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2012 DIGILAW 715 (UTT)

Sher Mohammad v. State of Uttaranchal

2012-11-30

BARIN GHOSH, U.C.DHYANI

body2012
Judgment U.C. Dhyani, J. In the instant case, the criminal law was set into motion on the complaint of Raees Ahmad s/o Jameel Ahmad alias Kallu r/o Meerut, which (complaint) was addressed to the Inspector In-Charge Kotwali, Mallital, Nainital. According to the informant, he came to know through the newspaper ‘Dainik Jagran’ of 20.09.2001 that the dead body of his brother-in-law Abdul Kareem was found in Mayur Hotel, Nainital. When Raees Ahmad enquired from the wife of Abdul Kareem, she (Naeema) told that Abdul Kareem brought Rs. 10,000/– on 09.09.2001. Prior to 09.09.2001, Abdul Kareem took Rs. 60,000/– from home and paid the money to Sher Mohammad r/o Meerut. Naeema told that Abdul Kareem was doing the business with Sher Mohammad, who was the resident of the same mohalla (locality) in which Abdul Kareem resided. Abdul Kareem and Sher Mohammad were good friends. On 11.09.2001, Shakeel Ahmad and Nafees saw Abdul Kareem in the company of Sher Mohammad at Sohrab Gate Bus Station. On being enquired, Abdul Kareem said that they were going to Nainital. On coming to know of the death of Abdul Kareem, informant Raees Ahmad along with Merajuddin, Arshad Ali and Wali went to Mayur Hotel at Nainital, to verify the death of Abdul Kareem. When the manager and waiter of the hotel were shown the photographs of Abdul Kareem, they confirmed Abdul Kareem’s death saying that Sher Mohammad and Abdul Kareem stayed together in the hotel in the night. The manager and waiter said that Sher Mohammad also stayed in the hotel on 06.09.2001 earlier. The informant suspected that Sher Mohammad killed Abdul Kareem for the sake of money. On the basis of the said complaint, chik FIR was lodged in P.S. Mallital, Nainital, on 20.09.2001 at 07:35 p.m., which was registered as case crime no. 1048/2001 under Section 302 IPC. The occurrence took place sometimes in the intervening night of 12/13.09.2001, and since the informant came to know of the death of Abdul Kareem only through the newspaper published in Meerut, therefore, there appeared to be no delay in lodging FIR. 2. After the investigation of the case, a charge sheet against Sher Mohammad was submitted for the offence punishable under Section 302 IPC. 2. After the investigation of the case, a charge sheet against Sher Mohammad was submitted for the offence punishable under Section 302 IPC. When the trial began and prosecution opened it’s case, a charge for the offence punishable under Section 302 IPC was framed against Sher Mohammad, to which he pleaded not guilty and claimed trial. Prosecution examined nine witnesses, viz., PW1 Godhan Singh (Manager, Mayur Hotel), PW2 Raees Ahmad (informant), PW3 Naeema (wife of deceased), PW4 Shakeel Ahmad (witness of having last seen victim in the company of accused), PW5 Puran Singh (bearer of Mayur Hotel), PW6 SI Umesh Tiwari, PW7 SSI Rakesh Chandra Thapaliyal, PW8 Sheeldhar Singh, SDM, Etmatpur, Agra (Identification Magistrate) and PW9 Inspector Bachan Singh Rana (Investigating Officer). Thereafter, the incriminating evidence was put to the accused under section 313 Cr.P.C. in detail, in which he denied the allegations and said that he was falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Sessions Judge, Nainital found Sher Mohammad guilty of the offence punishable under Section 302 IPC. He was accordingly convicted and sentenced appropriately. Aggrieved against the said order of conviction and sentence, present Criminal Appeal was preferred. 