Maqbool @
Zubir @ Shahnawaz & ANR. Vs. State of A.P. [2010] INSC 490 (8 July 2010)
Judgment
CRIMINAL
APELLATE JURISDICTION CRIMINAL APPEAL 435 OF 2008 Maqbool @ Zubir @ Shahnawaz
& Anr. ...Appellants Versus State of A.P. ...Respondent
Swatanter
Kumar, J.
1.
The present appeal is directed against the Judgment of the High
Court of Judicature of Andhra Pradesh at Hyderabad dated 27th February, 2007
wherein the Court passed the following judgment of conviction and order of
sentence:
"Crl.
A. No. 1825 of 2004 is allowed in part. The convictions and sentences imposed
on A.1 for the offence under Section 302 I.P.C. and Section 3 r/w 25 (1-B) (a)
of Arms Act are confirmed. The conviction imposed on A.2 for the offence under
Section 302 r/w 109 I.P.C. is modified and he is convicted for the offence
under Section 302 r/w 34 I.P.C.
and
sentenced to suffer imprisonment for life and also to pay a fine of Rs.1,000/-
in default, to suffer 6 months simple imprisonment. The conviction and sentence
imposed on A.1 and A.2 for the offence under Section 120-B I.P.C.
is set
aside. So far as A.4 and A.6 are concerned, they are found not guilty for any
of the offences under Sections 120-B and 302 r/w Section 109 I.P.C. and
accordingly, the convictions and sentences imposed on them for the said
offences are set aside.
Therefore,
A.4 and A.6 shall be set at liberty forthwith if they are not required in any
other crime. The fine amount, if any, paid by them shall be refunded.
Crl.A.
No.1886 of 2004 is allowed and the convictions and sentences imposed on A.8 for
the offences under Sections 120-B and 302 r/w Section 109 I.P.C. are hereby set
aside. He shall be set at liberty forthwith, if not required in any other
crime. The fine amount, if any, paid by him shall be refunded.
2 Crl.A.
No.2220 of 2004 is allowed and the convictions and sentences imposed on A.3 and
A.5 for the offences under Sections 120-B and 302 r/w Section 109 I.P.C. are
hereby set aside. They shall be set at liberty forthwith, if not required in
any other crime.
The fine
amount, if any, paid by them shall be refunded."
2.
As is apparent from the above judgment of the High Court that it
modified the judgment of the Trial Court insofar as conviction of accused No.A2
was concerned. However, it completely acquitted accused A3 to A6 and A8 of all
the offences. From the record, it appears that A7 was merely the author of the
diary and was charged along with other accused of the offence under Section 396
of the IPC and for that offence, the Trial Court had in fact acquitted all the
accused of this charge including A7. At the very outset, we may notice that no
appeal has been preferred against their acquittal by the State or the competent
authority. Thus, in the present appeal we are only concerned with the appeal of
accused Maqbool @ Zubir @ Shahnawaz and Mohd. Feroz Khan @ Feroz referred to as
appellants herein.
3.
The prosecution had brought before the Court of Session nine
accused to face the trial. Out of these, one Azam Ghori is stated to 3 have been
killed in an encounter on 6th April, 2000 and consequently proceedings against
him came to an end. While other eight accused faced the trial and were finally
found guilty and were punished for different offences. A1 was found guilty for
offence under Section 302, whereas A2 to A8 for the offence under Section
302/109 IPC.
