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