Asif Mamu Vs. State of
M.P. [2008] INSC 1943 (14 November 2008)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO. 949 OF 2007 Asif Mamu ...Appellant State of
Madhya Pradesh ...Respondent WITH CRIMINAL APPEAL NO. 718 OF 2007 AND CRIMINAL
APPEAL NO. 838 OF 2007
B.N. AGRAWAL, J.
1.
Criminal
Appeal Nos. 949 and 838 of 2007 arise out of the impugned common judgment of
conviction rendered by the High Court after reversing the order of acquittal
passed by the trial court in Sessions Trial No. 379 / 1996, whereby, appellants
Asif Mamu and Mukhtiyar Malik @ Javed, besides accused Rajiulla Khan and Sheru
@ Sher Khan Nepali [in short "Asif", Mukhtiyar",
"Rajiulla" and "Sheru", respectively] were acquitted. Criminal
Appeal No. 718 of 2007 arises out of the said common judgment of conviction
passed by the High Court after reversing the separate judgment passed by trial
court in Sessions Trial No. 383/96 acquitting eight accused persons, namely, 1
Muzaffar Hussain @ Munne Painter, Mazhar Hussain [in short, "Munne
Painter" and "Mazhar", respectively], Badshah, Sadiq, Sajid,
Haseen @ Mohasin, Guddu Jadugar @ Mehtab @ Ganja [in short, "Haseen"
and "Guddu", respectively] and Salim Kela. These two sessions cases
were case and counter case, tried one after the other by the same court,
separate evidence was recorded therein and disposed of by separate judgments.
As such, we proceed to consider cases of accused persons in the two trials
separately.
Criminal Appeal Nos.
949 and 838 of 2007
2.
Asif,
the sole appellant in Criminal Appeal No. 949 of 2007 and Mukhtiyar, who is
also the sole appellant in Criminal Appeal No. 838 of 2007, and Raziulla,
appellant in Criminal Appeal No. 837 of 2007 along with accused Sheru were tried
and acquitted of the charges by judgment rendered by the trial court. The State
of Madhya Pradesh filed an appeal before the High Court against the said order
of acquittal, during the pendency of which accused Sheru died, as such the
appeal against him abated. So far as the other three accused persons are
concerned, they have been convicted by the High Court under Section 302/149 of
Indian Penal Code [for short `IPC'].
Appellants Mukhtiyar
and Asif have been sentenced to death whereas accused Raziulla life
imprisonment. All the three accused persons have been further convicted under
Section 148, IPC and sentenced to undergo rigorous imprisonment for a period of
three years and to pay a fine of Rs. 10,000/- each, in default to undergo
further rigorous 2 imprisonment for a period of six months. Appellant
Mukhtiyar has been also convicted under Section 25 (1B) of the Arms Act and
sentenced to undergo rigorous imprisonment for a period of three years and to
pay fine of Rs. 10,000/-, in default to undergo further rigorous imprisonment
for a period of six months. All the sentences, however, have been ordered to
run concurrently. Challenging their convictions the three accused persons filed
separate appeals by special leave. As accused Raziulla died during the pendency
of appeal, Criminal Appeal No. 837 of 2007 filed by him abated and consequently
on 5th August, 2008 an order of abatement of the said appeal was recorded by
this Court. Thus, we are required to decide the two appeals filed by appellants
Mukhtiyar and Asif.
3.
Prosecution
case in short was that 10/07/1996 was the date fixed in Sessions Trial No.
