Allahabad High Court
Israfeel vs State Of U.P. on 30 May, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on : 08.03.2022 Delivered on : 30.05.2022 Court No. - 1 Case :- CRIMINAL APPEAL No. - 36 of 2009 Appellant :- Israfeel Respondent :- State of U.P. Counsel for Appellant :- J.N. Singh,Avdhesh Kumar Singh Yadav,Manendra Nath Rai,Shraddha Tripathi,Vijay Prakash Srivastava Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha, J.
Hon'ble Mrs. Saroj Yadav, J.
Per Ramesh Sinha, J. for the Bench
1. The appellant- Israfeel and co-accused Kamil and Manjoor were tried by Additional Sessions Judge/ Fast Track Court No.2, Bahraich in Sessions Trial No. 58 of 2001 : State Vs. Israfeel and Ors., arising out of Case Crime No. 115 of 2000, under Sections 364, 302, 201 I.P.C., police station Baundi, District Bahraich.
2. Vide judgment and order dated 18.11.2008 passed in Sessions Trial No. 58 of 2001, the Additional Sessions Judge/ Fast Track Court No.2, Bahraich, acquitted the co-accused persons, Kamil and Manjoor, giving benefit of doubt, for the offence punishable under Section 364/34, 302/34, 201 I.P.C. but convicted and sentenced the convict/ appellant- Israfeel in the manner as stated herein below :-
"i. Under Section 302 I.P.C. to undergo imprisonment for life with fine of Rs.2,000/- and in default of payment of fine to further undergo one year of additional simple imprisonment;
ii. Under Section 364 I.P.C. to undergo rigorous imprisonment of ten years with a fine of Rs.1,000/- and in default of payment of fine to further undergo six months of additional simple imprisonment; and iii. Under Section 201 I.P.C. to undergo rigorous imprisonment of five years with a fine of Rs.1,000/- and in default of payment of fine to further undergo six months of additional simple imprisonment."
All the sentences were directed to run concurrently.
3. Feeling aggrieved by his conviction and sentence vide aforesaid judgment and order dated 18.11.2008, convict/ appellant, Israfeel, preferred the above-captioned appeal before this Court.
4. It is pertinent to mention that State of U.P. has not filed any appeal against acquittal of co-accused persons, Kamil and Manjoor, for the offence punishable under Section 364/34, 302/34, 201 I.P.C.
5. As per the prosecution case, the informant Ibrahim (P.W.1), who is the brother of deceased Rashid, had lodged F.I.R., presenting written report (Ext. Ka.1) on 17.11.2000 at police station Fakarpur, district Bahraich, alleging therein that on 17.11.2000, at around 1:30 p.m., when he had gone for Namaz at Dhakerwa Mosque, Rahmulla (P.W.3), son of Gulam, resident of his village, came at Dhakerwa Mosque and informed him that his brother Rashid (deceased) was caught hold by Israfeel (convict/appellant) and two other persons accompanied with Israfeel (convict/ appellant), pierced bodkin (sooja) in the throat of his brother (deceased Rashid) and also took away his brother (deceased) on a bicycle. The said incident was also witnessed by one Lalta, (brother of C.W.1 Samwali Prasad), son of Saktu and his brother Naseem (P.W.2), son of Kallu, resident of Natthupur Mauja Dhakerwa, and many other people of the village. After Namaz when Imam (priest) got up, he immediately went to village Nandval and from P.C.O. of one Ramesh Gupta, he telephonically informed about the aforesaid incident to police station Baundi and police station Fakarpur and also asked for help. Thereafter, he sent his men all around the area in search of his brother (deceased Rashid). However, when he reached village Fakarpur after chasing he saw that Israfeel (appellant) had run away, after throwing his brother Rashid (deceased) in a pond near Ramleela ground. The dead body of his brother Rashid (deceased) was lying in the pond.
6. The written report (Ext Ka.1) was got scribed by informant Ibrahim (P.W.1) by a person outside the police station Fakarpur and after affixing his signature thereon, reached the police station Fakarpur and lodged F.I.R.
7. The evidence of P.W. 5-Constable Moharrir Sudhir Kumar Tiwari shows that on 17.11.2000, he was posted as Constable Moharrir at police station Fakarpur. On the said date, at around 4:30 p.m., on the basis of written report (Ext. Ka.1) submitted by Ibrahim (P.W.1) at police station Fakarpur, he registered Case Crime No. Nil/2000 under Section 302 I.P.C at police station Baundi. He proved the chik F.I.R. (Ext. Ka.3) and G.D. (Ext. Ka.4).
8. The evidence of P.W.6- S.S.I. Shri Malkhe Dixit shows that the investigation of the case was conducted by Sri Virendra Singh Yadav, who subsequently died. In his examination-in-chief, P.W.6 had deposed before the trial Court that on the date of the incident, i.e. 17.11.2000, he was posted as Sub-Inspector at police station Fakarpur and on the said date, at 4:30 p.m., he conducted ''Panchayatnama' of dead body of the deceased Rashid. He sent the dead body of the deceased for post-mortem in a sealed condition. He proved the ''Panchayatnama' (Ext. Ka.5). He seized the weapon of assault, i.e. iron bodkin (sooja), under a recovery memo (Ext. Ka.7). He further deposed that he was acquainted with the handwriting and signature of the Investigating Officer of the case, Sri Virendra Singh Yadav, who died. The recovery memo (Ext. Ka. 8) pertaining to blood soaked soil and plain soil was in the handwriting and signature of the Investigating Officer of the case, Virendra Singh Yadav. He proved the photo lash (Ext. Ka.9), site plan (Ext. Ka. 10, Ext. Ka. 11, Ext. Ka.12), and charge-sheet Nos. 96/2000 (Ext. Ka.13) and 96-A of 2000 (Ext. Ka. 14) prepared by the Investigating Officer Sri Virendra Singh Yadav.
