The Allahabad High Court has allowed the appeal of two murder accused in Mansoorpur police station area of Muzaffarnagar and acquitted them.
The Division Bench of Justice Anjani Kumar Mishra and Justice Chandra Kumar Rai passed this order while hearing a Criminal Appeal filed by Kareem and two others connected to the appeal.
The criminal appeals have been preferred against the order of conviction and sentence dated November 17, 2016, passed by the Additional Sessions Judge, Muzaffarnagar, (State vs. Kareem and others), under Sections 452, 302/34, 506 IPC, P.S Mansoorpur, District- Muzaffar Nagar, convicting accused (Kareem, Shahjad, Wajid) for offences under Sections 452, 302/34, 506 IPC and sentencing each of them with imprisonment for 3 years and fine of Rs 5000 under Section 452 IPC, in default of fine, 3 months further imprisonment, life imprisonment to each of them along with fine of Rs 10,000 under Section 302/34 IPC, in default of fine, 6 months further imprisonment and 2 years imprisonment along with fine of Rs 5000/- to each of them under Section 506 IPC, in default of fine, 3 months further imprisonment.
Accused Kareem has been acquitted from the charges under Section 25/27 of the Arms Act, giving benefit of doubt.
The prosecution case is that on July 29, 2012 at 5 AM in the morning when first informant Deepak along with his mother Kauhal Devi were present in house of his brother Rahul, neighbours Kareem, Shahjad, Fayyaz and Wajid entered the house, Kareem and Shahjad were armed with country-made pistols. Fayyaz and Wajid told that they were here to give him a lesson for bothering Anjum, daughter of Kareem. On the said exhortation, Kareem and Shahjad fired shots with intention to murder Rahul, who fell on the spot due to injury caused to him. On account of noise raised by him and his mother and on seeing the villagers arriving, the accused ran away, giving warning that they will kill them also. They carried injured Rahul to District Hospital where doctors declared him dead.
The submission of the counsel for the appellants are: (i) Deepak, 1st informant brother of deceased and Smt Kaushal, mother of deceased alleged eye-witnesses of the incident are interested and partisan witnesses, were not present at the place of incident as such their evidence is unreliable.
(ii) No source of light has been disclosed. The incident is of 5 AM on September 27, 2012 and there was no electricity in the village at the relevant time. As such, the prosecution case is doubtful.
(iii) Place of occurrence is also doubtful as no blood was recovered from the alleged place of incident either on takht or on ground.
(iv) Latches in investigation create doubt about the prosecution story.
In support of the contentions, the counsel for the appellants has placed reliance upon the judgment of the Apex court in Mahabir Singh vs. State of Haryana, reported in 2001 SCC (Cri) 1262. 20.
On the other hand, counsel for the complainant Pankaj Bharti and the AGA for the State argued that it is a case of direct evidence and strong motive. As such, latches in the investigation will not demolish the prosecution case as held by the Apex Court in Dayal Singh and Others vs. State of Uttaranchal, AIR 2012 SC 3046.
So far as the argument of the counsel for the appellants that evidence of Deepak & Smt Kaushal, eye-witnesses of the incident are unreliable as they were not present on the place of incident is concerned, the evidence of Deepak & Smt Kaushal will be relevant.
Deepak in his examination-in-chief states that his mother, brother and sister were sleeping in the room. He was sleeping at gher which is at the distance of 50-60 mtr. from his house, although in the First Information Report, first informant / Deepak, also states that he and his mother were in the house. In his cross-examination, Deepak states that he heard the sound of two shots. His brother was in the house, when he came to his brother, there was no blood on the spot.
This statement of Deepak clearly demonstrates that he was not present at the place of incident. As such, evidence of Deepak is not reliable and the prosecution case is false and doubtful.
So far as Smt Kaushal, another eye-witness is concerned, she has stated in her examination-in-chief that her elder son Deepak had slept at gher where their animals are tied. She woke up at 4 AM in the morning on the date of incident and went at gher for milking cows and buffaloes, after milking she and her son Deepak came to house at about 5 AM.
She also stated in her cross-examination when she reached the gher for milking their animals, there was no electricity. Deepak & Smt Kaushal have also stated that their statements were not taken by police. It is also material to state that Smt Kaushal has made improvement also in her statement in order to prove that she and her son Deepak were present at the place of incident but the analysis of the statement of Deepak & Smt Kaushal as well as other evidence on record fully reveal that Deepak & Smt Kaushal were not present at the place of incident and their evidence does not inspire confidence. It is difficult to accept that they are eye-witnesses.
Second argument of the counsel for the appellant that there was no source of light at the place of incident is concerned, Smt Kaushal in her cross-examination stated that there was no electricity when she reached the gher for milking her cows and buffaloes and came back to house at 5 AM. As such, at the time of incident, there was no electricity in the house at 5 AM on September 27, 2012.
Naushad also states in his cross-examination that the electricity supply in his village was from 4 PM in the evening till 4 AM in morning. So it is well established that there was no electricity in the house at the time of the incident. It was, therefore, not possible for Smt Kaushal to identify the accused in the absence of electricity in the early morning. No alternative source of light has been set up by the prosecution. As such, the prosecution case as set up against the accused appellants is doubtful.
Third argument of the counsel for the appellants that place of incident is doubtful is concerned, it is material to state that no blood was found either on takhat or on the ground or at any other place which make the place of occurrence doubtful. In the site plan also, there is no mention of blood, etc. in any place. It is also material to state that 36 pellets were found below the takhat while the accused was sleeping on the takhat. Naushad in his statement-in-chief as well as in cross-examination stated that the body of deceased Rahul was found in an agriculture field near tubewell and no incident has taken place at the residence of Rahul. The above evidence belies the place of incident as also the prosecution case.
In view of the facts and circumstances of the case and the evidence available on record, the Court found that witnesses produced by prosecution do not inspire confidence that they are eye witnesses of the incident. There was no source of light at the place of incident and place of occurrence is also doubtful. There are lapses on the part of the investigation. Prosecution has failed to prove the charge against the appellants/accused beyond reasonable doubt. Accordingly, the order dated November 17, 2016 passed by the trial court is not sustainable and is liable to be set aside.
“The appeals are allowed. The judgment of conviction and order of sentence dated November 17, 2016 is set aside. Appellants are acquitted of the charged offences. Appellants- Kareem and Shahjad in Criminal Appeal Nos.29 of 2017 and 31 of 2017 respectively are in jail. They shall forthwith be released from the jail, if not wanted in any other case,” the Court ordered.