Uttarakhand High Court
CRJA/31/2014 on 16 March, 2022
Author: Ramesh Chandra Khulbe
Bench: Ramesh Chandra Khulbe
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE ACTING CHIEF JUSTICE SHRI SANJAYA KUMAR MISHRA
AND
JUSTICE SHRI RAMESH CHANDRA KHULBE
CRIMINAL JAIL APPEAL NO.31 OF 2014
Reserved on: 10.03.2022
Delivered on: 16.03.2022
Between:
Islam ...... Appellant
State of Uttarakhand ...... Respondent
Counsel for the appellant : Mr. M.K. Ray, learned Amicus
Curiae.
Counsel for the respondents : Mr. J. S. Virk, learned Deputy
Advocate General along with
Mr. Rakesh Joshi, learned Brief
Holder for the State.
Upon hearing the learned Counsel, the Court made the
following
JUDGMENT:(per Shri Justice Ramesh Chandra Khulbe) This criminal jail appeal has been preferred against the judgment and order dated 31.07.2014 passed by the Second Additional Sessions Judge, Haridwar in S.T. No.333A of 1998, under Section 302/149, 120-B and 148 IPC, whereby, the Trial Court has convicted and sentenced the appellant as follows: -
S. Conviction Sentence Fine Sentence in No. default of fine
1. 302/149 IPC Life Rs.1,000/- Three months' Imprisonment imprisonment
2. 148 IPC One year's Rs.500/- One month R.I. imprisonment
3. 120-B IPC Life Rs.1,000/- Three months' imprisonment imprisonment All the aforesaid sentences were directed to run concurrently.
2. Briefly the facts of the case are that, on 15.08.1996, Mohd. Afzal (P.W.2) lodged a written report before the Station House Officer, Gangnahar, Roorkee, District Haridwar, wherein he claimed that "a person belonging to his community, Mohd. Akram, was coming back home around 7:45 PM, after having closed his shop at Roorkee. He was coming back to his village Safarpur.
After he crossed Salempur, near the field of Vedpal, few unknown persons shot him dead. Mohd. Abbas (P.W.1) and Irshad (P.W.5) were coming on another scooter. Both these persons saw the assailants with the help of the light of their scooter. They can recognize the assailants if the assailants were shown to them. The incident has occurred at around 8:00 PM. These two persons came and informed him about the incident. Therefore, I have come to inform the police".
3. On the basis of written report (Ex. Ka.1), Chick FIR (Ex.Ka.12) was lodged, being FIR No.161/96 under Section 302 IPC with Police Station Gangnahar. After completion of the investigation, charge sheet (Ex.Ka-11) was submitted.
4. After compliance of section 207 of the Cr.P.C, the concerned court committed the case to the Court of Sessions for trial. Accordingly, the concerned Court took the cognizance. Thereafter, the concerned Court framed the charges against the appellant-Islam on 26.08.2000 for the offence punishable under Sections 148, 302 read with Section 149, and 120-B IPC, but he pleaded not guilty and claimed trial.
5. To prove its case, the prosecution examined PW1 Mohd. Abbas, PW2 Mohd. Afzal, PW3 Tahir Hassan, PW4 Dr. Karn Singh, PW5 Irshad Ahmed, PW6 Jaheer Hassan, PW7 Ghanshyam Singh, PW8 Dr. Pradeep 2 Kumar, PW9 In-charge Inspector - Surendra Singh Bisht and PW10 Head Constable Chintamani.
6. After completion of the prosecution evidence, statement of appellant was recorded under Section 313 of the Cr.P.C., in which he denied all the evidences produced by the prosecution.
7. In defence, no evidence was produced.
8. After hearing learned counsel for both the parties, the trial Court convicted the appellant and sentenced him as mentioned in paragraph no.1 of this judgment.
9. Aggrieved by the judgment and order dated 31.07.2014, this criminal jail appeal has been preferred by the appellant/convict-Islam.
10. It is argued by learned amicus curiae that co- accused Nafees and Salim (who were tried along with the present appellant) preferred CRLA No.37 of 2013 challenging their judgment of conviction and sentence; a Co-ordinate Bench of this Court allowed the said appeal vide judgment and order dated 01.07.2021, whereby, co- accused Nafees and Salim have been acquitted; the prosecution has produced the same evidence against the present appellant as well; no other incriminating evidence was produced against him. Since, the co- accused Nafees and Salim have been acquitted, accordingly, the present appellant also deserves the same benefit.
11. 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.5) 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.
3Akram, 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 crime". 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.
12. According to the testimony of Mohd. Afzal (P.W.2), "on 15.08.1996, Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.5) 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 4 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)".
