Allahabad High Court
Sagheer And Others vs State Of U.P. on 9 February, 2018
Bench: Shashi Kant Gupta, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved on: 11.12.2017 Delivered on: 9.2.2018 Court No. - 45 Case :- CRIMINAL APPEAL No. - 2443 of 1987 Appellant :- Sagheer And Others Respondent :- State Of U.P. Counsel for Appellant :- A.M.Tripathi,Zafar Abbas Counsel for Respondent :- A.G.A. Hon'ble Shashi Kant Gupta,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra,J.)
1. The short question involved in the present criminal appeal is whether the court below was right in convicting the accussed-appellants by accepting the prosecution case as probable.
2. Mr. Zafar Abbas, learned counsel for the accused appellants and Mr. Ajit Ray, the learned A.G.A. have been heard at length, in support of and in opposition to the appeal.
3. Feeling aggrieved by the judgement and order dated 12.10.1987 passed by the Ist Additional Sessions Judge, Rampur, in Sessions Trial No. 254 of 1986 (State Vs. Sagheer and Others) whereby, the accused appellants have been convicted under Section 449 and 302/34 IPC and further sentenced to undergo two years rigorous imprisonment under sections 449 IPC and Life imprisonment under section 302/34 IPC, the accused appellants have filed the present criminal appeal.
4. The instant appeal was filed on 13.10.1987 in this Court. Vide order dated 13.10.1987, the accused appellant No. 2 Ikrar and the accused appellant No. 3 Ram Charan were released on bail. The appellant No. 1 was released on bail vide order dated 14.1.1988. During the pendency of the instant appeal, the accused appellant No. 3 Ram Charan died. Consequently, vide order dated 11.1.2017, passed in the present criminal appeal, the appeal was abated against the accused appellant No. 3 Ram Charan.
5. From the record, it transpires that an incident occurred in the night of 12/13.8.1986, at around 1 pm in the house of Karamat Shah in which Salamat Shah the brother of Karamat Shah is alleged to have been murdered.
6. An F.I.R. dated 13.8.1986 (Ext. Ka-12) is reported to have been lodged by the first informant Karmat Shah at Police Station Azimnagar, Rampur, naming the accused appellants therein. On the basis of the aforesaid F.I.R., Case Crime No. 103 of 1986, under sections 452, 302 IPC, P.S. Azimnagar, District Rampur came into existence. According to the check F.I.R. the same is reported to have been lodged on 13.8.1986 at 6:55 am.
7. The prosecution story as unfolded in the F.I.R. is to the following effect.
8. That in the night of 12-13.8.1986 Karamat Shah, his younger brother Salamat Shah, Kubra wife of Salamat Shah and Aslam cousin brother of Karamat Shah were sleeping in the courtyard (Angan) of the house. A dibiya (home made lantern) was burning on the Takh (a place carved out in the wall for keeping things). Around 1:00 pm the tatiya (bamboo fence) was removed and due to the sound generated by the removal of the same, the first informant Karamat Shah as well as others woke up. The first informant then saw that Sagheer son of Mohammad Ahmad Khan, armed with Chaku (knife) Ram Charan son of Bhim Gadariaya armed with kutta (small axe) and Ikrar son of Mohammad Hussain armed with Suja (a spear like weapon which is triangular in shape at the base and gradually points at the top with a pointed edge) have entered the home. Thereafter Sagheer rebuked that today revenge shall be taken of the old enmity with Salamat Shah and he be done to death. Consequently, Salamat Shah who was sleeping on the cot was assaulted by above named accused persons. Upon alarm being raised Mohammad Zamir son of Amir Ahmad and Asghar son of Dilwar Shah armed with torch and danda came running to the house then the accused persons ran out of the house. The first informant, the residents of the house and the witnesses saw the accused persons in the light of the dibiya and torch and recognized them. The accused persons were chased but they ran away. The first informant went near the cot and saw that Salamat Shah was dead. On account of the old enmity, the first informant out of fear could not come to the police station to lodge the F.I.R.
9. According to the prosecution case, the incident in question was witnessed by Karamat Shah, the first informant, Smt. Kubra widow of Salamat Shah, Aslam the cousin brother of the first informant, who are alleged to be sleeping together in the courtyard of the house where the incident is alleged to have occurred, as well as Mohammad zamir son of Ameer Ahmad and Asghar son of Dilwar Shah, who are alleged to have arrived at the place of occurrence upon alarm being raised on the happening of the alleged occurrence.
10. Subsequent to the lodging of the F.I.R. dated 13.8.1986, the police of Police Station Azimnagar, came into motion. The Station House Officer of Police Station Azim Nagar, Rampur, came on the spot at 8:00 am. At the time of arrival of the aforesaid Police Officer, two persons namely, P.W. 1 Karamat and P.W.2 Smt. Kubra alone were present near the dead body of Salamat. Thereafter, the memo regarding taking into possession of the torch and its supurdaginama dated 13.8.1986 (Ex. Ka-2) was prepared. Then, the memo regarding the taking into possession of the dibia (home made lantern) and its supurdiginama dated 13.8.1986 (Ex. Ka-3), was prepared. On the same day a portion of the cotton bedding (gadda) on which Salamat was sleeping and soaked with blood was taken into possession by the Station House Officer and its memo (Ex. Ka-4) dated 13.8.1986 was prepared. The torch in the light of which the accused appellants were alleged to have been seen by the prosecution witnesses was taken in possession and thereafter given in supurdigi. Accordingly, a memo dated 13.8.1986 (Ex. Ka-15) of the same was prepared. The Station House Officer inspected the house of Karamat Shah where the incident is alleged to have occurred. Accordingly, an inspection memo dated 13.8.1986 (Ex. Ka-16) was prepared. The sealed gadda was deposited in the malkhana of the Police Station concerned by constable Virendra kumar at 21:35 hours and an entry to this effect was made in the G.D. vide report No. 32 dated 14.8.1986.
11. The inquest/Panchayatnama of the body of the deceased was conducted on 13.8.1986 at 8:00 am. As per the inquest report (Ext. Ka-5), the inquest began at 8:00 am and concluded at 9:00 am. The inquest was signed by the panch witnesses namely, Sarvar Ali, Safdar Ali, Dilawar, Mohammad Hussain and Wahid Ahmad.
12. According to the inquest report, the cause of death of the deceased Salamat Shah, was homicidal. In the opinion of the panch, the cause of death were ante-mortem injuries inflicted upon the body of the deceased Salamat Shah.
13. Thereafter the body of the deceased was sent for postmortem. The doctor namely, Dr. M.K. Jain who conducted the postmortem upon the body of the deceased Salamat Shah on 13.8.1986 at 1:30 pm opined that the cause of death of Salamat Shah was shock and hemorrhage as a result of multiple ante-mortem injuries. The following injuries were found on the body of the deceased Salamat Shah :-
"(i) Incised wound 6cm x 2cm over top of head x bone deep.
(ii) Incised wound 2cm x 0.5cm x muscle deep over left side or face 2 cm below left angle of left eye.
(iii) Incised wound 2cm x 1cm x skin deep over top of left shoulder.
(iv) Incised wound 4cm x 0.5 cm x scalp deep over back of head middle.
(v) Incised wound 6cm x 2 cm x muscle deep over outer aspect of left arm and its middle.
(vi) Incised/penetrating would 6cm x 4 cm x abdominalcavity dep over outer aspect of left side abdomen.
(vii) Incised wound 6cm x 4cm x chest cavity deep over left side of back just below left scapular region.
(viii) Incised would 4cm x 4 cm x chest cavity deep over left side of back 1cm below injury no. 7.
(ix) Incised would 3cm x 0.5cm x muscle deep over back of right shoulder."
14. The investigating officer namely, S.P. Singh (P.W.4), upon completion of the investigation of Case Crime No. 103 of 1986 under sections 452, 302 IPC, on the basis of the material collected during the course of investigation, the documents prepared and the statement of the witnesses recorded under section 161 Cr.P.C. came to the conclusion that the named accused persons are guilty of the offence alleged against them. Accordingly, the Investigating Officer submitted the charge-sheet dated 1.9.1986 against the named accused persons under sections 302/452 I.P.C in the court of the C.J.M., Rampur.
