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2012 DIGILAW 146 (UTT)

ABDUL REHMAN v. STATE OF UTTARANCHAL

2012-04-04

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT [Per: Hon’ble U.C. Dhyani, J.] Sayeed son of Saddiq resident of village Bhagwanpur, tehsil Roorkee, district Haridwar lodged a complaint (Ext Ka-1) in PS Bhagwanpur that his nephew Mustaqeem son of Waheed went to respond to nature’s call on 08.02.2003 in a river. When he reached near the house of Adbul Rehaman son of Visarat Ali, resident of Sahaspur at around 9:00 pm, residents of mohalla raised an alarm of “thief ! thief !”. Abdul Rahman and Shakila wife of Yakoob came running on the spot, they caught hold of Mustaqeem and started assaulting him. Abdul Rahman took out a knife and gave a blow of the same on Mustaqeem. Mustaqeem fell on the ground. Zaheer son of Saddiq and Arshad son of Sharif, both residents of Bhagwanpur came there and saw this incident. Mustaqeem was taken to Government Hospital, Roorkee but he died on way to hospital. 2. After completing the investigation, Investigating Officer submitted charge-sheet against accused persons. They were put to trial before the Court of Sessions. Prosecution succeeded in bringing home the guilt against the accused persons. Appellant Abdul Rehman and co-accused Smt. Shakila were convicted of the offence punishable under Section 302 IPC read with Section 34 IPC. Both were awarded imprisonment for life. Both were also sentenced to pay a fine of Rs. 5000/- each and in default of payment of the same, they were further directed to undergo one year’s rigorous imprisonment. Accused appellant Abdul Rehman was also convicted for the offence punishable under Section 25/4 Arms Act. He was sentenced to undergo one year’s rigorous imprisonment under Arms Act. Both the sentences were directed to run concurrently. 3. Aggrieved against the aforesaid orders, both the accused namely Abdul Rehman and Smt. Shakila preferred criminal appeals. Since only an appeal of convict Abdul Rehman came before us, therefore we are proceeding with the case of Abdul Rehman only, who is in Jail. 4. PW 1 Devendra Kumar Agarwal was the scribe who scribbled complaint Ext. Ka-1 on the dictation of Sayeed son of Saddiq. 5. PW 2 Sayeed Ahmed narrated the prosecution version and proved complaint Ext. Ka-1. He affixed·his thumb impression on the same. In the examination-in-chief, he narrated what was written in FIR. There appears to be no need to reproduce the same, for that will be mere repetition of the prosecution story. 6. 5. PW 2 Sayeed Ahmed narrated the prosecution version and proved complaint Ext. Ka-1. He affixed·his thumb impression on the same. In the examination-in-chief, he narrated what was written in FIR. There appears to be no need to reproduce the same, for that will be mere repetition of the prosecution story. 6. PW 2 Sayeed Ahmed himself was not present at the time of occurrence. He acknowledged in his cross-examination that he was in his shop when the incident took place. His shop was situated at a far off place from the place of occurrence. He was informed by somebody in his shop that his nephew was killed by somebody. None else was present in his shop when somebody informed him about killing of Mustaqeem. 7. PW 2 Sayeed also acknowledged that victim’s father was alive but he could not reach at the place of occurrence. The place of occurrence was surrounded by houses of Idris, Sayeed and others but when the incident took place only Idris and Sayeed were present. (In complaint Ext Ka-1, PW 2 Sayeed depicted that PW 3 Zaheer son of Saddiq and PW 4 Arshad son of Sharif were present on the spot). He also admitted in cross-examination that the person who informed about killing of Mustaqeem did not disclose the name of killer. When he reached on the spot dead body of Mustaqeem was laid on the ground. Incident took place much before he came on the spot. Abdul Rehman did not inflict blow of knife on Mustaqeem in his presence. Neither Abdul Rehman nor Shakila were present on the spot. The persons who were there disclosed the names of accused Abdul Rehman and Shakila to him. It was dark when this witness reached there; The occurrence took place in the dark night. 8. This witness was declared hostile. In his cross-examination by learned ADGC (Criminal), he admitted that he was not present on the spot. He acknowledged that he gave wrong statement on 11.03.2004 that: “Accused persons Abdul Rehman and Shakila came on the spot. They caught hold of Mustaqeem and started marpeet (assault) with Mustaqeem. Abdul Rehman inflicted blow of knife on Mustaqeem with the intention to kill him. Zaheer and Arshad came on the spot and saw incident.” 9. Thus PW 2 Sayeed did not see the incident. They caught hold of Mustaqeem and started marpeet (assault) with Mustaqeem. Abdul Rehman inflicted blow of knife on Mustaqeem with the intention to kill him. Zaheer and Arshad came on the spot and saw incident.” 