Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Arvind Kumar Mishra-I, J.) We have heard at length Sri Rajul Bhargawa, learned Senior Counsel assisted by Sushri Zia Naz Zaidi, Advocate who extended argument on behalf of appellants while Sri A.N. Mulla, learned AGA extended argument on behalf of the State and perused the record.
Since both the appeals arise out of the same judgment and order dated 28.09.2007 passed by Special/ Additional Sessions Judge, Muzaffarnagar, therefore, the same are being decided by a common judgment.
Both the aforesaid appeals have been preferred by the above named appellants Ejaz Haider and Haseen Haider against the judgment and order dated 28.09.2007 passed by Special/ Additional Sessions Judge, Muzaffarnagar in Sessions Trial No.556 of 2000 arising out of Case Crime No. 29 of 2000 under Section 302 IPC, Police Station Bhopa, District Muzaffarnagar. By the aforesaid judgment, both the appellants have been convicted under Section 302 read with Section 34 IPC and have been sentenced with imprisonment for life and a fine of Rs. 10,000/- each, in case of default, the concerned convict/appellant will have to undergo two years' additional rigorous imprisonment.
Factual portrayal of this case as emanates from record appears to be; that the appellants are the real brothers of the complainant Zille Haider and the appellants have allegedly killed their real mother Smt. Shakila Begum. It comes out that the first information report (Exhibit Ka-5) was lodged on the basis of the written report (Exhibit Ka-7) by the complainant Zille Haider son of Mohammad Hashim of village Bilda, P.S. Bhopa, on 26.02.2000 at 8.15 a.m. regarding some incident which took place in the night intervening of 25/26.02.2000 at 2.00 a.m. with following description:
That the informant's (Zille Haider) mother Smt. Shakila Begum, informant's nephew Akmal Ali, niece Shadab daughter of Gulzar Haider and the complainant were sleeping in the house in the night of 25/26.2.2000. Complainant's brothers Haseen Haider and Ejaz Haider had grudge against the complainant on account of partition of the property. Today finding it opportune, the two appellants entered into the house of the complainant and asked their mother (deceased Shakila Begum) that they have been given lesser share in the property and while saying so, Haseen Haider fired at his mother Smt. Shakila Begum and escaped from the scene. The complainant took his mother in injured condition to the Government Hospital by car where she succumbed to her injuries. It was specified in the first information report that the dead body was lying in the car in Government Hospital, Bhopa, report be lodged and appropriate action be taken. Contents of this written report were entered into the concerned Chik FIR (exhibit Ka-5) at Crime No. 29 of 2000, P.S. Bhopa, District Muzaffarnagar at 8.15 a.m. on 26.02.2000. Thereafter, the investigation followed.
Record reflects that Constable Subhash Chandra P.W.4 received written information regarding death of Smt. Shakila Begum on 26.02.2000 at 6.05 a.m. given by Mohd. Khalid, Ward Boy of Primary Health Centre, Bhopa. This written information was entered in the concerned G.D. and has been proved by Constable Subhash Chandra PW-4 as Exhibit Ka-3. Relevant entry regarding the same was made in the concerned G.D. which G.D. has been proved by PW-4 as Exhibit Ka-4 and thereafter inquest report of dead body of Smt. Shakila Begum was prepared by Raj Pal Singh, Sub Inspector, PW-7. After preparation of inquest report, relevant papers were also prepared for sending the dead body for post mortem examination. Post mortem examination on the dead body of Smt. Shakila Begum was conducted on 26.02.2000 at 4:45 p.m. wherein following four ante-mortem injuries were found on the body of the deceased:
1. Gun shot wound of entry 2.5 cm x 1 cm x muscle deep on left side back of neck, 4 cm above the outer end of left clavicle. Margins inverted and lacerated, no blackening, tattooing and charring.
2. Gun shot wound of exit 3.5 cm x 2 cm, corresponding to injury no. 1 gun wound of entry. Margins everted lacerated. Corotid, artery, soft muscle & trachea is badly lacerated.
