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2013 DIGILAW 763 (ALL)

NOOR MOHAMMAD @ ANWAR v. STATE

2013-03-08

ANIL KUMAR SHARMA, RAKESH TIWARI

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Anil Kumar Sharma, J. Heard Sri Apul Mishra, Advocate for the appellants, Ms. Usha Kiran, AGA and perused the record. This criminal appeal has been preferred challenging the validity and correctness of the judgment and order dated 19.8.92 passed by the Vth Additional Sessions Judge, Muzaffarnagar in S.T. No. 342 of 1988, State versus Noor Mohammad and others, convicting the appellants Noor Mohammad alias Anwar,Tahir, Munawwar and Shamim under Section 365 IPC, 302 read with Section 34 IPC and 201 read with Section 34 IPC and sentencing each of them to undergo 7 years' RI, imprisonment for life and 3 years' RI respectively. The trial Court further directed that all the sentences to run concurrently. Brief facts of the case are that a written report was submitted by the complainant Mohd. Khursid son of Mohd. Isha resident of 437 Laddawala, Muzaffarnagar on 7.4.88, inter alia, that when his son Mohd. Gulfam alias Monu had gone to the 'Parchun' shop of Waheeda at about 4 o' clock in the evening, Tahir, Munawwar and Noor Mohammad sons of Kallu, who are related to him had abducted his son. On asking them about the boy they had not said anything about his whereabouts but told him that his son will come. On 3.4.1988 a hand written letter was received by the complainant in which a ransom of Rs. 21,000/- was demanded. The complainant requested Tahir that he was a very poor person and cannot give such a big amount on which he was assured by Tahir that he will get him more time for payment of ransom money and after a letter was got written by Tahir from the complainant to the effect that arrangement for the ransom money is being made and it will be paid in 4-5 days. Thereafter, Tahir took the letter and told him that he has been given time and since then the complainant has been making inquiries about the boy but has not come to know about his whereabouts. It is also averred in the written report that today i.e. 7.4.1988 a second letter was thrown inside his house by Shamim resident of Manglore, ( who is brother-in-law of his brother-in-law) and he ran away. On picking up the letter he saw that a ransom of Rs. 22,000/- was demanded, which was to be paid by the evening. It is also averred in the written report that today i.e. 7.4.1988 a second letter was thrown inside his house by Shamim resident of Manglore, ( who is brother-in-law of his brother-in-law) and he ran away. On picking up the letter he saw that a ransom of Rs. 22,000/- was demanded, which was to be paid by the evening. As he could not make arrangements of the ransom money he has come to the police station for lodging the report. His son Mohd. Gulfam alias Monu a 7 years and the aforesaid persons have hidden for the purpose of ransom. On the basis of written report FIR was registered at case crime no. 169/1988, under Section 365 IPC against accused persons on 7.4.1988 at about 21.40 hours. The place of occurrence is about 1 km. south-west from the police station. The investigation of the case was taken over by SI Prem Shankar Dwivedi. The police on receiving information at about 2.45 P.M. regarding whereabouts of accused Noor Mohammad alias Anwar son of Kallu resident of 437, Laddawala, P.S. Kotwali Muzaffarnagar, named in the FIR and he was arrested. On inquiry, he admitting his guilt stated that he had hidden the body of Mohd. Gulfam alias Manu near the bore well in village Bajhedi, along with the knife used in his murder which he can get recovered. The police on pointing out of accused Noor Mohammad alias Anwar went to the bore well aforesaid and recovered body of deceased Mohd. Gulfam alias Monu as well as blood stained knife said to have been used in doing away the son of the complainant. The body of Gulfam alias Monu was taken out from the ditch near the bore well for inquest. Plain and blood stained earth was sealed from the spot inside two separate boxes by the Investigating Officer, which was sent for chemical examination to Forensic Science Laboratory. After the inquest post mortem on the body of Mohd. Gulfam alias Manu son of Khursheed resident of 437, Laddawala, P.S. Kotwali Muzaffarnagar was sent by S.O. P.S. Kotwali Muzaffarnagar in sealed clothing for post mortem on 19.4.88, which was conducted at about 1.00 P.M. on the same day. A perusal of the post mortem report shows that the deceased was aged about 7 years. He was average muscular built. Rigour mortis had passed off. Body was in advanced stage of putrefaction. A perusal of the post mortem report shows that the deceased was aged about 7 years. He was average muscular built. Rigour mortis had passed off. Body was in advanced stage of putrefaction. Nails and hair were loose. Skin papery thin in greasing whole body which was embedded in moist earth Right forearm and hand was also in more putrefaction than other. No maggot or ova seen, colour reddish. Eyes embedded in socket. Natura orifices covered with earth. Following ante-mortem injuries were found on the cadaver of deceased Mohd. Gulfam alias Monu. 1.5 stab wound found on left side and one on right side of whole abdomen, loops of intestines coming out, intestine also covered with earth