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Judgment
S. No.,Section,Sentence,Fine
1.,Section 148 IPC,"Two years Rigorous
Imprisonment",-
2.,"Section 302 read
with 149 IPC",Life imprisonment,"Rs.5,000/- (each)
All the sentences were directed to run concurrently.,,,
Sixthly, the testimony of the eye-witnesses is further belied by the testimony of Dr. Pradeep Kumar (wrongly shown as P.W.8), who not only carried",,,
out the post-mortem of the deceased, but also proved the Post-Mortem Report (Ex. Ka. 4). According to Dr. Pradeep Kumar, (wrongly shown as",,,
P.W. 8), the deceased had suffered two firearm injuries; firstly, above the right nipple; secondly, on the right thigh above the knee. The second fire",,,
armed injury had damaged the intestine and the abdomen. The direction of the injury was upwards. The bullet had pierced the intestine and had injured,,,
the right kidney. The direction of the injury clearly belies the case of the prosecution. For, in case the deceased was riding a scooter, the direction of",,,
the second injury could not be upwards. Therefore, the medical evidence falsifies the testimony of the eye-witnesses. Hence, the eye-witnesses are",,,
highly unreliable and untrustworthy witnesses.,,,
Seventhly, the prosecution has failed to establish the place where the FIR was drafted. According to Mohd. Afzal (P.W.2), the complainant, the FIR",,,
was drafted by him at his home and carried by him to the police station. However, according to Mohd. Abbas (P.W.1) the FIR was chalked out at the",,,
place of incident when Mohd. Afzal (P.W.2), Mohd. Abbas (P.W.1), and Irshad Ahmad (P.W.8) were present at the scene of the crime. Therefore,",,,
the FIR is itself shrouded in mystery.,,,
Lastly, despite the fact that the prosecution claims that two shots were fired by two different fire arms, no firm arm was ever recovered from the",,,
appellants during the course of investigation. Therefore, the prosecution has miserably failed to prove its case against the appellants beyond reasonable",,,
doubt. Hence, they deserve to be acquitted by this Court.",,,
On the other hand, Mr. Amit Bhatt, the learned Deputy Advocate General appearing for the State, and Mr. Ambrish Kumar, the learned counsel",,,
for the complainant, have jointly raised the following counter-arguments:-",,,
Firstly, since the FIR was lodged promptly, and since the FIR was lodged against unknown persons, there is no possibility of falsely implicated the",,,
appellants. In the FIR, Mohd. Afzal (P.W.2), the complainant, had clearly stated that the deceased Mohd. Akram was shot dead by unknown persons.",,,
Subsequently, both the eye-witnesses, Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8) had come to his house, and informed him that Mohd. Akram",,,
was killed by unknown assailants. However, since they had seen the assailants in the light of their scooter, they were in a position to identify the",,,
assailants, if the assailants were produced before them.",,,
Secondly, the scene of crime has clearly been stated by Mohd. Abbas (P.W.1), Irshad Ahmad (P.W.8), and Margoob (C.W.2). In their testimonies,",,,
the three witnesses have clearly stated that the assailants came from the westerly direction from the sugarcane farm belonging to Vedpal. Having,,,
killed Mohd. Akram, the assailants ran away by entering the rice farm on the eastern side. Therefore, even the scene of crime has clearly been",,,
identified by these three eye-witnesses.,,,
Thirdly, although the TIP was held after two and a half months of the arrest of the appellants, the prosecution has clearly given the reasons for the",,,
delay in holding the TIP. According to the prosecution witness, initially, the case was investigated by the police. However, on 14.01.1997, the",,,
investigation was transferred to CBCID. Immediately, thereafter, the TIP was held on 22.02.1997. Moreover, the entire TIP was carefully carried out",,,
by following the procedure established by law. The TIP memo has been proven by Mohd. Abbas (P.W.1), Irshad Ahmad (P.W.8), and by",,,
Ghanshyam Singh (wrongly shown as P.W.9 & 10). Ghanshyam Singh (wrongly shown as P.W.9 & 10) has identified the signature of Mr. Darban,,,
Singh Verma, the Executive Magistrate, who had carried out the TIP.",,,
Fourthly, the extra-judicial confession made by Nafees and Saleem to Tahir Hassan (P.W.3) is certainly a reliable piece of evidence. For, according to",,,
Tahir Hassan (P.W.3), both Nafees and Saleem were well-aware of the fact that Tahir Hassan (P.W.3) has resolved many of the problems of the",,,
people with the police. Moreover, Tahir Hassan (P.W.3) was well-known to Saleem, as Saleem’s brother used to run a crusher in Tahir",,,
Hassan’s village; Saleem would often come to the village. Since both the appellants had bonafide believe that Tahir Hassan (P.W.3) could use his,,,
connection with the police, and since Tahir Hassan was a relative of the deceased, he could bring about the compromise between the families. It is",,,
with this belief that both Nafees and Saleem made the confession to Tahir Hassan (P.W.3). Moreover, the extra-judicial confession made to Tahir",,,
