CRLA/339/2011 of MOHAMOOD AND ANR Vs STATE OF UTTARAKHAND on 30 December 2013

1. Mahmood 2.Amir Khan @ Imran

Versus

… Appellants

State of Uttarakhand

… Respondent

Mr. Chandra Mauli Shah, Amicus Curiae for the appellants. Mr. Amit Bhatt, Deputy Advocate General (Criminal) for the State of Uttarakhand/respondent.

Coram: Hon’ble Barin Ghosh, C.J.Hon’ble Servesh Kumar Gupta, J.Per: Hon’ble Servesh Kumar Gupta, J.

By way of this appeal, the challenge is to the judgment and order dated 19.12.2011 rendered by learned Sessions Judge, Almora in Sessions Trial No.6 of 2005, State Vs. Mahmood and another. The court below adjudicated the said trial by recording the conviction of appellants Mahmood and Amir Khan for the offences under section 302/34 IPC, wherefor they have appropriately been sentenced.

2. The prosecution case is based upon the murder of one Puran Singh Negi which took place in the intervening night of 10/11.10.2004 in a hotel/restaurant popularly known as ‘Shama Chicken Corner’ located in Bansal Street, Almora. This hotel was owned by Harish Lal Sah (informant), wherein one of the appellant Mahmood was a worker along with Pushkar Singh and Puran Singh Negi (deceased). A day before the incident, co-appellant Amir Khan had come there who was disclosed by Mahmood as his maternal brother. Up till 9-9:15 P.M., complainant was present in his hotel but thereafter he left the same leaving behind his servants, afore-named.

3. In the morning of 11.10.2004 at about 5 A.M., Pushkar Singh came to the complainant and informed him that Puran Singh had not returned to the place of stay in the night. He further informed that at about 11 PM of the last day, both the appellants had come there. On being asked regarding whereabouts of Puran, appellant Mahmood disclosed that he (Puran), keeping the keys with him, had slept in the hotel itself. When he (Pushkar) came to the hotel in the early morning of 11.10.2004 to resume his work, the hotel was found locked from outside and blood was flowing out. Hearing this, complainant, with his servant Pushkar, came to his hotel and found the above version true. He (complainant) knocked the shutter and called Puran Negi. His call could not elicit any response from inside. So, he was confident that Puran Singh Negi had been killed at the hands of appellants, and after commission of incident, the said perpetrators of crime had escaped. This is the report (Ex.Ka-1) given by PW2 Harish Lal Sah to the police station. The said FIR could be lodged soon after at 6:05 A.M of 11.10.2004. Chick report thereof is Ex.Ka.15.

4. Police then came into motion and arrested both the appellants in the outskirts of Almora itself on 11.10.2004 at 13:25 hours. Memo of their arrest is Ex.Ka-12. From their possession, the clothes, which they were wearing at the time of incident, were recovered. Memo of that recovery is Ex.Ka-13. From the spot, weapon of assault (a baton shaped heavy iron rod) was recovered by the police. Its memo is Ex.Ka-4. At the instance of appellant Mahmood, a bunch of keys of hotel was recovered. Memo of that recovery is Ex.Ka-2 which bears the signature of appellant Mahmood also.

5. Inquest report (Ex.Ka-3) was prepared on 11.10.2004 at 6:05 A.M. It was found that the back skull of deceased was badly fractured to the extent that inner material of brain had come out; blood and brain matter was found scattered on the floor and walls of hotel; face of deceased was blood-soaked; his clothes were smeared with blood and the other articles, kept inside the hotel, were found helter-skelter. In the opinion of witnesses of inquest, deceased had died on account of head-injury. Nonetheless, they recommended for post-mortem. Autopsy (Ex.Ka-15) was conducted by PW7 Dr. R.V. Singh on 11.10.2004 at 3:45 P.M. The following ante-mortem injuries were noticed: -

“A Right occipital parietal area lacerated wound present, obliquely placed, measuring 3 cm x 1 cm, muscle deep, 9 cm above and posterior to upper margin of left Pinna.

B. Lacerated wound on left occipital parietal area, oblique placed, measuring 7 cm x 2.5 cm, muscle and bone deep, crushing of bone present, the brain matter and bone pieces coming out from wound, wound is 6 cm above and posterior to Left Pinna (upper part).

C. Lacerated wound on left temporal bone 3.5 cm x 2 cm muscle deep, 4.5 cm above from left Pinna.

D. Lacerated wound on anterior scalp, just parallel to the saggital sub-lateral measuring 5.5 cm x 1 cm muscle deep.

E. Right frontal temporal region swelling present with blackening, blue in colour, upto lateral margin of the eye.

In the opinion of the doctor, the death had taken place due to massive haemhorrage and shock as a result of ante-mortem injuries.”