15. Upon receipt of the charge-sheet dated 1.9.1986, the Court concerned took cognizance upon the same and finding that the case is triable by the Court of Sessions, committed the same to the Sessions Court vide committal order dated 13.10.1986. As such, S.T. No. 254 of 1986 (State Vs. Sagheer and Others) under Sections 449 and 302/34 IPC, P.S. Azim Nagar, District, Rampur came to be registered, in the Court of the 1st Additional Sessions Judge, Rampur.
16. The Sessions Judge vide order dated 11.2.1987, framed the charges against the accused appellants to the following effect:-.
"FIRSTLY: That you in the night between 12th and 13th August, 1986 at abot 1-00 A.M. Committed house-trespass by entering into the building of Karamat Shah, situated in village Khaudpura, within the circle of P.S. Azimnagar, District Rampur and used as as a human dwelling, in order to commit an offence punishable with death or imprisonment for life, to wit, to commit murder of Salamat and that you thereby committed an offence punishable under section 449 of the I.P.C. and within the cognizance of this court of Session.
SECONDLY: That you in furtherance of the common intention on the aforesaid date, time and place did commit murder by intentionally or knowingly causing the death of Salamat and thereby committed an offence punishable under section 302 read with Section 34 of the I.P.C. and within the cognizance of this court of Session."
17. The accused appellants denied the charges so framed against them and demanded trial.
18. The prosecution in support of its case adduced four witnesses namely, P.W. 1 Karamat Shah the first informant, P.W. 2 Smt. Kubra widow of Salamat Shah eye-witness, P.W. 3 Asghar witness of fact and P.W. 4 S.P. Singh Investigating Officer.
19. Apart from adducing the aforesaid witnesses, the prosecution also relied upon certain documentary evidence which were duly proved before the Court below and consequently marked as Exhibits. The same are cataloged herein below:-
Ext. Ka-1 Written Report Proved by P.W.1 Ext. Ka-2 Recovery Memo Torch Proved by P.W.3 Ext. Ka-3 Recovery Memo Dibiya Proved by P.W.3 Ext. Ka-4 Memo of Gadda Proved by P.W.3 Ext. Ka-5 Panchayatnama Proved by P.W.3 Ext. Ka-6 Report of P.S. Azimnagar Proved by P.W.3 Ext. Ka-7 Sample Seal Proved by P.W.3 Ext. Ka-8 Sample Dead Body Proved by P.W.3 Ext. Ka-9 Police Chalan Lash Proved by P.W.3 Ext. Ka-10 Post-mortem report Proved by P.W.3 Ext. Ka-11 Charge-sheet Proved by P.W.3 Ext. Ka-12 F.I.R.
Proved by P.W.4 Ext. Ka-13 Copy of Report No.9 Proved by P.W.4 Ext. Ka-14 Site Plan Proved by P.W.4 Ext. Ka-15 Memo Proved by P.W.4 Ext. Ka-16 Memo Proved by P.W.4 Ext. Ka-17 Copy of Report No.32 Proved by P.W.4 Ext. Ka-18 Copy of Report Proved by P.W.4
20. Four important facts need to be noticed here. Firstly, the charge-sheet dated 1.9.1986 submitted by the Investigating Officer namely, S.P. Singh P.W. 4 was admitted by the accused appellants and accordingly the same was not proved. Secondly, the post-mortem Report (Ext. Ka-10) was admitted by the accused appellants and was consequently marked as an exhibit. Thirdly, the doctor namely, Dr. M.K. Jain who conducted the post-mortem upon the body of the deceased Salamat was not adduced in evidence as a prosecution witness. Fourthly, no other expert medical evidence was adduced to explain the incise wounds upon the body of the deceased Salamat.
21. On behalf of the accused appellants, the following submissions were urged before the Court below in proof of their innocence.
(a) There is no motive on the part of the accused appellants to commit the crime.
(b) The F.I.R. dated 13.8.1986, lodged by the first informant Karamat Shah and also the basis of the criminal proceedings against the accused appellants is ante-timed.
(c) The alleged place of occurrence as well as the presence of P.W. 1 Karamat Shah and P.W. 2 Smt. Kubra widow of Salamat Shah at the time and place of the alleged occurrence is highly doubtful.
(d) P.W. 1 Karamat Shah and P.W. 2 Smt. Kubra are neither reliable nor credible witnesses.
(e) The source of light alleged by the prosecution for the purpose of identifying, the accused appellants in the pitch of darkness is not sufficient enough to recognize the accused appellants.
(f) The theory of chasing of the accused persons by the complainant Karamat Shah, Aslam, Mohammad zamir and Asghar is highly improbable.
22. The testimony of P.W. 3 Asghar alleged to be witness of fact was discarded by the Court below on the ground that P.W. 3 is an old man aged about 73 years and after hearing the shouts coming from the house of the first informant, Karamat Shah, he could not have reached the place of occurrence, at the time of occurrence. The aforesaid finding was further strengthened with the fact that the house of P.W. 3 Asghar is about 100 houses away from the house of Salamat which is the place of occurrence and is situate in the midst of village abadi. Such an old man could not reach the place of occurrence upon hearing the shouts coming from the place of occurrence at the time of the occurrence itself, which could not have lasted long. Furthermore, the Court below disbelieved the aforesaid witness on the ground that this witness in his statement has stated that he remained through out near the dead body of Salamat whereas, had he been present his statement would have certainly been recorded by the I.O. on 13.8.1986 itslef.
23. However, the submissions made on behalf of the accused appellants in proof of their innocence were not accepted. The eye-witness account of the occurrence as given by the two prosecution witnesses i.e. P.W. 1 Karmat Shah (the first informant) and P.W.2 Smt. Kubra widow of Salamat (deceased) was relied upon, treating it to be credible and trustworthy. As such, the Court below i.e. the First Additional Sessions Judge, Rampur, by means of the impugned judgement and order dated 12.10.1987, passed in Sessions Trial No. 254 of 1986 (State of Sagheer and Others) convicted the accused appellants under Sections 449 and 302/34 IPC and further sentenced them to undergo two years rigorous imprisonment under sections 449 IPC and Life imprisonment under section 302/34 IPC.
24. Feeling aggrieved by the aforesaid judgement and order dated 12.10.1987, the accused appellants have filed the present criminal appeal.
25. Mr. Zafar Abbas, learned counsel for the accused appellants, after having elaborately taken us through the evidence on the record and after meticulously placing the evidence of the witnesses, primarily urged before us that the prosecution case is not probable. It is his submission that not only the incident in which Salamat Shah is alleged to have been murdered is highly doubtful but also the presence of the prosecution witnesses of fact i.e. P.W. 1 and P.W. 2 at the time and place of occurrence is also highly doubtful. Thus, not only the presence of the witnesses i.e. P.W.1 and P.W. 2 at the time and place of occurrence has been disputed but also the incident in which Salamat Shah is alleged to have been murdered has been doubted by the learned counsel for the accused appellants.
26. To lend support to his aforesaid submissions, the appellants' counsel invited the attention of the Court to the following facts, which according to him make the prosecution case highly improbable:-
(1) There is no motive on the part of the accused appellants to commit the crime.
(2) The motive assigned is very weak.
(3) Prior to the occurrence in question there was a dispute with Sagheer for which prosecution was launched against Sagheer and his family members. However, the said case was decided on the basis of compromise.
(4) One year before the incident in question there was a rift with the family member of Salamat Shah with Ram Charan but no prosecution regarding the same was lodged.
(5) P.W. 1 Karamat in his cross-examination at page 22 of the paper book has stated that the accused persons and both of them i.e. Salamat and Karamat were on the side of Mohammad Ahmad who contested the election for the post of Gram Pradhan and was declared elected, which goes to show that there was no enmity between the parties.
