Decided on October 10,2012

STATE OF UTTARANCHAL,Zakir and Ors. Appellant


Umesh Chandra Dhyani, J. - (1.) ONE Mansab Ali addressed a complaint to the Inspector In -charge of Police Station, Laksar, District Haridwar regarding the murder of his younger brother Dr. Ayyub. As per the complaint, in the intervening night of 8/9.07.2001, Dr. Ayyub was sleeping in front of his house. At 01:00 a.m., informant heard the cries of his brother. On hearing the cries, informant along with his younger brothers Qayyum, Haji Kallu and Mohsim reached there. They saw in the electric light that Zakir, Sehran, Irsan. Sabir and Wahid were inflicting blows with armaments on his brother, Zakir was having balkati (sharp edged weapon used for cutting trees), Sehran was carrying portal -dati (sickle), Irsan was armed with country made pistol, Sabir was having a saria (iron rod) and Wahid was carrying a sword in his hand. All the accused persons were inflicting blows on Dr. Ayyub with the armaments, which they were carrying in their hands. When informant and others raised alarm, accused persons gave blows on them also, as a result of which, Qayyum and Haji Kallu sustained injuries. Many a people came there. Accused fled away from the scene of occurrence. Dr. Ayyub died on the spot. Qayyum was taken to hospital for treatment. Accused persons killed Dr. Ayyub because of enmity. On the basis of said complaint, a chik FIR was registered on 09.07.2001 at 03:10 a.m. The distance between the police station and the place of incident was only 04 kms, and hence, it appears that the FIR was lodged at the earliest opportunity.
(2.) INVESTIGATION started on the basis of said FIR. After the investigation, a charge sheet against the accused persons Zakir, Sabir, Sehran, Irsan and Wahid was submitted in relation to the offences punishable under Sections 147, 148, 149, 323, 307 and 302 IPC. When the trial began, charges were framed by learned trial court against the accused persons in respect of the offences punishable under Sections 147, 148, 323/149, 307/149, 302/149 IPC, to which they pleaded not guilty and claimed trial. Separate charge was framed against Zakir in respect of the offence punishable under Section 25 Arms Act also and another charge was framed against Wahid in respect of offence punishable under Section 4/25 Arms Act also, to which both of them pleaded not guilty and claimed to be tried. Prosecution examined as many as nine witnesses, viz., PW1 Mansab. PW2 Qayyum, PW3 Mohsim. PW4 Doctor Narendra Singh Mann, PW5 Yogesh Kumar, PW6 Doctor K.K. Karoli, PW7 SI D.S. Panwar, PW8 Arshad and PW9 SI Ranveer Singh. The substance of the incriminating evidence was put to the accused persons under Section 313 Cr.P.C., to which they said that they were falsely implicated in the case. DW1 Mansab S/o. Zakir (different from PW1 Mansab S/o. Ahmad Ali) was examined in defence. After considering the evidence, learned trial court convicted Zakir and Sehran in relation to the offences punishable under Sections 148, 307/149 and 302/149 IPC. Accused Sabir was convicted of the offence punishable under Sections 147, 323/149, 307/149, 302/149 IPC. All the three were sentenced appropriately. Accused persons Irsan and Wahid were exonerated of all the charges levelled against them. Zakir was exonerated of the charge punishable under Section 25 Arms Act. Zakir, Sehran and Sabir, being aggrieved by the conviction and sentence awarded to them, preferred present Criminal Appeal. Aggrieved against the acquittal of Irsan and Wahid, two separate Government Appeals were preferred by the State. One was against their acquittal in connection with the offences punishable under the Indian Penal Code and the other was against the acquittal of Wahid under Section 4/25 of the Arms Act. Since the factual matrix of all the appeals is the same, therefore, all the appeals are being disposed of by this common judgment and order. Ms. Prabha Naithani, Advocate was appointed Amicus Curiae to argue the case on behalf of the accused -respondents also. Pw1 Mansab Ali, in his examination -in -chief, supported prosecution story and proved the contents of his complaint (Ext. Ka -1), a description of which has already been given in the inaugural paragraph of this judgment. It will be a mere repetition of facts, if deposition made by him in the course of his examination -in -chief, is reproduced here. Hence the same is being avoided for the sake of brevity. Pw1 said in the cross -examination, that Ayyub and his (Pw1's) houses were situated within the same boundary and were facing each other. Pw 1 and his brother Pw 2 Qayyum were sleeping in the sehan (courtyard) of the said boundary. The houses of Pw1 and Pw 2 were separate. He heard the cries at 01:00 a.m. Thereafter he reached on the scene of crime. Pw1 and Pw 2 reached together. Pw 3 Mohsim and Haji Kallu (not examined) also reached there from other sides.
(3.) ALTHOUGH PW2 Qayyum also supported prosecution story, but there were glaring contradictions in his evidence and in the evidence of PW1. Whereas PW1 said that he along with his brother PW 2 were sleeping in the courtyard within the same boundary, PW2 said that he was sleeping in his own house. PW2 saw the incident in the light of electric bulb, which was not shown in the site plan. PW2 said that when he tried to save Dr. Ayyub, accused persons committed assault on him, as a consequence of which, he (PW2) also sustained injuries. He was taken to hospital by PW1 in a tractor trolley. Victim Dr. Ayyub was not taken to the hospital. It is astonishing that whereas one brother (PW 2) was taken to hospital, the other brother (victim), whose condition was critical, was not provided medical aid. Even if it was apprehended that the victim has died, he should have been given the medical aid promptly in the hope of some miracle to happen. PW 2 also did not care to take victim to the hospital. Whereas the condition of victim was critical. PW2's condition was not so serious. No prudent person will accept such conduct of PW1 and PW 2 and as such, will not believe the testimony of PW1 and PW2. Two brothers were so concerned about each other that PW1 ran to save PW2's life but the victim, another brother, was left in the lurch by both of them (PW 1 as well as PW 2).;

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