AI Structured Summary
Not yet generated for this judgment
Judgment
Ravindra Maithani, J
Since, all these appeals arise from one and the same first information report, they are heard together and being decided by this common judgment and order. However, in this judgment, wherever reference to prosecution witness (PW) is made, it shall refer to the witness or the witnesses examined in Sessions Trial No. 97 of 2010, State v. Hafij Mustkeem and others, in the court of 1st Additional Sessions Judge, Roorkee, District Haridwar, unless otherwise expressly specified.
The case is based on FIR No. 348 of 2009, under Section 302 IPC, Police Station Kotwali, Roorkee, District Haridwar, lodged by PW 1 Irfan Ahmad, who was Village Pradhan on 08.08.2009 of village Piran Kaliyar, Police Station Kotwali Roorkee, District Haridwar. On that date, in the graveyard of Piran Kaliyar, dead bodies of a woman and a child, aged about 10 years, were found. After lodging of the FIR, the police reached at the spot, prepared inquests, investigation proceeded and charge sheets submitted.
The prosecution came up with the story that the appellant Imam Raza Naqvi was a tenant of the deceased Noor Jehan. He along with other co-appellants killed the deceased Noor Jehan and her son Abdul Rahmat, so as to grab her property. Initially, Charge Sheet No. 10 of 2010 was submitted against all the four appellants. The appellants Imam Raza Naqvi, Mohd. Rafi. @ Rafia @ Guddu and Ajam @ Ajeem @ Ikrar were shown as absconders in the charge sheet. Based on this charge sheet, cognizance was taken on 16.01.2010 and the case was committed for sessions trial against the appellant Hafij Mustakeem and proceedings of Sessions Trial No. 97 of 2010 were registered on 12.03.2010 in the sessions court.
Subsequently, Charge Sheet No. 10A was submitted against the appellant Imam Raza Naqvi. The court took cognizance on 22.05.2010 and the matter was committed to the court of sessions for trial on 31.05.2010 and the proceedings of Sessions Trial No. 225 of 2010 were registered on 07.06.2010 against the appellant Imam Raza Naqvi.
Supplementary Charge Sheet No. 10 B of 2013 was submitted against the appellant Ajam @ Ajeem @ Ikrar, on which the Magistrate took cognizance on 01.05.2013 and it was committed for trial by the court of sessions on 14.05.2013 and on 15.05.2013 the proceedings of Sessions Trial No. 165 of 2013 were initiated against the appellant Ajam @ Ajeem @ Ikrar.
Similarly, supplementary Charge Sheet No. 101 of 2014 was submitted against the appellant Rafi @ Rafia @ Guddu on 31.07.2014, on which the Magistrate took cognizance and committed the case for sessions trial on 11.08.2014 and on 14.08.2014, the proceedings of Sessions Trial No. 246 of 2014 were initiated against the appellant Rafi @ Rafia @ Guddu.
The charges were framed against the appellants on the following dates:-
(i)
Hafij @ Mustkeem -
22.03.2010 in ST No. 97 of 2010
(ii)
Imam Raja Naqvi -
17.08.2010 in ST No. 225 of 2010
(iii)
Ajam @ Ajeem @ Ikrar -
02.07.2013 in ST No. 165 of 2013
(iv)
Rafi @ Rafia @ Guddu
22.11.2014 in ST No. 246 of 2014
The above four sessions trials proceeded separately.
In Sessions Trial No. 97 of 2010, PW 1 Irfan Ahmad was examined on 14.05.2010 & 01.06.2010. PW 2 was examined on 07.06.2010. Thereafter, on 12.10.2010, an order was passed in Sessions Trial No. 97 of 2010, by which Sessions Trial No. 97 of 2010 and Sessions Trial No. 225 of 2010 were consolidated and the court in its order recorded that Sessions Trial No. 97 of 2010 shall be the leading file. Thereafter, the statement of PW 2 Riyasat Ali was recorded on that date and subsequently, he was cross-examined on 25.10.2010. On 07.12.2010, PW 1 Irfan Ahmad was again cross-examined for both Hafij Mustkeem and Imam Raza Naqvi.