P.W.6 had further deposed that he sent the letter to C.M.O. for post-mortem (Ext. Ka. 15), Form No.33 (Ext. Ka. 16), letter to R.I. (Ext. Ka.17), specimen seal (Ext. Ka.18, Ext. Ka.19) under his handwriting and signature. He also proved the weapon of assault, i.e. blood stained bodkin (sooja) (Ext. Ka. 3) as well as blood stained pants of the appellant- Israfeel (Ext.-4).
In his cross-examination, P.W.6 had deposed before the trial Court that in the year 2000, he was posted at police station Fakarpur. F.I.R. related to deceased Rashid was registered at his police station Fakarpur. The information about the death of deceased Rashid came to his knowledge from the written report submitted by Ibrahim (P.W.1). In the written report of Ibrahim (P.W.1) it was also mentioned that dead body of deceased Rashid was thrown by appellant Israfeel in the pond situated in Ramleela ground (Fakarpur Market). When he reached at the spot (near the dead body), he did not find accused/appellant Israfeel there.
P.W.6 had further deposed that accused Israfeel was found on the way before he reached near the dead body. The appellant was arrested and sent to police station. The blood stained bodkin (sooja) was recovered on the spot. A lot of blood was present on the body of the convict/appellant when he was arrested. At first glance, appellant Israfeel seemed to be as an accused. On being asked, he (appellant) told his name as Israfeel. He recovered bodkin (sooja) from the right hand of accused/ appellant Israfeel in midway and he prepared memo (Ext. Ka. 6) of the recovered bodkin (sooja), on the spot of recovery. He admitted the fact that in the recovery memo of bodkin (sooja) (Ext. Ka-6), which was in his handwriting and signature, the place of recovery of bodkin (sooja) and place of arrest of the accused/appellant has not been mentioned. The first witness of the memo was Subhash Chandra Verma, resident of village Dhakerwa, whereas second witness of memo was Sanwali Prasad (C.W.1), resident of Saktupur, police station Baundi. There were no witnesses of this memo belonging to Fakarpur market, as he made the people as witness whom he met on the spot. The deceased Rashid was resident of village Dhakerwa and was real brother of informant Ibrahim (P.W.1). There was no signature of any Constable on the recovery memo of bodkin (sooja), however, on the memo of bodkin (sooja) (Ext. Ka-6), his signature was there (P.W.6), Subhash Chandra and Sanwali (C.W.1). He denied the suggestion that he prepared recovery memo Ext. Ka-6 at the instance of the informant and other witnesses.
P.W.6 had further deposed that in the memo of clothes (Ext. Ka-7), there were signatures of witnesses Uttam Kumar and Ali Hasan, residents of village Natthupur police station Baundi, however, there was no signature of any constable on it. There were different witnesses of the memo of bodkin (sooja) dated 17.11.2000 and memo of clothes dated 17.11.2000. The witnesses were resident of police station Baundi. He further deposed that though he prepared memos Ext. Ka-6 and Ext. Ka-7 but when he prepared Ext. Ka-6, no crime number was marked on the F.I.R relating to the incident.
P.W.6 had further deposed that ''Panchayatnama' (Ext. Ka-5) was in his handwriting but case crime number was not mentioned on it. All the witnesses of ''Panchayatnama' were residents of village Natthupur, Dhakerwa, police station Baundi. The ''Panchayatnama' was prepared on the spot.
9. The post-mortem of dead body of Rashid (deceased) was conducted on 18.11.2000 at 03:15 p.m., in District Hospital, Bahraich, by Dr. R.C. Singh (P.W.4), who found the following ante-mortem injuries on the dead body of Rashid :-
"Ante-mortem injuries of deceased Rashid :
1. Multiple punctured wounds in the front of the neck in an area of 12 cm X 12 cm, of varying sizes 1 cm X 0.5 cm to 1.5 cm X .70 cm, of varying depth. Underlying muscles, trachea, blood vessels and oesophagus found punctured and lacerated.
2. Multiple punctured wounds on back of neck, in an area of 9 cm X 3 cm, of muscle deep, situated 2 cm below occipital prominence, 6 cm behind Rt. Ear, 5 cm behind Lt. Ear.
The cause of death spelt out in the post-mortem report by P.W.4 Dr. R.C. Singh was shock and hemorrhage as a result of ante-mortem injuries sustained by the deceased.
10. P.W. 4-Dr. R.C. Singh, in his examination-in-chief, had reiterated the aforesaid cause of death of the deceased and deposed before the trial Court that on 18.11.2000, he was posted as Medical Officer at District Hospital, Bahraich. On the said date, he conducted the post-mortem of dead body of deceased Rashid, which was brought in sealed condition by Constable Ram Prakash Singh and Rajendra Nath. He further deposed that deceased Rashid was aged about 23 years; rigor mortis was present in both lower limbs and upper limbs; eyes were closed; mouth was half opened; and he died a day ago. He proved the post-mortem report (Ext. Ka-2). On internal examination, he found that urinary bladder was empty; faecal matter and foul smelling gases were filled in large intestine; oesophagus was found lacerated; blood vessels of the neck was found lacerated; and food pipe was also found punctured. He further deposed that deceased Rashid possibly died on 17.11.2000 at 01:30 p.m. and both the ante-mortem injuries could be inflicted on the person of the deceased at the place of occurence by iron bodkin (sooja).
In his cross-examination, P.W.4 had deposed before the trial Court that injuries inflicted on the neck of the deceased could not be caused by falling on any sharp edged object and such injuries could not even be inflicted by fall.