However,
they all were acquitted for the charge of an offence under Section 396 IPC but
were also punished for 120-B IPC. The facts from the record shows that
somewhere in July 1999, Azam Ghori who died during the Trial organized a
Tanjeem along with his associates accused A1 to A8, hatched a conspiracy to
snatch away the cash bag from one Ramakrishna Rao, the owner of a cycle shop
called `Krishna Cycle Stores', New Bus Stand, Bodhan. In pursuance of the said
conspiracy on 2nd August, 1999 accused chalked out plan at Sarbathi Canal
Mosque, Bodhan that A1 should snatch the bag of the deceased and A2 Feroz Khan
should drive the vehicle to escape from the scene after commission of the offence
and remaining of them i.e. A3 to A9 should watch the movements by taking
shelter near the shop and house of the deceased for successful implementation
of their plan. A6 Mohd. Abdul Mateen @ Muzaffar had provided his motorcycle
while A9 gave his pistol to A1 4 for the purposes of committing the crime. It
was decided that in the event Ramakrishna Rao showed any resistance and did not
hand over the bag containing cash, they will shoot him and run away from the
place of occurrence. Ramakrishna Rao was in his cycle shop called `Krishna
Cycle Stores' and also had second show collections of the theatre in the
evening. He used to come back to his place with cash. On the night of 2nd
August, 1999, a lorry loaded with spare parts of Hero Cycle came to the shop of
the deceased and the goods were unloaded into the shop by 10.30 P.M. The
deceased had second show collection from the theatre which is estimated to be
of Rs.40,000/-. After closing the shop, he was proceeding to his house which
was about 500 to 600 feet away and his salesman was accompanying him. One Nazar
and Hamid were following him and all of them were going on foot. When they were
about to reach the house of the deceased that the accused intercepted and
demanded the deceased to handover the bag. As already noticed, there was
resistance and arguments, resultantly the accused had fired three shots from
his pistol, snatched the bag and ran away. When the deceased fell down PW1 one
Prasad, PW2, the wife of the deceased and his elder daughter took the deceased
to the Government 5 Hospital, Bodhan in an auto and as no doctor available at
the Hospital they took the deceased to Santhan Nursing Home where he was
declared dead by the doctors. Thereafter, PW1 went to the police station at
about 11.50 P.M. and gave complaint to the Sub- Inspector of Police Station.
The Inspector was examined as PW23 and a complaint submitted was Ext. P.1. On
this basis, an F.I.R. was registered under Section 302 and 379 r/w 34 I.P.C.
and Section 25 & 27 of Indian Arms Act being Ext. P.35. It may be noticed
here that as per the evidence on record, the wife and daughter of the deceased
were sitting on the first floor of the house and they came to have seen the
deceased, PW1 coming to the house as well as his alteration with the accused. They
had come down with the key to open the door for the deceased to enter the house
however, when they opened the door the firing had taken place and the deceased
was lying on the ground.
4.
The investigating officer was examined as PW18, who took up the
investigation, examined the witnesses and recorded the statement after
preparing the sketch of the case of occurrence Ext. P11 and scene of offence
panchanama Ext. P10. They were prepared in presence of PW9. The body of the
deceased was sent 6 for postmortem. PW14, Dr. B. Santosh conducted the autopsy
over the dead body of the deceased and issued postmortem report certificate
expressing the opinion as Ext.P15. The cause of death was identified to be
internal hemorrhage and shock caused by a fire arm injuries.
5.
Test Identification Parade for both the accused was held on 6th
July, 2000 and 29th July, 2000 by PW17 and PW20 and relevant proceedings were
marked as Ext. P17 and P28 respectively. After completion of the investigation,
charge-sheet was filed in the Court.
All the
accused were subjected to trial. The prosecution examined as many as 26
witnesses and relied on documentary evidence Ex. P1 to Ext. P39. After making
their statements under Section 313 Cr.P.C., the accused also examined four
witnesses. Ultimately, they were found guilty and awarded sentence by learned
Sessions Court as afore-noticed. The judgment of the Sessions Court was
partially set aside by the High Court. Dissatisfied from the judgment of the
High Court, the present appeal has been filed by the two appellants challenging
the legality and correctness of the judgment of the High Court. The arguments
advanced on behalf of the appellants are:
7 (i) The
prosecution has not been able to establish the guilt of the accused beyond any
reasonable shadow of doubt.
Non
production of material evidence, findings being recorded on surmises and their
being no direct evidence of conspiracy, the accused were entitled to the
benefit of doubt.