The following table would reveal as to how the statements of the witnesses were recorded in the four sessions trials:-
S. No.
Sessions Trial No. 97 of 2010 (Hafiz Mustakeem and Sessions Trial No. 225 of 2010 Imam Raza)
Session Trial No. 165 of 2013 (Criminal Appeal No. 342 of 2017)
Session Trial No. 246 of 2014 (Criminal Appeal No. 342 of 2017
Name of the Witness/ Date of Examination
Name of Witness/ Date of Examination
Name of witness/ Date of Examination
1
Irfan Ahmad
PW 1
Statement recorded on 14.05.2010
Cross-examination for Hafiz on 01.06.2010
Cross-examination for Imam and Hafiz on 07.12.2010
PW 1
30.08.2013
PW 5
10.02.2015
2
Riyasat Ali
PW 2
Statement recorded on 7.6.2010 for Hafiz
Statement recorded on 12.10.2010 for Imam
Cross-examination for Imam Raza and Hafiz on 25.10.2010
PW8
11.04.2014
PW 18
03.01.2017
By order dated 12.10.2010 ST No. 97 of 2010 and ST No. 225 of 2010 consolidated and chief ad cross recorded in presence of both the accused
3.
Shameem Ahmed
PW 3
07.12.2010
PW 18
22.08.2016
PW 17
22.08.2016
4
Pankaj Devrani
PW 4
04.01.2011;
&
08.02.2011
PW 14
29.06.2015
PW12
29.06.2015
5
Dr. Ajay Mohan Agarwal
PW 5
27.08.2011
PW6
24.10.2013
PW 16
02.04.2016
6
SI J.S. Negi
PW 6
17.09.2011
PW 13
16.06.2015
PW11
16.06.2015
7
SI Devendra
Singh
Chauhan
PW 7
22.02.2012
&
16.05.2012
8
Mahesh
Chandra
PW 8
16.05.2012
PW 4
28.09.2013
PW6
28.02.2015
9
Darar Ahmed
PW 9
05.07.2012
10
Const.
Narendra
Singh
PW 10
19.09.2012
PW9
09.01.2015
PW1
09.01.2015
11
Shah Suhail
PW 11
02.11.2012
12
Ritesh Shah
PW 12
02.11.2012
PW 16
17.11.2015
PW 14
17.11.2015
13
Dinesh Singh Bhandari
PW 13
05.01.2013
PW 12
26.05.2015
PW9
26.05.2015
14
Sher
Muhammad
PW 14
02.07.2013
15
SSI K.P.
Tamta
PW 15
18.07.2013
PW 15
14.10.2015
PW 13
14.10.2015
16
Shakina
Khatoon
PW 16
16.09.2023
PW 2
16.09.2013
PW 7
30.03.2015
17
Irfan
PW 16
28.09.2013
PW 3
28.09.2013
PW 2
22.01.2015
18
Saeed
Kureshi
PW 17
11.10.2013
PW5
11.10.2013
PW 3
22.01.2015
19
Braj Pal
Singh
PW 18
28.11.2013
PW 7
28.11.2013
PW 10
16.06.2015
20
Const.
Yogendra
Singh
PW 19
29.01.2015
PW10
29.01.2015
PW 4
29.01.2015
21
HC Raj
Kumar
PW 20
06.05.2015
PW 11
06.05.2015
PW 8
06.05.2015
22
Bijendra
Singh
PW 21
09.09.2015
PW17 Kuldeep Singh
02.04.2016
PW 15 Lokendra Bahuguna
19.03.2016
After 12.10.2010, Sessions Trial No. 97 of 2010 and sessions Trial No. 225 of 2010 proceeded jointly and evidence was recorded accordingly. But, in Sessions Trial No. 165 of 2013 and 246 of 2014, evidence was separately recorded.
The appellants Hafij Mustkeem and Imam Raza Naqvi were examined under Section 313 of the Code of Criminal Procedure, 1973 (the Code) on 13.10.2016 in Sessions Trial No. 97 of 2010. The appellant Rafi was examined under Section 313 of the Code on 09.03.2017 in Sessions Trial No. 246 of 2014 and on the same date, the appellant Ajam @ Ajeem was examined under Section 313 of the Code in Sessions Trial No. 165 of 2013.
Arguments were heard in the sessions trials and they were reserved for judgment on 14.09.2017. On that date, an application was moved by the Prosecution Officer that all the four sessions trials may be consolidated as they belong to one and the same offence. The court on 14.09.2017 passed an order in Sessions Trial No. 97 of 2010, while allowing the application filed by the prosecution and consolidated all the four sessions trial and passed a common judgment and order.
When this matter was taken up, the Court wanted to know from the learned counsel for the parties as to how the evidence recorded in one case may be read against an accused in another case and, particularly, how the evidence of a witness could be read against an accused, where no opportunity to cross-examine such witness was given?