(6) P.W. 1 Karamat in his cross-examination at page 22 of the paper book has stated that at the time of the construction of the new house, dispute had taken place with Sagheer as medh (boundary wall of two agricultural fields) of the agricultural field of Sagheer and Salamat is the same. However, there is no document on the record adduced by the prosecution to evidence the same.
(7) As such on the date of the alleged occurrence, there was no enmity existing between the parties.
(8) According to the check F.I.R. (Ex. Ka-12) the same appears to have been lodged by P.W. 1 Karamat Shah the first informant at 6:55 am, whereas, P.W. 2 Smt. Kubra widow of the deceased Salamat Shah in her statement in chief in paragraph 2 has categorically stated that after the incident had occurred Karamat was near the dead body till the arrival of the Sub-Inspector which clearly proves the ante-timing of the F.I.R. The said statement of P.W.2 Smt. Kubra has not been explained by the prosecution.
(9) The ante-timing of the F.I.R is further fortified from the fact that the F.I.R. is alleged to have been lodged by the first informant, P.W. 1 Karamat at 6:55 am whereas, the Sub-Inspector arrived on the spot at 8:00 am, after more than one hour, even when the distance of the place of occurrence from the police station is only four miles and the inquest/panchayatnama began at 8:00 am itself.
(10) The presence of P.W. 1 Karamat Shah and P.W. 2 Smt. Kubra at the alleged place and time of occurrence is highly doubtful.
(11) P.W. 1 Karamat is the Jeth (elder brother of the husband) of Smt. Kubra whereas, Smt. Kubra is the bhayahu (wife of younger brother) of P.W. 1 Karamat.
(12) P.W. 2 Smt. Kubra in her oral testimony has clearly stated with mathematical precision that all the four persons who are alleged to be present at the time and place of occurrence were sleeping together on different cots, spaced at a distance of two feets in the courtyard.
(13) Smt. Kubra is a young muslim lady. Her age at the time of occurrence would be 24 years. Smt. Kubra performs purdah with Karamat being her Jeth as is evident from her statement in chief in paragraph 3 at page 26 of the paper book. Thus it is impossible to believe that Smt. Kubra was also sleeping along with her Jeth and others in the courtyard of the house were the incident is alleged to have occurred.
(14) It has come in the testimony of P.W. 2 Smt. Kubra that the cots were placed in east-west direction. The head was in the west and the feet was towards the east. Thus, the front portion of the feet would be pointing towards the west i.e. Kaba which is the Sanctom Sanctoram for the muslims. As such, the same is impossible.
(15) At the time of the alleged incident four persons namely, P.W. 1 Karamat, P.W. 2 Smt. Kubra, Salamat (deceased) and Aslam cousin younger brother of Karamat are alleged to be present.
(16) According to the version in the F.I.R., all the four persons woke up on account of the sound generated by the removal of the tatiya.
(17) No resistance was offered by the persons present to the accused persons when they are alleged to have assaulted Salamat Shah.
(18) P.W. 2 Smt. Kubra, in her statement, has categorically stated that as the Tatiya was removed, she woke up and specifically requested the accused persons to forgive Salamat by shouting, but even then no response came forward from the other two persons namely, Karamat and Aslam who were also there, which is very unnatural.
(19) No injuries or blood marks are found upon the body/clothes of the persons alleged to be present at the time of occurrence.
(20) The conduct of P.W. 1 and P.W.2 is unnatural and therefore, does not inspire confidence.
(21) As per the Post Mortem Report there are 9 incised wounds upon the body of the deceased Salamat Shah.
(22) The injury No. 2,3, 5, 6,7 and 8 are on the left hand side of the body. Injury No. 1 and 4 are on the head. Injury No. 9 is on the right shoulder. Such injuries could not have been caused without catching hold of the deceased.
(23) It is the specific prosecution case that the accused persons were armed with three different weapons. Accused sagheer is alleged to be armed with Churi (Knife). Accused Ikrar is alleged to be armed with Suja (a spear like weapon but which is triangular in shape at the base and rounds up at the top with a pointed edge) and the accused No. 3 Ram Charan is alleged to be armed with Kutta (small axe).
(24) Both the prosecution witnesses have stated in their testimony that all the accused persons assaulted the deceased Salamat together, but there are no punctured wounds or stabbed wounds found on the body of the deceased.
(25) There is neither the evidence of the doctor who conducted the postmortem nor any other expert medical evidence to prove that the incise wounds found upon the body of the deceased Salamat could have been caused by a small axe or a knife.
(26) As such, the medical evidence clearly disproves the ocular version of the alleged incident.
(27) The prosecution has not produced Aslam the cousin brother of the first informant Karamat Shah who is alleged to be sleeping alongwith other three persons in the house where the incident is alleged to have occurred.
(28) Karamat Shah P.W.1 who is also the first informant is a related witness. Similarly P.W. 2 Smt. Kubra widow of Salamat is also a related witness. Only if Aslam and Mohammad Zamir were adduced in evidence, the testimony of the aforesaid two eye-witnesses could have found corroboration.
(29) Mohammad Zamir son of Anwar Shah who is alleged to have arrived at the place of occurrence upon hearing the shouts and alleged to have chased the accused persons, was not produced as a witness.
(30) Witnesses of Panchayatnama not produced.
(31) The Doctor who conducted the Postmortem was not produced as a prosecution witness.
(32) The witnesses of the fard (recovery memo) namely, Ahmad Hussain, Lal Chandra, Brijraj and Aslam, not produced by the prosecution.
(33) No recovery of weapons used in the commission of the alleged crime.
(34) No fard (Memo) of cot prepared by the I.O.
(35) No fard (Memo) of the clothes of deceased Salamat was prepared by the I.O.
(36) The cotton bedding (Gadda) on which Salamat was sleeping and is alleged to be soaked with blood, was not sent to the forensic laboratory to ascertain the same.
(37) Reason assigned for the presence of Karamat Shah and Aslam in the house of Karamat is the alleged threat perception.
(38) No such evidence on the record to show the measures undertaken to meet the alleged threat.
(39) No arrangement shown to be made in defence of the alleged threat.
(40) It has come in evidence that there is another house of Karamat Shah situate in the midst of village abadi but leaving the safety of the same a solitary hamlet situate far away from the village abadi was chosen for the night, on account of the alleged threat which is hypothetical.
(41) P.W. 1 Karamat in his testimony has stated that because of the enmity Lathi and Danda were kept in the house were all the four persons are alleged to be sleeping at the time of occurrence whereas no such material was found by the I.O. when he inspected the house on 13.8.1986 and a memo regarding the same (Ex. Ka-16) was prepared.
27. Before proceeding to consider the cumulative effect of the aforesaid facts as urged by the learned counsel for the accused appellants, upon the probability of the prosecution case, it will be useful to summarize the same into distinct heads for better appreciation and evaluation, which are as under:-
(1) Motive (2) Ante-timing of the F.I.R.
(3) The presence of P.W. 1 and P.W. 2 at the time of place of occurrence is highly doubtful.
(4) The incident itself is doubtful.
(5) The medical evidence does not support the ocular version as narrated by P.W. 1 and P.W. 2.
(6) There are serious contradictions in the testimony of P.W. 1 and P.W. 2, hence their testimony is neither reliable or credible.
(7) Non production of witness and others.
(8) Defective Investigation.
(9) Hypothetical prosecution case as it is even beyond imagination to believe that the alleged occurrence took place as alleged.
