Court No. - 43
Case :- CRIMINAL APPEAL No. - 1042 of 1983 Appellant :- Talla & Others Respondent :- State Of U.P.
Counsel for Appellant :- M. Aslam, Manzoorul Islam Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 1045 of 1983 Appellant :- Sarwar Ameer Respondent :- State Of U.P.
Counsel for Appellant :- Mohan Chandra,A P Paul,Anand Prakash Paul,B B Paul,Brij Bhushan Paul Counsel for Respondent :- Govt. Advocate
Hon'ble Pankaj Naqvi, J Hon'ble Krishna Pratap Singh,J
(Delivered by Krishna Pratap Singh, J. ) Appellants Talla and Salauddin after being convicted and sentenced by the learned Special Judge, Disturbed Areas Special Court, Aligarh in Special Case No. 2 of 1980 filed Criminal Appeal No. 1042 of 1983, whereas appellant Sarwar Ameer alias Dudu filed Criminal Appeal No. 1045 of 1983 after his conviction and sentenced in Special Case No. 2-A of 1980. By the impugned order learned Special Judge convicted and sentenced the appellants Talla alias Chaman Salauddin and Sarwar Ameer to life imprisonment under Section 302/34 IPC.
However, by the same order learned Special Judge acquitted appellants Talla, Salauddin and Sarwar Ameer for the offence punishable under Sections 120-B, 147 and 148 IPC.
Learned Judge also acquitted accused-Hamid Ali, Haneef and Babbu for the offence punishable under Sections 120-B, 147 and 302/149 IPC, whose names have surfaced on the basis of test identification parade.
Since, both the afore-captioned criminal appeals have been filed questioning legality and correctness of the order dated 27.4.1983 passed by the Special Judge, Disturbed Areas Special Court, Aligarh convicting and sentencing the appellants to life imprisonment under Section 302/34 IPC, they have been heard together and are being decided by means of this common order.
Since, during pendency of appeal, appellant Talla alias Chaman died, the appeal filed on his behalf abated vide order dated 18.7.2016.
In short compass, the facts of the case are that a written report (Ext. Ka-2) was lodged by Raj Kumar on 3.7.1979 at police station Kotwali to the effect that his brother-in-law (Bahnoi) Anand Prakash (hereinafter referred to as “the deceased”) was residing with him in Mohalla Katra and was working at the cloth shop of Shri Krishan Lala situated at Mohalla Fafala. It is alleged that the deceased used to open the shop every day after bringing the keys from the house of shop owner, which was situated at Baniyapara. After communal riot in city, deceased used to go to Baniyapara through Mohalla Kanwariganj beneath Hathiwala bridge. As usual at 9.00 AM, the deceased was going to Baniyapara for taking the keys and when he came out from lane and reached on the road of Boora-wala Bazar, Salauddin and Talla, who resides in the same Mohalla, met him and asked the deceased 'Lalla' where are you going?. On being told by deceased that he is going to fetch keys from Baniyapara, both Salauddin and Talla told him that they are also going to Baniyapara, let them go through Mohalla Farsh, which was a shorter route. As Salauddin and Talla were the neighbour, the deceased did not make any suspicion on them and they proceeded together. Surendra, who was purchasing Boora from a shop asked deceased not to accompany them. However, both of them parried the suspicion of Surendra and took the deceased to lane of Tantanpara through Mohalla Farsh. It is further alleged in the report that at the same time a stabbing took place near by-pass, thereafter he rushed to his house and told about this incident to his family members. Thereafter, informant along with Surendra Kumar, Om Prakash and Jeevan Prakash of his Mohalla went through Mohalla Farsh towards Tantanpara and saw that in the lane of retired sub-inspector of Police Riyaz Mohammad Khan, the deceased was going with some persons. Informant and others chased them and as soon as the deceased reached in front of Karkhana of Anwar in the lane, Sarwar Ameer alias Dudu, Atishbazan, Jan Mohammad, Talla, Salahuddin, Abdul Rahman Shutterbaz and 2-3 unknown persons, to them they can identify, at about 9.15 AM caught hold of the deceased. When the informant and other witnesses shouted for help, Sarwar Ameer alias Dudu gave him a knife blow on the Kokh of the deceased. On being stabbed by knife, the deceased ran towards Mohalla Shekhan. Seeing the informant and witnesses, accused also fled towards Mohalla Shekhan. By the time, the witnesses reached the place of occurrence, deceased succumbed to the injuries.
