whether on the acquital of some of accused , the number of the accused shall be five or less than five and as such conviction of other accused under sec.302 read with sec.149 IPC not applicable ?
Apex court held that as the original Accused Nos. 6 and 7 are acquitted by the High Court and, therefore, the number of other accused shall be five or less than five and, therefore, the conviction of the original Accused No. 1 for the offence punishable under Section 302 with the aid of Section 149 IPC, is not sustainable is concerned, the same has no substance.
It is required to be noted that, from the very beginning, the case of the prosecution was that 7 to 8 persons entered the house with a common intention to kill the deceased. It is required to be noted that the original Accused Nos. 6 and 7 are acquitted by giving the benefit of
doubt and on the ground that the story put forward by the prosecution that they caught hold of the deceased, is not believable. There is no finding by the High Court while giving the benefit of doubt and acquitting the original Accused Nos. 6 and 7 that they were not present at the time
of the incident. Therefore, the overt act and the role attributed to them is not believable. Even otherwise, so far as original Accused No. 1 and even original Accused No. 2 are concerned, we are of the opinion that the prosecution in the present case has proved beyond doubt the case against them individually for the offence under Section 302 of IPC.
whether once the case against the original Accused Nos.6 and 7 has not been believed and consequently they are acquitted by giving them benefit of doubt, similar benefit of doubt ought to be given to the other accused, more particularly, Accused No.1 also. ?
Apex court held that against A1 and A2 there was direct evidence and as such the principle not applies where as Looking to the dimension of the room and the role attributed to the original Accused Nos.4 and 5, we are of the opinion that the original Accused Nos. 4 and 5 are required to be acquitted by giving them benefit of doubt, as has been given to the original Accused Nos. 6 and 7 by the High Court.
1
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1560 OF 2013
Farida Begum .. Appellant
Versus
State of Uttarakhand .. Respondent
WITH
Criminal Appeal No. 1652 of 2013 and
Criminal Appeal No. 1653 of 2013
J U D G M E N T
M. R. SHAH, J.
1. The present appeals before this Court arise against the
impugned common judgment and order dated 22.08.2012
passed by the High Court of Uttarakhand at Nainital passed in
Criminal Appeal Nos. 235/2004, 239/2004 and 261/2004 by
which the High Court has dismissed the said appeals preferred
by the original Accused Nos.1, 2 and 5 and has confirmed the
conviction and sentence imposed by the learned trial Court
2
convicting them for the offences under Sections 302/149 and
147 of the IPC.
1.1 That, in all, eight accused were tried for the offences
under Sections 147, 148 and 302/149 of the IPC for having
committed murder of one Mukhtar Ahmed. That, out of the
eight accused, three accused namely, Raees Ahmed (A4),
Mohd. Ashraf (A2) and Raees Ahmed @ Satna (A5) were also
tried for the offence under Section 25 of the Arms Act. That,
during the trial, accused Mohd. Aslam (A3) died and,
therefore, the case of the said accused was ordered to be
abated. That, on conclusion of the trial, the learned Additional
Sessions Judge, Fast Track Court, Kashipur, District Udham
Singh Nagar (hereinafter referred to as “the trial Court”) held
all the accused guilty for the offences under Sections 302/149
of the IPC and sentenced them to undergo life imprisonment
and a fine of Rs.2,000/ each and, in case of default in paying
the fine, to undergo one year RI. The learned trial Court also
convicted the original Accused No.1 Smt. Farida Begum,
original Accused No.6 Mohd. Nasim @ Churti and original
Accused No.7 Idrish for the offence under Section 147 of the
IPC and sentenced them to undergo one year RI. The learned
3
trial Court also convicted the original Accused No.2 Mohd.
Ashraf, original Accused No.4 Raees Ahmed and the original
Accused No.5 Raees Ahmed @ Satna for the offences under
Section 148 of the IPC and sentenced them to undergo two
years RI. That the learned trial Court acquitted the original
Accused Nos.2, 4 and 5 for the offence under Section 25 of the
Arms Act.
1.2 Feeling aggrieved and dissatisfied with the judgment and
order of conviction and sentence imposed by the learned trial
Court, the original Accused No.1 Smt. Farida Begum preferred
Criminal Appeal No.235 of 2004 before the High Court. The
original Accused No.2 Mohd. Ashraf preferred Criminal Appeal
No.239 of 2004 and original Accused No.5 Raees Ahmed @
Satna preferred Criminal Appeal No.261 of 2004 before the
High Court. The original Accused No.7 Idrish preferred
Criminal Appeal No.238 of 2004, Mohd. Nasim @ Churti
original Accused No. 6 preferred Criminal Appeal No.240 of
2004 and Raees Ahmed original Accused No.4 preferred
Criminal Appeal No.251 of 2004 before the High Court,
challenging their respective conviction and sentence imposed
by the learned trial Court. That, by the common impugned
4
judgment and order, the High Court has dismissed the appeals
preferred by the original Accused Nos.1,2,4 and 5 and has
confirmed their conviction. The High Court, however, has
allowed the appeals preferred by the original Accused Nos.6
and 7, i.e. Criminal Appeal Nos.238 of 2004 and 240 of 2004
and has acquitted them by giving them the benefit of doubt.
1.3 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the original
Accused Nos.1,2 and 5 have preferred the present Criminal
Appeals being Criminal Appeal Nos.1560/2013, 1652/2013
and 1653/2013 respectively. At this stage, it is required to be
noted that so far as the original Accused No.4 Raees Ahmed is
concerned, he has not preferred any appeal, however, his case
shall be dealt with hereinbelow.
2. The case of the prosecution in nutshell is as under:
That FIR was lodged on 01.07.1999 at about 9.15 PM at
Police Station, Jaspur, Udham Singh Nagar by one Shahid
Hussain against the accused persons for the offences under
Section 302/149, 147, 148 of IPC and Section 25 of the Arms
Act. It was revealed that the complainant, along with two of
5
his companions, Mukhtar Ahmed and Mohd. Rafi after
performing their evening Namaj at a Mosque in their town,
reached the house of one Rafiq Ahmed (Dildar) at about 8.00
PM in the evening. It was further stated that the complainant
and Mukhtar Ahmed often used to visit the house of Dildar
after performing the evening Namaj. On that day, at about
8.20 PM, Dildar went inside his house to bring tea for his
guests. During this period, Smt. Farida Begum (A1),
Chairman, Nagar Palika, Jaspur, Mohd. Ashraf, Raees Ahmed,
Raees Ahmed @ Satna, Mohd. Aslam, Naseem @ Churti and
Idrish (all original accused), accompanied by one unknown
person entered the house of ‘Dildar’, where these three guests
were sitting. Out of these persons, Mohd. Aslam and Idrish
caught the hands of the Mukhtar Ahmed (deceased), and
Nasim @ Churti and the unknown person caught hold of the
legs of Mukhtar Ahmed (deceased). While the complainant
and Mohd. Rafiq objected, Smt. Farida Begam exhorted that
“the son of Darji should be finished and we will see how he
removes me as Chairman of the Nagar Palika”. It was further
stated that, on this exhortation, Raees Ahmed, Raees Ahmed
@ Satna and Mohd. Ashraf fired from their respective guns
6
which they were carrying. It was further stated that, out of
three gun shots, two had hit Mukhtar Ahmed (deceased),
whereas one did not fire or misfired. It was further stated
that thereafter Smt. Farida Begum threatened that if anyone
names them to the police or approves the “no confidence
motion” against her, he shall also be killed. That the case was
investigated by the Investigating Officer D. K. Sharma. He,
along with other Police Officers, reached the spot at about 9.15
PM. The inquest report was completed by 11.45 PM. The
Investigating Officer recorded the statements of the witnesses.
After preparing the inquest report, other formalities were
performed to send the dead body for postmortem. The
Investigating Officer also prepared the Panchnama of the place
of incident and also prepared the map. That, during the
course of investigation, the respective accused came to be
arrested. The Investigating Officer also recovered the firearm
used in the commission of the offence and sealed them.
During the course of the investigation, the Investigating Officer
also collected the incriminating materials. During the course
of the investigation, the Investigating Officer also collected the
medical evidence as well as the report of the scientific analyst.
7
After conclusion of the investigation, the Investigating Officer
filed chargesheet for the offences under Sections 147, 148,
302/149 of the IPC and Section 25 of the Arms Act against the
respective accused. That the learned Magistrate took
cognizance and committed the case to the learned Sessions
Court, which was numbered as Sessions Trial Nos. 147 of
2000, 148 of 2000 and 149 of 2000. At this stage, it is
required to be noted that, as such, Session Trial No. 147 of
2000 was the main case, insofar as Session Trial Nos. 148 and
149 of 2000 were against Raees Ahmed (A4) and Mohd. Ashraf
(A2) for the offences under Section 25 of the Arms Act. That
all the accused pleaded not guilty and, therefore, all of them
came to be tried for the aforesaid offences.
