Rajasthan High Court - Jaipur
Mohd. Hanif And Ors. vs State Of Rajasthan on 14 November, 2003
Equivalent citations: RLW2004(3)RAJ1704, 2004(1)WLC560
JUDGMENT Khem Chand Sharma, J.
1. Since these two, appeals arise out of the judgment in Sessions case No. 10/94, therefore, both the appeals are being decided by a common judgment.
2. The aforementioned two appears under Section 374 Cr.P.C. arise out of the judgment of conviction and order of sentence dated 19.11.1999 passed by the Special Judge (Communal Riots Cases/Man Singh Murder Case), Jaipur whereby the learned trial Judge convicted the four appellants for offence under Sections 302, 120B IPC and sentenced each of them to undergo life imprisonment and to pay fine of Rs. 5000/-each. In default of payment of fine to further undergo simple imprisonment for one year,
3. Succinctly stated the facts of this case are that on 10.8.91 at 12:30 AM, Iqbal Ahmed (PW 25) made an oral report at the Police Station Shastri Nagar, Jaipur alleging that on 9.8.91 at about 11.00 P.M. he and Iqbal son of Noor Mohammad Qureshi went on Motor Cycle to the house of Iqbal situated in Bhindon Ka Rasta on a motor cycle, where he left the company of Iqbal and went to his house, Later-on, Iqbal came to him and informed that Mahesh had told that he will hand over possession of the house to some one else, if Iqbal fails to return up to 2 O'clock in the night. Thereafter both of them left for Sikar house on a motor cycle and reached the house of Chhitar Hanuman. Bhanwar Singh opend the gate and said that he will find out whether Mahesh was present in the house or not. There-upon, Qureshi told that he himself will be coming to find out the presence of Mahesh and then Iqbal Qureshi went upstairs, were son of Mahesh informed that Mahesh was not present in the house. Iqbal Qureshi then told Bhanwar Singh that if Mahesh Comes, he be detained at the house itself. Leaving the message, both of them went to purchase cigarette and left the place on the motor cycle. Iqbal Qureshi was driving the motor cycle, while Iqbal Ahmed was sitting on the rear seat. It was alleged that as soon as they reached near the power house road, two boys who were already sitting there on the chairs, asked them to stop the vehicle. As per the complainant, soon the vehicle stopped, one of the persons opened gun fire on the chest of Iqbal Qureshi from a very close distance, as a result thereof Iqbal Qureshi fell down The complainant further alleged that he chased the accused and saw one person running towards the house of Ajij, while another was running in straight direction. The complainant then proceeded towards the house of Ajij. But both the accused disappeared. He got awakened one Raju and then both of them went to Qureshi, who was breathing. Thereafter, they went to the house of hanif, got him awakened and them came to the place of incident in a vehicle. By that time, Deputy Superintendent of Police took Iqbal Qureshi to the Hospital. They also went to the hospital and then came to know that Iqbal Qureshi scummbed to the gun shot injury. Lastly, the complainant alleged that the shooter was dwarf and wearing white shirt, while another accused was also wearing white shirt.
4. On the basis of above oral report, the police registered a criminal case vide FIR No. 326/1991, Ex.P.24 for offence under Section 302 IPC and proceeded with the investigation.
5. In the course of investigation, the police rushed to the place of incident and prepared site plan, Ex.P6 and seized controlled soil and blood stained soil from the place of incident vide seizure memos Exs. P7. The inquest report (Ex.P.16) of the dead body was prepared and the blood stained clothes of deceases were also seized vide seizure memo Ex. P17. A motor-cycle No. DDW 1713 of blue colour having blood stains on its fuel tank and handle was seized vide memo Ex.P.11.
6. Accused Asif was arrested on 10.2.1995, vide arrest memo Ex.P1. He furnished information under Section 27 of the Evidence Act as regards recovery of a Deshi Katta. Pursuant to his information Ex.P.30, one Deshi Katta was recovered by the police at the instance of accused Asif vide memo Ex.P.3. Accused Mahesh Chand Gupta, Mohd. Hanif and Abdul Ajij were taken into custody on 30.10.91, 29.9.91 and 27.9.91 vide arrest memos Exs. P.20, 21 and 22, respectively. One Maruti Van No. DDV 7834 was also seized by the police vide memo Ex.P2.
