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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAGHVENDRA SINGH CHAUHAN, ALOK KUMAR VERMA, JJ.
Nafees & another - Appellants
Versus
State of Uttarakhand - Respondent
Criminal Appeal No.37 of 2013
Decided on : 01-07-2021
(A) Indian Penal Code, 1860, Sec. 302 r/w Sec. 149 – Murder—Conviction and sentence – Appellants have challenged the legality of judgment passed by IInd Additional District and Sessions Judge – Determination of – Fact that case was investigated by CBCID – Investigating Agency could not recover either firearm used for killing deceased or Rs. 30,000/- which was allegedly given by 'A’ to appellants – Most interestingly trial Court has acquitted 'A’ for offence u/s 302 r/w Sec. 120-B, IPC, inter alia – On ground that there is no evidence to establish any conspiracy between appellants and 'A’ – Yet, simultaneously would have believed that 'N’ and 'S’ have killed 'M’at behest of 'A’ and that too, because 'A’ agreed to pay them an amount of Rs. 30,000/- – Judgment passed by IInd Additional District and Sessions Judge set aside – Appellants are acquitted – Appeal allowed. (Paras 29 to 32)
(B) Extra-judicial confession – Evidentiary value of – An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution – When an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. (Para 21)
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¼[k½ U;k;kfrfjDr laLohÑfr & dk lkf{;d ewY; & ,d U;k;kfrfjDr laLohÑfr viuh izÑfr ij ,d detksj izÑfr dk lk{; gS vkSj ml ij vR;f/kd lko/kkuh ds lkFk fopkj fd;s tkus dh vko';drk gS & tc ,d U;k;kfrfjDr laLohÑfr lUnsgkLin ifjfLFkfr;ksa ls vkPNkfnr gksrh gS] rks mldh fo'oluh;rk lUnsgiw.kZ gks tkrh gS vkSj viuk egÙo [kks nsrh gSA ¼izLrj 21½
JUDGMENT:
Raghvendra Singh Chauhan, J.
The appellants have challenged the legality of the judgment dated 07.02.2013, passed by the IInd Additional District & Sessions Judge, Haridwar, District Haridwar, whereby the learned Trial Court has convicted and sentenced the appellants for offences as under:-
S.No. Section Sentence Fine
1. Section 148 IPC
Two years Rigorous Imprisonment
2. Section 302 read with 149 IPC Life imprisonment Rs.5,000/- (each)
All the sentences were directed to run concurrently.
2. Briefly the facts of the case are that, on 15.08.1996, Mohd. Afzal (P.W.2) lodged a written report before the Station House Officer, Gangnahar, Roorkee, District Haridwar, wherein he claimed that “a person belonging to his community, Mohf. Akram, was coming back home around 7:45 PM, after having closed his shop at Roorkee. He was coming back to his village Safarpur. After he crossed Salempur, near the field of Vedpal, few unknown persons shot him dead. Mohd. Abbas (P.W.1) and Irshad (P.W.8) were coming on another scooter. Both these persons saw the assailants with the help of the light of their scooter. They can recognize the assailants if the assailants were shown to them. The incident has occurred at around 8:00 PM. These two persons came and informed him about the incident. Therefore, I have come to inform the police”.
3. On the basis of this written report (Ex. Ka.1), a formal FIR, namely, FIR No.138/96, (Ex. Ka.2) was chalked out for offences under Section 302 IPC, and the investigation commenced. During the course of investigation, not only the appellants, Nafees and Saleem, but also the other accused persons, namely, Islam, Saleem @Raja, Avval @Munavar, and Abid were arrested by the police. By order dated 26.08.2000, while Nafees and Saleem, S/o Sadiq, Islam and Saleem @Raja, were charged for offences under Sections 148, 302 read with Section 149 IPC, 120-B IPC, the accused Abid was charged for offence under Section 302 read 120-B IPC. During the course of trial, Saleem @Raja died. Therefore, the trial abated against him. By order dated 07.05.2008, the trial of Islam was separated from the trial of Nafees, Saleem and Abid.
4. In order to prove its case against these three accused persons, the prosecution examined eleven witnesses, and submitted twenty-seven documents. Mr. Darban Singh Verma was examined as a witness under Section 311 of Cr.P.C. Moreover, both Alladiya (C.W.1) and Margoob (C.W.2) were examined as court witnesses. After completion of the trial, by order dated 07.02.2013, the learned Trial Court convicted the appellants, Nafees and Saleem, as aforementioned, while acquitting Abid for offence under Section 302 read with 120-B IPC. Hence, the present appeal before this Court.
5. Mr. S.P.S. Panwar, the learned Senior Counsel appearing for the appellants, has raised the following contentions before this Court:-
Firstly, Mohd. Afzal (P.W.2), the complainant, is neither an eye-witness, nor has he named the appellants in the FIR lodged by him. According to the complainant, Mohd. Akram was shot by unknown persons. Moreover, although, he claims that Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8) had informed him that unknown persons had shot and killed Mohd. Akram, in the FIR, no description of the assailants was given by the complainant. Furthermore, even in the statement given under Section 161 Cr.P.C., neither Mohd. Abbas (P.W.1), nor Irshad Ahmad (P.W.8) have described the assailants even briefly.
Secondly, both, Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8) claimed that they had identified the appellants in the Test Identification Parade (‘TIP’ for short) which had taken place at Sub-Jail Roorkee. According to the prosecution, Nafees and Saleem were arrested on 05.12.1996. They were produced before the Judicial Magistrate on 06.12.1996, yet the TIP did not take place till 22.02.1997, i.e. after the inordinate delay of two and a half months after the arrest of the appellants. Furthermore, neither of the two witnesses claimed t
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