On the basis of aforesaid report (Ext. Ka-2), a case was registered at case crime No. 388 of 1979, under section 147/148/302 IPC, police station Kotwali, district Aligarh.
On an information being received about the murder of Anand Prakash, PW-2 Shri Laxmi Raj Singh, Circle Officer (City) rushed to the spot and found the dead body of deceased near Haji Shafi building at about 9.45 or 10.00 AM. He deposed that as the situation was tense, he immediately shifted the dead body to police line. Thereafter, information was sent to police station Kotwali of the occurrence.
After information, PW-10, SI Manohar Singh visited the police line and conducted the inquest on the body of deceased (Ext. Ka-5). Thereafter, he prepared necessary documents and on the same day, he inspected the spot and collected bloodstained and plain cement from the road, prepared its memo (Ext. Ka-6), sent the same to the Forensic Science Laboratory. He also recorded the statement of the informant. Thereafter, investigation of the case was transferred to SI Siya Ram, who after completing the investigation submitted charge sheet against accused (Ext. Ka-11).
As case was exclusively triable by Court of Sessions, learned Magistrate committed the case to the Court of Sessions and learned Judge, Disturbed Areas Special Court, Aligarh vide order dated 16.12.1981 framed the charges against accused Sarwar Ameer alias Dudu under Sections 302, 120-B, 148 and 302 IPC. Learned Judge also framed charges against accused Talla, Salauddin, Hamid Ali, Hanif and Bablu under Sections 302, 120-B, 147 and 302/149 IPC vide order dated 04.2.1982.
To bring home the guilt of appellants, the prosecution examined as many as 13 witnesses, out of whom PW-3, Om Prakash, PW-4, Jeevan Prakash, PW- 5 Surendra Kumar, PW-6 Satyendra Kumar and PW-7, Dev Datt were witnesses of fact and remaining formal witnesses.
PW-1, Shri Rajeev Chandra was posted as ADM, Development, Ghaziabad and he only got the test identification parade conducted.
PW-2 Shri Laxmi Raj Singh was posted as Circle Officer (City) and after occurrence he rushed to the spot and shifted the dead body to the police line and informed the police Station Kotwali.
PW-3, Om Prakash deposed in his examination- in-chief that he knew Anand Prakash, the deceased. On the date of occurrence, he was told by Raj Kumar and Surendra that Talla and Salauddin took Anand Prakash towards Tantanpara. On this information, he along with Raj Kumar and Jeevan, left for tantanpara via Farsh and when he reached Mohalla Shekhan, he saw the deceased along with 8-10 persons, out of whom, he identified Talla, Salauddin, Abdul Rahman Shutterbaz and Jan Mohammad.They killed Anand Prakash. However, he did not see as to who stabbed Anand Prakash.
PW-4, Jeevan Prakash deposed in his examination-in-chief that he knew the deceased. On the date of occurrence, he received information from the informant Raj Kumar, Surendra Kumar and Om Prakash that Salauddin and Talla took Anand Prakash, towards Tantanpara via Farsh. When, he reached Tantanpara, he saw that some persons were taking deceased with them. He further deposed that he saw the deceased near the house of retired inspector. The deceased was taken away by eight persons, out of whom he knew the names of Dudu alias Sarwar, Ameer, Jan Mohammad, Salauddin, Talla and Abdul Rahman. This witness also deposed that Dudu alias Sarwar Ameer stabbed the deceased on his Kokh, due to which deceased died at the spot.