3. Lacerated wound 3.5 cm x 1 cm x muscle deep on left side of chin.
4. Abrasion 2.5 cm x 1 cm on back of right forearm middle part.
In the opinion of the doctor, the cause of death was due to shock and haemorrhage due to ante-mortem injuries. Post mortem examination report is Exhibit Ka-13 on record.
The Investigating Officer also recorded the statements of a number of witnesses under Section 161 Cr.P.C. and prepared the memo of blood stained pillow cover which is Exhibit Ka-11. The Investigating Officer also took sample of simple and blood stained soil from the spot and prepared memo of the same which is Exhibit Ka-12. The Investigating Officer also prepared the site plan which is Exhibit Ka-6 whereas it should be numbered as Exhibit Ka-6A, for the reason that relevant G.D. entries regarding lodging of criminal case at case crime no. 29 of 2000 under Section 302 IPC on 26.02.2000 at police station Bhopa has already been proved as Exhibit Ka-6. Although the learned trial court has also referred the site plan as Exhibit Ka-6, in its judgment, it should be taken as Exhibit Ka-6A. The Investigating Officer after completing the investigation filed charge sheet Exhibit Ka-8 against the appellants.
Thereafter, the case was committed to the court of Session from where it was made over for trial to the court of Special/ Additional Sessions Judge, Muzaffarnagar.
As a sequel to it, the appellants were heard on the point of charge and prima-facie ground was found existing for framing of charge under Section 302 read with Section 34 IPC. The charge was read over and explained in Hindi to the appellants who denied charges and opted for trial.
In order to prove its case, the prosecution produced in all eight witnesses. Besides, the trial court also examined CW-1 Akash Sharma and CW-2 Dr. Rameshwar Dayal. A brief reference of prosecution witnesses may be noticed here. Ali Abbas P.W.1 is witness of fact for preparation of two memos, one is blood stained pillow cover and the other is simple soil and blood stained soil from the spot. He has turned hostile and did not support prosecution story regarding preparation of above two memos/ Fard. Akmal Ali P.W.2 claims himself to be an eye witness of the incident. Km. Shadab P.W.3 is daughter of Gulzar Haider. She is sister of P.W.2 Akmal. She has also claimed herself to be eye witness of the incident like PW-2 Akmal Ali. Constable Subhash Chand P.W.4 has proved fact regarding receiving of the written information at Police Station Bhopa on 26.02.2000 at 6.05 a.m. from one ward boy Mohd. Khalid of P.H.C., Bhopa and has proved this written information as Exhibit Ka-3. He also proved relevant entries made in the concerned G.D., as Exhibit Ka-4. Besides, he has also proved the concerned chik FIR Exhibit Ka-5 and the concerned G.D. whereby the case was registered at Crime No.-29/2000 under Section 302 IPC P.S. Bhopa as Exhibit Ka-6. Zille Haider who happens to be son of the deceased Smt. Shakila Begum has been examined as PW-5. He has turned hostile and has not supported prosecution case. He has gone to the extent of stating that the FIR was lodged at the instance of Daroga Ji. At that stage, he has been cross examined by the D.G.C. (Crl).
P.W.6 Sri P.K. Singh, who is the Investigating Officer of this case has proved registration of the case at Case Crime No.29 of 2000, under Section 302 IPC against the appellants at Police Station Bhopa. He has also stated that on the basis of written information received from PHC Bhopa regarding death of Smt. Shkila Begum, steps were taken for preparing inquest report and thereafter spot inspection was also made. He has also proved spot inspection Exhibit Ka-6A and preparation of several memos. After completing investigation, he filed the charge-sheet, Exhibit Ka-8 against the appellants.
P.W.7 is Sub Inspector Rajpal Singh, who conducted the inquest report of deceased Shakila Begum on 26.2.2000 and has detailed various steps which he took in completing the other formalities for sending the dead body for post-motem examination to the mortuary. P.W.8 is Dr. Veer Sal Singh Medical Officer, District Hospital, Sitapur. He has conducted postmortem examination of the dead body of deceased Shakila Begum on 26.2.2000 and has proved the same as Exhibit Ka-13.