3. To bring home the charge against the accused, the
prosecution examined the following witnesses:
PW1 Shahid Hussain Informant and eyewitness
PW2 Mohd. Rafi Eyewitness
PW3 Mohd. Navi
PW4 Naim Khan
PW5 Dr. J. K. Goel Who conducted the
postmortem
PW6 SubInspector
Nirvikar
One of the
Investigating
Officers
PW7 S.I. D. K. Sharma Investigating
8
Officer
PW8 SubInspector
Suresh Chandra
Saxena
3.1 That the prosecution also brought on record through the
concerned witnesses the documentary evidence, such as the
first information report, postmortem report, Forensic Science
Laboratory report, Panchnama of the place of incident,
Panchnama of the recovery of the firearm used by the original
accused No. 2 etc.
3.2 After closing of the evidence on behalf of the prosecution,
the defence examined the following witnesses:
DW1 Shankar Dutta
Kandpal
DW2 Ayub Alam
DW3 Naseem Ahmed,
Jr. Engineer,
Electricity Supply
Division, Jaspur
(Rural)
3.3 That the defence also brought on record the following
documentary evidence:
1) Ex.D20 – the report about the electricity supply in
Jaspur town on 1.7.1999.
9
2) Ex.D32 – the register of the daily log sheet dated
1.7.1999 (found to be having overwriting in the column of time
on it).
4. That, thereafter, after completing the evidence, the
accused persons came to be examined under Section 313 of
the Cr.P.C. on the basis of the material on record against
them. All the accused denied their involvement in the case
and denied the evidence against them.
5. Thereafter, after hearing the learned counsel appearing
for the parties and, on appreciation of evidence, the learned
trial Court by a common judgment and order dated 23.7.2004
convicted Smt. Farida Begum (A1), Mohd. Ashraf (A2), Raees
Ahmed (A4), Raees Ahmed @ Satna (A5), Mohd. Nasim @
Churti (A6) and Idrish (A7) for the offences under Sections
302/149 IPC and sentenced all of them to imprisonment of life
with a fine of Rs.2,000/ and, in default of payment of fine, to
undergo one year’s RI. That the learned trial Court also
convicted the original accused No. 1 Smt. Farida Begum,
original Accused No. 6 Mohd. Nasim @ Churti and original
Accused No. 7 Idrish also for the offence under Section 147 of
10
the IPC and also convicted the original Accused No. 2 Mohd
Ashraf, original Accused No. 4 Raees Ahmed and original
Accused No. 5 Raees Ahmed @ Satna for the offence under
Section 148 of the IPC and sentenced them to undergo two
years’ RI. That the learned trial Court acquitted the accused
persons under Section 25 of the Arms Act. The case against
the original Accused No. 3 Mohd. Aslam was ordered to be
abated due to his death during the trial.
6. As observed hereinabove, the accused approached the
High Court by filing their respective criminal appeals. That
the High Court, by the impugned common judgment and order
has dismissed the appeals preferred by the original Accused
Nos. 1, 2, 4 and 5 and maintained the conviction and sentence
imposed by the learned trial Court. However, the High Court
has acquitted the original Accused Nos. 6 and 7 by giving
them the benefit of doubt. Hence, the original Accused Nos. 1,
2 and 5 are before this Court by way of present appeals.
7. Shri K.T.S. Tulsi, learned senior counsel, has appeared
on behalf of the original Accused No.1, Shri Deepak Singh,
learned counsel has appeared on behalf of original Accused
11
No.2 and Shri K.K. Tyagi, learned counsel appeared on behalf
of original Accused No.5.
7.1 Heard Shri Rajiv Nanda, learned counsel appearing on
behalf of the respondent State of Uttarakahand and the
learned counsel appearing on behalf of the original
Complainant in each of the appeals.
8. SUBMISSIONS MADE BY SHRI K.T.S. TULSI, LEARNED
SENIOR COUNSEL APPEARING ON BEHALF OF
ORIGINAL ACCUSED NO.1
Shri Tulsi learned senior counsel appearing on behalf of
original Accused No.1 has vehemently submitted that, in the
facts and circumstances of the case, both the High Court as
well as the learned trial Court have materially erred in
convicting the original Accused No.1 for the offences under
Sections 302 read with Section 149 and also under Section
147 of the IPC.
8.1 It is further submitted by the learned counsel
appearing on behalf of the original Accused No.1 that the
conviction by both the Courts below is based upon the
depositions of PWs.1 and 2 whose credibility is very doubtful
and both of them are not believable. It is further submitted
12
that, as such, there are material contradictions in the
depositions of PWs.1 and 2 and other witnesses and, therefore,
both the Courts below have materially erred in convicting the
original Accused No.1 relying upon the depositions of PWs.1
and 2.
8.2 The learned counsel for the original Accused No. 1 has
further submitted that, as such, the prosecution has failed to
prove the motive and the reason for the Accused No.1 to
kill/commit the murder of deceased Mukhtar Ahmed.
8.3. It is submitted that the enmity with PW.1 Shahid
Hussain could not have been accepted as the reason for the
original Accused No.1 exhortation that Mushtak Ahmed be
shot. It is submitted that, therefore, as the prosecution has
failed to prove the motive so far as the enmity between the
original Accused No.1 and deceased is concerned, both the
Courts below have materially erred in convicting the original
Accused No.1.
8.4 It is further submitted by the learned counsel appearing
on behalf of the original Accused No.1 that both the Courts
below have materially erred in not properly appreciating the
fact that the dimension of the room in which the incident had
13
taken place was such that it was impossible to believe that 11
persons were present in the room, when the incident allegedly
took place. It is further submitted that, therefore, the story
put forward by PWs.1 and 2 and the prosecution is totally
unbelievable and, therefore, the impugned judgment and order
of conviction and sentence insofar as convicting the original
Accused No.1 deserves to be quashed and set aside.
8.5 It is further submitted that, as such, there are material
contradictions so far as the electricity at the time of incident
was or not. It is submitted that, in fact, the accused has been
able to prove by leading the cogent evidence, namely,
examining D3 – the officer of the Electricity Supply Division
that at the time of the alleged incident there was no electricity
supply. It is further submitted that the same has been
established and proved even by producing documentary
evidences Exh.D20/D34. It is submitted that, therefore, it
was not possible for any of the prosecution witnesses to
identify the accused. It is submitted that, therefore, both the
Courts below have materially erred in convicting the original
Accused No.1.
14
8.6 It is further submitted that even the original accused
No.1was successful in proving by examining DW2, the son of
the owner of house, that the original Accused No.1 was not
present at the time of alleged incident. It is submitted that
DW2 in his deposition categorically stated that the original
Accused No.1 and others were not involved in the murder of
deceased Mushtak Ahmed.
8.7 It is further submitted that the High Court ought to
have acquitted the original Accused No.1 also by giving her the
benefit of doubt, as was given to original Accused Nos.6 and
7. It is submitted that once the case against the original
Accused Nos.6 and 7 has not been believed and consequently
they are acquitted by giving them benefit of doubt, similar
benefit of doubt ought to be given to the other accused, more
particularly, Accused No.1 also.
8.8 Making the above submissions and relying upon the
decisions of this Court in the case of Jainul Haque v. State
of Bihar (1974) 3 SCC 543; Pandurang Chandrakant
Mhatre v. State of Maharashtra (2009) 10 SCC 773;
Vaijayanti v. State of Maharashtra (2005) 13 SCC 134 and
15
Hoshiar Singh v. State of Punjab 1992 Supp. (1) SCC 413, it
is requested to allow the present appeals and acquit the
original Accused No. 1 for the offences for which she has been
convicted.
9. Shri Deepak Singh, learned counsel appearing on behalf
of original Accused No. 2 has adopted the submissions made
by Shri K.T.S. Tulsi, learned senior counsel appearing on
behalf of original Accused No. 1 and, as such, has reiterated
what was submitted on behalf of original Accused No. 1. In
addition, learned counsel appearing on behalf of original
Accused No. 2 has also relied upon the decisions of this Court
in Mohinder Singh v. State of Punjab AIR 1955 SC 762;
Willie (William) Slaney v. State of Madhya Pradesh AIR
1956 SC 116; Balaka Singh v. State of Punjab (1975) 4 SCC
511; Phani Bhusan Das v. State of West Bengal (1994) SCC
(Cri) 1752 and Suresh Rai v. State of Bihar (2000) 4 SCC
84.
9.1 Making above submissions and relying upon the above
decisions, it is requested to allow the appeal preferred by
16
original Accused No. 2 and acquit him for the offences for
which he has been convicted.