3. PW1 Godhan Singh said that the accused stayed in Mayur Hotel on 12.09.2001, in the fake name of Raju s/o Budh Prakash r/o Main Market, Bareilly. Another person (victim) accompanied Raju. The other person was introduced by Raju as his brother. They stayed together in Room No. 9 of Mayur Hotel, Nainital. When they were requested to make an entry in the hotel register, Raju (pseudonym) asked PW1 to fill up the register himself. Waiter Pooran Singh (PW5) made an entry in the register. PW1 requested Raju (fake name) to fill up Form No. 171. Accused filled up his name, his father’s name and put in his signatures. Other columns were filled up by PW1. The form was proved by PW1 as Ext.Ka-1. Entry in the hotel register at serial no. 924 was made in the (fake) name of Raju and the entry was proved as Ext.Ka-2. PW1 also said that Raju and the other person entered into room no.9 in his presence. On the selfsame day (12.09.2001), Raju came to PW1 at 09:30 p.m. and said that his brother was unwell. Entry in the hotel register at serial no. 924 was made in the (fake) name of Raju and the entry was proved as Ext.Ka-2. PW1 also said that Raju and the other person entered into room no.9 in his presence. On the selfsame day (12.09.2001), Raju came to PW1 at 09:30 p.m. and said that his brother was unwell. PW1 said that he was going to market and requested PW1 to send a blanket in the room. Raju (pseudonym) also said that they might stay in the hotel for two days. Waiter (PW5) carried a blanket in room no. 9 and when PW5 came back to PW1, he said that the other person (victim) was in the bathroom. On 13.09.2001, none of them came to vacate the room till 10:00 a.m. PW1 thought that they would be staying further in the hotel and therefore, took no notice of their checkout. When none of them came to checkout till the evening, PW1 found room no.9 locked from outside. The window of the room was got opened. PW1 saw that a man was lying on the cot. He was called, but he did not wake up. It was 07:00 p.m. It appeared that the person was dead. An information to this effect was given in P.S. Mallital. Police officials came to the hotel, broke open the lock, entered into the room and found that the other person (victim) was dead. No mark of injury was seen. Inquest report (Ext.Ka-3) was prepared. When the informant Raees Ahmad along with three people came to Nainital on 20.09.2001, Raees Ahmad showed two photographs. The real identity of Raju as Sher Mohammad was disclosed. The investigating officer took Form No.171 (Ext.Ka-1) and also took page nos. 900 to 933 of the hotel register (Ext.Ka-6) in his possession. Accused Sher Mohammad stayed earlier in the hotel on 06.09.2001 also in room no.7. PW1 went before the Identification Magistrate and he correctly identified accused Sher Mohammad in jail and subsequently in the court. In the cross-examination, PW1 said that he served in the hotel for three years and left his job thereafter. Mayur Hotel was sold to someone else. Since Raju was seen by him in the hotel earlier, therefore, PW1 wrote his name as Raju in Ext.Ka-1. The date was also filled up by Raju. In the cross-examination, PW1 said that he served in the hotel for three years and left his job thereafter. Mayur Hotel was sold to someone else. Since Raju was seen by him in the hotel earlier, therefore, PW1 wrote his name as Raju in Ext.Ka-1. The date was also filled up by Raju. Earlier room no.7 was allotted to them, which was subsequently changed to room no.9. The cutting in the date was made by Raju (pseudonym). PW1 as well as PW5 were called by the police on 20.09.2001 in police station. The people who came from Meerut showed photographs to the police. PW1 told to the Identification Magistrate (PW8) that he had come to identify the accused. 4. PW2 Raees Ahmad was the informant, who, in his examination-in-chief, not only proved his complaint (Ext.Ka-7), but also proved the contents of the same. 5. PW3 Naeema Siddiqui was the wife of the victim. The accused Sher Mohammad was known to PW3 even before this incident. She said that Abdul Kareem and Sher Mohammad were intimate friends. On 06.09.2001, Abdul Kareem sold the tractor for approx. Rs. 70,000/– – Rs. 80,000/– and a sum of Rs. 60,000/– was given to Sher Mohammad on the selfsame day. Abdul Kareem and Sher Mohammad were running a business. On 09.09.2001, Abdul Kareem went to give Rs. 10,000/– to Sher Mohammad. When Abdul Kareem proceeded from his house on 11.09.2001, at 08:00 a.m., he said that he was going somewhere with Sher Mohammad in connection with business. On PW3’s insistence, Abdul Kareem disclosed that they were going to Nainital. On 20.09.2001, she came to know through newspaper (and other people) that her husband was killed. 