NAWAB S/O AKHTAR Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2012-10-72
HIGH COURT OF UTTARAKHAND
Decided on October 10,2012

Nawab S/O Akhtar Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

- (1.) In the instant case, the victim, Shabana, wife of the appellant died of a bullet injury, which entered from the front side of her body and exited from the back. On the basis of a written complaint filed by the appellant, chik F.I.R. was registered on 25 th March, 2002 at 2.35 AM. In the written complaint, it was stated that at about 1.30 AM of 25 th March, 2002, appellant and the victim were sleeping in a room inside the house of the appellant, when three unknown miscreants came, brought the appellant outside and tried to take him alongwith them. At that juncture, it was reported that the victim intervened when one of those three miscreants fired upon the victim. It was also reported that the victim died. This First Information Report was investigated. In course thereof, a country made pistol and a broken bullet were recovered from the courtyard of the house of the appellant on the disclosure made by the appellant. After completion of investigation, a charge-sheet was filed for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code against the appellant and one Israr. By the judgment and order under appeal, Israr has been exonerated. A separate charge-sheet was also filed against the appellant for offence punishable under Section 25 of the Arms Act. By the judgment and the order under appeal, appellant has been convicted for an offence punishable under Section 302 of I.P.C., and also, for an offence punishable under Section 25 of the Arms Act. Being aggrieved thereby, the present appeal has been preferred. No appeal has been preferred by the Government against that part of the judgment, whereby and under, Israr has been exonerated.
(2.) Aslam (PW4), being the brother of the victim, and Naima (PW6), being the mother of the victim, alleged that the appellant committed the crime in order to encash the life insurance policy taken out by the appellant on the life of the victim soon before the incident had taken place. They also stated that the appellant was demanding money, but the said witnesses could not provide the same. Ramjaani (PW3) and Farookh (PW5) alleged that on 24 th March, 2002, when they were coming to the village to witness Moharram procession to be held on 25 th March, 2002, they saw the appellant alongwith others, when the appellant was allegedly discussing with those others how to do away with the victim. PW3 stayed in the house of the Pradhan of the Gram Panchayat in the night of 24 th March, 2002. Although, it was not recorded in his statements recorded under Section 161 of the Code of Criminal Procedure, but in course of tendering evidence before the Court, PW3 held out that he disclosed about such discussions to the Gram Pradhan of the Gram Panchayat.
(3.) Tahir Hasan (PW2) is the alleged witness to the recovery of the country made pistol and the broken bullet, who was declared hostile. Nisar Ahmad (PW1) is the witness to the inquest. Fakhruddin Ali (PW7) is also a witness to the inquest report. Dr. R.C. Pandey (PW12) conducted post-mortem. He proved the post- mortem report and also the fact that the death is by way of antemortem injury sustained by the victim by a bullet. In course of investigation, police recovered a broken wrist watch of the appellant from the courtyard of the house of the appellant. PW7 is a witness to the said recovery. D.S. Panwar (PW9) and Yogendra Pal Singh (PW15) were the Investigating Officers. They accepted the fact that the recovered country made pistol was not sent for obtaining ballistic expert s opinion. Similarly, the bullet was also not sent for that purpose. Nanhe Ram (PW13), on the instructions of PW9, prepared the site plan, wherefrom, it appears that after one enters the house of the appellant, there is a courtyard. After crossing the courtyard, one gets access to two rooms. It was shown in the site plan that in one of those two rooms, appellant and the victim were sleeping. The site plan shows the marking emanating from the room, in which, appellant and the victim were sleeping, to the place where the dead body of the victim was found on the courtyard. Then the marking shows the path taken by the assailants to escape. It shows that instead of going through the main gate, assailants crossed over a wall towards the house of Shareef son of Lateef. The site plan also shows the spot, from where the broken wrist watch of the appellant was discovered.;


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