Dr. Sajid Akbar vs State on 16 January, 2015

[Cites 15, Cited by 0]

Allahabad High Court

Dr. Sajid Akbar vs State on 16 January, 2015

Present appeal has been filed by accused appellants Dr. Sajid Akbar and Mahboob alias Gutka against judgement and order dated 2.9.1994 passed by Vth Additional District and Sessions Judge, Bijnor in Session Trial No. 325 of 1992 (State of U.P. Vs. Dr. Sajid Akbar and another) under section 302 IPC, P.S. Chandpur, District Bijnor, whereby learned Additional District and Sessions Judge, Bijnor has convicted accused appellants Dr. Sajid Akbar and Mahboob alias Gutka for offence punishable under section 302 IPC read with section 34 IPC and has sentenced each of them thereunder to undergo imprisonment for life.

Sri Ravi Kiran Jain, learned Senior counsel assisted by Sri Swetashwa Agrawal appeared for the appellants. Learned A.G.A. Sri Mahendra Singh Yadav and Sri Siddharth Singh appeared for State respondent.

We have heard learned counsel for accused appellants as well as learned A.G.A. and perused records also.

According to First Information Report Ext.Ka-2 prosecution version is that accused appellant Dr. Sajid Akbar had enmity with complainant Fariddudin and his brother Azimuddin and was sending message through Master Dharm Singh for settlement. on 21.5.1990 at about 8.30 p.m. complainant Fariddudin and his brother Azimuddin were going to the house of Comrade Rizwan from their house. In the way when complainant and his brother Azimuddin came near old Post Office accused appellants Dr. Sajid Akbar and Mahboob alias Gutka were sitting alongwith Master Dharm Singh in front of medical store. Dharm Singh called complainant and his brother Azimuddin and asked them to make settlement with accused appellants Dr. Sajid Akbar. Azimuddin brother of complainant told him that he cannot make any settlement without Comrade Rizwan, whereupon accused appellant Dr. Sajid Akbar abused and made fire with Tamanch (country made pistol) at Azimuddin brother of complainant. Azimuddin brother of complainant as well as complainant Fariddudin raised alarm. Having heard the noise witnesses Rafiq Ahmad, Member of Nagar Palika, Chandpur, Anis Ahmad and other passersby saw the occurrence in the light of Gas. Complainant Fariddudin and his brother Azimuddin tried to run away, whereupon accused appellant Mahboob alias Gutka exhorted accused appellant Dr. Sajid Akbar to kill them and as soon as complainant and his brother Azimuddin reached the turn of gali situated behind old police station, accused appellant Dr. Sajid Akbar made second fire at Azimuddin brother of complainant. The witnesses mentioned above saw this occurrence in the light of Generator of Nursing Home of accused appellant Dr. Sajid Akbar. Having received injuries Azimuddin brother of complainant ran towards police quarters. At the same time accused appellant Mahboob alias Gutka exhorted accused appellant Dr. Sajid Akbar to kill complainant also but complainant saved himself and ran towards Mazar. Thereafter, accused appellants Dr. Sajid Akbar and Mahboob alias Gutka chased Azimuddin brother of complainant and made further two or three fires at him.

According to First Information Report Ext.Ka-2 after occurrence complainant went towards police chawki and saw his brother Azimuddin. Bleeding was going on from his brother's chest and waist. According to First Information Report Ext.Ka-1 Azimuddin brother of complainant told names of accused appellants as assailants to the Constables of police chawki. Thereafter, constables of police chawki brought Azimuddin brother of complainant to Government Hospital. The condition of Azimuddin brother of complainant was critical. Complainant Fariddudin went to police station and presented First Information Report Ext.Ka-2 to police station, on the basis of which Crime No.143 of 1990 under section 307 IPC was registered on 21.5.1990 at 9.05 p.m. against accused appellants Dr. Sajid Akbar and Mahboob alias Gutka in police station Chandpur, District Bijnor and investigation was started by police.