(ii) The
investigation of the case was so faulty that even important piece of evidence
like blood stained earth, empties were admittedly not collected from the place
of occurrence and no seizure memos were prepared, as stated by the
Investigating Officer. This clearly creates a dent in the case of the prosecution.
(iii) The
findings otherwise recorded are based on no evidence and are perverse.
(iv) From
the case of the prosecution, it is clear that there was no light at the place
of occurrence and the incident being that of 10.30 P.M. the visibility was
bound to be NIL and as such, the version of the so called eye- witness was not
true.
(v) In
fact, the very persons of the eye-witnesses on the site is doubtful. The
Identification Parade was conducted contrary to the settled law and in fact, it
is no identification parade in the eye of law. The accused were in police
custody and accused as well as their photographs had already been shown to the
witnesses who were required to identify the appellant in the identification
parade which itself was conducted after more than one year of the date of
occurrence. Such identification parade could not be the basis of conviction as
held by this Court in Musheer Khan v. State of M.P. [(2010) 2 SCC 748].
6.
There was complete denial of the charge by the appellants having
completely denied their involvement and took up a stand that they had been
falsely implicated in the crime and PW1 and PW2 both being interested
witnesses, the prosecution case has not been established in accordance with
law.
7.
Common evidence will have to be discussed for deciding the merit
of the submissions made on behalf of the appellant. Thus, we proceed to discuss
all these issues together as in any case they are 9 interlinked. First of all,
we must record that PW1 and PW2 cannot be stated to be interested witnesses and
in any case not of the kind that they should be disbelieved merely because they
were in employment with the deceased and/or wife of the deceased. The
circumstances of a case have to be examined in their normal conduct. It is but
natural that the deceased employer who was carrying cash would normally ask
some of his trusted employees to come with him. PW1 was working as a salesman.
His statement clearly shows that he was fully aware about the facts of the
business and had stated that a lorry of spare parts had come on 2nd August,
1999 at about 10.30 P.M. where PW3 and Hamid were also present. Cash of
Rs.40,000/- approximately was in the bag, which the deceased was carrying.
PW1 was
walking with him, while PW3 was following from behind.
The
appellant had shown a revolver and had stated that the bag should be given to
him and when the deceased questioned the said person and PW1 wanted to
interfere, he threatened him saying that if he took a step forward he would be
shot. Again, on being questioned by the owner, he shot the owner thrice with
the revolver and he fell down. The other person came on a motorcycle to the
spot and these persons fled away on the motorcycle. He clearly stated that he
could 10 easily identify both the persons. This witness had sufficient time to
recognize the assailant inasmuch as first the assailant had an altercation with
the deceased. His demand for the cash bag containing the cash was resisted by
the deceased, where after, he shot the deceased, snatched the bag and then
waited for the vehicle- motorcycle to come, on which both A1 and A2 fled away
from the site. It was nobody's case that these two persons were wearing helmets
or that their faces were covered. In other words, there was sufficient time and
opportunity for this witness and others to see and recognize both the
assailants. About the availability of the light, he had stated that there was
one tube light glowing at the house of the owner and there was also light from
the illumination of Surya Nursing Home and even during the identification
parade, he had identified both the co-accused. He had taken the deceased along
with others to the Government Hospital and then to the Nursing Home. In his
detailed cross-examination, nothing material could come out. He specifically
denied that any photographs were showed to him by the police on the contrary,
he received a letter to go to Chanchalguda Jail at Hyderabad to identify the
assailant. In his cross-examination, he clearly stated as follows:
11
"The distance between the place where my owner fall down and the house of
my owner is about 35 feet. The tube light was at the third shutter which
pertains to the house of my owner. After one year of the incident I came to
know that the persons who are responsible for the murder of my owner were
apprehended. I came to know about their apprehension when the police came to me
to enquire whether I can identify the assailant."
8.