379/1995 in the court of the 3rd Additional Sessions Judge, Bhopal for
evidence. The said case related to causing bullet injury by Mukhtiyar, Sheru
and Asif on the leg of one Munne Painter who arrived court premises on that day
at 10.30 am along with his witnesses viz., Munnu, Rais Nai, Saleem Baba, Saleem
Bucha, Babu Bhai, besides others and they sat in the gallery outside the
courtroom of the 3rd Additional Sessions Judge, which was on the first floor of
the building of the said courthouse, where accused Mukhtiyar, Sheru, Asif and
one boy, who was wearing red shirt, [in short, "red shirt boy"] were
sitting from before. At 11.45 am accused Rajiulla, who was an advocate and
uncle of appellant Mukhtiyar, came there and ordered to kill. Accused Asif and
the red shirt boy were armed with 3 knives. Accused Mukhtiyar and Sheru, who
were armed with revolvers, started firing from their respective weapons aiming
towards Munne Painter besides Saleem Baba and Saleem Bucha and in order to save
himself Munne Painter entered inside the courtroom of the 3rd Additional
Sessions Judge. As a result of firing by the aforesaid two accused persons,
Saleem Baba and Saleem Bucha received injuries and while Saleem Bucha fell down
in the gallery itself, Saleem Baba moved to the said courtroom, fell down there
and both of them succumbed to their injuries. According to the prosecution, the
accused persons, with the intention of putting pressure upon the members of the
prosecution party for changing their statement in the Sessions Trial No. 379 /
1995, in which witnesses had come to depose, conspired and made homicidal
attack on them.
Stating the aforesaid
facts, a written report was submitted by Munne Painter before the
officer-in-charge, Shahjahanabad police station in Bhopal town on the basis of
which First Information Report [for short `FIR'] No. 410/1996 was drawn up at
1.10 pm against five accused persons, namely, Mukhtiyar, Rajiulla, Sheru, Asif
and red shirt boy.
4.
Thereafter,
on the basis of statement of Rajiulla, who is accused in the present case,
another FIR was drawn up at the same very police station at 1.35 pm bearing FIR
No. 411 of 1996 for the prosecution of eleven accused persons, namely, Munne
Painter, Majhar, Saleem Baba [since deceased], Saleem Bucha [since deceased],
Saleem Kela, Badshah, Sadiq, Sajid, Guddu, Haseen and Assu Bambaiya 4
[absconding], which includes eight accused persons referred to above, in which
case allegations were that red shirt boy was inflicted injuries by knife by
accused persons of that case at the same time and place of occurrence and the
said boy, after being assaulted, was thrown by some of the accused persons of
that case from the first floor of the court building to the ground floor, who
succumbed to the injuries.
5.
Another
FIR was drawn up at the said police station being FIR No. 412 / 1996 under
Section 307, IPC against Saleem Kela, who was accused in FIR No. 411 / 1996, on
the statement of one Mohd. Rashid - auto driver, in which allegations were made
that when said Saleem Kela, after commission of the offence relating to which
FIR No. 411 / 1996 was registered, was fleeing away and when he was chased by
the Town Inspector, he boarded the said auto rickshaw asking the driver to
drive the same but on refusal caused knife injury upon him. Saleem Kela also
fired at the Town Inspector but the same did not hit him.
6.
On
the same day fourth FIR was drawn up at the aforementioned police station being
FIR No. 413/1996 under Section 307, IPC on the basis of the statement of Sharad
Charan Dubey, Inspector of Police attached to the concerned police station on
allegations that when the accused persons of FIR No. 411 of 1996 were coming
down through the stairs, he challenged them and accused Saleem Kela and three
other persons attacked him with dagger, as a result of which injury was caused
on the index finger of his left hand whereupon while Sharad Charan Dubey, in
self defence, fired shots from his service revolver and chased them, Saleem
Kela fired at him from country 5 made revolver, but he remained unhurt. Then
Saleem Kela boarded the auto rickshaw and compelled the driver to drive the
same and at that point of time once again resorted to firing. Sharad Charan
Dubey, in self defence and in order to save driver of the auto rickshaw, again
fired at Saleem Kela as a result of which he was injured and fell down
whereupon he was taken to Hamidia Hospital for treatment.
7.
After
registering the cases, police took up investigation in all the four cases and
submitted chargesheets against four accused persons in the case arising out of
FIR No. 410 / 1996 since red shirt boy had died and against only nine accused
persons in the case arising out of FIR No. 411 / 1996 showing accused Assu
Bambaiya as absconder since two accused persons, viz., Saleem Bucha and Saleem
Baba, who are said to have received injuries in the occurrence, which was
subject matter in FIR No. 410 of 1996, succumbed to their injuries. Police also
submitted chargesheets in cases arising out of FIR Nos. 412 & 413 / 1996.
Upon receipt of final forms in the aforesaid four cases, cognizance was taken
and all the four accused persons of this case and accused persons of other
three cases were committed to the Court of Sessions to face trial.
8.