28. Mr. Ajit Ray, the learned A.G.A. supported the impugned judgement. According to the learned A.G.A., the documents which have been marked as exhibits have to be taken on their face value. Relying upon section 294 Cr.P.C. and Rule 77 of the General Rules Criminal, he submits that an exhibited document does not require formal proof nor the same can be doubted. The postmortem report was admitted by the accused persons which again is in consonance with section 294 Cr.P.C. Therefore the non-production of the Doctor who conducted the postmortem will not render the post mortem report (Ex. Ka-10) a waste paper. In case the accused doubted the genuineness or otherwise of the Post Mortem Report, they could have summoned the doctor as a Defence Witness or got him summoned as a court witness. However, the said option was not exercised in the court below and therefore, the said issue, if any, cannot be agitated in appeal. The recovery of the cotton bedding (gadda) soaked in blood on which Salamat was sleeping from the house of Karamat Shah where the incident occurred, clearly proves the place of occurrence. The Investigating Officer did not found any blood on the ground as such no sample of plain earth and earth mixed with blood were taken. Any defect in investigation i.e. non recovery of weapons used in the commission of the crime or failure to prepare the fard (Memo) of cot on which the four persons are alleged to be sleeping at the time and place of occurrence, or, not sending the bedding (gadda) to the forensic laboratory, will not render the prosecution illegal or void on account of the eye-witness account of P.W. 1 and P.W. 2 regarding the occurrence which is trustworthy. According to the learned A.G.A. any defect in the investigation will not render the conviction bad. The Court below has exercised its jurisdiction with due diligence and therefore, discarded the testimony of P.W. 3. Most of the facts placed by the appellants' counsel in support of his submission that not only the presence of P.W. 1 and P.W. 2 is doubtful at the time and place of occurrence but the incident itself is also doubtful are hypothetical, as no attempt was made by the accused to get them proved in the cross-examination of P.W.1 and P.W.2, or clarify the same in the statement under section 313 Cr.P.C. nor any independent witness was adduced by the defence to get the same proved. He further submits that no doubt the court of appeal can re-appreciate facts but in the garb of the same, hypothesis cannot replace facts. The impugned judgement cannot be faulted on that score. P.W.1 and P.W.2 though related witnesses have been held to be credible and reliable witnesses. They have given the true and correct eye-witness account of the occurrence and their testimony is not liable to be dislodged. P.W. 2 in her oral testimony has clearly stated with mathematical precision how the cots were placed and who was sleeping where, which further proves the presence of P.W. 2 at the time and place of the occurrence itself. The minor inconsistencies, if any, in the oral testimony of P.W. 1 and P.W. 2 cannot be termed as contradiction which is different from explanation, inconsistency, exaggeration, and embellishment. Both the prosecution witnesses have been consistent in their account regarding the manner of occurrence as well the manner of assault. As such, the prosecution has proved its case beyond reasonable doubt. Consequently, the appeal is liable to be dismissed.
29. Upon evaluation of the rival submissions made, it is apparent that the issues which arise for our consideration are firstly the credibility/reliability of the prosecution witnesses namely, P.W.1 Karamat the first informant and P.W. 2 Smt. Kubra widow of Salamat Shah (deceased) who are said to be the eye-witnesses of the occurrence and secondly, whether the circumstances/facts relied upon by the appellants' counsel are sufficient enough to dislodge the testimony of the aforesaid two witnesses. The answer to that will automatically answer the question in the appeal whether the prosecution case is probable.
30. Before proceeding to evaluate the testimony of P.W. 1 and P.W. 2 in the light of the issues, as noted above, it will be useful to first refer to the nature and scope of jurisdiction of the Court of Appeal hearing a criminal appeal arising out of a conviction awarded under section 302 IPC. There are numerous authorities on the point and we may not multiply the subject matter with them. For the sake of convenience, reference is made to the following judgments of the Apex Court which are nearly to the issue regarding the nature of Jurisdiction of the Appellate Court hearing a criminal appeal.
31. To begin with, in the case of Rama and Others Vs. State of Rajasthan, as reported in 2002 (4) SCC 571, the Apex Court has observed as follows in paragraph 4 of the judgement:-
"4. The impugned judgment has been challenged on the sole ground that the High Court has not disposed of the appeal in the manner postulated under law inasmuch as it does not appear from the impugned judgment as to how many witnesses were examined on behalf of the prosecution and on what point. The High Court has not even referred to any evidence much less considered the same. In our view, it is a novel method of disposal of criminal appeal against conviction by simply saying that after re-appreciation of the evidence and re-scrutiny of the records, the Court did not find any error apparent in the finding of the trial court even without reappraising the evidence. In our view, the procedure adopted by the High Court is unknown to law. It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused which cannot be permitted under law. Thus, we are of the view that on this ground alone, the impugned order is fit to be set aside and the matter remitted to the High Court."
32. Similarly, in para 3 of the judgement in the case of Mohd. Shahid Vs. State of Madhya Pradesh, as reported in 2002 (9) SCC 731, the Apex Court has made the following observations:-
"3. This appeal is directed against the judgment of the Division Bench of the Madhya Pradesh High Court disposing of a criminal appeal and affirming the conviction and sentence recorded by the Sessions Judge. The appellant stood charged under Section 302 for having given knife-blow on the abdomen and chest of the deceased. There were as many as 4 eyewitnesses PWs 5, 8, 10 and 11. The learned Sessions Judge relying upon the evidence convicted the accused-appellant under Section 302 and sentenced him to imprisonment for life. On an appeal being carried, the Appellate Authority, instead of examining and reappreciating the evidence of all these eyewitnesses, disposed of the matter by holding that it is not necessary to give detailed reasons as the Court agrees with the conclusion of the trial Judge in convicting and sentencing the accused-appellant. This, in our view, cannot be held to be a consideration of the evidence by an appellate court in a criminal appeal. We, therefore, set aside the impugned judgment and sentence and remit the criminal appeal to the High Court for redisposal in accordance with law. The appeal being an old one, the High Court would do well in disposing of the same at an early date."
33. In Badam Singh Vs. State of M.P., as reported in 2003 (12) SCC 792, the Apex Court in paragraph 16 of the judgement has issued the following caution to a Court of Appeal:-
"16. The learned Sessions Judge after considering the evidence on record and accepting the evidence of the eye witnesses found the appellant guilty of the offence under Section 302 I.P.C. and sentenced him to imprisonment for life. The High Court by its impugned judgment dismissed the appeal preferred by the appellant. We have perused the impugned judgment of the High Court. The High Court which was the first Court of Appeal did not even carefully appreciate the facts of the case. It mentions that the FIR was lodged by PWs-5 and 6 whereas the fact is that the FIR was lodged by PW-4, the Forest Officer. Without subjecting the evidence on record to a critical scrutiny, the High Court was content with saying that the three eye witnesses having deposed against the appellant, the prosecution had proved its case beyond reasonable doubt. In our view, the High Court has not approached the evidence in the manner it should have done being the first Court of Appeal. The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to cross-examination to bring out facts which may persuade a Court to hold, that though consistent, their evidence is not acceptable for any other reason. If the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is suspect, the Court may reject their evidence. That is why it is necessary for the High Court to critically scrutinize the evidence in some detail, it being the final court of fact. We have therefore gone through the entire evidence on record with the assistance of counsel for the parties."
34. The sum total of the aforesaid observations of the Apex Court lead to the inescapable conclusion that the High Court while hearing a criminal appeal is the last court of fact. As such, the High Court cannot decide a criminal appeal in a casual and cryptic manner. The High Court has to itself examine the evidence and scrutinize the testimony of the witnesses relied upon by the prosecution with caution and then come to a definite conclusion.
35. In the case of State of Uttar Pradesh Vs. Krishna Master and Others, as reported in 2010 (12) SCC 324, the Apex Court has cautioned the court of appeal in the matter relating to the reappraisal and reappreciation of evidence of a witness in the following words contained in paragraph 16 of the judgement, which is extracted herein below:-
"16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it."
36. This brings us to the issue relating to the appreciation of evidence by the appellate court as decided by the Apex Court in the Case of State of Uttar Pradesh Vs. Krishna Master and Others, as reported in 2010 (12) SCC 324. Paragraphs 15, 16, 17, 24 of the aforesaid judgement clearly deal with the manner in which the evidence of the eye-witnesses is to be evaluated in a criminal case. Paragraphs 15, 16, 17 and 24 are reproduced herein below:-
15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case.
24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness."
