STATE OF UTTARAKHAND Vs. RIZWAN
LAWS(UTN)-2013-10-29
HIGH COURT OF UTTARAKHAND
Decided on October 23,2013

STATE OF UTTARAKHAND Appellant
VERSUS
Rizwan and Anr. Respondents

JUDGEMENT

Barin Ghosh, C.J. - (1.) IN the instant case, respondents were charged for offence punishable under Section 302 read with Section 34 of I.P.C. and Rizwan was additionally charged for having committed an offence punishable under Section 25/4 of the Arms Act. By the judgment under appeal, respondents have been exonerated of all the charges as were levelled against them. In the instant case, there were three alleged eyewitnesses, namely, Dilshad (PW2), Akbar (PW3) and Sahnawaj (PW4). The court below has refused to accept them to be eyewitnesses. Recovery of one knife was made on the disclosure of Rizwan. While the court below disbelieved the eyewitness account given by PW2, PW3 and PW4, the court below also disbelieved recovery of the knife at the instance of Rizwan. The principal reason therefor is that, according to the F.I.R. as well as the inquest report, the death had taken place around 05.15 P.M. Irfan (P.W. 1), who filed the First Information Report, supported the contents thereof. However, the witnesses to the inquest report, namely, Ayar Khan (PW6) and Khalil (PW7) disowned their association with the inquest report and, accordingly, were declared hostile. The prosecution, while led evidence through PW2, PW3 and PW4, it also led evidence through Dr. J.P. Chamoli (PW9). So far as P.W. 1 is concerned, he stated that whatever has been stated by him in the First Information Report has been gathered by him from PW2, PW3 and PW4. PW 2, PW3 and PW4, as aforesaid, were the alleged eyewitnesses of the murder of the victim, i.e. the second wife of P.W. 1 at around 05.15 P.M. PW9 proved the post -mortem report while tendering evidence. He stated that the death has taken place about six hours from the time the deceased had her last meal. The deceased was a Muslim. The incident took place during the Ramzan month. P.W. 1 stated in his evidence that the victim had taken her last meal before 05.00 A.M. of the date of incident. The court below, accordingly, found that according to the evidence tendered by the prosecution through PW9, the death had taken place some time around 11.00 A.M., whereas the alleged eyewitnesses PW2, PW3 and PW4 have witnessed the incident at 05.15 P.M. The court below, accordingly, held that it is not possible to accept the evidence of PW2, PW3 and PW4. In addition thereto, the court below took into account various grave contradictions in between the evidence of PW2, PW3 and PW4. We need not discuss them in detail, inasmuch as, if the prosecution leads evidence through PW2, PW3 and PW4 that the incident had taken place at 05.15 P.M. and, at the same time, leads evidence through PW9 that the incident had taken place at 11.00 A.M., we think that the law requires us to give benefit of doubt to the respondents. Therefore, there is no scope of interference with the judgment under appeal in so far as the same dealt with Section 302 read with Section 34 of I.P.C. is concerned. 3 The knife, which was recovered, was not sent to FSL. No attempt was made to ascertain that the recovered knife belonged to Rizwan. PW2, PW3 and PW4 did not depose that the recovered knife was seen by them to have been used by Rizwan. In the circumstances, we also do not find any reason to interfere with the judgment under appeal in so far as the same dealt with the offence punishable under Section 25/4 of the Arms Act.
(2.) WE , accordingly, dismiss the appeals. Let lower court records be sent back to the court below alongwith a copy of this judgment.;


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