Allahabad High Court
Chand Babu vs State Of U.P. on 15 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 674
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved on 27.02.2019 Judgment Delivered on 15.04.2019 Court No. - 1 Case :- CAPITAL CASES No. - 202 of 2018 Appellant :- Chand Babu Respondent :- State Of U.P. Counsel for Appellant :- Anurag Singh,Arvind Kumar Singh Counsel for Respondent :- G.A. And Case :- CAPITAL CASES No. - 203 of 2018 Appellant :- Shareef Ahmad Respondent :- State Of U.P. Counsel for Appellant :- Ashutosh Srivastava,Akhilesh Tripathi,Mohammad Farooq Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon. Ramesh Sinha, J.)
1. The present criminal (capital) appeal has been filed by the two appellants against the judgment and order dated 24.7.2018 passed by Additional District and Sessions Judge, Court No.7, Kanpur Nagar in S.T. No.976-A of 2004 (State Vs. Sharif Ahmad and another) arising out of Case Crime No.130 of 2004, under Section 25 Arms Act, Police Station Swaroop Nagar, Kanpur Nagar and in S.T. No. 976-B of 2004, arising out of Case Crime No.131 of 2004, under Section 25 Arms Act, P.S. Swaroop Nagar, Kanpur Nagar whereby the accused Chand Babu and Sharif Ahmad s/o Haji Mohammad Yaseen have been convicted and sentenced to 7 years R.I. and a fine of Rs. 30,000/- each and in default six months further R.I. and in S.T. No. 976 of 2004, arising out of Case Crime No.129 of 2004, under Section 307 IPC, P.S. Swaroop Nagar, Kanpur Nagar whereby accused Chand Babu and Sharif Ahmad s/o Haji Mohammad Yaseen have been convicted and sentenced to 7 years R.I. and a fine of Rs. 30,000/- each and in default 6 months further R.I. and in S.T. No.1066 of 2004, arising out of Case Crime No.128 of 2004, under Section 302 read with Section 34, 120-B IPC, they have been convicted and sentenced to death and a fine of Rs.1,00,000/- and in default one year further R.I. Both the appellants have been awarded death sentence by the Trial Court, hence a reference has been made to this Court being Reference No. 6 of 2018 for confirmation of death sentence to them by this Court.
2. As both the aforesaid appeals along with the reference arise out of a common judgment and order, the same are heard and decided by this common judgment.
3. The prosecution case in brief is that an FIR was lodged at police station Swaroop Nagar, District Kanpur Nagar on 23.6.2004 at about 19.20 hours on the basis of a written report submitted by the informant with an allegation that on 23.6.2004, Constable Pramod Kumar and Constable Kishan Pal along with their service rifles were on patrol duty at Chat Chauraha to maintain law and order and discharging their official duty. At about 6.30 PM in the evening, one car stopped at Dog Kitment Care Centre of Dr. D.N. Sabarwal. There was heavy traffic on the road as people were moving and also there was adequate movement near the said car in the meanwhile two miscreants came by a motor-cycle and the person sitting on pillion seat took out a weapon from his waist and fired to kill the driver of the car. After witnessing the said incident, the two constables rushed towards the place of occurrence in order to apprehend the miscreants and to save the driver of the car but as it was evening and large number of people were on the road on account of which the road was very busy, they could not fire from their rifles as they apprehended that some person of the public may not be hit by them. The miscreants were chased by them, who tried to run away from the place of occurrence but due to fear, the motor-cycle skidded but taking advantage of the lanes and rush in the market they managed their escape good. The Calliver motor-cycle bearing Registration No. UP 78-AC-5668 was left by the miscreants at the place of occurrence. After the incident, when they reached at the spot they saw that the person, who was shot by the miscreants succumbed to his injuries. Thereafter, one person came and identified him as Ashok Kumar Sabarwal r/o 120/364 Basayat Nagar, P.S. Nazirabad Kanpur Nagar. The said person was lying in an injured condition in the car bearing Registration No. UP-78-ACB 0284, which was a Santro Car. The injured has received injuries on his head and has died. The miscreants, who had shot dead the deceased were seen by the two constables along with other persons of the public. They stated that if the miscreants be produced before them, they could identify them as at the time of incident there was sufficient light of electricity. The miscreants had committed a brutal murder in a public place which is a densely populated and busy market place. Because of the terror, all the shops started closing and there was turmoil in the area and the shops owner had closed their shops and the local residents have started closing their windows and as there was turmoil and chaos in the area, no transport was available. The constable Pramod Kumar Dubey left his companion Constables Kishan Pal, who was present at the place of occurrence for maintaining peace and he went to the police station for informing about the incident and gave a written report at the concerned police station for necessary action. On the basis of the written report submitted by constable Promod Kumar Dubey, an FIR was registered as Case Crime No.128 of 2004, under Section 302 IPC at P.S. Swaroop Nagar, District Kanpur Nagar.
4. After registration of the said case the accused/appellants were arrested on 26.6.2004 in a police encounter case at 4.20 PM by the police team headed by Station Officer Arun Kumar Rai for which an FIR was registered against them as Case Crime No.129 of 2004, under Section 307 IPC by Station Officer Arun Kumar Rai of P.S. Swaroop Nagar, District Kanpur Nagar. On their arrest one of them disclosed his name as Chand Babu s/o Mohammad Safeeq r/o Haji Lal Kuraisi House Kulli Bazar, P.S. Badshahi Naka, Kanpur Nagar and on the search made by police personnel a country made pistol of 12 bore and two live cartridges of 12 bore were recovered from the pocket of his pant which he was wearing. The second miscreants disclosed his name as Sharif Ahmad s/o Haji Mohammad Yaseen r/o of 81/127 Kulli Bazar, P.S. Badshahi Naka, Kanpur Nagar and from his possession a country made pistol of 315 bore was recovered from his right hand and further three live cartridges were recovered from the pocket of his pant which he was wearing. After their arrest, they confessed before the police team that they were involved in the murder of Ashok Kumar Sabbarwal which had taken place on 23.6.2004 and had further stated that the country made pistol which was recovered from them were used in the said crime. The said two accused were challaned for assaulting the police party hence, a case was registered against them under Section 307 IPC and Section 25 Arms Act against the two accused i.e. Case Crime No.130 of 2004, against accused Chand Babu and against Sharif Ahmad.
5. A fard recovery memo was prepared by the police along with the arrest memo regarding the weapons recovered from them which was marked as exhibit ka-3. On 5.7.2004 at 9.45 PM, the Station Officer Arun Kumar Rai of Police Station Swaroop Nagar had also taken the accused Gulam Nabi son Sazar r/o 81/185 Kulli Bazar, P.S. Badshahi Naka, Kanpur Nagar on a police remand under the orders of C.J.M. Kanpur Nagar dated 3.7.2004, and got a recovery made at his pointing out of a country made pistol of 12 bore which was used in the murder of the deceased Ashok Kumar Sabarwal, he offered to get it recovered at the Ashok Nagar Chauraha near Moti jheel which was wrapped in a plastic bag. The recovery memo of the weapon recovered at the pointing out of the said accused was prepared as exhibit ka-16 and an FIR was also registered against him as Case Crime No.142 of 2004, under Section 25 Arms Act, P.S. Swaroop Nagar, Kanpur Nagar on the same date at about 21.50 PM.
6. During the course of investigation, the accused Chand Babu also offered to get the money recovered which was paid to him for the murder of the deceased Ashok Sabarwal on 25.6.2004, he got recovered Rs. 30,000/- from a steel box which was kept in his house. A recovery memo of the same was also prepared by the Station Officer Arun Kumar Rai and a copy of the same was also served to the said accused which is marked as exhibit ka-12. Similarly, the accused Sharif s/o Haji Mohammad Yaseen also offered to get the money, i.e., Rs. 31,700/-recovered which he had received for the murder of Ashok Kumar Sabarwal and he was also taken to his house and got the same recovered from blue bag kept in the upper portion of the room. A recovery memo was also prepared and a copy of the memo has been marked as exhibit ka-13. The Station Officer Arun Kumar Rai further had taken the sample of the hair of accused Sharif which was found in the comb and prepared a memo on 26.6.2004, which is marked as exhibit ka-14. while he was taken up from a police lockup. The accused Chand Babu had received injuries while he was arrested by the police on 25.6.2004. On his arrest he was medically examined on 26.4.2004 at about 5 PM at UR Hospital Kanpur Nagar by emergency Medical Officer and he was taken by the two constables for the medical examination. Similarly the accused Sharif Ahmad who was also arrested on the same date and he was also medically examined on 26.4.2004 at 5:40 p.m. at UR hospital and he too was taken by the two constables for medical examination. The I.O. also recovered bloodstained seat cover and plain seat cover, broken tooth, plates and hair from the helmet, sealed the same and prepared a recovery memo of the same as exhibit ka-9. He had also taken into custody, the Santro Car in which the deceased was murdered bearing Registration No.U.P-5668 of black colour which was found at the place of occurrence along with one black helmet which was in a damaged condition, the same were taken into custody and prepared a recovery memo of the same dated 26.6.2004.
