IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 949 OF 2007
Asif Mamu ...Appellant
Vs.
State of Madhya Pradesh ...Respondent
WITH
CRIMINAL APPEAL NO. 718 OF 2007
AND
CRIMINAL APPEAL NO. 838 OF 2007
JUDGMENT
B.N. AGRAWAL, J.
1. Criminal Appeal Nos. 949 and 838 of 2007 arise out of the impugned
common judgment of conviction rendered by the High Court after
reversing the order of acquittal passed by the trial court in Sessions
Trial No. 379 / 1996, whereby, appellants Asif Mamu and Mukhtiyar
Malik @ Javed, besides accused Rajiulla Khan and Sheru @ Sher
Khan Nepali [in short “Asif”, Mukhtiyar”, “Rajiulla” and “Sheru”,
respectively] were acquitted. Criminal Appeal No. 718 of 2007 arises
out of the said common judgment of conviction passed by the High
Court after reversing the separate judgment passed by trial court in
Sessions Trial No. 383/96 acquitting eight accused persons, namely,
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Muzaffar Hussain @ Munne Painter, Mazhar Hussain [in short,
“Munne Painter” and “Mazhar”, respectively], Badshah, Sadiq,
Sajid, Haseen @ Mohasin, Guddu Jadugar @ Mehtab @ Ganja [in
short, “Haseen” and “Guddu”, respectively] and Salim Kela. These
two sessions cases were case and counter case, tried one after the
other by the same court, separate evidence was recorded therein and
disposed of by separate judgments. As such, we proceed to consider
cases of accused persons in the two trials separately.
Criminal Appeal Nos. 949 and 838 of 2007
2. Asif, the sole appellant in Criminal Appeal No. 949 of 2007 and
Mukhtiyar, who is also the sole appellant in Criminal Appeal No. 838
of 2007, and Raziulla, appellant in Criminal Appeal No. 837 of 2007
along with accused Sheru were tried and acquitted of the charges by
judgment rendered by the trial court. The State of Madhya Pradesh
filed an appeal before the High Court against the said order of
acquittal, during the pendency of which accused Sheru died, as such
the appeal against him abated. So far as the other three accused
persons are concerned, they have been convicted by the High Court
under Section 302/149 of Indian Penal Code [for short `IPC’].
Appellants Mukhtiyar and Asif have been sentenced to death whereas
accused Raziulla life imprisonment. All the three accused persons
have been further convicted under Section 148, IPC and sentenced to
undergo rigorous imprisonment for a period of three years and to pay
a fine of Rs. 10,000/- each, in default to undergo further rigorous
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imprisonment for a period of six months. Appellant Mukhtiyar has
been also convicted under Section 25 (1B) of the Arms Act and
sentenced to undergo rigorous imprisonment for a period of three
years and to pay fine of Rs. 10,000/-, in default to undergo further
rigorous imprisonment for a period of six months. All the sentences,
however, have been ordered to run concurrently. Challenging their
convictions the three accused persons filed separate appeals by special
leave. As accused Raziulla died during the pendency of appeal,
Criminal Appeal No. 837 of 2007 filed by him abated and
consequently on 5th August, 2008 an order of abatement of the said
appeal was recorded by this Court. Thus, we are required to decide
the two appeals filed by appellants Mukhtiyar and Asif.
3. Prosecution case in short was that 10/07/1996 was the date fixed in
Sessions Trial No. 379/1995 in the court of the 3rd Additional Sessions
Judge, Bhopal for evidence. The said case related to causing bullet
injury by Mukhtiyar, Sheru and Asif on the leg of one Munne Painter
who arrived court premises on that day at 10.30 am along with his
witnesses viz., Munnu, Rais Nai, Saleem Baba, Saleem Bucha, Babu
Bhai, besides others and they sat in the gallery outside the courtroom
of the 3rd Additional Sessions Judge, which was on the first floor of
the building of the said courthouse, where accused Mukhtiyar, Sheru,
Asif and one boy, who was wearing red shirt, [in short, “red shirt
boy”] were sitting from before. At 11.45 am accused Rajiulla, who
was an advocate and uncle of appellant Mukhtiyar, came there and
ordered to kill. Accused Asif and the red shirt boy were armed with
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knives. Accused Mukhtiyar and Sheru, who were armed with
revolvers, started firing from their respective weapons aiming
towards Munne Painter besides Saleem Baba and Saleem Bucha and
in order to save himself Munne Painter entered inside the courtroom
of the 3rd Additional Sessions Judge. As a result of firing by the
aforesaid two accused persons, Saleem Baba and Saleem Bucha
received injuries and while Saleem Bucha fell down in the gallery
itself, Saleem Baba moved to the said courtroom, fell down there and
both of them succumbed to their injuries. According to the
prosecution, the accused persons, with the intention of putting
pressure upon the members of the prosecution party for changing
their statement in the Sessions Trial No. 379 / 1995, in which witnesses
had come to depose, conspired and made homicidal attack on them.