Later on Azimuddin brother of complainant succumbed to injuries on the same day at 9.25 p.m. in hospital. Thereafter on receipt of death memo of Azimuddin brother of complainant from hospital aforesaid Crime No. 143 of 1990 under section 307 IPC was converted into section 302 IPC. Later on, inquest report of deceased Azimuddin brother of complainant was prepared and his dead body was sent for post mortem in sealsed cover after having completed necessary formalities. Thereafter, investigation was completed by police in accordance with law and charge sheet was submitted by police against accused appellants Dr. Sajid Akbar and Mahboob alias Gutka for offence under section 302 IPC, whereupon Magistrate concerned took cognizance and after having complied section 207 Cr.P.C. committed the case to the court of Session for trial, whereupon Session Trial No. 325 of 1992 (State Vs. Dr. Sajid Akbar and Mahboob alias Gutka) under section 302 IPC, P.S. Chandpur, District Bijnor was registered in Session court of Bijnor. Later on said session trial was transferred to the court of 3rd Additional Sessions Judge, Bijnor, who framed charge against both accused appellants for offence under section 302 IPC read with section 34 IPC.

Both accused appellants pleaded not guilty and claimed to be tried.

Prosecution examined P.W.-1 complainant Fariddudin, P.W.-2 Anees Ahmad, P.W.-3 Dr. M.L. Garg, P.W.-4 H.C. 144 Raghunath Singh, P.W.-5 I.O. Dy. S.P. Anand Swarup Sharma, P.W.-6 Dr. R.P. Jauhari, P.W.-7 I.O. Inspector Rakch Pal Singh, P.W.-8 C.P. 872 Rishi Pal Singh and P.W.-9 H.C. 123 Kanchhi Singh Raghav.

After prosecution evidence statements of both accused appellants were recorded under section 313 Cr.P.C. Both of them stated in their statements under section 313 Cr.P.C. that they have been falsely implicated.

D.W.-1 Surya Mani Raghuvanshi, D.W.-2 Mohd. Yusuf Hashimi and D.W.-3 Naresh Kumar were examined on behalf of accused appellants as defence witnesses.

Learned Vth Additional District and Sessions Judge, Bijnor heard the arguments of the parties and passed impugned judgement and order whereby he has convicted and sentenced accused appellants as mentioned above.

Learned counsel for accused appellants contended that the conviction recorded by trial court is against evidence as well as against law.

Learned counsel for accused appellants contended that presence of P.W.-1 complainant Fariddudin at the time of alleged occurrence is highly doubtful and he is not a reliable witness. Learned counsel for accused appellants contended that P.W.-2 Anees Ahmad is also alleged to be an eye witness of occurrence but he has not supported the story of prosecution.

Learned counsel for accused appellants further contended that P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 C.P. 872 Rishi Pal Singh have stated in their statements that injured Azimuddin brother of complainant told them that both accused appellants Dr. Sajid Akbar and Mahboob alias Gutka have shot him but according to FIR Ext.Ka-2 as well as statement of complainant P.W.-1 complainant Fariddudin role of firing has been assigned to accused appellant Dr. Sajid Akbar and accused appellant Mahboob alias Gutka has been assigned only role of exhortation. Thus, there is a material contradiction between prosecution case and alleged statement of deceased Azimuddin regarding occurrence, therefore, the alleged statement of deceased Azimuddin which may be treated as dying declaration under section 32 of Evidence Act is not reliable.

Learned counsel for accused appellants contended that Sri Anand Swarup Sharma, the then S.H.O. of P.S. Chandpur had enmity with accused appellant Dr. Sajid Akbar because accused appellant Dr. Sajid Akbar had led a procession against him regarding fake encounter of Pappu and Brijendra. On publication of news of said procession in daily newspaper Dainik Ujala as well as on his efforts a CID inquiry was instituted. Accused appellant Dr. Sajid Akbar had further made a complaint against S.H.O. Anand Swarup Sharma regarding his role in booth capturing in favour of B.S.P. Candidate in assembly election and had demanded his transfer. In view of above, accused appellant Dr. Sajid Akbar has been falsely implicated by complainant under his pressure.

Learned counsel for accused appellants prayed that appeal should be allowed and both accused appellants should be acquitted.

Learned A.G.A. contended that conviction recorded by trial court is in accordance with law and evidence. He further contended that P.W.-1 complainant Fariddudin is an eye witness of occurrence and there is no sufficient ground to disbelieve him. Further more version of prosecution is corroborated by statement of deceased Azimuddin made soon after occurrence before P.W.-1 complainant Fariddudin as well as P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 C.P. 872 Rishi Pal Singh.