area of wounds is 20x 15 cm. each wound measuring 2x1 cm. The internal examination of the body showed that all chambers of the heart weighing 100 grams were empty. Peritoneum was congested. Cavity was full of clotted blood Stomach was found empty. Small intestine contained 3 loops incised and large intestine contained right ascending colour incised. The gall-bladder was incised at two places weighing 700 grams. The spleen was liquified wighing 100 grams. Kidneys contained 100 grams semi-solid. According to the doctor, the death has occurred 2-3 days ago and as a result of shock and haemorrhage due to injuries on abdomen. After post mortem on 19.4.1988, the body of Mohd. Gulfam alias Manu was returned with police papers and item nos. 1 to 4 i.e. plain and blood stained earth, knife, 'Payazama' and 'Kurta' small recovered from inside the cadaver of deceased, which were sealed for chemical examination by the Forensic Science Laboratory, U.P. Agra. On conclusion of the investigation chargesheet was submitted in the Court of Magistrate concerned, who committed the case to the court of Session where it was registered as S.T. No. 342 of 1988. The trial Court framed charges under Sections 365 IPC, 302 read with Section 34 IPC and 201 read with Section 34 IPC against accused-appellants Noor Mohammad alias Anwar, Tahir, Munawwar and Shamim to which they pleaded not guilty and claimed to be tried. The prosecution produced 11 witnesses in support of its case namely, Mohd. Khurseed ( P.W.1), Mohd. Sayeed ( P.W.2), Ashraf ( P.W.3), Islam ( P.W.4), Sayeed Ahmad ( P.W.5), Dr. Radhey Shyam Sharma ( P.W.6), Mustaq ( P.W.7), N.P. Rai, SI ( P.W.8), Prem Shankar Dwivedi, SI ( P.W.9), Mohd. The prosecution produced 11 witnesses in support of its case namely, Mohd. Khurseed ( P.W.1), Mohd. Sayeed ( P.W.2), Ashraf ( P.W.3), Islam ( P.W.4), Sayeed Ahmad ( P.W.5), Dr. Radhey Shyam Sharma ( P.W.6), Mustaq ( P.W.7), N.P. Rai, SI ( P.W.8), Prem Shankar Dwivedi, SI ( P.W.9), Mohd. Shahid ( P.W.10) and Raj Kishore Singh, SI ( P.W.11), whereas accused persons Noor Mohammad alias Anwar, Tahir, Munawwar and Shamim were examined under Section 313 Cr.P.C., who stated that they have been falsely implicated in the case due to enmity. Additional statement was also given by accused Noor Mohammad alias Anwar on 11.8.1992. The trial Court after hearing parties' counsel and on perusal of the record vide impugned judgment and sentence dated 19.8.1992, convicted and sentenced the accused-appellants as stated above in the judgment. Aggrieved, the appellants have come up in this appeal on the ground that the conviction of the appellants is against the weight of evidence on record and law as well as the sentence is too severe. The contention of learned counsel for the appellants is that the FIR is delayed and after thought. The incident is said to have taken place on 3.4.1988, whereas the FIR was lodged on 7.4.88, hence the accused persons have been falsely implicated after 4 days of the incident. It is stated that there is no evidence that letter for ransom money of Rs. 21,000/- was written by any of the accused persons on 3.4.88 or that the second letter dated 7.4.88 could be pinned on them. There are contradictions in the story of the prosecution and even the vital links of the circumstantial evidence said to be against the accused persons are missing. Therefore, neither on fact nor on the basis of evidence on record nor on the basis of circumstantial evidence the accused could be found guilty but the trial Court has committed an error apparent on the face of record by misreading the evidence and without considering the vital missing links in the circumstantial evidence has illegally and erroneously convicted and sentenced them vide judgment and order dated 19.8.1992. It is lastly submitted that the accused have been falsely implicated and have been made escape good in this case. Learned AGA submits that the relationship between the accused and the complainant is admitted by them. It is lastly submitted that the accused have been falsely implicated and have been made escape good in this case. Learned AGA submits that the relationship between the accused and the complainant is admitted by them. Delay in lodging the FIR has been explained by the complainant by saying that he was trying to get his son alive through Tahir as the accused were their relatives. According to him, the dead body of Gulfam alias Monu ( since deceased) was recovered on the pointing out of accused Noor Mohammad alias Anwar with whom the other accused persons have been seen. Mohd. Gulfam alias Monu was last seen in their company. As regards accused Shamim is concerned, he was seen by Islam ( P.W.4), an independent witness, throwing second letter dated 7.4.1988 for ransom money in the house of complainant. Accused Noor Mohammad alias Anwar was last seen with the boy by Mohd. Sayeed ( PW.2), who in his statement deposed that he had seen the boy Mohd. Gulfam alias Monu in the lap of accused Noor Mohammad alias Anwar, who had taken him with him from the 'Parchun' shop. He had known Noor Mohammad alias Anwar from before as he was his tenant. He had also deposed that the accused used to play with Mohd. Gulfam alias Monu ( since deceased) and took him for walk daily as both were relatives and residents of the same village. Therefore, he