The
defence of the accused persons in short was that they were innocent, had no
complicity with the crime, were falsely implicated in the case on hand and the
victims might have received injuries in some other manner of occurrence. Some
of the accused persons had also taken a plea of alibi.
9.
During
trial, prosecution examined 24 witnesses and adduced oral and documentary
evidence. Defence also examined witnesses and adduced oral and documentary
evidence.
10.
Upon
the conclusion of trial, separate orders of acquittal were rendered by the
trial court in case and counter case, but on appeals being preferred High Court
by a common order reversed the same and convicted accused persons in both the
cases as stated above.
11.
Presiding
Officer of the trial court after recording of evidence thought it fit to
inspect the place of occurrence, which is court premises, itself in the
presence of Special Public Prosecutor and learned counsel appearing on behalf
of the accused persons and prepared a map of the site where occurrence in both
the cases is said to have taken place, which includes the gallery outside the
court of the 3rd Additional Sessions Judge and the same was visible to the
persons sitting in the courtroom of 1st Additional Sessions Judge, 3rd
Additional Sessions Judge, 4th Additional Sessions Judge, counters of District
Court, Nazarat Office, Office of COC and CCD Counter. The staff sitting in any
of the three courts or in the aforesaid offices might have witnessed the
occurrence. The Investigating Officer - R.K. Bajpai [PW-22] stated that he did
not make any enquiry from the employees who were attached to the court of 1st
and 4th Additional Sessions Judges, CCD Counter and to the offices of CDC
Counter, Nazarat Office, COC Office or any other 4th Grade employees who were
supposed to remain present. It appears from his evidence that the statements of
advocates and advocates' clerks were also not recorded 7 during the course of
investigation. It further appears that during the course of investigation
statements of K. Rajamma Kurup [Reader] and Ram Chandra [Adeshik Lekhak], who
were attached to the court of 3rd Additional Sessions Judge, were recorded by
the police, but curiously enough, they have not been examined as witnesses in
the present case. The aforesaid persons could have been independent witnesses
in support of the prosecution case but, for reasons best known to the
prosecution, they have been withheld. In the present case the informant, Munne
Painter, who has been examined as PW-1 and according to the FIR was an
eyewitness to the alleged occurrence did not support the prosecution case, as
such declared hostile.
According to the
prosecution case Majhar [PW-2], Badshah [PW-3], Sadik [PW-4], Sajid [PW-5],
Haseen [PW-6], Guddoo [PW-7] and Saleem [PW-8], who were also eyewitnesses to
the alleged occurrence and could have been independent witnesses, did not
support the prosecution case, as such also declared hostile.
12.
Sharad
Charan Dubey [PW-24], who was the Inspector of Police attached to the concerned
police station, stated that on receipt of an application from PW-1 that he
apprehended danger to his life as appellant Mukhtiyar had given out threats to
him that in case he appeared in court on 10.07.1996 for deposing as a prosecution
witness in Sessions Trial No. 379 / 1995, he would be done to death. Upon
receipt of the said application, PW-24 along with Head Constable - Ram Sewak
and Constable - Saleem arrived court at 11.00 am on the date of occurrence. The
witness stated that he went to the first floor of 8 the court building and
found other persons in the gallery in front of the court of 3rd Additional
Sessions Judge but did not find any of the two appellants, viz., Mukhtiyar and
Asif and accused Sheru. He also stated that he made a frantic search of these
three persons in and around the court premises but didn't find them there. He
then stated that when this witness was near the chamber of the Chief Judicial
Magistrate on the ground floor he heard the sound of firing from the first
floor and when he rushed towards the stairs, found four persons coming down
through the stairs, out of whom, two persons were armed with firearms and the
other two with knives. The witness admitted during the course of
cross-examination that he knew all the four accused persons of this case,
including the appellants of these appeals, from before the occurrence and none
of them was amongst the accused persons who were coming to the ground floor
through the stairs. This witness has not been declared hostile. Thus, statement
of PW-24 makes presence of, all the four accused persons of the present case
including the appellants at the place and time of occurrence, highly doubtful.
13.