37. In the case in hand, there is the eye witness account of P.W. 1 and P.W. 2 which not only describes the occurrence but also the manner of assault. Apart from the above, there is also on record the post-mortem report given by the doctor (Ext. Ka-10). How the medical evidence and the ocular version have to be weighed in a criminal case, has been carefully dealt with by the Apex Court in the Case of Ram Bali Vs. State of U.P. as reported in 2004 (10) SCC 598. Paragraphs 10 and 11 of the aforesaid judgement deal with the issue referred to above. As such, the same are quoted herein below:-
"10. Even otherwise, the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the Court has to consider the effect thereof. This Court in Pattipati Venkaiah v. State of Andhra Pradesh (AIR 1985 SC 1715) observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerized or mathematical fashion so as to be accurate to the last second. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. In Nihal Singh and Ors. v. State of Punjab (AIR 1965 SC 26), it was indicated that the time required for digestion may depend upon the nature of the food. The time also varies according to the digestive capacity. The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors.
11. Factors were also noted by HWV Cox in his book referred to by learned counsel for the appellant. (See Seventh Edition, at pages 300 to 302). An author's view which is opinion based on certain basic assumptions only cannot be a substitute for evidence let in to prove a fact - which invariably depends upon varied facts, and according to the peculiar nature of a particular case on hand. The only inevitable conclusion is that the plea is without any substance, apart from the fact that the said plea pertaining to mere appreciation of facts was not raised before the High Court."
38. Section 145 of the Indian Evidence Act deals with the contradictions in the statement of the witness. The issue as to whether a witness can be contradicted by referring to the testimony of the other witness or by referring to his own previous statement, has been considered in the case of Mohan Lal Ganga Ram Gehani Vs. State of Maharashtra, reported in 1982 (1) SCC 700 which has been followed in the case of Chaudhri Ramjibhai Narsanghbhai Vs. State of Gujarat and Others, reported in 2004 (1) SCC 184. Paragraph 11 of the aforesaid judgement is relevant for the issue in hand. Accordingly, the same is reproduced herein below:-
"11.Coming to the plea that the contradictions noticed by the trial Court were ocular vis-a-vis the medical evidence, we find on reading of the judgment it is not to be so, Section 145 of the Indian Evidence Act, 1872 (in short the " Evidence Act") applies when same person makes two contradictory statements. It is not permissible in law to draw adverse inference because of alleged contradictions between one prosecution witness vis-a-vis statement of other witnesses. It is not open to Court to completely demolish evidence of one witness by referring to the evidence of other witnesses. Witnesses can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with the statement of any other witness. See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839. As was held in the said case, Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145 of the Evidence Act only. Section 145 has no application where a witness is sought to be contradicted not by his own statement but by the statement of another witness."
39. However, testimony of a witness can be assessed with the testimony of another to find out if there is any disparity in between the same for arriving at the conclusion as to whether the witness is reliable and credible or not.
40. Admittedly, P.W. 1 and P.W. 2 are related witnesses as P.W. 1 is the elder brother of the deceased whereas, P.W. 2 Smt. Kubra is the widow of the deceased. There is no other eye-witness of the occurrence. As such, the evidence of such witnesses has to be examined with caution and circumspection as held by the Apex Court in the case of Shyam Sunder Vs. State of Chhattisgarh, as reported in 2002 (8) SCC 39. Paragraph 8 of the judgement deals with the issue as stated above and accordingly, the same is extracted herein below:-
"8. The conviction rests on the ocular evidence of Baldau Ram(PW-2) and Punni Bai (PW-6). We have, in the light of the submissions made by the learned Amicus Curiae, carefully examined the testimony of Baldau Ram. It is true that the relationship between this witness and his family members on the one hand and the accused and his family members on the other was strained and criminal litigation was also pending between the two. The testimony,therefore, needs to be subjected to careful scrutiny. Having done so,we are satisfied to hold that Baldau Ram (PW-2) is a witness of truth. The factum of his having gone to his field for performing agricultural operations and engaging labour is something natural to do as he had gone to his field from early morning, at about 5.30 a.m., accompanied by his cattle to be left for grazing in or near the field. At about 7.30a.m., on the arrival of Kamta (PW-4) on the field he was returning to his home. Having been intercepted by the appellant he returned back to his field and told his brother Kamta (PW-4) of what had happened with him. Kamta (PW-4) supports this part of the version. The subsequent part of the story of his having seen the assault on his brother Radhey Shyam and thereafter, that is, his having reached the house of Kartik Ram to save himself from a likely assault by the appellant on him finds support from the testimony of Kartik Ram(PW-3). The fact that Punni Bai (PW-6) has also her field close to the place of the incident has not been disputed by the defence by making any suggestion to the contrary during her cross-examination. She could have seen the assault on Radhey Shyam by Shyam Sunder from her field situated near the place of occurrence. On alarm being raised by Baldau Ram (PW-2), she reached near the place of the incident."
41. At this stage, it will be useful to reproduce the words of caution given by the Apex Court in paragraph 46 of the judgement in the Case of Brahm Swaroop and Another Vs. State of U.P., reported in 2011 (2) SCC (Cri) 923.
"We have, ourselves appreciated the evidence and reached conclusions similar to the High Court:
(i) If the evidence of the eye-witnesses is trustworthy and believed by the court, the question of motive becomes totally irrelevant.
(ii) Merely because the witnesses were close relatives to the deceased, that cannot be a ground to discard their evidence.
(iii) Prosecution examined an injured witness. His presence on the spot cannot be doubted and his deposition is to be given due weightage.
(iv) In the facts and circumstances of the case there was no conflict between the direct evidence and medical evidence. Even if deceased were having some minor abrasions and contusions for the reason that they might have reacted to the assault and tried to save themselves, cannot create a doubt in the prosecution case about the presence of the witnesses.
(v) The eyewitnesses have been cross-examined thoroughly, but nothing useful to the accused could be elicited from them. The testimony of the eye witnesses is credible and worthy of confidence.
(vi) The acquittal of Brahm Swaroop (A.5) and Jagdish Baggar (A-6) by the trial court cannot be held to be based on cogent reasons. The High court has rightly reversed their acquittals for offences under sections 302/34 and 307/34 IPC, but has rightly upheld their acquittal under Section 25 of the Arms Act."
42. Thus the oral testimony of P.W. 1 and P.W. 2, cannot be discarded on the ground that they are related to the deceased Salamat. However, the Court has to adopt a careful approach and analyse the evidence to find out whether it is reliable and credible. If the defence wants that the evidence of related witness should not be believed, it has to lay down a strong factual foundation for the same and if necessary prove by leading impeccable evidence in respect of false implication by evidence.
43. Seminal facts in the context in which the issues fall for determination have already been taken note of above. We shall now proceed to deal with the issues involved in the present criminal appeal, within the parameters laid down by the Apex Court on the varied aspects of criminal jurisprudence as discussed above to judge the probability of the prosecution case under distinct heads formulated in the earlier part of the judgement.
44. In the appeal in hand, there is on record the eye-witness account of the occurrence in the testimony of P.W.1 Karamat (the first informant) and P.W.2 Smt. Kubra (widow of salamat the deceased) as well as the advantage of the postmortem report (Ext. Ka-10) conducted upon the body of the deceased Salamat.