10. Shri K.K. Tyagi, learned counsel appearing on behalf of
original Accused No. 5, has vehemently submitted that, so far
as original Accused No. 5 is concerned, as looking to the
dimension of the room which was hardly 10’ x 10’, it was not
possible for the original Accused Nos. 4 & 5 to fire. It is
further submitted that, therefore, the story put forward by the
prosecution that the original Accused Nos. 4 and 5 were
present and they fired, is unbelievable.
10.1 It is further submitted by the learned counsel appearing
on behalf of original Accused No.5 that, even otherwise, the
prosecution has failed to prove by leading cogent evidence
that, in fact, the original Accused Nos. 4 and 5 fired from the
firearms. It is submitted that neither the firearm alleged to
have been used by the original Accused No. 5 had been
recovered, nor even the bullet was recovered/seized. It is
submitted that even there is no scientific evidence like ballistic
report on record which would suggest and/or prove that, in
fact, original Accused No. 5 fired from the firearm, as alleged
by the prosecution and as stated by PWs 1 and 2. It is further
17
submitted that, as such, the original Accused Nos. 4 and 5
both are entitled to be acquitted by giving them benefit of
doubt on the very ground on which the High Court acquitted
the original Accused Nos. 6 & 7 by giving the benefit of doubt.
10.2 It is further submitted that, as such, even the original
Accused No. 5 is acquitted for the offence under the Arms Act
and, therefore, also both the Courts below have materially
erred in convicting the original Accused No. 5.
10.3 Making above submissions, it is requested to allow the
appeal preferred by the original Accused No. 5 and quash and
set aside the judgment and order passed by both the Courts
below convicting the original Accused No. 5.
11. Shri Rajiv Nanda, learned counsel appearing on behalf of
the State of Uttarakhand and the learned counsel appearing
on behalf of the original complainant have supported the
impugned judgment and order of conviction and sentence
imposed by the learned trial Court and confirmed by the High
Court, convicting the original Accused Nos. 1, 2 and 5 for the
offences under Sections 302/149 IPC and other offences for
which they are convicted.
18
11.1 It is further submitted by the learned counsel appearing
for the State that, so far as the original Accused No. 1 is
concerned, the motive for her to exhort the deceased has been
established and proved and the same has been discussed by
the learned trial Court as well as the High Court in detail.
11.2 It is further submitted that, even otherwise, as has
rightly been observed by the High Court and the learned trial
Court that in view of the overwhelming evidence on record,
more particularly, the depositions of PWs 1 and 2 the eye
witnesses, the presence of original Accused Nos. 1 and 2 is
established and proved beyond doubt and the prosecution has
been successful in proving the case against the original
Accused Nos. 1 and 2, the motive may be inconsequential. It is
submitted that, as such, the motive by the original Accused
No. 1 has been established and proved beyond doubt.
11.3 It is further submitted by the learned counsel for the
State that, in the present case, the prosecution has been
successful in proving the case against the original Accused
Nos. 1 and 2 by leading cogent evidence, more particularly, by
examining PWs 1 and 2 and other witnesses. It is submitted
that both PWs 1 and 2 have fully supported the case of the
19
prosecution and even they are fully crossexamined by the
defence, however, in the crossexamination, the defence has
not been successful in proving anything contrary to what the
aforesaid two witnesses have stated in their examinationinchief.
11.4 It is further submitted that, as such, there are no
material contradictions in the depositions of PWs 1 and 2, as
alleged, on behalf of the original Accused Nos. 1and 2.
11.5 Now, so far as the submissions on behalf of the original
Accused Nos. 1 and 2 that at the time of incident there was no
electricity supply and reliance placed upon the deposition of
DW3, Junior Engineer of the Electric Supply Division is
concerned, it is vehemently submitted that, as such, the
learned trial Court as well as the High Court have given cogent
reasons to disbelieve the deposition of DW3. It is submitted
that, as rightly observed by the Courts below, DW3 deposed
in favour of the Accused No. 2 to favour the accused persons.
It is submitted that his conduct is very much doubtful and
even it is established and proved from the crossexamination
of the said witness that the document Ex.D34 was concocted
and false one and there was interpolation by mentioning the
20
specific time, only with a view to suit the case of the accused.
It is submitted that, therefore, the DW3 is not believable at all
and, as such, both the Courts below have rightly not believed
the story put forward by the accused that there was no
electricity supply at the time of the incident.
11.6 It is further submitted that even the prosecution has
been successful in proving by leading cogent evidence that at
the time of the incident there was electricity supply.
11.7 Now, so far as the submission made on behalf of the
original Accused No. 5 that he shall also be entitled for the
benefit of doubt and is entitled to the acquittal on the very
ground on which the other accused original Accused Nos. 6
& 7 came to be acquitted by the High Court is concerned, it is
submitted that the case against the original Accused Nos. 6 &
7 and the original Accused Nos. 4 & 5 will be different and is
not comparable and, therefore, merely because the other
original Accused Nos. 6 & 7 are acquitted by giving them
benefit of doubt, the other accused, more particularly, the
original Accused Nos. 4 and 5 shall not be entitled to acquittal.
11.8 It is further submitted that even the original Accused
No.4 has not preferred any appeal against his conviction and
21
sentence and has accepted the judgment and order passed by
both the Courts below convicting him for the offences under
Sections 302/148 IPC.
11.9 Now so far as the submissions on behalf of the accused
that as the accused persons came to be acquitted for the
offence under the Arms Act and, therefore, the accused are
entitled to be acquitted, it is submitted that merely because
the accused are acquitted for one offence, ipso facto, they shall
not be entitled to the acquittal for the other offences, if the
other offences are proved against the accused. It is submitted
that, in the present case, both the Courts below have rightly
convicted the accused for the offences under Sections 302/149
and 302/148 of the IPC, more particularly, relying upon the
depositions of PWs 1 and 2 and on appreciation of the entire
evidence on record.
11.10 Making above submissions, it is requested to dismiss
the present appeals.
12. Learned counsel appearing on behalf of the original
complainant has fully supported the judgment and order
passed by both the Courts below convicting the original
accused, by further submitting that even the motive by the
22
original Accused No. 1 to bestow the deceased has been
established and proved, which has been elaborately discussed
by the learned trial Court in paragraph 48. Therefore, it is
requested to dismiss the appeals preferred by the accused.
13. Heard the learned counsel appearing on behalf of
respective parties at length. We have gone through and
considered the impugned judgment and order passed by the
High Court as well as the learned trial Court. We have also
considered in detail and reappreciated the entire evidence on
record.
14. Now, so far as the impugned judgment and order passed
by the High Court maintaining the conviction and sentence
imposed by the learned trial Court, while convicting the
original Accused No. 1 for the offences under Sections
302/149 and Section 147 of the IPC is concerned, we have
heard the learned counsel appearing on behalf of the accused
as well as the State and have reappreciated the evidence on
record. For the reasons stated hereinbelow, we are of the
opinion that both the Courts below have not committed any
error in convicting the original Accused No. 1.
23
14.1 The presence of original Accused No. 1 at the time of the
incident has been established and proved beyond doubt by the
prosecution. The witnesses, more particularly, PWs 1 and 2,
in no uncertain words, have clearly stated that the original
Accused No. 1 came to the place of the incident and that she
started shouting and told to kill the deceased. The role
attributed to the original Accused No. 1 clearly suggests that
the original Accused No. 1 committed the offence punishable
under Sections 302/149 IPC. PW1 has categorically stated
that the original Accused No. 1 Smt. Farida Begum came
inside the room from the eastern side and, from the northern
door, the other accused entered. PW1 categorically stated that
the original Accused No. 1 exhorted and said that the deceased
must be finished and further stated that she will see how the
“no confidence motion” is passed against her. The said
witness has further stated that, immediately thereafter, Mohd.
Ashraf who was carrying Tamancha shot at Mukhtar Ahmed
(deceased). The deposition of the said witness PW1 has been
further supported by the deposition of PW2 Mohd. Rafi. Both
the aforesaid two witnesses are thoroughly crossexamined by
24
the defence, however, nothing adverse to the case of the
prosecution has been brought from the crossexamination.
