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2019 DIGILAW 1672 (ALL)

Abdul Saboot @ Bhaiyya v. State of U. P.

2019-07-12

PANKAJ NAQVI, UMESH KUMAR

body2019
JUDGMENT : PANKAJ NAQVI, J. 1. This criminal appeal assails the judgment and order dated 8.10.2003 passed by Addl. District & Sessions Judge (Fast Track Court No.4), Kanpur Nagar, in S.T. No.682 of 2000, convicting and sentencing the appellant under Section 302 IPC to life with fine of Rs.20,000/- and a default sentence of 6 months, and in S.T. No. 683 of 2000, under Section 25/27 Arms Act to 3 years R.I. Both the sentences were to run concurrently. 1. The prosecution case in a nutshell is that PW-1 / the informant along with his father (victim) and brother Rehan (PW-2) left on 6.12.1999 at about 10:30 A.M, for Civil Courts, Kanpur Nagar. When they reached near Bhalla Medical store, a passerby called out for "Tausif" (victim), who stopped for a while, followed by firearm shot by that passerby at the victim, who was nabbed by a patrolling S.I, Anshu Mali (PW-3) and Constable Ram Swarup Yadav. The assailant disclosed his name as Abdul Saboot @ Bhaiya resident of Chamanganj. Two counrymade pistols, several cartridges and a bomb was recovered from the nabbed accused. PW-1 alleged that his grandfather, i.e, Sultan and his paternal brother Nafees were murdered 6-7 years ago by Shakil @ Munna, Viqar, Nyamul Raza, Shamim @ Chhote, Munna, Hamid, Atiq and Rasheed, in which two accused namely Shakil @ Munna and Viqar were sentenced to life imprisonment 3 months prior to the occurrence and the rest accused were absconding. PW-1 alleged that above named persons had hired the appellant / assasin to kill his father as he used to do pairavi in the murder case of the grandfather in the High Court. 2. On above allegations, a written report (Exbt. Ka-1) was scribed, which became a basis for registering an FIR as Case Crime no. 691 of 1999 under Sections 302/120-B IPC on 6.12.1999 at 11 A.M at the P.S, concerned. 3. 2. On above allegations, a written report (Exbt. Ka-1) was scribed, which became a basis for registering an FIR as Case Crime no. 691 of 1999 under Sections 302/120-B IPC on 6.12.1999 at 11 A.M at the P.S, concerned. 3. Pw-3, the incharge at the P.S, was on patrolling duty on 6.12.1999, came across Constable Ram Swarup around 10:10 A.M. When they reached near Agrawal medical store, they heard the sound of firearm and shrieks, they got alerted to find that a person lay dead at the triangular crossing near Bhalla Medical Store while the other flaunting a weapon (countrymade pistol) was on the run, eventually nabbed around 10:30 A.M. The arrested person disclosed his name as Abdul Saboot @ Bhaiya, resident of P.S. Chamanganj, Kanpur Nagar. He confessed to have murdered the deceased on the instructions of one Nyamul Raza. PW-3 stated that PW's 1 and 2 also identified the accused-appellant. He recovered a countrymade pistol (315 bore) in running condition, with a 10 finger barrel and a butt measuring about 7 fingers. He upon opening the firearm found that a cartridge had been fired and an empty stuck in the barrel. He also noticed smell of gunpowder. He recovered another countrymade pistol (12 bore) almost of the same dimension along with three live cartridges of 315 bore, two live cartridges (12 bore), along with a boot polish box with the marking "Kiwi" shoe polish, which according to the accused was a bomb which was defused by pouring water. All the recoveries were duly sealed, a memo (Exbt. Ka-3) prepared under his signatures. The arrest and recoveries were authenticated by PW's. 4. Pw-9, the I.O, commenced investigation in the aforesaid case on 6.12.1999. He on the same date, executed parcha no.1 containing a copy of check FIR, copy of a report, statement of the informant and that of witnesses. He also inspected the scene and prepared a site plan (Exbt. Ka13). He carried out all investigational formalities including the inquest conducted by PW-3. 5. On the basis of the recovery of incriminating weapons, an FIR (Exbt. Ka-9) under Section 25/27 Arms Act as Case Crime no. 192 of 1999 and under Section 4/5 Explosive Act as Case Crime no. 693 of 1999 was registered at the P.S., concerned against the appellant. 