11. The case was committed to the Court of Sessions by the Chief Judicial Magistrate, Bahraich vide order dated 20.04.2000 and the trial Court framed charges against accused persons including convict/appellant for the offence punishable under Sections 302, 201, 364/34 I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defense was of denial.
12. During trial, the prosecution in support of its case examined six witnesses, namely, P.W.1- Ibrahim, who is the informant and brother of the deceased; P.W.2- Naseem, who is the brother of P.W.1 and eye-witness of the incident; P.W.3- Rahmulla, who is independent witness; P.W.4- Dr. R.C. Singh, who conducted post-mortem examination of the corpse of the deceased Rashid; P.W.5- Constable Moharrir Sudheer Kumar Tiwari, who lodged FIR on the basis of written report submitted by informant Ibrahim; and P.W.6-SSI Shri Malkhe Dixit, who conducted the ''Panchayatnama' of the dead body of the deceased Rashid and sent it for post-mortem. The trial Court had also examined Sanwali Prasad as C.W.1; Raeesh as C.W.2 and Maksood as C.W.3.
13. Reverting to the testimony of the witnesses of fact, P.W. 1-Ibrahim, in his examination-in-chief, had deposed before the trial Court that his brother's name was Rashid (deceased). He and his brother Rashid (deceased) used to work in Delhi and appellant Israfeel also worked in Delhi. From Delhi, they got acquainted with each other, on account of which, Israfeel (convict/appellant) used to visit his village.
P.W.1 had further deposed that about 1½-2 months ahead of the incident, some altercation took place between him (P.W.1), his brother (deceased- Rashid) and Israfeel (convict/appellant) on the issue of money transactions. His brother Rashid (deceased) gave money to Israfeel (appellant). At that time, convict/ appellant Israfeel (appellant) told his brother Rashid that "ऐसा करोगे तो मैं तुम्हें मार दूंगा", to which his brother (Rashid) told to Israfeel (convict/appellant) that "तुम क्या मारोगे".
After about four years of this incident, he went to Dhakerwa mosque for Namaz at around 1:15 p.m. During the course of ''Namaz', he heard the voice of Rahmulla (P.W.3) of his village that Israfeel and his two companions caught his brother (deceased Rashid) and assaulted him. After offering ''Namaz', he asked everyone for help. Thereafter, he went to Haar near Mahua tree situated in the outskirts of Dhakerwa village where Israfeel (appellant) and his two companions were said to have caught his brother (deceased Rashid), but he did not find anyone there. However, the people present there told him (P.W.1) that Israfeel (appellant) and his two companions took away his brother (Rashid- deceased) towards eastern side on a bicycle. From there, he rushed towards Gupta P.C.O. at Nandval, from where he telephonically informed about the incident to police station Baundi-Kaiserganj as well as at police station Fakarpur. After that he came to Dhakerwa village and from there, he went towards Fakarpur village to search his brother. When he was about to reach Fakarpur, he saw that many people had gathered near Fakarpur culvert (puliya). The people present there told him (P.W.1) that accused persons (including convict/ appellants), after killing his brother (Rashid -deceased), took him on bicycle and went towards the Fakarpur market just now. He, thereafter, immediately rushed towards Fakarpur market.
P.W.1 had further deposed that on the culvert (puliya), where the people were gathered and told him that his brother Rashid (deceased) was killed there, he saw stains of blood there. When he reached Fakarpur market, then, the people present there told him that accused persons went towards Ramleela Ground from Fakarpur Market and when he reached 30 steps before the pond of Ramleela ground, he saw that Israfeel (convict/appellant) had thrown his brother (Rashid- deceased) into the pond from the culvert (puliya) near the pond and ran towards Ramleela ground. He, thereafter, reached near his brother and saw that his brother was dead. On account of fear, he could not dare to chase the accused persons and the accused persons fled away. He further deposed that he did not see two assailants who accompanied convict/appellant Israfeel as they had run away from Fakarpur market. He proved written report (Ext. Ka-1).
P.W.1 had further deposed that the Investigating Officer had inspected the place where Israfeel (convict/appellant) killed his brother and the place where his dead body was thrown.
In cross-examination, P.W.1 had deposed before the trial Court that he was not an eye-witness of the incident and got the report scribed on the basis of what people told him. P.W.1 did not see anyone killing his brother. The bodkin (sooja) with which Israfeel killed his brother was recovered from the possession of Israfeel (convict/appellant).
P.W.1 had further deposed in his cross-examination that Lalta and Naseem (P.W.2) accompanied him when he was searching for his brother. There was blood near culvert in Fakarpur. The people present near the culvert, when his brother was thrown, narrated him (P.W.1) the incident and they were from Fakarpur area and all of them told him (P.W.1) that Kamil and Manjoor were also there with Israfeel (appellant) but despite that, the witness wrote report only against Israfeel (appellant). There was no enmity of co-accused Manjoor with his brother Rashid (deceased) nor did he knew him before the incident.
P.W.1 had further deposed that when he reached Fakarpur police station for lodging F.I.R., Israfeel (appellant) was in lock up at Fakarpur police station and in his presence, Inspector Dixit asked Israfeel (appellant) about the incident. He got his report scribed from some person outside the police station. He further deposed that when he reached police station Fakarpur, the Inspector and Constable asked him the reason for his arrival at police station, to which he told him that he had come to lodge report of the murder of his brother but he did not tell that his brother was killed by three persons. He stayed at police station at about 1-2 hours. The ''Panchayatnama' of the dead body of this brother (Rashid) was conducted in the courtyard of police station. At that time, his relatives and other people of the village were present there.
P.W.1 had further deposed that he came to know the telephone numbers of all the three police station from Gupta P.C.O. When he informed about the incident to three police stations, he only told the name of Israfeel (appellant) and did not tell names of the rest of the accused persons. None of his relatives told about the incident that they had also seen the incident. He denied the suggestion that he didn't see any incident and that the report of the incident was written by him at police station.