Stating the aforesaid facts, a written report was submitted by Munne
Painter before the officer-in-charge, Shahjahanabad police station in
Bhopal town on the basis of which First Information Report [for
short `FIR’] No. 410/1996 was drawn up at 1.10 pm against five
accused persons, namely, Mukhtiyar, Rajiulla, Sheru, Asif and red
shirt boy.
4. Thereafter, on the basis of statement of Rajiulla, who is accused in the
present case, another FIR was drawn up at the same very police
station at 1.35 pm bearing FIR No. 411 of 1996 for the prosecution of
eleven accused persons, namely, Munne Painter, Majhar, Saleem
Baba [since deceased], Saleem Bucha [since deceased], Saleem Kela,
Badshah, Sadiq, Sajid, Guddu, Haseen and Assu Bambaiya
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[absconding], which includes eight accused persons referred to above,
in which case allegations were that red shirt boy was inflicted injuries
by knife by accused persons of that case at the same time and place of
occurrence and the said boy, after being assaulted, was thrown by
some of the accused persons of that case from the first floor of the
court building to the ground floor, who succumbed to the injuries.
5. Another FIR was drawn up at the said police station being FIR No.
412 / 1996 under Section 307, IPC against Saleem Kela, who was
accused in FIR No. 411 / 1996, on the statement of one Mohd. Rashid –
auto driver, in which allegations were made that when said Saleem
Kela, after commission of the offence relating to which FIR No. 411 /
1996 was registered, was fleeing away and when he was chased by the
Town Inspector, he boarded the said auto rickshaw asking the driver
to drive the same but on refusal caused knife injury upon him. Saleem
Kela also fired at the Town Inspector but the same did not hit him.
6. On the same day fourth FIR was drawn up at the aforementioned
police station being FIR No. 413/1996 under Section 307, IPC on the
basis of the statement of Sharad Charan Dubey, Inspector of Police
attached to the concerned police station on allegations that when the
accused persons of FIR No. 411 of 1996 were coming down through
the stairs, he challenged them and accused Saleem Kela and three
other persons attacked him with dagger, as a result of which injury
was caused on the index finger of his left hand whereupon while
Sharad Charan Dubey, in self defence, fired shots from his service
revolver and chased them, Saleem Kela fired at him from country
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made revolver, but he remained unhurt. Then Saleem Kela boarded
the auto rickshaw and compelled the driver to drive the same and at
that point of time once again resorted to firing. Sharad Charan
Dubey, in self defence and in order to save driver of the auto
rickshaw, again fired at Saleem Kela as a result of which he was
injured and fell down whereupon he was taken to Hamidia Hospital
for treatment.
7. After registering the cases, police took up investigation in all the four
cases and submitted chargesheets against four accused persons in the
case arising out of FIR No. 410 / 1996 since red shirt boy had died and
against only nine accused persons in the case arising out of FIR No.
411 / 1996 showing accused Assu Bambaiya as absconder since two
accused persons, viz., Saleem Bucha and Saleem Baba, who are said
to have received injuries in the occurrence, which was subject matter
in FIR No. 410 of 1996, succumbed to their injuries. Police also
submitted chargesheets in cases arising out of FIR Nos. 412 & 413 /
1996. Upon receipt of final forms in the aforesaid four cases,
cognizance was taken and all the four accused persons of this case and
accused persons of other three cases were committed to the Court of
Sessions to face trial.