6. After investigation 3 charge sheets (Exbt. Ka-15, 16 and 10A) were submitted by PW's-9 and 8 respectively. Ka-9) under Section 25/27 Arms Act as Case Crime no. 192 of 1999 and under Section 4/5 Explosive Act as Case Crime no. 693 of 1999 was registered at the P.S., concerned against the appellant. 6. After investigation 3 charge sheets (Exbt. Ka-15, 16 and 10A) were submitted by PW's-9 and 8 respectively. 7. The trial court framed the following charges against the appellant and 3 others, i.e, Shakil, Vikar and Ashraf @ Arshad:- "CHARGE I, U.K. Tripathi, IV Addl. District & Sessions Judge, Kanpur Nagar do hereby charge you Abdul Saboot alias Bhaiya as follows:- That on 06.12.99 at about 10:30 A.M, near Bhalla Medical Store Road within P.S. Kotwali, Kanpur Nagar, you along with your companions and associates Shakil, Vikar and Ashraf intentionally and knowingly did committed murder causing the death of Tausif Ahmad by firearms injuries and thereby committed an offence punishable U/s. 302 IPC and within the cognizance of this Court of Sessions. And I hereby direct that you be tried by this Court on the said charge" "CHARGE I, U.K. Tripathi, IV Addl. District & Sessions Judge, Kanpur Nagar do hereby charge you (1) Shakil (2) Vikar (4) Abdul Saboot Alias Bhaiya (4) Ashraf alias Arshad Alam alias Guddu Thekedar, as follows:- Firstly that on 06.12.99 at about 10:30 A.M, near Bhalla Medical Store Road within P.S. Kotwali, Kanpur Nagar, in furtherance of common intention of all you companion and associates Abdul Saboot committed murder intentionally and knowingly causing the death of Tausif Ahmad by causing firearms injuries and you also thereby committed an offence punishable under Section 302 IPC, read with Section 34 IPC, and within the cognizance of this Court of Session. Secondly, on the aforesaid date, time and place, you agreed to do an act viz committed the murder of Tausif Ahmad by fire arms injuries on that same act viz. causing agreement and thereby committed an offence punishable u/s 120-B IPC and within the cognizance of this Court of Session. And I hereby direct that you be tried by this Court on the said charges." "CHARGE I, U.K. Tripathi, IV Addl. causing agreement and thereby committed an offence punishable u/s 120-B IPC and within the cognizance of this Court of Session. And I hereby direct that you be tried by this Court on the said charges." "CHARGE I, U.K. Tripathi, IV Addl. District & Sessions Judge, Kanpur Nagar do hereby charge you Abdul Saboot Alias Bhaiya as follows:- That on 06.12.99 at about 10:30 A.M, near Bhalla Medical Store Road within P.S. Kotwali, Kanpur Nagar, you were found in illegal possession of two countrymade pistol (Tamancha), Five Live Cartridges and one Bomb wherefor you had no licence or authority and you thereby committed an offence punishable U/s. 25 Arms Act and within the cognizance of this Court of Sessions. And I hereby direct that you be tried by this Court on the said charges." 8. The prosecution in order to establish its case examined PW-1 (informant), PW-2 as eye-witnesses, PW's-5 and 6 witnesses to the alleged conspiracy, and rest formal. 9. The defence claimed false implication on the ground that it was the anniversary of the Babri Masjid demolition followed by communal riots and appellant deliberately targeted for his religious identity. 10. The trial court after evaluating the evidence found PW's 1 and 2 wholly reliable as to the occurrence and the identity of assailant, convicted the appellant as above, but found PW-5 doubtful, acquitted accused Shakil @ Munna and Ashraf @ Arshad for conspiracy. 