Sri Akash Sharma, Deputy Jailor, District Jail, Muzaffarnagar has been examined as C.W.1. He has proved different identifying marks existing on their physique (Appellants Ejaz Haider and Haseen Haider) as per the relevant entries made in the concerned register kept in jail in connection with this case (Crime No.29 of 2000) and has proved their identification marks as Exhibit Kha-1.
Dr. Rameshwer Dayal, Deputy C.M.O., Ghaziabad has been examined as C.W.2. He has stated that he was posted as Medical Officer, District Jail Muzaffarnagar, in August 2000. He has also proved like C.W.1 identification marks existing on the person of appellants as noted in Exhibit Kha-1 and has proved his report dated 24.8.2000 as Exhibit Kha-2.
Thereafter the evidence for the prosecution was closed and the statement of both the accused were recorded under Section 313 Cr.P.C., wherein both the appellants have stated that they were in jail on the day of occurrence in the fateful night (26.2.2000). The appellants produced Sunil Kumar as D.W.1. He has elaborated about the physique identification marks (Exhibit Kha-1 and Kha-2) found on the person of both the appellants.
Learned trial court after appraisa l of the evidence on record and considering the submissions so made before it, passed the aforesaid judgment and order of conviction dated 28.9.2007 and sentenced the appellants to imprisonment for life with a fine of Rs.10,000/- each, in case of default, they were directed to undergo two years' additional rigorous imprisonment.
Consequently, this appeal.
It has been vehemently contended by Shri Rajul Bhargava, learned Senior Counsel appearing on behalf of the appellants that the circumstances are self speaking and explanatory that the incident was not witnessed by any one. The statement of the two eye-witnesses, particularly, P.W. 2 and P.W. 3 Akmal and Km. Shadab respectively, regarding the occurrence is wholly improved one, tutored and is on the face in material contrast to the manner and occurrence of the alleged incident, and their statement recorded under Section 161 Cr.P.C. Both of them have categorically stated that both assailants Ejaz Haider and Haseen Haidar were possessing guns in their hands, but no such statement was ever recorded under section 161 Cr.P.C. Similarly, both of them have not stated in their statement under Section 161 Cr.P.C. about witnessing the incident and on these points, the Investigating Officer P.K. Singh has not supported them on these two material points. More so, the incident allegedly took place inside the room and admittedly there is one gun shot entry would corresponding to one exit wound but no 'tikali' or bullet or pellet, has been recovered from inside the room. This particular aspect itself establishes that the so called witnesses have not seen any such incident but they are tutored witness.
Thus, there is doubt on the veracity of the prosecution version and particularly the manner of the incident that it was caused by the appellants. Not only this, the place of occurrence is inside the room and it has nowhere come in the testimony of the two eye-witnesses (P.W.2 and P.W.3) nor in the examination in chief of the Investigating Officer P.K. Singh P.W. 6 that he found blood under the cot on which deceased Shakila Begum was shot at. Although, it has come on record that the blood oozed out on the pillow cover, but there is no whisper and the entire prosecution case is woefully silent about the fact of blood falling on the ground/floor. Further, there is no description about the nature of the floor of the room whether it was cemented or non-cemented one. More so, the Investigating Officer, of his own, in order to create complicity of the appellants in this case, has deliberately manufactured evidence regarding the place of occurrence by collecting blood stained soil from under the cot of the deceased which, by no stretch of imagination, can stand to reason of an ordinary prudent man. Again, the post morten examination report indicates about 4 ante mortem injuries on the body of the deceased and injury no. 3 and 4 have been specified to be lacerated wound and abrasion on chin and right fore arm respectively. These two ante-mortem injuries have not been properly explained by the prosecution.
Once the propounded theory of gun shot/fire is accepted, then injuries no. 3 and 4 rules out the theory of single fire being caused at the time of the incident. In fact, the incident was not witnessed by the witnesses. They have every motive to falsely implicate the appellants for the reason that father of the P.W. 2 Akmal and PW-3 Kumari Shadab is on inimical term with the appellants and case/report had also been lodged previously by the father of the P.W. 2 and 3 against the appellants. Therefore, they had every reason and concrete purpose to somehow falsely implicate the appellants in this case in order to grab the property. More so, in respect of the very cause and motive assigned for committing the crime of giving lesser land to the appellants as their shares, it is admitted to the prosecution that property in question was exclusively owned by the father of the appellants and the deceased Shakila Begum was nowhere in the scene as owner of the property and has no role to play regarding share of the appellants in the property, therefore, murder of Shakila Begum has got no relevance with the claim over the property of the share of appellants. Had it been so, then the appellants would have, in all eventuality, killed their father who owned the property or would have caused any other harm to him, but, in no case they could have killed their mother, as that would become futile and foolish exercise for the appellants.