8. The defence of the accused persons in short was that they were
innocent, had no complicity with the crime, were falsely implicated in
the case on hand and the victims might have received injuries in some
other manner of occurrence. Some of the accused persons had also
taken a plea of alibi.
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9. During trial, prosecution examined 24 witnesses and adduced oral
and documentary evidence. Defence also examined witnesses and
adduced oral and documentary evidence.
10. Upon the conclusion of trial, separate orders of acquittal were
rendered by the trial court in case and counter case, but on appeals
being preferred High Court by a common order reversed the same
and convicted accused persons in both the cases as stated above.
11. Presiding Officer of the trial court after recording of evidence thought
it fit to inspect the place of occurrence, which is court premises, itself
in the presence of Special Public Prosecutor and learned counsel
appearing on behalf of the accused persons and prepared a map of
the site where occurrence in both the cases is said to have taken place,
which includes the gallery outside the court of the 3rd Additional
Sessions Judge and the same was visible to the persons sitting in the
courtroom of 1st Additional Sessions Judge, 3rd Additional Sessions
Judge, 4th Additional Sessions Judge, counters of District Court,
Nazarat Office, Office of COC and CCD Counter. The staff sitting in
any of the three courts or in the aforesaid offices might have
witnessed the occurrence. The Investigating Officer – R.K. Bajpai
[PW-22] stated that he did not make any enquiry from the employees
who were attached to the court of 1st and 4th Additional Sessions
Judges, CCD Counter and to the offices of CDC Counter, Nazarat
Office, COC Office or any other 4th Grade employees who were
supposed to remain present. It appears from his evidence that the
statements of advocates and advocates’ clerks were also not recorded
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during the course of investigation. It further appears that during the
course of investigation statements of K. Rajamma Kurup [Reader]
and Ram Chandra [Adeshik Lekhak], who were attached to the court
of 3rd Additional Sessions Judge, were recorded by the police, but
curiously enough, they have not been examined as witnesses in the
present case. The aforesaid persons could have been independent
witnesses in support of the prosecution case but, for reasons best
known to the prosecution, they have been withheld. In the present
case the informant, Munne Painter, who has been examined as PW-1
and according to the FIR was an eyewitness to the alleged occurrence
did not support the prosecution case, as such declared hostile.
According to the prosecution case Majhar [PW-2], Badshah [PW-3],
Sadik [PW-4], Sajid [PW-5], Haseen [PW-6], Guddoo [PW-7] and
Saleem [PW-8], who were also eyewitnesses to the alleged occurrence
and could have been independent witnesses, did not support the
prosecution case, as such also declared hostile.
12. Sharad Charan Dubey [PW-24], who was the Inspector of Police
attached to the concerned police station, stated that on receipt of an
application from PW-1 that he apprehended danger to his life as
appellant Mukhtiyar had given out threats to him that in case he
appeared in court on 10.07.1996 for deposing as a prosecution witness
in Sessions Trial No. 379 / 1995, he would be done to death. Upon
receipt of the said application, PW-24 along with Head Constable –
Ram Sewak and Constable – Saleem arrived court at 11.00 am on the
date of occurrence. The witness stated that he went to the first floor of
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the court building and found other persons in the gallery in front of
the court of 3rd Additional Sessions Judge but did not find any of the
two appellants, viz., Mukhtiyar and Asif and accused Sheru. He also
stated that he made a frantic search of these three persons in and
around the court premises but didn’t find them there. He then stated
that when this witness was near the chamber of the Chief Judicial
Magistrate on the ground floor he heard the sound of firing from the
first floor and when he rushed towards the stairs, found four persons
coming down through the stairs, out of whom, two persons were
armed with firearms and the other two with knives. The witness
admitted during the course of cross-examination that he knew all the
four accused persons of this case, including the appellants of these
appeals, from before the occurrence and none of them was amongst
the accused persons who were coming to the ground floor through the
stairs. This witness has not been declared hostile. Thus, statement of
PW-24 makes presence of, all the four accused persons of the present
case including the appellants at the place and time of occurrence,
highly doubtful.