Learned counsel for the appellants submitted that, in fact, in Sessions Trial No. 246 of 2014 and Sessions Trial No. 165 of 2013, evidence were recorded independently and in Sessions Trial No. 97 of 2010, initially evidence was recorded independently, but after 12.10.2010, when these i.e. Sessions Trial No. 97 of 2010 and Sessions Trial No. 225 of 2010 were consolidated, for both sessions trials, evidence was jointly recorded. The Court may make it clear at this stage that there are no words like consolidation of criminal trials. The only words, which are used and accepted are joint trial of the accused. How could at the stage of writing the judgment, the criminal trial be consolidated? And, if it is done, for each accused, evidence has to be scrutinized only of those witnesses, whom the accused had got an opportunity to cross-examine.
Learned counsel for the appellants submits that the impugned judgment is bad in the eyes of law because all the appellants have been convicted by reading evidence recorded in Sessions Trial No. 97 of 2010 and Sessions Trial No. 225 of 2010. It is argued that, in fact, the appellant Ajam @ Ajeem @ Ikrar and Rafi @ Rafia @ Guddu in Sessions Trial No. 165 of 2013 and Sessions Trial No. 246 of 2014, respectively had no occasion to cross-examine the witnesses recorded in Sessions Trial No. 97 of 2010 and Sessions Trial No. 225 of 2010.
Learned counsel for the appellants submit that the only course open now is to set aside the impugned judgment and order and remand the matter for decision afresh by the court below. She would submit that, in fact, in view of the settled law, the appeals preferred by the appellants Hafij Mustkeem and Imam Raza Naqvi may not be separately decided because it would create certain complications. Learned counsel refers to the judgment passed by the Honble Supreme Court in the case A.T. Mydeen and another v. Assistant Commissioner, Customs Department, (2022) 14 SCC 392.
In the case of A.T. Mydeen (supra), against acquittal recorded in two trials, two separate appeals were preferred before the High Court, but the High Court proceeded to pass one common judgment and considered the evidence of one case and that too without disclosing of which case so as to record conviction of all the appellants in those appeals. The arguments that were made by the appellants in that case before the Honble Supreme Court are recorded in para 12, the reply of which is para 14 and the rejoinder is para 15. These paragraphs are as follows:-
12. The submission is that the High Court proceeded to pass one common judgment in both the appeals arising out of the two separate trials and two separate judgments but considered the evidence of only one case and that too without disclosing of which case so as to record conviction of all the six accused in both the appeals. The High Court, thus, committed a serious error of law in recording conviction at least in one of the cases without considering the evidence recorded in the trial of that case. According to Mr Nagamuthu, this would be not only contrary to settled principles of criminal jurisprudence, as also criminal justice-delivery system but also contrary to the statutory provisions contained in the Code of Criminal Procedure (CrPC for short), the Evidence Act and settled law on the point. He has drawn our attention to various provisions of CrPC.
14. On the other hand, Mr Vikramjit Banerjee, learned Additional Solicitor General for the Customs Department although could not dispute the submission that evidence of only one case has been considered while deciding both the appeals, however, submitted that as the evidence in both the cases were identical, no serious error could be alleged by the appellants. He further submitted that no prejudice has been caused to the appellants inasmuch as the evidence was same in both the trials. The appellants, having failed to show any prejudice on account of the above procedure adopted by the High Court, cannot claim any benefit on technicalities. Mr Banerjee relied upon the following judgments in support of his submission:
(i) Doat Ali v. Mohd. Sayadali [Doat Ali v. Mohd. Sayadali, 1927 SCC OnLine Cal 148 : AIR 1928 Cal 230] and
(ii) Pedda Venkatapathi v. State [Pedda Venkatapathi v. State, 1955 SCC OnLine AP 215 : AIR 1956 AP 96]
15. In rejoinder, the learned counsel for the appellants submitted that it is true that the witnesses examined in both the cases were same and the documents filed were also the same but nevertheless the witnesses have not been examined in the same sequence and nor the documents have been proved and exhibited in the same order. In any case, the High Court ought to have discussed the evidence of both the cases separately. Maybe by a common judgment, it could have been decided but not without independently dealing the evidence in both the trials.
In fact, the question for consideration that has arisen in the case has been indicated by the Honble Supreme Court in the case of A.T. Mydeen (supra) is given in para 17, which is as follows:-
17. The issue which thus falls for our consideration at this stage is whether the evidence recorded in a separate trial of co-accused can be read and considered by the appellate court in a criminal appeal arising out of another separate trial conducted against another accused, though for the commission of the same offence.