Hassan (P.W.3) was also corroborated by the testimony of Alladiya (C.W.1). Furthermore, both Nafees and Saleem have been identified by the twin",,,
eye-witnesses, Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8). Therefore, the extra-judicial confession is corroborated by the testimony of these",,,
witnesses.,,,
Lastly, even if no firearm has been recovered from the appellants, it is not fatal to the prosecution. For, the prosecution case against the appellant is",,,
not that it is they who fired the shot. Instead, the case of the prosecution is that the appellants were present in an unlawful assembly which had caused",,,
the death of the deceased. Therefore, the learned Trial Court is well justified in convicting the appellants for offence under Section 302 read with 149",,,
IPC. Hence, the learned counsel have supported the impugned judgment.",,,
Heard the learned counsel for the parties, perused the impugned judgment, and examined the record of the case.",,,
It is, indeed, tried to state that a case based on direct evidence has to be proven beyond the shadow of doubt. In case, the prosecution were to",,,
present evidence like pieces of jigsaw puzzle, and if the pieces do not fit neatly together, the benefit of doubt perforce has to be given to the accused.",,,
Therefore, it is the duty of the prosecution, in a case based on direct evidence, to establish each piece of evidence by cogent and convincing evidence,",,,
oral or documentary. However, if there are infirmities in the case of the prosecution, and the prosecution’s case is devoid of the ring of truth, the",,,
prosecution case should not be accepted by the Court. These principles would have to be kept in mind while assessing the evidence produced by the,,,
prosecution.,,,
According to the testimony of Mohd. Afzal (P.W.2), “on 15.08.1996, Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8) had come to his",,,
house. They informed him that around quarter to eight, after leaving Salempur, near the farm of Vedpal, few unknown persons have killed",,,
Mohd. Akram by shooting him. They further claimed that they had seen the assailants running away in the light of their scooter. They,,,
further claimed that they could recognize them if they were produced before them. According to them, the occurrence had occurred at",,,
around 8:00 PM. It is on the basis of their information that I had written a report (the complaint) (Ex. Ka.1)â€.,,,
In his cross-examination, he claimed that “he had written the complaint at his house in his own handwriting. He further claims that he",,,
along with Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8) had visited the scene of the crime. They found that dead body of Mohd. Akram,,,
was lying near the farm of Vedpal. The dead body was lying on the patriâ€. His statement that he was informed by Mohd. Abbas (P.W.1) and,,,
Irshad Ahmad (P.W.8), is also corroborated by the testimony of these two witnesses, namely, Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8).",,,
Mohd. Abbas (P.W.1) informs the Court that “the incident occurred on 15.08.1996 around 8:00 PM. I along with Irshad (P.W.8) are,,,
going to our village from Roorkee. Ahead of us, Mohd. Akram and Margoob were going on a scooter. The scooter was driven by Mohd.",,,
Akram, the deceased. When we went beyond Salempur village and reached near the field belonging to Vedpal, five to six unknown persons",,,
came from the westerly direction from the sugarcane farm. They flashed the torch light on Akram’s face and shot him. The moment he,,,
was shot, he fell. The scooter also fell down. They picked Akram and dragged him to the side of the road. There, they again shot him.",,,
Having killed, they ran away through the rice field. Those who had shot Akram, I had seen in the light of my scooter. Therefore, I can",,,
identify them. We went to the village and informed Afzal about the incident. Then, we and Afzal came back and reported the matter to the",,,
police. Akram died on the spot. The dead body of Akram was sealed on the next day. The panchayatnama was prepared at the scene of the,,,
crimeâ€. He further identified his signatures on the panchayatnama. He further claimed that the TIP was held in the Sub-Jail Roorkee. He claimed,,,
that the three of the accused persons were put up in the TIP at the Sub-Jail Roorkee and Saleem @Raja was put up for TIP at the Muzaffarnagar,,,
Jail. He identified all the four accused persons in the Court. He further claimed that those whom he has identified, he had not seen after the date of",,,
the incident till the date of the TIP. He claimed that he had signed the TIP memo. He identified his signatures thereupon.,,,
In his cross-examination, he denied the fact that he had told the CB-CID thatâ €œhe had heard the noise of shots being fired from 100-150",,,
meters awayâ€. He further claimed that unknown persons had flashed torch light five to seven feet away from the scooter being driven by Akram.,,,
He further claimed that when the torch light was flashed, Akram’s scooter stopped but Akram did not get off from the scooter. According to him,",,,