7. The post mortem on the dead body was conducted by PW 19 Dr. H.L. Bairwa, who prepared the post mortem report Ex.P.23. On dissection of body the Doctor found 7 injuries. All the injuries were found to be ante-mortem in nature. !n the opinion of Dr. H.L. Bairwa the cause of death was shock and hemorrhage brought about as a result of injuries to vital organs. Dr. Bairwa noticed injury No. 7, punctured lacerated wound of size 3 cm x 1-1/2 cm placed on left side front of chest and 0.2cm above and medial to left angle over 4th intercostal space on mid mammary line of chest obliquely placed and oval in shape with collor of abrasion present and blackening present around the would with tattooing present in an area of 15 x 11 cm of left side front chest around the wound more on right side, medial and lower sides of wound and few tattooing marks present over left side upper part of abdomen and singeing of hairs around the would present and the margins are invested placed. On dissection of chest and abdomen cavity the wound track going through left side 4th intercostal space near costo-chondal junction obliquely placed of size 3-1/2 cm x 2 cm and on further exploration, track going downwards oblique through crossing the media-sternum and pericardium and lower part of both verticals of heart from left to right side through and through, the size 5 x 3 cm and with haemopericardium 150 CC about clotted blood. Then track going downwards obliquely crossing the centre part of diaphragm through and through. Then track going to left lobe of liver from supero anterior surface to infero- posterior surface of liver through and through of size 6 x 4 cm each of size. Then track going downwards and oblique after piercing the peritoneum. There is haemop-eritoneum containing about 1000 CC of blood. On further exploration, track going downwards oblique on right side of abdomen piercing right side peritoneum near kidney right side which is also pierced the right kidney through and through upper part of kidney and reaching upto right retroperitoneal region and huge amount of ante-mortem haemotoma present and bullet recovered from this space.
8. After completion of entire formalities as to the investigation, the police submitted a charge sheet against the accused appellants in the court of Additional Chief Judicial Magistrate, No. 6, Jaipur City, Jaipur. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions.
9. The learned trial Judge, on the basis of evidence and material collected during investigation and placed before it and after hearing arguments of counsel for the accused and the Public Prosecutor, framed charges against six accused, including four appellants. The accused denied the charges and claimed trial.
10. In the course of trial, the prosecution, in order to prove its case, examined as many as 31 witnesses and got exhibited some documents. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. The accused did not examine any witness in their defence.
11. At the conclusion of trial, the learned trial Judge found the prosecution case as alleged proved against the present appellants and accordingly, vide its impugned judgment and order convicted and sentenced the appellants in the manner stated hereinabove. Feeling aggrieved by the judgment of conviction, the appellants have preferred the present appeal.
12. We have heard learned counsel for the accused appellants, learned Public Prosecutor and Mrs. Naina Saraf appearing for the complainant and have gone through the impugned judgment and the evidence and material available on record.
13. Mr. S.S. Naruka, learned counsel for appellant Asif argued that the weapon of offence was recovered after 9 days of arrest of accused Asif and therefore, the recovery has no nexus with the bullet recovered from the wound of deceased.
14. We have considered the above argument. No doubt true that 'Katta' the alleged weapon of offence was recovered on the information furnished by appellant Asif after 9 days of his arrest and that too from a place accessible to all and sundry after more than 3-1/2 years of the incident. It appears from the record that the prosecution has not been able to place on record the report of Forensic Science Laboratory so as to establish nexus between the 'Katta' recovered on the information of accused Asif and the bullet recovered from the wound of deceased. Thus, the recovery of weapon of offence is of no help to the prosecution and that this circumstance is not sufficient to connect accused Asif with the crime,
15. The principal argument of the learned counsel appearing for the appellants is that the incident had taken place in the night of August 9, 1991 and appellant Ashif S/o Mesa Allah was arrested only on 10.2.1995 i.e. after more than 3-1/2 years of the incident. He remained in police custody for a week and was lodged in jail on 20.2.1995. As per the prosecution case the complainant who had witnessed the incident had seen the accused hardly for 1-2 seconds while firing gun shot at the deceased. The test identification parade of accused Ashif was held after a lapse of more than 3 & 1/2 years of the incident. In these circumstances, the test identification is of no help to the prosecution, inasmuch as it is highly difficult and beyond imagination that one has the capacity to recapitulate what he had seen 3-4 years earlier and that too, hardly for 1 or 2 seconds. Learned counsel argued that the trial court has committed serious error in relying upon the testimony of complainant Iqbal Ahmed. In support of his argument learned counsel has relied upon a decision of the Apex Court in State of M.P. v. Ghudan, 2003(7) Supreme 352.