In para 26 of the judgment in the case of A.T. Mydeen (supra), the Honble Supreme Court has referred to the position of the cross-cases and held that such trial should be conducted simultaneously and, in case of the appeals, they should be heard simultaneously. About the effect of such trials and their validity has been discussed by the Honble Supreme Court in paras 38 to 43. Paras 38 to 43 of the judgment read as under:-
38. Further, it would be worthwhile to mention here that the prosecution in both the trials produced seven witnesses and filed 13 documents which were proved and exhibited. The witnesses in the second case were not examined in the same sequence as the first case and consequently, the 13 documents filed were also not given the same exhibit numbers in the second case as in the first case. The following chart will show the specific sequence numbers of the witnesses in both the trials as well as the exhibit numbers of the documents filed and proved in both the trials.
The chart reads as follows:
LIST OF WITNESSES
CC No. 2/2003
(Dhanapal and
others)
Name of witness
CC No. 4/2004
(Alexander)
PW 1
Selvaraj
PW 1
PW 2
Kalaimani
PW 4
PW 3
Shree Ram
PW 5
PW 4
Sankaralingam
PW 2
PW 5
Sundararajan
PW 3
PW 6
Mylerum Perumal
PW 6
PW 7
Balraj
PW 7
LIST OF DOCUMENTS
CC No.
2/2003
(Dhanap
al and
others)
Documents marked
CC No. 4/2004
(Alexander)
Ext. P-1
Sanction order
Ext. P-5
Ext. P-2
Mahazar (SeizureGodown
Ext. P-2
Ext. P-3
Statement of Rahman Sait
Ext. P-7
Ext. P-4
Statement of Janarthanan
Ext. P-8
Ext. P-5
Statement of Ramesh
Ext. P-9
Ext. P-6
Statement of Mydeen
Ext. P-11
Ext. P-7
Mahazar (SearchGodown)
Ext. P-12
Ext. P-8
Statement of Hari Gangaram
Ext. P-1
Ext. P-9
Identity card of Rajan
Ext. P-2
Ext. P-10
Mahazar (SeizureRoom)
Ext. P-3
Ext. P-11
Statement of Mahadevan
Ext. P-4
Ext. P-12
Adjudication order
Ext. P-13
Ext. P-13
Shipping bill
Ext. P-10
Judicial Exhibits
Marked
Judicial Report
Not marked
Now, merely because the seven witnesses produced by the prosecution were the same in both the cases would not mean that the evidence was identical and similar because in the oral testimony, not only the examination-in-chief but also the cross-examination is equally important and relevant, if not more. Even if the examination-in-chief of all the seven witnesses in both the cases, although examined in different sequence, was the same, there could have been an element of some benefit accruing to the accused in each case depending upon the cross-examination which could have been conducted maybe by the same counsel or a different counsel. The role of each accused cannot be said to be the same. The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused. All these aspects were to be examined and scrutinised by the appellate court while dealing with both the appeals separately and the evidence recorded in the respective trials giving rise to the appeals.
We cannot proceed on presumption and assume that everything was identical word to word. We are therefore, not inclined to accept the submission of Mr Banerjee and in fact both the judgments [Doat Ali v. Mohd. Sayadali, 1927 SCC OnLine Cal 148 : AIR 1928 Cal 230] , [Pedda Venkatapathi v. State, 1955 SCC OnLine AP 215 : AIR 1956 AP 96] relied upon by Mr Banerjee having similar facts as the present case lay down the same proposition of law that evidence of one trial can be read only for the purposes of the accused tried in that trial and cannot be used for any accused tried in a separate trial. The view taken by the Calcutta High Court [Doat Ali v. Mohd. Sayadali, 1927 SCC OnLine Cal 148 : AIR 1928 Cal 230] in 1928, expressed by Rankin, C.J., has been appropriately followed and accepted and is the correct view.
The provisions of law and the essence of case laws, as discussed above, give a clear impression that in the matter of a criminal trial against any accused, the distinctiveness of evidence is paramount in light of accused's right to fair trial, which encompasses two important facets along with others i.e. firstly, the recording of evidence in the presence of accused or his pleader and secondly, the right of accused to cross-examine the witnesses. These facts are, of course, subject to exceptions provided under law. In other words, the culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader's presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law, as noted above.
The essence of the above synthesis is that evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence.
Under those facts and circumstances, the question that has been posed in the case of A.T. Mydeen (supra) has been answered in para 45 of the judgment as follows:-
45. In the present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence. As such, the High Court fell into an error while passing a common judgment, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials. The High Court ought to have distinctly considered and dealt with the evidence of both the trials and then to decide the culpability of the accused persons.