9. Thus PW 2 Sayeed did not see the incident. He got the complaint dictated to PW 1 Devendra Kumar Agarwal on the basis of hearsay. Thus these two witnesses did not help the prosecution in any way. 10. PW 3 Zaheer also did not support the prosecution story. Initially he tried to support prosecution version saying that Abdul Rehman and Shakila were doing marpeet with Mustaqeem and Abdul Rehman inflicted a blow of knife on Mustaqeem whereby Mustaqeem sustained injuries, but in the cross-examination he said that he saw that Mustaqeem was bleeding profusely. He did not see anybody killing Mustaqeem. When he reached on the spot then he heard that Abdul Rehman gave a blow of knife on Mustaqeem. He went to hospital with victim Mustaqeem but Mustaqeem did not name anybody as killer. He did not see Abdul Rehman or Shakila on the spot. He admitted that he named Abdul Rehman and Shakila on the basis of hearsay, This witness too was declared hostile. He was permitted to be cross examined by learned ADGC (criminal) but nothing came in such cross-examination which may render any help to the prosecution. Thus the testimony of 3rd witness also did not support prosecution. 11. PW4 Arshad also followed suit. Initially he tried to support prosecution by saying that Abdul Rehman inflicted blow of knife on Mustaqeem but said that Shakila, although she was there, did not do anything. But later on he said that when he reached on the spot Mustaqeem was bleeding profusely. Neither did he see Abdul Rahman and Shakila on the spot, nor saw anybody assaulting Mustaqeem. It was a dark night. 12. PW 4 Arshad was cross-examined by learned ADGC (Criminal) but like his predecessor-witnesses, nothing came in the cross-examination of this witness which might render any support to prosecution. 13. PW 5 SI R.K. Awasthi proved inquest report (Ext. Ka:-2) and other papers related thereto as Exts. Ka3 to Ka-6. 14. PW 6 Mohd. Inam was cousin of Mustaqeem. He was the signatory to inquest report Ext. Ka-2. 15. PW 7 Mohd. Haseen, although admitted his signatures on inquest report Ext. 13. PW 5 SI R.K. Awasthi proved inquest report (Ext. Ka:-2) and other papers related thereto as Exts. Ka3 to Ka-6. 14. PW 6 Mohd. Inam was cousin of Mustaqeem. He was the signatory to inquest report Ext. Ka-2. 15. PW 7 Mohd. Haseen, although admitted his signatures on inquest report Ext. Ka-2, but denied that the inquest report was not prepared in his presence. Blood stained soil and simple soil was not taken in his presence either. This witness too was declared hostile. 16. PW 8 Hemendra Singh Negi was Investigating Officer who proved charge-sheet (Ext. Ka-7) submitted against accused persons. He also proved chik FIR Ext. Ka-8 and admitted in cross-examination that there was no report of FSL, Agra relating to this incident on the file. 17. PW 9 Nafees admitted his signatures on inquest report Ext. Ka-2. He was a formal witness. 18. PW10 Ravindra Kumar Chamoli, Inspector Sahaspur was one of the Investigating Officers of the case who conducted investigation at some length. Apart from other things, PW10 Inspector Ravindra Singh Chamoli proved site plan (Ext. Ka-9) and recovery memo of simple soil & blood stained soil as Ext. Ka-10. He also proved material Exts. 1 to 7. (Blood stained soil, simple soil, knife and clothes of victim etc.) 19. PW 11 Doctor S.C. Srivastava conducted post mortem on the dead body of deceased Mustaqeem on 09.02.2003 at4:55 pm and proved post mortem report Ext. Ka-11. Doctor found stab wound 2 cm x 1 cm into chest cavity deep on right side chest 8 cm from right nipple at 9 O'clock position. According to him the cause of death of victim was shock and haemorrhage due to ante-mortem injuries. 20. Lastly, PW 12 S.I. Shyam Lal Sharma proved site plan Ext. ka-12 and charge-sheet Ext. Ka-13 submitted against the accused persons. He also proved chik FIR Ext. Ka-14 and copy of GD Ext. Ka-15. He was the Investigating Officer of the case crime no. 26 of 2003 under Section 25/4 Arms Act. 21. A perusal of the above evidence shows that no witness saw killing of victim by appellant Abdul Rehman and accused Shakila. Initially some of the witnesses claiming themselves to be eyewitness supported the prosecution story but later on they resiled. PW 2 Rayees, PW 3 Zaheer and PW 4 Arshad were such witnesses. 21. A perusal of the above evidence shows that no witness saw killing of victim by appellant Abdul Rehman and accused Shakila. Initially some of the witnesses claiming themselves to be eyewitness supported the prosecution story but later on they resiled. PW 2 Rayees, PW 3 Zaheer and PW 4 Arshad were such witnesses. Others, namely PW 1 Devendra Kumar Agarwal, PW 5 R.K.Awasthi, PW 6 Mohd. Inam, PW 7 Haseen, PW 8 Hemendra Singh Negi, PW 9 Nafees; PW10 Inspector Ravindra Kumar Chamoli, PW 11 Doctor S. C.Srivastava and PW 12 SI Shyam Lal Sharma were formal witnesses. Thus there is nothing on record to show that accused appellant committed the crime complained of against him. Prosecution has not ascribed any motive on the part of appellant to commit murder of victim. We accordingly interfere with the judgment and order under appeal and set aside the same in respect of the appellant Abdul Rehman. 22. Appeal preferred on behalf of appellant Abdul Rehman is therefore, allowed. The judgment! order dated 03.05.2006 passed by learned trial court is accordingly set aside so far as it relates to appellant Abdul Rehman. The conviction recorded in respect thereof and sentence thus awarded to him are also set aside. Appellant Abdul Rehman is in Jail. He be set at liberty forthwith, if not required to be detained in any other case. An information to this effect be sent to the Superintendent of Jail where the appellant is currently serving out the sentence. Let a copy of the Judgment be sent to the court concerned for compliance. Lower court record be also sent back.