PW-5, Surendra Kumar deposed in his examination-in-chief that he knew the deceased. On the date of occurrence at about 8, 8-1/2 AM, he had gone to Boora Wala Bazar to purchase Boora. At that time deceased met Salauddin and Talla, who asked the deceased 'Lalla' where are you going? On being told by deceased that he is going to fetch keys from Baniyapara, thereupon, both Salauddin and Talla asked the deceased that they are also going towards Baniyapara, let us go through Farsh, which is a shorter route. Deceased accompanied both of them. He further deposed that he asked the deceased not to go with them. However, both of them on the pretext that they are all neighbours, took the deceased with them. In the meantime, Raj Kumar, the informant arrived, whom he told about going of deceased along with Salauddin and Talla. Informant called Jeevan Prakash and Om Prakash at that place. Thereafter, all of them went towards Tantanpara via Farsh. As soon as he reached at the lane of retired Inspector, he saw that eight persons had caught hold of Anand Prakash, out of whom he recognised Salauddin, Talla, Jan Mohammad, Sarwar Ameer alias Dudu and Abdul Rahman and remaining three were unknown. When he along with other witnesses made hue and cry, Sarwar Ameer alias Dudu gave a knife blow on the Kokh of deceased. He further deposed that after hearing hue and cry of witnesses, accused fled. Deceased fell down after running a slight in the same direction in which accused were running. When this witnesses reached the spot, the deceased died.
PW-6, Satyendra Kumar was the scribe of the FIR. He deposed that he wrote the report on dictation of the informant Raj Kumar on which informant put his signature.
PW-7, Dev Datt deposed that on the date of incident at about 8 or 8-1/2 AM he had gone to take certain articles and when he was coming back he heard Khalid saying that a Muslim had been killed at the by-pass. Thereupon, a person said that, if that be so, then Hindu should also be killed. Thereafter, this witness left the place.
PW-8, Fatah Chandra Chaturvedi deposed in his examination-in-chief that on 05.7.1979 he along with SHO Siya Ram and PC Shri Baburam raided the house of the accused, but they were not at home. Thereafter, on the information of the informer that accused had hid themselves in Company Bagh, they arrested Hanif and Babbu and brought to the police station after concealing their face.
PW-9, Harshvardhan Gaur deposed in his examination-in-chief that on the date of occurrence he was posted as SI at police station Kotwali, Aligarh. On 05.7.1979 he along with Head Constable Mahabir Singh and Constables Raj Kishore and Ram Bharose arrested accused Hamid along with knife and brought to the police station.
The evidence of PW-10, Manohar Singh has already been discussed above.
PW-11, Constable Babu Ram and PW-13 Constable Rajveer Singh were examined to prove that accused were brought to the police station by hiding their faces and from police station to Jail, they were taken after concealing their faces.
PW-12, Raj Kumar is the first informant and brother-in-law (Sala) of the deceased. He reiterated the version given in the FIR. He further deposed that deceased left for Baniyapara along with Talla and Salauddin. He was present at Farsh, but he did not forbid the deceased. At Boora-wala Bazar, he met Surendra Kumar whom he asked as to whether he met the deceased. Thereafter he left for his home. Thereafter, he left for Farsh along with Om Prakash, Jeevan Prakash and Surendra. On reaching Farsh, he saw the deceased, Talla and Salauddin at very large distance. Thereafter he along with other witnesses, chased them. Before they could reach there, Dedu gave knife blow. Along with Talla and Salauddin, 2-3 persons were also there, whose names are not known. After receiving blow, deceased fell down after 2-3 paces.
After closure of the prosecution evidence, the statements of the accused-appellants were recorded under Section 313 Cr.P.C., in which they denied the occurrence and claimed false implication due to enmity and claimed to be tried.
However, learned Special Judge, Disturbed Areas Special Court, Aligarh after hearing the learned counsel for the parties and scrutinizing and assessing the evidence on record, convicted and sentenced the appellants as indicated above, hence these appeals.
However, by the same order, learned Judge acquitted accused Hamid Ali, Haneef and Babbu of the charges levelled against them. These are the persons, who were not named in the first information report and they have been charge sheeted on the basis of their identification by the witnesses in the test identification parade.