6. PW4 Shakeel Ahmad saw the victim in the company of the accused-appellant on 11.09.2001 at 01:00 p.m. at Sohrab Gate Bus Station, Meerut. At that time, PW4 was with Nafees Ahmad. Since Abdul Kareem belonged to PW4’s mohalla (locality), therefore, he enquired from Abdul Kareem as to where was he going. Abdul Kareem, who was with Sher Mohammad, said that they were going to Nainital in connection with business. On 20.09.2001, PW4 came to know that the dead body of Abdul Kareem was found in Mayur Hotel, Nainital. Since Abdul Kareem belonged to PW4’s mohalla (locality), therefore, he enquired from Abdul Kareem as to where was he going. Abdul Kareem, who was with Sher Mohammad, said that they were going to Nainital in connection with business. On 20.09.2001, PW4 came to know that the dead body of Abdul Kareem was found in Mayur Hotel, Nainital. On having come to know of the same, PW4 went to PW3 Naeema and informed her that he saw Abdul Kareem in the company of Sher Mohammad on 11.09.2001 at Sohrab Gate Bus Station, Meerut. PW4 came to Nainital with other people (Raees Ahmad, Wali, Parvez, Israr and Ali Ahmad). PW4 was the witness of having last seen the victim in the company of accused-appellant. Although he was cross-examined on behalf of accused-appellant, but no anomaly was found in the cross-examination of PW4. 7. PW5 Pooran Singh was the bearer at Mayur Hotel, Mallital, Nainital. On 06.09.2001, accused Sher Mohammad stayed in room no.7 of the said hotel in the pseudonym of Raju. An entry was made by PW1 Godhan Singh, Manager of the hotel. On 12.09.2001, Sher Mohammad came again in the same hotel and again entered his name as Raju (fake name). He again put in his signatures on the register of the hotel. In his examination-in-chief, he corroborated the evidence tendered by PW1. It will be a futile exercise to reproduce the statement of PW5, which was almost verbatim reproduction of the evidence of PW1. PW5 also appeared before the Executive Magistrate in jail and correctly identified the accused-appellant. PW8 Sheeldhar Singh, SDM Etatmatpur, Agra proved identification proceedings (Ext.Ka-14). 8. Statement of the accused Sher Mohammad was recorded twice. Firstly, on 03.11.2004 and secondly, on 01.03.2005. In all, 45 questions were asked in such statement. While replying the questions, the accused either denied the same or pleaded ignorance to such questions. He denied his signatures on the hotel register. The accused also denied that the victim was his business partner. The accused also said that necessary precautions were not taken while conducting identification proceedings. 9. According to Dr. K.N. Lakhera, who conducted post mortem (Ext.Ka-13) on the dead body of the deceased on 14.09.2001, cause of death of victim could not be ascertained and therefore, viscera was preserved. The same was sent to the Forensic Science Laboratory, Agra for chemical examination. 9. According to Dr. K.N. Lakhera, who conducted post mortem (Ext.Ka-13) on the dead body of the deceased on 14.09.2001, cause of death of victim could not be ascertained and therefore, viscera was preserved. The same was sent to the Forensic Science Laboratory, Agra for chemical examination. FSL, in it’s report (Ext.Ka-17) found the presence of aluminum phosphate (poison) in the stomach, intestine, liver, gall bladder, kidney and spleen of the deceased. Thus the scientific evidence established the fact that the poison was administered (by the accused) to the victim, which cost the victim his life. 10. The evidence tendered by PW1 & PW5 established that the accused-appellant booked the room in Mayur Hotel in the fake name of Raju. Had the appellant no criminal intention to commit the murder of victim, he would have booked the hotel in his real name. What compelled him to enter the hotel in the pseudonym of Raju? PW1 & PW5 were respectively the manager and bearer of Mayur hotel. They had no grudge against the appellant. What benefit the manager and the bearer would get by insinuating the appellant? None. In the normal circumstances, it