7. The inquest proceedings of the dead-body of the deceased Ashok Kumar Sabbarwal was conducted by the police. The postmortem of the deceased Ashok Kumar Sabarwal was conducted by Dr. N.K.S. Yadav Medical Officer at the postmortem house on 24.6.2004 and as per the opinion of the doctor the cause of death was due to fire-arm injury and he has proved the same as exhibit ka-2. The report of Vidhi Vigyan Prayogshala, Lucknow dated 15.12.2004 of the clothes of the deceased and other articles have been marked as exhibit ka-24. The report of the ballistic expert of Vidhi Vigyan Prayogshala, Lucknow dated 23.2.2005 with respect to the weapons recovered from the accused and the cartridges recovered is marked as exhibit ka-25. The report of the Serologist dated 11.2.2005, regarding the hair recovered from the helmet which was recovered from place of occurrence with the hair of the accused Sharif is marked as exhibit ka-26. The then District Magistrate Kanpur Nagar had given the requisite sanction of the prosecution of the accused-appellants under Section 25 Arms Act on 17.8.2004 and 7.3.2005 respectively which has been marked as exhibit ka-31. Similarly the requisite sanction for prosecution of the accused Gulam Nabi S/o Sazar was also given by the District Magistrate on 8.8.2004.
8. The I.O. after completing the investigation submitted charge-sheet against the accused-appellants including accused Mohammad Sharif s/o of Haji Papai, Gulam Nabi and Intekhab @ Manager s/o Mohammad Ahmad arising out of Case Crime No.128 of 2004, under Section 302/120-B IPC on 17.9.2009 and has proved the same as exhibit ka-27. The I.O. also submitted a charge-sheet against the two accused/appellants arising out of Case Crime No.129 of 2004, under Section 307 IPC and Case Crime No.130 of 2004, under Section 25 of Arms Act and Case Crime No.131 of 2004 against Sharif Ahmad and Gulam Nabi arising out of Case Crime No.42 of 2004, under Section 25 Arms Act.
9. The Chief Metropolitan Magistrate, Kanpur Nagar committed the case of Chand Babu, Sharif Ahmad, Gulam Nabi and Intekhab Ahmad to the Court of Sessions and one of the co-accused of said crime no.128 of 2004 Mohammad Sharif, his case was committed to the Court of Sessions on 5.1.2005. Thereafter cases, i.e., Case Crime No.129 of 2004, 130 of 2004, 131 of 2004 which was registered under the Arms Act against two appellants was committed to the Court of Sessions on 14.9.2004.
10. Trial Court framed charges against the two accused-appellants and Gulam Nabi in S.T. No.1066 of 2004, under Section 302/34 and 120-B IPC and Case Crime No.129 of 2004 and in S.T. No.976-B, under Section 307 IPC and against Sharif Ahmad in S.T. No.1065 of 2004, in Case Crime No.142 of 2005, under Section 25 Arms Act against Gulam Nabi, Sessions Trial No.976-A of 2004, in Case No.130 of 2004 against accused/appellant Chand Babu, under Section 25 Arms Act and in Sessions Trial No.138 of 2005 in Case Crime No.128 of 2004 against Mohd Sharif, under Section 302/34/120-B IPC.
11. The prosecution have relied upon the various documentary evidence in support of its case and further examined P.W.1 Constable Pramod Kumar Dubey P.W.2 Madhu Agarwal, P.W.3 Ajay Agarwal, P.W. 4 Dr. N.K. Singh Yadav, P.W.5 Ram Bharose, P.W.6 A.K. Rai, P.W.7 Ratan Singh, P.W.8 Devi Deen Pandey, P.W.9 G.K. Singh, P.W.10, R.P. Yadav, P.W.11 S.S. Grover, P.W.12 A.K. Yadav and C.W.1 S.N. Shukla.
12. The accused denied the charges framed against them and claimed their trial and they have stated in their statement under Section 313 Cr.P.C. that they are innocent and have been implicated in the present case by the police in order to show good work. The accused Gulam Nabi had died during the course of the trial hence, his trial was ordered to be abated.
13. P.W.1 constable Pramod Kumar Dubey who is the informant of the case has been examined by the Trial Court, who in his deposition has stated that on 23.6.2004, in the evening at about 6.30 PM, when the incident has taken place, he along with his constable Kishan Pal Singh were posted at P.S. Swaroop Nagar and from there both of them had gone on duty with their rifles on patrol duty for maintaining law and order in the area and at that movement a car stopped at the clinic of Dr. D.N. Sabarwal in front of Dog Kitment Care Centre, at that time two miscreants came on a motor-cycle and stopped near the said car, the persons sitting on the pillion seat of the motor-cycle shot a fire in order to kill the driver of the said car at that time he along with his companion constables was at a distance of about 15 to 20 yards and after seeing the said incident they tried to chase the miscreants but they could not be apprehended. While they were chasing the miscreants the motor-cycle of the accused-appellants skidded but both the accused taking advantage of the rush of the public and congested lane managed their escape good. The registration number of the said motor-cycle was UP78-AC 5668 which was found lying at the place of occurrence. They further saw on reaching the place of incident that the Santro Car No. UP-78-AC3284 was standing at the place of occurrence and its driver had received a fire shot on his head and it was bleeding. The persons standing near the injured-driver of the car told them that the injured is Ashok Kumar Sabarwal. At the place of occurrence, there was sufficient electricity light in which they along with other persons of the public who were present there have seen the incident that the accused shot the deceased and fled away from the place of occurrence. The witness identified the accused Chand Babu and Sharif who were present in the court and stated that on the day of the incident Mohammad Sharif was driving the motor-cycle while accused Chand Babu was sitting on the pillion seat of the motor-cycle and because of the act of the accused persons there was turmoil and chaos in the area and the shops were closed and there was terror in the public on account of the said incident. Thereafter, the injured was sent to the hospital by Shyam Lal Ghosh and other persons of the public to the hospital, he left his companion constable Kishan Pal at the place of occurrence and had gone to the Police Station Swaroop Nagar for lodging the FIR. The report regarding the said incident was written by him at the place of occurrence and also got the signature of his companion constable on the report, he took the written report to the police station where the FIR was lodged and he has proved the said report and the signature of constable Kishan Pal Singh on the same as exhibit ka-1.
14. In the cross examination, this witness has stated that on the day of the incident he has not performed any duty except the present one and prior to the present duty his duty was in the police station in the night from 5.30 on-wards on 22.6.2003, his duty was on patrolling in the night of 22.6.2003, and he was on duty with his rifle. On the next day on 23.6.2003, his duty comes to an end at 6 AM in the morning and he does not remember the G.D. number and time regarding its endorsement. On 23.6.2003, his duty was with his rifle and he was given 30 cartridges. The place of occurrence is about one kilometer from Police Station Swaroop Nagar and Chat Chauraha is at a distance of about 750 meter and he from the police station started for Chat Chauraha at 5.30 PM and reached there at 5.45 PM and from the police station he directly reached to the Chat Chauraha which is the place of occurrence and at the time of the incident he was standing there as there was rush and he was regulating the traffic, at that moment he heard a fire of shot at the place of occurrence i.e. Chat Chauraha where he was standing and controlling the traffic, was not at a distance of one furlong i.e. 10 to 15 yards. He has denied the suggestion that he was not present at Dog Kitment Care Centre of Dr. D.N. Sabarwal and was at a distance of 300 meters from it. The place of incident is a busy market place and there was a rush of people and a huge traffic of vehicles. He further admitted that the persons going by foot are also in huge numbers and because of the huge rush of the vehicles in the market the vehicles were also not parked properly and traffic was jammed. On hearing the fire-arm shot he reached at the place of occurrence after 4-5 minutes and when he reached the place of occurrence, he saw the accused fleeing away. He further deposed that when he reached at the place of occurrence then there was a huge rush of people.