6. The police resulted the investigation into submission of chargesheet (Ex.Ka-22) against both the appellants/accused u/s 302/34 IPC. Learned Sessions Judge, Almora, accordingly, levelled Charges against them, to which they abjured their guilt and claimed trial.

7. In all, prosecution has examined ten witnesses viz. PW1 Pushkar Singh, PW2 Harish Lal Sah (complainant), PW3 Constable Subhash Singh, PW4 Ajay Bisht, PW5 B.S. Bisht, PW6 Head Constable Devi Datt Pandey, PW7 Dr. R.V. Singh (who conducted autopsy), PW8 Fariyad, PW9 Jagdish Lal Tamta and PW10 S.S.I. Uttam Singh.

8. Thereafter the statements of both the appellants/accused were recorded u/s 313 Cr.P.C. However, no oral or documentary evidence was led in defence.

9. The trial court resulted the trial into conviction of the appellants, as afore-stated.

10. We have heard learned counsel for the parties and perused the entire material available on record as well.

11. PW1 Pushkar Singh Chauhan is the servant working in the hotel, namely, Shama Chicken Corner, owned by PW2 Harish Lal Sah. PW1 along with Fariyad, accused Mehmood and deceased Puran Singh were the servants in the said hotel, whereas co-accused Amir Khan is the close relative of accused Mehmood. A day before the occurrence, accused Aamir had come to join Mehmood on his call. At about 9-9:30 PM of the fateful night of 10.10.2004, the owner left the hotel for his home. Appellant Mehmood then managed to purchase a liquor bottle and consumed the same in the company of deceased Puran Singh. It has been deposed by PW1 that during liquor consumption, Mehmood was conscious enough to drink less while serving more to deceased Puran Singh. Having become inebriated, Mehmood asked Pushkar (PW1) and Faryad (PW8) to leave the hotel and go to the place of stay (in the night), as they (Mehmood and Puran Singh) will follow them later. So PW1 and PW8 came to their room leaving appellants Mehmood, Amir Khan and deceased Puran Singh in the hotel.

12. PW1 has further deposed that at about 11-11:30 PM, Mehmood and Amir Khan returned. Before entering the room, they had put off their clothes. No sooner did they enter in the room, they switched off the electric light and ignited a candle. Then they kept their clothes in bags and told that they were leaving for home as their mother had fallen ill. PW1 enquired about deceased Puran Singh. They replied that being inebriated, Puran Singh had stayed in the hotel itself. Next day on 11.10.2004 at about 4:30 AM, when PW1 came to the hotel, he found its shutter closed and noticed that blood was flowing out from inside. He immediately went to the house of PW2 Harish Lal Sah (hotel owner), and apprised him about the situation.

13. After that PW2 came to the hotel along with PW1 and found the state of affairs true, as was apprised by PW1. PW2 rushed to the police station and lodged the report. The police came into motion, broke open the lock, took stock of the situation and found that dead body of Puran Singh was lying inside the hotel. PW1 has further deposed that an altercation between the accused Mehmood and Puran Singh, prior to incident, was the order of the day; once Mehmood had threatened Puran Singh that one day, he would remove him (Puran Singh) from his way, as he had already committed three murders.

14. This is all which has been deposed by PW1. He is the most crucial and star witness proving the last presence of deceased along with both the appellants inside the hotel. Inquest was prepared at the place of occurrence itself and witnesses thereof found the deceased brutally murdered by way of inflicting injuries, as have been afore-mentioned.

15. PW2 Harish Lal Sah, (owner of the hotel), is the witness who corroborates the testimony what has been put forth by PW1. It has been deposed by PW2 that a day before the incident, accused Amir Khan came to his hotel who was disclosed by Mehmood as his maternal brother. He was present in the hotel up to 9-9:15 PM and thereafter he came to his residence leaving all five afore-named there. The servants used to keep the keys of hotel, so it was usual for him to leave hotel in the care of his servants after his day long presence there. It has been testified that on 11.10.2004 around 5 AM, his servant Pushkar Singh came to his home and disclosed that Puran Singh did not return in the room previous night. He further narrated the entire tale regarding Mehmood and Amir Khan which they did after returning to the place of their dwelling at about 11 PM of the previous night and also that blood was coming out from beneath the shutter of hotel. On being informed, as above, PW2 along with PW1 came to the hotel and found the facts true. PW2 then went to the police station and reported the matter. Police arrived at the spot and broke open the lock of shutter. Dead body of Puran Singh was found badly injured. The entire scene of occurrence was blood-soaked and a pestle of Imam Dasta (an iron instrument for crushing condiments) was lying beside the dead body. PW2 has further ratified that accused Mehmood and Puran Singh were in the habit of quarrelling with each other but he (PW2) somehow used to persuade and pacify them.

