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2013 DIGILAW 642 (UTT)

CHOTA ALIAS BIHARI v. STATE OF UTTARAKHAND

2013-10-09

BARIN GHOSH, U.C.DHYANI

body2013
JUDGMENT Per: U.C. Dhyani, J. PW1 Parvez Alam wrote a complaint (Ext. Ka-1) to Station Officer, police station Jhabreda (Haridwar) on 10.07.2004 regarding murder of his brother by some unknown assailants at around 01:45 AM in the intervening night of 09 / 10.07.2004. PW1 wrote Ext. Ka-1 with the assistance of scribe Shamshad Ali (PW6). It was written in the complaint that Parvez Alam’s brother Munir Alam dealt with in sale and purchase of buffaloes. Munir Alam was sleeping in the verandah of his house alongwith his family members in the night. Some unknown assailants killed Munir Alam. Parvez Alam’s another brother Zubair Alam (PW2) was sleeping in the neighbouring house. PW2 saw the assailants fleeing away from the place of occurrence. PW2 could identify the assailants. 2. Chik FIR (Ext. Ka-9) to this effect was lodged on 10.07.2004, at 06:15 A.M. against unknown persons in police station Jhabreda, Roorkee, District Haridwar, which was registered as case crime no. 53 of 2004, under Section 302 of IPC. After completion of investigation, two separate charge-sheets were submitted against the accused persons for the offence punishable under Section 302 of IPC. Both the cases were committed to the Court of Sessions. When the trial commenced and prosecution opened it’s case, charges under Section 302 of IPC read with Section 34 of IPC were framed against all the accused persons, who pleaded not guilty and claimed trial. 3. PW1 Parvez Alam, PW2 Zubair Alam, PW3 Smt. Farzana, PW4 Shabana, PW5 Salim, PW6 Shamshad Ali, PW7 Umaid, PW8 Constable Chetan Singh, PW9 Dr. Subhash Chandra, PW10 S.I. Shanti Prashad, PW11 S.O. Nagendra Pratap, PW12 S.H.O. Vimal Chandra Tamta and PW13 Constable Surendra Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they denied prosecution allegations and said that the prosecution witnesses told a lie and they were falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Addl. Sessions Judge, Haridwar, vide judgment and order dated 21.11.2009, convicted accused-appellants Chota alias Bihari, Rashid, Irshad, Nanha and Muntazir under Section 302 of IPC read with Section 34 of IPC. Each one of them was directed to undergo imprisonment for life alongwith a fine of Rs. 10,000/- each. After considering the evidence on record, learned Addl. Sessions Judge, Haridwar, vide judgment and order dated 21.11.2009, convicted accused-appellants Chota alias Bihari, Rashid, Irshad, Nanha and Muntazir under Section 302 of IPC read with Section 34 of IPC. Each one of them was directed to undergo imprisonment for life alongwith a fine of Rs. 10,000/- each. Feeling aggrieved against the impugned judgment and order, present criminal appeals were preferred by the accused-appellants. Since all the appeals have arisen out of same FIR, therefore, they are being decided by this common judgment and order for the sake of brevity. 4. Let us first give a brief statement of the peripheral witnesses. PW5, PW8 and PW10 were the signatory to the inquest report (Ext. Ka-2). PW6 did not support the prosecution story and so did PW7. Both were declared hostile. PW11 was the Investigating Officer of the case, who concluded the investigation. PW12 was another Investigating Officer, who conducted investigation of the case at some length. PW13 proved chik FIR and entry of the same in the G.D. 5. PW9 conducted postmortem on the dead body of the victim. The Medical Officer proved PMR (Ext. Ka-3). According to the Medical Officer (PW9) the cause of death of the victim was haemorrhage, shock and coma due to ante mortem firearm injury. No other ante mortem injury was sustained by the victim, ruling out the possibility of assault upon the victim by any other weapon, including stick, at the hands of any other assailant. 6. Prosecution led the evidence through PW1, who set the criminal law into motion by writing complaint (Ext. Ka-1). In his examination-in-chief, PW1 supported prosecution story and proved the contents of the complaint/FIR. It will be a mere repetition to mention the contents of his examination-in-chief, in as much as the same was nothing but almost verbatim reproduction of the contents of the FIR, which was lodged against six unknown assailants. In the cross-examination, PW1 admitted that he was not present at the place of occurrence on the fateful night. PW1 did not see any of the miscreants. He did not disclose the name of any of the assailants to the police. 