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2012 Supreme(UK) 457
UTTARAKHAND HIGH COURT
Hon'ble Mr. Chief Justice Barin Ghosh and Hon’ble Mr. Justice U.C. Dhyani
Criminal Appeal No. 325 of 2004
AHMAD HUSSEIN & TWO ORS. – Appellants
Versus
STATE OF UTTARAKHAND – Respondent
Decided on : 20.09.2012
For the Appellants : Mr. S.K. Mandal, Amicus Curiae
For the Respondent:Mr. A.S. Gill, Government Advocate assisted by Ms. Meena Bohara, Brief Holder
Headnote:(A) Appreciation of evience — Motive — Significance of — Motive is of no importance when there is direct evidence of commission of the crime. (Para 7)
(B) Evidence of eye-witnesses — Appreciation of — Evidence of such witnesses being not reconcilable — Holding accused persons guilty on such evidence — Held, not safe. (Para 8)
(C) Criminal Procedure Code, 1973, Sec. 313 — Statements of accused under — Importance of — Recovery memos of weapons of assault at the pointing of accused containing thumb impressions of such accused — Accused not denying such thumb impressions to be their in course of answering questions under Section 313, Cr.P.C., nor having asserted, in course thereof, that their thumb impressions were obtained by coercion or force — No fault could be found with their conviction under Sections 4/25 and 25 of Arms Act. (Para 13)
¼v½ lk{; dk ewY;kadu & gsrq dk egRo & tgk¡ vijk/k ds ?kfVr gksus dk izR;{k lk{; gks ogk¡ gsrq dk dksbZ egRo ugha jg tkrk gSA ¼izLrj 7½
¼c½ izR;{kn’khZ lk{kh ds lk{; dk ewY;kadu & izR;{kn’khZ lkf{k;ksa ds lk{; esy u [kkus dh n’kk esa vfHk;qDrx.k dks vijk/k dk nks”kh Bgjkuk lqjf{kr ughaA ¼izR;{k 8½
¼l½ n.M izfØ;k lafgrk] 1973] /kkjk 313 & /kkjk 313 ds vUrxZr vfHk;qDr ds c;ku dk egRo & vfHk;qDrx.k ds crkus ij vijk/k esa iz;qDr gfFk;kjksa dh cjken dh eheksa ij muds gLrk{kjksa@fu’kkuh v¡xwBksa dk muds }kjk euk uk djuk vFkkZr Lohdkj djuk rFkk mudk ,slk Hkh dksbZ Li”Vhdj.k Hkh uk nsuk fd muds vaxqy fpUg ncko esa ;k tcjnLrh yxok;s x;s & ,slh n’kk esa /kkjk 4@25 rFkk 25 vfXu’kL= vf/kfu;e ds vijkèk esa mudks nks”kflf) esa dksbZ nks”k ughaA ¼izLrj 13½
BARIN GHOSH, C. J. (Oral)
Learned counsel Mr. S.K. Mandal submitted that, though he was engaged by the appellants to argue the case on their behalf, but after the matter started appearing in the list for hearing, he tried his best to contact the appellants, but could not establish such contact. In the circumstances, he has submitted that it may not be appropriate on his part to appear in the appeal. Having regard to the fact that Mr. S .K. Mandal, Advocate, has prepared himself to argue the case on behalf of the appellants and, at the same time, at one stage, appellants had reposed confidence in him for arguing the case on their behalf, we felt that it would be appropriate to engage Mr. S.K. Mandal as Amicus Curiae in the matter. We, accordingly, do so.
2. Anwar (PWl) lodged the First Information Report at 03:30 p.m. of 30th March, 1995, where he stated that, after selling milk, he was returning when his brother Afsar was on his bicycle travelling towards him, but, near the tube-well of Maula Baksh, accused people, namely, Ahmad, Mohammad and Salim, surrounded him. It was also alleged that appellant Ahmad was armed with a country made pistol, appellant Mohammad was armed with a knife and appellant Salim was armed with a country made pistol. It was alleged that appellant Ahmad fired on Afsar, appellant Salim also fired on Afsar and appellant Mohammad assaulted Afsar with knife. It was stated that this incident was witnessed by Rais (PW2). On the basis of this First Information Report, investigation commenced, in course whereof, inquest was made. In the inquest report, it was stated that the dead body of Afsar is lying on his back. After the inquest, the dead body of the victim was sent for post mortem. The doctor, who conducted post mortem of the dead body of the victim, reported that the deceased died of ante mortem injuries suffered by him. It was held out that the victim suffered 14 injuries, of which, 12 were incised wounds and remaining two firearm injuries. One firearm injury was on the front side of the face and the other firearm injury was on the back of the chest. From the back of the chest, 52 pellets were recovered and, from inside the brain, two pellets were recovered. According to the post mortem report, those two pellets entered the brain through the inlet caused by the first injury. In course of investigation, one empty 12 bore shell was recovered. After appellants Mohammad and Salim were arrested, on their pointing, a knife and a country made pistol were also recovered. The recovered knife was sent for chemical examination. The Examiner reported that the same contained human blood, but the blood group could not be decided. The empty shell and the country made pistol were also sent for examination by the ballistic expert. The ballistic expert reported that the country made pistol was used to fire the said shell on the basis that the mark of the chamber of the country made pistol has been left on the outer part of the shell. The investigation was, accordingly, concluded. A charge-sheet was submitted alleging that the appellants are guilty of commission of offence punishable under Section 302, read with Section 34, of the Indian Penal Code. In view of recovery of knife and the country made pistol at the pointing of appellants Mohammad and Salim, a separate charge-sheet was also filed, whereby appellant Mohammad was charged for offence punishable under Section 4/25 of the Arms Act and appellant Salim was charged for commission of offence punishable under Section 25 of the Arms Act.
3. The prosecution led principal evidence through PW1 and PW2.
After considering the prosecution evidence and the answers given by the appellants to questions put under Section 313 of the Code of Criminal Procedure, the court below has convicted all the appellants under Section
302 of the Indian Penal Code and also convicted appellant Mohammad under Section 4/25 of the Arms Act and appellant Salim under Section 25 of the Ar