16. In the search of accused persons, PW2 along with police went towards the outskirts of Almora where they noticed the presence of appellants Mahmood and Amir Khan. The police arrested them. Memo of their arrest (Ex.Ka-12) was

prepared. From their possession, clothes which they were wearing at the time of incident, were recovered. Bloodstained clothes of accused persons and that of deceased, nay the Pestle as well as bloodstained pieces of floor from the spot were sent for the purpose of chemical examination. The report of Forensic Science Laboratory is Ex.Ka-14, wherein the blood, found upon all these items, was detected to be human blood but it had been too disintegrated to be classified.

17. PW3 Constable Subhash Singh is witness of recovery of a ring of three keys pertaining to the lock of hotel. This key ring had been concealed by accused Mehmood in the service-latrine of their rented accommodation, which he got recovered. PW3 has proved the same as material Ex.1. Recovery memo Ex.Ka-2 also bears the signature of accused Mehmood. When asked about this recovery of bunch of keys at his instance, he (Mehmood), in reply to question no.11 u/s 313 Cr.P.C., has admitted that the police had got recovered the same. He even did not deny his signature on its recovery memo (Ex.Ka-2).

18. Having a look upon the answers given in reply to questions u/s 313 Cr.P.C., it can be noticed that all these answers are either explicitly evading or admitting the chain of occurrence. So are the answers of co-accused Amir Khan. Memo (Ex.Ka-13) about recovery of their bloodstained clothes, from their possession, bears the signature(s) of both the appellants which they have not denied u/s 313 Cr.P.C. Thus, as per section 106 of the Indian Evidence Act, they were required to speak about the bloodstained clothes recovered from their possession, which were of none other but of themselves. They did not choose to do so. This is a significant link of the chain of circumstantial evidence, attributing guilt upon the accused persons.

19. PW4 Ajay Bist is the landlord of accommodation where all the servants of hotel as well as co-accused Amir Khan were residing. He is also a witness of recovery of bunch of keys at the instance of accused Mehmood from the service latrine of his house.

20. PW5 is B.S. Pangti who, on the relevant date, was posted as a Sub Inspector of police at station Almora. Having received the first information report in the morning of 11.10.2004, he along with SHO K.S. Hayanki and another Sub Inspector Uttam Singh reached at the place of occurrence and found the dreaded scene of occurrence as afore-stated.

21. PW6 is Head Constable Devi Dutt Pandey, who also accompanied the police party in the morning of 11.10.2004 and saw the occurrence along with others. He is also a witness narrating the arrest of accused persons in the outskirts of Almora.

22. PW7 is Dr.R.V. Singh who conducted the autopsy and has proved the injuries found on the dead body, mentioned above.

23. PW8 is Fariyad who is the nephew of accused Mehmood. In his chief-examination, he has accepted that his statement u/s 164 Cr.P.C. was recorded by the Magistrate. But in cross-examination, he has deposed that the said statement was made by him under pressure of police. This way, PW8 Fariyad has not ratified his statement u/s 164 Cr.P.C. recorded by the Magistrate. Even if we ignore the deposition of PW8, it is difficult to brush aside the remaining prosecution story what has been proved by other prosecution witnesses.

24. PW9 is Head Constable Jagdish Lal Tamta. He is a formal witness who reduced the first information report into writing in the G.D. of the police station and has proved the same.

25. PW10 is SSI Uttam Singh who is the investigating Officer of the case. He has proved about the preparation of inquest as well as submission of chargesheet on the basis of formidable evidence collected by him. Nothing has been elicited from his cross-examination so as to disbelieve his prosecution story.

26. In view of what has been discussed above, we find that all links of circumstantial evidence are so complete as to form an unbroken chain disclosing and ascribing the guilt upon the appellants with irresistible conclusion to that effect.

27. Thus, we find that the appeal is bereft of any merit and liable to be dismissed. Appeal is, accordingly, dismissed. The conviction and sentence, as awarded by the trial court to both the appellants, is hereby upheld. Appellants are already in gaol. They shall serve out the sentence so awarded to them.

28. Let a copy of this judgment and order along with LCR be sent to the court concerned for compliance.

Rdang

(Servesh Kumar Gupta, J.)

(Barin Ghosh, C.J.)

30.12.2013