7. PW2 was the key prosecution witness, but he did not support the prosecution story. PW2 was declared hostile and was permitted to be cross-examined by learned A.D.G.C.(Criminal), without yielding any fruitful result in favour of the prosecution. PW1 did not see any of the miscreants. He did not disclose the name of any of the assailants to the police. 7. PW2 was the key prosecution witness, but he did not support the prosecution story. PW2 was declared hostile and was permitted to be cross-examined by learned A.D.G.C.(Criminal), without yielding any fruitful result in favour of the prosecution. As per the FIR, PW2 was sleeping in the neighbouring house. PW2 would have been the most natural prosecution witness, had he supported the prosecution version, but he did not do so. In his examination-in-chief, PW2 said that in the intervening night of 09/ 10.07.2004, six unidentified assailants entered into the house. Those unknown miscreants enquired about the house of the victim. PW2 disclosed the location of victim’s house to the miscreants due to fear and accompanied them. PW2’s brother (victim), victim’s wife (PW3), and victim’s daughter (PW4) woke up. The miscreants held PW2 hostage. According to PW2, PW3 did not make any attempt to save her husband. The assailants fired upon the victim, which hit him. Thereafter the accused persons fled away from the place of occurrence. PW2 also said that when the police arrested the assailants, he was not present. PW2 could not identify the assailants because it was pitch-dark night. In the cross-examination, PW2 said that PW3 was also given a blow of stick by the miscreants. Victim succumbed to his injury on the spot. Thus, the prosecution did not gain any advantage out of deposition of PW2, who might prove to be the key witness for prosecution. 8. PW3 was the widow of the deceased. Although, PW3 supported the prosecution story in her examination-in-chief, but improved upon the same by saying that a zero watt bulb was glowing at the place of incident when the crime was committed. PW3 said that two of the accused persons caught hold of the hands of the deceased. She also named two accused persons, who were carrying sticks in their hands. PW3 further said that one of the accused was armed with a country made pistol. PW3 did not identify the assailant, who killed her husband. In the cross-examination, PW3 said that a zero watt bulb was also glowing in the courtyard. The assailants did not cover their faces. PW3 further said that one of the accused was armed with a country made pistol. PW3 did not identify the assailant, who killed her husband. In the cross-examination, PW3 said that a zero watt bulb was also glowing in the courtyard. The assailants did not cover their faces. It will be worthwhile to mention here that no Test Identification Parade (TIP) was conducted by the Investigating Officer to establish the identity of the assailants. It will also be pertinent to mention at this stage that the criminal appeal of the main accused Nazeer alias Aslam, being Criminal Appeal No. 09 of 2010, was allowed by a Division Bench of this Court, vide judgment and order dated 28.05.2013, granting him benefit of doubt. Evidence of the Sessions Trial against accused Nazeer alias Aslam was recorded separately. Whereas in that Sessions Trial, PW3 said that she saw the faces of the assailants in the light of a zero watt bulb, she (PW3) improved upon the same in this Sessions Trial by adding fixation of one more zero watt bulb (one in the house and another in the courtyard). PW3 cannot, therefore, be permitted to improve upon the prosecution story. It was also admitted by PW3 that the Investigating Officer recorded her statements after three months of the incident. PW3 was a parda nasheen woman. She did not name the assailants to the police when her statements (under Section 161 of Cr.P.C.) were recorded. PW3 further said that she only knew Nazeer (criminal appeal of whom was allowed) and Muntazir (one of the accused-appellants in the case in hand). PW3 identified remaining accused-appellants in the Court after looking at their photographs published in the newspaper. Evidence has it that none of the assailants were the residents of the same locality. How could then, PW3 identified Muntazir, especially when she was a parda nasheen lady, is beyond one’s comprehension? The evidence tendered by PW3, therefore, did not help the prosecution in any way. 9. PW4 was the daughter of