16. We have considered the above argument. It is well settled that identification tests do not constitute substantive evidence. The test identification parade is primarily meant for investigation purposes and it is expected of the investigation agency that test identification parade should be conducted soon after the arrest of the accused so as to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade is held. The object behind holding test identification parade is simply to test the memory of the witnesses who claim themselves to have seen the offender at the time of committing offence and to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the incident.
17. Before we proceed to consider the above argument, we deem it appropriate to first understand the evidentiary value of the test identification parade and the effect of delayed test identification by the witnesses having seen the culprit at the time of occurrence hardly for minutes or seconds. In Jaywant Dattatrya Suryarao v. State Maharashtra, 2001(10) SCC 109, their Lordships of the Supreme Court, while dealing with evidentiary value of test identification parade, observed as under:-
"Substantive evidence of a witness is his evidence in court. The identification parade is not primarily meant for the court but is meant for investigation purposes. It serves two purposes, namely, to enable the witness to satisfy that the prisoner whom he suspects is really the one who was seen by him in connection with the commission of the crime and for satisfying the investigating authority that the suspect is the real person whom the witness had seen in connection with the said occurrence, in case when the evidence is cogent, consistent and without any motive, it is no use to theoretically imaging that as the witness has seen the accused for a few minutes it would be difficult for him to identify. It always depends upon one's capacity to recapitulate what he has seen earlier. Power of perception and memorising differs from man to man and also depends upon the situation. Finally appreciation of evidence would depend upon the strength and trustworthiness of witnesses."
18. Again in Abdul Weheed Khan alias Waned and Ors. v. State of A.P., 2002 (7) SCC 175, their Lordships observed as under:-
"Identification tests do not constitute substantive evidence. They are primarily meant for the purposes of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The while idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the object of holding an identification parade during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 and the Evidence Act, This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond their control and there is some delay, it cannot be said to be fatal to the prosecution.
19. Their Lordships of the Apex Court had also an opportunity to deal with similar situation in Dana Yadav alias Dahu and Ors. v. State of Bihar, 2002(7) SCC 295. Their Lordships held as under:-
"Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable dispatch for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence of the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits."
20. Reference may also be made to a decision of the Apex Court in Daya Singh v. State Haryana, 2001 (3) SCC 468, wherein their Lordships observed as under:-
"... But, where evidence is cogent, consistent and without any motive, it is no use to imagine and magnify theoretical possibilities with regard to the state of mind of the witnesses and with regard to their power of memorising the identity of the assailants. Power of perception and memorising differs from men to man and also depends upon situation. It also depends upon the capacity to recapitulate trustworthiness of the witnesses who have identified the accused in the court earlier. Further in the present case identification in the court was out of 14 persons. That itself Would lend credence to identification by the witnesses. For this purpose, learned Judge has rightly observed to the effect that physical features of the accused must have been embedded in the memory of Jaswant Kaur. From the evidence and the cross examination of these two witnesses, it is apparent that they gained enduring impression of the identity of the accused during the incident."
21. From the law propounded by the Apex Court in the cases referred to above, the clear position that emerges out may be stated below:-
(i) The identification tests do not constitute substantive evidence and it can be used for the purposes of corroboration with the statements of witnessed in the court.
(ii) The main object of holding identification parade during investigation stage is to test the memory of the witnesses based upon first impression and also the enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the incident, and
(iii) Where evidence is cogent, consistent and without any motive, it no use to imagine and magnify theoretical possibilities with regard to the State of mind of the witnesses and with regard to their power of memorising the identity of the assailants.