Similarly, PW2, the wife of deceased clearly stated that on the
date of the occurrence, she had switched on the tube lights and the light would
fall on the main road. She also confirmed that there was illumination from the
Nursing Home which is opposite to the house and about the date of incident she
made the following statement:
"On
2.8.1999 at 10.45 p.m. I was sitting by the side of the window. I was waiting
for my husband. At about 10.45 p.m. my husband PW.1 and another person came
upto my house. When my husband reached my house he had an altercation with one
person.
At that
time PW.1 and another person was there. I saw my husband and I got up with keys
to go down stairs to open the lock. At that time I heard the sound of `Dam'. I
heard that sound. By the time I got down from the house and went to the spot my
husband was lying on the road. Hearing my cries, my family members and others
gathered there. PW.1 told me that there was a cash of Rs.40,000/- in the bag.
When I questioned PW.1 he told me that the said bag was taken away. I can
identify the person who had altercation with 12 my husband. The accused are
brought near to the witness chair and the witness pointed out A.1 who is standing
in the fifth position from the left side and said that A.1 had altercation with
her husband. I am seeing A.1 today in the Court after the incident. Police
examined me. One motor cycle came to the spot and took away the assailant who
shot my husband. One person was riding the motor cycle."
9.
In the cross-examination, she specifically denied the suggestion
that she could not see the persons who are coming from right side on the road
and she stated that the out house is adjacent to the main road. PW3, Nasir Khan
fully corroborated the statement of PW1 and that they stayed at Swathi Hotel
for taking tea. The incident took place at the distance of 300 feet from the
house of the owner. After hearing the sound, she immediately ran towards the
body of the deceased and then took him to hospital. Their statements apparently
appear to be correct. They have not exaggerated any facts. Their statements
appear to be truthful description of the events that occurred in their presence
or of what they have the knowledge. As far as PW1 is concerned, he is a witness
to the entire incident. No doubt, the investigating officer had appeared as
PW18 and according to him after he had taken up the 13 investigation, he was
working as inspector in the police station at the relevant time. He had
prepared rough sketch of the place of occurrence which was Ext.11 and according
to him it was a rainy day. He stated that PW2 had not stated before him that
there was sufficient illumination because of tube light and Nursing Home and
from the public street light. This witness has stated that when he went to the
place of occurrence, number of people had assembled there. The following
extracts of examination-in-chief of this witness, has been relied upon by the
learned Counsel appearing for the appellant.
"It
is true that PW.2 did not state before me that she would be watching the people
who will be coming to her house while sitting at the window during her
examination. It is true that PW.2 did not state before me that there was
illumination from her house and from the Nursing home and from public street
lights.
After
taking up investigation firstly, I went to the scene of offence. I reached the
scene of offence by about 12.45 A.M. When I went to the scene of offence many
people were present there and from among the persons I secured Shivakumar
(PW9). PW9 was in the public but I cannot tell exactly as to where he was
standing or sitting in the public.
I have
not collected anything from the scene of offence as it was drizzling and also
as 14 there was public rush at the spot. I have not examined any one at the
auto stand. I saw blood stains on the left side of the road while facing
towards Nizamabad. The blood stains were found on the edge of the road. It is
true that opposite to the house of the deceased there are business shops. In
Ext.P10 there is no mention about the existence of tube lights at the scene of
offence."
10.
While relying upon these extracts of the examination-in-chief and
cross-examination of this witness, the learned Counsel appearing for the
appellant contended that since the bloodstain earth and nothing else recovered
from the premises including the empties of the gun shots. The entire
investigation of the case is faulty and cannot be relied upon. The statement of
the investigating officer is found to be not supporting the case of the
prosecution. The whole case of the prosecution should fall. Firstly, we cannot
read these statements out of context and they must be examined in their
entirety. In other words, the statement of the investigating officer has to be
read in its entirety and then any conclusion can be drawn.