The
prosecution has placed reliance upon the evidence of Amar Bahadur Singh [PW-9],
Balram Singh Paithari [PW-11], Surendra Nath [PW-12], Lavkush Sharma [PW-14]
and Ramesh Dubey [PW- 17], who were police witnesses and said to have witnessed
the occurrence. Out of these witnesses, PWs 11, 12 and 17 stated that appellant
- Mukhtiyar fired at Saleem Bucha on his back while he was fleeing away, but
Dr. D.S. Badkur [PW-13], who held post-mortem 9 examination on the dead body
of Saleem Bucha categorically stated that the said deceased received bullet
injuries and the wound of entry was in the chest. From the evidence of the
doctor [PW-13] it appears that Saleem Bucha did not receive any injury on the
back of his body.
Thus, medical
evidence completely demolishes the statements of PWs 11, 12 and 17 that
appellant - Mukhtiyar caused firearm injury on the back of Saleem Bucha when he
was fleeing away. Likewise, according to the evidence of PWs 11, 12 and 17
accused Sheru fired at Saleem Baba as a result of which he received injury on
his chest, but the doctor [PW-13] who conducted post-mortem examination on the
dead body of Saleem Baba, did not find any injury whatsoever on his chest but
he found wound of entry on the back of his body. Statement of the doctor
[PW-13] thus makes the evidence of PWs 11, 12 and 17 that accused Sheru caused
injury on the chest of deceased Saleem Baba highly doubtful.
14.
According
to prosecution, the Investigating Officer, R.K. Bajpai [PW- 22] seized one
revolver belonging to appellant Mukhtiyar and two live cartridges from the
house of the said appellant on disclosure statement made by him and prepared
Seizure Memo [Ext. P/34].
Appellant Mukhtiyar
is said to have fired at deceased Saleem Bucha and the bullet recovered from
his dead body by the doctor [PW-13] was marked as article `J' and sent to
Forensic Science Laboratory [for short `FSL'] where it was marked as article
`EB-5', though the revolver said to have been recovered from the possession of
appellant Mukhtiyar, for the reasons best known to the prosecution, was never
10 sent to the FSL. PW-22 is said to have recovered a country made revolver
from one Saleem Kela also which was marked as article `K' and sent to the FSL
where it was marked as article `A-2'. The report of the FSL [Ext.-40] shows
that the bullet article `J' which was recovered from the dead body of Saleem
Bucha and marked by the FSL as article `EB-5' was fired from the country made
revolver [article `A-2'] which was seized from the possession of Saleem Kela.
This finding of the
FSL gives a death blow to the prosecution case that appellant Mukhtiyar fired
at the deceased Saleem Bucha by his country made revolver causing injury to
him.
15.
So
far as deceased Saleem Baba is concerned, from his dead body the doctor [PW-13]
recovered a bullet which was marked as article `H' and sent to the FSL where it
was marked as article `EB-4'. PW-22 is said to have recovered a country made
revolver from accused Sheru which was marked as article `D' and sent to the FSL
where it was marked as article `A-1'. The report of the FSL [Ext.-40] shows
that the bullet [article `EB-4'] recovered from the dead body of Saleem Baba
was never fired from the country made revolver [article `A-1'] recovered from
the possession of accused Sheru, rather it has been specifically stated that
the said bullet could have been fired only from 0.38 bore service revolver
which is ordinarily used by the police personnel. Therefore, in the absence of
any evidence whatsoever that the firearm recovered from the possession of
accused Sheru was 0.38 bore service revolver, rather specific case is, what was
recovered from him was country made revolver, the above finding in the report
of the 11 FSL makes the prosecution case of causing firearm injury by accused
Sheru upon Saleem Baba by country made revolver highly suspicious.
16.
In
relation to appellant - Mukhtiyar, PWs 9, 11, 12, 14 and 17 who are police
personnel and claim to be eyewitnesses, for the first time, stated in court
after about two years that this accused was armed with country made revolver
and fired at Saleem Bucha as in their previous statements made before the
police none of these witnesses attributed any weapon to this accused much less
a country made revolver and firing therefrom at Saleem Bucha. So far as
appellant Asif is concerned, according to PW-9, he was not armed with any
weapon much less knife. PWs 11, 12, 14 and 17 in their evidence in court, after
about two years, for the first time, stated that this appellant was armed with
a knife as in their statements made before the police these witnesses did not
attribute any weapon, much less knife, to this appellant. In court, for the
first time improvement was made and knife was attributed to this accused, which
makes the complicity of appellant Asif with the crime highly doubtful. Apart
from this, none of the aforesaid witnesses stated that Asif assaulted anybody
with knife.