Learned counsel further added that trial court has embarked on fantasy and imagination and has itself formed opinion without any basis that the ante mortem injuries no. 3 and 4 found on the body of the deceased might have been caused at the time and during course when the deceased was being taken away to the hospital by car. This finding is not supported by any piece of evidence, whatsoever. Therefore, the finding so recorded is on the face perverse and erroneous and the same is liable to be set aside because this assumption by the trial court has not been supported by the testimony of the witnesses of fact and has also not been gathered from the proved circumstances of this case. Plea of alibi was rightly taken and it was proved under circumstances but the trial court itself entered into roving inquiry by adopting false notion of comparison in identifying marks.
Shri A.N. Mulla, learned Counsel on behalf of the State has refuted the arguments so advanced on behalf of the appellants and clarified that the presence of the eye witnesses on the spot inside the room is most natural and the same cannot be doubted. There was no occasion for the witnesses to falsely implicate the appellants because they will not spare the real assailants. Lodging of the FIR has been proved by the P.W. 6 P.K. Singh, Investigating officer. It is for the appellants to explain as to why and how they killed Shakila Begum when she had no ownership right over the property in question. The place of occurrence is well proved by the eye witness account of the incident and by the Investigating officer. The blood stained pillow cover has been taken into possession and memo was prepared for the same. The manner of the incident has been specifically described by the eye witnesses P.W. 2 and 3 and their testimony is clinching and inspiring confidence. The appellants have taken false plea of alibi which after considerable scrutiny was found incorrect and plea of alibi has been taken as an excuse for committing the crime. The trial court has taken consistent view of the matter.
In view of above rival submission, we have to ascertain whether the prosecution version of incident has been reasonably proved against the appellants?
Before dealing with the merits of the case, we consider it proper to have a glimpse of the contents of the first information report. From perusal of the first information report, it is reflected that the complainant Zille Haider lodged FIR against his real brothers Ejaz Haider and Haseen Haider that they klled his mother Shakila Begum inside his house by firing on her at about 2.00 a.m. on 26.2.2000. At that point of time, there were other persons also who were sleeping in the concerned room apart from the complainant, they were the deceased, nephew and niece of the complainant who were sleeping on separate cots when the incident took place. First information report indicates the motive and the purpose of killing the deceased Shakila Begum who happens to be real mother of the appellants and the complainant. The utterance used by the appellants at the time of commission of offence was confined to their anguish for giving them lesser land.
In this particular factual background of the case, we are required to determine the authenticity and veracity of the prosecution version as to whether the incident, in fact, was caused by the appellants and it was witnessed by the eye witnesses or whether witnesses have been thrusted upon and procured in this case just for availing conviction! At this juncture, we discover in the testimony of Zille Haider P.W 5 that he, though claimed in the FIR to have been present inside the room when the incident took place has not supported the incident being committed by the appellants. He has denied the complicity of the appellants in the incident. He has specifically stated in his examination in chief that he has no knowledge as to who killed his mother, though, he has admitted his signature on the first information report, but he has elaborated that the contents were taken down on the dictation Darogaji. In his cross examination, he has admitted that there was enmity between the appellants and these witnesses. He was asked question that he has described in the first information report registered on 26.2.2000 at about 2:00 a.m. regarding murder of his mother Shakila Begum that nephew Akmal Ali, niece Shadab and the complainant were sleeping inside the room at that point of time, but this witness replied to the question that he was not present on the spot. He has gone to the extent that he had written all these contents in first information report at the instance of his elder brother. He has reiterated that the contents of the FIR were written on the dictation of Darogaji. He has further stated that the persons who killed his mother had also looted jewellery and clothes of his house and his elder brother Gulzar and his wife, were also present in the village on that day. In the last line of his testimony, in cross examination, he has stated that the first information report was lodged only after dead body was sealed.
