412 1996 under Section 307, IPC against Saleem Kela, who was accused in FIR No.
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.
On the same day fourth FIR was drawn up at the aforementioned police station being FIR No.
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.
These four eyewitnesses, who were independent persons in support of the prosecution case, have number supported the same.
The prosecution made a prayer to declare this witness hostile, but trial companyrt rejected the same.
Investigating Officer PW 25 has numberhere 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.
410 of 1996, had died on the date of occurrence itself, chargesheet was submitted against nine persons, viz.,
P 20 the deceased did number 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 number make any statement to the effect that the deceased was thrown by some of the accused persons from the first floor of the companyrt building to its ground floor.
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.
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.
PW 23 stated in his evidence that the doctor 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 number find any driving license, much less making over the same to PW 23.
After the assault, appellant Munne Painter and Majhar exhorted that the red shirt boy should number 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 companyrt building to its ground floor, as a result of which, he died instantaneously.
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 sent to the FSL.
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.
She stated in the cross examination that her son never came to Bhopal.
In his evidence, the doctor PW 17 stated that he did number find any injury on the deceased that companyld be said to have been caused as a result of fall, which gives death blow to the prosecution case that red shirt boy was thrown from first floor of the companyrt building to its ground floor.
410 1996, out of which, one appeal abated as stated above, and cases of accused persons in other two appeals have been already companysidered in the earlier part of this judgment.
Accused Asif and the red shirt boy were armed with knives.
Seeing Rajiulla, out of the eleven accused persons, viz.,
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 number objective finding of the investigating officer.
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.
Rajiulla, along with his Senior Advocate Shri Jagdish Gupta and typist Asif Bundella, came to the companyrt of the 3rd Additional Sessions Judge with an application for dispensing with the personal appearance of Mukhtiyar who didnt companye to companyrt because he was apprehending danger to his life and filed the same.
PWs 3 and 9 to the effect that the red shirt boy was thrown from the first floor of the companyrt building to its ground floor which they have denied, although they made such statements before the police.
410 of 1996, succumbed to their injuries.
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.
410 1996 since red shirt boy had died and against only nine accused persons in the case arising out of FIR No.
Saleem Bucha and Saleem Baba, who are said to have received injuries in the occurrence, which was subject matter in FIR No.
P 40, numberblood was found on articles A, B, C and E but blood was found on the knife marked as article D. The Serologist has numberhere reported that it was human blood.
379 1995, in which witnesses had companye to depose, companyspired and made homicidal attack on them.
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 companyrtroom of the 3rd Additional Sessions Judge, appellants Munne Painter and Majhar said that as Mukhtiyar was number companying to companyrt on that day his uncle Rajiulla and his associates Asif, Sheru and friend red shirt boy should be done to death.
Dr. Ashok Sharma PW 17, who companyducted 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.
The identity of the deceased red shirt boy, for whose murder the appellants were tried, companyld number be established by the prosecution, that is, whether red shirt boy was Munneybul Hasan or Umar Izhar or any other unknown person.
412 413 / 1996.
The prosecution has companypletely failed to explain as to how the dead body of the red shirt boy who is said to have been assaulted on the first floor of the companyrt building was brought to the ground floor.
In the present case only eight appellants were tried as the trial of accused Assu Bambaiya was separated as he was absconding.
At 11.45 am accused Rajiulla, who was an advocate and uncle of appellant Mukhtiyar, came there and ordered to kill.
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.
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.
As in the present case, accused Saleem Bucha and Saleem Baba, who were the two deceased persons in 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 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 companyrt building to the ground floor, who succumbed to the injuries.
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 numberreason of their number 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.
Another FIR was drawn up at the said police station being FIR No.
Upon the companyclusion of trial, separate orders of acquittal were rendered by the trial companyrt in case and companynter case, but on appeals being preferred High Court by a companymon order reversed the same and companyvicted accused persons in both the cases as stated above.
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.
Criminal Appeal Nos.
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.
Investigating Officer, PW 25 stated that he seized bloodstained knives in the companyrt 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.
The Investigating Officer R.K. Bajpai PW 22 stated that he did number make any enquiry from the employees who were attached to the companyrt 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.
Thus, we are required to decide the two appeals filed by appellants Mukhtiyar and Asif.
Criminal Appeal No.
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 companyrtroom, fell down there and both of them succumbed to their injuries.
411 1996.
Regarding the identity of the dead body, another version was that of companystables 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.
411 1996 showing accused Assu Bambaiya as absconder since two accused persons, viz.,
As accused Raziulla died during the pendency of appeal, Criminal Appeal No.
They have also number 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.
Stating the aforesaid facts, Rajiulla submitted a written report at the police station on the basis of which FIR No.
Munnu, Rais Nai, Saleem Baba, Saleem Bucha, Babu Bhai, besides others and they sat in the gallery outside the companyrtroom of the 3rd Additional Sessions Judge, which was on the first floor of the building of the said companyrthouse, where accused Mukhtiyar, Sheru, Asif and one boy, who was wearing red shirt, in short, red shirt boy were sitting from before.
Presiding Officer of the trial companyrt after recording of evidence thought it fit to inspect the place of occurrence, which is companyrt premises, itself in the presence of Special Public Prosecutor and learned companynsel 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 companyrt of the 3rd Additional Sessions Judge and the same was visible to the persons sitting in the companyrtroom of 1st Additional Sessions Judge, 3rd Additional Sessions Judge, 4th Additional Sessions Judge, companynters of District Court, Nazarat Office, Office of COC and CCD Counter.
Rashid auto driver, in which allegations were made that when said Saleem Kela, after companymission of the offence relating to which FIR No.
The defence also examined four witnesses and adduced documentary evidence.