14.2 Now, so far as the submission on behalf of original
Accused No. 1 that the prosecution has failed to prove the
motive to kill the deceased by the original Accused No. 1 is
concerned, at the outside, it is required to be noted that it has
come on record that the original Accused No. 1 was having
enmity with the deceased Mukhtar Ahmed due to municipality
politics. PW1, in his evidence, has categorically stated that
the deceased Mukhtar Ahmed was elected as the Chairman of
the Municipality, Jaspur in the election prior to the election at
the time of occurrence and that his wife Smt. Sameena Begum
had contested the next election for the post of the Chairman
against Smt. Farida Begum and Sameena Begum had lost that
election. He has further stated that Smt. Sameena Begum, the
wife of the deceased, had challenged the election of A1 in the
court by filing an election petition. That Smt. Farida Begum
(A1) was facing ‘no confidence motion’. The Investigating
Officer PW7 had categorically stated that as the deceased
Mukhtar Ahmed was opposing the actions taken by the
original Accused No. 1 Farida Begum in the municipality and
25
that Smt. Farida Begum was the Chairman and Mohd. Aslam
was the Councillor in the Municipality and that the deceased
Mukhtar Ahmed had got an election petition filed through his
wife against Smt. Farida Begum, it could be the cause of
committing the murder of Mukhtar Ahmed by the accused
persons.
14.3 Even otherwise, it is required to be noted that, in the
present case, the presence of the Accused Nos. 1 and 2 at the
time of the incident has been established and proved beyond
doubt. The role attributed to them has also been established
and proved by the prosecution by leading cogent evidence.
The testimony of the eye witnesses fully supports the case of
the prosecution. Under these circumstances, as rightly
observed by the learned trial Court and confirmed by the High
Court, the aforesaid defence shall not help the accused
persons.
14.4 Reliance has been placed upon the deposition of DW3,
the Junior Engineer of the Electricity Supply Department, by
the learned counsel appearing on behalf of original Accused
Nos. 1 and 2 in support of their case that, at the time of the
incident, there was no electricity supply and, therefore, it was
26
not possible for PWs 1 and 2 to identify the accused persons.
At the outset, it is required to be noted that, both the learned
trial Court and the High Court have disbelieved the deposition
of DW3. From the crossexamination of DW3, it appears that
he had concocted the document Ex.D32 and that there
interpolation by inserting the time which suits the accused.
On reappreciation of the deposition of DW3, we are also of
the opinion that the said witness is not reliable and
trustworthy and that he had given the deposition only with a
view to favour the accused persons. In the crossexamination
of DW3, the prosecution has succeeded in proving that there
was interpolation and overwriting in Ex.32 on the timing and
20.15 PM has been shown as 20.30 PM. Thus, as rightly
observed by the learned trial Court as well as the High Court,
the defence had made an unsuccessful attempt to prove that
there was no electricity supply at the time of incident and that
DW3 had attempted to favour the accused persons for some
special reasons and had tempered with the departmental
records. We are in complete agreement with the findings
recorded by the learned trial Court and confirmed by the High
Court while not believing DW3.
27
14.5 Now, so far as the submission made by Shri Tulsi,
learned senior counsel appearing on behalf of the original
Accused No. 1 that there are contradictions in the deposition
of PWs 1 and 2 and DW2 is concerned, on considering the
entire deposition of PWs 1 and 2, we do not find any material
contradictions which may destroy the case of the prosecution.
Sometime there may be minor contradictions. However,
unless those contradictions are such material contradictions
which may destroy the case of the prosecution, the benefit of
such contradictions cannot be given to the accused. In the
present case, we do not find any material contradictions in the
deposition of PWs 1 and 2 which may destroy the case of the
prosecution.
14.6 Now, so far as the submission made on behalf of the
original Accused No. 1 that as the original Accused Nos. 6
and 7 are acquitted by the High Court and, therefore, the
number of other accused shall be five or less than five and,
therefore, the conviction of the original Accused No. 1 for the
offence punishable under Section 302 with the aid of Section
149 IPC, is not sustainable is concerned, the same has no
substance. It is required to be noted that, from the very
28
beginning, the case of the prosecution was that 7 to 8
persons entered the house with a common intention to kill
the deceased. It is required to be noted that the original
Accused Nos. 6 and 7 are acquitted by giving the benefit of
doubt and on the ground that the story put forward by the
prosecution that they caught hold of the deceased, is not
believable. There is no finding by the High Court while
giving the benefit of doubt and acquitting the original
Accused Nos. 6 and 7 that they were not present at the time
of the incident. Therefore, the overt act and the role
attributed to them is not believable. Even otherwise, so far
as original Accused No. 1 and even original Accused No. 2 are
concerned, we are of the opinion that the prosecution in the
present case has proved beyond doubt the case against them
individually for the offence under Section 302 of IPC.
14.7 Now, so far as the reliance placed by the learned
counsel appearing on behalf of the original Accused Nos. 1
and 2 upon the decisions of this Court referred to
hereinabove is concerned, we are of the opinion that, on
facts, the said decisions shall not be applicable to the facts of
the case, more particularly, the overwhelming evidence in the
29
form of depositions of PWs 1 & 2 and PW7, which prove the
case against the original Accused Nos. 1 and 2 beyond doubt.
15. It is further required to be noted that so far as the
original Accused No. 2 is concerned, PWs 1 and 2 have
categorically stated that, along with Farida Begum, the original
Accused No. 2 also entered and he fired from his firearm. His
presence and the overt act attributed to him has been
established and proved by the prosecution beyond doubt. The
firearm used in the commission of the offence by the original
Accused No. 2 has been recovered at the instance of original
Accused No. 2 himself. There is a direct evidence in the form
of the eye witnesses PWs 1 and 2, which fully supports the
case of the prosecution even after thorough crossexamination
by the defence.
16. In view of the further reasons stated above, we are of the
opinion that the High Court as well as the learned trial Court
have rightly convicted the original Accused Nos. 1 and 2.
17. Now, so far as the conviction and sentence imposed by
the learned trial Court and confirmed by the High Court
convicting the original Accused No. 5 is concerned, we are of
30
the opinion that the original Accused No. 5 shall be entitled to
be acquitted by giving the benefit of doubt on the same
grounds on which the High Court acquitted the original
Accused Nos. 6 and 7 by giving them benefit of doubt.
Looking to the dimension of the room and the role attributed
to the original Accused Nos.4 and 5, we are of the opinion that
the original Accused Nos. 4 and 5 are required to be acquitted
by giving them benefit of doubt, as has been given to the
original Accused Nos. 6 and 7 by the High Court. At this
stage, it is required to be noted that so far as the acquittal of
the original Accused Nos. 6 and 7 by the High Court is
concerned, the same has been accepted by the State and same
has attained the finality.
17.1 It is also required to be noted that even otherwise so far
as Accused No. 5 is concerned, the prosecution has even failed
to prove beyond doubt that in fact Accused No. 5 fired from his
firearm, which as such has missed, as alleged. There is no
evidence on record in the form of recovery of weapon or even
the missed bullet. Therefore also A5 is entitled to be
acquitted by giving him benefit of doubt.
31
17.2 At this stage, it is also required to be noted that so far as
the original Accused No. 4 is concerned, he has not preferred
any appeal against his conviction and sentence. However,
there may be number of reasons for that, including the
financial constraint. However, we cannot loose sight of the
fact that his case is similar to that of the original Accused No.
5 and even original Accused Nos. 6 and 7. Therefore, we take
suo moto cognizance and we are of the opinion that the
original Accused No. 4 is also entitled to acquittal by giving
him benefit of doubt, as the case of the original Accused No. 4
is similar to that of original Accused No. 5 and even the
original Accused Nos. 6 and 7.
18. In view of the above and for the reasons stated above,
Criminal Appeal No. 1560 of 2013 preferred by original
Accused No. 1 and Criminal Appeal No. 1652 of 2013 preferred
by the original Accused No. 2 stand dismissed by confirming
the judgment and order passed by the learned trial Court and
confirmed by the High Court convicting the original Accused
Nos. 1 and 2 for the offences under Sections 302/149 and
Sections 147 & 148 IPC. The conviction and sentence of the
original Accused Nos. 1 and 2 imposed by the trial Court and
32
confirmed by the High Court, is hereby maintained. It appears
that the original Accused No. 1 (Smt. Farida Begum) is on bail.
On her conviction and sentence being confirmed by this Court,
her bail bond shall stand cancelled and she shall surrender
before the Court concerned to serve out the remaining
sentence within a period of two weeks from the date of this
judgment.
18.1 In view of the above and for the reasons stated above, the
Criminal Appeal No. 1653 of 2013 preferred by the original
Accused No. 5 is hereby allowed. The original Accused Nos. 4
and 5 (Raees Ahmed and Raees Ahmed @ Satna) shall stand
acquitted for the offences for which they were convicted by the
learned trial Court and confirmed by the High Court by giving
them benefit of doubt. The original Accused Nos. 4 and 5
(Raees Ahmed and Raees Ahmed @ Satna) shall be released
forthwith, if not required in any other case.
…………………..……………………J.
(N. V. RAMANA)
…………………………………..…….J.
(MOHAN M. SHANTANAGOUDAR)
…………………..……………………J.
