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, 1

 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 2

 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 3

 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 4

 [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 5

 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.  6

 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 7

 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 8

 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 11

 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., 14

 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 16

 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

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 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 20

 [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 21

 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 22

 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

23

 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 14  TH   NOVEMBER, 2008  .

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