13. Irshad Hassan (P.W.5), 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 committed".
14. Heard learned counsel for the parties and perused the entire evidence on record.
15. A bare perusal of the testimonies of these two eye-witnesses, namely, Mohd. Abbas (P.W.1) and Irshad 5 Ahmad (P.W.5)., clearly reveal that, according to them, the TIP was conducted in jail, where they identified the appellant but in our view the TIP is not conducted properly. As per the statements of the above witnesses, firstly, they were asked to sign the blank memo. Secondly, Ghanshyam Singh (shown as P.W.7) claimed to have identified the signatures of the Executive Magistrate, Mr. Darban Singh Verma. However, he clearly stated in the cross-examination that no TIP was conducted regarding the present appellant in his presence. Mr. Darban Singh Verma, who was produced in Session Trial No.333/98, "State vs. Nafees & others"
denied the holding of the TIP. He clearly stated that the police officer belonging to the CBCID had come to his residence at Muzaffarnagar and informed him that he is required to testify in Session Trial No.333/98, "State vs. Nafees & others". He further stated that he had studied the entire file of Session Trial No.333/98, but he could not understand as to why he was summoned as a witness.
16. The prosecution produced the document related to the test identification parade (paper nos.28 and 29 of the paper book) but according to the statement of Mr. Darban Singh Verma (who was summoned u/s 311 Cr.P.C. in S.T. No.333 of 1998), he was neither asked on 22.02.1997 to hold a TIP as a Magistrate nor was he authorized to do so. He further stated that the "Test Identification memo does not bear his signatures". It is necessary to mention at this stage that the above Executive Magistrate namely Darban Singh Verma was not produced in the present session trial to prove the documents related to the T.I.P. Since the documents regarding the TIP were not properly proved by the 6 prosecution, accordingly, the documents, related to the TIP, lose its evidentiary value. The trial Court did not assess properly the documents related to the TIP. The Jailor, Ghanshyam Singh clearly stated that no TIP related to the appellant was conducted in his presence. Accordingly, the TIP claimed by Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.5) cannot be accepted.
17. Now we shall examine the fact of extra-judicial confession. As per the statement of PW3 Tahir Hassan, he was admitted at Nursing Home of Dr. Karn Singh, where Alladiya w a s al s o p r e s e n t . A f t e r five to six months of incident, both Nafees and Saleem came to meet him at the nursing home where he was hospitalized. 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 committed the murder.
18. The Hon'ble Supreme Court in Sahadevan v. State of Tamil Nadu, [(2012) 6 SCC 403] 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 7 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 law".
19. In the present matter, no confessional statement was given by the present appellant before PW3 Tahir Hassan. Those so-called confessional statements were given by co-accused, namely, Nafees and Salim, who have been acquitted by the Co-ordinate Bench of this Court vide judgment and order dated 01.07.2021 in Criminal Appeal No.37 of 2013.
20. As per the prosecution story, the appellant along with co-accused committed the murder of Mohd. Akram as he was promised to pay Rs.60,000/- by Abid Ali. But the trial Court has acquitted Abid Ali for the offence under Sections 302/120-B IPC on the ground that there was no evidence to establish any conspiracy with the present appellant. Apart from that, the extra-judicial confessions were made by co-appellants Nafees and Salim.
21. Simply, on the basis of the confessional statements given by co-accused Nafees and Saleem, the present appellant has been convicted by the trial Court, while there is no other material evidence on record produced by the prosecution against the present appellant. Apart from that, the above extra-judicial confession was made by the other appellants five to six months after the incident, which is not reliable.
22. Except these two pieces of evidence i.e. firstly, the identification made by PW1 Mohd. Abbas and PW5 Irshad Ahmad, and secondly, the extra-judicial confession, allegedly made by co-accused Nafees and Saleem to Tahir Hassan (P.W.3), the prosecution could 8 not prove any concrete evidence against the present appellant.
23. The trial Court did not properly assess the evidence and convicted the appellant, simply, on the basis of test identification parade and the extra-judicial confession made by the other accused, which, in our opinion, do not inspire implicit confidence. Thus, we are of the considered view that the prosecution has miserably failed to prove its case, beyond reasonable doubt, against the present appellant as well. Accordingly, the present appellant is also liable to be acquitted.
24. For the reasons stated above, the appeal is, hereby allowed. The judgment and order dated 31.07.2014, passed by learned Second Additional Sessions Judge, Haridwar in S.T. No.333A of 1998, State v. Islam, is hereby set-aside. Consequently, the appellant is acquitted of the charges framed against him.
25. The appellant is already on bail. He needs not to surrender. His bail bonds are cancelled and sureties are discharged from their liabilities.
26. Let a copy of this judgment and order along with the LCR be transmitted to the Court below for compliance.
_______________________ SANJAYA KUMAR MISHRA, A.C.J. ______________ RAMESH CHANDRA KHULBE, J.
Dated: 16th MARCH, 2022 Balwant 9