Certainly,
this investigating officer has failed to conduct the investigation as per the
expected standards and we have no hesitation in observing that the case could
have been investigated with greater care, caution and by application of
scientific methods. It 15 will not give the accused/appellants any benefit
because PW1 was never confronted with his statement under Section 161 Cr.P.C.
by the appellant during her cross-examination with regard to the above facts.
What she had stated before PW14, would be best recorded in the statement under
Section 161 Cr.P.C. That steps having not been taken by the appellant in
accordance with law, now, they cannot drive any benefit. Secondly, not only PW2
but even other witnesses have stated that there was sufficient light in and
around the place of occurrence because of street light, light from the house of
the deceased, bus stand and the Nursing Home. There is no reason for us to
disbelieve PW1, PW3 and other witnesses who said that there was sufficient
illumination at the place of occurrence and the argument advanced by the
appellants hardly has any merit. Yes, it was expected of the investigating
officer to seize from the place of occurrence such articles or items including
the bloodstain earth or empties, which were available even as per his
statement. This lacuna in investigation stands completely covered by the
statement of the witness, the medical report and the eye-witness version. Dr. K.
Raja Gopal Reddy, Professor and Head of the Forensic Department, Gandhi Medical
College who had performed 16 postmortem was examined as PW24 and he stated that
his opinion had been sought by the investigating officer. After going through
the report and the inquest report, he had stated that the probable weapon used
was rifle fire-arm and Ext.P13 was his opinion. In Ext.P15 which is the
postmortem report, the injuries have been described as under:
"11.Injuries:
Fire arm:
Entry
wounds:
1. Ulnar
medical surface of right wrist 2 cms diameter.
2.
Oblique 3 cm x 2 cm, below medical end of right clavicle in front of chest.
3.
Circular 2 cm diameter below medical end of left clavicle in front of chest.
Exist
wounds:
1. Radial
lateral surface of right wrist 3 cm diameter.
2. Oblong
4 x 3 cm post surface of right side chest by the side of spine.
3.
Circular 3.5 cm, 3 cm below the exist wound No.2."
11.
The above evidence of the doctors as well as that of the PW1
clearly establishes the story of the prosecution. According to PW1, the
assailants fired through armed shots and as per medical evidence also, there
are three injuries and exists injuries on the body 17 of the deceased. We have
also noticed that the investigating officer failed to perform his duties
appropriately in not recovering the bloodstain earth as well as the empties
since they were not in the body of the deceased. According to the investigating
officer, there were few other people and there was a bus stand near the place of
occurrence. The Investigating Officer fully corroborated the statement of PW1
and other witnesses. Another important factor which has to be noticed is,
probably the way this investigating officer has conducted the investigation,
that investigation of the case was transferred to CID after some time and, it
was CID which completed investigation of the case. PW25 and PW26 have then
conducted investigation at a later stage. According to PW25, M. Vankata Rao he
had arrested the accused as well as seized certain items vide Ext. P38
including a scooter while Ashok Kumar PW26 claimed that he was working as
inspector and as per Memo No. 1214/C12/CID/2000 of the Additional DGP, CID this
case was given to him for investigation. After the arrest of Mirza Qasim Baig,
A.4 and his confessional statement, the systematic investigation was conducted
by him and he arrested accused Kameel as well as accused Feroz somewhere on 2nd
June, 2000. He even recorded the statement of 18 PW4. On 17th June, 2000, he
submitted a requisition before the JFCM for holding Test Identification Parade
for identification of both the appellants and he was the main investigating
officer who conducted the investigation and arrested the main accused. During
investigation a diary/writing was also recovered relating to the activity of
the accused particularly, the occurrence in question. The writing was sent for
comparison to the Forensic Science Laboratory at Hyderabad and which had
expressed an opinion that the persons who wrote the red enclosed writings
marked as S1 to S29 also wrote the red enclosed writing marked Q1 to Q378,
Q131/1 and Q.122/1.