22. In this view of the matter, we would first evaluate the evidence of PW 25 Iqbal who is said to have witnessed the incident and has identified the accused in the test identification parade and in the court. According to this witness, he along with Iqbal left his house and reached the house of Iqbal Qureshi in Bhindo-ka-rasta where he found Shafi standing infront of the house of Iqbal. While he was proceeding to his another house in Khajane-walon-ka rasta, Shafi raised voice "Iqbal Bhai Rukna", Since the name of this witness and that of his friend was common, therefore the voice attracted his attention also. However, Shafi did not want to talk to this witness, Thereafter, his friend Iqbal Qureshi called him while he left to his house. He went to Iqbal Qureshi who informed that Shafi stated that Mahesh had come and informed about handing over of key of the house and that he would be vacating the house between 12 to 2 in the night. He himself did not talk Shafi. Thereafter, the witness alongwith Iqbal Qureshi went to the house of Hanman Chhitar at Sikar House, where Banwar Singh who was residing there at the ground floor met them. Iqbal Qureshi asked Bhanwar Singh about the presence of accused mahesh, but Banwar Singh showed his unawareness. Iqbal Qureshi then went upstairs to enquire about Mahesh and came back. He informed that Mahesh would not be vacating the house and that they were unnecessarily called. Iqbal the decided to stay there for 10-15 minutes to wait for Mahesh. Iqbal then asked the witness to got towards Power House so as to purchase cigarette. Iqbal Qureshi was driving the vehicle and witness was sitting at the rear seat. At that time the road light were on. When they proceeded further towards Power House, they saw two boys standing at the crossing and one of them intercepted, The witness further stated that soon the motor cycle stopped, one of the boys, who was dwarfish and standing at the right side of road fired at the chest of Iqbal Qureshi. The shooter was healthy and the another thin boy came at the left side of the road. The witness clarified that the dwarfish healthy boy had intercepted the motor cycle and did not come at the left side of the road and escaped from the scene after firing gun shot. The another boy also ran away. Out of the two, the witness had identified accused Asif. Soon after the bullet hit, Iqbal asked the witness to apprehend the accused. He chased the accused on his vehicle, The dwarfish healthy boy ran in the street. Thereafter the witness went to Raju's house situated in Sikar House. He got Raju awakened and informed Raju and his brother about the incident of firing gut shot at Iqbal. He also informed them that Iqbal was lying there and that he has to be taken to the hospital. He also went to the house of Ajij, but his nephew (Bhanja) Asfaq informed Asfaq was not present. Then he rushed to the house of Hanif, where he found Hanif sleeping. On informing Hanif about the incident, he accompanied him in his car to the place of incident.
23. The witness further stated that Deputy Superintendent of Police took him to Police Station in the Police Jeep where the lodged the report and narrated the entire incident. He admitted his signatures from 'C' to 'D' and 'E' to 'F' on the FIR. According to him, prior to the day of recording his statement, he had identified accused Asif in the Jail. The witness clarified that this is the person whom he had identified in Jail as Asif.
24. In cross examination on behalf of accused Ashif, the witness deposed that he had orally informed the police about the description of accused including his height and the clothes worn by him etc. The Katta was in the right hand of accused. According to him, since the police did not enquiry about the road light and therefore, he did not mention the fact as to the road light in his report. Even at the time of preperation of site plan he did not inform the police that road light was on as the police did not ask him. The witness stated that he had seen the face of the person firing shot, from front side. He specifically denied the fact that accused Asif was shown to him at the police station continuously for 7-8 days. He denied to have any knowledge about the date and place of arrest of accused Asif. In the identification parade, all the accused were of the same height. He did not find anything affixed either on the faces or hands of the accused included in the identification parade and all the accused were of the age group of 30-35 years. He stated that it was wrong to say that accused Asif informed the Magistrate that he was shown to the witnesses 7-8 time while at Police Station.
