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2005 DIGILAW 347 (UTT)

Shamim v. State of Uttaranchal

2005-08-11

IRSHAD HUSSAIN, PRAFULLA C.PANT

body2005
JUDGMENT Irshad Hussain, J. Accused preferred the criminal appeal from his conviction and sentence to imprisonment for life and a fine of Rs. 5000/- and in default of payment of fine to suffer six months S.I. under Section 302/149 I.P.C. and R.L for one year under Section 147 I.P.C., per Judgment dated 29-11-2003 passed by 1st Additional Sessions Judge, Haridwar in session trial No. 431/1998. 2. Jamshed was resident of village Peeki, P.S. Kotwali Dehat, District Saharanpur. He was employed at a coal making unit of Akhtar, resident of Sahpur, P.S. Bhagwanpur, District Haridwar situated in the forest of the village of Makhanpur in the vicinity of the Bhagwanpur Gagad Hedi Road, within the circle of P.S. Bhagwanpur, District Haridwar. Jamshed's wife Smt. Latifan, daughter Ms. Khusnuda, minor son Muntazir and minor brother-in-law (Devar) of Ms. Khusnuda were staying at the said coal making unit with Jamshed in the night between 20/21-7-1996. Some time in the dead hour of the night all these five were strangulated to death by unknown assailants. Akhtar the owner of the coal making unit was, in the morning, informed that all these live persons are lying dead at his unit. He went to the Police Station Bhagwanpur and on his information police reached there and formalities of holding inquests on the dead bodies were commenced by inspector G.B. Pandey (P.W 14) and S.L Data Ram (P.W9). The information of the incident was as per the endorsement on the inquest reports was received by the police at about 8 A.M. on 21-7-1996. 3. The evidence of the prosecution reveal that after the information was given by Akhtar at the police station and inquests were held on the dead bodies, the ELR. of the case was lodged by Matloob, the brother of Jamshed deceased at 9.30 A.M. on 21-7-1996 and case crime No. 110/1996 under Section 302 I.P.C. was registered against the unknown assailants. The investigation was taken up by S.H.O. Inspector G.B. Pandey (P.WI4) who already had started holding the inquests on the dead bodies on the information about the incident given by Akhtar. After holding inquest the dead bodies were sent for post mortem and the post mortem of all the five deceased confirmed that the deaths of the five deceased were caused due to asphyxia as a result of strangulation in the mid night of 20/21-7-1996. 4. According to the prosecution Mustkeem. After holding inquest the dead bodies were sent for post mortem and the post mortem of all the five deceased confirmed that the deaths of the five deceased were caused due to asphyxia as a result of strangulation in the mid night of 20/21-7-1996. 4. According to the prosecution Mustkeem. aged about seven years, another minor son of Jamshed deceased fortunately escaped tragic and at the hands of the assailants although this boy was also there at the coal making unit in the night of the incident. His statement was recorded by the Investigating Officer and it was revealed that the boy managed to hide himself in a furnace (Bhatti) while silently watching that about a dozen assailants were strangulating the victims by their necks. He named two of them as Wazeera and Shamim and out of these two Shamim later on was arrested and on completion of the investigation was charge sheeted on 21-10-1996 for committing the offence as one of the member of unlawful assembly. Wazeera continued to be absconding was nominated in the charge sheet as absconding accused. 5. Accused Shamim was committed to court of Sessions and was charged under Sections 147 and 302/149 I.P.C. or 20-5-1999. He pleaded not guilty to the charges and claimed trial. 6. At the trial, in order to bring home guilt to the accused, prosecution examined 14 witnesses, including the star eye witness P.W1, Mustkeem. Others examined were P.W.2, Matloob, 'the complainant of the case; P.W3, Akhtar, the owner of the coal making unit; P.W4, Ashraf, the father of victim minor Ushman deceased; P.W5, Mustafa, another surviving son of Jamshed deceased; P.W6, Dr. P.K. Bhagnatar the Autopsy Surgeon who held autopsy on the dead bodies of Jamshed and Ushman; P.W7 Inspector S.S. Bisht who also remained posted as S.O.P.S, Bhagwanpur and partly investigated the case to finally submit charge sheet dated 21.10.1996, Ext. P.K. Bhagnatar the Autopsy Surgeon who held autopsy on the dead bodies of Jamshed and Ushman; P.W7 Inspector S.S. Bisht who also remained posted as S.O.P.S, Bhagwanpur and partly investigated the case to finally submit charge sheet dated 21.10.1996, Ext. Ka.3 against the two absconding accused as even accused Shamim was by then could not be arrested and according to him the name of the accused was not mentioned as such in the said charge sheet; P.W8 constable Omveer Singh, a formal witness of preparation of check F.I.R. and G.D. report; P.W.9 S.I. Data Ram, who held inquest on the dead body of Jamshed at 8.30 A.M. on 21-7-1996 and thereafter also held inquest on the dead body of Muntazir deceased; P.W.10, S.I. Nanhe Ram Sagar who proved that accused Shamim was arrested on 12-12-1997 and was brought to the Police Station, Bhagwanpur under arrest by S.O. Sri Mangu Singh Verma and other police personnel; P.W.11, Abdul Latif a panch witness; P.W.12, Shahida another panch witness; P.W.13" Dr. O.P. Sharma, who performed post mortem examinations- on the dead bodies of Muntazir, Ms. Khusnuda and Smt. Latifan and confirmed that all these three died due to asphyxia as a result of strangulation and P.W14, Inspector G.B. Pandey, the first Investigating Officer of the case who also held inquest on the dead bodies of Ushman, Khusnuda and Mustafa on 21-7-1996. He claimed to have recorded the statements of the witnesses including the star witness Mustakeem on 21.7.1996. He has handed over investigation to S.I. Surendra Singh. No evidence was adduced in defence. 