(M. R SHAH)
New Delhi,
December 4, 2018
Apex court held that as the original Accused Nos. 6 and 7 are acquitted by the High Court and, therefore, the number of other accused shall be five or less than five and, therefore, the conviction of the original Accused No. 1 for the offence punishable under Section 302 with the aid of Section 149 IPC, is not sustainable is concerned, the same has no substance.
It is required to be noted that, from the very beginning, the case of the prosecution was that 7 to 8 persons entered the house with a common intention to kill the deceased. It is required to be noted that the original Accused Nos. 6 and 7 are acquitted by giving the benefit of
doubt and on the ground that the story put forward by the prosecution that they caught hold of the deceased, is not believable. There is no finding by the High Court while giving the benefit of doubt and acquitting the original Accused Nos. 6 and 7 that they were not present at the time
of the incident. Therefore, the overt act and the role attributed to them is not believable. Even otherwise, so far as original Accused No. 1 and even original Accused No. 2 are concerned, we are of the opinion that the prosecution in the present case has proved beyond doubt the case against them individually for the offence under Section 302 of IPC.
whether once the case against the original Accused Nos.6 and 7 has not been believed and consequently they are acquitted by giving them benefit of doubt, similar benefit of doubt ought to be given to the other accused, more particularly, Accused No.1 also. ?
Apex court held that against A1 and A2 there was direct evidence and as such the principle not applies where as Looking to the dimension of the room and the role attributed to the original Accused Nos.4 and 5, we are of the opinion that the original Accused Nos. 4 and 5 are required to be acquitted by giving them benefit of doubt, as has been given to the original Accused Nos. 6 and 7 by the High Court.
1
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1560 OF 2013
Farida Begum .. Appellant
Versus
State of Uttarakhand .. Respondent
WITH
Criminal Appeal No. 1652 of 2013 and
Criminal Appeal No. 1653 of 2013
J U D G M E N T
M. R. SHAH, J.
1. The present appeals before this Court arise against the
impugned common judgment and order dated 22.08.2012
passed by the High Court of Uttarakhand at Nainital passed in
Criminal Appeal Nos. 235/2004, 239/2004 and 261/2004 by
which the High Court has dismissed the said appeals preferred
by the original Accused Nos.1, 2 and 5 and has confirmed the
conviction and sentence imposed by the learned trial Court
2
convicting them for the offences under Sections 302/149 and
147 of the IPC.
1.1 That, in all, eight accused were tried for the offences
under Sections 147, 148 and 302/149 of the IPC for having
committed murder of one Mukhtar Ahmed. That, out of the
eight accused, three accused namely, Raees Ahmed (A4),
Mohd. Ashraf (A2) and Raees Ahmed @ Satna (A5) were also
tried for the offence under Section 25 of the Arms Act. That,
during the trial, accused Mohd. Aslam (A3) died and,
therefore, the case of the said accused was ordered to be
abated. That, on conclusion of the trial, the learned Additional
Sessions Judge, Fast Track Court, Kashipur, District Udham
Singh Nagar (hereinafter referred to as “the trial Court”) held
all the accused guilty for the offences under Sections 302/149
of the IPC and sentenced them to undergo life imprisonment
and a fine of Rs.2,000/ each and, in case of default in paying
the fine, to undergo one year RI. The learned trial Court also
convicted the original Accused No.1 Smt. Farida Begum,
original Accused No.6 Mohd. Nasim @ Churti and original
Accused No.7 Idrish for the offence under Section 147 of the
IPC and sentenced them to undergo one year RI. The learned
3
trial Court also convicted the original Accused No.2 Mohd.
Ashraf, original Accused No.4 Raees Ahmed and the original
Accused No.5 Raees Ahmed @ Satna for the offences under
Section 148 of the IPC and sentenced them to undergo two
years RI. That the learned trial Court acquitted the original
Accused Nos.2, 4 and 5 for the offence under Section 25 of the
Arms Act.
1.2 Feeling aggrieved and dissatisfied with the judgment and
order of conviction and sentence imposed by the learned trial
Court, the original Accused No.1 Smt. Farida Begum preferred
Criminal Appeal No.235 of 2004 before the High Court. The
original Accused No.2 Mohd. Ashraf preferred Criminal Appeal
No.239 of 2004 and original Accused No.5 Raees Ahmed @
Satna preferred Criminal Appeal No.261 of 2004 before the
High Court. The original Accused No.7 Idrish preferred
Criminal Appeal No.238 of 2004, Mohd. Nasim @ Churti
original Accused No. 6 preferred Criminal Appeal No.240 of
2004 and Raees Ahmed original Accused No.4 preferred
Criminal Appeal No.251 of 2004 before the High Court,
challenging their respective conviction and sentence imposed
by the learned trial Court. That, by the common impugned
4
judgment and order, the High Court has dismissed the appeals
preferred by the original Accused Nos.1,2,4 and 5 and has
confirmed their conviction. The High Court, however, has
allowed the appeals preferred by the original Accused Nos.6
and 7, i.e. Criminal Appeal Nos.238 of 2004 and 240 of 2004
and has acquitted them by giving them the benefit of doubt.
1.3 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the original
Accused Nos.1,2 and 5 have preferred the present Criminal
Appeals being Criminal Appeal Nos.1560/2013, 1652/2013
and 1653/2013 respectively. At this stage, it is required to be
noted that so far as the original Accused No.4 Raees Ahmed is
concerned, he has not preferred any appeal, however, his case
shall be dealt with hereinbelow.
2. The case of the prosecution in nutshell is as under:
That FIR was lodged on 01.07.1999 at about 9.15 PM at
Police Station, Jaspur, Udham Singh Nagar by one Shahid
Hussain against the accused persons for the offences under
Section 302/149, 147, 148 of IPC and Section 25 of the Arms
Act. It was revealed that the complainant, along with two of
5
his companions, Mukhtar Ahmed and Mohd. Rafi after
performing their evening Namaj at a Mosque in their town,
reached the house of one Rafiq Ahmed (Dildar) at about 8.00
PM in the evening. It was further stated that the complainant
and Mukhtar Ahmed often used to visit the house of Dildar
after performing the evening Namaj. On that day, at about
8.20 PM, Dildar went inside his house to bring tea for his
guests. During this period, Smt. Farida Begum (A1),
Chairman, Nagar Palika, Jaspur, Mohd. Ashraf, Raees Ahmed,
Raees Ahmed @ Satna, Mohd. Aslam, Naseem @ Churti and
Idrish (all original accused), accompanied by one unknown
person entered the house of ‘Dildar’, where these three guests
were sitting. Out of these persons, Mohd. Aslam and Idrish
caught the hands of the Mukhtar Ahmed (deceased), and
Nasim @ Churti and the unknown person caught hold of the
legs of Mukhtar Ahmed (deceased). While the complainant
and Mohd. Rafiq objected, Smt. Farida Begam exhorted that
“the son of Darji should be finished and we will see how he
removes me as Chairman of the Nagar Palika”. It was further
stated that, on this exhortation, Raees Ahmed, Raees Ahmed
@ Satna and Mohd. Ashraf fired from their respective guns
6
which they were carrying. It was further stated that, out of
three gun shots, two had hit Mukhtar Ahmed (deceased),
whereas one did not fire or misfired. It was further stated
that thereafter Smt. Farida Begum threatened that if anyone
names them to the police or approves the “no confidence
motion” against her, he shall also be killed. That the case was
investigated by the Investigating Officer D. K. Sharma. He,
along with other Police Officers, reached the spot at about 9.15
PM. The inquest report was completed by 11.45 PM. The
Investigating Officer recorded the statements of the witnesses.
After preparing the inquest report, other formalities were
performed to send the dead body for postmortem. The
Investigating Officer also prepared the Panchnama of the place
of incident and also prepared the map. That, during the
course of investigation, the respective accused came to be
arrested. The Investigating Officer also recovered the firearm
used in the commission of the offence and sealed them.
During the course of the investigation, the Investigating Officer
also collected the incriminating materials. During the course
of the investigation, the Investigating Officer also collected the
medical evidence as well as the report of the scientific analyst.
7
After conclusion of the investigation, the Investigating Officer
filed chargesheet for the offences under Sections 147, 148,
302/149 of the IPC and Section 25 of the Arms Act against the
respective accused. That the learned Magistrate took
cognizance and committed the case to the learned Sessions
Court, which was numbered as Sessions Trial Nos. 147 of
2000, 148 of 2000 and 149 of 2000. At this stage, it is
required to be noted that, as such, Session Trial No. 147 of
2000 was the main case, insofar as Session Trial Nos. 148 and
149 of 2000 were against Raees Ahmed (A4) and Mohd. Ashraf
(A2) for the offences under Section 25 of the Arms Act. That
all the accused pleaded not guilty and, therefore, all of them
came to be tried for the aforesaid offences.