45. Both P.W.1 and P.W.2, in their testimony, have categorically stated that all the accused persons namely, Sagheer who is allged to be armed with Chaku, Ikrar who is allged to be armed with Suja and Ram Charan who is alleged to be armed with kutta, are alleged to have inflicted blows with the weapons in their hands upon Salamat simultaneously. For ready reference, the relevant portion of the statement-in-chief of P.W.1 (paragraph 2 at page 14 of the paper book) and P.W. 2 (paragraph 1 at page 25 of the paper book) are quoted herein below:-
^^12-8-86 dh jkr dh ckr gS eSa esjk HkkbZ lyker o mldh chch dqojk] nwljk lkSrsyk HkkbZ vlye vius ?kj ds vWaxus esa pkjikbZ;ksa ij lks jgs FksA ?kj ds njokts ds rjQ Fkk ftlesa fMfc;k ty jgh FkhA ?kj ls esjk eryc dksBs ls gSA ml fMfc;k ls jks'kuh gks jgh FkhA esjs ?kj ds ckgj ds njokts ij VfV;kW yxh gqbZ FkhA tc eqfYteku us VfV;k gVkbZ rks mldh vkgV ls esjh vkW[k [kqyh Fkh rFkk esjs ?kj okyks dh vkW[k [kqyh FkhA ml oDr jkr ds 1 cts dk oDr gksxkA geus ns[kk fd lxhj gkFk esa Nwjh fy;s] bdjkj ds gkFk esa cYye vkSj jkepju gkFk esa dqV~Vk fy;s lyker dh pkjikbZ ds ikl vk x;sA lxhj us dgk fd iqjkuh nq'euh dk vkt cnyk ysaxs] lyker dks vkt fucVk nksA ;g dgdj eqfYteku us vius vius gfFk;kjks ls lyker dks ekjuk 'kq: dj fn;kA lyker ml oDr pkjikbZ ij gh ysVk gqvk FkkA ge yksxksa us 'kksj epk;k FkkA gekjs 'kksj ij eksgEen tehj] vlxj 'kkg VkspZ o MUMs ysdj nkSM+ dj vk;s eqfYteku mUgsa ns[kdj vius vius gfFk;kj fy;s HkkxsA eSus] esjs NksVs HkkbZ vlye us] vlxj 'kkg o eksgEen tehj us eqfYteku dk ihNk dqN nwj rd fd;k FkkA ysfdu eqfYteku taxy dh rjQ dks Hkkx x;s FksA l'kiFk C;ku fd;k fd eSa rhuksa eqyfteku gkftj vnkyr jkepju] bdjkj o lxhj dks eSa tkurh gwWA ;g gekjs gh xkWo ds gSA vc ls yxHkx ,d lky igys dh ckr gS] ?kj ds vkaxu esa esjs tsB djker] lyker] vlye o eS lks jgs Fks pkjikbZ;ksa ijA fMfc;k rkd esa] dksBs esa fnokj esa rkd esa ty jgh Fkh mldh jks'kuh gks jgh FkhA jk=h ds 1&cts dk le; FkkA njokts dh VV~Vh gVkbZ mldh vkokt ls gekjh vkW[k [kqyhA ;g rhuksa eqyfteku gkftj vnkyr gekjs vkWxu esa vk;sA jke pju ds ikl dqVVk lxhj ds ikl Nqjh o bdjkj ds ikl lwtk FkkA lxhj us dgk fd vkt igyh nq'keukbZ dk cnyk ysdj lyker dks vkt fuiVk nksA bUgksaus vius&vius gfFk;kjksa ls esjs 'kkSgj ij okj djus 'kq: dj fn;sA geus nqUn cgqr fd;k ij eqyftek ugha ekusA fQj eqyfteku ekj dj ?kj esa ls fudysA xkWo esa ls nks vkneh eksgEen lxhj o vlxj 'kkg ?kj esa vk;s] muds ikl ykBh o cSVfj;kW FkhA eqyfteku ?kj esa ls fudy jgs Fks vkSj og vk jgs FksA budk ihNk djker vlxj] tehj vkSj vlye us budk ihNk fd;k FkkA tc ;g yksx ihNk dj ds okil vk;s rks ns[kk fd lyker pkjikbZ ij [kre gks pqdk FkkA**
46. P.W. 2 Smt. Kubra, in her testimony, has categorically stated that Ikrar and Sagheer were assaulting from the side of the feet whereas, Ram Charan was assaulting from the side of the head. The relevant portion of the statement-in-chief of P.W.2 at page 27 of the paper book is quoted hereunder:-
^^VfV;k ds gVkus vkokt ls esjh vkW[k [kqy xbZ FkhA eSusa 3 vkneh gfFk;kjksa lfgr ?kqlrs ns[ksA eSusa ns[krs gh mUgsa 'kksj Hkh epk;k vkSj ph[k Hkh ekjhA esjs 'kksj ij lyker ugha mBs mu ij igyk okj lksrs ij gh iM+k FkkA rhuksa us vius vius gfFk;kjksa ls ,d lkFk ekjuk 'kq: fd;k FkkA lyker mB ugha ik;s FksA ysVs ysVs ej x;s FksA bdjkj o lxhj iSjksa ds rjQ ls ekj jgs FksA jkepju flj dh rjQ ls ekj jgk FkkA eSa vUnj dks Hkkx x;h FkhA tc esjs ifr dks ekj fn;k rks eSa vUnj dks Hkkx xbZA eq>s gks'k ugha jgk Fkk] irk ugha eSa dgkW Fkh djhc 1@2 ?kaVs esa gks'k vk;k FkkA 1@2 ?kaVs eSa csgks'k dksBs esa iM+h jgh FkhA cngokl iM+h jgh FkhA esjs 'kksj ij djker tkx x;s FksA tc og ej pqds Fks rks eSa dksBs ls ckgj fudy dj vk;h FkhA dksBs esa ls eSa vius vki ckgj fudy djh vk;h Fkh lyker dks ekj nsus ds ckn eSa dksBs esa xbZ FkhA**
47. Injury Nos. 2,3,5,6,7 and 8 are on the left hand side, whereas, injury Nos. 1 and 4 are on the head and injury No. 9 is on the right shoulder. There are no punctured wounds or stabbed wounds on the body of the deceased Salamat which could have been caused by Suja or Chaku. Thus, the prosecution story that all the three accused persons started assaulting Salamat simultaneously with the weapons in their hands, does not find corroboration with the medical evidence on the record. As such the ocular version of the manner of assault is wholly inconsistent with the medical evidence. The medical evidence therefore does not support the ocular version of the occurrence as described in the oral testimony of the two eye-witnesses P.W.1 and P.W. 2. The Court below has not adverted to the aforesaid discrepancy in the prosecution case which creates a serious doubt regarding the truthfulness of the prosecution case viz-a-viz the truthfulness of the two eye-witnesses i.e. P.W.1 and P.W.2.
48. Another circumstance which creates a doubt regarding the probability of the prosecution case is the unnatural behaviour of the persons alleged to be present at the time and place of occurrence. We have already referred to the statement of P.W. 1 and P.W.2, while examining the trustworthiness of the aforesaid two witnesses in the light of the medical evidence on record. We need not repeat the same. However, the fact remains that the persons alleged to be present at the time of occurrence becomes shrouded in suspicion on account of the fact, that at the time of the alleged incident four persons namely, P.W. 1 Karamat, P.W. 2 Smt. Kubra, Salamat (deceased) and Aslam cousin younger brother of Karamat are alleged to be present. According to the version in the F.I.R., as well as the testimony of the eye-witness namely, Karamat Shah P.W.1 all the four persons woke up on account of the sound generated by the removal of the tatiya. No resistance was offered by the persons present to the accused persons when they are alleged to have assaulted Salamat Shah. P.W. 2 Smt. Kubra, in her statement, has categorically stated that as the Tatiya was removed, she woke up and specifically requested the accused persons to forgive Salamat by shouting, but even then no response came forward from the other two persons namely, Karamat and Aslam who are also alleged to be present, which is very unnatural. No injuries or blood marks are found upon the body/clothes of the persons alleged to be present at the time of occurrence. Thus, the conduct of P.W. 1 and P.W.2 as well as Aslam who are alleged to be present at the time and place of occurrence is very unnatural. It is for the prosecution to explain the same which the prosecution has miserably failed. The silence/inaction on the part of the persons alleged to be present at the time and place of occurrence and yet not responding to the occurrence by taking any measure to save Salamat, is a circumstance which creates a serious doubt in the prosecution case and therefore, the prosecution story as stated in the F.I.R. as well as the testimony of the two eye-witnesses, does not inspire confidence. The court below erred in not taking into consideration this vital aspect of the matter which creates a serious doubt about the prosecution case as well as the credibility and reliability of the two prosecution witnesses.