15. He further deposed that after 15 minutes of the incident he had started drafting a report of the incident and has taken a paper from a shop of kool ice-cream and has proved the written report as exhibit ka-1. He has written the report at the place of occurrence and stated that it took him 10 minutes to draft the report of the said incident which is marked as exhibit ka-1. He has written the said report about the incident on the bonnet of a Maruti Car which was standing there. He has denied the suggestion that the written report exhibit ka-1 and the chick FIR is in the same ink. He had gone to the police station from the place of occurrence on a rickshaw and he had gone all alone at the police station and had reached there about 7 PM. Soon after the incident he had given an information at the police station through a written report as well as orally. He further deposed that he had immediately informed about the incident at the police station from the place of occurrence after giving the oral information to the police station he immediately returned back again to the place of occurrence and it took him about 15 to 20 minutes for the said purpose. The public had also informed the Station Officer of the Police Station on the telephone about the incident hence, Station Officer had reached the place of occurrence before him and when the Station Officer had reached the place of occurrence large number of people had gathered there who were about 100 in numbers. There was conversation between him and the Station Officer and he had informed him about the incident. At the time Shyam Lal Ghosh was present at the place of occurrence and had identified the dead-body of the deceased to be that of Ashok Kumar Sabarwal and in his presence the Station Officer had talked to Shyam Lal Ghosh and it was about 7.20 or 7.15. in the evening when the Station Officer had talked with Shyam Lal Gosh and after 10 to 15 minutes the dead body of the deceased was taken by Shyam Lal Ghosh in a Maruti Car to the Hallet Hospital and at that time the Station Officer of the concerned Police Station was also present along with the Shyam Lal Ghosh. There were also 3 to 4 persons of the public present there. Constable Kishan Pal also accompanied Shyam Lal Ghosh along with dead-body of deceased to the Hallet Hospital. At the place of occurrence he and the Station Officer stayed. The dead-body was taken out from the vehicle by Shyam Lal Ghosh. When the dead body was taken out from the car by Shyam Lal Ghosh at the spot then at that time it was profusely bleeding. The age of Shyam Lal Ghosh at the time of the incident was about 50 years and the deceased was about 53 years. The deceased was well built person and at the time of incident what clothes and its colour which the deceased was wearing he could not remember. He stated that Shyam Lal Ghosh was wearing white shirt and pant when the dead-body was taken out from the car and was kept in Maruti Car then his clothes got stains of blood. It was deposed by him that the car in which the deceased was shot dead, Shyam Lal Ghosh had taken him to Hallet Hospital by the said car. Some person of the public had driven the car and taken the dead body of the deceased to Hallat hospital. Shyam Lal Ghosh had reached at 7.30 PM to the hospital along with the dead-body of deceased. The said fact was not told to him by any person, as he was tying a wrist watch. He has deposed in his cross examination that Shyam Lal Ghosh had reached along with the dead-body at 7.30 to the hospital. He admitted in his cross examination that he was not present in the hospital as he was present at the place of occurrence. This witness was further cross examined and deposed that in his written report, he had not mentioned the description of the miscreants nor their physique, colour, age and height nor he has told the Investigating Office in his statement under Section 161 Cr.P.C about the physique, colour etc of the accused person. He stated that he had told the investigating officer that two miscreants were aged between 20 to 25 years and if the same was not written in his statement under Section 161 Cr.P.C, then he could not give any reason. He further deposed in his cross examination that he did not go to jail for any identification of the accused persons and stated that when his statement was recorded in the court then identification was done in the presence of F.T.C. Sri Rathi Sahab and at his instance he correctly identified the accused. He admitted the fact that in the present case no one was named in the FIR. He stated in his cross examination that after the day of the incident, when his statement was recorded for the first time in the court, he had seen the accused persons. He had firstly seen the accused at the time of the incident and thereafter saw them second time in the court and identified them. He denied the suggestion that on the day of incident when the incident had taken place at 6.30 PM in the evening at that time the Sun had not set and the lights were not on. He denied the suggestion that he was not present at the place of occurrence. He admitted that many persons of the public had left their vehicles, motorcycles etc. at the place of occurrence because of the terror and on account of the said incident the shops had also been closed down. The police personnel had arrived there within 10 to 15 minutes after receiving the information from the public. When the police personnel had reached the place of occurrence, then the public had left their vehicles and fled away, they came back to take their vehicles. He denied the suggestion that when the people had come to take back their vehicles then out of them several persons were apprehended by the police and were taken to the police station and were interrogated there. He further denied the suggestion that accused Chand Babu and Sharif S/o Haji Mohammad Yaseen, who were locked at the police station were falsely implicated in the present case under Section 307 and 25 Arms Act along with vehicle and were challaned in the said case. He also denied the suggestion that with respect to the present incident the traders had made demonstration with respect to the present case and had closed down their shops and the Government instructed the Home Secretary to pacify the public and in order to cool down the demonstration there was a pressure on the Police Administration to arrest the culprits. He further denied the suggestion that under the pressure of Administration to arrest the miscreants both the accused were falsely challaned in the present case. He also denied the suggestion that he was called at the police station after due consultation and deliberation with the officials, the present report was got written by him. He denied the suggestion that he is falsely deposing in the court against the accused though he has not seen the incident nor was present at the place of occurrence.
16. P.W.2 Madhu Agarwal, who was an independent witness of the occurrence was examined by the trial court and she stated that on 23.6.2004 at about 6 PM in the evening she was present at her shop of ice-cream, parlour which is in one portion of her house and she was busy there then she heard a loud noise and presumed that Tyre of any vehicle had burst and after hearing the noise she came to know that it was a fire arm shot and some person had been murdered. She has stated that she did not see any person firing shot or fleeing on a motor-cycle. The said witness was declared hostile. She in her cross examination has stated that the Investigating Officer did not record her statement nor she had given any such statement to him. She denied the suggestion that she new all the accused persons and in collusion with the accused persons she was falsely deposing before the Court in order to save them.
17. P.W. 3 Ajay Agarwal is the husband of P.W.2 and has deposed before the trial Court that on 23.6.2004 at about 6 in the evening he was present in his house at that moment her wife Madhu Agarwal told him that some trouble has taken place out side on which he went to close his shop in order to save his house and after about one hour he came to know that some one had shot dead Ashok Kumar Sabarwal. He has deposed that he has not seen the person who shot the deceased. He was also declared hostile by the prosecution. In his cross examination, he had also stated that he has not given any statement under Section 161 Cr.P.C. to any constable or to Investigating Officer and when he was shown his statement under Section 161 Cr.P.C. and was read out then he had stated that he could not tell the reason how the Investigating Officer had recorded such statement. He denied the suggestion that he knew all the accused persons and in collusion with the accused persons he was falsely deposing before the Court in order to save them.
18. P.W. 4 Dr. Narendra Kumar Singh Yadav has stated before the trial Court that on 24.6.2004 he was posted as Medical Officer Kusth Niyantran Ekai II, Kanpur Nagar. On the said date his duty was at the postmortem house for doing postmortem and he has conducted the postmortem of the deceased Ashok Kumar Sabarwal on 24.6.2004 at 11.35 AM which was brought by constable Dhanpal Singh, constable Janki Prasad from Police Station Nazimabad, Kanpur Nagar and who has identified the same, he found following ante mortem injuries on the person of deceased Ashok Kumar Sabarwal which are given as under;-
"1. Firearm wound of entry 5 cm. x. 5 cm. x bone deep on the left side of the face 2 cms. below the right eye. Margins inverted. Blackening and charring present around the wound. Upper jaw and lower jaw and right maxilla fractured.
2. Wound of exit 7 cms. x 4 cms. x bone deep on he left side of the neck. 3 cms. below the left ear. Margin everted communicating of injury no. 1.
3. Wound of exit 3 cms. x 2 cms.x bonedeep on the left side of the neck. .1 cm. below the injury no. 2. Margin everted, communicating injury no. 1."
19. According to the opinion of P.W. 4 the cause of death was shock and hemorrhage due to fire-arm injury. He further deposed that the death of the deceased had occurred on 23.6.2004 at about 8:30-9:00 PM. He also deposed that the death of the deceased could be possible on 23.6.2004 from the above referred injuries between 2 to 3 PM. He denied the suggestion that he had conducted the postmortem of the deceased at 11.35. PM and received the police papers afterwards and has changed the time from 11.35 PM to 11.35 AM. He proved the postmortem report marked as exhibit ka-2.
20. P.W.5 Constable 321 Ram Bharose has stated that he was posted as constable Moharirr on 25.6.2004 at Police Station Swaroop Nagar and on the said date Station Officer Sri Arun Kumar Rai has given a fard recovery memo on the basis of which he has lodged the FIR as Case Crime No.129 of 2004, 130 of 2004 and 131 of 2004 and proved the same as exhibit ka-3. He has further endorsed the same in G.D. No.39 at 18.30 hours and has proved the same as exhibit ka-4 which is in his hand writing. He got the recovery made from the accused in the Malkhana of the concerned police station and also sent the accused in the men cell of the police station. In his cross examination a question was put to him on 25.6.2004 that how many cases of cognizable offence were registered prior to the present case to which he stated that prior to the present case no other cognizable offence case was registered on the said date. He has further stated that exhibit ka-4 is not in his hand writing as exhibit ka-4 is the G.D. entry of the registration of the said case. The accused persons were brought baparda but he cannot tell by which cloth they were made baparda nor the same is mentioned in the G.D which is marked as exhibit ka-4. He denied the suggestion that the accused were arrested from before by the police and thereafter they were falsely implicated in the present case by showing false recovery from them. He further denied the suggestion that due to some political pressure, the present case was concocted to falsely implicate the present accused persons. He further deposed that no special report was sent to the Higher Authorities after the accused were arrested. He has stated that it is correct that no one was named in a case under Section 302 IPC and he denied the suggestion that in order to show good work the accused were falsely implicated in the present case.