13. The prosecution has placed reliance upon the evidence of Amar
Bahadur Singh [PW-9], Balram Singh Paithari [PW-11], Surendra
Nath [PW-12], Lavkush Sharma [PW-14] and Ramesh Dubey [PW-
17], who were police witnesses and said to have witnessed the
occurrence. Out of these witnesses, PWs 11, 12 and 17 stated that
appellant – Mukhtiyar fired at Saleem Bucha on his back while he was
fleeing away, but Dr. D.S. Badkur [PW-13], who held post-mortem
9
examination on the dead body of Saleem Bucha categorically stated
that the said deceased received bullet injuries and the wound of entry
was in the chest. From the evidence of the doctor [PW-13] it appears
that Saleem Bucha did not receive any injury on the back of his body.
Thus, medical evidence completely demolishes the statements of PWs
11, 12 and 17 that appellant – Mukhtiyar caused firearm injury on the
back of Saleem Bucha when he was fleeing away. Likewise, according
to the evidence of PWs 11, 12 and 17 accused Sheru fired at Saleem
Baba as a result of which he received injury on his chest, but the
doctor [PW-13] who conducted post-mortem examination on the dead
body of Saleem Baba, did not find any injury whatsoever on his chest
but he found wound of entry on the back of his body. Statement of the
doctor [PW-13] thus makes the evidence of PWs 11, 12 and 17 that
accused Sheru caused injury on the chest of deceased Saleem Baba
highly doubtful.
14. According to prosecution, the Investigating Officer, R.K. Bajpai [PW-
22] seized one revolver belonging to appellant Mukhtiyar and two live
cartridges from the house of the said appellant on disclosure
statement made by him and prepared Seizure Memo [Ext. P/34].
Appellant Mukhtiyar is said to have fired at deceased Saleem Bucha
and the bullet recovered from his dead body by the doctor [PW-13]
was marked as article `J’ and sent to Forensic Science Laboratory
[for short `FSL’] where it was marked as article `EB-5′, though the
revolver said to have been recovered from the possession of appellant
Mukhtiyar, for the reasons best known to the prosecution, was never
10
sent to the FSL. PW-22 is said to have recovered a country made
revolver from one Saleem Kela also which was marked as article `K’
and sent to the FSL where it was marked as article `A-2′. The report
of the FSL [Ext.-40] shows that the bullet article `J’ which was
recovered from the dead body of Saleem Bucha and marked by the
FSL as article `EB-5′ was fired from the country made revolver
[article `A-2′] which was seized from the possession of Saleem Kela.
This finding of the FSL gives a death blow to the prosecution case
that appellant Mukhtiyar fired at the deceased Saleem Bucha by his
country made revolver causing injury to him.
15. So far as deceased Saleem Baba is concerned, from his dead body the
doctor [PW-13] recovered a bullet which was marked as article `H’
and sent to the FSL where it was marked as article `EB-4′. PW-22 is
said to have recovered a country made revolver from accused Sheru
which was marked as article `D’ and sent to the FSL where it was
marked as article `A-1′. The report of the FSL [Ext.-40] shows that
the bullet [article `EB-4′] recovered from the dead body of Saleem
Baba was never fired from the country made revolver [article `A-1′]
recovered from the possession of accused Sheru, rather it has been
specifically stated that the said bullet could have been fired only from
0.38 bore service revolver which is ordinarily used by the police
personnel. Therefore, in the absence of any evidence whatsoever that
the firearm recovered from the possession of accused Sheru was 0.38
bore service revolver, rather specific case is, what was recovered from
him was country made revolver, the above finding in the report of the
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FSL makes the prosecution case of causing firearm injury by accused
Sheru upon Saleem Baba by country made revolver highly suspicious.
16. In relation to appellant – Mukhtiyar, PWs 9, 11, 12, 14 and 17 who are
police personnel and claim to be eyewitnesses, for the first time, stated
in court after about two years that this accused was armed with
country made revolver and fired at Saleem Bucha as in their previous
statements made before the police none of these witnesses attributed
any weapon to this accused much less a country made revolver and
firing therefrom at Saleem Bucha. So far as appellant Asif is
concerned, according to PW-9, he was not armed with any weapon
much less knife. PWs 11, 12, 14 and 17 in their evidence in court, after
about two years, for the first time, stated that this appellant was
armed with a knife as in their statements made before the police these
witnesses did not attribute any weapon, much less knife, to this
appellant. In court, for the first time improvement was made and
knife was attributed to this accused, which makes the complicity of
appellant Asif with the crime highly doubtful. Apart from this, none
of the aforesaid witnesses stated that Asif assaulted anybody with
knife.
