WAKKAR Vs. STATE OF U P

JUDGEMENT

(1.) These three appeals by special leave arise out of a common judgment made in Criminal Appeal Nos. 445 of 2005, 701 of 2005 and Capital Sentence Reference No. 2 of 2005, dated 7th October, 2005 on the file of High Court of Judicature at Allahabad. The Appellants in Criminal Appeal No. 200 of 2006 along with other accused by name Akhlaq, Salman and Nanha Pahalwan were tried for offences punishable under Sections 148, 302 read with Sections 149 and 201, IPC and Section 25(4) of the Arms Act. The trial Court sentenced all the five accused persons to death for the offences punishable under Section 302 read with Section 149, IPC. Various other sentences have been awarded to the accused for the offences punishable under Sections 148 and 201, IPC. They were also sentenced to undergo rigorous imprisonment for six months each for the offence punishable under Section 25(4) of the Arms Act. The aggrieved Appellants in Criminal Appeal No. 200 of 2006 along with co-accused Nanha Pahalwan and Salman have preferred their appeals in one set jointly being Criminal Appeal No. 445 of 2005 and the other accused Akhlaq preferred Criminal Appeal No. 701 of 2005 in the High Court. The High Court confirmed the conviction of the Appellants Akhlaq, Wakkar and Imtiaz for the offences punishable under Sections 302/149, 201, IPC and Section 25(4) of the Arms Act and commuted their sentence for the offences punishable under Section 302/149, IPC from death penalty to that of imprisonment for life. That, so far as the accused Nanha Pahalwan and Salman were concerned, they were convicted only for the offence punishable under Section 25(4) of the Arms Act and they were acquitted of the offences punishable under Sections 302/149 and 201, IPC. Hence, Criminal Appeal No. 200 of 2006 is preferred by the Appellants Wakkar and Imtiaz challenging their conviction and sentence for the offences punishable under Sections 302/149, 148 and 201, IPC and Section 25(4) of the Arms Act and Criminal Appeal No. 767 of 2006 is preferred by the State of U.P. pleading for award of death sentence against the accused. Likewise, Criminal Appeal No. 201 of 2006 is preferred by the complainant Sheikh Zakaullah (PW 1) challenging the decision of the High Court acquitting some of the accused and as well as reducing death penalty to that of imprisonment for life.

(2.) According to the prosecution, on 9th August, 2000, the deceased Sujaullah @ Mintu left home at about 9 a.m. to his workplace and returned back at about 8 p.m. At 8.30 p.m., the accused Akhlaq gave a telephone call to the deceased whereupon, he told his wife Zebi (PW 3) that he was going to Akhlaqs shop as he must have called him to receive payment of money and would be returning within a short time, but the deceased did not return. At about 11 p.m., the complainant (PW 1), Sheikh Zakaullah, who is none other than the brother of the deceased got anxious and went out in search of his brother. At about 11.45 p.m., he came across Hamraj Rs. Furniture-wala from whom he inquired about his brother. He told PW 1 that he had seen the deceased at about 10 p.m. at the accused Akhlaqs shop where he and the accused Imtiaz, Wakkar and Akhlaq were also present. PW 1 continued his search for his brother but could not trace him and he came back to his foundry and sat there for awhile. At about 12.15 am, he noticed the accused Wakkar, Akhlaq and Imtiaz along with two others coming down the stairs of first floor room of Akhlaqs shop. On seeing them, PW 1 inquired about his brother and the accused Akhlaq told him that the deceased Mintu, in all probability, might have gone to Chandigarh as told to him. Next morning, at about 9 a.m. when accused Akhlaq came to his shop, PW 1 once again inquired from him about his brother and the reply of Akhlaq was the same but Akhlaq looked quite disturbed which gave rise to some suspicion in the mind of PW 1 and as such he insisted Akhlaq to show his first floor room, but the accused Akhlaq avoided to show the room on the pretext that he was not having the keys of the room. Thereafter, PW 1 Zakaullah with the help of a ladder got into the roof of said first floor room of Akhlaq and found some blood lying on the floor. He peeped into the room and saw that several pieces of dead body of his brother Sujaullah @ Mintu were lying there. These pieces were kept in bags. He was shocked at the scene and started raising alarm. He got down and told the people present there about what he has seen. It is at that point of time, Sompal (PW 6) told him that in the night at about 11 p.m., while he was present at his furniture shop, he heard some shrieks from the first floor room of Akhlaq. Thereafter, the door of the first floor room of Akhlaqs shop was broken open by the agitated crowd collected there and found the scene inside the room as horrifying where the pieces of the body of the deceased Sujaullah @ Mintu were lying on the floor. Immediately, PW 1 prepared the written report (Ext. Ka-1) and lodged it at the police station on 10th August, 2000 at 10 a.m.

(3.) On lodging of the first information report, the case under Sections 147, 148, 302, 149 and 201, IPC was registered and the Inspector, R.P. Sharma (PW 14) commenced the investigation. During the process of investigation, the Investigating Officer (PW 14) noticed that the body of the deceased Sujaullah @ Mintu cut into pieces was lying in the shop of Akhlaq. He prepared the inquest report (Ext. Ka-26). Site plan (Ext. Ka-25) was drawn and the pieces of the dead body were sealed and sent for postmortem. The next day i.e. 11th August, 2000, the I.O. arrested the accused Akhlaq and interrogated him. Relying upon the statement of Akhlaq, the scooter of the deceased was recovered. The blood stained knife was also found inside the box of the scooter. The other accused Nanha Pahalwan, Salman and Wakkar were absconding. However, Wakkar was arrested on 16th August, 2000 and one blood stained dagger used by him in the crime was recovered from a graveyard (Kabristan) in the presence of the witness Jeeshan and Zakaullah (PW 1). The recovery memo (Ext. Ka-4) was prepared by the I.O. and the recovered dagger was got sealed. The accused Imtiaz was arrested on 19th August, 2000 and knife used by him in the crime was recovered at a place called Kabir Nursery in the presence of the witnesses. Recovery memo (Ext. Ka- 48) was prepared on the spot and site plan of the place of recovery (Ext. Ka-49) was also prepared. Nanha Pahalwan surrendered himself before the Court on 30th August, 2000 followed by Salmans surrender on 2nd September, 2000. Blood stained knife used in the crime and blood stained watch of the deceased were recovered from the accused Salman.