State of Uttaranchal (now State of Uttarakhand) v. Aslam

Mrs. Mamta Bisht, A.GA., and Mr. P.S. Bohara, Brief Holder, present for the State. Mr. Rajendra Singh, Advocate, present for the accused/respondents. Hon'ble Prafulla C. Pant, J. Hon'ble Servesh Kumar Gupta, J. Hon'ble Prafulla C. Pant, J. (Oral) This appeal, preferred under section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 2

06.06.2002, passed by Additional Sessions Judge/ I Fast Track Court, Hardwar, in Sessions Trial No. 38 of 1992, whereby said court has acquitted the accused/appellants from the charge of offences punishable under section 147, 148, 302/149 I.P.C..

#2. Heard learned counsel for the parties, and perused the lower court record.

#3. Prosecution story, in brief, is that Constable Gyasuddin and Constable Sudesh (both deceased) were on patrol duty on 13.01.1990, in the eastern beet compartment no. 2 within the limits of Police Station Pathri, District Hardwar. They did not come back to the police station. On 15.01.1990, their dead bodies were found lying in the jungle Bedgar compartment no. 2, eastern beet within the limits of Police Station Pathri. P.W. 3 Kaliram Plantation Zamadar of Forest Department, reported the matter to the police that the two dead bodies were lying in the jungle. On the basis of said report, crime no. 5 of 1990 was registered at Police Station Pathri, against unknown persons relating to offence punishable under section 302 I.P.C.. P.W. 11 S.I. Gajraj Singh started investigation. The police went to the spot, took dead bodies of two constables in their possession and prepared inquest 3 reports Ex. A1 and Ex. A3.. Other necessary papers like form no. 13, sample seal and other papers were also got prepared. Both the dead bodies were sent in a sealed condition for post mortem examination. Dr. T.S. Parmar ( P.W. 8) conducted post mortem examination on 16.01.1990, on the two dead bodies and prepared autopsy reports Ex. A16 and Ex. A17. The said medical officer found that Constable Gyasuddin had suffered ante mortem incised wounds and Constable Sudesh had suffered ante mortem fire arm injuries. Both the deceased had died of shock and haemorrhage as a result of ante mortem injuries. After interrogating the witnesses, the Investigating Officer found that Constable Gyasuddin had illicit relations with daughter-in-law of Fateh Mohammad and wanted marry grand daughter (daughter of daughter of said Fateh Mohammad), and for that reason Constable Gyasuddin used to go to his house. The prosecution case is that in the intervening night of 14/15.02.1990, Constable Gyasuddin and Constable Sudesh had gone to village Ghissupura, in the house of the Fateh Mohammad where two were killed by accused/ respondents Aslam, Islam, Akhtar (since deceased), Jamsed, Anwar and Nasir. During investigation an axe was found recovered on pointing of accused Aslam and Islam allegedly used in the 4 crime. On completion of investigation charge sheet was filed against the accused/respondents for their trial in respect of offences punishable under section 147, 148, 302/149 I.P.C..

#4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of sessions for trial. Learned Additional Sessions Judge, Hardwar, on

20.05.1992, after hearing the parties framed charge of offence punishable under section 147, 148, 302/149 IPC, to which all the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 S.I. Phool Singh (who is witness of recovery and prepared inquest report), P.W. 2 Satpal Singh (also a witness of inquest report), P.W. 3 Kaliram (informant), P.W. 4 Baljeet (declared hostile), P.W. 5 Mahabir Singh (who has stated that he saw Aslam and Islam going in a suspicious condition from village towards jungle), P.W. 6 Jeet Singh (before whom it is alleged that the accused made extra judicial confession), P.W. 7 Sharif (declared hostile), P.W. 8 Dr. T.S. Parmar (who conducted post-mortem examination), P.W. 9 Constable Madan Singh, P.W. 10 Constable Bhagwan Sahai, P.W. 11 S.I. Gajraj Singh 5 (Investigating Officer), P.W. 12 Constable Rohtas Kumar (who attempted to explain motive of commission of crime) and P.W. 13 Constable Mohar Singh. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged same to be false and that they have been implicated falsely. In defence D.W. 1 kalu Hasan, Village Pradhan was got examined. The trial court, after hearing the parties, found that prosecution has failed to prove charge of offences punishable under section 147, 148, 302/149 I.P.C., against the accused, and acquitted them from said charge, as such this appeal is preferred by the State challenging the order of acquittal.

#5. Learned counsel for the State argued that the motive of commission of crime is clearly established by Constable Rohtash Singh (P.W.12). It is further pointed out that there is recovery of the weapon used in the crime as stated by P.W. 1 S.I. Phool Singh. It is further submitted that P.W. 6 Jeet Singh has proved extra judicial confession made by the accused Aslam and Islam, as such it is contended that the trial court has erred in law in acquitting the accused.

#6. On reappreciating the entire evidence on record, 6 we find that the alleged recovery of axe is shown on joint pointing out of the two accused. The trial court has rightly observed that the recovery on joint statement of the accused is doubtful. Apart from this, it is not explained that how Constable Sudesh was killed with the fire arm. It is also not clear as to what kind of fire arm weapon whether rifle, pistol or the revolver was used in committing the crime.

#7. It is a case of circumstantial evidence. The prosecution was required to place before this Court all the circumstances connecting that the murder was committed by the accused/appellants and none else. Mere recovery of axe on joint pointing out cannot help the prosecution.

#8. As far as extra judicial confession is concerned, the trial court has rightly observed that there was no occasion on the part of the accused/respondents Aslam and Islam to make extra judicial confession to P.W. 6 Jeet Singh who himself was an accused in a murder case.

#9. Though P.W. 12 Rohtash Singh has narrated the motive of commission of crime that Constable Gyasuddin had illicit relations in the house of Fateh 7 Mohammad with his daughter-in-law, and he wanted to marry grand daughter of Fateh Mohammad, but he does not appear to be the person acquainted with said family as he is not even aware of relations of Aslam and Islam with Fateh Mohammad.

#10. It is a settled principle of law that where two views are possible, and the trial court has taken one of the two, it is not desirable on the part of the appellate court to reverse the judgment in the case of appeal against the acquittal. Since, the impugned judgment is based on one view which could have been taken on the material on record, this Court is not inclined to interfere with the same.

#11. For the reasons as discussed above, the appeal is liable to be dismissed. Lower court record be sent back. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 30.03.2012 Parul