17. In view of the fact that the prosecution case is not supported by
medical evidence, the report of FSL, the fact that PW-24, who knew
the accused persons from before, did not find any of them amongst
the persons, who were fleeing away through the stairs of the court
immediately after the occurrence, PWs 1 to 8, including the
informant, who were independent persons having not supported the
12
prosecution case, no steps whatsoever were taken by the prosecution
to examine in court, the Reader and Adeshik Lekhak of the court of
3rd Additional Sessions Judge, though they were examined by the
police during the course of investigation, the investigating officer
– PW-22 having not even made any enquiry from the employees who
were attached to the various courts and offices from where the place
of occurrence was visible much less examining them as prosecution
witnesses, not examining any of the advocates and pleaders’ clerks
who were present in the court and there being other discrepancies in
the evidence of the police witnesses, who claimed to be eyewitnesses,
we are of the view that it would not be safe to place reliance upon the
evidence of PWs 9, 11, 12, 14 and 17.
18. Thus, we hold that prosecution has failed to prove its case beyond
reasonable doubt and view taken by the trial court in recording the
judgment of acquittal was reasonable one, as such the High Court was
not justified in reversing the same which cannot be said to be perverse
in any manner.
Criminal Appeal No. 718 of 2007
19. All the eight appellants viz., Munne Painter, Mazhar, Badshah, Sadiq,
Sajid, Haseen, Guddu and Saleem Kela of this appeal were tried in
Sessions Trial No. 383 / 1996 and were acquitted by trial court of all
the charges. Against the order of acquittal the State of Madhya
Pradesh filed an appeal before the High Court which reversed the
same and convicted the appellants under Section 302 / 149, IPC and
13
sentenced them to undergo imprisonment for life and pay fine of Rs.
50,000/- each, in default to undergo further rigorous imprisonment
for a period of three years. They were further convicted under Section
147, IPC and sentenced to undergo rigorous imprisonment for a
period of two years and to pay fine of Rs. 10,000/- each, in default to
undergo further rigorous imprisonment for a period of six months.
They were also convicted under Section 148, IPC and sentenced to
undergo rigorous imprisonment for a period of three years and to pay
fine of Rs. 10,000/- each, in default to undergo further rigorous
imprisonment for a period of six months. All the sentences, however,
have been ordered to run concurrently.
20. Prosecution case in short was that Rajiulla, who was a practising
advocate in Bhopal Court, arrived as usual, court premises at 11 A.M.
on 10.07.1996 which was the date fixed in Sessions Trial No. 379 /
1995 in the Court of the 3rd Additional Sessions Judge, Bhopal for
evidence. In the said case Mukhtiyar, nephew of Rajiulla and his
associates, viz., Asif and Sheru were made accused under Section 307,
IPC. Asif, Sheru and his friend, red shirt boy came to court premises
and they were in the gallery in front of the court of 3rd Additional
Sessions Judge at about 12 noon. Rajiulla, along with his Senior
Advocate Shri Jagdish Gupta and typist Asif Bundella, came to the
court of the 3rd Additional Sessions Judge with an application for
dispensing with the personal appearance of Mukhtiyar who didn’t
come to court because he was apprehending danger to his life and
filed the same. Seeing Rajiulla, out of the eleven accused persons, viz.,
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appellants Munne Painter, Majhar, Saleem Kela, Badshah, Sadiq,
Sajid, Guddu, Haseen and accused Saleem Baba [since deceased],
Saleem Bucha [since deceased] and Assu Bambaiya [absconding], who
were there in the gallery outside the courtroom of the 3rd Additional
Sessions Judge, appellants Munne Painter and Majhar said that as
Mukhtiyar was not coming to court on that day his uncle Rajiulla and
his associates Asif, Sheru and friend red shirt boy should be done to
death. Upon this, appellant Saleem Kela started firing from his
revolver whereas other accused persons who were armed with knives
pounced upon the red shirt boy and caused knife injuries to him.