Learned A.G.A. contended that there is no sufficient ground for interference in impugned judgement and order passed by trial court.

Learned A.G.A. prayed that appeal should be dismissed.

We have considered the submissions made by the parties and gone through evidence on record carefully.

P.W.-1 complainant Fariddudin is alleged to be an eye witness of occurrence. In his statement on oath he has proved F.I.R. Ext.Ka-2 and has fully supported the version of FIR Ext.Ka-2.

P.W.-2 Anees Ahmad has been examined by prosecution as an eye witness of occurrence but he has stated in his statement that he has not seen occurrence alleged by prosecution.

P.W.-3 Dr. M.L. Garg, Medical Officer has stated in his statement on oath that on 22.5.1990 he was posted in District Hospital, Bijnor. On that day at 2.15 p.m. he conducted post mortem of deceased Azimuddin whose dead body was brought by constable 105 Bhagwan Singh and Constable 872 Rishi Pal Singh of P.S. Chandpur, District Bijnor in sealed cover.

P.W.-3 Dr. M.L. Garg has proved post mortem report of deceased Azimuddin Ext.Ka-7.

P.W.-3 Dr. M.L. Garg has stated in his statement on oath that cause of death of deceased Azimuddin was shock and hemorrhage due to ante mortem injuries. He has further stated in his statement on oath that the death of deceased Azimuddin might have occurred on 21.5.1990 at 8.30 p.m..

P.W.-4 H.C. 144 Raghunath Singh has stated in his statement on oath that on 21.5.1990 he was posted as Head Constable at out post Chandpur. He has stated that on that day at 8.30 p.m. complainant Fariddudin came to police station and told that his brother Azimuddin has been shot by accused appellants Dr. Sajid Akbar and Mahboob. He is lying injured behind police out post. He has stated that after receiving this information he alongwith Constable Bhagwan Singh went to the place where injured Azimuddin was lying.

P.W.-4 H.C. 144 Raghunath Singh has stated in his statement on oath that injured Azimuddin told him with pain that Dr. Sajid Akbar and Mahboob have shot him. Thereafter, he carried Azimuddin to hospital with the aid of complainant Fariddudin and constables.

P.W.-4 H.C. 144 Raghunath Singh has stated in his statement on oath that complainant Fariddudin went to police station Chandpur from hospital for lodging FIR.

P.W.-4 H.C. 144 Raghunath Singh has stated in his statement on oath that Doctor was not available in hospital. He was called from his quarter. Doctor came and gave injection to injured Azimuddin but Azimuddin died after giving injection.

P.W.-4 H.C. 144 Raghunath Singh has stated in his statement on oath that Doctor prepared death memo of deceased Azimuddin, which was brought to police station by him.

P.W.-4 H.C. 144 Raghunath Singh has stated in his statement on oath that when Fariddudin reached police station his rawangi was entered in rapat no. 18 of G.D. at 20.35 p.m. by Constable Dhurendra Singh. P.W.-4 H.C. 144 Raghunath Singh has proved said rapat no. 18, Ext.Ka-8 as a secondary witness by identifying hand writing of Constable Dhurendra Singh.

P.W.-4 H.C. 144 Raghunath Singh has stated in his statement that the death memo prepared by doctor was brought to police station Chandpur by him, which has been entered in rapat no. 53 of G.D. at 22.15 p.m. on 21.5.1990. He has proved said rapat no. 53 Ext.Ka-9 also as a secondary witness by identifying hand writing of H.C. Kanchhi Singh.

P.W.-5 Anand Swarup Sharma is Investigating Officer of the case. He has stated on oath that on 21.5.1990 he was S.H.O. of police station Chandpur. He has stated that Crime No. 143 of 1990 under section 307 IPC was registered in P.S. Chandpur in his presence on the basis of First Information Report presented by P.W.-1 complainant Fariddudin.

P.W.-5 Anand Swarup Sharma has stated that he took investigation into his hands and after copying chik FIR and G.D. in C.D. he went to hospital to record statement of injured but when he reached hospital, he was informed that injured has died and memo of his death has been sent to police station, therefore, he converted the crime registered under section 307 IPC into section 302 IPC and made effort to arrest accused appellants.