25. PW 25 Iqbal Ahmed, an eye witness of the incident was cross examined at length, but nothing could be elicited so as to doubt his testimony. The testimony of this witness could not be shattered in cross examination. Therefore, there appears to be no reason to disbelieve or discard his testimony. In our considered view this witness is reliable, trustworty and worthy of credence. The trial court was thus right in placing reliance on the evidence of PW 25 Iqbal Ahmed in arriving at a conclusion of guilt as against appellant Asif.
26. From the evidence of PW 25 Iqbal Ahmed it stands established that while deceased along with this eye witness was going towards Power House on a motor cycle, accused appellant Asif and one more already standing at the road crossing waylaid them and accused Asif who was armed with a Katta in his right hand, fired at the chest of deceased and thereafter Asif along with his associate escaped from the scene.
27. It is also evidence from the evidence on record that accused Asif was kept 'Baparda' before being subjected to identification test. Appellant Asif was arrested on 10.2.1995 and the identification parade was held on 28.2.95, Thus admittedly, the identification parade was held after a lapse of 17 days, but this fact alone is not sufficient to doubt the identification of accused. What is important is that accused must be kept Baparda till the identification parade is held. There is no evidence at all to suggest that accused. What is important is that accused must be kept Baparda till the identification parade is held. There is no evidence at all to suggest that accused, at any point of time, was shown to PW 25 Iqbal Ahmed till the identification parade was held on 28.2.95 in the presence of a Magistrate. PW 20 Nand Sharma, Additional Chief Judicial Magistrate took all reasonable precautions while conducting the test identification parade.
28. That apart, undoubtedly, accused appellant Asif is a resident of Uttar Pradesh. Nothing has come in evidence to suggest that there was previous enmity in between the eye witness and the accused so as to infer any motive of false implication of the appellant by this eye witness. Even appellant Asif himself could not offer any explanation as to his false implication at the instance of PW 25 Iqbal Ahmed.
29. As regards the argument of learned counsel for the appellant that PW 25 Iqbal could not have, in any manner, identified the accused after a lapse of more than 3 & 1/2 years, more particularly when the witnesses had an opportunity to see the accused hardly for few seconds while committing offence, suffice it to say that it always depends upon one's capacity to recapitulate what he had seen earlier. It is of no use to magnify the theoretical possibilities to arrive at a conclusion that it would be difficult for the witness to identify the culprit as he had seen him for few seconds. The evidence of PW 25 Iqbal Ahmed being cogent, consistent and without any motive, it would be of no use to imagine and magnify theoretical possibilities with regard to the state of mind of this witness and with regard to his power of memorising the identify of the appellant. As already stated above, all precautions were taken after the arrest of appellant Asif till the identification parade was held so as to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. It must therefore, be concluded that PW 25 Iqbal Ahmed, who had witnessed the crime has identified appellant Asif from the midst of other persons without there being any aid or any other source. In doing so, we find full support from the case laws cited above.
30. Mr. S.S. Naruka, learned Advocate appearing for appellant Asif has also stressed upon non-availability of light at the place of incident. He argued that the alleged eye witness had no opportunity to see the face of the appellant as there was no light. PW 25 has categorically stated that there was road light. A glance at the site plan Ex.P.6 also indicates the presence of electric polls at the place of incident. PW 16 Ashu Singh, Investigating Officer has deposed that he had prepared the site plan, but he was not confronted with the site plan, but he was not confronted with the site plan, but he was not confronted with the site plan, which mentions the existence of electric Polls at the place of incident. We also do not find any question having been put to the Investigating Officer about the availability of light at the electric polls. Therefore, this argument is of no consequence and hence rejected. We have also gone through the judgment of the Apex Court in State of M.P. v. Ghudan (supra) relied upon by the counsel for the appellant and we are of the firm view that this case has no application to the facts of the present case, as the Apex Court did not find the features existing which assisted the witness in identifying the accused in the test identification parade, inasmuch as the Investigating Officer omitted to show the tube light at the place of incident in the sketch, whereby the witness claimed to have seen the assailant.
31. For the reasons aforesaid, we affirm the finding of guilt arrived at by the trial court as against appellant Asif and his conviction for offence under Section 302 IPC simplicitor deserves to be maintained.