21. P.W.6 Arun Kumar Rai deposed before the Trial Court that on 25.6.2004, he along with sub-inspector Shayam Sunder Grower, sub-inspector Ratan Singh, constable Kishanpal, constable Pramod Kumar, constable Prakash Ram, constable Ramchandra, constable Ramesh Kumar, constable Rajendra Singh, constable Jang Bahadur Singh, constable Indrapal Singh and constable Mahare Lal Singh were on a patrolling duty in search of the accused of Case Crime No. 128 of 2004, under Section 302 IPC within the jurisdiction of the concerned police station and when they reached at Swaroop Nagar they met Tej Bahadur Singh, Inspector of Special Task Force along with his companion H.C. Anil Kumar and constable Dharmendra Singh and they told him that they have received an information from the informer that the accused of the present case have been seen towards Gudaiya crossing who were going on foot towards the cocakola chauraha and on believing the said information of the informer he along with the S.T.F. team went there. The informer after pointing out the said persons, who were wanted in Case Crime No.128 of 2004, to the police personnel left then they were intercepted by the police party who tried to fire on them from their country made pistol and one of the fire was shot on them for killing them but the other fire missed and both the accused tried to escape but they were arrested by the police team after some effort from the crossing. One of the accused disclosed his name as Chand Babu S/o Mohammad. Safiq R/o Kulli Bazar, P.S. Badshahi Naka and on his search, he was carrying one country made pistol of 12 bore in his right hand which was recovered from him and when the country made pistol was opened then smell of gun powder was coming from it and one live cartridges of 12 bore was recovered and two live cartridges were further recovered from his pant which he was wearing. The other accused disclosed his name as Sharif Ahmad R/o 127 Kulli Bazar, P.S. Badshahi Naka, Kanpur and on the personal search made from him he too was carrying a country made pistol of 315 bore in his right hand and when the barrel of it was opened one missed cartridge was found inside the barrel and from the pant which he was wearing three live cartridges were recovered. When the accused were asked for licence about the recoveries made then they could not show the same and started apologizing. The constable namely Pramod Kumar and constable Kishnapal identified the said two accused to be involved in the incident dated 23.6.2004, which has taken place at Swaroop Nagar basti in which Ashok Kumar Sabarwal was murdered. He deposed that when he enquired from the said accused about the said fact then both of them confessed that they were involved in the said murder. When a query was made about the recovery of the country made pistol from them then they stated that from the said country made pistol they have murdered deceased Ashok Kumar Sabarwal. The said accused were taken into custody by him disclosing about the reason for their arrest. The recoveries made from the said two accused of the country made pistol and the live cartridges, a recovery memo of the same were prepared and the signatures were also obtained on the said recoveries of the two accused along with police personnel and the same was proved as exhibit ka-1. The recovery of 12 bore country made pistol which was used in the murder of the deceased Ashok Kumar Sabarwal was written by Sub-inspector Shyam Sunder Grover on the dictation of the said witness a recovery memo was also prepared of the country made pistol, three live cartridges of 315 bore which was proved as material exhibits ka-1, 2, 3 and 4 respectively. He in his cross examination has stated that he does not remember that on the date of the incident by which G.D. and at what time he had left with the police station along with constables. He further deposed that he does not remember that how long he was patrolling in search of accused of Case Crime No.128 of 2004, under Section 302 IPC and he received the information about the accused persons from the police informer. He stated that he was also the Investigating Officer of Case Crime No.128 of 2004 and the accused of the said case were to be identified as the FIR was registered against unknown persons. He has not conducted the identification parade of the said case. He further deposed that he has shown the investigating officer the place from where the accused were arrested and no pellets or tiklee were recovered from the place from where the accused had fired and was arrested. He has further stated that he had submitted a charge-sheet in Case Crime No.128 of 2004, under Section 302 IPC after the investigation. He further deposed that he does not remember whether any site plan of the place of occurrence was prepared or not.
22. The witness has stated that he cannot tell whether he had arrested the accused in this case or in case crime no. 128 of 2004 under section 302 I.P.C. or in case crime no. 129 of 2004 and case crime nos. 130 and 131 of 2003 for the offence under sections 307 I.P.C. and 25 Arms Act. He also cannot tell that from which place near Gol Chauraha, the accused were arrested. He stated that he can tell about the same after going through the case dairy of case registered under section 302 I.P.C. He stated that the Investigating Officer, who conducted the investigation of the present case, is sub-ordinate to him. He was the Station Officer of the said police station at that time. He stated that he is the informant of the case which was registered under section 302 I.P.C. He denied the suggestion that the manner in which he has narrated the incident had not taken place in the said way and he had done all the proceedings at the police station itself and lodged a false case. He further denied the suggestion that the accused had not fired at the police party nor any country made pistol or cartridge which were in working condition, were recovered from them. He further deposed that on 23.6.2004, he was posted at police station Swaroop Nagar and was entrusted with the investigation of case crime no. 128 of 2004 under section 302 I.P.C. and he started the investigation as soon as the same was handed over to him. He endorsed the nakal chik, nakal report in the G.D. and recorded the statement of the informant and statement of Constable Kishan Pal under section 161 Cr.P.C. He further prepared the site plan of the place of occurrence at the pointing out of the informant P.W. 1 and he has proved the same as Exs. Ka. 5, 6, 7 and 8. From the place of occurrence, Tikli pellets and broken tooth etc. were recovered from the vehicle. He prepared recovery memo of the same which is available on record. The same is under his signature and there is also the signatures of witnesses present there. He proved the same as Ex. Ka. 9. From the place of occurrence, he has recovered a motorcycle along with a helmet and prepared recovery memo of the same in the presence of witness under his signature and got the signatures of the witnesses on it. He proved the same as Ex. Ka. 10. A recovery memo of one cartridge of 12 bore which was recovered on 25.6.2004 was also prepared by him in the presence of witnesses and got their signatures on the same. He also signed the same and proved as Ex. Ka. 11. The recovery memo of the money which was recovered from accused Chand Babu was also made in the presence of witnesses, who have signed the same along with him and accused Chand Babu has also signed on the same which was proved by him as Ex. Ka. 12. Similarly, the money which was recovered from Sharif son of Haji Mohammad Yasin a recovery memo Ex. Ka. 12 was prepared. He further deposed that a sample of hair of accused Sharif son of Haji Mohammad Yasin was taken by him and he prepared the recovery memo of the same and got the signature of the witness and has also singed the same. He obtained the signatures of the accused also and proved the same as Ex. Ka. 14. The photo of the recovered motorcycle, car and the photo which was taken from inside the car were marked as material Exs. Ka. 2 to 6. He has also recorded the statements of the witnesses under section 161 Cr.P.C., who were connected with the incident and also interrogated the accused persons. Accused GulamNabi surrendered in the Court thereafter he gave an application before the C.J.M. Court for taking his police custody which was allowed. On 5.7.2004, he was taken from jail on remand and thereafter on his disclosure he was taken near the crossing of Motijheel, Ashok Nagar from where at his pointing a country made pistol and two live cartridges of 12 bore were recovered from the bushes which were kept in a plastic bag. He tried to obtain the witnesses for the said recovery but no one was ready to become the witness. The description of the recovered country made pistol was written and memo of the same was prepared at 7:45 on the said date on which the witness signed and thumb impression of the accused was also obtained. He has also signed the recovery memo and proved the same as Ex. Ka. 6. Thereafter the accused again was taken to jail under the orders of the C.J.M. and the case was registered against the accused as case crime no. 142 of 2004 under section 25 Arms Act. The chik F.I.R. was proved by him as Ex. Ka. 16. He further deposed that in the present case no one was named in the F.I.R. and no test identification parade of any accused was conducted nor any witness had identified the accused for which he cannot tell any reason. He denied the suggestion that P.W. 1 Pramod Kumar Dubey had given him oral information about the incident. He stated that the statement made by P.W. 1 that he reached the place of occurrence earlier to him is incorrect. He further cannot tell whether at the place of occurrence there was any conversation between him and the companion of the deceased, namely, Shyam Lal Ghosh or not. He submitted that it is incorrect that when he reached the place of occurrence, the dead body of the deceased was taken to the hospital with the help of public present there. He deposed that he cannot tell that at the time when Shyam Lal Ghosh took the dead body he was present at the spot and also he cannot tell whether Shyam Lal Ghosh had taken out the dead body from the Maruti car or not. He also does not remember that whether P.W. 1 has disclosed him that the person, who shot dead the deceased were aged between 20-25 years, or not. He stated that he cannot tell that when he reached the place of occurrence people had fled away leaving their motorcycle and cars and thereafter came to take the same. The statements of P.W. 2 and 3 that he took their statement under section 161 Cr.P.C. is wrong. He also cannot tell that the dead body of the deceased was sent for post mortem by the police of Nazirabad or not. He further stated that without seeing the papers, he cannot tell whether the statement of P.W. 4 Dr. Narendra Kumar was recorded under section 161 Cr.P.C. or not. He denied the suggestion that when he reached the place of occurrence for the first time then the public left their vehicles and fled away and thereafter when they returned to take their vehicle and cars large number of people were taken to police station along with motorcycle and cars in which Sharif son of Haji Mohammad Yasin and Chand Babu were also apprehended. He further denied the suggestion that both of them were sent to jail under the pressure and influence of administration after several days. He further denied the suggestion that he had not conducted fair investigation for shielding the real culprit and falsely implicated the innocent persons. The witness stated that whatever was told at the time of incident by P.W. 1 has been mentioned in the documents and the F.I.R. which has been registered about the same. P.W. 2 Madhu Agarwal and P.W. 3 Ajay Agarwal if have stated in the Court that they have not given any statement to him under section 161 Cr.P.C. then it is false one. The witness has stated that it is correct that he had submitted charge-sheet under section 120-B I.P.C. He stated that whatever evidence he has collected it is in the charge-sheet. He denied the suggestion that he has not conducted fair investigation and in order to shield the real culprit, he had falsely implicated the innocent persons.