P.W.-5 Anand Swarup Sharma, I.O. has stated in his statement that he deputed S.I. Ashok Kumar for preparing inquest report and other papers of deceased Azimuddin.

P.W.-5 Anand Swarup Sharma, I.O. has stated in his statement that on 22.5.1990 he recorded statements of witnesses Rafiq Ahmad and Anees Ahmad and inspected place of occurrence.

P.W.-5 Anand Swarup Sharma, I.O. has proved site plan of place of occurrence Ext.Ka-10. He has further stated in his statement that he took blood stained earth and plain earth from the place of occurrence and kept them in sealed cover. He has proved in his statement recovery memo of blood stained earth and plain earth as Ext.Ka-11.

P.W.-5 Anand Swarup Sharma, I.O. has stated in his statement that accused appellants were absconding, therefore, he obtained warrant for attachment of movable properties of accused appellants and executed the same against them. He has proved memo of execution of warrant of attachment Ext.Ka.-12 in his statement.

P.W.-5 Anand Swarup Sharma, I.O. has stated in his statement that after having completed investigation in accordance with law he submitted charge sheet Ext.Ka-13 against accused appellants Dr. Sajid Akbar and Mahboob alias Gutka in makroori.

P.W.-5 Anand Swarup Sharma, I.O. has proved in his statement inquest report of deceased Azimuddin Ext.Ka-14, photo nash Ext.Ka-15, challan nash Ext.Ka-16, letter to CMO Ext.Ka-17 and letter to R.I. Ext.Ka-18 as a secondary witness by identifying hand writing and signature of S.I. Ashok Kumar..

P.W.-6 Dr. R.P. Jauhari has stated in his statement on oath that on 21.5.1990 he was posted as Medical Officer in Male Hospital Chandpur. He has stated that on 21.5.1990 deceased Azimuddin was brought by H.C. 144 Raghunath Singh and complainant Fariddudin in injured condition. He was unconscious. He has stated in his statement that injured was given injection of diksona but he died at 9.25 p.m..

P.W.-6 Dr. R.P. Jauhari has stated in his statement that after death of deceased Azimuddin he prepared death memo Ext.Ka-19 and sent it to police station Chandpur.

P.W.-7 Inspector Rakch Pal Singh is also an Investigating Officer. He has stated in his statement that investigation of this crime was entrusted to him on 13.8.1990 with the order of Government. He has stated that previous investigation had been done by Inspector Anand Swarup Sharma.

P.W.-7 Inspector Rakch Pal Singh has stated in his statement that he inspected the place of occurrence and after investigation he found that the charge sheet submitted against accused appellants is correct. Thereafter, on 22.8.1991 he arrested accused appellant Dr. Sajid Akbar while accused appellant Mahboob surrendered before court. He recorded statements of both accused and sent blood stained earth, plain earth as well as blood stained cloths of deceased for chemical examination. He has proved his report Ext.Ka.-21 for sending said articles to Chemical Examiner. He has proved letter of Police Adhikshak, Bijnor Ext.Ka.-22 also.

P.W.-8 C.P. 872 Rishi Pal Singh has stated in his statement on oath that on 21.5.1990 he was posted at out post Chandpur. On that day at about 8.30 p.m. complainant Fariddudin came to out post. At that time Constable Bhagwan Singh, Head Constable Raghunath Singh and Deewan Dhurendra were present on out post.

P.W.-8 C.P. 872 Rishi Pal Singh has stated in his statement on oath that having come to out post complainant Fariddudin told that Dr. Sajid Akbar and Mahboob have shot his brother Azimuddin and he is lying behind out post.

P.W.-8 C.P. 872 Rishi Pal Singh has stated in his statement that after having received information from complainant Fariddudin he alongwith Constable Bhagwan Singh and Head Constable Raghunath Singh rushed to the spot where they saw Azimuddin was crying in injured condition.

P.W.-8 C.P. 872 Rishi Pal Singh has stated in his statement on oath that injured Azimuddin told them that Dr. Sajid Akbar and Mahboob have shot him. P.W.-8 C.P. 872 Rishi Pal Singh has stated in his statement that he alongwith Deewan Raghunath Singh and complainant Fariddudin brought injured Azimuddin to hospital. He has stated that Azimuddin was alive till he reached hospital but doctor was not present in hospital. Doctor was called. Doctor came and gave injection to Azimuddin, Azimuddin died after sometime.