the deceased, who supported the prosecution story by saying, among other things, that two accused persons caught hold of her father and Nazeer fired upon her father. PW4 said that, in all, there were six assailants. In the cross-examination, PW4 said that the assailants did not cover their faces. She saw the assailants in the Court for the second time. PW4 said that, in all, there were six assailants. In the cross-examination, PW4 said that the assailants did not cover their faces. She saw the assailants in the Court for the second time. PW4 came to depose before the Court earlier also (but her evidence was not recorded on those dates). PW4 did not see the accused persons on previous occasions in the Court. PW4 also admitted in the cross-examination that the police did not conduct TIP. The incident took place in the intervening night of 09/10.07.2004 and the evidence of PW4 was recorded on 17.09.2008. According to PW4’s own statement, she did not see the accused persons in between the incident and her deposition before the Court below. When PW4 deposed, she was 18 years of age. It is difficult to believe that PW4 identified the assailants correctly after a span of more than four years. Even if the testimony of PW4 be presumed to be true, it will not be safe to hold the appellants guilty of the offences complained of against them on the strength of the uncorroborated testimony of PW4. 10. FIR was lodged against unknown miscreants. PW2, who was sleeping in the neighbouring house, although said about the killing of his brother by unknown assailants, but did not identify any of them owing to pitch-dark night. The possibility of source of light was ruled out. In contra distinction, PW3 allegedly saw the miscreants in the light of two zero watt bulbs, one glowing inside the house and another in the courtyard. This was improved version of PW3’s statement, in as much as, she also deposed in another Sessions Trial against accused Nazeer, wherein she said that she saw the face of accused Nazeer in the light of a zero watt bulb. The criminal appeal of the assailant, who fired upon the victim, was allowed by a Division Bench of this Court, vide judgment and order dated 28.05.2013. Who were those six assailants, is not established. PW3 cannot be permitted to improve upon her own evidence. The statements (recorded under Section 161 of Cr.P.C.) of PW3 and PW4 were taken by the Investigating Officer after three months of the incident. They did not disclose the names of the assailants to the Investigating Officer. No TIP was conducted. PW3 and PW4 identified the accused persons on the basis of their photographs published in the newspaper. The statements (recorded under Section 161 of Cr.P.C.) of PW3 and PW4 were taken by the Investigating Officer after three months of the incident. They did not disclose the names of the assailants to the Investigating Officer. No TIP was conducted. PW3 and PW4 identified the accused persons on the basis of their photographs published in the newspaper. When the source and intensity of light was doubtful, will it be safe to rely upon the statements of PW3 and PW4 that the appellants were the culprits? In the PMR only one gun shot injury was shown. Said gun shot was allegedly fired by Nazeer. Prosecution story against accused Nazeer was not believed. No other ante mortem injury was sustained by the deceased. PW1 was not the eyewitness of the incident. PW2 was although present at the time of incident, but he did not identify the assailants. The participation of appellants in the crime was, therefore, not established. The appellants could not be held guilty on the uninspiring and uncorroborated testimony of PW4. On the whole, it is not such a case, in which it could be concluded that the prosecution was able to prove it’s case beyond reasonable doubt. In other words, the prosecution was unable to prove the case against the accused-appellants to the hilt. Interference is thus called for in the impugned judgment and order. 11. As a consequence thereof, the criminal appeals preferred by the accused-appellants Chota alias Bihari, Rashid, Irshad, Nanha and Muntazir deserve to be allowed and are accordingly allowed. The conviction and sentence awarded to the accused-appellants by the court below is hereby set aside. All the accused-appellants are on bail. Their bail bonds are cancelled and the sureties discharged. They need not surrender. 12. Let a copy of this judgment alongwith the lower court records be sent to the Court below for compliance.