23. P.W. 7 S.I. Ratan Singh has stated that on 24.6.2004, he was posted on the said post at police station Swaroop Nagar, District Kanpur Nagar and on the said date under the instruction of Station Officer Arun Kumar Rai he had conducted the inquest on the dead body of the deceased Ashok Kumar Sabbrwal. He started the inquest proceedings at 8:50 a.m. and concluded the same at 9:50 a.m. He had conducted the inquest proceedings in the presence of witnesses Ram Saran Das Sabbarwal son of Jagatram Sabbarwal, Dr. Ajitram Sabbarwal, Ritesh Sabbarwal, Kamlesh Kumar, Surendra Kumar Sabbarwal and in the opinion of all the witnesses cause of death of the deceased was fire shot. In his opinion also the deceased died on account of gun shot. He has proved the inquest report as Ex. Ka. 17. He further submitted that at the time of punchayatnama, he had prepared the police form no. 33 and police form no. 379, photo nash and letter to C.M.O. which are under his signature. He has proved the same as Exs. Ka. 18 to 21. He had also written the first Parcha of case dairy of case crime no. 142 of 2004 under section 25 Arms Act State vs. GulamNabi on 6.7.2004. He also recorded the statement of Ram Bharose, who was the Scribe of the said F.I.R. and statement of GulamNabi. In his cross examination, the witness has stated that he had received the papers regarding the inquest on 24.6.2004 at 8:50 a.m. and he has stated that in Ex. Ka. 17, the date which has been mentioned as 23 was scored out and in its place 24 was written because the murder had taken place on 23 and due to inadvertence firstly it was written as 23 and thereafter corrected to 24. On the date of incident, he was present at police station Swaroop Nagar. The constables, who have brought the dead body they were of police station Swaroop Nagar. In Ex. Ka. 2 which is post mortem report of the deceased it has been written that the dead body which was sent was sent by S.O. Nazirabad and he cannot tell as to how the same has been mentioned in Ex. Ka. 2. The name of Constable, who had brought the dead body has been mentioned to be of police station Nazirabad for which also he cannot give any reason. The papers with respect to the present case relating to the post mortem was received by him on 24.6.2004 at the police station. He denied the suggestion that he is falsely deposing about the same deliberately. He further denied the suggestion that he was sub-ordinate to the Station Officer of the police station where he was posted and under pressure, he conducted a wrong investigation.
24. P.W. 8 S.I. Devideen Pandey has stated that on 23.6.2004 he was posted as Head Moharrir at police station Swaroop Nagar, District Kanpur Nagar and on the said date on the basis of written report submitted by Constable Pramod Kumar, he registered the F.I.R. of case crime no. 128 of 2004 under section 302 I.P.C. and prepared the chik no. 99 of 2004 against two unknown persons, who had come on a motorcycle for committing the incident. The said F.I.R. has been registered in his hand writing and signature and has proved the same as Ex. Ka. 22. He also made an endorsement of the same in the G.D. report no. 52 at 19:20 p.m. in his writing and signature and proved the same as Ex. Ka. 23. The informant had given only a written report against two unknown persons and he has not disclosed in his written report about the description, physiques and colour of the two unknown miscreants. He did not ask for their description from the informant at the police station Swaroop Nagar. There was no F.I.R. registered prior to the present F.I.R. of any cognizable offence. He had not prepared the special report nor sent the same. He had sent the G.D. report no. 52 to the higher officials through R.T. set. The F.I.R. was lodged within 10-15 minutes and thereafter G.D. was also written within 10 minutes. He denied the suggestion that he did not prepare the chik F.I.R. and written the F.I.R. in time. He further denied the suggestion that the informant had prepared the written report Ex. Ka. 1 at the police station. He also denied the suggestion that the report of the incident was registered after due consultation and deliberation of the Station Officer and other police persons at a belated stage.
25. P.W. 9 Gyanendra Kumar Singh has deposed before the trial court that he was posted in the year 2004 at police station Swaroop Nagar, District Kanpur Nagar on the post of Station Officer and after the transfer of the earlier Station Officer Sri A.K. Rai, the investigation was taken over by him on 14.9.2004 reference of which he had made in C.D. No. 34 dated 14.9.2004. On 17.9.2004, he has prepared C.D. No. 35 in which sufficient evidence was found against the accused Chand Babu and Sharif son of Haji Mohammad Yasin, GulamNabi and Intekhab, hence charge-sheet was submitted against them on 17.9.2004. Thereafter a supplementary Parcha dated 22.9.2004 was written by him in which mention for an order of attachment of rest of the accused Mohammad Sharif son of Haji Papai was made but because of paucity of time, the attachment could not take place. On 23.9.2004 in the second parcha of the supplementary case dairy which was written by him, the attachment proceedings were initiated against accused Mohammad Sharif @ Haji Papai under the orders of the C.J.M. and charge-sheet was submitted against the said accused as absconder under section 302/34/120-B I.P.C. in the Court and thereafter on 12.10.2004 efforts were made to arrest the said wanted accused but he could not be arrested. Thereafter when he could not be arrested after several efforts, a reward of Rs. 2,500/- was put on him but in spite of the same he could not be arrested. In S.C.D. No.17 dated 16.1.2005 he has annexed the report of Forensic Science Laboratory dated 15.12.2004 and has proved the same as Ex. Ka. 24. In S.C.D. No. 18 dated 21.1.2005 he has made an endorsement that accused Mohammad Sharif @ Haji Papai had surrendered in the Court on 20.1.2005 and he had taken permission from the court concerned on 22.1.2005 for interrogating the said accused in jail. On 24.1.2005, he recorded the statement of the said accused. He also proved Ex. Ka. 25 and 26 of the Forensic Science Laboratory regarding which endorsement was made in S.C.D. No. 21 on 26.2.2005 by Sri Devendra Singh, Station Officer, who had taken over the investigation after transfer of the said witness and he has proved the charge-sheet as Ex. Ka. 27. Charge-sheet No. 102 of 2004 and 102A of 2004 which is in his writing and signature have been marked as Exs. Ka. 27 and 28.
26. In his cross examination, he has stated that he did not get the identification parade of the accused Chand Babu, Sharif Ahmad son of Haji Mohammad Yasin, GulamNabi and Intekhab done as there was sufficient evidence against them. He submitted that it is correct that in the present case none of the accused is named in the F.I.R. He denied the suggestion that in violation of the Rules of Police Regulation, he submitted charge-sheet against the accused in a casual manner assuming the investigation which was done by the earlier Investigating Officer to be correct.
27. P.W. 10 S.I. Ram Prasad Yadav has stated that the incident is of 5.7.2004 at 19:45 p.m. On the said date, he was posted at police station Swaroop Nagar as Sub Inspector. On 7.7.2004, the investigation of case crime no. 142 of 2004 under section 25 Arms Act was entrusted to him which was registered against accused GulamNabi son of Sajjar. He has recorded the statement of the witnesses of Fard recovery memo and police remand of the said accused was taken by him from the C.J.M. concerned and got recovery of country made pistol of 12 bore and cartridges of 12 bore on the disclosure statement made by the said accused. He prepared the site plan of the place from where the country made pistol was recovered at the pointing out of the accused and the said country made pistol related to the murder of the deceased Ashok Kumar Sabbarwal. He submitted charge-sheet no. 63 of 2004 on 10.7.2004 against the accused under the Arms Act and requisite sanction was also taken from the competent Magistrate and has proved the same as Ex. Ka. 30. In his cross examination, when he was questioned that whether the country made pistol and the live cartridges which were recovered at the pointing out of the said accused were sent to Ballistic Expert for opinion or not then he answered that there is no rule of purview for sending the recovered country made pistol and cartridges to Forensic Science Laboratory. He admitted that he was posted as Sub-ordinate Officer to Sri Arun Kumar Rai, who was posted as Station Officer at the concerned police station at the time of incident. He denied the suggestion that being the Sub-ordinate Officer to Sri Arun Kumar Rai he was under pressure of the superior officer, hence he has not conducted fair investigation and falsely submitted charge-sheet against the accused persons.
28. P.W.11 Shyam Sunder Grover has deposed before the trial Court that on 25.6.2004, he was posted as Sub-inspector, Police Station Swaroop Nagar, District Kanpur Nagar, on the said date he along with Station Officer Arun Kumar Rai, Sub-inspector Ratan Singh and constable Kishna Pal, constable Promod Kumar, constable Prakash Rai, constable Ram Chandra, constable Ramesh Kumar, constable Rajendra Singh, constable Jang Bahadur, constable Indrapal, constable Meharban was in search of accused of Case Crime No.128 of 2004, under Section 302 IPC, P.S. Swaroop Nagar, were patroling, at that time S.I. Tez Bahadur Singh of S.T.F. along with force met them and had told the Station Officer that he had received an information from the informer about the accused involved in the said case as they were seen at Gudaiya crossing. On the said information all of them along with informer had reached the Gol Chauraha and at the pointing out of the informer who accompanied with the police party had hidden himself and on seeing, the two persons, who were coming attacked at the police party and fired from their respective weapons but by using required force they were apprehended by the police party and both the accused had disclosed their identity one as Chand Babu S/o Mohammad Safeeq and the other as Mohammad Sharif Ahmad S/o Haji Mohammad Yaseen both R/o of Kulli Bazar, P.S. Badshahi Naka and from their possession 315 bore country made pistol and two cartridges were recovered from accused Chand Babu whereas from the possession of accused Sharif Ahmad S/o Haji Mohammad Yaseen a country made pistol of 315 bore along with three live cartridges were recovered and when they were asked about the license of the same they were unable to show.
