, i.e. Ex.1 and Ex.2 respectively. In cross-examination, he has stated that the police personnel had not signed on the Fard. He further stated that deceased Saeed was his brother. 15. P.W.5 is Babu, who has also not supported the prosecution case and was declared hostile. 16. P.W.6 is Mohd. Sharif, who has also not supported the prosecution case and was also declared hostile. 17. P.W.7 I Constable Nar Ram who has stated Fard Ex.Ka-1 was written by him on the dictation of S.O. J.D. Arya. He also stated that S.O. and other witnesses also signed on the said Fard. 18. After that the statements of the appellant/ accused Yasin and other co-accused Sabir & Zamil (acquitted by the trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against them. However, in defence, they had not produced any oral or documentary evidence. 19. Sri Deep Chandra Joshi, learned counsel for the appellant/accused has argued that on the basis of same set of evidence, appellant/accused Yaseen was acquitted by the trial court u/s 302 IPC, as P.W.2 Shabur, P.W.3 Krishan Avtar, P.W.5 Babu & P.W.6 Mohd. Sharif, have not supported the prosecution case. He further submitted that merely on the basis of evidence of P.W.4 Rais Ahmed, who is the brother of deceased Saed Ahmed, the appellant/accused Yaseen has been convicted u/s 201 IPC. He further submitted that the evidence of P.W.4 Rais Ahmed is not reliable and believable as per the above-said facts and circumstances of the case. He further stated that P.W.1 Iqbal has stated in his evidence that somebody had informed him that near the dead body, wristwatch and the purse was missing, hence, he narrated this fact in the FIR. He further submitted that P.W.4 Rais Ahmed has given his evidence against the appellant/accused Yaseen only being the brother of deceased Said Ahmed. Hence, he submitted that the case against the appellant/accused Yaseen is not proved by the prosecution beyond reasonable doubt. 20. I find force in the above-said arguments advanced by learned counsel for the appellant. The evidence of P.W.4 Rais Ahmed does not inspire implicit confidence firstly for the reason that the appellant/ accused Yaseen was not arrested by the police. In the instant case, appellant/accused Yaseen was taken into police remand from the judicial custody by the order of ACJM, Kashipur dated 3.4.1989, which is after about 15 days of the incident. In this case, nobody is said to have seen the occurrence of the murder. Further, the wristwatch and the purse was recovered on 4.4.1989 on the pointing out of the appellant/accused Yaseen from the bushes, which is not possible because for such a long period, it is not possible to conceal the purse and the wristwatch in the lonely area of forest as it cannot be said to be a safe place for concealing the said articles. 21. Secondly, P.W.1 Iqbal has mentioned in the FIR about the missing of wristwatch and purse only due to the reason that somebody had informed him that these two articles were taken away by someone from the dead body. When the purse and wrist watch was seen with the dead body at the time of preparation of inquest report by the Investigating Officer, then in these circumstances, it would not be possible that the appellant/accused Yaseen has concealed these articles viz. wrist watch and purse in the bushes. As such, when the purse and wristwatch was taken away by someone from the dead body, then later on how it was shown to be recovered on the pointing out of appellant/accused Yaseen in the bushes, which creates a reasonable doubt in the prosecution story and the recovery of these articles on the pointing out of the appellant/accused is also doubtful. 22. Thirdly, P.W.4 Rais Ahmed, with whom the presence of recovery was shown, is the brother of deceased Said Ahmed and he was called in the police station by the S.O. to sign the recovery memo. Even in his cross-examination, he has stated that police personnel had also not signed on the said recovery memo, i.e. Ex.Ka-1. All these facts and circumstances cast reasonable doubt about the recovery made on the pointing out of the appellant/accused Yaseen and the way the recovery was made. 23. From the above-said discussion made and in view of the foregoing facts and circumstances of the case, the prosecution has not proved its case beyond reasonable doubt against the appellant/accused Yaseen u/s 201 IPC and the learned court below has erred in convicting the appellant/accused Yasin u/s 201 IPC. Hence, I do not concur with the view taken by the trial court in convicting the appellant/accused Yaseen u/s 201 IPC. 24. For the reasons recorded above, the appeal preferred by the appellant/accused Yaseen is allowed. The judgment and order dated 11.7.1991 passed by the trial court in convicting and sentencing the appellant u/s 201 IPC for two years R.I. with fine of Rs.500/-, in default further six months R.I., is hereby set aside. Appellant/ accused Yaseen is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Rajeev Dang (Dharam Veer, J.) July 21, 2008