In para 46 of the judgment in the case of A.T. Mydeen (supra), the Honble Supreme Court also considered the option of remanding only one case for fresh decision that is the case in which the evidence was not considered and decide the another case. But, the Honble Supreme Court observed that if this method is adopted then no fruitful purpose would be served and in fact, it would be an exercise resulting in complications and contradictions and even conflicts. If we proceed to hear one appeal wherein the evidence has been considered by the High Court and we agree with the same, then it would influence the High Court in deciding the other matter on remand.
In the instant case, as stated hereinbefore, the evidence has been separately recorded in Sessions Trial No. 246 of 2014, Session Trial No. 165 of 2013 and Sessions Trial No. 97 of 2010. After 12.10.2010, evidence was jointly recorded in Sessions Trial No. 97 of 2010 and Sessions Trial No. 225 of 2010, which means that those witnesses, who were examined in Sessions Trial No. 97 of 2010 and Sessions Trial No. 225 of 2010 were never offered for cross-examination to the appellants Rafi and Ajam, the accused in Sessions Trial No. 246 of 2014 and Sessions Trial No. 165 of 2013, respectively. Can such a procedure be adopted?
The impugned judgment from para 88 discusses the evidence. In para 88, the evidence of PW 8 Mahesh Chandra and PW 2 Riyasat Ali has been considered. At the cost of repetition, this Court records that these witnesses were recorded as such in ST No. 97 of 2010 and 225 of 2010. They were not offered for cross-examination by the appellants Rafi and Ajam.
In para 89 of the impugned judgment, evidence of PW 16 Shakeena Khatoon recorded in Sessions Trial No. 97 of 2010 has been considered and not only this the answer given by PW 16 Shakeena Khatoon in her cross-examination has also been considered at internal page 50, first paragraph of the impugned judgment.
In para 90 of the impugned judgment, the evidence of PW 5 Dr. Ajay Mohan Agarwal and PW 1 Irfan Ahmad recorded in Sessions Trial No. 97 of 2010 has been considered.
In para 91 of the impugned judgment, again the evidence of PW 8 Mahesh Chandra recorded in Sessions Trial No. 97 of 2010 has been considered. In para 93 of the impugned judgment, the evidence of PW 16 Shakeena Khatoon and PW 22 Vijendra Singh recorded in Sessions Trial No. 97 of 2010 and their cross-examination have been referred.
In para 94 of the impugned judgment, the evidence of PW 4 Pankaj Devrani recorded in Sessions Trial No. 97 of 2010 has been referred to and discussed and in para 95 of the impugned judgment, the cross-examination of PW 4 Pankaj Devrani has been referred.
The above narration makes it abundantly clear that the statement of the prosecution witnesses, namely, PW 1 Irfan Ahmad, PW 2 Riyasat Ali, PW 4 Pankaj Devrani, PW 5 Dr. Ajay Mohan Agarwal, PW 8 Mahesh Chandra and PW 16 Shakeena Khatoon as recorded in Sessions Trial No. 97 of 2010 and Sessions Trial No. 225 of 2010 has been discussed and scrutinized while convicting all the appellants, including appellants Rafi and Ajam. The appellants Rafi and Ajam were not given opportunity to cross-examine PW 1 Irfan Ahmad, PW 2 Riyasat Ali, PW 4 Pankaj Devrani, PW 5 Dr. Ajay Mohan Agarwal, PW 8 Mahesh Chandra and PW 16 Shakeena Khatoon as recorded in Sessions Trial No. 97 of 2010 and Sessions Trial No. 225 of 2010. Therefore, the evidence of these witnesses could not have been read against the appellants Rafi and Ajam. On that count, conviction of the appellants Rafi and Ajam is bad in the eyes of law.
The question which falls for consideration is as to whether the appeal may be decided qua the appellants Hafij Mustkeem and Imam Raza Naqvi, who were accused in Sessions Trial No. 97 of 2010 and Sessions Trial No. 225 of 2010? This has been answered by the Honble Supreme Court in the case of A.T. Mydeen (supra), wherein it was held that if this process is adopted, it would be an exercise resulting in complications and contradictions and even conflicts and if the separate appeals of Hafij Mustkeem and Imam Raza Naqvi are decided by this Court, it would also influence the court in deciding the other matters on remand.
In view of the foregoing discussions, the appeals deserve to be allowed.
The appeals are allowed.
The impugned judgment and order dated 28.09.2017/03.10.2017 is set aside. All the four matters are remanded back to the concerned sessions court for deciding afresh.
The trial court is directed to consider and deal with the evidence of each sessions trial independently according to the observations made in this judgment, and then decide the culpability of the appellants.
Let a copy of this judgment along with lower court record be sent to the court concerned.