32. The learned trial Judge has convicted other three appellants, namely, mohd. Hanif, Mahesh Chand Gupta and Abdul Ajij for offence under Section 302 IPC with the aid of Section 120B IPC. As regards appellant Mahesh, the only ground prevailed with the trial court in holding him guilty for hatching conspiracy with other accused was the conduct of accused Mahesh, inasmuch as he had no intention to vacate the house in question and that be informed the father of deceased to communicate this fact to the deceased. He had promised to vacate the house and hand over the keys in between 12 to 2 in the night but he did not do no. He told Noor Mohd. father of the deceased and PW 6 Shafi Mohd. to send deceased Iqbal Qureshi to Sikar House, but when deceased reached there, accused Mahesh was found absent from his house, whereas he ought to be present in the house. As regards conviction of appellants Mohd. Hanif and Ajij is concerned, the trial Court has relied upon the evidence of PW 21 Nisar Ahmed and PW 26 Imamuddin and has arrived at a finding that Hanif and Ajij had enmity with Iqbal. It also relied upon the fact that accused Ajij was not found present in his house just after the incident and accused hanif closely kept a watch on the entire situation after the commission of crime and went to the hospital. The trial court also arrived at a conclusion on the basis of their testimony that in a meeting held at 'Musafir-khana', accused Hanif used threatening language. It further came to the conclusion that both gave threatening of dire consequence through Isaq.
33. PW 6 Shafi Mohd. was examined to prove that accused Mahesh asked him to send the deceased as he decided to hand over possession of the house. PW 11 Rayaz Asfaq was examined to prove enmity between Hanif and Ajij on the one hand and deceased Iqbal Qureshi on the other and that accused Hanif and Ajij asked him to accompany Hamid to Meerut and get him in touch with accused Asif so that deceased Iqbal Qureshi could be murdered and for that purpose he went with Hameed and contached accused Asif. Asif came with them to Jaipur and stayed in the house of Hanif. After staying there for 2-3 days, Asif went back to Meerut. Again after 15 days Hanif and Ajij asked him to go to Meerut and come along with Asif, for which he refused. On 7.8.91 Hamid and Saeed came in a Maruti Van from Meerut along with Asif and Kasim. He became frightened to see Asif and went to Meerut in the same Marutl Van on 8.8.91. After three days, Asif informed him in Meerut that they had murdered Iqbal. PW31 Yunus has been examined to prove that on 7.8.91 Hamid and Saeed hired his Maruti Van No. DDV 7834. They along with Asif and Kasim came from Meerut to Jaipur in his Van and stayed in the house of Hanif and Hanif paid him Rs. 800/- as fare of the Van. He went back to Meerut. After 3-4 days, Asif met him in Meerut, who informed him that they had murdered Iqbal. But during trial, Yunus has not supported the prosecution story and he was declared hostile. Thus, PW 6 Shafi Mohd. and PW 11 Riyaz have not supported the prosecution case and have been declared hostile.
34. As per the prosecution case, there was a house bearing No. A-11 situated in Sikar House. The owner of half portion of this house was PW 9 Hanuman Sahay and owner of remaining half portion was PW 10 Chhital Mal. Appellant Mahesh and others were tenants in the said house and was in occupation of four rooms and two kitchens. PW 9 hanuman Sahay has deposed that Iqbal informed him that one hanif and Rajendra Vijayvargiya have decided to purchase the entire house for a consideration of Rs. 9,21000/- and also handed over two cheques of Rs. 75,00/- and 76000/-, one in the name of this witness and another in the name of his brother. However, the transaction could not be finalised for about 304 months and accordingly, he and his brother returned both the cheques to Iqbal. Similarly, PW 10 has also deposed that since transaction could not be finalised and therefore his brother (Hanuman Sahay) returned both the cheques to Iqbal. In the light of the evidence of these two witnesses, there was no occasion for accused Mahesh to have asked any one about vacation of house or handing over of keys. However, it appears that deceased Iqbal, in over to get the house vacated asked the tenants to vacate the house as is evident from the statement of PW 14 Bhanwar Singh, tenant in the house in question.