Appellant Saleem Kela fired at Rajiulla, but he could save himself by
lying down on the floor. After the assault, appellant Munne Painter
and Majhar exhorted that the red shirt boy should not remain alive,
upon which, appellants Saleem Kela, Badshah, Sajid, Guddu and
accused Assu Bambaiya lifted the red shirt boy and threw him from
the first floor of the court building to its ground floor, as a result of
which, he died instantaneously. It is further case of prosecution that
Rajiulla fled away from the gallery to save his life and all the
aforesaid eleven accused persons took to their heels. Stating the
aforesaid facts, Rajiulla submitted a written report at the police
station on the basis of which FIR No. 411 of 1996 was drawn up at
1.35 pm on the same day for prosecution of the aforesaid eleven
accused persons, which includes eight appellants of the present
appeal.
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21. The police after registering this case as well as the other three cases
referred to above proceeded to investigate the same and submitted
chargsheets in all the four cases. As in the present case, accused
Saleem Bucha and Saleem Baba, who were the two deceased persons
in FIR No. 410 of 1996, had died on the date of occurrence itself,
chargesheet was submitted against nine persons, viz., all the eight
appellants of this appeal and accused Assu Bambaiya showing him as
absconder. Upon receipt of the chargesheets, the learned Magistrate
took cognizance and committed the accused persons in all the four
cases to the Courts of Sessions to face trial. In the present case only
eight appellants were tried as the trial of accused Assu Bambaiya was
separated as he was absconding.
22. Defence of the accused persons, in short, was that they were innocent,
had no complicity with the crime, were falsely implicated and the
victim might have received injuries in some other manner of
occurrence. Some of the accused persons had taken a plea of alibi.
23. In support of its case, prosecution examined twenty seven witnesses
and adduced documentary evidence. The defence also examined four
witnesses and adduced documentary evidence.
24. In all the four cases the accused persons were acquitted by the trial
court. Against the order of acquittal passed in sessions cases arising
out of FIR No. 410 / 1996 and 411 / 1996 appeals were filed before the
High Court which allowed the same and recorded conviction of the
accused persons in both the cases as stated above. Three appeals by
special leave were filed against the order of conviction recorded by
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the High Court in relation to Sessions Case No. 379 / 1996 which had
arisen out of FIR No. 410 / 1996, out of which, one appeal abated as
stated above, and cases of accused persons in other two appeals have
been already considered in the earlier part of this judgment. The
present appeal by Special Leave has been filed against the order of
conviction recorded by the High Court in relation to the Sessions
Trial No. 383 / 1996 arising out of FIR No. 411 / 1996.
25. Presiding Officer of the trial court after recording of evidence
thought it fit to inspect the place of occurrence which is court
premises in presence of Special Public Prosecutor and learned counsel
appearing on behalf of accused persons of both the cases, i.e., case and
counter case and prepared a map of the site, i.e., the gallery outside
the court of the 3rd Additional Sessions Judge where occurrence in
both the cases is said to have taken place, which place was visible to
the persons sitting in the court of 1st Additional Sessions Judge, 3rd
Additional Sessions Judge, 4th Additional District Judge, CDC and
CCD counters of District Court, Nazarat Office and Office of COC.
The staff sitting in any of the aforesaid courts or in any of the said
offices who could have been best witnesses in support of the
prosecution case have been withheld by the prosecution for the
reasons best known to it. That apart, neither any advocate nor any
advocate’s clerk, who could have been independent witnesses in
support of the prosecution case have been examined. In the present
case, Rajiulla, who was the informant and examined as PW-1, and,
according to the FIR, was an eyewitness to the alleged occurrence, did
17
not support the prosecution case and accordingly was declared
hostile. Prosecution witnesses Sheru [PW-3], Asif [PW-4] and
Mukhtiyar [PW-9], who were also eyewitnesses to the occurrence, did
not support the prosecution case and as such they were also declared
hostile. These four eyewitnesses, who were independent persons in
support of the prosecution case, have not supported the same.
26. Prosecution placed reliance upon the evidence of Amar Bahadur
Singh [PW-2], Sambhaji Rao Patil [PW-5], Lavkush Sharma [PW-7],
Surendra Nath Tiwari [PW-8], Ramesh Dubey [PW-15] and Balram
Pathari [PW-19], all of whom, undisputedly, were police witnesses
and they claimed to be eyewitnesses to the alleged occurrence.
