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MOHAMMAD SABIR versus STATE OF U.P.

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Mohammad Sabir v. State Of U.P. - CRIMINAL APPEAL No. 1377 of 2001 [2007] RD-AH 14155 (17 August 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

        Reserved

Criminal  Appeal  No. 1377 of 2001

Mohammad  Sabir...................................................Accused

             Appellant

Versus

State of  U.P..........................................................Respondent

Hon'ble  M. Chaudhary, J.

Hon'ble S.C. Nigam, J.

(Delivered  by Hon'ble M.Chaudhary, J.)

This is a  criminal appeal filed  on behalf of the  accused appellant  from  judgment and order  dated  31st  of  March,  2001  passed by  IV Additional  Sessions Judge, Pilibhit  in  Sessions  Trial  no. 179 of  1997  State  vs Mohammad Sabir  convicting the  accused  appellant  under  section 302  IPC and sentencing  him to imprisonment for life  thereunder. Accused  Mohammad  Sabir   was  acquitted  under section 25 of the  Arms  Act   by the impugned  judgment.

Prosecution case as unfolded during the trial in brief is that Gulam  Mohammad   @  Chunna   alongwith his wife Rani Begam and children used to reside at  Mohalla Pakariya within the limits of police  station Pilibhit   Kotwali, District  Pilibhit.  Some  fifteen days  prior to the murder of  Gulam  Mohammad @ Chunna, Mohammad  Sabir, resident of  Mohalla  Khera  went to the house of Gulam  Mohammad  and asked him to  prepare  kantta  sabbal (tool for  burglary) but  Gulam  Mohammad  refused  which resulted in an altercation between them  and  Gulam  Mohammad snubbed him and made him go away. At that time Mohammad Sabir   threatened   Gulam   Mohammad to see  him.     At  about   3:00 a.m. during the night between  21st and 22nd  of  October, 1996 Mohammad Sabir   alongwith  Salim  entered the house of  Gulam  Mohammad  by scaling  the wall and caught  hold of  Gulam  Mohammad who was  sleeping  in the room and  took him in the  aangan and  Salim  asked  Sabir  that he  had  insulted him and he  should  be  shot  dead. That  night  Amiruddin, brother-in-law  of  Gulam  Mohammad  was sleeping in his house because  Gulam  Mohammad  was  not well as he was suffering  with colic.  In the meanwhile  Rani Begum, wife of Gulam  Mohammad  raised  cries  and  Amiruddin also  woke  up. At that  time an electric bulb  was lighted  on the wall in between the  room and  the verandah. As Amiruddin tried to catch  hold of the two miscreants Mohammad  Sabir fired  at Gulam  Mohammad  with  countrymade  pistol hitting him  at his  chest. Immediately Mohammad Sabir picked up black   burka of   Rani Begum lying  there and  wrapped the countrymade  pistol in the  Burka  and both the  miscreants   took to their  heels by opening the door  of the house.  Sustaining the firearm injuries  Gulam  Mohammad fell down and died on the spot instantaneously.  Raising the hue and cry Rani Begum and  Amiruddin chased the miscreants. In the meanwhile, gypsy of police reached  there and the police personnel got down and caught hold of Mohammad  Sabir  and  Salim  with countrymade  pistol, cartridges etc. near Gajala  Unani Davakhana. On being  enquired    they disclosed   their  names  as  Mohammad  Sabir and  Salim and  on their   personal search one countrymade pistol wrapped in a   black burka with an empty  cartridge in its  barrel was recovered  from the possession  of  Mohammad  Sabir and seven live cartridges from that   of  Salim.

Smt  Rani  Begum  got report of the occurrence  scribed  by  Faiyazuddin  Shamshi and  went  to police  station   Pilibhit   Kotwali situate at a  distance of  three  furlongs  from the  place of occurrence and  handed  over written report of the occurrence to the police there  at  4:10 a.m. The police  registered  a crime  against the  accused  under section 302  IPC. Station Officer Jagvir Singh Tomar alongwith the  police  personnel   arrested  the  two  miscreants.