the torch light was flashed and shots were fired simultaneously. He further claimed that the first shot hit Akram at his right thigh, while he was sitting",,,
on the scooter. After he fell down, he was shot again. According to him, he was shot on the road itself. There was blood all over the road. But",,,
according to this witness, he did not try to help Akram. In fact, finding him to be dead, he left the body. They went to the village to call the villagers.",,,
Moreover, in his cross-examination, he claimed that in order to identify the appellants, he had gone straight to the jail. Irshad Hassan (P.W.8) was",,,
also with him. The TIP was held separately for both, him and Irshad. He further claimed that he was asked to sign the memo at one place, but he did",,,
not remember whether the memo was filled-up or blank, when he signed the memo. He further claimed that his signatures were taken even before he",,,
was asked to identify the accused persons. He further claimed that he cannot tell whether the memo was filled-up just on the one side or both the,,,
sides, and whether his signatures were taken on the one side or both the sides of the memo? He further claimed that he had identified the appellants",,,
on the basis of his having seen them at the scene of the crime. According to him, the TIP was held three months after the incident.",,,
Irshad Hassan (P.W.8), informed the Court that “the incident had occurred on 15.08.1996. According to him, the occurrence had",,,
occurred between 7:45 PM to 8:15 PM. He further claimed that he saw that Akram was riding the scooter in front of them. Five to six,,,
persons came from the western side and shot at Akram. He heard two fire gunshots. According to him, Akram has suffered two firearm",,,
injuries. Both injuries were on the right hand side. One injury was on the right side of his leg, and the second injury was on his shoulder.",,,
Due to the injuries, Akram fell on the road. He further claimed that they informed Mohd. Afzal (P.W.2). He further claimed that on the next",,,
morning, he was present when the inquest report was prepared. According to him, he signed the inquest report. He further claimed that five",,,
to six months after the incident, he had identified three accused persons, namely, Nafees, Islam and Saleem in the TIP. According to him,",,,
Abid is a resident of Rasulpul village. Since Akram was politically involved and adversely affected in the interest of Abid, there was",,,
animosity that developed between Abid and Akram, and it is due to this animosity a conspiracy hatched and the murder was committedâ€.",,,
In his cross-examination, he admitted that “his statement was recorded by the Investigating Officer after five to six months of the",,,
incident. He again reiterated that there was a political rivalry between Abid and Akram. According to him, he never told anyone about such",,,
political rivalry between the two, as he was frightenedâ€. Furthermore, in his cross-examination, he admitted that “he had not seen the",,,
accused persons prior to the incident. Moreover, he had not seen the accused persons prior to the TIP. He had seen them only at the place",,,
of the crime, the place where the offence had occurred. He claimed that he was asked to sign the blank piece of paper. Furthermore, in his",,,
cross-examination, he claims that his scooter was ten to twelve feet behind the scooter of the deceasedâ€.",,,
Margoob (C.W.2) was not produced by the prosecution. He has been examined only as a Court Witness. Since it was claimed that Margoob was,,,
a person of unsound mind, the learned Trial Court had initially posed a series of questions to this witness. Having asked him the series of questions, the",,,
learned Trial Court had concluded that he is in a position to understand the questions, and to answer them in a rational manner. His testimony was",,,
recorded about sixteen to seventeen years after the incident. In his examination-in-chief, he informed the Court that “he was on the scooter with",,,
Akram. Akram was driving the scooter. He further claimed that he is related to Akram. According to him, it was slightly dark and it was",,,
slightly raining. According to him, since they turned on the road, five to six men who were standing flashed torch light on Akram. They fired",,,
from the rifles. According to him, he could not identify any of the assailants. Moreover, according to him, he was fifteen to sixteen years old",,,
when the occurrence had taken place. Even, in his examination-in-chief, he admitted that he is under psychiatric treatment. When his brain",,,
does not work, he does not remember anything. He claimed that his mental problem started after the date of the incident. He declined to",,,
identify the accused persons in the Courtâ€.,,,
In his cross-examination, he admitted that he has been undergoing psychiatric treatment for the last five to six months prior the date of deposition",,,
in the Court. He also claimed that he has been working for the last five to six years. Earlier he used to work as a scooter mechanic. Therefore, he",,,