7. All the public witnesses in the case turned hostile and even P.W1, so called eye witness Mustakeem also resiled from his supporting evidence in examination-in-chief and also turned hostile while he was cross-examined by stating that he has not recognized any of the assailants of the victims and that he had not witnessed the assailants committing murders of the victims. The learned Sessions Judge however opined that the witness was won over by the accused and since the witness has supported the prosecution case in his examination-in-chief drew an inference that his evidence can safely be relied upon to prove the charges levelled against the accused Shamim, who was thus convicted and sentenced as stated above. 8. The learned Sessions Judge however opined that the witness was won over by the accused and since the witness has supported the prosecution case in his examination-in-chief drew an inference that his evidence can safely be relied upon to prove the charges levelled against the accused Shamim, who was thus convicted and sentenced as stated above. 8. Learned counsel for the accused persuasively argued that the learned Sessions Judge fell in error in placing implicit reliance on the evidence of minor boy Mustakeem who was aged about seven years at the time of the alleged incident and who even turned hostile and did not support the prosecution case when he was put to test about his veracity and reliability in cross-examination. Learned counsel also submitted that the learned Sessions Judge failed to take in to account the glaring aspect of the case that this witness was a got up witness as was evident from the evidence of the prosecution itself. He further argued that no doubt the incident was gruesome and the act of commission of the crime was dastardly the accused who was falsely roped in on the basis of the statement of a got up witness could not have been held responsible for the heinous crime which was seen by none at the time of its commission in the dead hours the night. As against this, learned A.G.A. made a half hearted attempt to support the inference drawn by the learned Sessions Judge by submitting that even the statement of hostile witness can legally be accepted and relied upon to prove involvement of a culprit in the commission of such heinous crime of murder of five members of a family including minors. . 9. Considering the submissions and the material on record the evidence of the prosecution and the other factors need to be appraised to know as to whether the evidence was sufficient to bring home guilt to the accused. 10. It was not in dispute that all the five victims were strangulated to death at the time and place as alleged by the prosecution. The deaths of the victims of the case were definitely homicidal. As stated above in the earlier part of the judgment the inquests of the dead bodies were held on the information of the crime given to the police by Akhtar (P.W.3). The deaths of the victims of the case were definitely homicidal. As stated above in the earlier part of the judgment the inquests of the dead bodies were held on the information of the crime given to the police by Akhtar (P.W.3). S.I. Data Ram (P.W.9) categorically stated that the inquest on the dead body of Jamshed deceased was held at 8.30 A.M. on 21.7.1996 and the inquest reports of all the five deceased have endorsement that the in formation of the incident was carried to the police by said Akhtar. The written report, paper No. 4/2 was, according to the prosecution, delivered by informant Matloob (P.W.2) at the Police Station Bhagwanpur at 9.30 A.M. on 21-7-1996 and on its basis the F.I.R. was then drawn and case crime No. 110/1996 under Section 302 I.P.C. was registered against unknown assailants. Informant Matloob has disowned the written report by asserting that he had signed on it on the instruction of the police. In this report the name of so called eye witness Mustkeem does not find place and pointing to this learned counsel appearing on behalf of the accused persuasively argued that witness Mustakeem (P.W.l) was a got up witness and no reliance whatsoever could have been placed on his evidence. Learned counsel naturally drew attention to the inquest reports which were held much before the lodging of the F.I.R. on the information of the incident carried to the police by Akhtar (P.W.3). The place of the occurrence is situated at a distance of about 1-1/2 kilometers from the Police Station, Bhagwanpur and there can be no doubt that when the inquests were started at 8.30 A.M. the information must have been given to the police much earlier and thereafter considering the murders of five persons large contingent of police had arrived at the place of the occurrence. It is highly unusual and can safely be said to be not carrying even a single thread of truth in