We may now scrutinize the testimony of eye witnesses P.W. 2 Akmal and his sister P.W. 3 Km. Shadab. In their examination in chief, both the witnesses have corroborated the contents of FIR and submitted that it was around 2:00 a.m. on 26.02.2000 when the appellants appeared inside the room and asked their grandmother (deceased) that she had given lesser land to them, whereupon the deceased said to them that the land is owned by their father and not by herself. on this, Haseen Haider shot fire which hit on the neck of grandmother and thereafter, they escaped from the scene. The incident was witnessed by them in the light of illuminated electric bulb in the room. Their grandmother succumbed to the injuries while she was on the way to hospital. In their cross examination, both the witnesses have stated that some dispute was existing between their father and Zille Haider, the complainant on the one hand and the appellants on the other hand. They have also stated that both the appellants were possessing country made pistol at the time of occurrence. It has also come in their testimony that in some case report had also been lodged by their father prior to the incident in question against the appellants. It is admitted position that their grandmother (P.W.2 and P.W.3) did not own any land as such. It has also come in their testimony that shot was fired when their grandmother was talking to the appellants and they were face to face with the deceased. But description/narration of the incident has been testified by P.W. 2 and 3. Haseen Haider shot fire when the deceased covered her face with the bed sheet and the fire was shot at point blank range, but, the doctor who conducted post mortem examination has testified that injury no.1 cannot be caused when the assailants and deceased were face to face with each other. He has further stated in his cross examination that injuries which are stated to have been caused at 2:00 a.m. might have been caused prior in time at 10.00 p.m. (the same very night).
Perusal of the post morten examination report Ext. Ka.-13 reveals that there was no blackening and tattooing in the wound (ante-mortem injury no.1). Normally, when fire arm injury is caused then blackening and tattooing is found on the wound. Further, as per claim of these witnesses, the complainant Zille Haider was also asleep inside the room at the time of occurrence, but the assailants did not cause any harm to him although they were inimical to him and they had ample opportunity to cause harm to the complainant. The investigating Officer has stated in clear cut terms that the eye witnesses (P.W.2 and P.W.3) had not stated in their statement that both the assailants were armed with country made pistol but they stated that only Haseen Haider was possessing country made pistol. More so, P.W. 6 P.K. Singh has also testified that not a single witness stated that he saw the incident in question.
Thus, on two material points of witnessing the incident, the statement of the eye witnesses P.W. 2 and 3 is full of contradictions and self explanatory of fact that they were either not present on the spot or if they were present, then they did not witness the incident. If both of them in fact witnessed the occurrence, then how and why they stated before the trial court that both the assailants were possessing country made pistol in their hands. Had it been so that they witnessed the incident, then at the initial stage, this particular evidence/testimony must have been recorded by the Investigating officer in their statement under section 161 Cr.P.C. More so, it has come in their testimony that fire was shot when the assailants were face to face with the deceased, but this factual description was not so as per their own version the fire was allegedly shot by Haseen Haider one of the appellants and that too at a time when the deceased had covered her face with bed sheet. As per their testimony (P.W.2 and P.W.3), the fire was shot almost at the point blank range but there is no tattooing and blackening in the injury no.1 i.e.- gun shot entry wound on the neck.
It has come in the testimony of P.W. 6 P.K. Singh that he visited the place of occurrence but he did not recover any pellet, bullet or any 'tikali' either on the floor of the room or anywhere else ( inside the room) and he found no mark of any pellet or bullet even on the wall of the room. This fact by itself, negates very claim of the eye witnesses that they witnessed the incident, for the reason that in case the fire was shot at point blank range and there is firearm exit wound (as per PMR) also then, it is obvious that some pellet or bullet must have been recovered from inside the room. But no such bullet, pellet or mark was found inside the room as such, the testimony of the Investigating officer, very much creates doubt regarding the manner and style of the occurrence itself.
