MOHD ANEES AND ANR Vs. STATE

JUDGEMENT

(1.) By judgment dated 07.12.2012, the appellants - Mohd. Anees and Mohd. Rahees - were held guilty by the Additional Sessions Judge for offences under Section 302 read with Section 34 of Indian Penal Code, 1860 ("IPC") and under Section 174A IPC on the charge that both of them, in furtherance of their common intention with Mohd. Nasim son of Mohd. Rahees, had committed the murder of Meena wife of Mohd. Rahees on 26.09.1999 at about 6:30 PM opposite House No.1347, Fataq Banwala, Chitli Cover, Delhi and thereafter had intentionally absconded to be declared proclaimed offenders. By order dated 10.12.2012, the learned trial court awarded imprisonment for life with fine of 2,000/ - each for offence under Section 302/34 IPC and imprisonment for two years with fine of 1,000/ - each for offence under Section 174A IPC. It was further directed that in the event of fine not being paid, the appellants would undergo simple imprisonment for fifteen days and seven days respectively. Benefit of Section 428 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") was accorded.

(2.) For reasons set out hereinafter, we refrain from tracing here the entire set of background facts or evidence on basis of which the appellants were brought to trial. Suffice it note here that the alleged accomplice Mohd. Nasim son of Mohd. Rahees was arrested soon after the occurrence (which is the subject matter of the prosecution case) and was brought to trial in the court of Additional Sessions Judge in sessions case No. 11/2000. The report under Section 173 Cr.P.C which had been submitted at that stage indicated that the appellants herein had absconded and, thus, had to be declared proclaimed offenders, after recourse to the procedure envisaged, inter alia, in Sections 82 and 83 Cr.P.C. The trial against Mohd. Nasim concluded with the judgment dated 01.10.2002 holding him guilty and convicting him for the offence punishable under Section 302/34 IPC by order dated 03.10.2002. The learned trial court in that case awarded imprisonment for life with fine of 5,000/ - against the said convict Mohd. Nasim. Mohd. Nasim challenged the said judgment and order on sentence by criminal appeal No. 896/2002. The said criminal appeal, however, was dismissed by a Division Bench of this Court by judgment dated 21.01.2010.

(3.) It may be mentioned here that the evidence adduced by the prosecution in the trial against Mohd. Nasim included reliance on the statement of Salma Bano examined (in that case as PW -4) on 10.11.2000 followed by her cross -examination on 13.03.2001. A perusal of the statement of Salma Bano (PW -4) in the case against Mohd. Nasim (since convicted) would reveal that she was presented as an eye -witness to the occurrence, her deposition there also making reference to certain role attributed to the two appellants before this Court.