the claim of the prosecution that later on so called eye witness Mustakeem. (P.W1) put in his appearance saying that he was hiding in a furnace (Bhatti) since the time of the unfortunate incident and claiming that he had witnessed all that happened leading to the murders of five persons of his family by a dozen miscreants including accused Shamim and one another named as Wazeera. (P.W1) put in his appearance saying that he was hiding in a furnace (Bhatti) since the time of the unfortunate incident and claiming that he had witnessed all that happened leading to the murders of five persons of his family by a dozen miscreants including accused Shamim and one another named as Wazeera. Considering the facts and circumstances of the case we have no hesitation to find favour with the argument of the learned counsel for the accused that this witness Mustakeem was a got up witness who was brought to surface to show good work by the police in solving the brutal crime committed in the dark hours of the night which, in fact, had been seen by none. 11. Considering the evidence of Mustakeem in the above backdrop we fail to force us to agree with the opinion of the learned Sessions Judge that this witness had in fact witnessed the entire incident but he turned hostile as he was won over by the accused during the period intervening the examination-in-chief of the witness and his cross-examination later on. This witness Mustakeem was examined on 19.11.1999 and his cross-examination was deferred which got to be recorded on 10.5.2001. No doubt there was big gap in the examination-in-chief and cross-examination of the witness but this itself could not be taken to meet the above strong mitigating circumstance appearing against the veracity of the prosecution claim that Mustakeem was the eye witness of the incident. It was not such a case in which the witness turned hostile although he was named as such from the very beginning in the F.I.R. of the case and there are inbuilt assurances from the circumstances that he was present when the incident took place. In the present case however the facts and circumstances were so conspicuous and glaring as indicated that Mustakeem was no where at the coal making unit where the incident took place and that he was made to show as an eye witness of the occurrence after due deliberations and consultations when the inquest of the dead bodies were already held after the news of the murders of five persons had already spread like a wild fire all around the vicinity and the police was already seized of the matter and investigation of the crime. 12. Strangely enough the investigation of the crime was also not up to the mark. 12. Strangely enough the investigation of the crime was also not up to the mark. P.W.7, S.S. Bisht was the last Investigating Officer of the case and charge sheet, Ext. Ka.3 was submitted by him on 21-10-1996. He, categorically stated that the charge sheet was submitted against the accused who was then absconding and the name of the accused Shamim was not endorsed by him as the arrested accused in the said charge sheet. P.W.10 S.I. Nanhe Ram Sagar also testified to this effect when he stated that the accused was brought arrested for the first time to the police station on 12.12.1997. The charge sheet had been filed on 21.10.1996 and by that time the accused Shamim had not been arrested and it clearly appear that the police have, without going in to the further formalities of the investigation according to law, surreptitiously endorsed the name of accused Shamim in the said charge sheet to suggest that this accused was under arrest and against him charge sheet was as such submitted on 21-10-1996. The manner in which it had been done need depreciation and from the material on record it clearly appear that the police some how wanted to show that good work had been done to bring on record the culprit of the heinous crime. There can he no gain saying that it was also the part of the exercise to bring on surface the got up witness Mustakeem (P.W.1) to whom good sense clearly appear to have prevailed when he turned hostile and did not support the prosecution case in his cross-examination. The learned Sessions Judge has not considered the case in proper legal perspective and went on to convict the accused on a flimsy ground that on such an evidence of hostile witness also the case of the prosecution against the accused was established beyond doubt. 13. The accused in fact was entitled to be held not guilty and to be acquitted of the charge levelled against him. 14. In the result this appeal succeed and is to be allowed. The appeal is hereby allowed. The accused Shamim is held not guilty and is acquitted of the charges under Sections 147 and 302/149 I.P.C. The judgment dated 29-11-2003 convicting and sentencing the accused is set aside. The fine, if deposited, shall be refunded to the accused. The accused Shamim is in jail. The appeal is hereby allowed. The accused Shamim is held not guilty and is acquitted of the charges under Sections 147 and 302/149 I.P.C. The judgment dated 29-11-2003 convicting and sentencing the accused is set aside. The fine, if deposited, shall be refunded to the accused. The accused Shamim is in jail. He shall be released forthwith, if not wanted in any other connection. 15. Let the record be transmitted to the court below for compliance, to be reported in one month.