In this case since the genuineness of post- mortem report has been admitted by the defence, doctor, who conducted the post-mortem examination has not been examined.
Heard Shri N.I. Jafri, learned counsel for the appellants and Shri A.N. Mulla, learned Additional Government Advocate and perused the record of the case.
Learned counsel for the appellants submits that murder had been committed by some other persons and appellants have falsely been implicated in this case due to enmity with the police as well as witnesses, who are related to each other. He further submits that there are material contradictions in the evidence of witnesses and learned Special Judge has not appreciated the evidence on record in correct perspective.
Per contra, Shri A.N. Mulla, learned Additional Government Advocate contended that the prosecution was successful in bringing home guilt of appellants to the hilt and that the findings of guilt recorded by trial court are well reasoned and require no interference.
Since Hamid Ali, Haneef and Babbu, whose names have surfaced on the basis of test identification parade, have been acquitted by the learned Trial Court, we shall refrain ourselves from discussing the merit or demerit of test identification parade and the order of learned Judge acquitting the accused.
So far as contention of the learned counsel for appellant that murder had been committed by some other persons and appellants have falsely been implicated is concerned, it is to be noted that initially the prosecution case, as set up by the informant Raj Kumar in the FIR, started with the presence of two accused namely, Salauddin and Talla, who met the deceased and persuaded him to go with them as they were also going to the same place, i.e. Baniyapara and both the accused and deceased proceeded together. Later on, with the passage of time, the number of accused also started increasing and at what point remaining accused joined them has not been mentioned.
The contention of the learned counsel finds support from the statement of PW-2, Circle Officer Laxmi Raj Singh, who deposed in his evidence on oath that when he got information on wireless about the death of deceased, he immediately rushed to the spot and found the dead body of deceased near Haji Shafi building at about 9.45 or 10.00 AM. He further deposed that as the situation was tense, he immediately shifted the dead body to the police line. He also stated in his evidence that at the spot several persons were present there including members of both the communities, out of which 3-4 persons claimed themselves to be the eyewitnesses, which included both Hindus and Muslims and whose names have been noted in the diary, but they have not been examined. He further went on to say that charge sheet was submitted through him in which no Muslim was made an eye-witness.
Further, from the perusal of the statement of the Circle Officer Shri Laxmi Raj Singh, also goes to suggest that prosecution witnesses have not seen the occurrence and after the occurrence with due deliberation, the accused have been falsely roped in the present case.
So far as enmity is concerned, PW-3 Om Prakash in his cross-examination has admitted that Talla and Salauddin are his neighbour and some altercation took place with them over drainage water. PW-4, Jeevan Prakash in his cross-examination has admitted that he had edited/printed several news in respect of accused Sarwar Ameer before this incident. PW-5 Surendra Kumar admitted in his cross examination that he has been convicted under Section 409 IPC on the complaint of the accused. In his cross-examination PW-5 deposed that accused Talla and Salauddin used to purchase locks from him and they did not pay Rs. 500/-. Moreover, PW-5 Surendra Kumar in his cross- examination deposed that all the witnesses belong to one fraternity (Biradri).
Before appreciating the next contention of learned counsel for the appellant that there are material contradictions in the statements of the witnesses, it would be useful to refer certain pronouncements of Hon'ble Supreme Court:
In State represented by Inspector of Police Vs. Saravanam and another, AIR 2009 SC 152), Hon'ble Supreme held that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons.
In State of Rajasthan Vs. Rajendra Singh, (2009) 11 SCC 106) held as under:
“Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence.”
In Mahendra Pratap Singh Vs. State of Uttar Predesh, (2009) 11 SCC 334) held as under:
“The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt.”
In the light of the aforesaid observations of Hon'ble Supreme Court, we will now consider whether the contradictions/omissions had been of such magnitude that they may have materially affected the trial.
