SHABBIR AHMED S/O TALIB KHAN Vs. STATE

JUDGEMENT

(1.) THESE two appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), are directed against the same judgment and order dated 21.04.2001, passed by learned Additional Sessions Judge, Haldwani, District Nainital, in Sessions Trial No. 513 of 1997, whereby accused/appellant Sadiq has been convicted under Sections 302/34, 366, 376 and 506(2) of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Another accused/appellant Shabbir has been convicted under Section 302 read with Section 34 I.P.C.. The accused/appellant Sadiq is sentenced to imprisonment for life and directed to pay fine of Rs.2,000/- (under Section 302/34 I.P.C.), rigorous imprisonment for a period of three years and directed to pay Rs.1,000/-, as fine (under Section 366 I.P.C), rigorous imprisonment for a period of ten years and directed to pay fine of Rs.2,000/- (under Section 376 I.P.C.), and rigorous imprisonment for a period of one year (under Section 506(2) I.P.C.). The accused/appellant Shabbir has been sentenced to imprisonment for life and directed to pay Rs.2,000/-, as fine (under Section 302/34 I.P.C.). However, accused/appellant Shabbir has been acquitted of the charge of offences punishable under Sections 363, 366, 376 and 506 I.P.C..

(2.) HEARD learned counsel for the parties and perused the Lower Court Record.

(3.) ON receipt of the Charge Sheet, the Judicial Magistrate, after giving necessary copies to the three accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial. On 08.01.1998, learned Sessions Judge, Nainital, after hearing the parties, framed charge of offences punishable under Sections 302/34, 363, 366 and 506 I.P.C. against all the three accused. A separate charge of offence punishable under Section 376 I.P.C. was framed against accused Sadiq and Shabbir. All the three pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1-Shamshad, complainant; P.W.2-Israna, an eyewitness of murder and victim of kidnapping and rape; P.W.3-Aftab, minor eyewitness and son of the deceased; P.W.4-Mohd. Hanif, neighbour of the deceased (partly hostile); P.W.5-Iliyas Ahmed, witness of recovery memo (Ext.A-3); P.W.6-Dr. Shikha Jangpangi, who medically examined the victim on 10.06.1997; P.W.7-Dr. C.S. Hachanki, the pathologist; P.W.8-Dr. S.P. Ojha, who conducted postmortem examination on the dead body of Israr Ahmed; P.W.9-Dr. P.C. Kapri, radiologist; P.W.10-Yogesh Dixit, Investigating Officer; and P.W.11-Sub Inspector Rajesh Bhartiya, who prepared Inquest Report and other papers soon after the incident, including recovery memo (Ext.A-2). Meanwhile, case was transferred to the court of Additional Sessions Judge, who continued further with the case. The oral and documentary evidence was put to the accused Sadiq and Shabbir, who alleged the same to be false. Accused/appellant Sadiq took the plea of alibi and told that he came from Moradabad only on 10.06.1997. However, no evidence in defence was adduced. The trial court, after hearing the parties, found accused/appellant Sadiq guilty of charge of offences punishable under Sections 302/34, 366, 376 and 506(2) I.P.C., and accused/appellant Shabbir guilty of charge of offence punishable under Section 302/34 I.P.C. only. He (Shabbir) was acquitted of rest of the charges. After hearing the parties on sentence, the trial court sentenced each of the accused/appellants Sadiq and Shabbir to rigorous imprisonment for life and also directed to pay fine of Rs.2,000/-, under Section 302/34 I.P.C. In default of payment of fine, the defaulter was directed to undergo further two months' rigorous imprisonment. Accused/appellant Sadiq was further sentenced to rigorous imprisonment for a period of ten years and directed to pay fine of Rs.2,000/-, under Section 376 I.P.C., rigorous imprisonment for a period of three years and directed to pay Rs.1,000/-, as fine, under Section 366 I.P.C., and rigorous imprisonment for a period of one year, under Section 506(2) I.P.C. In default of payment of fine on the count of Section 376 I.P.C., he was directed to undergo rigorous imprisonment for a further period of two months. In default of payment of fine of Rs.1,000/- (under Section 366 I.P.C.), he was directed to undergo rigorous imprisonment for a further period of one month. Aggrieved by said judgment and order dated 21.04.2001, appellant Shabbir filed Appeal No. 110 of 2001 before this Court, while accused/appellant Sadiq got sent his appeal at a belated stage through Superintendent of Sampurnanand Jail, Udham Singh Nagar, where he was serving out the sentence, in 2006. Appeal of Shabbir Ahmed was admitted in the year 2001. Appeal of Sadiq was admitted on 23.03.2006, after condoning delay in filing the appeal.