P.W.-8 C.P. 872 Rishi Pal Singh has stated in his statement that complainant Fariddudin went to police station for lodging FIR after having brought injured Azimuddin to hospital.

P.W.-8 C.P. 872 Rishi Pal Singh has stated in his statement that after death of Azimuddin, S.I. Ashok Kumar came to hospital. He prepared inquest report of deceased Azimuddin and kept dead body in sealed cover.

P.W.-8 C.P. 872 Rishi Pal Singh has stated in his statement that dead body was brought for post mortem in sealed cover by him alongwith Deewan Bhagwan Singh. None was permitted to touch the dead body till it remained in their custody.

P.W.-9 H.C. 123 Kanchhi Singh Raghav has stated in his statement on oath that on 21.5.1990 he was posted in P.S. Chandpur as Head Moharrir. He has proved chik FIR of Crime No.143 of 1990 under section 307 IPC Ext.Ka-23 as well as G.D. of registration of crime Ext.Ka.-24.

P.W.-9 H.C. 123 Kanchhi Singh Raghav has stated in his statement that on the same day on 21.5.1990 at 22.15 p.m. death memo of deceased Azimuddin was brought by Head Constable 144 Raghunath Singh. On the basis of which crime was converted into offence under section 302 IPC.. He has proved copy of G.D. relating to conversion of crime Ext.Ka-25 also in his statement.

In his statement under section 313 Cr.P.C. accused appellant Dr. Sajid Akbar has stated that P.W.-5 Anand Swarup Sharma, the then S.H.O. of police station Chandur had enmity with him because he had led a procession against him regarding fake encounter of Pappu and Brijendra. This news was published in daily newspaper Dainik Ujala and in this matter later on CID inquiry was instituted with his efforts.

Accused appellant Dr. Sajid Akbar had further stated in his statement recorded under section 313 Cr.P.C. that he had made a complaint against aforesaid Anand Swarup Sharma, the then S.H.O. of P.S. Chandpur regarding booth capturing in Assembly Election and had demanded his transfer, whereupon re-polling had been ordered.

Accused appellant Mahboob alias Gutka has stated in his statement recorded under section 313 Cr.P.C. that deceased Azimuddin and complainant Fariddudin were doing work of deed writer but licence of deceased Azimuddin was fake. Complaint in this respect had been made by him alongwith others. He has been falsely implicated due to this enmity.

D.W.-1 Surya Mani Raghuvanshi has stated in his statement on oath that he is Editor of daily newspaper Chingari, Bijnor. He has stated in his statement that he had published a news item on 3.12.1989 in his said paper with heading,"Chunav mein dhandhali karayee hai daroga ko chalta karo". He has stated that this news was published on the basis of a letter of accused appellant Dr. Sajid Akbar to Chaudhary Ajeet Singh, in which he had made complaint against Anand Swarup Sharma, the then S.H.O. of police station Chandpur.

D.W.-2 Mohd. Yusuf Hashimi has stated in his statement on oath that he is Superintendent (Tax) in Nagar Palika, Chandpur. He has stated in his statement that he knows accused appellant Dr. Sajid Akbar. His nursing home is situated in front of registry office. He has further stated in his statement that he has brought with him Assessment Register of Nagar Palika, Chandpur for the year 1991-92. He has stated that in this Assessment Register one matab duplex and a kothari is in the name of accused appellant Dr. Sajid Akbar. In Assessment Register there is no entry of shop and Nursing home.

D.W.-3 Naresh Kumar has stated in his statement that he is correspondent of daily newspaper Dainik Ujala. He has stated that on 3.1.1990 a news item was published in his newspaper with heading," Farji Mudbher ke viroddh mein gramino ka pradarshan". He has further stated in his statement that a procession was organized by Janta Dal leader Dr. Sajid Akbar against alleged fake encounter.

D.W.-3 Naresh Kumar has proved in his statement publication of said news item in daily newspaper Dainik Ujala as Ext.Kha-6.