switched his job. He also admitted that at the time of the incident it was dark. Nothing could be seen. It is for this reason he could not identify the,,,
assailants.,,,
A bare perusal of the testimonies of these three eye-witnesses, namely Mohd. Abbas (P.W.1), Irshand Ahmad (P.W.8) and Margoob (C.W.2),",,,
clearly reveal that, according to them, all of them were riding on two different scooters. While Margoob (C.W.2) was the pillion rider on the scooter",,,
driven by Mohd. Akram, the deceased, Mohd. Abbas (P.W.1) sand Irshad Ahmad (P.W.8), also followed Akram’s scooter. According to",,,
Margoob (C.W.2), at the time of the incident, there was so much of darkness that none of the assailants could be identified by him. Yet, Mohd. Abbas",,,
(P.W.1) and Irshad Ahmad (P.W.8) would have the court believe that although they were driving scooter, in the light of their scooter, they could",,,
identify the appellants. The memory seems to be so sharp as to identify the assailants in a TIP held two and a half months after the date of the arrest,,,
of the appellants? It is rather unbelievable that Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8) could capture the facial features of the appellants,",,,
although, they had seen the appellants at the scene of the crime with the help of the light of scooter. Moreover, according to Mohd. Abbas (P.W.1),",,,
he had seen them running away from the scene of the crime. Thus, the memory of both of these eye-witnesses appears to be highly unusual, if not,",,,
almost miraculous.,,,
The prosecution and the learned Trial Court have heavily relied on the TIP held by the CB-CID. Although, the TIP was held after two and a half",,,
months, the prosecution has given the valid reasons for the inordinate delay in holding the TIP. According to the prosecution, the appellants were",,,
arrested on 05.12.1996, the case was transferred to the CB-CID on 14.01.1997, and only, thereafter, on 22.02.1997, the TIP was held. However,",,,
much as the prosecution would rely on the veracity and validity of the TIP, the TIP is shrouded in mystery. Firstly, both Mohd. Abbas (P.W.1) and",,,
Irshad Ahmad (P.W.8) claimed that they were asked to sign the blank memo. Secondly, Ghanshyam Singh (wrongly shown as P.W.9 & 10) claimed",,,
to have identified the signatures of the Executive Magistrate, Mr. Darban Singh Verma. However, when Mr. Darban Singh Verma was produced as",,,
witness under Section 311 Cr.P.C., he empathetically, denied the holding of the TIP. According to his testimony, a police officer belonging to the CB-",,,
CID had come to his residence in Muzaffarnagar and informed him that he is required to testify in Session Trial No.333/98,â €œState vs. Nafees &",,,
othersâ€. He further claimed that he had studied the entire file of Session Trial No.333/98, but could not understand as to why he has been",,,
summoned as a witness. He further claimed that the Special Public Prosecutor informed his that he must testify with regard to Paper No.10/23, which",,,
was the Test Identification memo. According to this witness, the said Test Identification memo relates to the accused Nafees, Islam and Saleem. But",,,
according to this witness, he clearly stated that “on 22.02.1997, he was neither asked to hold a TIP as the Magistrate, nor was he",,,
authorized to do soâ€. He further claimed that the “Test Identification memo does not bear his signaturesâ€. He further claimed that “the,,,
signatures contained on the second page under the words “Magistrate, Ist Class†are not his signaturesâ€. Once this witness has denied",,,
his signatures, once this witness has denied his holding any TIP on 22.02.1997, obviously, the alleged TIP loses all its evidentiary value.",,,
Interestingly, while discussing the evidence with regard to the veracity and validity of the Test Identification memo and the Test Identification",,,
Parade, the learned Trial Court has totally ignored the testimony of Darban Singh Verma, who, according to the prosecution, had conducted the TIP.",,,
His claim that he did not conduct any such TIP knocks the bottom out of the case of the prosecution. Therefore, the identification claimed by Mohd.",,,
Abbas (P.W.1) and Irshad Ahmad (P.W.8) cannot be accepted.,,,
In the case of Sahadevan (supra), the Hon’ble Supreme Court has extensively dealt with the evidentiary value of an extra-judicial",,,
confession. Relying on the case of Balwinder Singh vs. State of Punjab, [1995 Supp. (4) SCC 259,] the Hon’ble Supreme Court has opined",,,
that “an extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care,,,
and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its",,,
importance.â€,,,
Furthermore, relying on the case of State of Rajasthan vs. Raja Ram, [(2003) 8 SCC 180,] the Hon’ble Supreme Court has opined that",,,
“such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth,,,
of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which",,,
may tend to indicate that he may have a motive of attributing an untruthful statement to the accusedâ€.,,,