Moreso, it has nowhere been established that the blood also spilled on the floor of room under the cot on which the deceased was sleeping and was killed. Then, how the Investigating officer collected the blood stained earth/soil from under the cot on which the deceased was sleeping. Only this much has come in the testimony of the eye witnesses that the blood was spilled over the pillow cover and the memo of pillow cover was also prepared by the Investigating officer as Exhibit. Ka. 11. It has nowhere come on record by testimony that blood so oozing out from wound ever spilled over the floor of room, then the theory propounded by the Investigating Officer that he also collected blood stained soil from under the cot of the deceased, is not established under circumstances and as such memo of blood stained earth is wholly improbable and unreliable.
More so, testimony of the two eye-witnesses Akmal P.W.2 and Kumari Shadab P.W.3, respectively read as a whole jointly with the testimony of P.W.6 P.K. Singh (I.O.) overwhelmingly reflects that there is no whisper about any drop of blood falling down on the floor under the cot on which the deceased Shakila Begum was sleeping. On the fateful night, in the absence of any such conspicuous testimony that the blood of deceased Shakila Begum in fact was found on floor of the room under her cot, it cannot be assumed and imagined merely on the statement of aforesaid three prosecution witnesses that the blood must have spilled on the floor under the cot of deceased. In this regard, irresistible testimony has come on record that the deceased was using bed-sheet and mattress and the blood spilled on the pillow cover, which pillow cover was taken into possession by the Investigating Officer as it was imbued with blood stains and memo of the same was prepared as Exhibit Ka-11. Therefore, story regarding collection of blood stained soil from the spot under the cot of the deceased is under circumstances rendered improbable and tantamounts to cooked up version to give extra thrust to the prosecution case.
We are conscious of fact that the witnesses and circumstances may be either wholly reliable or wholly not reliable or it may be partly reliable or partly unreliable. Here under given facts and circumstances of the case, we after careful scrutiny of the entire evidence and circumstances on record, discover that the place of occurrence is wholly unreliable and the same cannot be taken to have been proved for varying description of the incident by the witnesses of fact-P.W.2 and P.W.3-respectively, and the contradictions appearing in their testimony given in court and the statement recorded by the I.O. under Section 161 Cr.P.C.
In so far as the plea of alibi raised by the appellants is concerned, their failure to prove the plea of alibi will not by itself prove their culpability in the offence. Guilt of appellants has to be proved beyond reasonable doubt only by the testimony of the prosecution witnesses and relevant circumstances of the case. It is obvious that land in question was owned by the husband of the deceased, therefore, the appellants might not have any occasion to kill Shakila Begum in the name of acquiring lesser share in land. It is reflected from the testimony of P.W. 2 and 3 that their grandfather who owned the property was also sleeping around the place of occurrence in the night on 26.2.2000, but no attempt whatsoever was made to eliminate him by the appellants which creates doubt on the motive imputed by the prosecution for killing the deceased as mentioned in the first information report itself and in the testimony of eye witnesses PW-2 and PW-3. Deceased had no concern with the land nor has it appeared in testimony of prosecution witnesses that she ever played any role in distribution or partition of land so owned by her husband.
Now, we may also discuss ante-mortem injuries no. 3 and 4 as proved by the doctor (P.W.8) in the post mortem examination report Exhibit Ka-13. Admittedly the abvoe two injuries have been stated to be ante mortem injuries of nature and dimension-lacerated wound 3.5 cm x 1 cm x muscle deep on left side of chin (ante-mortem injury no.3). Similarly ante-mortem injury no. 4 has been described as abrasion 2.5 cm x 1 cm on the back of right forearm middle part.
In so far as aforementioned, two ante mortem injuries are concerned, there is no whisper as to how and when these injuries were caused and doctor has not expressed any opinion as to how these ante-motem injuries have been caused. Certainly, learned trial court while expressing opinion on both these injuries conjectured and assumed without any basis that these injuries might have been caused during the course of conveying/taking away the deceased to the hospital from the place of occurrence by car. Pertinent question arises as to from where, the learned trial court found this figment of imagination when there was no material on record supporting such specific finding, therefore, such finding, in absence of any supporting material, becomes wholly perverse and erroneous. It was incumbent on the prosecution to have proved consistently these ante-mortem injuries (no.3 and 4) as to how these injuries were in fact caused on the body of the deceased and the prosecution has failed utterly to establish the same. Trial court is not expected to fill in the lacunae in prosecution case by resorting to its own whims and imagination.