3. To bring home the charge against the accused, the
prosecution examined the following witnesses:
PW1 Shahid Hussain Informant and eyewitness
PW2 Mohd. Rafi Eyewitness
PW3 Mohd. Navi
PW4 Naim Khan
PW5 Dr. J. K. Goel Who conducted the
postmortem
PW6 SubInspector
Nirvikar
One of the
Investigating
Officers
PW7 S.I. D. K. Sharma Investigating
8
Officer
PW8 SubInspector
Suresh Chandra
Saxena
3.1 That the prosecution also brought on record through the
concerned witnesses the documentary evidence, such as the
first information report, postmortem report, Forensic Science
Laboratory report, Panchnama of the place of incident,
Panchnama of the recovery of the firearm used by the original
accused No. 2 etc.
3.2 After closing of the evidence on behalf of the prosecution,
the defence examined the following witnesses:
DW1 Shankar Dutta
Kandpal
DW2 Ayub Alam
DW3 Naseem Ahmed,
Jr. Engineer,
Electricity Supply
Division, Jaspur
(Rural)
3.3 That the defence also brought on record the following
documentary evidence:
1) Ex.D20 – the report about the electricity supply in
Jaspur town on 1.7.1999.
9
2) Ex.D32 – the register of the daily log sheet dated
1.7.1999 (found to be having overwriting in the column of time
on it).
4. That, thereafter, after completing the evidence, the
accused persons came to be examined under Section 313 of
the Cr.P.C. on the basis of the material on record against
them. All the accused denied their involvement in the case
and denied the evidence against them.
5. Thereafter, after hearing the learned counsel appearing
for the parties and, on appreciation of evidence, the learned
trial Court by a common judgment and order dated 23.7.2004
convicted Smt. Farida Begum (A1), Mohd. Ashraf (A2), Raees
Ahmed (A4), Raees Ahmed @ Satna (A5), Mohd. Nasim @
Churti (A6) and Idrish (A7) for the offences under Sections
302/149 IPC and sentenced all of them to imprisonment of life
with a fine of Rs.2,000/ and, in default of payment of fine, to
undergo one year’s RI. That the learned trial Court also
convicted the original accused No. 1 Smt. Farida Begum,
original Accused No. 6 Mohd. Nasim @ Churti and original
Accused No. 7 Idrish also for the offence under Section 147 of
10
the IPC and also convicted the original Accused No. 2 Mohd
Ashraf, original Accused No. 4 Raees Ahmed and original
Accused No. 5 Raees Ahmed @ Satna for the offence under
Section 148 of the IPC and sentenced them to undergo two
years’ RI. That the learned trial Court acquitted the accused
persons under Section 25 of the Arms Act. The case against
the original Accused No. 3 Mohd. Aslam was ordered to be
abated due to his death during the trial.
6. As observed hereinabove, the accused approached the
High Court by filing their respective criminal appeals. That
the High Court, by the impugned common judgment and order
has dismissed the appeals preferred by the original Accused
Nos. 1, 2, 4 and 5 and maintained the conviction and sentence
imposed by the learned trial Court. However, the High Court
has acquitted the original Accused Nos. 6 and 7 by giving
them the benefit of doubt. Hence, the original Accused Nos. 1,
2 and 5 are before this Court by way of present appeals.
7. Shri K.T.S. Tulsi, learned senior counsel, has appeared
on behalf of the original Accused No.1, Shri Deepak Singh,
learned counsel has appeared on behalf of original Accused
11
No.2 and Shri K.K. Tyagi, learned counsel appeared on behalf
of original Accused No.5.
7.1 Heard Shri Rajiv Nanda, learned counsel appearing on
behalf of the respondent State of Uttarakahand and the
learned counsel appearing on behalf of the original
Complainant in each of the appeals.
8. SUBMISSIONS MADE BY SHRI K.T.S. TULSI, LEARNED
SENIOR COUNSEL APPEARING ON BEHALF OF
ORIGINAL ACCUSED NO.1
Shri Tulsi learned senior counsel appearing on behalf of
original Accused No.1 has vehemently submitted that, in the
facts and circumstances of the case, both the High Court as
well as the learned trial Court have materially erred in
convicting the original Accused No.1 for the offences under
Sections 302 read with Section 149 and also under Section
147 of the IPC.
8.1 It is further submitted by the learned counsel
appearing on behalf of the original Accused No.1 that the
conviction by both the Courts below is based upon the
depositions of PWs.1 and 2 whose credibility is very doubtful
and both of them are not believable. It is further submitted
12
that, as such, there are material contradictions in the
depositions of PWs.1 and 2 and other witnesses and, therefore,
both the Courts below have materially erred in convicting the
original Accused No.1 relying upon the depositions of PWs.1
and 2.
8.2 The learned counsel for the original Accused No. 1 has
further submitted that, as such, the prosecution has failed to
prove the motive and the reason for the Accused No.1 to
kill/commit the murder of deceased Mukhtar Ahmed.
8.3. It is submitted that the enmity with PW.1 Shahid
Hussain could not have been accepted as the reason for the
original Accused No.1 exhortation that Mushtak Ahmed be
shot. It is submitted that, therefore, as the prosecution has
failed to prove the motive so far as the enmity between the
original Accused No.1 and deceased is concerned, both the
Courts below have materially erred in convicting the original
Accused No.1.
8.4 It is further submitted by the learned counsel appearing
on behalf of the original Accused No.1 that both the Courts
below have materially erred in not properly appreciating the
fact that the dimension of the room in which the incident had
13
taken place was such that it was impossible to believe that 11
persons were present in the room, when the incident allegedly
took place. It is further submitted that, therefore, the story
put forward by PWs.1 and 2 and the prosecution is totally
unbelievable and, therefore, the impugned judgment and order
of conviction and sentence insofar as convicting the original
Accused No.1 deserves to be quashed and set aside.
8.5 It is further submitted that, as such, there are material
contradictions so far as the electricity at the time of incident
was or not. It is submitted that, in fact, the accused has been
able to prove by leading the cogent evidence, namely,
examining D3 – the officer of the Electricity Supply Division
that at the time of the alleged incident there was no electricity
supply. It is further submitted that the same has been
established and proved even by producing documentary
evidences Exh.D20/D34. It is submitted that, therefore, it
was not possible for any of the prosecution witnesses to
identify the accused. It is submitted that, therefore, both the
Courts below have materially erred in convicting the original
Accused No.1.
14
8.6 It is further submitted that even the original accused
No.1was successful in proving by examining DW2, the son of
the owner of house, that the original Accused No.1 was not
present at the time of alleged incident. It is submitted that
DW2 in his deposition categorically stated that the original
Accused No.1 and others were not involved in the murder of
deceased Mushtak Ahmed.
8.7 It is further submitted that the High Court ought to
have acquitted the original Accused No.1 also by giving her the
benefit of doubt, as was given to original Accused Nos.6 and
7. It is submitted that once the case against the original
Accused Nos.6 and 7 has not been believed and consequently
they are acquitted by giving them benefit of doubt, similar
benefit of doubt ought to be given to the other accused, more
particularly, Accused No.1 also.
8.8 Making the above submissions and relying upon the
decisions of this Court in the case of Jainul Haque v. State
of Bihar (1974) 3 SCC 543; Pandurang Chandrakant
Mhatre v. State of Maharashtra (2009) 10 SCC 773;
Vaijayanti v. State of Maharashtra (2005) 13 SCC 134 and
15
Hoshiar Singh v. State of Punjab 1992 Supp. (1) SCC 413, it
is requested to allow the present appeals and acquit the
original Accused No. 1 for the offences for which she has been
convicted.
9. Shri Deepak Singh, learned counsel appearing on behalf
of original Accused No. 2 has adopted the submissions made
by Shri K.T.S. Tulsi, learned senior counsel appearing on
behalf of original Accused No. 1 and, as such, has reiterated
what was submitted on behalf of original Accused No. 1. In
addition, learned counsel appearing on behalf of original
Accused No. 2 has also relied upon the decisions of this Court
in Mohinder Singh v. State of Punjab AIR 1955 SC 762;
Willie (William) Slaney v. State of Madhya Pradesh AIR
1956 SC 116; Balaka Singh v. State of Punjab (1975) 4 SCC
511; Phani Bhusan Das v. State of West Bengal (1994) SCC
(Cri) 1752 and Suresh Rai v. State of Bihar (2000) 4 SCC
84.
9.1 Making above submissions and relying upon the above
decisions, it is requested to allow the appeal preferred by
16
original Accused No. 2 and acquit him for the offences for
which he has been convicted.
