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2013 DIGILAW 422 (ALL)

ZAMEER AHMAD v. STATE OF U. P.

2013-02-05

ANIL KUMAR SHARMA, RAKESH TIWARI

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Rakesh Tiwari, J. Heard Sri Sarvesh Kumar Dubey, Advocate holding brief of Sri Brijesh Sahai, learned counsel for the appellants, Sri R.Y. Pandey, learned AGA for the State and perused the record. This criminal appeal has been preferred against the judgment and order dated 12.1.2007 passed by the Additional District & Sessions Judge/Special Judge, Court no. 3, J.P. Nagar in S.T. No. 42 of 2005, State versus Zameer Ahmad and others. By the impugned judgment and order the appellants have been convicted under Section 302 read with section 34 IPC and sentenced to life imprisonment with fine of Rs. 10,000/- each, under Section 452 read with Section 34 IPC they have further been convicted and sentenced to 3 years' imprisonment with fine of Rs.1,000/- each and under Section 504 IPC they have further been convicted and sentenced to undergo 6 months' imprisonment and under Section 506 IPC the trial Court further convicted and sentenced the appellants to undergo 6 months' imprisonment. The impugned order further provides that in default of payment of fine awarded under Sections 302 read with Section 34 IPC and 452 read with Section 34 IPC the appellants to undergo 6 months and 1 month's imprisonment respectively. The impugned judgment has been challenged on the ground that the conviction and sentence of the appellants is against the weight of evidence on record and no offence whatsoever is made out against the appellants, yet the accused-appellants have been sentenced too harshly by the trial Court. The last ground for assailing the impugned judgment and order is that the conviction and sentence is bad in the eye of law. On these grounds the appellants have prayed for allowing the appeal and setting aside the order of conviction and sentence passed against them. The prosecution story is that a written report dated 14.12.2004 was submitted before the S.H.O., P.S. Amroha, District J.P. Nagar averring that today on 14.12.2004 at about 7.00 P.M. Zameer Ahmad son of Katlan, Zafeer, Ameer and Shane sons of Zameer Ahmad resident of mohalla Chowk, P.S. Amroha came armed with illegal weapons abusing and threatening to kill entered the house of Fakhruddin, brother of the complainant. At that time, a gas lantern and an emergency light were burning inside the house. The aforesaid persons immediately on entering the house assaulted Fakhruddin saying that they will not leave him alive today. At that time, a gas lantern and an emergency light were burning inside the house. The aforesaid persons immediately on entering the house assaulted Fakhruddin saying that they will not leave him alive today. Zafeer Ahmad and Zameer Ahmad assaulted Fakhruddin with knife whereas Ameer Ahmad and Shane started beating him. On raising of the alarm witnesses Rais Ahmad, Mohd. Yusuf alias Chhote son of Abid Hussain resident of Kali Pagri, Amroha and Zulfikar, brother-in-law of the deceased as well as Farjana wife of Fakhruddin came there. On hearing the hue and cry Mohd. Zaki son of Mohammad Shaki resident of mohalla Chakli also said to have come on the spot and witnessed the incident when saving the injured Sri Fakhruddin from the assailants. The persons on the spot took Fakhruddin, to the Government hospital where he died due to the injuries sustained by him. The motive for the incident is said to be old enmity. It was averred by the complainant that in order to give shape to their common intention to do away with his brother, the assailants came together and had killed his brother Fakhruddin in a preplanned manner whose body is in the hospital. G.D. entry was made on 14.12.2004 at 20.15 hours and FIR was lodged showing that the incident had taken place on 14.12.2004 at 7.00 P.M. at mohalla Chowk, Jat Bazar, which was at a distance of 1/2 km. towards the north direction. The investigation of the case was initially conducted by S.H.O. P.S. Amorha himself who on the pointing out of accused Zafeer in case crime no. 1597 of 2004, under Sections 302,452,504,506 and 34 IPC recovered a knife alleged to have been used in the incident. After inquest the body was sent for post mortem examination to the Medical Officer 24th P.A.C., Moradabad under the charge of C.P. No. 338 Than Singh and C.P. No. 21 Deen Dayal, of P.S. Amroha Nagar. The doctor in the post mortem report has reported that on appearance the deceased was aged about 48 years. He had died 3/4th of day earlier. The external examination of the body showed that the deceased was of average built body. Rigour mortis had passed out from neck and was present over both upper and lower extremities. Post mortem staining was on part of body. The ante-mortem injuries reported by the Doctor were:- 1. Stab wound 2.5 cm. He had died 3/4th of day earlier. The external examination of the body showed that the deceased was of average built body. Rigour mortis had passed out from neck and was present over both upper and lower extremities. Post mortem staining was on part of body. The ante-mortem injuries reported by the Doctor were:- 1. Stab wound 2.5 cm. x 1 cm. x chest cavity deep over left side of chest which is about 6 cm. from left nipple. 