We have also discussed that PW-5 Zille Haider, the first informant has not supported the incident. May be, that he also turned hostile and he is not interested in telling the truth, but it is not a case where the first informant remained intact in his examination-in-chief, but turned hostile in his cross examination. His entire testimony when read as a whole reflects that this first information report was lodged on the dictation of Daroga Ji and that too after the dead body was sealed. Therefore, the corroborative force that was required in this case regarding winning over of this witness by the appellants is missing which also creates doubt on the authenticity of the prosecution case. The objectivity of judicial scrutiny is to separate grains from the chaff, for which it has to be established that charge framed against accused must be proved beyond reasonable doubt. If reasonable doubt is created then benefit should indeed go to the accused.
For recording conviction it is imperative that the testimony of the eye witness should be consistent and clinching and it cannot be said by any stretch of imagination that the evidence so forthcoming is either inconsistent or wholly unreliable as is the case in hand. Here only two eye witnesses have been produced who are none other than the son and daughter of Gulzar (brother of complainant and the appellants) and both are interested witnesses, for the reason that Gulzar had lodged a report regarding assault against both the appellants prior to the incident, otherwise, how can they give contradictory testimony before the trial court which is not supported by their statement recorded under Section 161 Cr.P.C. on material points. In this case at hand there is long series of doubt. A doubt is created, regarding gun shot/ fire caused from point blank range on the neck of the deceased inside the room. A doubt is further created about the very place of occurrence from where the Investigating Officer allegedly took the sample of blood stained earth from under the cot of the deceased as there was no such evidence regarding spillage of any blood under the cot of the deceased. Next, there is exit fire arm wound and place of occurrence is located inside the room, but no pellet, bullet whatsoever, have been recovered from inside the room. Even no marks of any such pellet or bullet were found on the wall of the room. Strangely enough, the statement of both the eye-witnesses was recorded under Section 161 Cr.P.C. but there is no mention that they witnessed the incident. Thus, their claim that they have witnessed the incident turns out to be wholly unreliable and the witnesses are not worthy of credit on the ground that in case their version is taken to be correct one on the whole, the same does not answer reasonably and satisfactorily to the above doubts mentioned herein above regarding the actual occurrence. Therefore, a holistic approach towards the incident and proper appraisal of the evidence vis-a vis circumstances on record would go to suggest that the prosecution has not been able to prove its case against the appellants beyond shadow of reasonable doubt and the trial court based its finding of conviction mostly and primarily on assumptions, conjectures and surmises rather than on the evidence and circumstances of the case.
In our considered opinion, the arguments urged on behalf of the appellants by their counsel, do carry force and we are in agreement with the same and hold that the charge framed under Sections 302/34 IPC against the appellants, have not been found proved beyond reasonable doubt, as such, the appellants are held not guilty for the aforesaid charge in case crime no.29 of 2000, P.S. Bhopa, District Muzaffarnagar.
Consequently, the judgment and order dated 28.09.2007 passed by Special/ Additional Sessions Judge, Muzaffarnagar in Sessions Trial No.556 of 2000 arising out of Case Crime No. 29 of 2000 under Section 302 IPC, Police Station Bhopa, District Muzaffarnagar is not sustainable in the eye of law and the same is hereby set aside and the appellants are found not guilty under aforesaid charge and they are acquitted of the same.
In this case appellant Ejaz Haider is on bail. He need not surrender before the court concerned. His sureties and personal bonds are discharged. The appellant Haseen Haider is in jail. He shall be set at liberty forthwith, if he is not wanted in connection with any other case after compliance of the provision of Section 437A Cr.P.C.
Accordingly, both the appeals are allowed.
Let a copy of this order be certified to the court concerned for intimation and necessary follow up action.
Order Date :- 13th May 2016 RK/IrfanUddin