After having gone through whole evidence on record, it is apparent that P.W.-1 Fariddudin is an eye witness of occurrence as alleged by prosecution. P.W.-2 Anees Ahmad is also alleged to be an eye witness of occurrence but he has not supported the version of prosecution in his statement on oath. It is apparent from the cross examination made by prosecution that he has supported the version of prosecution in his statements recorded under section161 Cr.P.C. as well as section 164 Cr.P.C.. He has filed affidavit also in support of prosecution version. Therefore, merely on the ground that P.W.-2 Anees Ahmad has not supported version of prosecution in his statement on oath before court, case of prosecution cannot be thrown out.

It is apparent from FIR Ext.Ka-2 as well as statement of P.W.-1 Fariddudin that just after occurrence injured Azimuddin has stated name of accused appellants Dr. Sajid Akbar and Mahboob before police of out post and has stated that they have shot him. This version of FIR as well as statement of P.W.-1 complainant Fariddudin has been supported by P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 C.P. 872 Rishi Pal Singh, who were posted at the police out post at the time of occurrence.

Occurrence is alleged to have taken place on 21.5.1990 at 8.30 p.m. and FIR Ext.Ka-2 has been lodged at police station Chandpur on the same day at 21.05 p.m. just 35 minutes after occurrence. It is apparent from FIR Ext.Ka-2 as well as from statements of P.W.-1 complainant Fariddudin, P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 C.P. 872 Rishi Pal Singh that they brought injured Azimuddin from place of occurrence to hospital. Thereafter, complainant Fariddudin went to police station Chandpur from hospital to lodge FIR.

P.W.-6 Dr. R.P. Jauhari has stated in his statement on oath that on 21.5.1990 injured Azimuddin was brought by H.C. 144 Raghunath Singh and complainant Fariddudin to Male Hospital, Chandpur where he was given injection by him. Thereafter at 9.25 p.m. he died in the hospital.

P.W.-1 complainant Fariddudin has stated in his statement that he wrote First Information Report Ext.Ka-2 in hospital and presented the same in P.S. Chandpur. P.W.-4 H.C. 144 Raghunath Singh has also stated in his statement that complainant Fariddudin went to police station from hospital to lodge FIR. P.W.-8 C.P. 872 Rishi Pal Singh has also stated in his statement on oath that after having reached hospital complainant Fariddudin went to police station Chandpur for lodging FIR. It is also apparent from FIR Ext.Ka-2 that it has been prepared and lodged before death of deceased Azimuddin brother of complainant. This fact is supported by statement of P.W.-5 I.O. Anand Swarup Sharma also After having gone through whole evidence on record as well as circumstances of the case, we are of the view that trial court has rightly held that there is no sufficient ground to hold FIR anti time.

In the case of Dharmveer and others Vs. State of U.P., AIR 2010 S.C. 1378 Hon'ble Apex Court has held that,"the evidence of an eye witness cannot be rejected only on the ground that enmity exists between parties or witness is related to deceased."

In the case of Dharmveer and others Vs. State of U.P.(supra) Hon'ble Apex Court has further held that ,"merely the fact that the witness did not suffer any injury, will not make his evidence untrustworthy."

In view of principle laid down by Hon'ble Apex Court in aforesaid pronouncement, it is apparent that the testimony of P.W.-1 complainant Fariddudin cannot be disbelieved merely on the ground that he is brother of deceased Azimuddin and has enmity with accused appellants.

In view of above pronouncement of Hon'ble Apex Court it is also apparent that testimony of P.W.-1 complainant Fariddudin cannot be disbelieved on the ground that he has not suffered injury in the occurrence alleged by prosecution.

As concluded above, FIR Ext.Ka-2 is quite prompt and has been lodged by complainant P.W.-1 Fariddudin soon after occurrence. It is also apparent from FIR Ext.Ka-2 as well as statement of P.W.-1 complainant Fariddudin that just after occurrence complainant rushed to police out post situated near place of occurrence and told police officials that his brother Azimuddin has been shot by accused appellants Dr. Sajid Akbar and Mahboob alias Gutka. This version of First Information Report Ext.Ka-2 as well as statement of P.W.-1 complainant Fariddudin finds full support from statements of P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 Constable C.P. 872 Rishi Pal Singh who were posted at the police out post at the time of occurrence. P.W.-4 H.C. 144 Raghunath Singh has proved G.D. of out post regarding his rawangi Ext.Ka-8. In this entry of G.D. Ext.Ka-8 it has been specifically mentioned that complainant Fariddudin came to police chawki and informed that his brother Azimuddin has been shot by accused appellants Dr. Sajid Akbar and Mahboob. His brother is lying behind police chawki.

