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Uttarakhand High Court · body

2012 DIGILAW 605 (UTT)

AHMAD HUSSEIN v. STATE OF UTTARAKHAND

2012-09-20

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT BARIN GHOSH, C. J. (Oral) Learned counsel Mr. S.K. Mandal submitted that, though he was engaged by the appellants to argue the case on their behalf, but after the matter started appearing in the list for hearing, he tried his best to contact the appellants, but could not establish such contact. In the circumstances, he has submitted that it may not be appropriate on his part to appear in the appeal. Having regard to the fact that Mr. S .K. Mandal, Advocate, has prepared himself to argue the case on behalf of the appellants and, at the same time, at one stage, appellants had reposed confidence in him for arguing the case on their behalf, we felt that it would be appropriate to engage Mr. S.K. Mandal as Amicus Curiae in the matter. We, accordingly, do so. 2. Anwar (PWl) lodged the First Information Report at 03:30 p.m. of 30th March, 1995, where he stated that, after selling milk, he was returning when his brother Afsar was on his bicycle travelling towards him, but, near the tube-well of Maula Baksh, accused people, namely, Ahmad, Mohammad and Salim, surrounded him. It was also alleged that appellant Ahmad was armed with a country made pistol, appellant Mohammad was armed with a knife and appellant Salim was armed with a country made pistol. It was alleged that appellant Ahmad fired on Afsar, appellant Salim also fired on Afsar and appellant Mohammad assaulted Afsar with knife. It was stated that this incident was witnessed by Rais (PW2). On the basis of this First Information Report, investigation commenced, in course whereof, inquest was made. In the inquest report, it was stated that the dead body of Afsar is lying on his back. After the inquest, the dead body of the victim was sent for post mortem. The doctor, who conducted post mortem of the dead body of the victim, reported that the deceased died of ante mortem injuries suffered by him. It was held out that the victim suffered 14 injuries, of which, 12 were incised wounds and remaining two firearm injuries. One firearm injury was on the front side of the face and the other firearm injury was on the back of the chest. From the back of the chest, 52 pellets were recovered and, from inside the brain, two pellets were recovered. One firearm injury was on the front side of the face and the other firearm injury was on the back of the chest. From the back of the chest, 52 pellets were recovered and, from inside the brain, two pellets were recovered. According to the post mortem report, those two pellets entered the brain through the inlet caused by the first injury. In course of investigation, one empty 12 bore shell was recovered. After appellants Mohammad and Salim were arrested, on their pointing, a knife and a country made pistol were also recovered. The recovered knife was sent for chemical examination. The Examiner reported that the same contained human blood, but the blood group could not be decided. The empty shell and the country made pistol were also sent for examination by the ballistic expert. The ballistic expert reported that the country made pistol was used to fire the said shell on the basis that the mark of the chamber of the country made pistol has been left on the outer part of the shell. The investigation was, accordingly, concluded. A charge-sheet was submitted alleging that the appellants are guilty of commission of offence punishable under Section 302, read with Section 34, of the Indian Penal Code. In view of recovery of knife and the country made pistol at the pointing of appellants Mohammad and Salim, a separate charge-sheet was also filed, whereby appellant Mohammad was charged for offence punishable under Section 4/25 of the Arms Act and appellant Salim was charged for commission of offence punishable under Section 25 of the Arms Act. 3. The prosecution led principal evidence through PW1 and PW2. After considering the prosecution evidence and the answers given by the appellants to questions put under Section 313 of the Code of Criminal Procedure, the court below has convicted all the appellants under Section 302 of the Indian Penal Code and also convicted appellant Mohammad under Section 4/25 of the Arms Act and appellant Salim under Section 25 of the Arms Act. 4. In the present appeal, it is the contention of the appellants that the court below erred in accepting the evidence of PW1 and PW2. 4. In the present appeal, it is the contention of the appellants that the court below erred in accepting the evidence of PW1 and PW2. It is the contention of the learned Amicus Curiae that the prosecution did not make any effort to establish the raison d’ etre for the crime in question and, accordingly, if the evidence of PW1 and PW2 is not acceptable, then conviction of the appellants under Section 302 of the Indian Penal Code is interferable. 5. Insofar as the motive/raison d’etre is concerned, the only evidence tendered by the prosecution was through PW1. PW1 held out that the land belonging to him and the land belonging to appellant Mohammad were divided by a divider. It was stated by PW1 that appellant Mohammad often used to breach that divider. He also asserted that, in relation to such breaching, he used to quarrel with appellant Mohammad. PW1, however, did not hold out that the land, which was divided by the divider and was adjacent to the land of appellant Mohammad, also belonged to deceased Afsar. At the same time, PW1 held out that, prior to the incident, PW1 had no fight with any of the appellants. He also stated that the appellants used to come to his house. He made it clear that, in regard to breach of the divider, no complaint was lodged by him with any quarter. Therefore, there may be some apathy on the part of PW1 in relation to action of appellant Mohammad, pertaining to the divider, but he did not spell out, in course of his evidence, any ingredient to show that any of the appellants may have any motive or reason to cause such harm to the deceased, as was inflicted upon him and depicted in the post mortem report. The fact remains, and which is not in dispute, that the victim received 12 incised wounds and two gunshot injuries. The gunshot injuries as well as incised wounds were fatal in nature. The post mortem report depicts that, even after firing in the manner as depicted in the post mortem report, 12 incised wounds were inflicted and, if the same were inflicted by one person, as was alleged by PW1, appellant Mohammad, while inflicting such wounds, became absolutely mad by a rage against the victim. The reason for such rage of appellant Mohammad against the victim has not been spelt out. The reason for such rage of appellant Mohammad against the victim has not been spelt out. 6. The conclusion, therefore, would be that the prosecution has failed to establish the motive or the reason for causing the murder of the victim and, that too, in the manner as depicted in the post mortem report. 