2. Stab wound over right side of chest measuring about 1.5 cm. x .5 cm. chest cavity deep which is about 7 cm. from right nipple. 3. Incised wound 4 cm. x 1 cm. muscle deep over inner side of right knee. 4. Incised wound 1 cm. x 0.5 cm. muscle deep over right patella region of knee. The internal examination of the body in the post-mortem of the cadaver of the deceased showed that walls, ribs and cartilages had received injuries as noted in the ante mortem injuries. The right side of pleura was found lacerated and about 1 liter blood was present in right chest cavity. The right lung, pericardium and heart were also found lacerated and about 500 ml. blood was also found present over pericardium cavity. The stomach showed about 200 grams semi-digested food particles present, semi-digested food and fluid was present in small intestine whereas the large intestine contained faecal matter with gases at places. Liver, Gallbladder, and Kidneys were pale. Urinary bladder was half full. In the opinion of the Doctor cause of death was due to shock and hemorrhage as a result of ante mortem injuries. The blood stained knife recovered by the police along with clothes on the body of the deceased were sent to the Forensic Science Laboratory for purpose of chemical examination. The report of the F.S.L. in case crime no. In the opinion of the Doctor cause of death was due to shock and hemorrhage as a result of ante mortem injuries. The blood stained knife recovered by the police along with clothes on the body of the deceased were sent to the Forensic Science Laboratory for purpose of chemical examination. The report of the F.S.L. in case crime no. 1597 of 2004 reads thus:- mi;qDr ekeys ls laEcf/kr izn'kZ iz;ksx'kkyk esa fnukad 09@03@2005 dks fo'ks"k okgd }kjk izkIr gq, lhy dk fooj.k ,d oL=ko`r leqfnzr caMy ftl ij (S.P.S. U.P.P.+ 8 eqnzkuewukuqlkj½ dh Nki v{kr izn'kksZ dk fooj.k 1- pkdw vfHk0 tjhQ ls] ,d loZeqgj caMy esA 2- dqrkZ e`rd Qd:n~nhu ls] 3- ik;tkek & 4- LosVj gkQ & 5- cfu;ku & 6- vUMjfo;j ,d loZ eqgj caMy esA uksV& oLrq ¼1½ dks vU; oLrqvksa ds lkFk ,d gh caMy esa j[kdj okil ykSVk;k tk jgk gSA ijh{k.k ifj.kke oLrq ¼1½ ls ¼6½ ds cMs Hkkxks ij jDr ds /kCcs ik;s x;sA jDr ds fy;s LisdV~eh; ijh{k.k iz;ksx esa yk;k x;kA oLrq ¼1½ ¼3½ o ¼4½ ij ekuo jDr ik;k x;kA oLrq ¼2½ ¼5½ o ¼6½ ij jDr ds /kCcs fo;ksftr (Disintegrated) ik;s x;s vr% ewy fu/kkZ (Origin) u gks ldkA oLrq ¼1½ ij jDr ds ?kCcksa ds oxhZdj.k ds fy;s fd;s x;s ijh{k.kks ls dksbZ fuf'pr ifj.kke u fudy ldkA oLrq ¼3½ o ¼4½ ij jDr ds /kCcs] oxhZdj.k ds fy, vuqi;qDr FksA vko';d dk;Zokgh gsrq vxlkfjr A.K.Mitttal lgk;d funs'kd oSKkfud vf/kdkjh g0 v0 30-6-05 On conclusion of the investigation the chargesheet was submitted in the court of C.J.M, J.P. Nagar, who vide his order dated 8.2.2005 committed the case to the court of Session. The trial Court framed charges under Sections 452,504,506 and 302 read with Section 34 IPC against accused-appellants Zameer Ahmad, Zafeer, Ameer and Shane who pleaded "not guilty" to the aforesaid charges and claimed to be tried. The prosecution in support of its case examined P.W.1 Zafruddin, the first informant brother of the deceased and P.W.2, Rais Ahmad, as eye witnesses of the incident, P.W.3, H.C. Hemendra Kumar, the scribe of the chick report, P.W.4, Constable Deen Dayal, who had brought the dead body of the deceased for post mortem at the district hospital, P.W.5, Dr. The prosecution in support of its case examined P.W.1 Zafruddin, the first informant brother of the deceased and P.W.2, Rais Ahmad, as eye witnesses of the incident, P.W.3, H.C. Hemendra Kumar, the scribe of the chick report, P.W.4, Constable Deen Dayal, who had brought the dead body of the deceased for post mortem at the district hospital, P.W.5, Dr. Awanish Kumar, who proved the autopsy report and P.W.6, Satya Prakash Sharma, who is the Investigating Officer, as formal witnesses, whereas the accused-appellants were examined under Section 