49. We shall now deal with the question regarding the alleged presence of P.W.1 and P.W.2 at the time and place of occurrence. According to the learned counsel for the appellants, the presence of P.W. 1 Karamat Shah and P.W. 2 Smt. Kubra at the alleged place and time of occurrence is highly doubtful. At this stage, we may refer to the relevant portion of the statement-in-chief of P.W.2 Smt. Kubra, which is paragraph 5 at page 26 of the paper book:-
^^pkjikbZ;kW lc iwoZ if'pe iM+h Fkh] if'pe dks lj Fkk iSj iwoZ dks FksA lcls igkM+ dks vlye dh pkjikbZ Fkh fQj nf{k.k dks dkjker dh pkjikbZ FkhA mlls nf{k.k esjs 'kkSgj dh pkjikbZ Fkh vkSj mlds nfD[ku dks esjh pkjikbZ FkhA pkjks pkjikbZ;ksa esa nks&nks dne dk Qklyk FkkA nksuks dksBs iwoZ :[ks gS] ,d nf{k.k dks gS ,d igkM dks gSA nksuksa ls fudyus dk ,d&,d gh njoktk gSA esjh pkjikbZ nf{k.k okys dksBs ds lkeus iM+h FkhA vkSj vlye dh pkjikbZ igkM okys dksBs ds lkeus iM+h FkhA dkjker dh Hkh pkjikbZ igkM okys dksBs ds lkeus FkhA lyker dh pkjikbZ nf{k.k okys dksBs ds lkeus FkhA esjh pkjikbZ nf{k.k okys dksBs ds njokts ls igkM dh rjQ FkhA ;g pkjks pkjikbZ;kW tc njksxk th vk;s oSls gh iMh FkhA tSls iM+h gqbZ FkhA**
50. P.W. 1 Karamat is the Jeth (elder brother of the husband) of Smt. Kubra whereas, Smt. Kubra is the bhayahu (wife of younger brother) of P.W. 1 Karamat. P.W. 2 Smt. Kubra in her oral testimony has clearly stated with mathematical precision that all the four persons who are alleged to be present at the time and place of occurrence were sleeping together on different cots, spaced at a distance of two feets in the courtyard. Smt. Kubra is a young muslim lady. Her age at the time of occurrence would be 24 years. Smt. Kubra performs purdah with Karamat being her Jeth as is evident from her statement in chief in paragraph 3 at page 26 of the paper book, which is as under:-
^^ xokg us vfHk;qDr jke pju ij lgh gkFk j[kkA eSa xkao esa inkZ djrh gwW djker 'kkg ls esjk inkZ gS vYgnk vYgnk pkjikbZ;ksa ij] djker ls inkZ gksrs gq, Hkh ge vkaxu esa lks tkrs FksA yk'k ij lqcg dks bdjkj o jkepju ugha vk;s FksA dksbZ ugha vk;k FkkA ;kuh xkao dk dksbZ vkneh ugha vk;k FkkA tc njksxk th yk'k ds ikl lqcg 8 cts vk, rks eSa o vlye yk'k ds ikl Fks esjk tsB djker Hkh Fkk vkSj dksbZ ugha FkkA dry gksus ds ckn ls tc rd njksxkth ekSds ij vk;s rc rd djker Hkh yk'k ds ikl jgsA**
51. Thus it is impossible to believe that Smt. Kubra was also sleeping along with her Jeth and others in the courtyard of the house where the incident is alleged to have occurred.
52. It has come in the testimony of P.W. 2 Smt. Kubra that the cots were placed in east-west direction. The head was in the west and the feet was towards the east. Thus, the front portion of the feet would be pointing towards the west i.e. Kaba which is the Sanctum Sanctorum for muslims. It is impossible to believe that a muslim will sleep in that way which further creates a doubt regarding the presence of P.W.1 and P.W.2 at the time and place of occurrence.
53. We may at this stage also refer to the facts relating to the threat perception which is said to be the basis for the presence of Karamat and Aslam in the house of Salamat (deceased). The reason assigned for the presence of Karamat Shah and Aslam in the house of Karamat is the alleged threat perception. There is no such evidence on the record to show the measures undertaken to meet the alleged threat. Nothing has been adduced in evidence by the prosecution to show the arrangement in defence of the alleged threat. It has come in evidence that there is another house of Karamat Shah situate in the midst of village abadi but leaving the safety of the same a solitary hamlet situate far away from the village abadi was chosen for the night, on account of the alleged threat which is hypothetical. P.W. 1 Karamat in his testimony has stated that because of the enmity Lathi and Danda were kept in the house were all the four persons are alleged to be sleeping at the time of occurrence whereas no such material was found by the I.O. when he inspected the house on 13.8.1986 and a memo regarding the same (Ex. Ka-16) was prepared.
54. To ascertain the genuineness of the aforesaid suspicion circumstance relied upon by the appellants' counsel, whereby, the very incident has been doubted, we ourselves re-examined the oral testimony of P.W. 1 and P.W.2. P.W.1 is the real elder brother of the deceased and P.W.2 is the widow of the deceased. It is impossible to understand as to how the elder brother or the widow in front of whom the brother/husband has been murdered, was not even picked up by them nor any attempt was made to save the life of the victim. It is the specific prosecution case that Karamat Shah, the elder brother of the deceased, and Aslam the cousin younger brother of Karamat slept in the house of Salamat because of the alleged threat perception. If this was the intention towards Salamat, yet no help was offered to Salamat at the time of assault, even when P.W.1 and P.W.2 on their own showing, are alleged to be present and further a total abeyance on the part of these two witnesses to offer any help to the injured Salamat, as no blood marks have been found on their body or clothes, is a strong suspicious circumstance, which the prosecution miserably failed to explain. The prosecution could not substantiate the very story which it set out against the accused appellant. The Court below accepted the occurrence to be true only on account of the alleged eye-witness account of P.W.1 and P.W. 2 without discussing their trustworthiness and credibility in the light of the fact and circumstances as noticed by us herein above. We are therefore, are of the firm opinion that the incident which is alleged to have been the cause of death of Salamat, is wholly doubtful as the prosecution has miserably failed to prove the occurrence in the manner in which it is alleged to have occurred beyond shadow of doubt.
55. On the question of contradiction in the testimony of P.W. 1 Karamat, we may refer to paragraph 12 of the examination-in-chief of P.W.1 at page 21 of the paper book, which is to the following effect:-
^^12& geus ?kj ls 50&100 dne rd ihNk fd;k FkkA ;g yksx nf{k.k dh rjQ dks Hkkxs FksA bu yksxks us tc gekjk lkeus fd;k rks ge ykSV vk;s FksA ihNk djrs le; esjs ikl MaMk Fkk] vlye [kkyh gkFkk FkkA vlxj 'kkg ds ikl o tehj xokg ds ikl cSVfj;kW o MUMs FksA eqdcyk djus ij ge okil vk x;s Fks A vkt [kqn dgk fd eqdcyk djus dh fgEer gksrh rks ?kj esa D;ksa djus nsrsA xkWo ls dqN ennr feyh Fkh bl fy;s geus mudk ihNk fd;k FkkA**
56. This part of the statement of P.W. 1 runs contrary to the statement contained in paragraphs 2 and 3 of the statement-in-chief of P.W.1 which are at page 15 of the paper book.