7. However, the motive is of no importance when there is direct evidence of commission of the crime. In the instant case, there are two eyewitnesses. It is the contention of the learned Amicus Curiae that eyewitness account is such that the same would not repose confidence in them. We have, accordingly, as requested by the learned Amicus Curiae, closely scrutinized the eyewitness account of PW1 and PW2. 8. In the examination-in-chief, PW1 held out only to the extent that appellant Ahmad and appellant Salim fired upon the victim, whereas appellant Mohammad inflicted knife injuries on the victim. He, at the same time, held out that appellant Ahmad fired before appellant Salim had fired. In cross-examination, however, he stated that appellant Ahmad fired, whereupon, appellant Mohammad inflicted knife injuries and, then, when the victim fell down, appellant Salim fired. PW1 did not hold out, either in examination-in-chief or in cross-examination, that seeing the appellants coming or otherwise, the victim tried to flee from the scene. In those circumstances, the victim was face to face with appellant Ahmad, who fired first. The first injury, reported in the post mortem report, is a firearm injury, which was received by the victim in his facial region. According to PWl, appellant Mohammad, then, inflicted knife injuries to the victim. Having had received the first firearm injury from appellant Ahmad and knife injuries from appellant Mohammad, according to PW1, the victim fell down. According to PW1, then appellant Salim fired. The post mortem report suggests that the second firearm injury was received behind the back of the chest. The inquest report suggests that the dead body was lying on the back of the victim. The prosecution has not explained as to how then appellant Salim could inflict the firearm injury on the backside of the victim. PW2 held out, in course of tendering evidence, that appellant Ahmad fired followed by Salim and, then, appellant Mohammad inflicted knife injuries. The evidence pertaining to the incident, as depicted by PW1 and PW2, is not reconcilable. The victim was allegedly going on a bicycle. PW2 held out, in course of tendering evidence, that appellant Ahmad fired followed by Salim and, then, appellant Mohammad inflicted knife injuries. The evidence pertaining to the incident, as depicted by PW1 and PW2, is not reconcilable. The victim was allegedly going on a bicycle. This bicycle was not recovered. We, accordingly, feel that the learned Amicus Curiae was right in contending that it would not be safe to hold the appellants guilty merely on the evidence tendered by PW1 and PW2. 9. There is no other evidence insofar as appellant Ahmad is concerned. Insofar as appellant Salim is concerned, a country made pistol was allegedly recovered at his instance. According to prosecution, an empty shell of 12 bore gun was recovered from the place of incident. The fact remains that the dead body bore two distinct 12 bore gunshot injuries. What happened to the empty shell of the other gunshot, has not been attempted to be explained. According to PW1 and PW2, at the time of escaping, appellants fired in the air. There would, therefore, be a third empty shell. No attempt was made to explain, what had happened to the same. In the event, the evidence tendered by PW1 and PW2 is not confidence encouraging, then the alleged discovery of the empty 12 bore gun shell from the place of incident is equally not inspiring. 10. Even if the empty shell is reported to have been used from the country made pistol recovered at the pointing of appellant Salim, appellant Salim cannot be linked with the crime in question for reasons already indicated above, and further for failure to establish that the pellets found inside the dead body emanated from the said shell. 11. On the pointing of appellant Mohammad, a knife was discovered, which contained human blood. But, it could not be established that the human blood was of the victim. Therefore, only on the basis of discovery of the knife, at the pointing of appellant Mohammad, he cannot be linked with the crime alleged. 12. In the circumstances, the conclusion would be that the evidence on record did not put home the charge of commission of an offence punishable under Section 302 of the Indian Penal Code against the appellants to the hilt. 12. In the circumstances, the conclusion would be that the evidence on record did not put home the charge of commission of an offence punishable under Section 302 of the Indian Penal Code against the appellants to the hilt. Appellants, having regard to the nature of the evidence tendered by the prosecution through PW1 and PW2, were entitled to benefit of doubt for having committed an offence punishable under Section 302 of the Indian Penal Code. 13. However, inasmuch as the recovery memos of the knife and the country made pistol contained thumb impressions of appellants Mohammad & Salim respectively and appellants Mohammad and Salim having not denied those thumb impressions to be theirs in course of answering questions under Section 313 of the Code of Criminal Procedure, nor having had asserted, in course thereof, that their thumb impressions were obtained by coercion or force, there is no scope of interference with the conviction of appellants Mohammad and Salim respectively under Sections 4/25 and 25 of the Arms Act. 14. We, accordingly, allow the appeal in part and set aside the judgment under appeal, whereby the appellants have been convicted for offence punishable under Section 302 of the Indian Penal Code, but uphold that part of the judgment, whereby appellants Mohammad and Salim have been convicted respectively under Sections 4/25 and 25 of the Arms Act and, at the same time, affirm the sentence as awarded for such conviction. 15. In the circumstances, appellant Ahmad, who is on bail, is not called upon to surrender, his bail bond is cancelled and sureties are discharged. However, appellants Mohammad and Salim, who are also on bail, are directed to serve out the sentence awarded by the Court below and affirmed by this Court for commission of offence punishable under Section 4/25 and Section 25 of the Arms Act respectively and, as such, their bails are cancelled. 16. Let a copy of this judgment to be sent to the court below along with the lower court records for compliance.