11. No government appeal against acquittal is brought to our notice. We have heard Sri Saghir Ahmad, the learned Amicus assisted by Sri Mohd. Farooq and Sri A.N. Mulla, the learned A.G.A assisted by Sri V.S. Rajbhar, the learned A.G.A. 12. The learned Amicus canvassed the following submissions: - (i) FIR is ante-timed as police had reached the scene prior to the lodging of the FIR. (ii) PW's-1 & 2 are not eye-witnesses. (iii) Arrest and recovery are manipulaed. (iv) Once appellant was charged under Section 302 IPC along with his companions, who have been acquitted under Section 302/34 IPC and 120-B IPC, then in the absence of a solitary charge under Section 302 IPC, conviction of the appellant under Section 302 IPC cannot be sustained. (ii) PW's-1 & 2 are not eye-witnesses. (iii) Arrest and recovery are manipulaed. (iv) Once appellant was charged under Section 302 IPC along with his companions, who have been acquitted under Section 302/34 IPC and 120-B IPC, then in the absence of a solitary charge under Section 302 IPC, conviction of the appellant under Section 302 IPC cannot be sustained. The learned A.G.A opposed the submissions primarily on the ground that PW's 1 and 2 as eye-witnesses are wholly reliable, arrest of the appellant has been effected at the spot by police itself, thus investigation cannot be faulted on the ground that FIR had not come into existence. He further submitted that both the arrest and the recovery have been duly established. He finally submitted that merely because a substantive charge under Section 302 IPC was not framed against the appellant, would not vitiate his conviction under the said offence, notwithstanding the acquittal of co-accused Shakil @ Munna and Ashraf @ Arshad under Sections 302/34/120B IPC as the omission to frame a charge did not occasion any prejudice or failure of justice as the precise charge against the appellant was causing the death of the victim by firearm injuries. 13. The occurrence took place on the anniversary of the demolition of Babri Masjid in Kanpur Nagar at about 10:30 A.M. After assaulting the deceased, accused attempted to flee, but was nabbed by PW-3 / the S.I, who was on patrolling duty. PW-1 scribed a report (Exbt. Ka-1), went to the P.S, to lodge an FIR (Exbt. Ka-17) at a distance of 500 yards, which was registered as Case Crime no. 691 of 1999 under Sections 302/120-B IPC at 11:00 A.M. Presence of PW-3, is neither unnatural or improbable as considering that it was the anniversary of the Babri Masjid demolition, city was in a state of vigil and police patrol. The occurrence took place near the very vicinity of the P.S, concerned. The inquest (Exbt. Ka-2) commenced at 11:30 A.M to conclude at 12:30 P.M. The inquest bears the case particulars, suggesting that when the inquest was being conducted FIR had come into existence. 14. We on above evidence, are of the view that the FIR is prompt and not ante-timed. 15. Pw's 1 and 2 are the sons of the deceased, who claim to be eye-witnesses to the assault at their father as they accompanied him. 14. We on above evidence, are of the view that the FIR is prompt and not ante-timed. 15. Pw's 1 and 2 are the sons of the deceased, who claim to be eye-witnesses to the assault at their father as they accompanied him. PW-1 candidly admits that they had no previous enmity with the appellant. He denied the suggestion that he was not present at the scene. The deceased although a political figure had no political rivalry. The deceased had come to Kanpur to do pairvi of S.T. no. 3 of 1994 under Section 302 IPC, in which Shakil and Viqar, also involved in the present case were accused. Both the sons used to escort their father. While both PW's 1 and 2 on the fateful day at around 10:30 A.M, were accompanying the father on way to the Courts, had reached near Bhalla Medical Store, father (deceased) was ahead of them. No one was present around that time. Meanwhile some one called out his father by his name "Tausif". Father stopped, turned back to find out as to who called him, but was confronted with firearm shot by appellant. PW-3 (S.I) nabbed the appellant. PW-1 promptly lodged the FIR at 11 A.M, followed by his statement to the police at his residence, same day. PW-2 is also a witness to the recovery of incriminating firearm. Both the witnesses are witness to the inquest (Exbt. Ka-2) conducted at the scene itself. PW-2 denied that in-laws of PW-1 had any role in the murder of his father as the love-marriage of PW-1 had unfortunately resulted in a divorce. During the cross-examination of both these witnesses nothing tangible could come out, which could dent their presence at the time of the incident. 