The police sealed the arm and ammunition recovered from the  miscreants in two separate  packets and prepared their recovery memo           (Ext ka  5).  Since  both   the miscreants  apprehended   by the police  confessed   that they  committed the murder of  Gulam  Mohammad the arresting officer got  vest and shirt   put on  by  Mohammad  Sabir collected as they contained bloodstains,  sealed  them in a packet  and prepared  the memo (Ext ka  6).  Then Station Officer  Jagvir  Singh  Tomar taking the  two persons   arrested  went to police  station  Pilibhit   Kotwali and lodged an  FIR  against both of them under section 25 of the  Arms  Act at  5:25 a.m. the same morning. The police   registered crimes against both the accused accordingly and made entry regarding  registration of the crimes in the  GD. Station  Officer  Jagvir  Singh Tomar who took up investigation of the  case  in his hands went to the scene  of occurrence. On the directions of  Station  Officer  Jagvir Singh Tomar, SSI  Ram  Shankar  Misra   drew  inquest on the dead body of  Gulam  Mohammad  and   handed  over the  dead body in a sealed cover alongwith necessary papers to constables Abbas   Ahmad  and  Pervez   Ahmad for being taken for its post mortem.

Autopsy  conducted on the dead body of  Gulam  Mohammad   by Dr  J.N. Misra, physician  District  Hospital  Pilibhit  on 22nd of  October,  1996 at  4:00 p.m.  revealed  belownoted  ante mortem injuries:  

Firearm  wound    of entry 3  cm x  3  cm on  left  side of chest  0.5  cm  below inner  end of left  collar  bone. Upper  and  middle  part of left  lung badly lacerated. First rib on  left  side fractured.  Left  atrium of  heart also  lacerated. Pericardium  and left  pleural  cavity were  full of  blood. Blackening  and tattooing    present  around the wound.  

The doctor   recovered   two small  pellets from inside the wound. Stomach  contained   100 gms of  semi digested  food.

The doctor  opined that   the death was  caused  due to hemorrhage  and   shock as  a  result of  ante  mortem injuries about  half  day ago.

The investigating officer collected  bloodstained earth and  simple earth  from the place of occurrence, sealed  them in  separate  packets and prepared its memo ( Ext ka  2). The investigating officer also recorded  statements of the witnesses  and   did other necessary things. He also   got   bloodstained earth,  clothes   of  accused   Mohammad Sabir and that of  the deceased sent to   Forensic Science  Laboratory, Agra  for serologist's opinion if the bloodstained items contained human blood and if so classification of blood  group. He also sent   countrymade  pistol and empty cartridge   recovered  from the possession of  Mohammad  Sabir to the   Forensic  Science  Laboratory Agra for opinion of  ballistic  expert.

After completing investigation the police submitted charge sheets against the accused  accordingly.

Co-accused Salim died  during  pendency of the trial.

After  framing of  charge  against  the  accused the prosecution  examined  Amiruddin  (PW 1) and  Smt Rani Begum  (PW 2)  as  eye witnesses  of the  occurrence. PW 3   Dr  J.N. Misra who conducted  autopsy on the dead  body proved   the post mortem report  deposing that the ante mortem injuries  sustained by the  victim were  sufficient  to cause  death  in ordinary  course of nature.  PW 5 SI Jagvir Singh Tomar who  arrested Mohammad Sabir and Salim soon  after the occurrence  near  mohalla  Pakariya and after investigating  the crime submitted  charge sheet  against  the  accused under section 302  IPC proved the police  papers.  PW 4   SSI Ram Shanker  Misra in  whose  presence  both  the   accused  were  arrested  by the police party  headed  by the  Station  officer appeared  as a  recovery witness. On the directions of the  investigating officer he  drew  inquest on the dead  body of   Gulam  Mohammad  and hence he also proved  the inquest papers. PW 6 SI Manvir Singh who investigated the crime   against the  accused  under section 25 of the  Arms  Act  and  after completing  investigation submitted  charge  sheet  against  him proved the police  papers.  He also  proved  sanction of the  District  Magistrate  obtained  by him to prosecute accused   Sabir under section 25 of the  Arms  Act.