is well nigh impossible for the manager and the waiter to remember the faces of the visitors in their hotel. But when some incident of a catastrophic nature happens, then the same is etched in the memory. The same happened in the instant case also, in as much as, a murder took place inside the hotel. The prosecution witnesses said that the appellant wrote and signed in the hotel register, etc. The evidence has it that the appellant signed those papers. While the prosecution was able to prove beyond shadow of doubt that the appellant visited the hotel along with the victim on the fateful day, the appellant was unable to show that he was not present in the hotel on the said day. The appellant could not create any suspicion in the prosecution story. There was no confusion that the appellant did not sign over the papers when he visited Mayur Hotel along with the victim. He entered appearance in the pseudonym of Raju. The fact that the appellant visited the hotel, entered his appearance in the fake name of Raju, administered poison to the victim and killed him, stood proved beyond a shadow of reasonable doubt. 11. He entered appearance in the pseudonym of Raju. The fact that the appellant visited the hotel, entered his appearance in the fake name of Raju, administered poison to the victim and killed him, stood proved beyond a shadow of reasonable doubt. 11. The victim was ‘last seen’ with the appellant at Sohrab Gate Bus Station, Meerut, was evidenced by PW4. PW2 came to Nainital on coming to know of the death of the victim and lodged the report. It was good to note that the dead body was sent for the post mortem by the police even before the first information report was lodged. PW3 Naeema Siddiqui, who was the wife of the victim, evidenced that a tractor was sold by the victim on 06.09.2001, which fetched around Rs. 70,000/- - Rs. 80,000/. The appellant was given a sum of Rs. 60,000/- on 06.09.2001 itself by the victim. PW3 also said that the victim went to give Rs. 10,000/- to the appellant on 09.09.2001. The victim went to Nainital along with the appellant in connection with business activities. The prosecution witnesses stood firm on the face of the storm in their cross-examination. There was no evidence to suggest that the identification proceedings suffered from any legal lacuna. PW1 & PW5 correctly identified the appellant in the identification proceedings conducted by PW8. The possibility of administering poison by the hotel staff was completely ruled out, in as much as, it was not brought on record that the hotel staff had any previous enmity with the victim, who had come to Mayur Hotel for the first time. Every chain of the circumstantial evidence, which was suggestive of the fact that the appellant and the appellant alone committed the murder of the victim, was complete. Learned trial court has given elaborate reasons for holding that the chain of circumstances was so complete that there was no option but to convict the accused for the offence punishable under Section 302 IPC, in as much as, the prosecution was able to prove it’s case to the hilt. No interference is called for in the impugned judgment and order dated 07.07.2005. The criminal appeal is liable to be dismissed. 12. Criminal Appeal preferred by the appellant is accordingly dismissed. The Judgment and Order under Appeal, as also the conviction and sentence awarded to the appellant, is affirmed. Appellant is on bail. His bail is cancelled. No interference is called for in the impugned judgment and order dated 07.07.2005. The criminal appeal is liable to be dismissed. 12. Criminal Appeal preferred by the appellant is accordingly dismissed. The Judgment and Order under Appeal, as also the conviction and sentence awarded to the appellant, is affirmed. Appellant is on bail. His bail is cancelled. He is directed to surrender before the court below to receive the sentence, as was awarded by learned trial court, and thus affirmed by this Court. 13. Let a copy of this judgment be sent to the court below for causing the appellant to surrender and serve out the sentence, as above. Lower court record be sent back.