35. PW 11 Riyaz (a) Ganga has resiled from what he had stated before the investigating agency. He deposed that he was engaged in business along with accused Hanif and Ajij. The witness specifically denied to have any knowledge about enmity between Hanif and Ajij on the one hand and deceased Iqbal on the other, nor these two accused, according to this witness, ever criticized Iqbal.
36. PW 12 Allanoor has also denied to have any knowledge about the enmity between these two accused and deceased Iqbal. He has simply deposed that there was some transaction of money between Hanif and Ajij on the one hand and Iqbal deceased on the other and they talked together in Musafir - Khana. Iqbal agreed to repay the money to Ajij. PW 21 Nisar Ahmed has also deposed that it was decided in the Musafir-khana that Iqbal would pay the price of the house to Hanif. Thereafter, the relations of Iqbal with accused were cordial.
37. PW 23 Noor Mohd., father of deceased Iqbal has deposed that when the reached the police station, he found accused Hanif and Iqbal Ahmed already present there. According to this witness, enmity between his son Iqbal and accused Hanif, Ajij, Rashid and Mahesh and started while they were in jail in some criminal case. He deposed that prior to murder of his son, accused Ajij and sent Ishaq, his brother-in-law to the shop of his (Noor Mohd.) son in law and Ishaq told his son in law to make understand deceased Iqbal, otherwise he will met the same fate as that of Ram Kishan Khandelwal. On the next morning, accused Ajij, Hanif, Hameed and Saeed came to him and called his son Iqbal and then all of them talked each other. Thereafter Hanif etc. told him to make Iqbal understand, else they would collect entire Mohalla. On the second day some meeting was convened and five persons decided that deceased Iqbal shall clear off the dues of Ajij etc.
38. PW 26 Imamuddin, brother-in-law of deceased Iqbal has deposed that one Ishaq brother in law of accused Ajij came his house during summer days and told his wife that make her brother Iqbal understand and that Iqbal should not visit Sikar House. According to this witness, Ishaq also come to his shop and repeated the same threat as was staled before his wife.
39. On a careful scrutiny of the above evidence, there appears to be nothing so as to suggest that accused Mahesh, Hanif and Ajij hatched conspiracy with appellant Asif, the only fact that appellant Mahesh called the deceased to Sikar House to hand over the possession of the house, but remained absent from the house when deceased reached there as also the fact that Ajij was not found present in his house just after the incident took place and that accused Hanif closely kept in view the3 event which took place just after the incident and rushed to the hospital cannot, in our considered view, be said to be sufficient to infer involvement of accused Mahesh, hanif and Ajij so as to fasten them with the liability of Section 120B IPC. The only fact that emerges from the evidence discussed above is that accused Hanif and Ajij were inimical to deceased Iqbal but that does not mean that they were members of conspiracy along with appellant Asif. It has come on record through the statement of PW 25 Iqbal Ahmed that after the incident he called Hanif from his house.
40. To prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. Where the factum of conspiracy is sought to be inferred from the circumstances, the prosecution has to show that the circumstances give rise to a conclusion or irresistible inference of an agreement between two or more persons to commit an offence. A few bits here and few bits there on which the prosecution relies cannot be held adequate for connecting the accused with the commission of crime of criminal conspiracy. In the case at hand, the alleged circumstances relied upon by the prosecution to show the existence of conspiracy are such, which even when believed cannot be held to have proved beyond reasonable doubt the involvement of appellants Mahesh, Hanif and Ajij in the commission of crime.
41. Thus, the prosecution, in our considered view, has miserably failed to prove beyond doubt that accused appellants Mahesh, Hanif and Ajij were involved in hatching conspiracy with appellant Asif so as to done away with the life of deceased Iqbal in the manner alleged in the charge sheet, in this view of the matter, the conviction of appellants mahesh. Hanif and Ajij cannot be sustained and is liable to be set aside.
42. Resultantly, while setting aside the conviction of appellant Asif under Section 120B IPC, we maintain his conviction under Section 302 IPC and the sentence awarded to him thereunder. The conviction of appellants Mahesh Hanif and Ajij under Section 302/120B IPC is set aside and they are acquitted of the charge. Appellants mahesh, Hanif and Ajij are already on bail. They need not surrender to their bail bonds, which are hereby discharged.