did not at that time found anything amiss in their activities. Mohd. Gulfam alias Monu was last seen in their company. The shop-keeper, Ashraf ( P.W.3) has also stated that accused Noor Mohammad alias Anwar had taken the boy with him and has corroborated the evidence of the prosecution. Therefore, on these facts, there is no question of any misidentification of the accused pesons and there is no ground for acquittal of their from the charges under Sections 365 IPC, 302 read with Section 34 IPC and 201 read with Section 34 IPC is made out. After hearing learned counsel for the parties and on perusal of record it appears that Mohd. Gulfam alias Manu had gone to the shop of Ashraf in Laddawala on 1.4.1988. It appears from the evidence that Noor Mohammad alias Anwar had taken the child Mohd. Gulfam alias Monu in his lap and went away. After hearing learned counsel for the parties and on perusal of record it appears that Mohd. Gulfam alias Manu had gone to the shop of Ashraf in Laddawala on 1.4.1988. It appears from the evidence that Noor Mohammad alias Anwar had taken the child Mohd. Gulfam alias Monu in his lap and went away. This statement of P.W.1 is also corroborated by the statement of P.W.2, Mohd. Sayeed, who in his statement has stated that Mohd. Gulfam alias Monu had come to purchase 'Dal' from the shop of Ashraf and that accused Noor Mohammad alias Anwar had taken the child in his lap. Shamim, Tahir and Munawwar were also standing at the shop. P.W.3, Ashraf has also corroborated the aforesaid evidence regarding Noor Mohammad alias Anwar taking Mohd. Gulfam alias Monu with him. The FIR also contains the version in this regard. Thus, it is apparent that accused Noor Mohammad alias Anwar had taken the boy with him along with other co-accused persons from the shop of Ashraf. From the record it also appears that Mohd. Sayeed and Sattar had informed Khurshid that they had seen Noor Mohammad alias Anwar, Tahir, Shamim and Munawwar going towards Sultan Industries along with Mohd. Gulfam alias Monu ( since deceased). Sayeed was the person, who had been purchasing goods from the shop of Ashraf at the relevant time. There is no occasion for this witness to speak any lie for false implication of the accused persons. Subsequently a letter dated 3.4.88 was found by Khurshid beneath the door of his house for payment of ransom money and return of child in lieu thereof. In the letter it was averred that Mohd. Gulfam alias Monu is with them, who can be taken within two days from inside the Railway bridge on payment of ransom money amounting to Rs. 21,000/-. This fact has also been accepted by Khurshid in his statement that there was demand of ransom money from the abductors. It appears that after receipt of the letter P.W.1 went to the house of Tahir with Kallu and Sayeed requesting for getting his son back on which Tahir informed him that in case he is unable to arrange money, he can get him some extension of time for payment of the ransom money. It appears that after receipt of the letter P.W.1 went to the house of Tahir with Kallu and Sayeed requesting for getting his son back on which Tahir informed him that in case he is unable to arrange money, he can get him some extension of time for payment of the ransom money. Tahir also got a letter written on behalf of Khurshid for asking 3-4 days more time for payment of ransom money and said to him that time has been granted but he must now arrange for money. This fact has also been corroborated by P.W.5, Sayeed Ahmad as well as by the First Information Report in which ransom money of Rs.21,000/- by means of letter dated 3.4.88 aforesaid is said to have been demanded by the abductors. It also appears that on 1.4.88, the day of incident itself Kadir and Mustaq had informed that they had seen accused along with Mohd. Gulfam alias Monu going towards north of Sahranpur private bus stand. This fact about seeing Mohd. Gulfam alias Monu with the accused going towards north of Sahranpur private bus stand, has also been corroborated by the statement of P.W.7, Mustaq. The record also shows that Shamim had been seen by Islam and Sayeed throwing a piece of paper in the house of Mohd. Khurshid, the complainant on 7.4.88 at about 10.00 A.M. Khurshid in his statement has stated that Sayeed and Islam had seen Shamim running away after throwing letter in which ransom money of Rs. 22,000/- was asked for. Islam ( PW.4) was at his house in front of house of Mohd. Khurshid and Sayeed in his shop have also confirmed this fact in their statements by appearing as witnesses for prosecution in the case. Khurshid also on seeing the letter thrown had asked Shamim what was he doing and on this accused Shamim had threatened him before running away. After this letter was received on 7.4.88 the complainant lodged a named FIR against the accused persons. Noor Mohammad alias Anwar, who was arrested by the police near Ghas Ki Mandi at 'Tri-junction' of the road at about 2.15 P.M. on 8.4.88 in presence of witnesses Khurshid, Kadir and Mustaq. It was on the pointing out of accused Noor Mohammad alias Anwar that the body of Mohd. Gulfam alias Monu and blood stained knife used in his murder was recovered from near the bore well. It was on the pointing out of accused Noor Mohammad alias Anwar that the body of Mohd. Gulfam alias Monu and blood stained knife used