14. P.W. 2- Naseem had deposed that deceased Rashid was his brother. Before the incident, he, deceased Rashid and convict/appellant Israfeel used to work in Delhi. Israfeel (convict/appellant) knew him and also got acquainted with him and his brother Rashid from Delhi itself. Before the incident Israfeel (appellant) visited his village. The policemen had earlier arrested Israfeel (appellant) in some other incident. At that time, Israfeel (appellant) was enlarged on bail on the surety of father of the witness and Israfeel (appellant) had no suspicion at that time that he was implicated by them. There was enmity between Rashid (deceased) and Israfeel (convict/ appellant) with regard to transaction of money only.
P.W.2 further deposed that incident was of 4-4½ years ago. His brother Rashid was going for ''Namaz'. At that time, he was near brick kiln (bhatta). From brick kiln (bhatta), he saw that Israfeel (appellant) had caught hold his brother Rashid near Mahua tree. On his hue and cry, Rahmulla (P.W.3) rushed to his brother Ibrahim (P.W.1) at Mosque and told him the incident. He saw that Israfeel (convict/appellant) stabbed in throat of his brother Rashid (deceased) with bodkin (sooja) and two other men were also present with Israfeel (appellant) but he did not knew other two men, who were armed with ''addhi' (small gun) and ''katta' (country made pistol), prior to the incident. When Rahmulla (P.W.3) informed about the incident to his brother Ibrahim (P.W.1), then Ibrahim (P.W.1) went to Gupta PCO, where from his brother Ibrahim (P.W.1) telephonically informed police stations Fakarpur Baundi and Kaiserganj about the incident. After ''Namaz' was over, they chased the accused persons. Israfeel (appellant) carried his brother Rashid (deceased) on bicycle; killed him (deceased Rashid) on the culvert near Fakarpur; and threw him in the pond. Thereafter, his brother Ibrahim (P.W.1) went to police station and lodged a report. On the same day Fakarpur police had arrested Israfeel (appellant), however, his other two companions ran away from Fakarpur market itself.
In his cross-examination, P.W.2 deposed that he did not know accused Manjoor and Kamil prior to the incident. He had neither ever seen them before the incident nor did he knew their relation with the convict/ appellant. He never told anyone till date that in the said incident Israfeel (appellant) was accompanied with Manjoor and Kamil because he did not know Manjoor and Kamil. The Investigating Officer interrogated him about the said incident. The two companions who accompanied Israfeel had covered their faces with towel (angaucha) because of which he could not identify them.
15. P.W. 3- Rahmulla, in his deposition before the trial Court, deposed that he knew deceased Rashid. The deceased Rashid was murdered around five years ago on Friday (jumma). At the time of incident, he was going to Dhakerwa Mosque for Namaz and when he reached near brick kiln (bhatta), he saw that two-three men took away Rashid (deceased) and amongst them, he only identified Israfeel (convict/appellant). He told this incident to P.W.1 Ibrahim (brother of deceased-Rashid) at the mosque. Ibrahim (P.W.1) was standing in the congregation of prayers and the congregation had already stood up, therefore, they did not go in search of deceased Rashid and started offering Namaz. After offering Namaz, he did not go in search of Rashid (deceased) but he went to Samda market. After that, he did not know whether these people killed Rashid (deceased) or what they did, because he went from Samda market to his old house at Belhari. The witness was declared hostile by the prosecution.
In his cross-examination by Additional District Government Counsel, his statement recorded by the police under Section 161 Cr.P.C. was read over to P.W.3 but he denied to give such statement to the police that when he reached near the brick kiln of Qazmi, Rashid (deceased) shouted and thereafter Israfeel stabbed in the throat of Rashid with bodkin (sooja). He deposed that he told the Investigating Officer that Rashid (deceased) was taken away on a bicycle. He saw the altercation between convict/appellant and the deceased but he did not see Israfeel (appellant) assaulting the deceased. Thereafter, he deposed that Israfeel (appellant) was assaulting Rashid (deceased). He denied the suggestion that he gave false statement due to fear of accused Israfeel (appellant) and other accused persons.
16. C.W. 1- Sanwali Prasad had deposed before the trial Court that Ibrahim (P.W.1) was a resident of his village. Convict/appellant Israfeel knew him. When the Investigating Officer had recovered the bodkin (sooja) from the possession of Israfeel (appellant), Subhash was also present there. The recovered bodkin (sooja) was stained with blood. The Investigating Officer had sealed the recovered bodkin (sooja) in a cloth and after documentation got his signatures on it. He had never seen Israfeel (appellant) killing anyone with bodkin (sooja). His house was 9 kms away from Fakarpur police station. Appellant Israfeel was arrested near Fakarpur police station. He was not there when Israfeel (appellant) was arrested. He came there after half an hour of arrest of Israfeel (appellant) and then the police told him that bodkin (sooja) was recovered from Israfeel's (appellant) possession. There was blood on bodkin (sooja). After that it was sealed by keeping it in a cloth. Based on what the policemen told, he came to know that bodkin (sooja) was recovered from Israfeel's possession.
In his cross-examination, he deposed that bodkin (sooja) was recovered from the possession of Israfeel (appellant) in front of him by the Investigating Officer. Subhash was also with him at that time. On being questioned by the trial Court about his contradictory statement he told that on asking of Advocate of Israfeel he stated that he knew about the recovery of bodkin from the possession of Israfeel, whereas on asking of Public Prosecutor, he stated that the bodkin was recovered by the Inspector in his presence. C.W.1 had deposed that bodkin (sooja) was recovered in front of him by the Investigating Officer.
