Farida Begum vs State Of Uttarakhand

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 Signature Not Verified Digitally signed by VISHAL ANAND Date: 2018.12.04 16:32:34 IST Reason: 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 eye­ witness PW2 Mohd. Rafi Eye­witness PW3 Mohd. Navi PW4 Naim Khan PW5 Dr. J. K. Goel Who conducted the post­mortem PW6 Sub­Inspector One of the Nirvikar 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 examination­in­

chief.

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