17.
In
view of the fact that the prosecution case is not supported by medical
evidence, the report of FSL, the fact that PW-24, who knew the accused persons
from before, did not find any of them amongst the persons, who were fleeing
away through the stairs of the court immediately after the occurrence, PWs 1 to
8, including the informant, who were independent persons having not supported
the 12 prosecution case, no steps whatsoever were taken by the prosecution to
examine in court, the Reader and Adeshik Lekhak of the court of 3rd Additional
Sessions Judge, though they were examined by the police during the course of
investigation, the investigating officer - PW-22 having not even made any
enquiry from the employees who were attached to the various courts and offices
from where the place of occurrence was visible much less examining them as
prosecution witnesses, not examining any of the advocates and pleaders' clerks
who were present in the court and there being other discrepancies in the
evidence of the police witnesses, who claimed to be eyewitnesses, we are of the
view that it would not be safe to place reliance upon the evidence of PWs 9,
11, 12, 14 and 17.
18.
Thus,
we hold that prosecution has failed to prove its case beyond reasonable doubt
and view taken by the trial court in recording the judgment of acquittal was
reasonable one, as such the High Court was not justified in reversing the same
which cannot be said to be perverse in any manner.
19.
Criminal
Appeal No. 718 of 2007 All the eight appellants viz., Munne Painter, Mazhar,
Badshah, Sadiq, Sajid, Haseen, Guddu and Saleem Kela of this appeal were tried
in Sessions Trial No. 383 / 1996 and were acquitted by trial court of all the
charges. Against the order of acquittal the State of Madhya Pradesh filed an
appeal before the High Court which reversed the same and convicted the
appellants under Section 302 / 149, IPC and 13 sentenced them to undergo
imprisonment for life and pay fine of Rs. 50,000/- each, in default to undergo
further rigorous imprisonment for a period of three years. They were further
convicted under Section 147, IPC and sentenced to undergo rigorous imprisonment
for a period of two years and to pay fine of Rs. 10,000/- each, in default to
undergo further rigorous imprisonment for a period of six months.
They were also
convicted under Section 148, IPC and sentenced to undergo rigorous imprisonment
for a period of three years and to pay fine of Rs. 10,000/- each, in default to
undergo further rigorous imprisonment for a period of six months. All the
sentences, however, have been ordered to run concurrently.
20.
Prosecution
case in short was that Rajiulla, who was a practising advocate in Bhopal Court,
arrived as usual, court premises at 11 A.M. on 10.07.1996 which was the date
fixed in Sessions Trial No. 379 / 1995 in the Court of the 3rd Additional
Sessions Judge, Bhopal for evidence. In the said case Mukhtiyar, nephew of
Rajiulla and his associates, viz., Asif and Sheru were made accused under
Section 307, IPC. Asif, Sheru and his friend, red shirt boy came to court
premises and they were in the gallery in front of the court of 3rd Additional
Sessions Judge at about 12 noon. Rajiulla, along with his Senior Advocate Shri
Jagdish Gupta and typist Asif Bundella, came to the court of the 3rd Additional
Sessions Judge with an application for dispensing with the personal appearance
of Mukhtiyar who didn't come to court because he was apprehending danger to his
life and filed the same. Seeing Rajiulla, out of the eleven accused persons,
viz., appellants Munne Painter, Majhar, Saleem Kela, Badshah, Sadiq, Sajid,
Guddu, Haseen and accused Saleem Baba [since deceased], Saleem Bucha [since
deceased] and Assu Bambaiya [absconding], who were there in the gallery outside
the courtroom of the 3rd Additional Sessions Judge, appellants Munne Painter
and Majhar said that as Mukhtiyar was not coming to court on that day his uncle
Rajiulla and his associates Asif, Sheru and friend red shirt boy should be done
to death. Upon this, appellant Saleem Kela started firing from his revolver
whereas other accused persons who were armed with knives pounced upon the red
shirt boy and caused knife injuries to him.