^^2& 12-8-86 dh jkr dh ckr gS eS esjk HkkbZ lyker o mldh chch dqojk] nwljk lkSrsyk HkkbZ vlye vius ?kj ds vaxus esa pkjikbZ;ksa ij lks jgs FksA ?kj ds njokts ds rjQ Fkk ftlesa fMfc;k ty jgh FkhA ?kj ls esjk eryc dksBs ls gSA ml fMfc;k ls jks'kuh gks jgh FkhA esjs ?kj ds ckgj ds njokts ij VfV~V;kW yxh gqbZ FkhA tc eqfYteku us VfV;k gVkbZ rks mldh vkgV ls esjh vkaW[k [kqyh Fkh rFkk esjs ?kj okyks dh vkW[k [kwyh FkhA ml oDr jkr ds 1 cts dk oDr gksxkA geus ns[kk fd lxhj gkFk esa Nwjh fy;s] bdjkj ds gkFk esa oYye vkSj jkepju gkFk esa dqV~Vk fy;s lyker dh pkjikbZ ds ikl vk x;sA lxhj us dgk fd iqjkuh nq'euh dk vkt cnyk ysaxs] lyker dks vkt fucVk nksA ;g dgdj eqfYteku us vius vius gfFk;kjksa ls lyker dks ekjuk 'kq: dj fn;kA lyker ml oDr pkjikbZ ij gh ysVk gqvk FkkA ge yksxks us 'kksj epk;k FkkA gekjs 'kksj ij eksgEen tehj] vlxj 'kkg VkspZ o MUMs ysdj nkSM+ dj vk;s eqfYteku mUgsa ns[kdj vius vius gfFk;kj fy;s HkkxsA eSus] esjs NksVs HkkbZ vlye us] vlxj 'kkg o eksgEen tehj us eqfYteku dk ihNk dqN nwj rd fd;k FkkA ysfdu eqfYteku taxy dh rjQ dks Hkkx x;s FksA 3& tc ge ihNk djds ykSV dj ?kj vk;s rks esjk HkkbZ lyker ej pqdk FkkA jkr dks Mj dh otg ls eS jiV fy[kkus ugha x;k FkkA lqcg gksus ij 5-1@2&6 cts eSa jiV fy[kkus vthe uxj Fkkus x;k FkkA ogkW ij Fkkus ds ckgj jkes'oj dk ,d gksVy gS tgkW eSus jkes'oj dks cksydj fjiksVZ fy[kkbZ FkhA tks eSus cksyk Fkk ogh mlus fy[kk FkkA fy[kdj i<+dj eq>dks lquk;k FkkA lquus ds ckn eSus ml ij vius nLr[kr fd;s FksA fjiksVZ dks ns[kdj dgk fd ;gh og fjiksVZ gS bl ij esjs nLr[kr gSA bl fjiksVZ ij bDt d&1 Mkyk FkkA ;g rgjhj eSaus Fkkus ij ys tk dj gsM lkgc dks nh FkhA**
57. In the light of the aforesaid, we raised a pointed query to the learned A.G.A. as to how the aforesaid recitals contained in the statement-in-chief, as well as the examination-in-chief of P.W.1 could be reconciled and why it should not be treated as contradiction. However, not much could be stated by the learned A.G.A.
58. This leads us to examine the issue regarding the failure on the part of the prosecution to adduce Aslam and Mohammad Zamir. It is the admitted prosecution case that at the time and place of occurrence, four persons namely, P.W.1 Karamat, P.W.2 Smt. Kubra, Salamat and Aslam were sleeping together. Upon the happening of the occurrence, alarm was raised on which P.W.3 Asghar and Mohammad Zamir came on the spot. Admittedly, the court below has disbelieved the testimony of P.W.3 Asghar whereas, Mohammad Zamir and Aslam have not been produced by the prosecution, even though they are alleged to be eye-witness or witness of fact. No reason has come forward from the prosecution for not adducing these two witnesses who could have corroborated the testimony of P.W.1 and P.W.2. As already noted above, P.W.1 and P.W.2 are related witnesses and their testimony has to be accepted with caution. It does not stand to reason to believe that the persons who slept with the deceased because of the threat perception, will not depose as a witness against those who are alleged to have committed the crime. The failure on the part of the prosecution to adduce the aforesaid persons as witnesses in proof of the prosecution case, remains an unexplained circumstance creating a serious doubt in the truthfulness of the prosecution case.
59. Apart from the aforesaid, the Doctor who conducted the postmortem upon the body of the deceased was not adduced in evidence even when it was for the prosecution to prove the very case it alleged against the accused appellants. Simply because the postmortem report was admitted in evidence and marked as an exhibit, does not wipe out the necessity of adducing the doctor who conducted the postmortem. It was for the prosecution to prove by clinching evidence of the doctor regarding the duration of the injuries as well as the weapons by the use of which the injuries found on the body of the deceased could have been caused. While dealing with the medical evidence and ocular version of the case in hand, we have already held that there are no punctured wounds or stabbed wounds on the body of the deceased. The presence therefore of the accused Sagheer and Ikrar is not established. To prove the injuries of incised wound that could have possibly been caused by a small axe or a knife was not proved by the examination of the Doctor, who conducted the post-mortem or any other expert medical evidence. Thus, the presence of the accused Ram Charan does not get corroborated either by the ocular version of the two eyewitnesses or the medical evidence on the record. The incised wounds have not been proved to have been caused by the knife as no medical expert evidence supporting the same was adduced. The injuries by weapons in the hands of the two other accused which could have been punctured or stabbed wounds are clearly ruled out as per the post-mortem report. Thus, the aforesaid remains an unexplained circumstance for which no plausible explanation has been offered by the learned A.G.A. Rest of the contentions raised by the learned counsel for the appellants regarding the non-production of the witnesses of the panchayatnama as well as the witnesses of the fard, have been raised only to be rejected as nothing serious will turn upon the failure on the part of the prosecution to produce them.
60. This leads us to the consideration of the proposition that the F.I.R. is ante-timed. Learned counsel for the appellants has submitted before us that according to the check F.I.R. (Ex. Ka-12) the same appears to have been lodged by P.W. 1 Karamat Shah the first informant at 6:55 am, whereas, P.W. 2 Smt. Kubra widow of the deceased Salamat Shah in her statement in chief in paragraph 2 has categorically stated that after the incident had occurred Karamat was near the dead body till the arrival of the Sub-Inspector which clearly proves the ante-timing of the F.I.R. Extending his submission, the learned counsel for the accused-appellants further submitted that no attempt was made by the prosecution to explain the aforesaid anomaly regarding the time of the lodging of the F.I.R. According to the recital contained in the F.I.R. the incident is alleged to have occurred at 1:00 pm, whereas, the F.I.R. is alleged to be made on 13.8.2006 at 6:55 am. The reason assigned in the F.I.R. for the delay in lodging the same is the threat whereas, P.W.1 Karamat in his testimony has stated that on the alarm being raised on the happening of the occurrence, Mohammad Zamir and Asghar Shah came at the place of occurrence. P.W.1 Karamat in his oral testimony, in paragraph 12 to which we have already referred to earlier, has stated that on account of the help offered from outside, the accused persons were chased in the dead of night. There appears to be a serious contradiction in the prosecution case in the light of the above mentioned facts. It does not stand to reason as to why the same set of persons who came running down to help P.W.1 Karamat will not accompany him to the police station for lodging the F.I.R. The entire testimony of P.W.1, on this score, is completely silent which again creates a serious doubt regarding the timing of the F.I.R. The statement of P.W.2 to the effect that Karamat remained with her till the arrival of the Investigating Officer, has not been explained by getting P.W.2 declared hostile nor she has been recalled under section 311 Cr.P.C. to explain the same. It was for the prosecution to remove any doubt regarding the timing of the F.I.R. which the prosecution has miserably failed to perform.
61. Thus, having considered the submissions made by the learned counsel for the appellants, and after evaluating the evidence on the record in the light of the parameters of evaluation of evidence by a court of appeal, as laid down by the Apex Court the inescapable conclusion is that the court below has erred in convicting the accused appellants by simply believing the testimony of P.W.1 and P.W.2 as reliable and credible. The Court below has not adverted to the various circumstances which we have referred to and discussed, which create a serious dent in the prosecution case by making it highly improbable.
62. We are, therefore, of the considered opinion that the appeal must succeed. Accordingly, the criminal appeal succeeds and is allowed. The judgement and order dated 12.10.1987 passed by the Court below i.e. the Ist Additional Sessions Judge, Rampur in Sessions Trial No. 254 of 1986 (State Vs. Sagheer and others) under sections 449, 302/34 I.P.C. is set aside. The appellants are acquitted of the charges framed against them. The appellant No.1 Sagheer and the appellant No. 2 Ikrar are on bail. Their bail bonds are cancelled and the sureties are discharged.
Order Date :- 9.2.2018 Arshad