29. A case was registered against them under Section 307 IPC and 25 Arms Act and they were arrested by the police party and a recovery memo of the country made pistol and live cartridges recovered from them were prepared. No person received any injuries on the fire made by the two accused on the police party. The recovery memo of the recovered country made pistol and live cartridges and the arrest memo was dictated to him by the Station Officer which was written by him. He has proved the same under his writing and signature as exhibit ka-1 and the accused/appellants were taken to the police station where an FIR was lodged against them for the offence under Section 307 IPC and 25 Arms Act. He had also deposed about the recovery made from a country made pistol at the pointing out of accused Gulam Nabi who was also involved in Case Crime No.128 of 2004, under Section 302 IPC and he had surrendered in the Court on 26.4.2004, he was taken on police custody/remand under the orders of the Magistrate and the recovery of country made pistol and two live cartridges were made after he was taken by the police on remand on 5.07.2004, the said accused had got the said weapon and cartridges recovered from the crossing of Ashok Nagar from Moti Jheel Gate from the bushes and the said weapon was wrapped in a plastic bag. The said recovery was made in the presence of Station Officer Arun Kumar Rai and constable Ram Chandra and Rajendra. The said accused has disclosed that he was carrying the said weapon at the time of the incident for which Case Crime No.128 of 2004, under Section 302 IPC has been registered.
30. In his cross examination he has stated that he does not remember the time on which he had proceeded with the Station Officer Arun Kumar Rai on the date of incident along with them Constable Pramod Kumar and Constable Kishna Pal who were the informant and witnesses of the said case were also accompanying them. He further deposed that it is correct that the FIR under Section 302 IPC was lodged against unknown persons and also that at the information given by the police informer the accused of the said case were arrested. He stated that as the incident of murder was committed by the accused in the brought day light in the market place so the Home Secretary was present in the District for several days of which he has nothing to say. He denied the suggestion that there was pressure on the police to solve the present case. He further, denied the suggestion that the police personnel in order to save their job falsely implicated the innocent persons. He further denied the suggestion that all the proceedings were done at police station and a false country made pistol and cartridges were planted on the accused.
31. P.W.12, Anil Kumar Yadav was examined by the Trial Court has stated that on 25.6.2004, he was posted as Sub-inspector at Police Station Swaroop Nagar and he was entrusted with the investigation of Case Crime No.129 of 2004, under Section 307 IPC which was registered against Chand Babu, Case Crime No.130 of 2004, under Section 25 Arms Act registered against Chand Babu, Case Crime No.131 of 2004, under Section 25 Arms Act against Sharif Ahmad S/o Hazi Mohammad Yaseen and on the same day he had recorded the statement of the scribe of the FIR and of the informant Station Officer Arun Kumar Rai, under Section 161 Cr.P.C. and also of the accused Chand Babu and Sharif Ahmad S/o Hazi Mohammad Yaseen. He also on 25.6.2004, has prepared the site plan of the place of occurrence of Case Crime No.129 of 2004, which is in his hand writting and signatures and he has proved the same as exhibit ka-30. He further recorded the statement of the witnesses Om prakash and Vinod Kumar on 5.7.2004, and also of Sub-inspector Ratan Singh. On 10.07.2004, he recorded the statement of Shyam Sunder Grower on 23.7.2004, recorded the statement of Sub-inspector Tej Bahadur Singh on 30.7.2004, recorded the statement of Constable Kishan Pal and further recorded the statement of Constable Inderpal Singh, Constable Meharban Singh, Constable Shiv Prakash, on 31.07.2004. On 23.08.2004, he received the requisite sanction for prosecution has proved as exhibit ka-31 from the District Magistrate-Kanpur Nagar and on 31.7.2004 he submitted a charge-sheet i.e. CH No. 80 of 2004, 81 of 2004 and 82 of 2004 against the two accused Chand Babu and Sharif Ahmad, under Section 307 and 25 Arms Act in the competent court and proved the same which was in his hand writing and signatures proved as exhibits ka-32, 33 and 34. This witness in his cross examination has stated that in the said three cases the informant was Arun Kumar Rai Station Officer of Police Station Swaroop Nagar, he was the Subordinate Officer he did not send the recovered country made pistol to ballistic expert. The recovered country made pistol and cartridges were not before him in the Court. He had made the spot inspection at the instance of the informant of this case under Section 307 IPC and 25 Arms Act and he did not find any pellets or 'tikkli' from the place of occurrence. The place of occurrence was a very busy place of the city. He could not tell that which of the accused from which place had fired at the police party. In none of the parchas of case diary he had mentioned the time of starting and completing the investigation. He denied the suggestion that he was not present at the place of occurrence and because he was Subordinate Officer to the Station Officer on account of his pressure he has submitted a false charge-sheet against the accused and further denied the suggestion that he had prepared a false site plan of the place of occurrence.
32. C.W. 1 Surendra Narayan Shukla was examined by the Court and he deposed that he had executed the non-bailable warrant issued by the Court on 17.05.2018 on the accused Gulam Nabi S/o Sazar R/o 81 of 185, Kulli Bazar, P.S. Chaman Ganj, District Kanpur Nagar at his residence and he was informed that on 21.5.2017, the said accused had been murdered and with respect to his murder a case had been registered at P.S. Chaman Ganj as Case No.33 of 2017, under Section 147, 139, 149, 307 and 302 IPC against Nadir and others. A certified copy of the FIR of the same has been annexed with the non-bailable warrant. He has proved the N.B.W. and the FIR as exihibits ka-1 and Ka.2.
33. Heard Sri Dilip Kumar, Sri Mohammad Farooq, Sri S.P. Srivastava, and Sri Anurag Singh, learned counsel for the appellants, Sri Arvind Kumar Singh, learned Amicus Curiae for the appellant and Smt. Archana Singh, learned AGA for the State.
34. It has been argued by learned counsel for the appellants that the two appellants have been falsely implicated in the present case by the police in order to show good work of the police as the police failed to apprehend the real culprit involved in the murder of the deceased. Learned counsel for the accused-appellants further submitted that the sole eye witness of the occurrence is P.W.1 Constable Pramod Kumar Dubey who was on duty at the place of occurrence for maintaining law and order along with constable Kishanpal at Chat Chauraha. The constable Kishanpal was not produced nor examined before the Trial Court to corroborate the evidence of P.W.1. It has come in the evidence of P.W.1 that it was densely populated area which was a market place it was not possible for the said witness to see the assailant though he states that he has seen the incident from a distance of 10 to 15 yards. P.W.1 had identified the appellant Chand Babu and Shareef Ahmad s/o Hazi Mohammad Yaseen who had come on a motor-cycle and the motor-cycle was being driven by appellant Shareef Ahmad s/o Hazi Hazi Mohammad Yaseen and appellant Chand Babu was sitting on the pillion seat, he had witnessed the incident of shooting at the deceased by the appellants who after the incident tried to escape on a motor-cycle but the motor-cycle skidded and they fled-away. The motor-cycle on which the two appellants are said to have come at the place of occurrence was recovered bearing Registration No. UP-78-AC-5668 Calliber could not be ascertained as to who was the registered owner of the said motor-cycle. He has further drawn the attention of the court towards the evidence of P.W.1 wherein he had stated that soon after the incident P.W.1 had reached the place of occurrence after 4/5 minutes and he had seen the accused fleeing away from the place of occurrence. It has further pointed out that P.W.1 has stated that he had written a report (exhibit ka-1) at the place of occurrence and took him 10 minutes to write the same and he had written the report on the bonnet of a Maruti Car and took the same to the police station on the basis of which it is stated that the FIR of the incident was registered. It was argued by him that from the evidence of P.W.1, it is further evident that the Station Officer had arrived at the place of occurrence on the information given by the public on telephone, he had reached at the place of occurrence and informed the Station Officer who had inquired from him about the incident. He submitted that P.W.1 has stated that soon after the incident he had gone to the police station for informing about the incident and he gave an oral information to the police about the same and thereafter again came to the place of occurrence. He submitted that the evidence of the said witness itself is contradictory as at one point of time, he states that he had drawn a written report at the place of occurrence and went along with the same to the police station where the FIR was registered whereas on the other hand he states that he had gone at the police station soon after the incident and informed about the incident orally and thereafter again came back to the place of occurrence where he met the Station Officer, on the basis of the said conduct it was argued by him that it appears that after the incident, the police had arrived at the place of occurrence and on the information received from the public thereafter, the FIR of the incident was lodged by P.W.1 after due consultation and deliberation. He in this regard, further pointed out that the written report which was lodged at the police station (exhibit ka-1) on the basis of which, the FIR was registered by one ink which shows that the said FIR was written at the police station itself at the dictation of the Station Officer who had reached the place of occurrence and on the basis of which simultaneously, a chick FIR was prepared at the police station. He has further drawn the attention of the court towards the fact that one Shyam Lal Ghosh who was also present at the place of occurrence and had taken the deceased to the hospital as it has come in the evidence of P.W.1 that Shyam Lal Gosh along with other persons had taken the deceased to the hospital but Shyam Lal Ghosh has not been produced or examined by the Trial Court who would have been the best witness to depose about the correct facts of the case regarding the incident. Moreover, the identity of the deceased was also disclosed by Shyam Lal Gosh who was present at the place of the occurrence and he was also not examined as a witness. He further argued that P.W.1 has stated that Shyam Lal Ghosh had reached the hospital with the dead body of the deceased at 7:30 PM and no-one had informed him about the said fact as he was tying a wrist watch but his evidence further goes to show that he was not present along with Shyam Lal Ghosh with the dead-body of the deceased when it was taken to hospital as in his evidence he has categorically stated that the dead body of the deceased was taken by Shyam Lal Ghosh to hospital along with the Station Officer and other police personnel. Constable Kishanpal had also accompanied Shyam Lal Ghosh with the dead-body at hospital. From the evidence of the said witness it was submitted by learned counsel for the appellants that the said witness after identifying the appellants at the place of occurrence on 23.6.2004 identified them also in the court and had not put them for test identification parade. He submitted that the evidence of P.W.1 cannot said to be wholly reliable witness as it appears from his evidence recorded before the trial Court and further he had not given any description about the miscreants in the FIR nor in the statement under Section 161 Cr.P.C. to the Investigating Officer and has given a vague description that the two boys were aged between 20-25 years.