16. Once FIR is prompt, not ante-timed, PW's-1 and 2 established the mode and manner of occurrence, PW-2 is witness to the recovery of the firearm, empty cartridges and the bomb (Exbt. Ka-3), spot-arrest and recoveries cannot be questioned on the ground that it was not authenticated by any independent witness as the evidence of PW-3/ the S.I, indicates that the occurrence took place on the anniversary of Babri Masjid demolition and upon shot being fired people ran helter-skelter, opened shops started pulling their shutters down. 17. Ka-3), spot-arrest and recoveries cannot be questioned on the ground that it was not authenticated by any independent witness as the evidence of PW-3/ the S.I, indicates that the occurrence took place on the anniversary of Babri Masjid demolition and upon shot being fired people ran helter-skelter, opened shops started pulling their shutters down. 17. To appreciate the last contention it would be apposite to revert to the charge framed in William Slaney vs. State of M.P., (1956) AIR SC 116 The charge against William (Willie) Slaney was as follows:- ""That you, on or about the 12th day of February 1953, at Civil Lines, Jabalpur, went with your brother Ronnie Slaney to the house of Mrs. Waters (P.W. 20) at about 7 p.m. and in furtherance of the common intention did commit murder by intentionally or knowingly causing the death of her brother D. Smythe and thereby committed an offence punishable under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code..........."." And exactly a similar charge with change of name was framed against co-accused Ronnie Slaney. 18. On evidence Ronnie Slaney was acquitted by the High Court, whereas Willie Slaney was convicted under Section 302 IPC, simpliciter. 19. The Apex Court after evaluating the previous decisions on the issue in Slaney (supra) held in paragraph-70 thereof that if it cannot be ascertained that who struck the fatal blow then accused cannot be convicted unless common intention is proved but the converse, i.e, where the evidence unequivocally indicates the culpability of a single accused the prosecution case would not suffer merely on the ground that a separate distinct charge was not framed against that accused. 20. The purpose of framing a charge is to let the accused know as to in respect of what material allegation is he being tried for so that he can adequately defend himself. As long as material allegations are made out in the charge absence of a specific substantive offence is immaterial, no prejudice is caused to the accused. Section 464 CrPC is founded on this principle. But once material allegations in respect of an offence are wanting, prejudice would be inherent, as in such an eventuality, the accused would not be in a position to defend himself. To put it succinctly, charge must be based on precise material allegations, which the accused is able to defend himself. Section 464 CrPC is founded on this principle. But once material allegations in respect of an offence are wanting, prejudice would be inherent, as in such an eventuality, the accused would not be in a position to defend himself. To put it succinctly, charge must be based on precise material allegations, which the accused is able to defend himself. The charge and the evidence in the present case pointedly indicate that it is the appellant, who carried out the execution of the fatal assault on the deceased. Thus the acquittal of other co-accused for offence of conspiracy and under Section 302/34 IPC would not enure to the benefit of the appellant. An omission to frame a distinct and separate charge qua appellant under Section 302 IPC was only an irregularity, not occasioning any miscarriage or prejudice as appellant knew right from day one that for what offence is he being charged and tried, such irregularity is squarely saved by Section 464 CrPC. 21. We are thus of the view that the prosecution has established its case beyond a reasonable doubt. The appeal is devoid of merit, liable to be dismissed. The appeal is dismissed. Appellant is in jail. Let a copy of this judgment along with record be sent to the learned Sessions Judge, concerned for ensuring compliance under the intimation to this Court. Office of the Registrar General is directed to ensure a payment of Rs.15,000/- to Sri Saghir Ahmad, learned Amicus, for the services rendered from the appropriate head.