in his murder was recovered from near the bore well. Admittedly, the accused and the complainant are relatives. The complainant had earlier tried to search for his son but did not go to the police due to fear of his son life, who was abducted by his relatives living in the village. Even though, he was informed that the boy was seen with the accused persons, who were taking him with them and were also seen by witnesses, Kadir and Mustaq going towards north of Saharanpur private bus stand. Involvement of accused Tahir is also proved when he dictated the letter to Mohd. Khurshid, father of Gulfam alias Monu, the abducted child asking for some more time to pay the ransom money for safe return of the child. After dictating the letter Tahir said to Khurshid that time has been granted to him. According to the post mortem report conducted by Dr. R.S.Sharma ( P.W.6), there are 5 incised wounds of knife entering abdomen from which intestine had come out. According to the post mortem report, Mohd. Gulfam alias Monu died due to excessive bleeding through ante-mortem injuries. It may also be mentioned here that accused Noor Mohammad alias Anwar, who was also called by the Court below to give sample of his hand writings before it on 17.6.88 but he refused which also indicates his guilty mind. The trial Court has also not found any material contradictions in the statement of the witnesses, which might prove fatal to the prosecution case. Minor contradictions may be due to passage of time and perception of each witness over a period of interval between the offence committed and his deposition his recall of the incident in his memory for giving statement is likely to fade with the passage of time. The contradictions said to have been made by the witnesses, raised by the learned counsel for the appellants before us, are the same, which had been raised by the counsel for the accused in the trial Court have rightly been discarded by the trial Court by giving cogent reasons in paragraph nos. The contradictions said to have been made by the witnesses, raised by the learned counsel for the appellants before us, are the same, which had been raised by the counsel for the accused in the trial Court have rightly been discarded by the trial Court by giving cogent reasons in paragraph nos. 26 to 28 in the judgment, which read thus:- @ Hindi @ From the aforesaid discussion it is clear that after the FIR was lodged against the accused, they were certain that they will not get any ransom money from the complainant and, therefore, they did away with Mohd. Gulfam alias Monu whose body was recovered from near the bore well at village Bajhedi. On the basis of evidence on record the guilt of the accused is fully proved. Even the circumstantial evidence points out at the accused persons and not any one else, which is evident from the fact that- 1.Accused Noor Mohammad alias Anwar with the boy, who were taking him away from the shop of Ashraf; 2.On the pointing out of accused Noor Mohammad alias Anwar recovery of the dead body of deceased Gulfam alias Monu with blood stained clothes and knife was made by the police; 3. Accused Tahir had persuaded the complainant to write a letter saying that he will get time extended for payment of ransom money. Immediately on writing letter, he said that time has been granted; 4.Tahir had kept the first letter dated 3.4.88 as well as letter dated 7.4.88 asking for ransom money with him saying that time has been granted. This was done by him in order to remove the evidence of demand of ransom money; 5. Accused Noor Mohammad alias Anwar along with other co-accused was last seen with the other accused persons named in the FIR going with the abducted child Mohd. Gulfam alias Monu ( since deceased) towards north of private bus stand, Saharanpur; and 6.Admittedly, the accused persons are relatives of the complainant, who had abducted his child. They used to frequently visit his house and were the residents of the same village. There is no prior history of any enmity between them. Therefore, there is no inconceivable or does not appeal to reason that the complainant would implicate them in a false case without any reasons or basis. They used to frequently visit his house and were the residents of the same village. There is no prior history of any enmity between them. Therefore, there is no inconceivable or does not appeal to reason that the complainant would implicate them in a false case without any reasons or basis. The conduct of the accused persons also establish their posture involvement in the murder of Mohd. Gulfam alias Monu, hence, in our opinion, the accused persons have rightly been convicted under Sections 365 IPC, 302 read with Section 34 IPC and 201 read with Section 34 IPC and sentenced by the trial Court and their sentencing is not excessive as argued by the learned counsel for the appellants. For all the reasons stated above, the appeal is dismissed. Appellants Noor Mohammad alias Anwar, Munawwar and Shamim are in jail. They shall serve out the sentence awarded by the trial Court. The C.J.M., Muzaffarnagar vide his report dated 3.1.2013 has reported that appellant No.3, Tahir has died. Let a certified copy of this judgment be sent to the court concerned for its immediate compliance which should be reported to this Court within two months from today.