10. Shri K.K. Tyagi, learned counsel appearing on behalf of
original Accused No. 5, has vehemently submitted that, so far
as original Accused No. 5 is concerned, as looking to the
dimension of the room which was hardly 10’ x 10’, it was not
possible for the original Accused Nos. 4 & 5 to fire. It is
further submitted that, therefore, the story put forward by the
prosecution that the original Accused Nos. 4 and 5 were
present and they fired, is unbelievable.
10.1 It is further submitted by the learned counsel appearing
on behalf of original Accused No.5 that, even otherwise, the
prosecution has failed to prove by leading cogent evidence
that, in fact, the original Accused Nos. 4 and 5 fired from the
firearms. It is submitted that neither the firearm alleged to
have been used by the original Accused No. 5 had been
recovered, nor even the bullet was recovered/seized. It is
submitted that even there is no scientific evidence like ballistic
report on record which would suggest and/or prove that, in
fact, original Accused No. 5 fired from the firearm, as alleged
by the prosecution and as stated by PWs 1 and 2. It is further
17
submitted that, as such, the original Accused Nos. 4 and 5
both are entitled to be acquitted by giving them benefit of
doubt on the very ground on which the High Court acquitted
the original Accused Nos. 6 & 7 by giving the benefit of doubt.
10.2 It is further submitted that, as such, even the original
Accused No. 5 is acquitted for the offence under the Arms Act
and, therefore, also both the Courts below have materially
erred in convicting the original Accused No. 5.
10.3 Making above submissions, it is requested to allow the
appeal preferred by the original Accused No. 5 and quash and
set aside the judgment and order passed by both the Courts
below convicting the original Accused No. 5.
11. Shri Rajiv Nanda, learned counsel appearing on behalf of
the State of Uttarakhand and the learned counsel appearing
on behalf of the original complainant have supported the
impugned judgment and order of conviction and sentence
imposed by the learned trial Court and confirmed by the High
Court, convicting the original Accused Nos. 1, 2 and 5 for the
offences under Sections 302/149 IPC and other offences for
which they are convicted.
18
11.1 It is further submitted by the learned counsel appearing
for the State that, so far as the original Accused No. 1 is
concerned, the motive for her to exhort the deceased has been
established and proved and the same has been discussed by
the learned trial Court as well as the High Court in detail.
11.2 It is further submitted that, even otherwise, as has
rightly been observed by the High Court and the learned trial
Court that in view of the overwhelming evidence on record,
more particularly, the depositions of PWs 1 and 2 the eye
witnesses, the presence of original Accused Nos. 1 and 2 is
established and proved beyond doubt and the prosecution has
been successful in proving the case against the original
Accused Nos. 1 and 2, the motive may be inconsequential. It is
submitted that, as such, the motive by the original Accused
No. 1 has been established and proved beyond doubt.
11.3 It is further submitted by the learned counsel for the
State that, in the present case, the prosecution has been
successful in proving the case against the original Accused
Nos. 1 and 2 by leading cogent evidence, more particularly, by
examining PWs 1 and 2 and other witnesses. It is submitted
that both PWs 1 and 2 have fully supported the case of the
19
prosecution and even they are fully crossexamined by the
defence, however, in the crossexamination, the defence has
not been successful in proving anything contrary to what the
aforesaid two witnesses have stated in their examinationinchief.
11.4 It is further submitted that, as such, there are no
material contradictions in the depositions of PWs 1 and 2, as
alleged, on behalf of the original Accused Nos. 1and 2.
11.5 Now, so far as the submissions on behalf of the original
Accused Nos. 1 and 2 that at the time of incident there was no
electricity supply and reliance placed upon the deposition of
DW3, Junior Engineer of the Electric Supply Division is
concerned, it is vehemently submitted that, as such, the
learned trial Court as well as the High Court have given cogent
reasons to disbelieve the deposition of DW3. It is submitted
that, as rightly observed by the Courts below, DW3 deposed
in favour of the Accused No. 2 to favour the accused persons.
It is submitted that his conduct is very much doubtful and
even it is established and proved from the crossexamination
of the said witness that the document Ex.D34 was concocted
and false one and there was interpolation by mentioning the
20
specific time, only with a view to suit the case of the accused.
It is submitted that, therefore, the DW3 is not believable at all
and, as such, both the Courts below have rightly not believed
the story put forward by the accused that there was no
electricity supply at the time of the incident.
11.6 It is further submitted that even the prosecution has
been successful in proving by leading cogent evidence that at
the time of the incident there was electricity supply.
11.7 Now, so far as the submission made on behalf of the
original Accused No. 5 that he shall also be entitled for the
benefit of doubt and is entitled to the acquittal on the very
ground on which the other accused original Accused Nos. 6
& 7 came to be acquitted by the High Court is concerned, it is
submitted that the case against the original Accused Nos. 6 &
7 and the original Accused Nos. 4 & 5 will be different and is
not comparable and, therefore, merely because the other
original Accused Nos. 6 & 7 are acquitted by giving them
benefit of doubt, the other accused, more particularly, the
original Accused Nos. 4 and 5 shall not be entitled to acquittal.
11.8 It is further submitted that even the original Accused
No.4 has not preferred any appeal against his conviction and
21
sentence and has accepted the judgment and order passed by
both the Courts below convicting him for the offences under
Sections 302/148 IPC.
11.9 Now so far as the submissions on behalf of the accused
that as the accused persons came to be acquitted for the
offence under the Arms Act and, therefore, the accused are
entitled to be acquitted, it is submitted that merely because
the accused are acquitted for one offence, ipso facto, they shall
not be entitled to the acquittal for the other offences, if the
other offences are proved against the accused. It is submitted
that, in the present case, both the Courts below have rightly
convicted the accused for the offences under Sections 302/149
and 302/148 of the IPC, more particularly, relying upon the
depositions of PWs 1 and 2 and on appreciation of the entire
evidence on record.
11.10 Making above submissions, it is requested to dismiss
the present appeals.
12. Learned counsel appearing on behalf of the original
complainant has fully supported the judgment and order
passed by both the Courts below convicting the original
accused, by further submitting that even the motive by the
22
original Accused No. 1 to bestow the deceased has been
established and proved, which has been elaborately discussed
by the learned trial Court in paragraph 48. Therefore, it is
requested to dismiss the appeals preferred by the accused.
13. Heard the learned counsel appearing on behalf of
respective parties at length. We have gone through and
considered the impugned judgment and order passed by the
High Court as well as the learned trial Court. We have also
considered in detail and reappreciated the entire evidence on
record.
14. Now, so far as the impugned judgment and order passed
by the High Court maintaining the conviction and sentence
imposed by the learned trial Court, while convicting the
original Accused No. 1 for the offences under Sections
302/149 and Section 147 of the IPC is concerned, we have
heard the learned counsel appearing on behalf of the accused
as well as the State and have reappreciated the evidence on
record. For the reasons stated hereinbelow, we are of the
opinion that both the Courts below have not committed any
error in convicting the original Accused No. 1.
23
14.1 The presence of original Accused No. 1 at the time of the
incident has been established and proved beyond doubt by the
prosecution. The witnesses, more particularly, PWs 1 and 2,
in no uncertain words, have clearly stated that the original
Accused No. 1 came to the place of the incident and that she
started shouting and told to kill the deceased. The role
attributed to the original Accused No. 1 clearly suggests that
the original Accused No. 1 committed the offence punishable
under Sections 302/149 IPC. PW1 has categorically stated
that the original Accused No. 1 Smt. Farida Begum came
inside the room from the eastern side and, from the northern
door, the other accused entered. PW1 categorically stated that
the original Accused No. 1 exhorted and said that the deceased
must be finished and further stated that she will see how the
“no confidence motion” is passed against her. The said
witness has further stated that, immediately thereafter, Mohd.
Ashraf who was carrying Tamancha shot at Mukhtar Ahmed
(deceased). The deposition of the said witness PW1 has been
further supported by the deposition of PW2 Mohd. Rafi. Both
the aforesaid two witnesses are thoroughly crossexamined by
24
the defence, however, nothing adverse to the case of the
prosecution has been brought from the crossexamination.