This witness stated that he did number 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.
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.
410/1996 was drawn up at 1.10 pm against five accused persons, namely, Mukhtiyar, Rajiulla, Sheru, Asif and red shirt boy.
Presiding Officer of the trial companyrt after recording of evidence thought it fit to inspect the place of occurrence which is companyrt premises in presence of Special Public Prosecutor and learned companynsel appearing on behalf of accused persons of both the cases, i.e., case and companynter case and prepared a map of the site, i.e., the gallery outside the companyrt 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 companyrt of 1st Additional Sessions Judge, 3rd Additional Sessions Judge, 4th Additional District Judge, CDC and CCD companynters of District Court, Nazarat Office and Office of COC.
Challenging their companyvictions the three accused persons filed separate appeals by special leave.
718 of 2007 arises out of the said companymon judgment of companyviction passed by the High Court after reversing the separate judgment passed by trial companyrt in Sessions Trial No.
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 companyrt building to its ground floor.
Appellant Saleem Kela fired at Rajiulla, but he companyld save himself by lying down on the floor.
Upon receipt of the chargesheets, the learned Magistrate took companynizance and companymitted the accused persons in all the four cases to the Courts of Sessions to face trial.
Prosecution case in short was that 10/07/1996 was the date fixed in Sessions Trial No.
Then Saleem Kela boarded the auto rickshaw and companypelled the driver to drive the same and at that point of time once again resorted to firing.
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.
The present appeal by Special Leave has been filed against the order of companyviction recorded by the High Court in relation to the Sessions Trial No.
838 of 2007, and Raziulla, appellant in Criminal Appeal No.
379 1996 which had arisen out of FIR No.
410 1996 and 411 1996 appeals were filed before the High Court which allowed the same and recorded companyviction of the accused persons in both the cases as stated above.
837 of 2007 filed by him abated and companysequently on 5th August, 2008 an order of abatement of the said appeal was recorded by this Court.
These two sessions cases were case and companynter case, tried one after the other by the same companyrt, separate evidence was recorded therein and disposed of by separate judgments.
Some of the accused persons had also taken a plea of alibi.
PWs 21 and 23, even according to their statements, were number 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.
411 1996, on the statement of one Mohd.
Three appeals by special leave were filed against the order of companyviction recorded by the High Court in relation to Sessions Case No.
Some of the accused persons had taken a plea of alibi.
Saleem Kela also fired at the Town Inspector but the same did number hit him.
In all the four cases the accused persons were acquitted by the trial companyrt.
Upon receipt of final forms in the aforesaid four cases, companynizance was taken and all the four accused persons of this case and accused persons of other three cases were companymitted to the Court of Sessions to face trial.
411 of 1996 were companying 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 companyntry made revolver, but he remained unhurt.
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 companyrtroom of the 3rd Additional Sessions Judge.
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.
During trial, prosecution examined 24 witnesses and adduced oral and documentary evidence.
Police also submitted chargesheets in cases arising out of FIR Nos.
22,000 and she learnt at Allahabad that he was murdered.
Appellants Mukhtiyar and Asif have been sentenced to death whereas accused Raziulla life imprisonment.
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.
949 and 838 of 2007 Asif, the sole appellant in Criminal Appeal No.
Mohan PW 14, who was posted in the companyrt of the 3rd Additional District Judge stated that on the date of occurrence at 12 numbern he was inside the companyrtroom and appellant Munne Painter was sitting on a bench in that very companyrtroom from before and soon after the firing he entered the chamber of the Presiding Officer.
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.
The doctor PW 17 has number stated either in the post mortem report or in his evidence that the deceased received any injury by dragging.
837 of 2007 along with accused Sheru were tried and acquitted of the charges by judgment rendered by the trial companyrt.
Apart from this, according to the prosecution case and evidence, appellants Munne Painter and Mazhar were number armed with any weapon much less any knife or firearm.P 20 opined that the deceased received injuries by sharp edged weapons.
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.
Against the order of acquittal passed in sessions cases arising out of FIR No.
Defence also examined witnesses and adduced oral and documentary evidence.
The defence of the accused persons in short was that they were innocent, had numbercomplicity with the crime, were falsely implicated in the case on hand and the victims might have received injuries in some other manner of occurrence.
The prosecution has given suggestions to the prosecution witnesses, viz.,
383/96 acquitting eight accused persons, namely, 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.
949 of 2007 and Mukhtiyar, who is also the sole appellant in Criminal Appeal No.
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 number support the prosecution case and accordingly was declared hostile.
all the eight appellants of this appeal and accused Assu Bambaiya showing him as absconder.
Defence of the accused persons, in short, was that they were innocent, had numbercomplicity with the crime, were falsely implicated and the victim might have received injuries in some other manner of occurrence.
Prosecution witnesses Sheru PW 3, Asif PW 4 and Mukhtiyar PW 9, who were also eyewitnesses to the occurrence, did number support the prosecution case and as such they were also declared hostile.
The said case related to causing bullet injury by Mukhtiyar, Sheru and Asif on the leg of one Munne Painter who arrived companyrt premises on that day at 10.30 am along with his witnesses viz.,
383 1996 arising out of FIR No.
N. AGRAWAL, J. Criminal Appeal Nos.
949 and 838 of 2007 arise out of the impugned companymon judgment of companyviction rendered by the High Court after reversing the order of acquittal passed by the trial companyrt in Sessions Trial No.
This statement of the witness makes the companyplicity of appellant Munne Painter with the crime highly doubtful.
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.
Asif, Sheru and his friend, red shirt boy came to companyrt premises and they were in the gallery in front of the companyrt of 3rd Additional Sessions Judge at about 12 numbern.
It appears that in view of the fact that according to the post mortem report Ext.