17. C.W. 2- Raeesh had deposed before the trial Court that Ibrahim (P.W.1) did not know him. He had no knowledge about the murder of Ibrahim's brother. Around 8 years ago, dead body of a man was found from a pond located near Ramleela ground near Fakarpur town. He did not know his name because he was not present on the spot at that time but had gone to one relative in Huzurpur on his death ceremony. He heard about the said dead body. The police did not record his statement. However, his statement under Section 161 Cr.P.C. was read over to him, he told that he had not given any such statement. The Inspector did not interrogate him. The Investigating Officer took his thumb impression on a plain paper, in which nothing was written, nor was anything read over to him. The Investigating Officer did not collect blood soaked soil and plain soil from the spot in his presence.
In his cross-examination, C.W.2 deposed before the trial Court that Munna Lal, son of Pyare Lal, is resident of his own village. Ibrahim (P.W.1), son of Noormohammed, is also resident of his village. The blood stained soil and plain soil was not collected from Wazirganj-Fakarpur road at a distance of about half kilometers nor was it sealed by keeping it in a cloth. He denied the suggestion that the Investigating Officer collected blood soaked soil and plain soil in containers and sealed before him. He deposed that he did not see Israfeel (appellant) killing Rashid (deceased) with a bodkin (sooja).
18. C.W.3- Maksood has deposed before the trial Court that Ibrahim (P.W.1), resident of village Natthupur police station Baundi, was his brother-in-law's brother. He went to the funeral of deceased Rashid. He did not know how Rashid (deceased) died. He didn't even ask anyone whether Rashid (deceased) was killed by someone or died himself. He has not seen Rashid (deceased) being killed by Israfeel with bodkin (sooja). He didn't even hear that the dead body of Rashid (deceased) was found in a pond near Ramleela ground near Fakarpur town because at that time he had gone to Lucknow to do palledari (hostage work). The Investigating Officer neither took his statement nor did any inquiry from him.
In his cross-examination, C.W.3 deposed that he did not know Israfeel (appellant). He deposed that he did not gave statement to Investigating Officer that Israfeel, son of Akbar Ali, along with his two companions had caught Rashid (deceased) between Natthupur-Dhakherwa. He denied to know anything about the incident. He did not know how Rashid (deceased) died. The Investigating Officer did not record his statement.
19. In the statement recorded under Section 313 Cr.P.C., the convict/appellant had stated that he lodged a case under section 308 I.P.C. at Police Station Jama Masjid, Delhi against Ibrahim (P.W.1) and Rashid (deceased) stating that he was assaulted by Ibrahim (P.W.1) and deceased (Rashid) at Delhi. On account of this enmity, he was falsely implicated in the instant case by the informant Ibrahim (P.W.1).
20. The learned trial Judge believed the evidences, prosecution witnesses, as well as C.W.1-Sanwali Prasad, and found appellant Israfeel guilty for the offences punishable under Sections 364, 302 and 201 I.P.C. and, accordingly, while acquitting two accused persons Kamil and Manjoor, convicted and sentenced the appellant Israfeel in the manner stated herein-above in paragraph-2.
21. Hence the instant appeal.
22. Heard Shri Manendra Nath Rai assisted by Ms. Shraddha Tripathi, learned counsel for the convict/appellant and Shri Dhananjay Kumar Singh, learned A.G.A. for the State/ respondent.
23. Learned Counsel for the appellant has argued that admittedly, P.W. 1-Ibrahim, who is the real brother of deceased, is not an eye-witness of the occurrence because he was informed about the incident by P.W.3-Rahmulla, when P.W.1-Ibrahim was offering ''Namaz', to the effect that the deceased was done to death by the convict/appellant Israfeel and two of his companions at village Natthupur Mauja Dhakerwa on 17.11.2000 at 1:30 pm and after offering Namaz, P.W.1- Ibrahim went to village Nandval to Gupta P.C.O. from where P.W.1 informed at police station Fakarpur about the said incident and thereafter he (P.W.1) along with other persons in the village started searching for his brother and while searching he reached Fakarpur and saw that his brother's body was thrown in a pond by appellant Israfeel who had fled from there. He argued that P.W.3- Rahmulla, who has seen the incident and informed P.W.1- Ibrahim about the incident, has not supported the prosecution case and has turned hostile, thus, the prosecution case does not deserve to be believed.
24. It has further been argued by learned counsel for the appellant that P.W.2-Naseem, who is the brother of the deceased, is also not an eye-witness of the incident as he had not seen the appellant committing the murder of the deceased, hence his testimony is also under the clouds of doubt. Thus, he argued that P.W.1-Ibrahim and P.W.2-Naseem being the brothers of the deceased are highly interested and partisan witnesses and their presence at the place of incident also appears to be doubtful, hence, their testimony cannot be said trustworthy.
25. Elaborating his submissions, learned Counsel for the appellant has further argued that though the testimony of P.W.2 was not a reliable one, but even then the trial Court on the basis of the evidence of P.W.2- Naseem has recorded the finding of guilt of appellant by means of impugned order, hence, the findings recorded by the trial Court are erroneous.
26. The next argument of the learned Counsel for the appellant is that on account of paucity of money, the convict/appellant could not engage an Advocate for contesting the case on his behalf before the trial Court, thus, amicus curiae was appointed by the trial Court, and when the examination-in-chief of P.W.1- Ibrahim, P.W.2- Naseem and P.W.3-Rahmulla were recorded by trial Court, no opportunity for cross-examination of these witnesses was afforded to the convict/appellant by the trial Court. Thus, the testimonies of P.W.1, P.W.2 and P.W.3 remain unrebutted.
27. It has further been argued by learned counsel for the appellant that co-accused Kamil and Manjoor have been acquitted by the trial Court on the ground that the prosecution has failed to prove its case beyond reasonable doubt against the said two co-accused persons but the trial Court erred in convicting the convict/appellant on wrong pretext.