A perusal of the serologist's report goes to show that bloodstained  earth,   bloodstained  clothes put on by  accused  Mohammad  Sabir and bloodstained clothes of   the deceased  contained  human  blood and  blood  on   all the items  was   of  ''B'  blood  group ( Ext  ka  20).

A perusal of the report of Ballistic  expert, Forensic  Science  Laboratory Agra  also goes to show that after firing three  cartridges of  .12  bore with the countrymade  pistol recovered  from the possession of  accused Mohammad  Sabir the  Ballistic expert  found that individual  characteristics on the empty  cartridge EC-1  and  TC 2   and   TC 3   were  similar and hence he opined that the empty cartridge was  fired with that  very countrymade pistol ( Ext  ka  22) (recovered  from the possession of accused  Mohammad  Sabir).

The accused pleaded not guilty denying the alleged occurrence   altogether. He also denied his arrest at the time and place as alleged by the prosecution.  Accused Mohammad  Sabir also  stated that the  police of  police station  Pilibhit Kotwali  apprehended him from his house at about 1:00 a.m. the alleged night on 21st of   October, 1996 and implicated him  in the  case  falsely.

On  an appraisal of evidence on the record the learned  trial judge held the accused guilty for an offence punishable under section 302 IPC and convicted and sentenced  him as  stated  above. However accused Sabir was acquitted    under section 25 of the Arms Act on the technical  ground  as sanction of  District Magistrate, Pilibhit to prosecute him was obtained subsequent to taking  cognizance of  the offence by the  Court  under section 25  of the  Arms  Act.

Feeling  aggrieved   by the   impugned  judgment the accused  appellant  preferred this appeal for redress.

Heard Dr Abida Sayeed, learned amicus curiae for the accused appellant and Sri Karuna Nand Bajpayee, learned AGA for the State  respondent.