313 Cr.P.C. and stated that they have been falsely implicated in this case. Considering the evidence on record and upon hearing the parties' counsel, the trial Court decided S.T. No. 42 of 2005 holding the accused-appellants guilty and sentencing them as stated above against which they have preferred this criminal appeal. It appears from the order dated 26.4.2010 that accused Ameer Ahmad and Shane were released bail and bail prayer of accused Zameer Ahmad and Zafeer Ahmad was rejected. "Admittedly, accordingly to the case of the prosecution, as has been canv-assed before us by counsel for the appellants, which have not been disputed factually by counsel for the informant and learned AGA that two of the appellants Ameer Ahmad and Shane had not caused injuries to the deceased on any vital part of the body and the injuries caused by them are simple in nature as well. In such a view of the matter, without expressing any opinion on the merits of the case, let Ameer Ahnad and Shane be released on bail on their furnishing a personal bond of two lakhs each with two sureties in the like amount to the satisfaction of the trial Judge concerned in ST No. 42 of 2005, under Sections 302/34, 504,506,452/34 IPC, PS Amroha Nagar, District J.P.Nagar. As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the trial Judge to be kept on the record of this appeal. On month's time is allowed to the appellants to deposit the entire amount of fine awarded to them. As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the trial Judge to be kept on the record of this appeal. On month's time is allowed to the appellants to deposit the entire amount of fine awarded to them. So far bail prayer of Zameer Ahmad and Zafeer Ahmad is concerned since they have caused fatal injuries on the vital part of the body, the same stands rejected." Sri Sarvesh Kumar Dubey, Advocate holding brief of Sri Brijesh Sahai, learned counsel for the appellants has enumerated following points for consideration:- (1) that appellant nos. 1 and 2 have been falsely implicated in case crime no. 1597 of 2004, under Sections 302,452,504,506 and 34 IPC, P.S. Amroha, District J.P. Nagar; (2) that The incident had taken place on 14.12.2004 at 7.00 P.M. while the FIR was registered on 14.12.2004 at 20.15 hours; that the post mortem report does not support the prosecution version and there are contradiction in it; (3) that appellants no. 1 and 2 are innocent and gentle persons of their locality who are victim of false implication; (4) that the trial Court has not applied its mind to the facts and circumstances of the case, but has wrongly believed the prosecution version which was concocted; (5) that findings of the trial Court are based on no evidence; (6) that the findings recorded by the trial Court are perverse being based on surmises and conjectures; (7) that the sentence awarded to appellant nos. 1 and 2 is too severe; and (8) that the accused-appellants have no criminal history except the present case and the alleged allegations against accused-appellant nos. 1 and 2 are vague and frivolous. On being asked to elaborate the aforesaid points raised by him while assailing the judgment of the trial Court by his arguments, he refused to elaborate any further on ground of professional reasons. No point has been argued before us by the learned counsel for the appellants except stating them as noted above. It is stated that for professional reasons he will not argue the same any further. No point has been argued before us by the learned counsel for the appellants except stating them as noted above. It is stated that for professional reasons he will not argue the same any further. Learned counsel for the complainant has submitted that the incident took place in the manner as stated and proved by the prosecution that FIR is prompt and not ante-timed as alleged having been lodged on same day within an hour and 15 minutes of the incident and the lodging of the FIR is well explained from the facts and circumstances of the case; that applicants have not been falsely implicated. The guilt of the accused-appellants is fully proved from oral, documentary and medical evidence for which the trial Court has given succinct and clear reasons for returning the guilty verdict against the accused-appellants sentencing them with appropriate punishment for the offence committed by them, hence there is no illegality or infirmity in impugned judgment of the trial Court which is liable to be upheld. It is stated that the claim of the appellants that they are gentlemen is opposed to the record which shows that they have committed a heinous