The Hon’ble Supreme Court has laid down the following principles with regard to the acceptance of an extra-judicial confession in convicting,,,
the accused:-,,,
“i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.,,,
ii) It should be made voluntarily and should be truthful.,,,
iii) It should inspire confidence.,,,
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is",,,
further corroborated by other prosecution evidence.,,,
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent",,,
improbabilities.,,,
vi) Such statement essentially has to be proved like any other fact and in accordance with lawâ€.,,,
While dealing with an extra-judicial confession, allegedly, made both by Nafees and Saleem to Tahir Hassan (P.W.3), these principles established",,,
by the Hon’ble Supreme Court necessarily have to be kept in mind.,,,
In his cross-examination, Tahir Hassan (P.W.3) admits that he is related to the deceased Mohd. Akram. According to Alladiya (C.W.1),",,,
Akram’s brother is married to Tahir Hassan’s sister. Thus, there is a close relationship between the deceased and Tahir Hassan, as Tahir",,,
Hassan happens to be the brother of Akram’s sister-in-law. Moreover, according to Tahir Hassan (P.W.3), both Nafees and Saleem had come to",,,
meet him at the nursing home where he was hospitalized five to six months after the incident. Tahir Hassan (P.W.3) would have the court believe that,,,
both the appellants came one after another. They initially inquired about his health, and, subsequently, told him that due to greed, and since Abid had",,,
promised to pay them Rs.60,000/-, they had agreed to kill Mohd. Akram. It is due to this enticement, and due to the fact that Rs.30,000/- was already",,,
paid to them, they carried out the murder. Having said so, they quietly left the hospital. Tahir Hassan (P.W.3) further claims that they had come to him",,,
as both of them were known to him. Moreover, they were well-aware of the fact that he had resolved the problems of many persons by using his",,,
influence with the police.,,,
It is, indeed, trite to state that an offender would go and make an extra-judicial confession before a person whom he has confidence. Moreover, an",,,
extra-judicial confession is generally made to a person whom the maker believes a person who would be able to save him/her.,,,
In the present case, surprisingly, an extra-judicial confession is made five to six months after the incident. It is made to a person who is a close",,,
relative of the deceased. Therefore, it is unbelievable that such an extra-judicial confession would have been made to a person who, in fact, belongs to",,,
the family of the deceased.,,,
Considering the close relationship between the deceased and Tahir Hassan (P.W.3), the evidence with regard to the alleged extra-judicial",,,
confession is not coming from mouth of a witness who appears to be unbiased, not even remotely inimical to the accused. In fact, there is a grave",,,
motive for attributing an untruthful statement to the accused by Tahir Hassan (P.W.3). Thus, the alleged extra-judicial confession does not inspire",,,
confidence in the mind of this Court. For, there is no possibility that both the appellants will approach Tahil Hassan (P.W.3), that too, when he is",,,
undergoing an operation in a hospital, and, that too, one after another. Hence, the evidence of the alleged extra-judicial confession seems to be an",,,
attempt by the Investigating Agency to fill up the gaping holes in the investigation. Hence, the alleged extra-judicial confession testified by Tahir",,,
Hassan (P.W.3) is an unreliable piece of evidence.,,,
But, for these two pieces of evidence, namely, the Test Identification of the appellants by Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8), and",,,
the alleged extra-judicial confession, allegedly, made to Tahir Hassan (P.W.3), the prosecution has not been able to bring any other evidence against",,,
the appellant.,,,
Interestingly, despite the fact that the case was investigated by the CB-CID, the Investigating Agency could not recover either the firearm used",,,
for killing Mohd. Akram, nor Rs.30,000/- which was allegedly given by Abid to the appellants.",,,
Most interestingly, the learned Trial Court has acquitted Abid for offence under Section 302 read with 120-B IPC,i nter alia, on the ground that",,,
there is no evidence to establish any conspiracy between the appellants and Abid. Yet, simultaneously, the learned Trial Court would have us believe",,,
that Nafees and Saleem have killed Mohd. Akram at the behest of Abid, and that too, because Abid agreed to pay them an amount of Rs.30,000/-.",,,
For the reasons stated above, the appeal is, hereby allowed. The judgment and order dated 07.02.2013, passed by the learned IInd Additional",,,
District & Sessions Judge, Haridwar is, hereby, set-aside. Appellants are acquitted of the charges framed against them. The appellants, Nafees, S/o",,,
Latif and Saleem, S/o Saddiq, are in jail. They be released forthwith, if not required in any other case.",,,
Let a copy of this judgment along with LCR be sent back to the trial court for forthwith compliance.,,,
No order as to costs.,,,