The
identification parade was conducted on 29th July, 2000 at 3.30 P.M. vide
Ext.P28. This was conducted and completed by 8th Metropolitan Magistrate,
Hyderabad. This identification parade was performed in the jailor's office room
and the witnesses were examined by the Magistrate. The Magistrate had required
and the jailor then had provided non-suspect persons who were asked to
participate in the parade after the accused had expressed his satisfaction, he
even was asked to stand in any place in the row with the known-suspects and
thereafter Y. Krishna Mohan (PW-1) was brought to the Test Identification
Parade and then the accused was 19 identified in accordance with law. The identification
parade was closed. Despite the above Test Identification Parade having been
conducted in accordance with law, the appellants have raised objections to the
identification parade and have stated that they were in illegal confinement of
the police. Their photographs were shown and the identification parade itself
has been conducted after such a long time. While relying upon the case of
Musheer Khan (supra), it is contended that they were retained in police custody
and that discrepancies discernable in his identification by the witness renders
the identification unbelievable and improper.
12.
These arguments do not impress us. The accused himself was
arrested after one year and it was only thereafter that the investigating
officers had been able to collect substantial evidence and then after arresting
all the concerned accused, the identification parade was conducted on 27th
July, 2000. Thus, there is no delay in conducting the identification parade.
There is nothing on record to show or prove that these accused were in illegal
custody or confinement of the police. In order to prove this plea, they have
produced four witnesses D1 to D4 but they could not bring any records or any
other cogent or substantial evidence to prove the 20 alleged case of illegal
confinement and/or for that matter that they were shown to the witnesses before
the identification parade was conducted by the investigating officer. Both the
learned Trial Court as well as the High Court had disbelieved the witnesses of
the defence in that regard.
13.
Somewhat similar plea was taken in regard to identification,
according to the accused they were shown to the witnesses while in custody and
their photographs have been taken from their residence which in turn were also
shown to the witnesses. This plea was rejected by the Court in a very recent
judgment. After discussing the law in some detail in the case of Siddartha
Vashisht @ Manu Sharma v. State (NCT of Delhi) [JT 2010 (4) SC 107], the Court
held as under:
"113.
It is also contended by the defence that since the photographs were shown to
the witnesses this circumstance renders the whole evidence of identification in
Court as inadmissible. For this, it was pointed out that photo identification
or TIP before the Magistrate, are all aides in investigation and do not form
substantive evidence.
Substantive
evidence is the evidence of the witness in the court on oath, which can never
be rendered inadmissible on this count. It is further pointed out that photo
identification is 21 not hit by 162 Cr.P.C. as adverted to by the defence as
the photographs have not been signed by the witnesses. In support of his
argument the senior counsel for Manu Sharma relies on the judgment of Kartar
Singh v. Union of India [(1994) 3 SCC 569] at page 711 wherein while dealing
with Section 22 TADA the Court observed that photo TIP is bad in law. It is
useful to mention that the said judgment has been distinguished in Umar Abdul
Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau, [(2000) 1 SCC
138] at page 143 where a Photo Identification has been held to be valid. The
relevant extract of the said judgment is as follows:- "10. The next
circumstance highlighted by the learned counsel for the respondent is that a
photo of the appellant was shown to Mr.
Albert
Mkhatshwa later and he identified that figure in the photo as the person whom
he saw driving the car at the time of interception of the truck.
11. It
was contended that identification by photo is inadmissible is evidence and,
therefore, the same cannot be used. No legal provision has been brought to our
notice, which inhibits the admissibility of such evidence. However, learned
counsel invited our attention to the observations of the Constitution Bench in
Kartar Singh v. State of Punjab which struck down Section 22 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987. By that provision the
evidence of a witness regarding identification of a proclaimed offender in a
terrorist case on the basis of the photograph was given the same value as the
evidence of a test identification 22 parade. This Court observed in that
contest:
(SCC
p.711, para 361) 361. If the evidence regarding the identification on the basis
of a photograph is to be held to have the same value as the evidence of a test
identification parade, we feel that gross injustice to the detriment of the
persons suspected may result. Therefore, we are inclined to strike down this
provision and accordingly we strike down Section 22 of the Act.