crime. Learned AGA has submitted that the complainant is an eye witness of the occurrence, who was present on the spot and that the incident had taken place inside the house of the deceased where the accused persons armed with lethal weapons had come to do away with him. The incident has not only been witnessed by the family members of the deceased but on hue and cry a large number of persons had also assembled at the place of occurrence who had witnessed the incident. In fact they had tried to save the deceased by taking him to the hospital but he died and leaving the body of the deceased the complainant had gone to the police station for lodging the FIR. According to the learned AGA, the FIR gives a clue to the motive for the incident as long drawn standing enmity between the accused-appellants and the deceased. He submits that even otherwise since there are ocular witnesses to the incident, the motive imputed in the FIR pales into insignificance or becomes irrelevant. According to the learned AGA, the FIR gives a clue to the motive for the incident as long drawn standing enmity between the accused-appellants and the deceased. He submits that even otherwise since there are ocular witnesses to the incident, the motive imputed in the FIR pales into insignificance or becomes irrelevant. It has been vehemently argued by the learned AGA that the appellants have committed a heinous offence, which was witnessed by many persons and in view of the eye witnesses to the incident available for proving the charge it would be wrong to say that the accused persons have been falsely implicated in this case. He has submitted that P.W.1, Zafruddin, the first informant and brother of the deceased as well as P.W.2, Rais Ahmad, the eye witnesses of the occurrence were examined by the trial Court and have proved the case. According to him, the statements of witnesses and evidence on record as well as from the reading of the FIR, which was promptly lodged, it cannot be said that the FIR is lodged on false and frivolous facts. The FIR was prompt and not ante time or even after thought as alleged by the learned counsel for the appellants. The post mortem report and medical report as well as account of eye witnesses fully support the prosecution version, therefore, motive pales in insignificance. The trial Court has given a categorical finding of fact that the accused persons are not innocent as claimed by them. These findings being based on record are liable to be confirmed by this Court. It is lastly submitted that merely because the accused persons had no criminal history they would not be presumed to be innocent. The findings recorded by the trial Court on the basis of record and evidence against them show the true colours of their character. Therefore, the allegations against the accused persons are neither frivolous nor vague and mere claim of an accused, who has committed an offence that he is respected person of the village having considerable property in his possession does not prove that he is so as claimed by him. The sentence awarded to the appellants is also not too severe as alleged but is fair and just in the facts and circumstances of the case. The sentence awarded to the appellants is also not too severe as alleged but is fair and just in the facts and circumstances of the case. After hearing learned counsel for the parties and from a bare perusal of the FIR as well as the record we find that the date, time and place of occurrence is fixed in the FIR which is promptly lodged. The appellants armed with illegal weapons in their hands had come to the house of Fakhruddin ( since deceased) and had assaulted him as a result of which he died. The incident of 14.12.2004 had many eye witnesses. From perusal of the statement of P.W.1, Zafruddin it is clear that he has unflinchingly stood the cross-examination with regard to his version that on 14.12.2004 at about 7.00 P.M. Zameer Ahmad, Zafeer, Ameer and Shane came to the house of Fakhruddin. Zafeer Ahmad and Zameer Ahmad were armed with knives and had done away with him while extending threats and abuses. They had also confirmed that there was source of light as well as seat of injuries on the body of the deceased. This witness has also narrated in his statement as to how the FIR was written by Parvej which he had given at police station Amroha and stating that he had recognized the assailants in the light emitting from gas lantern and emergency lights in the house of deceased. Though no source of light has been shown in the site plan, however, it would hardly be material in the facts and circumstances of this case as even in the