After going  through the impugned  judgment and  record of the case  we find   no good  reason to  differ from the findings  recorded by the learned   trial judge   against the  accused  appellant.  PW 2  Smt  Rani Begum, wife of  the deceased narrated  all the facts  from the  beginning  to the end  as  stated  above  deposing  that the fateful night   her  brother  Amiruddin was   staying  at  her  house  as he  had  come last  evening to see   her husband Gulam Mohammad  who was  suffering   with  colic; that the   fateful night  she  and  her  husband  and  their  children were  asleep   inside the room and  her  brother  was  asleep   in the verandah and the window and the door of the room  were  open; that an electric bulb  was lighted on the wall in between  the   room and the verandah above the window emanating  sufficient  light in the verandah and  aangan  and  inside the room also; that   at  about  3:00 a.m. Sabir  and  Salim entered  her house  by scaling  the wall and  caught  hold of  Gulam  Mohammad  and   pulled him in the aangan; that as her  husband raised cries  she  woke up; that  immediately Salim  asked  Sabir that he  had  insulted him and should  be  shot  dead; that in the meanwhile  hearing the   hue and cry  raised by her  Amiruddin  got up and as he  tried   to  catch hold of the miscreants  Sabir  fired  at  Gulam  Mohammad  with countrymade  pistol hitting him at his chest. Sustaining the  fatal firearm injury  Gulam  Mohammad  fell down and  Sabir  picking up  burka   lying  there and wrapping  the countrymade  pistol  therein  alongwith   Salim  ran away.  She  further  stated that sustaining the firearm injuries Gulam  Mohammad   died  on the  spot instantaneously; that she  alongwith  her  brother  Amiruddin   chased the  two miscreants  raising  cries;  that in the meanwhile   a police  jeep  reached there and the police  personnel  got  down  and caught hold of the  two miscreants; that   the police  enquired   from them and both of them told  their  names as  Sabir  and  Salim and that the police  recovered  a  countrymade  pistol, cartridges etc  from their  possession.  She further  stated that   then  she   got   report of the  occurrence scribed by one  Faiyazuddin  Shamshi and   taking  written report of the   occurrence   went to police  station  Pilibhit  Kotwali situate at   a  short  distance  and handed over  written report of the occurrence  to the  police  there.  PW 1   Amiruddin  corroborated  her  stating likewise.  Both   these  witnesses  were subjected to  rambling and   gruelling  cross-examination but nothing substantial  could be elicited  therefrom to shake the central  core of their  version regarding the  occurrence.   Their  sworn  testimony  stands further  corroborated by medical evidence and   serologist's  report  as well. A perusal of the serologist's report  goes to show that  bloodstained   earth collected  by the investigating   officer   from the scene of occurrence, bloodstained   clothes  put on by  accused  Sabir  and  collected by  Station  Officer Jagvir  Singh  Tomar, the arresting  officer and bloodstained  clothes  of the  deceased   contained   human blood and the blood  on all the items  was  of  ''B' blood   group ( Ext  ka  20).  A perusal of the report of ballistic  expert  goes to show  that   after  firing   three  cartridges of  .12  bore   with the countrymade  pistol  marked ''1/96' (recovered  from the possession of   accused Sabir by the arresting  officer) the  ballistic expert found that  individual characteristics on empty  cartridge EC-1 and  TC-2 and  TC-3  were  similar and  thus  in   the opinion of the ballistic expert empty cartridge EC-1 was fired   with that very countrymade  pistol marked ''1/96' ( Ext  ka 22). In view of  the  above overwhelming   evidence   we find   that  the learned  trial judge  rightly held the  accused  appellant  guilty  of the offence  of murder. However learned Amicus Curiae for the accused appellant has advanced following arguments assailing the impugned judgment. Now we shall see if any of them has got any force in it :

First, the appellant's learned counsel vehemently argued that PW 2 Rani Begum, wife of the deceased and the first informant stated in her cross-examination that she went to the police station  to lodge FIR at about 8:00 a.m. the following morning and thus FIR lodged at the police station at 4:10 a.m. is ante timed. It appears that PW 2 Smt Rani Begum stated  so in some confusion or under the strain of cross-examination, because  a perusal  of the inquest report goes to show that crime number, time of lodging FIR, cause of death, distance of police station from the locality in which occurrence took place etc were mentioned in the inquest report ( Ext ka  8). It  has  come in evidence that  the investigating officer reached the scene of occurrence at 7:00 a.m., and on his  directions  SI  Ram  Shanker  Mishr drew inquest on the dead body and  the dead body in a sealed cover alongwith necessary papers was handed over to constables Abbas Ahmad and Parvez Ahmad for being taken for its post mortem at 8:30 a.m. the same morning. A perusal  of the post mortem  report  goes to show that autopsy was also conducted  on the dead body of Gulam Mohammad  by Dr  J.N.Misra the same day at 4:00 p.m.( Ext ka  4). Further, PW1 Amiruddin  also stated that Rani Begum got report of the occurrence scribed by  Faiyazuddin Shamshi  residing in that very locality and then taking the report  she went to police station at 4:00 a.m. that very night. We are of the view that the above facts completely dislodge the plea advanced  by learned amicus  curiae that FIR is ante timed.