28. Learned Counsel for the appellant has further argued that recovery of the blood stained bodkin (sooja), which is said to have been recovered from possession of the appellant, is a false one, as the witness of recovery, namely, Sanwali Prasad, was summoned as C.W.1, who stated before the trial Court that he had not seen the convict/appellant causing injuries by bodkin (sooja) to deceased (Rashid). He argued that it is apparent from the cross-examination of C.W.1- Sanwali Prasad that he was told by police personnel that a bodkin (sooja) has been recovered from the possession of appellant Israfeel. C.W.1 further stated that when the appellant was arrested, many people were gathered there at that time and thereafter he reached there. He submitted that other witnesses of the recovery namely, Subhash has not been cross-examined by the prosecution. Thus the recovery of weapon of assault, which is said to be recovered from the possession of appellant, is not reliable.
29. It has also been argued by the learned counsel for appellant that the F.I.R. is an anti-timed document, as in the recovery memo and the ''Panchayatnama', no case crime number and details of the present case have been mentioned. Thus, the prosecution case is liable to be thrown out on this ground alone.
30. Lastly, learned Counsel for the appellant argued that the appellant is in jail for the last 17 years. He argued that P.W.1- Ibrahim and his brother Rashid (deceased) had assaulted him in Delhi and he had lodged the case under Section 308 IPC against them at police station Jama Masjid in Delhi and because of this enmity, the appellant has been falsely-roped in, in the present case. He argued that the trial Court misread the evidence on record and erred in convicting the appellant in the present case, hence, the impugned judgment is liable to be set aside and appellant be acquitted.
31. Per contra, learned AGA for the State has vehemently rebutted the arguments of learned counsel for the appellant and submitted that the incident took place in broad daylight at 1:30 p.m. in village Natthupur Mauja Dhakerwa. The incident was witnessed by Naseem (P.W.2), the real brother of deceased (Rashid), along with Rahmulla (P.W.3). Soon after the incident Rahmulla (P.W.3) went to mosque where Ibrahim (P.W.1) was offering Namaz and informed him about the incident and stated that Rashid (deceased) was assaulted by appellant Israfeel with bodkin (sooja). Thereafter, Ibrahim (P.W.1) immediately informed the police station about the incident from the P.C.O. of one Ramesh Gupta from village Nandval and went to place of occurrence searching for his brother along with other persons of the village and saw the appellant throwing the dead body of deceased in a pond which was in village Fakarpur near Ramleela ground. He further argued that informant P.W.1-Ibrahim, immediately after the incident, lodged a prompt F.I.R. at police station Fakarpur on the same day at 16:30 hours against the appellant Israfeel and two unknown persons.
32. Learned AGA further argued that P.W.2- Naseem had witnessed the incident in which his brother Rashid (deceased) was murdered by appellant Israfeel with bodkin (sooja). The deceased Rashid sustained multiple punctured wounds on his neck and ocular testimony of P.W. 2- Naseem fully corroborates the post-mortem report of deceased Rashid.
33. It is further argued by learned AGA that P.W.3- Rahmulla, who is an independent eye-witness of the occurrence, has informed the informant P.W.1-Ibrahim about the incident. P.W.3, in his examination-in-chief and cross-examination, admitted the fact that he knew deceased Rashid, who was taken away by two-three persons, out of whom he identified the appellant only and he informed about the said fact to P.W. 1- Ibrahim, who was offering Namaz at mosque, though he has not stated that it was the appellant who had committed the murder of the deceased Rashid. He submitted that P.W. 3- Rahmulla has been declared hostile. Thus, P.W.3 has not supported the prosecution case. He submitted that simply because P.W. 3- Rahmulla became hostile, his testimony cannot be discarded by this Court on this ground alone as the Court has to consider the evidence of the hostile witness to that extent to which it corroborate the prosecution case.
34. It was further submitted by learned A.G.A. that appellant Israfeel was given several opportunities by the trial Court to cross examine P.W.1- Ibrahim, P.W.2- Naseem and P.W.3-Rahmulla and he was also afforded the services of Amicus Curiae by the trial Court and further he engaged a counsel of his choice, but they failed to appear and did not cross-examine P.W.1- Ibrahim, P.W.2- Naseem and P.W.3-Rahmulla, hence the opportunity to cross-examine P.W.1- Ibrahim and P.W.2- Naseem was closed by the trial Court as is evident from the order sheet of the trial Court. He submitted that Ibrahim (P.W.1) and Naseem (P.W.2) were not deliberately cross-examined by the appellant's counsel before the trial Court, though, the formal witnesses who have appeared thereafter before the trial Court, were cross-examined by the appellant, which otherwise speaks about the conduct of the appellant and his Counsel for not cross-examining Ibrahim (P.W.1) and Naseem (P.W.2) for the appellant Israfeel, for which no one can be put to fault except the convict/appellant (Israfeel) himself and his Counsel.
35. Learned AGA has further argued that blood stained bodkin (sooja) (Ext. Ka-6) was recovered from the possession of appellant Israfeel and the deceased was also assaulted by the appellant Israfeel on the date of incident and he was arrested on the date itself. At the time of arrest, the clothes of convict/ appellant were also found stained with blood, for which a recovery memo (Ext.Ka.7) was prepared and further blood soaked soil was recovered from place of occurrence, which was proved as Ext. Ka-8. Thus, the prosecution has been able to prove its case beyond reasonable doubt against the appellant Israfeel and the trial Court has rightly convicted and sentenced the appellant. The appeal is devoid of merits and is liable to be dismissed.
36. We have examined the rival contentions advanced by the learned Counsel for the parties along with the impugned judgment and order passed by the trial Court and also perused the lower Court record.