FIR which has been lodged promptly shows that source of light i.e. burning of gas lantern and emergency lights has been mentioned therein in which he had recognized all the accused persons who were known to him from before. P.W.1 has stated in his statement that there was source of light. Therefore, if any irregularity has been committed by the I.O. in not showing the source of light in the site plan prepared much later by the I.O. would be of no help to the accused-appellants. Regarding corroborative medical evidence, the FSL report on the items ( 1), ( 3) and ( 4) shows that human blood was found on the knife ( item no. 1) recovered from the possession of accused Zafeer and on the 'Paijama' ( item no. Regarding corroborative medical evidence, the FSL report on the items ( 1), ( 3) and ( 4) shows that human blood was found on the knife ( item no. 1) recovered from the possession of accused Zafeer and on the 'Paijama' ( item no. 3) and Sweater ( item no. 4) of deceased Fakhruddin. In so far as the motive attributed to the long drawn standing enmity in the FIR between the accused and the deceased is concerned, suffice it to say that it has come in the evidence of P.W.1 that this enmity is said to be due to a case between the father of the deceased and the family of the accused persons. The complainant and his brother deceased after the death of their father have equal rights in the property and that the case between the accused and the father of the complainant and deceased had come to an end about 15-16 years back. Therefore, the motive appears to be very weak. However, in view of the ocular witnesses to the incident the motive becomes irrelevant as stated earlier. It appears that the complainant who is real brother of the deceased was saved by the fact that he was weaving 'Charpai' ( cot) in the house from where he could see the incident. It may be relevant to state here that after enumerating the points for assailing the judgment and order impugned counsel for the appellants did not argue the matter any further on ground of "professional reasons" which have not been informed to the Court. However, an application was subsequently moved by Sri Brijesh Sahai that he will be afforded an opportunity to elaborate the points and argue the matter in detail. We in the interest of justice directed the application for being listed with previous papers, so that we could have elaborate arguments of counsel for the appellants. Sri Brijesh Sahai, learned counsel for the appellants inspite of opportunity given to him as sought by him to make further arguments did not chose to appear in the Court on the date fixed i.e. 16.1.2013. We, find as stated above, that there is no illegality or infirmity in the order of the Court below which has come to the conclusion that the offence was committed by the accused persons in a preplanned manner. We, find as stated above, that there is no illegality or infirmity in the order of the Court below which has come to the conclusion that the offence was committed by the accused persons in a preplanned manner. The manner of assault and the injuries caused by the accused persons as described by P.Ws.1 and 2 are corroborated from the post mortem report for the reasons that it appears from the FIR that the complainant had described the assault therein thus:- ^^mijksDr O;fDr;ks us esjs HkkbZ Q[k:n~nhu ij vkrs gh tkuysok geyk dj fn;k vkSj xkyh nsdj dgk fd lkys vkt rqes tku ls ekjs fcuk ugh NksM+sxsa bruk dgrs gh tQhj vgen o tehj vgen us esjs HkkbZ Q[k:n~nhu ds pkdw ekjus 'kq: dj fn;s rFkk vehj vgen o 'kkus us Hkh tku ls ekjus dh fu;r ls esjs HkkbZ dks ekjuk 'kq: dj fn;kA** Whereas from the statement of P.W.1 it appears that four persons had over powered deceased Fakhruddin and gave him blows with knife. The words ^^tku ls ekjus dh fu;r ls esjs HkkbZ dks ekjuk 'kq: dj fn;kA** shows that this refers to injuries giving blows by knife. On a close scrutiny of the FIR and the statement of P.W.1 we find that the manner of assault by the accused persons by knife is supported by the medical evidence. There is no illegality or infirmity in the impugned judgment and order of the court below, hence no interference is required by this Court. For the reasons stated above, the appeal is accordingly, dismissed. Appellants Ameer Ahmad and Shane are on bail. Their bail is cancelled. The C.J.M., J.P. Nagar is directed to ensure arrest of the aforesaid appellants for serving the sentence awarded by the trial Court. Let a certified copy of this judgment be sent to the court below for its immediate compliance which should be reported to this Court within two months.