14.2 Now, so far as the submission on behalf of original
Accused No. 1 that the prosecution has failed to prove the
motive to kill the deceased by the original Accused No. 1 is
concerned, at the outside, it is required to be noted that it has
come on record that the original Accused No. 1 was having
enmity with the deceased Mukhtar Ahmed due to municipality
politics. PW1, in his evidence, has categorically stated that
the deceased Mukhtar Ahmed was elected as the Chairman of
the Municipality, Jaspur in the election prior to the election at
the time of occurrence and that his wife Smt. Sameena Begum
had contested the next election for the post of the Chairman
against Smt. Farida Begum and Sameena Begum had lost that
election. He has further stated that Smt. Sameena Begum, the
wife of the deceased, had challenged the election of A1 in the
court by filing an election petition. That Smt. Farida Begum
(A1) was facing ‘no confidence motion’. The Investigating
Officer PW7 had categorically stated that as the deceased
Mukhtar Ahmed was opposing the actions taken by the
original Accused No. 1 Farida Begum in the municipality and
25
that Smt. Farida Begum was the Chairman and Mohd. Aslam
was the Councillor in the Municipality and that the deceased
Mukhtar Ahmed had got an election petition filed through his
wife against Smt. Farida Begum, it could be the cause of
committing the murder of Mukhtar Ahmed by the accused
persons.
14.3 Even otherwise, it is required to be noted that, in the
present case, the presence of the Accused Nos. 1 and 2 at the
time of the incident has been established and proved beyond
doubt. The role attributed to them has also been established
and proved by the prosecution by leading cogent evidence.
The testimony of the eye witnesses fully supports the case of
the prosecution. Under these circumstances, as rightly
observed by the learned trial Court and confirmed by the High
Court, the aforesaid defence shall not help the accused
persons.
14.4 Reliance has been placed upon the deposition of DW3,
the Junior Engineer of the Electricity Supply Department, by
the learned counsel appearing on behalf of original Accused
Nos. 1 and 2 in support of their case that, at the time of the
incident, there was no electricity supply and, therefore, it was
26
not possible for PWs 1 and 2 to identify the accused persons.
At the outset, it is required to be noted that, both the learned
trial Court and the High Court have disbelieved the deposition
of DW3. From the crossexamination of DW3, it appears that
he had concocted the document Ex.D32 and that there
interpolation by inserting the time which suits the accused.
On reappreciation of the deposition of DW3, we are also of
the opinion that the said witness is not reliable and
trustworthy and that he had given the deposition only with a
view to favour the accused persons. In the crossexamination
of DW3, the prosecution has succeeded in proving that there
was interpolation and overwriting in Ex.32 on the timing and
20.15 PM has been shown as 20.30 PM. Thus, as rightly
observed by the learned trial Court as well as the High Court,
the defence had made an unsuccessful attempt to prove that
there was no electricity supply at the time of incident and that
DW3 had attempted to favour the accused persons for some
special reasons and had tempered with the departmental
records. We are in complete agreement with the findings
recorded by the learned trial Court and confirmed by the High
Court while not believing DW3.
27
14.5 Now, so far as the submission made by Shri Tulsi,
learned senior counsel appearing on behalf of the original
Accused No. 1 that there are contradictions in the deposition
of PWs 1 and 2 and DW2 is concerned, on considering the
entire deposition of PWs 1 and 2, we do not find any material
contradictions which may destroy the case of the prosecution.
Sometime there may be minor contradictions. However,
unless those contradictions are such material contradictions
which may destroy the case of the prosecution, the benefit of
such contradictions cannot be given to the accused. In the
present case, we do not find any material contradictions in the
deposition of PWs 1 and 2 which may destroy the case of the
prosecution.
14.6 Now, so far as the submission made on behalf of the
original Accused No. 1 that as the original Accused Nos. 6
and 7 are acquitted by the High Court and, therefore, the
number of other accused shall be five or less than five and,
therefore, the conviction of the original Accused No. 1 for the
offence punishable under Section 302 with the aid of Section
149 IPC, is not sustainable is concerned, the same has no
substance. It is required to be noted that, from the very
28
beginning, the case of the prosecution was that 7 to 8
persons entered the house with a common intention to kill
the deceased. It is required to be noted that the original
Accused Nos. 6 and 7 are acquitted by giving the benefit of
doubt and on the ground that the story put forward by the
prosecution that they caught hold of the deceased, is not
believable. There is no finding by the High Court while
giving the benefit of doubt and acquitting the original
Accused Nos. 6 and 7 that they were not present at the time
of the incident. Therefore, the overt act and the role
attributed to them is not believable. Even otherwise, so far
as original Accused No. 1 and even original Accused No. 2 are
concerned, we are of the opinion that the prosecution in the
present case has proved beyond doubt the case against them
individually for the offence under Section 302 of IPC.
14.7 Now, so far as the reliance placed by the learned
counsel appearing on behalf of the original Accused Nos. 1
and 2 upon the decisions of this Court referred to
hereinabove is concerned, we are of the opinion that, on
facts, the said decisions shall not be applicable to the facts of
the case, more particularly, the overwhelming evidence in the
29
form of depositions of PWs 1 & 2 and PW7, which prove the
case against the original Accused Nos. 1 and 2 beyond doubt.
15. It is further required to be noted that so far as the
original Accused No. 2 is concerned, PWs 1 and 2 have
categorically stated that, along with Farida Begum, the original
Accused No. 2 also entered and he fired from his firearm. His
presence and the overt act attributed to him has been
established and proved by the prosecution beyond doubt. The
firearm used in the commission of the offence by the original
Accused No. 2 has been recovered at the instance of original
Accused No. 2 himself. There is a direct evidence in the form
of the eye witnesses PWs 1 and 2, which fully supports the
case of the prosecution even after thorough crossexamination
by the defence.
16. In view of the further reasons stated above, we are of the
opinion that the High Court as well as the learned trial Court
have rightly convicted the original Accused Nos. 1 and 2.
17. Now, so far as the conviction and sentence imposed by
the learned trial Court and confirmed by the High Court
convicting the original Accused No. 5 is concerned, we are of
30
the opinion that the original Accused No. 5 shall be entitled to
be acquitted by giving the benefit of doubt on the same
grounds on which the High Court acquitted the original
Accused Nos. 6 and 7 by giving them benefit of doubt.
Looking to the dimension of the room and the role attributed
to the original Accused Nos.4 and 5, we are of the opinion that
the original Accused Nos. 4 and 5 are required to be acquitted
by giving them benefit of doubt, as has been given to the
original Accused Nos. 6 and 7 by the High Court. At this
stage, it is required to be noted that so far as the acquittal of
the original Accused Nos. 6 and 7 by the High Court is
concerned, the same has been accepted by the State and same
has attained the finality.
17.1 It is also required to be noted that even otherwise so far
as Accused No. 5 is concerned, the prosecution has even failed
to prove beyond doubt that in fact Accused No. 5 fired from his
firearm, which as such has missed, as alleged. There is no
evidence on record in the form of recovery of weapon or even
the missed bullet. Therefore also A5 is entitled to be
acquitted by giving him benefit of doubt.
31
17.2 At this stage, it is also required to be noted that so far as
the original Accused No. 4 is concerned, he has not preferred
any appeal against his conviction and sentence. However,
there may be number of reasons for that, including the
financial constraint. However, we cannot loose sight of the
fact that his case is similar to that of the original Accused No.
5 and even original Accused Nos. 6 and 7. Therefore, we take
suo moto cognizance and we are of the opinion that the
original Accused No. 4 is also entitled to acquittal by giving
him benefit of doubt, as the case of the original Accused No. 4
is similar to that of original Accused No. 5 and even the
original Accused Nos. 6 and 7.
18. In view of the above and for the reasons stated above,
Criminal Appeal No. 1560 of 2013 preferred by original
Accused No. 1 and Criminal Appeal No. 1652 of 2013 preferred
by the original Accused No. 2 stand dismissed by confirming
the judgment and order passed by the learned trial Court and
confirmed by the High Court convicting the original Accused
Nos. 1 and 2 for the offences under Sections 302/149 and
Sections 147 & 148 IPC. The conviction and sentence of the
original Accused Nos. 1 and 2 imposed by the trial Court and
32
confirmed by the High Court, is hereby maintained. It appears
that the original Accused No. 1 (Smt. Farida Begum) is on bail.
On her conviction and sentence being confirmed by this Court,
her bail bond shall stand cancelled and she shall surrender
before the Court concerned to serve out the remaining
sentence within a period of two weeks from the date of this
judgment.
18.1 In view of the above and for the reasons stated above, the
Criminal Appeal No. 1653 of 2013 preferred by the original
Accused No. 5 is hereby allowed. The original Accused Nos. 4
and 5 (Raees Ahmed and Raees Ahmed @ Satna) shall stand
acquitted for the offences for which they were convicted by the
learned trial Court and confirmed by the High Court by giving
them benefit of doubt. The original Accused Nos. 4 and 5
(Raees Ahmed and Raees Ahmed @ Satna) shall be released
forthwith, if not required in any other case.
…………………..……………………J.
(N. V. RAMANA)
…………………………………..…….J.
(MOHAN M. SHANTANAGOUDAR)
…………………..……………………J.
(M. R SHAH)
New Delhi,
December 4, 2018