Appellant Saleem Kela
fired at Rajiulla, but he could save himself by lying down on the floor. After
the assault, appellant Munne Painter and Majhar exhorted that the red shirt boy
should not remain alive, upon which, appellants Saleem Kela, Badshah, Sajid,
Guddu and accused Assu Bambaiya lifted the red shirt boy and threw him from the
first floor of the court building to its ground floor, as a result of which, he
died instantaneously. It is further case of prosecution that Rajiulla fled away
from the gallery to save his life and all the aforesaid eleven accused persons
took to their heels. Stating the aforesaid facts, Rajiulla submitted a written
report at the police station on the basis of which FIR No. 411 of 1996 was
drawn up at 1.35 pm on the same day for prosecution of the aforesaid eleven
accused persons, which includes eight appellants of the present appeal.
21.
The
police after registering this case as well as the other three cases referred to
above proceeded to investigate the same and submitted chargsheets in all the
four cases. As in the present case, accused Saleem Bucha and Saleem Baba, who
were the two deceased persons in FIR No. 410 of 1996, had died on the date of
occurrence itself, chargesheet was submitted against nine persons, viz., all
the eight appellants of this appeal and accused Assu Bambaiya showing him as
absconder. Upon receipt of the chargesheets, the learned Magistrate took
cognizance and committed the accused persons in all the four cases to the
Courts of Sessions to face trial. In the present case only eight appellants
were tried as the trial of accused Assu Bambaiya was separated as he was
absconding.
22.
Defence
of the accused persons, in short, was that they were innocent, had no
complicity with the crime, were falsely implicated and the victim might have
received injuries in some other manner of occurrence. Some of the accused
persons had taken a plea of alibi.
23.
In
support of its case, prosecution examined twenty seven witnesses and adduced
documentary evidence. The defence also examined four witnesses and adduced
documentary evidence.
24.
In
all the four cases the accused persons were acquitted by the trial court.
Against the order of acquittal passed in sessions cases arising out of FIR No.
410 / 1996 and 411 / 1996 appeals were filed before the High Court which
allowed the same and recorded conviction of the accused persons in both the
cases as stated above. Three appeals by special leave were filed against the
order of conviction recorded by 16 the High Court in relation to Sessions Case
No. 379 / 1996 which had arisen out of FIR No. 410 / 1996, out of which, one appeal
abated as stated above, and cases of accused persons in other two appeals have
been already considered in the earlier part of this judgment. The present
appeal by Special Leave has been filed against the order of conviction recorded
by the High Court in relation to the Sessions Trial No. 383 / 1996 arising out
of FIR No. 411 / 1996.
25.
Presiding
Officer of the trial court after recording of evidence thought it fit to
inspect the place of occurrence which is court premises in presence of Special
Public Prosecutor and learned counsel appearing on behalf of accused persons of
both the cases, i.e., case and counter case and prepared a map of the site,
i.e., the gallery outside the court of the 3rd Additional Sessions Judge where
occurrence in both the cases is said to have taken place, which place was
visible to the persons sitting in the court of 1st Additional Sessions Judge,
3rd Additional Sessions Judge, 4th Additional District Judge, CDC and CCD
counters of District Court, Nazarat Office and Office of COC.
The staff sitting in
any of the aforesaid courts or in any of the said offices who could have been
best witnesses in support of the prosecution case have been withheld by the
prosecution for the reasons best known to it. That apart, neither any advocate
nor any advocate's clerk, who could have been independent witnesses in support
of the prosecution case have been examined. In the present case, Rajiulla, who
was the informant and examined as PW-1, and, according to the FIR, was an
eyewitness to the alleged occurrence, did 17 not support the prosecution case
and accordingly was declared hostile. Prosecution witnesses Sheru [PW-3], Asif
[PW-4] and Mukhtiyar [PW-9], who were also eyewitnesses to the occurrence, did
not support the prosecution case and as such they were also declared hostile.
These four eyewitnesses, who were independent persons in support of the
prosecution case, have not supported the same.
26.
Prosecution
placed reliance upon the evidence of Amar Bahadur Singh [PW-2], Sambhaji Rao
Patil [PW-5], Lavkush Sharma [PW-7], Surendra Nath Tiwari [PW-8], Ramesh Dubey
[PW-15] and Balram Pathari [PW-19], all of whom, undisputedly, were police
witnesses and they claimed to be eyewitnesses to the alleged occurrence.