35. So far as the recovery of the weapon from the appellants Shareef Ahmad s/o Haji Mohammad Yaseen is concerned when he was arrested in a police encounter case on 25.2.2004 and recovery of a 315 bore country made pistol is said to have been recovered from him at the time of his arrest, which was sent to the ballistic experts and it was found that the empty cartridge which was recovered from the place of occurrence, was not found to have been fired from the said country made pistol recovered from him. He has next pointed out that a helmet was also recovered from the place of occurrence in which some hairs were found and the hairs were sent to the Vidhi Vigyan Prayogshala and as per the report of the Vidhi Vigyan Prayogshala, the said hair did not tally with the hair of appellant Shareef Ahmad S/o Hazi Mohammad Yaseen. He has further submitted that as regards recovery of Rs. 31,700/- made from the possession of the appellant, the same could not be proved to have been received by the appellant from the accused Shareef Ahmad s/o Papai who had conspired the murder of the deceased. Moreover, Shareef Ahmad s/o Papai, who was also tried for conspiring the murder of the deceased has been acquitted by the Trial Court. He has stated that the antecedents of the appellant is absolutely clean and he has been implicated by the police just to work out the present murder case.
36. Sri S.P. Srivastava, learned counsel, appearing on behalf of appellant Chand Babu has stated that he adopts the above arguments of Sri Dilip Kumar, learned counsel appearing on behalf of appellant Shareef Ahmad and states that so far as the recovery of 312 bore country made pistol which is said to have been used in the crime is concerned, the same has been falsely planted on the appellant Chand Babu when he was arrested by the police in a police encounter on 25.2.2004. He has further stated that so far as the recovery of Rs. 30,000/- from the possession of the appellant is concerned, it has been submitted that the same has not been connected with the crime as the prosecution has failed to establish that the said money which was recovered from the appellant was towards committing the murder of deceased given by the co-accused Shareef Ahmad son of Papai. He has submitted that the antecedents of the appellant Chand Babu is absolutely clean.
37. The learned counsel for both the appellants on the basis of above arguments urged that the conviction of the two appellants by the trial Court on the sole testimony of P.W.1 and the recovery of money and weapon from them is wholly unsustainable and the Trial Court has committed error in recording the finding of conviction and sentence to the appellants for the offence under section 302 I.P.C. read with Section 34 I.P.C. awarding them a capital punishment. He states that it is a case of no evidence and the Trial Court has committed gross illegality in awarding a harsh and severe sentence of death to the appellants though it is not even a case of imposition of life imprisonment, hence the judgment of the Trial Court is liable to be set aside by this court and the appellants are liable to be acquitted.
38. We have also taken the assistance of Sri Arvind Kumar Singh, learned counsel appearing on behalf of appellant Chand Babu, appointed as Amicus Curiae by a coordinate Bench of this Court as he has also prepared the appeal and is present though the said appellant has subsequently engaged Sri S.P. Srivastava, Advocate to argue his appeal, who has also been heard by the Court.
39. Learned A.G.A. has opposed the arguments of learned counsel for the appellants and stated that the two appellants were identified by P.W. 1, who has seen them fleeing from the place of occurrence after committing the crime and he has drawn the attention of the Court towards his evidence. He further argued that after two days of the incident, i.e., on 25.6.2004, the two accused were arrested by the police in a police encounter case which was registered as case crime no. 129 of 2004 under section 307 I.P.C. and from accused Chand Babu country made pistol of 315 bore and live cartridges were recovered for which case crime no. 130 of 2004 under section 25 Arms Act was registered against him whereas from accused Sharif Ahmad country made pistol of 312 bore and live cartridges were recovered for which case crime no. 131 of 2004 under section 25 Arms Act was registered against him and P.W. 1 Pramod Kumar Dubey, who had lodged case crime no. 128 of 2004 under section 302 I.P.C. for the murder of Ashok Sabbarwal had accompanied the police team along with Constable Kishan Pal and have also identified the two accused, who were arrested. The occular testimony of P.W. 1 fully corroborates the medical evidence as the deceased had died on the spot receiving a single shot at the place of occurrence which hit him on his head and the trial court has rightly convicted and sentenced them for the aforesaid offence.
40. We have given a thoughtful consideration to the submissions advanced by learned counsel for the parties and perused the judgment and order passed by the trial court as well as lower court record.
41. Admittedly as it appears from the prosecution case that the deceased was going in his Santro car bearing registration number UP 78 ACB 084 and was sitting on the driving seat alone. The place of occurrence is a densely populated area as it was a market place. He died on account of single fire shot injury sustained on his person. The incident has taken place at 6:30 p.m. in the evening on 23.6.2004. The F.I.R. of the incident was lodged by Constable Pramod Kumar Dubey, the informant of the case, who claims to be the eye witness of the occurrence along with Constable Kishan Pal with whom he was on patrol duty and maintaining law and order at Chat Chauraha crossing near Dog Kitment Care Centre of Dr. D.N. Sabbarwal. The contention of learned counsel for the appellants that the appellants, who murdered the deceased were seen by the Constable P.W. 1 Pramod Kumar Dubey, who came on a motorcycle. He submits that his presence at the place of occurrence appears to be doubtful. He further argued that even if the informant P.W. 1 was present at the place of occurrence then it was not possible for him to identify the actual assailants, who shot dead the deceased because the place of occurrence is densely populated market area which appears to have substance. From the evidence of P.W. 1 it is evident that he has stated before the trial court that he was present at the place of occurrence with Constable Kishan Pal on a Patrol duty and was maintaining law and order situation as well as regulating the traffic at the Chat Chauraha crossing where the incident has taken place. He has further deposed that because the place of occurrence being a market place it is densely populated area and there were vehicles including cars and motorcycle parked and the people were also present in the market for the purpose of marketing etc. and moving on foot. He in his examination-in-chief has stated that at the place of occurrence there was sufficient source of light and he along with public in the market area have seen the assailants, who had come on a motorcycle to commit the murder of the deceased. He identified accused Chand Babu in the Court after seeing him and stated that on the date of incident Mohammad Sharif son of Haji Mohammad Yaseen was driving the motorcycle whereas accused Chand Babu was sitting on the pillion seat of the motorcycle but he in his cross examination has stated that on hearing the fire arm shot, he reached the place of occurrence after 4-5 minutes and at the time when he reached the place of occurrence large number of people gathered there. Thus, it is evident from his evidence that even in his examination-in-chief also he did not state as to which of the accused appellant has shot dead the deceased and moreover being the densely populated area of the market it was hardly possible for him to identify the actual assailants, who shot dead the deceased. It has come in his evidence that when he along with other Constable tried to chase the two miscreants, who were fleeing on the motorcycle after committing the murder of the deceased, the motorcycle skidded but the accused managed their escape good as there were narrow lanes in the market. It further transpires from his evidence that soon after the incident he had written a report Ex. Ka. 1 at the place of occurrence on the bonnet of a Maruti car and thereafter took the written report for lodging the F.I.R. at the police station Swaroop Nagar where he was posted as Constable and informed the said police station about the incident. It further transpires from his cross examination that the Station Officer of police station Swaroop Nagar had already reached the place of occurrence, who have received oral information from the public about the incident prior to his reaching back to the place of occurrence after informing about the incident to the concerned police station. So far as his evidence regarding one Shyam Lal Ghosh, who identified the deceased and took him to Hallet hospital after the police had arrived, on a car is concerned, it is noteworthy to mention here that Shyam Lal Ghosh, who could be the star witness of the incident was neither produced nor examined by the prosecution. The next submission of learned counsel for the appellant which he argued on the basis of the evidence of P.W. 1 is that it appears that after the incident the police on receiving of information visited the place of occurrence and thereafter sent the dead body of the deceased to Hallet hospital by Shyam Lal Ghosh and P.W. 1 Pramod Kumar Dubey and thereafter F.I.R. of the incident was lodged against unknown persons by P.W. 1 in consultation with the Station Officer of police station Swaroop Nagar. In this regard, he pointed out that it appears from the evidence of P.W. 1 that Shyam Lal Ghosh had reached the Hallet Hospital at 7:30 p.m. along with the dead body of the deceased and the said fact was not told by any one to P.W. 1 and when he was cross examined on the said point as to how he came to know about the said timing on which Shyam Lal Ghosh reached the hospital at 7:30 p.m. along with the dead body of the deceased it was stated by him that he was wearing a watch and further at that moment he was not