37. It transpires that informant P.W.1-Ibrahim, who is the brother of deceased Rashid, had lodged the First Information Report against convict/appellant Israfeel and two unknown persons on the date of the incident itself, i.e. 17.11.2000 at 04:30 p.m. at police station Fakarpur, district Barabanki, for committing the murder of his brother Rashid (deceased) on 17.11.2000 at 01:30 p.m. in the outskirt of Dhakherwa village.
38. P.W.1-Ibrahim had deposed before the trial Court that on the date of the incident, i.e. 17.11.2000, at 01:15 p.m., he had gone to perform ''Namaz' at Dhakerwa mosque. During the course of ''Namaz', P.W.3-Rahmulla came at Dhakerwa mosque and informed him (P.W.1) that Israfeel (convict/appellant) and his two companions caught his brother Rashid (deceased) and assaulted him. After offering ''Namaz', he (P.W.1) immediately rushed to the place where his brother Rashid was said to be assaulted by Israfeel (convict/appellant) and his two companions, but he did not find any one there, however, the people gathered there informed P.W.1 that his brother Rashid (deceased) was taken away by Israfeel (convict/appellant) and his two companions towards eastern direction on a bicycle. On this information, he went to Gupta P.C.O. at Nandval, from where he telephonically informed about the incident at police station Baundi, Kaiserganj and Fakarpur.
After that he (P.W.1) returned to village Dhakerwa and from there he moved towards Fakarpur. When he was about to reach Fakarpur, he saw that many people were gathered near Fakarpur culvert (puliya) and stains of blood were present there and he was informed by the said people that accused persons (including convict/appellant), after killing his brother Rashid (deceased) went towards Fakarpur market just now on a bicycle. Immediately thereafter, he (P.W.1) rushed towards Fakarpur market, where the people informed him that the accused persons went towards Ramleela ground. Thereafter, he rushed towards Ramleela ground and he reached 30 steps ahead of the pond of Ramleela ground, he saw that Israfeel (convict/ appellant) had thrown his brother into the pond from the culvert (pulia) and ran away towards Ramleela Ground. He, thereafter, reached near his brother and saw that his brother was dead. After that, he went to police station Fakarpur, district Barabanki and lodged the F.I.R.
39. Close scrutiny of testimony of PW.1-Ibrahim shows that the F.I.R. of the incident was lodged promptly. There was no delay in lodging the F.I.R. P.W.1 is not the eye-witness of the incident but he only witnessed the convict/ appellant Israfeel throwing his brother Rashid (deceased) into the pond from the culvert (puliya) and ran towards Ramleela ground. P.W.1 has established his presence near the culvert when his brother Rashid was thrown by Israfeel (convict/appellant) in the pond.
40. P.W.2-Naseem, who is the brother of the deceased Rashid and P.W.1-Ibrahim, had also supported the testimony of the informant P.W.1 and deposed before the trial Court that on the date of the incident i.e. 17.11.2000, when his brother Rashid was going to offer Namaz, he was near brick kiln and from there he saw that Israfeel (convict/appellant) caught his brother Rashid and stabbed on his neck in front of him with bodkin (sooja). On his hue and cry, Rahmulla (P.W.3) went and informed his brother Ibrahim (P.W.1) in the mosque about the incident.
41. The evidence of P.W.2-Naseem shows that he is the eye-witness of the incident. He saw the convict/appellant Israfeel stabbing his brother Rashid (deceased) with bodkin (sooja).
42. Learned Counsel for the appellants contended that the testimonies of P.W.1 and P.W.2 are not reliable and trustworthy as they are the brothers of the deceased Rashid, hence they are related and interested witnesses.
43. It is a settled principle of law that the evidence tendered by the related or interested witness cannot be discarded on that ground alone. However, as a rule of prudence, the Court may scrutinize the evidence of such related or interested witness more carefully. In Namdeo v. State of Maharashtra : (2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773, the Apex Court, after observing previous precedents on the issue of related and interested witnesses, has summarized the law in the following manner:-
"38. it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
44. The Apex Court in Ilangovan v. State of T.N. : (2020) 10 SCC 533 has held that :-
"7. With respect to the first submission of the counsel for the appellant, regarding the testimonies of related witnesses, it is settled law that the testimony of a related or an interested witness can be taken into consideration, with the additional burden on the Court in such cases to carefully scrutinise such evidence (see Sudhakar v. State, (2018) 5 SCC 435). As such, the mere submission of the counsel for the appellant, that the testimonies of the witnesses in the case should be disregarded because they were related, without bringing to the attention of the Court any reason to disbelieve the same, cannot be countenanced."
45. In the instant case, the learned counsel for the appellant, despite his best efforts, could not persuade this Court that the evidence of P.W.1 and P.W.2 was unreliable. The trial Court has specifically recorded the finding of reliability of evidence of P.W.1 and P.W.2. The submission of the learned counsel for the appellant that the evidence of P.W.1 and P.W.2 is unreliable, because they are the brothers of the deceased, cannot be countenanced. P.W.1-Ibrahim has established his presence at the place from where convict/ appellant had thrown his brother Rashid into the pond, whereas P.W.2-Naseem had established his presence at the place, where the convict/appellant had stabbed on the neck of his brother in front of him with bodkin (sooja). Thus, the evidence of P.W.1 and P.W.2 fully established the case that it was the convict/appellant who committed the murder of their brother Rashid.
46. The next contention of the learned Counsel for the appellant is that as P.W.3-Rahmulla, who is the independent witness, was declared hostile by the trial Court, hence the presence of P.W.2-Naseem at the place where his brother Rashid was said to stabbed with bodkin (sooja) is doubtful and on this ground, the entire prosecution case is doubtful.