27.
Specific
case of the prosecution in the FIR was that the red shirt boy was thrown by
some of the accused persons from the first floor of the court building to its
ground floor. The prosecution has given suggestions to the prosecution
witnesses, viz., PWs 3 and 9 to the effect that the red shirt boy was thrown
from the first floor of the court building to its ground floor which they have
denied, although they made such statements before the police. Dr. Ashok Sharma
[PW- 17], who conducted the post-mortem examination on the dead body of red shirt
boy on the date of occurrence itself, i.e., 10.07.1996 at 4.45 pm, in his
post-mortem report [Ext. P-20] opined that the deceased received injuries by
sharp-edged weapons. In his evidence, the doctor [PW-17] stated that he did not
find any injury on the deceased that could be said to have been caused as a
result of fall, which gives death 18 blow to the prosecution case that red
shirt boy was thrown from first floor of the court building to its ground
floor.
28.
It
appears that in view of the fact that according to the post-mortem report [Ext.
P-20] the deceased did not receive any injury on account of being thrown from
first floor to the ground floor, PWs 2, 5, 7, 8, 15 and 19, who were all police
witnesses and examined by the investigating officer - R.K. Bajpayee [PW-25],
did not make any statement to the effect that the deceased was thrown by some
of the accused persons from the first floor of the court building to its ground
floor. They have also not made statement before the police as to how his dead body
was found on the ground floor when the deceased was assaulted on the first
floor. For the first time, after about a year, PWs 8, 15 and 19 in their
statements made before the Sessions Court disclosed that the deceased was
dragged by some of the accused persons from first floor which is neither
supported by medical evidence nor objective finding of the investigating
officer. The doctor [PW-17] has not stated either in the post-mortem report or
in his evidence that the deceased received any injury by dragging.
Investigating Officer
[PW-25] has nowhere stated that he found any trail of blood from the first
floor to the place on the ground floor from where the dead body was recovered.
This witness stated that he did not find any blood marks on the clothes of any
of the accused persons from whose possession knives are said to have been
recovered immediately after the occurrence. The prosecution has completely
failed to explain as to how the dead body of the red shirt boy who is 19 said
to have been assaulted on the first floor of the court building was brought to
the ground floor.
29.
The
identity of the deceased red shirt boy, for whose murder the appellants were
tried, could not be established by the prosecution, that is, whether red shirt
boy was Munneybul Hasan or Umar Izhar or any other unknown person. Rehman
[PW-13] who was an inquest witness stated that he knew Munneybul Hasan, who was
resident of Kallashah Campus which is in Jahangirabad, one of the quarters of
the towns of Bhopal, for about 10 to 15 years. He further stated that on
10.07.1996 between 8 to 9 A.M. he came to know that the aforesaid Munneybul
Hasan had been murdered and on receiving the said information he found him
lying dead in the said campus. This witness also stated that he took the dead body
of Munneybul Hasan to the Hamidia Hospital where police prepared the inquest
report and after the post-mortem examination the dead body was made over to him
between 5 to 6 P.M. and at about 7 P.M. on the date of occurrence itself it was
engraved in the graveyard which is in the said locality. In the inquest report
as well as in the post-mortem report name of the deceased has been shown as
Munneybul Hasan.
30.
Regarding
the identity of the dead body, another version was that of constables Dunjan
Singh [PW-21] and D.N. Nagvanshi [PW-23], who, on the directions of the
investigating officer [PW-25], took the dead body of the red shirt boy to
Hamidia Hospital where the doctor [PW- 17] declared him dead and there inquest
report was prepared which was marked as Ext. P-16. PW-23 stated in his evidence
that the doctor 20 [PW-17] found out license from the pocket of the red shirt
boy which was in the name of Munneybul Hasan and made over the same to this
witness, but this fact has been denied by the said doctor in his evidence
wherein he has categorically stated that he did not find any driving license,
much less making over the same to PW-23. PWs 21 and 23, even according to their
statements, were not examined by the police and the story that the license was
found out by the doctor [PW- 17] from the pocket of the deceased and made over
to PW-23 was introduced for the first time in Sessions Court.
31.