As per first information report when Salauddin and Talla were taking the deceased, PW-5 Surendra Kumar forbade him from going along with them, meaning thereby that informant PW-12 Raj Kumar was not present at the spot, but PW-12 Raj Kumar in his examination-in-chief stated that on the date of incident he was in Kalwariganj, where Salauddin and Talla met his brother-in-law, the deceased and persuaded him to go with them to Baniyapara and being influenced with their words, the deceased left with them to Baniyapara and he (informant) stayed at Farsh and did not stop the deceased from going along with them. In his evidence, the informant further stated that he was present and although he tried to stop his brother-in-law, but he did not stop him.
It was further stated by the informant in the FIR that at that time a rumour about stabbing at the by- pass floated and thereafter he went to his house and told his family members and then along with Surendra Kumar, Om Prakash and Jeevan Prakash went to Tantanpara through Farsh where they saw the deceased along with Sarwar alias Dudu Atish Bazan, Jaan Mohammad, Talla, Salauddin, Abdul Rahman and 2-3 unknown persons and when they made hue and cry, Sarwar Ameer stabbed the deceased. In the FIR, it has been stated by the informant that 8-9 persons were there along with the deceased, but in his cross examination he deposed that when they chased the accused, Dudu gave knife blow to the deceased. 2-3 unknown persons were also there. In the FIR, specific role of taking the deceased with them has been assigned by the informant to accused-Salauddin and Talla, but in his evidence on oath he deposed that Sarwar Ameer stabbed the deceased and 2-3 unknown persons were also there, which goes to suggest that his evidence is contradictory to the allegations made in the FIR.
PW-4, Jeevan Prakash in his examination-in-chief deposed that he got the information from Raj Kumar, Surendra Kumar and Om Prakash that the deceased was taken away by Salauddin and Talla towards Farsh, but in his cross-examination he deposed that he got the information while he was passing through the road.
PW-5, Surendra Kumar in his examination-in- chief deposed that when he met Raj Kumar at Bura Market, he told him about taking away of the deceased by Salauddin and Talla, thereafter Raj Kumar sent one boy to call Jeevan Prakash and Om Prakash, who came there in ten minutes. The distance of the place where deceased met PW-5 Surendra Kumar from the place of occurrence is about 100 yards as told by PW-5 Surendra Kumar himself and as per his own admission Raj Kumar called Om Prakash and Jeevan Prakash, who reached the spot in ten minutes and thereafter they left through Farsh and saw the incident. It is surprising to note that deceased and accused Salauddin and Talla could not complete the distance of 100 yards in the intervening period of about 20-30 minutes and waiting for the witnesses to arrive at the spot and witnessed the incident.
Although, PW-7 Dev Datt has tried to give communal colour to the incident by deposing in his examination-in-chief that he had gone to take certain articles and when he was coming back he heard Khalid saying that Baboo Bhai a Muslim had been killed at the by-pass, thereupon, a person said that, if that be so, then Hindu should also be killed, however, in his cross-examination, he resiled from his statement.
From perusal of the evidence of the eye- witnesses, it transpired that they are full of material contradiction and inconsistencies and improvement, which create a serious doubt about the truthfulness of the witnesses.
Moreover, the prosecution case is also belied by the facts that as per prosecution case on 03.7.1979, which was a Tuesday, the deceased was going to fetch keys for opening the shop, but to a specific question PW-3, Om Prakash, PW-4 Jeevan Prakash and PW-5 Surendra Kumar have stated that on Tuesday all the shops remained closed at Aligarh including the fact that curfew had been clamped. Therefore, no occasion arises for the deceased to go to Baniyapara to fetch keys for opening the shop.
In view of what has been indicated herein above, we are of the view that prosecution has failed to bring home the guilt of the appellants beyond reasonable doubt.
Accordingly, the order dated 27.4.1983 passed by the Special Judge, Disturbed Areas Special Court, Aligarh, which is impugned in these appeals is set aside. Resultantly, both the appeals are allowed.
Appellants Sarwar Amir alias Dudu and Salauddin are on bail. Their bail bonds are cancelled and sureties discharged.
Office is directed to transmit a copy of this order to the court concerned for compliance and compliance report be submitted to this Court within two months.
( Krishna Pratap Singh, J ) ( Pankaj Naqvi, J ) Order Date :- 30.7.2018 Ishrat