47. In C. Muniappan v. State of T.N. : (2010) 9 SCC 567, the Apex Court, while dealing with the testimony of a witness over an issue, has held as under :
"69. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (vide Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).
70. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951; Sarvesh Naraian Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; and Subbu Singh v. State, (2009) 6 SCC 462.
Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
In the instant case, some of the material witnesses i.e. B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law.
Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.
71. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses."
48. In the instant case, reading the evidence in entirety, the evidence of P.W.3-Rahmulla cannot be brushed aside. His evidence shows that the statement of P.W.3-Rahmulla was recorded almost around five years from the date of the incident by the trial Court i.e. on 12.07.2005. In his examination-in-chief, P.W.3 had deposed that on the date of the incident, he was going to offer ''Namaz' and when he reached near brick kiln, then, he saw that 2-3 persons were taking away Rashid (deceased) while doing altercations with him and this fact was informed to Ibrahim (P.W.1) by him in the Mosque, where the brother of the deceased- Rashid was offering ''Namaz'. At that time, Ibrahim (P.W.1) was standing in the congregation of prayers and the congregation had already stood up, therefore, they did not go in search of deceased Rashid and started offering ''Namaz'. After offering ''Namaz', he did not go to search Rashid (deceased) as he went to Samda market. In his cross-examination, he deposed that he told the Inspector that Rashid (deceased) was taken away on a bicycle and he also saw as well as heard the altercations between the convict/appellant and the deceased Rashid, however, he at one place stated that he did not see Israfeel assaulting the deceased, at another place, he deposed that Israfeel was assaulting the deceased Rashid.
49. On reading the testimonies of the P.W.2-Naseem and P.W. 3- Rahmulla, it has been categorically established that they were the eye-witnesses of the incident and their evidence fully establishes that it was appellant-Israfeel who committed the murder of Rashid (deceased).
50. So far as the submission of the learned Counsel for the appellant that one Lalta, son of Saktu, was the alleged eye-witness of the prosecution case but the prosecution did not produce him for examination before the trial Court, is concerned, it is apparent to mention here that as stated herein-above, the prosecution witnesses, P.W.1-Ibrahim, P.W.2-Naseem and P.W.3-Rahmulla, have fully supported the prosecution case and they are found to be trustworthy and reliable. More so, it is normally found that when such incident of murder takes place, it is very rare that all the witnesses, who saw the incident, appear to support the same because of fear and other reasons, hence, the non-production of any other independent witnesses who were present at the place of incident hardly prove fatal to the prosecution case.
51. So far as the motive is concerned, it is apparent from the depositions of P.W.1 and P.W.2 that there was enmity between the convict/appellant and deceased Rashid in connection with money transactions. While living in Delhi, convict/appellant had also lodged an FIR under Section 308 for fracas (marpeet), at police station Jama Maszid, New Delhi. Thus, from the facts and circumstances of the case, it cannot be said that there was no motive on the part of the convict/appellant to commit the murder of the deceased Rashid.
52. In regard to the medical evidence, it transpires from perusal of the post-mortem report of the deceased Rashid that the deceased Rashid received two ante-mortem injuries; (i) multiple punctured wounds in the front of the neck in an area of 12 cm X 12 cm, of varying sizes 1 cm X 0.5 cm to 1.5 cm X .70 cm of varying depth; (ii) multiple punctured wounds on back of neck in an area of 9 cm X 3 cm of muscle deep, situated 2 cm below occipital prominence, 6 cm behind Rt. Ear, 5 cm behind Lt. Ear. P.W. 4-Dr. R.C. Singh, in his deposition, had deposed that aforesaid ante-mortem injuries on the dead body of the deceased could be attributable by bodkin (sooja). Thus, the post-mortem report clearly supported the testimonies of the prosecution witnesses.
53. So far as submission of learned counsel for the appellant that an Amicus Curiae has been appointed by the trial Court after completion of examination-in-chief of Ibrahim (P.W.1), Naseem (P.W.2) and Rahmulla (P.W.3), but the appellant was not afforded opportunity to cross examine Ibrahim (P.W.1), Naseem (P.W.2) and Rahmulla (P.W.3), is concerned, this Court finds from perusal of the impugned judgment that in paragraph 23, the trial Court has recorded a specific finding that on the application of the appellant, witnesses were summoned for recording their statement, and the witnesses were present on various dates fixed in the case, but their cross-examination was not done by the counsel for the appellant before the trial Court. Hence, the plea of the appellant that no opportunity has been afforded to the appellant to cross-examine Ibrahim (P.W.1), Naseem (P.W.2) and Rahmulla (P.W.3) is contrary to the record and is rejected accordingly.
54. In view of the foregoing discussions, it is clear that the prosecution has proved its case beyond reasonable doubt against the appellant, as instant case is relating to the murder of the deceased in a broad daylight; appellant had strong motive to commit the murder of the deceased; appellant has done to death the deceased in a brutal manner, by stabbing him with bodkin (sooja) on his neck, as a consequence of which the deceased succumbed to his injuries; statements of three eye-witnesses, P.W.1-Ibrahim, P.W.2-Naseem and P.W.3-Rahmulla, which were relied upon by trial Court, had fully supported the prosecution case.
55. Thus, the impugned judgment and order passed by trial Court convicting and sentencing the appellant for offence in question is hereby upheld and the same does not require any interference by this Court in the instant appeal.
56. The instant appeal lacks merit and is, accordingly, dismissed. The appellant is in jail. He shall serve the sentence as ordered by the trial Court vide impugned judgment and order dated 19.11.2008.
57. Let a certified copy of this order as well as lower Court record be transmitted to the Court concerned for necessary information and necessary compliance, forthwith.
(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.) Order Date :- 30th May, 2022 Arnima