present in the hospital on the basis of the said evidence it was argued by him that P.W. 1 had not accompanied Shyam Lal Ghosh to the hospital with the dead body of the deceased which was sent by Station Officer to the hospital on his arriving at the place of occurrence after the incident. He has also drawn the attention of the Court to another circumstance stating that the written report of the incident was registered at the police station itself in the presence of the Station Officer Arun Kumar Rai and thereafter chik F.I.R. was also prepared on the basis of written report and the ink of the written report Ex. Ka. 1 and the chik F.I.R. is same which goes to show that P.W. 1 has not written the report Ex. Ka. 1 at the place of occurrence as has been deposed by him though the suggestion to that effect has been denied by P.W. 1 in his evidence. It further transpires from the evidence of P.W. 1 that he in his cross examination has stated that after the incident when he identified the two accused appellants at the place of occurrence, he identified them on the second time in the Court at the time of giving evidence but it has come in the statement of Arun Kumar Rai Station Officer of police station Swaroop Nagar, who is the informant of case crime no. 129 of 2004 under section 307 I.P.C. and case crime no. 130 of 2004 under section 25 Arms Act against Chand Babu and case crime no. 131 of 2004 under section 25 Arms Act against Mohammad Sharif son of Haji Mohammad Yaseen that when the said accused were arrested by him then P.W. 1 and Constable Kishanpal accompanied the police team and they had identified the two appellants on 25.4.2004 thus it appears that the case which has been registered against the appellants under section 307 I.P.C. which is for the attack on police party in which no person has received injuries and also case was registered under section 25 Arms Act shows that the police falsely registered the case against the accused-appellants showing that they were arrested by the S.T.F. and Station Officer Arun Kumar Rai together on an information received from the police informer appears to be a paper work of the police and falsely roped the two accused-appellants. It has come in the evidence of P.W. 1 and P.W. 6 Ashok Kumar Station Officer and P.W. 7 Ratan Singh the informant of case under section 307 I.P.C. and 25 Arms Act and the Investigating Officer that as the murder has taken place in the market place which is densely populated there was pressure on the administration and the police to apprehend the miscreants, who have committed the crime and when they failed to arrest the real culprit they falsely implicated the two appellants, who were locked in the police lockup of police station Swaroop Nagar. It has been further suggested that after the incident some people, who had left their cars and vehicles had come to take it back and they were taken by police from the police station Swaroop Nagar where the present case was cooked and the two accused-appellants, who were already in the police lock up were implicated in the present case though the said suggestion given by the defence to the said prosecution case had been denied. P.W. 1, who is the solitary eye witness of the occurrence, has not stated as to who was the actual assailant, who shot dead the deceased and from his evidence it is only apparent that he identified the two appellants coming on a motorcycle and motorcycle was being driven by Mohammad Sharif son of Haji Yaseen and Chand Babu was sitting on pillion side of the motorcycle. When the accused appellants were arrested by the police on 25.4.2006 by the police team headed by P.W. 6 Ashok Kumar Rai and the S.T.F. team then the country made pistol of 312 bore was recovered from Chand Babu along with live cartridges which he was carrying in his right hand and cartridges in his back. Similarly from Mohammad Sharif son of Haji Mohammad Yasin country made pistol of 315 bore and the live cartridges were recovered. In the confessional statement made by the two accused-appellants, the appellant Chand Babu confessed that it was he, who shot dead the deceased with country made pistol and the appellant Mohammad Sharif son of Papai had given Rs. one lac to them for committing the murder of the deceased Ashok Sabbarwal, who was having some enmity with one Virendra Singh and the amount which was paid to them they offered to get it recovered from their houses. From the pointing out of Chand Babu Rs. 30,000/- was recovered from his house and Rs. 31,700/- was recovered from hand bag in the house of Mohammad Sharif son of Haji Yaseen. It has been argued by learned counsel for the appellants that the recovery of the country made pistol of 315 bore which is said to have been made from Mohammad Sharif appears to be absolutely false on the face of it as there is no independent witness of the said recovery except the police personnel. Moreover the same was not used in the crime. So far as country made pistol of 312 bore which was said to have been recovered from accused Chand Babu is concerned, it also is a false recovery as one of the empty cartridges which was recovered, is said to have been fired from the said pistol. Moreover, the recovery of country made pistol of 312 bore also cannot be connected with the crime of murder as the 7 small metallic pellets recovered from the dead body of the deceased shows that the country made pistol which was recovered from Chand Babu was not used in the murder of the deceased as there is no report of the Ballistic Expert that the 7 small pellets recovered from the dead body of the deceased tallied with the 312 bore pistol recovered from appellant Chand Babu. It was further pointed out by learned counsel for the appellant that the present case with regard to conspiracy to commit the murder of the deceased by Mohammad Sharif son of Papai along with accused GulamNabi is absolutely false one as the same has not been proved by the prosecution and the co-accused Mohammad Sharif son of Papai has been acquitted by the trial court which further goes to show that the money which was said to have been paid to the two appellants by Mohammad Sharif son of Papai is absolutely false and fictitious story just to implicate the appellants and work out the murder of the deceased Ashok Sabbarwal. The learned counsel for the appellants has drawn the attention of the Court towards the manner in which recoveries were put to the appellant in their statements under section 313 Cr.P.C. which further goes to show that serious prejudice is caused to the two appellants, who have denied the recovery of two country made pistol and the money recovered from them and the trial court has only mention the exhibits number regarding the recovery along with other documents relied upon by the prosecution was put to them though they have denied but such casual approach permitted by the trial court in putting the circumstance against the accused by the prosecution shows that it was mere a formality which has been done by the prosecution as well as by the trial court which too is not in accordance with law and against the settled proposition of law as laid down by the Apex Court in catena of judgments, thus the impugned judgment suffers from infirmity.
42. After scanning the evidence of P.W. 1 and other prosecution witnesses and perusing the same, it cannot be said that the two accused-appellants were involved in the murder of the deceased and particularly Chand Babu, who is said to have shot at the deceased. There is no evidence against him except his confessional statement. P.W. 1 has also not stated that it was the appellant Chand Babu, who had shot dead the deceased. The evidence of P.W. 1 does not inspire confidence as it cannot be said to be wholly reliable witness nor his presence at the place of occurrence can be said to be well established nor he would be able to identify the real culprit in such a densely populated market area where the peoples were moving on foot for the purpose of marketing and the vehicles are parked in haphazard manner particularly when two accused-appellants would come on a motorcycle and commit the murder of the deceased, who was driving his Santro car. The appellants are said to have no criminal history and their false implication in the present case cannot be ruled out by the police and the S.T.F., who have arrested them in a police encounter case. So far as recovery is concerned, it would be highly improbable that the person would carry the pistol in right hand and move freely in order to expose himself before the police and that too the weapon of assault which was used in the crime two days ago. It is quite possible that the murder has taken place in a busy market place and the police was under pressure to work out the said murder as it has come in the evidence of P.W. 1 as well as other prosecution witnesses that they were suggested that on account of pressure on the administration of the public, the present case had been fabricated and concocted against the two appellants though they denied the same. The other accused GulamNabi, who had criminal history and died during the pendency of trial and in his confessional statement also it has come that he along with one more person had also gone at the place of occurrence along with two appellants and it might be possible that he may be the actual culprit, who was having criminal antecedents. Thus from the foregoing discussion, the benefit of doubt is given to the two accused appellants as their involvement in the present case has not been proved beyond reasonable doubt by the prosecution by a cogent evident, hence the conviction and sentence of the appellants by the trial court under section 302/34 I.P.C. is hereby set aside.
43. As we have already set aside the impugned judgment and order of the trial court by which the appellants have been awarded death sentence, the reference made for confirmation of the death sentence of the appellants is also set aside.
44. The appellants are stated to be in jail. They shall be set at liberty forthwith, if not wanted in any other criminal case.
45. It is further directed that the appellants shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.
45. Both the aforesaid appeals stand allowed.
46. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Dated:-15.04.2019
Shiraz