27. Specific case of the prosecution in the FIR was that the red shirt boy
was thrown by some of the accused persons from the first floor of the
court building to its ground floor. The prosecution has given
suggestions to the prosecution witnesses, viz., PWs 3 and 9 to the
effect that the red shirt boy was thrown from the first floor of the
court building to its ground floor which they have denied, although
they made such statements before the police. Dr. Ashok Sharma [PW-
17], who conducted the post-mortem examination on the dead body of
red shirt boy on the date of occurrence itself, i.e., 10.07.1996 at 4.45
pm, in his post-mortem report [Ext. P-20] opined that the deceased
received injuries by sharp-edged weapons. In his evidence, the doctor
[PW-17] stated that he did not find any injury on the deceased that
could be said to have been caused as a result of fall, which gives death
18
blow to the prosecution case that red shirt boy was thrown from first
floor of the court building to its ground floor.
28. It appears that in view of the fact that according to the post-mortem
report [Ext. P-20] the deceased did not receive any injury on account
of being thrown from first floor to the ground floor, PWs 2, 5, 7, 8, 15
and 19, who were all police witnesses and examined by the
investigating officer – R.K. Bajpayee [PW-25], did not make any
statement to the effect that the deceased was thrown by some of the
accused persons from the first floor of the court building to its ground
floor. They have also not made statement before the police as to how
his dead body was found on the ground floor when the deceased was
assaulted on the first floor. For the first time, after about a year, PWs
8, 15 and 19 in their statements made before the Sessions Court
disclosed that the deceased was dragged by some of the accused
persons from first floor which is neither supported by medical
evidence nor objective finding of the investigating officer. The doctor
[PW-17] has not stated either in the post-mortem report or in his
evidence that the deceased received any injury by dragging.
Investigating Officer [PW-25] has nowhere stated that he found any
trail of blood from the first floor to the place on the ground floor from
where the dead body was recovered. This witness stated that he did
not find any blood marks on the clothes of any of the accused persons
from whose possession knives are said to have been recovered
immediately after the occurrence. The prosecution has completely
failed to explain as to how the dead body of the red shirt boy who is
19
said to have been assaulted on the first floor of the court building was
brought to the ground floor.
29. The identity of the deceased red shirt boy, for whose murder the
appellants were tried, could not be established by the prosecution,
that is, whether red shirt boy was Munneybul Hasan or Umar Izhar
or any other unknown person. Rehman [PW-13] who was an inquest
witness stated that he knew Munneybul Hasan, who was resident of
Kallashah Campus which is in Jahangirabad, one of the quarters of
the towns of Bhopal, for about 10 to 15 years. He further stated that
on 10.07.1996 between 8 to 9 A.M. he came to know that the aforesaid
Munneybul Hasan had been murdered and on receiving the said
information he found him lying dead in the said campus. This witness
also stated that he took the dead body of Munneybul Hasan to the
Hamidia Hospital where police prepared the inquest report and after
the post-mortem examination the dead body was made over to him
between 5 to 6 P.M. and at about 7 P.M. on the date of occurrence
itself it was engraved in the graveyard which is in the said locality. In
the inquest report as well as in the post-mortem report name of the
deceased has been shown as Munneybul Hasan.
30. Regarding the identity of the dead body, another version was that of
constables Dunjan Singh [PW-21] and D.N. Nagvanshi [PW-23], who,
on the directions of the investigating officer [PW-25], took the dead
body of the red shirt boy to Hamidia Hospital where the doctor [PW-
17] declared him dead and there inquest report was prepared which
was marked as Ext. P-16. PW-23 stated in his evidence that the doctor
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[PW-17] found out license from the pocket of the red shirt boy which
was in the name of Munneybul Hasan and made over the same to this
witness, but this fact has been denied by the said doctor in his
evidence wherein he has categorically stated that he did not find any
driving license, much less making over the same to PW-23. PWs 21
and 23, even according to their statements, were not examined by the
police and the story that the license was found out by the doctor [PW-
17] from the pocket of the deceased and made over to PW-23 was
introduced for the first time in Sessions Court.