Walima
Begum [PW-20], who is resident of Fatehpur district in the State of Uttar
Pradesh, stated that she had two sons and the name of her elder son was Qamar
Rab and that of the younger one Umar Izhar. The deposition of this witness was
recorded on 18.05.1998 and she stated that about two yeas ago her son Umar
Izhar started for Bombay in the month of July with a cash sum of Rs. 22,000 /-
and she learnt at Allahabad that he was murdered. She further stated that
somebody came to her house and told her that Umar Izhar had been murdered at
Bhopal Railway Station after snatching the cash that he was carrying, whereupon
she went to Bhopal along with her son-in- law and there she learnt that her son
was admitted in hospital. She then went to Bhopal hospital, found the dead body
of her son Umar Izhar and identified the same which was made over to her. She
stated in the cross-examination that her son never came to Bhopal. She then
stated that there is no nick name of her son Umar Izhar. It is not clear from
the evidence on record as to whether the dead body, which was 21 made over to
PW-20, was that of red shirt boy. From the aforesaid facts it appears to us
that the prosecution has failed to prove beyond reasonable doubt identity of
the dead body of red shirt boy, i.e., as to whether it was that of Munneybul
Hasan or Umar Izhar or any other unknown person.
32.
Investigating
Officer, PW-25 stated that he seized bloodstained knives in the court premises
itself from the possession of appellants Haseen, Badshah, Sadiq and Sajid on
the date and place of occurrence itself between 12.25 to 12.40 P.M. and took
them to the police station but the arrest memo [Ext. P-34] shows that they were
arrested on the date of occurrence at 8.15 P.M. In case the bloodstained knives
were seized from the possession of these persons, there was no reason of their
not being arrested by the police at that point of time which makes the time of
recovery of the bloodstained knives and the arrest of these accused persons, as
mentioned in the seizure and arrest memos, doubtful. PW-25 further stated that
from the possession of appellant - Guddu a knife was recovered on 19.07.1996
and he was arrested also on the same day. Knives seized from the possession of
these five accused persons were sent to the FSL for examination and the same
were marked as articles `A', `B', `C', `D' and `E'. According to FSL report
[Ext. P-40], no blood was found on articles `A', `B', `C' and `E' but blood was
found on the knife marked as article `D'. The Serologist has nowhere reported
that it was human blood.
33.
Mohan
[PW-14], who was posted in the court of the 3rd Additional District Judge
stated that on the date of occurrence at 12 noon he was 22 inside the
courtroom and appellant Munne Painter was sitting on a bench in that very
courtroom from before and soon after the firing he entered the chamber of the
Presiding Officer. The prosecution made a prayer to declare this witness
hostile, but trial court rejected the same. This statement of the witness makes
the complicity of appellant Munne Painter with the crime highly doubtful. Apart
from this, according to the prosecution case and evidence, appellants Munne
Painter and Mazhar were not armed with any weapon much less any knife or
firearm. Neither any overt act has been attributed to anyone of them nor any
incriminating article recovered from their possession.
34.
In
view of the foregoing discussion, we are of the view that it would not be safe
to place reliance upon the evidence of PWs 2, 5, 7, 8, 15 and 19 and,
accordingly, we hold that the prosecution has failed to prove its case beyond
reasonable doubt and the High Court was not justified in reversing the judgment
of acquittal as the view taken by the trial court was reasonable one and the
same could not be said to be perverse in any manner.
35.
We
are unhappy to note that such a ghastly crime of brutal murder of three persons
in broad day light in the temple of justice, which is campus of District Court
in Bhopal, Capital City of the State of Madhya Pradesh, is going unpunished
because of laches on the part of the prosecuting agency in conducting the
investigation and trial, apart from uncooperative attitude of the private
prosecutors, who 23 appear to have connived with the culprits, leaving us with
no other option but to painfully convert convictions of the appellants, some of
whom were even condemned prisoners, into acquittal.
36.
In
the result, all the three appeals are allowed, the impugned common Judgment of
conviction rendered by the High Court is set aside and the judgments of
acquittal passed by the trial court are restored. The appellants, who are in
custody, are directed to be released forthwith if not required in connection
with any other case.
......................J.
[B.N. AGRAWAL]
......................J.
[G.S. SINGHVI]
NEW
DELHI,
14TH
NOVEMBER, 2008.
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