12. In
the present case prosecution does not say that they would rest with the
identification made by Mr. Mkhatshwa when the photograph was shown to him.
Prosecution has to examine him as a witness in the court and he has to identify
the accused in the court. Then alone it would become substantive evidence. But
that does not mean that at his stage the court is disabled from considering the
prospect of such a witness correctly identifying the appellant during trial. In
so considering the court can take into account the fact that during investigation
the photograph of the appellant was shown to the witness and he identified that
person as the one whom he saw at the relevant time. It must be borne in mind
that the appellant is not a proclaimed offender and we are not considering the
eventuality in which he would be so proclaimed. So the observations made in
Kartar Singh in a different context is of no avail to the appellant."
Even a
Test Identification Parade before a Magistrate is otherwise, is hit by Section
23 162 of the Code. Therefore, to say that a photo identification is hit by
section 162 is wrong. It is not a substantive piece of evidence. It is only by
virtue of section 9 of the Evidence Act that the same i.e. the act of
identification becomes admissible in Court.
The logic
behind TIP, which will include photo identification lies in the fact that it is
only an aid to investigation, where an accused is not known to the witnesses,
the IO conducts a TIP to ensure that he has got the right person as an accused.
The practice is not born out of procedure, but out of prudence. At best it can
be brought under Section 8 of the Evidence Act, as evidence of conduct of a
witness in photo identifying the accused in the presence of an IO or the
Magistrate, during the course of an investigation."
14.
In view of the clear statement of law, we have no hesitation in
rejecting the arguments of the appellant in relation to conduct of the
identification parade.
15.
In the statement under Section 313 Cr.P.C., the accused took a
plea of complete denial. According to them, they were asked to come to the
police station for interrogation and then were produced in Court. They offered
no explanations and as already noticed, they even examined four witnesses in
support of their case. As already noticed, nothing material could be
established by these defence witnesses, specially, in regard to the present two
accused. However, 24 accused had been acquitted by the Court, as the
prosecution could not produce any cogent and material evidence except the diary
and therefore, the charge of conspiracy under Section 120-B was not proved
against them. Vide Ext. P18 & Ext. P19 the accused had been arrested and
produced before the Court of competent jurisdiction. The extract of diary which
was recovered during the investigation had various entries, which related to
the planning of the crime, its commission and result thereof. This aspect has
been discussed by the learned Trial Court in para 28 of its judgment. The High
Court has also examined this question in some elaboration.
The concurrent
finding thus has been that these extracts from the diary provide substantial
support to the case of the prosecution. On July, 1999 they had conspired and
after consultation in Sarbathi Canal Mosque, Bodhan that after closing the show
room the deceased goes on foot and nobody is there on the road and that the
work has to be done within 2-3 days. These questions have been discussed by the
trial court as well as by the High Court in their correct perspective and upon
examination of the entire documentary and ocular evidence; we do not find any
reason to interfere in the concurrent finding recorded by the Courts.
16.
We are of the considered view that the prosecution has been able
to prove its case beyond reasonable doubt. The gravity of the offence, the
manner in which it had been committed and the conduct of the accused do not
call for any interference by this Court even on the question of quantum of
sentence.
17.
For the manner in which the Investigating Officer (PW-25) had
conducted the investigation requires much to be desired. We cannot also ignore
the fact that he showed utter carelessness in not collecting the blood stained
earth and empties and other material pieces of evidence, which were available
at the place of occurrence.
The
occurrence had taken place late in night i.e. at 10.45 P.M. and hardly there
would be such gathering. It was expected of the Investigating Officer to
perform his duties with greater caution, sincerity and by taking recourse to
appropriate scientific methods for investigating such a heinous crime. Thus we
direct the Director General of Police, Andhra Pradesh to examine this aspect
and take action in accordance with law.
18.
Consequently, the appeal is without any merit and is hereby
dismissed.
........................................J. [ B.S. CHAUHAN ]
........................................J.
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