Secondly, learned Amicus Curiae for the accused appellant  laid much emphasis upon the fact that ocular testimony of the eye witnesses is inconsistent with the medical evidence as PW 2 Rani Begum stated that that day Gulam Mohammad had not taken food and had taken  tea and milk whereas perusal of the post mortem report goes to show that stomach contained 100 grams semi digested food . It is true that PW 2 Rani Begum, wife of the deceased stated that since Gulam Mohammad was suffering  with  dysentery and colic that day  he had not taken food; but it does not rule out the possibility altogether that he would not have taken bread, biscuits etc with tea. Moreover,  PW 2 Smt Rani Begum stated in her cross-examination  that for the last 3- 4 days he was not keeping well due to colic but  that  day he was  suffering  with  severe pain, and hence the possibility can not be ruled out that food taken one day before  death might  not have digested because of  colic  with which he was suffering. It is true that normally vegetable diet leaves stomach completely within 6 to 8 hours of taking it, but it can not be accepted with mathematical precision and exactitude  because digestion depends upon several factors such as quantity of food taken, tone and mobility of stomach , mental condition etc. Moreover, in view of  cogent and consistent testimony of the two eye witnesses corroborated by  FIR of the occurrence lodged promptly at the police station and medical evidence  and reports of Serologist and Ballistic Expert  the alleged inconsistency regarding stomach  contents can well be ignored.

Thirdly, learned Amicus Curiae for the appellant vehemently argued that since there is no mention of light in the FIR lodged by Rani Begum, wife of the deceased and in the site plan map too it appears that it was all dark at the time of occurrence and some unknown person who killed Gulam Mohammad could  not be  recognized and the accused  appellant was got implicated in the case falsely at the instance of the police.  Said contention advanced by learned amicus curiae for the appellant  deserves outright rejection. PW 1 Amiruddin stated  that it was a moon lit night. Moreover, both the accused were known to the eye witnesses since before. Both  the  eye  witnesses   consistently  stated  that  an electric   bulb  was lighted on the wall  in  between the  room and the   verandah   above the window  emanating  sufficient  light in the room and the verandah as well. Besides it,  both the eye witnesses stated  that they chased both the miscreants raising cries  and on Mal  Godam Road  a police vehicle reached at that very time and that the police personnel got down from the jeep and caught hold of the two miscreants namely Sabir and Salim.  PW 5 Station Officer Jagvir Singh Tomar, the  arresting  officer too stated that at about 3:00 p.m. during the night between 21st and 22nd of October 1996 he alongwith the police personnel reached in a police jeep as  they  were  patrolling  the  area  and caught  hold of    both the miscreants who were being chased and on being enquired both the persons apprehended told their names Sabir and Salim; that then their  personal searches were taken and he recovered a country made pistol with an empty cartridge in its  barrel from the possession of accused Sabir and  that  the  barrel was smelling as of  fresh fire. A perusal of the report of Ballistic Expert goes to show that empty cartridge EC-1 was fired with that very countrymade pistol marked ''1/96'  (recovered by station officer Jagvir Singh Tomar from the possession of Sabir arrested soon after the occurrence). A perusal of the Serologist's report further goes to show that bloodstained earth  collected by the investigating officer from the scene of occurrence, bloodstained  vest and shirt put on by Sabir at the time of his arrest collected by the arresting officer from his person soon after the occurrence and bloodstained clothes of the deceased contained human blood and  bloodstains  on all the items aforesaid were  of ''B' blood group.  Testimony of the two eye witnesses which is of unimpeachable character coupled  with the reports of serologist and  ballistic expert can not be discarded on superficial grounds.

For the foregoing   reasons,  we  find   no good reason  to interfere  with the  findings recorded by the learned  trial judge  against the  accused  appellant. The appeal has no merit and is liable to be dismissed.

The appeal is hereby dismissed, and the impugned  judgment  and order   convicting  accused appellant  Mohammad  Sabir   under section 302  IPC and sentencing him to imprisonment  for life thereunder is hereby affirmed. Accused  appellant  Mohammad   Sabir is in jail. He shall serve out the sentence imposed upon him.

Office is  directed to send  copy of the judgment and record of  lower  court  to the  Court  below immediately for ensuring necessary  compliance  under  intimation  to this  Court within one month  from today.

Dated: 17th of  August, 2007

Crl Appeal No. 1377 of  2001


Copyright

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