31. Walima Begum [PW-20], who is resident of Fatehpur district in the
State of Uttar Pradesh, stated that she had two sons and the name of
her elder son was Qamar Rab and that of the younger one Umar
Izhar. The deposition of this witness was recorded on 18.05.1998 and
she stated that about two yeas ago her son Umar Izhar started for
Bombay in the month of July with a cash sum of Rs. 22,000 /- and
she learnt at Allahabad that he was murdered. She further stated that
somebody came to her house and told her that Umar Izhar had been
murdered at Bhopal Railway Station after snatching the cash that he
was carrying, whereupon she went to Bhopal along with her son-in-
law and there she learnt that her son was admitted in hospital. She
then went to Bhopal hospital, found the dead body of her son Umar
Izhar and identified the same which was made over to her. She stated
in the cross-examination that her son never came to Bhopal. She then
stated that there is no nick name of her son Umar Izhar. It is not clear
from the evidence on record as to whether the dead body, which was
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made over to PW-20, was that of red shirt boy. From the aforesaid
facts it appears to us that the prosecution has failed to prove beyond
reasonable doubt identity of the dead body of red shirt boy, i.e., as to
whether it was that of Munneybul Hasan or Umar Izhar or any other
unknown person.
32. Investigating Officer, PW-25 stated that he seized bloodstained knives
in the court premises itself from the possession of appellants Haseen,
Badshah, Sadiq and Sajid on the date and place of occurrence itself
between 12.25 to 12.40 P.M. and took them to the police station but
the arrest memo [Ext. P-34] shows that they were arrested on the date
of occurrence at 8.15 P.M. In case the bloodstained knives were seized
from the possession of these persons, there was no reason of their not
being arrested by the police at that point of time which makes the
time of recovery of the bloodstained knives and the arrest of these
accused persons, as mentioned in the seizure and arrest memos,
doubtful. PW-25 further stated that from the possession of appellant –
Guddu a knife was recovered on 19.07.1996 and he was arrested also
on the same day. Knives seized from the possession of these five
accused persons were sent to the FSL for examination and the same
were marked as articles `A’, `B’, `C’, `D’ and `E’. According to FSL
report [Ext. P-40], no blood was found on articles `A’, `B’, `C’ and `E’
but blood was found on the knife marked as article `D’. The
Serologist has nowhere reported that it was human blood.
33. Mohan [PW-14], who was posted in the court of the 3rd Additional
District Judge stated that on the date of occurrence at 12 noon he was
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inside the courtroom and appellant Munne Painter was sitting on a
bench in that very courtroom from before and soon after the firing he
entered the chamber of the Presiding Officer. The prosecution made a
prayer to declare this witness hostile, but trial court rejected the
same. This statement of the witness makes the complicity of appellant
Munne Painter with the crime highly doubtful. Apart from this,
according to the prosecution case and
evidence, appellants Munne Painter and Mazhar were not armed with any
weapon much less any knife or firearm. Neither any overt act has been
attributed to anyone of them nor any incriminating article recovered from
their possession.
34. In view of the foregoing discussion, we are of the view that it would
not be safe to place reliance upon the evidence of PWs 2, 5, 7, 8, 15
and 19 and, accordingly, we hold that the prosecution has failed to
prove its case beyond reasonable doubt and the High Court was not
justified in reversing the judgment of acquittal as the view taken by
the trial court was reasonable one and the same could not be said to
be perverse in any manner.
35. We are unhappy to note that such a ghastly crime of brutal murder of
three persons in broad day light in the temple of justice, which is
campus of District Court in Bhopal, Capital City of the State of
Madhya Pradesh, is going unpunished because of laches on the part
of the prosecuting agency in conducting the investigation and trial,
apart from uncooperative attitude of the private prosecutors, who
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appear to have connived with the culprits, leaving us with no other
option but to painfully convert convictions of the appellants, some
of whom were even condemned prisoners, into acquittal.
36. In the result, all the three appeals are allowed, the impugned common
Judgment of conviction rendered by the High Court is set aside and
the judgments of acquittal passed by the trial court are restored. The
appellants, who are in custody, are directed to be released forthwith if
not required in connection with any other case.
………………….J.
[B.N. AGRAWAL]
………………….J.
[G.S. SINGHVI]
NEW DELHI
14TH NOVEMBER, 2008.
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