It is apparent from FIR Ext.Ka-2 as well as statements of P.W.-1 complainant Fariddudin, P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 Constable C.P. 872 Rishi Pal Singh that injured Azimuddin, brother of complainant stated before police of out post that he has been shot by accused appellants Dr. Sajid Akbar and Mahboob. Thereafter, injured Azimuddin was carried by them to hospital where he died. This statement made by injured Azimuddin before complainant as well as P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 Constable C.P. 872 Rishi Pal Singh regarding occurrence and injuries which caused his death shall be read as dying declaration under section 32 of Evidence Act.

In this context it is relevant to mention that learned counsel for accused appellants has drawn our attention towards statement of P.W.-3 Dr. M.L. Garg, in which P.W.-3 Dr. M.L. Garg has stated that after having received injuries no. 1 and 2 it is impossible to go 30 to 40 steps. In such circumstances hardly after going one or half step injured shall fell down. We have considered the said statement of P.W.-3 Dr. M.L. Garg.

In the case of Sarvdul Singh Vs. State of Punjab 1994 Cr.L.J. 626 SC Hon'ble Apex Court has held that," ocular evidence will prevail over medical evidence when credibility of eye witness is established beyond doubt.

In the case of Ravi Kumar Vs. State of Punjab AIR 2005 SC 1929, Hon'ble Apex Court has held that ,"when the ocular evidence is cogent and credible, medical evidence to the contrary can not corrode the evidentiary value of the former."

Perusal of site plan Ext.Ka-10 proved by P.W.-5 I.O. Anand Swarup Sharma shows that the place where injured Azimuddin was lying after occurrence has been shown with letter 'A' and this place is situated just behind building of police out post, therefore, it is natural that after occurrence complainant Fariddudin must have gone to out post and this version of First Information Report Ext.Ka.-2 as well as statement of complainant P.W.-1 Fariddudin finds full support from statements of P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 Constable C.P. 872 Rishi Pal Singh as well as copy of G.D. of out post Ext.Ka-8.

After having received information from P.W.-1 complainant Fariddudin it is also natural that P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 Constable C.P 872 Rishi Pal Singh must have gone to the place where injured Azimuddin was lying behind out post.

In view of above, we are of the view that there is no sufficient ground to disbelieve version of FIR Ext.Ka-2 and statements of P.W.-1 complainant Fariddudin, P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 Constable C.P. 872 Rishi Pal Singh regarding the fact that just after occurrence complainant Fariddudin went to police chawki, whereupon P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 Constable C.P. 872 Rishi Pal Singh went to injured Azimuddin where Azimuddin stated before P.W.-4 H.C. 144 Raghunath Singh, P.W.-8 Constable C.P. 872 Rishi Pal Singh and P.W.-1 complainant Fariddudin that accused appellants Dr. Sajid Akbar and Mahboob has shot him. In view of above pronouncements of Hon'ble Apex Court statements made by these three eye witnesses can not be discarded merely on the ground of an opinion expressed by P.W.-3 Dr. M.L. Garg.

Learned counsel for accused appellants have contended that there is material contradiction between first information given by complainant P.W.-1 Fariddudin to police out post reduced in writing in G.D. Ext.Ka.-8 and First Information Report Ext.Ka-2 lodged by complainant in police station Chandpur.

We have considered carefully this contention also raised by learned counsel for accused appellants.

It is apparent from first information given by complainant Fariddudin to police out post which has been reduced in writing in G.D. Ext.Ka.-8 that complainant Fariddudin informed police just after occurrence that accused appellants Dr. Sajid Akbar and Mahboob have shot his brother Azimuddin. Same statement has been given by injured Azimuddin (now deceased) before complainant Fariddudin, P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 Constable C.P. 872 Rishi Pal Singh but in FIR Ext.Ka-2 as well as in statement on oath P.W.-1 complainant Fariddudin has stated that accused appellant Dr. Sajid Akbar caused two fire arm injuries to his brother Azimuddin at two different places in the same occurrence. Statement of P.W.-3 Dr. M.L. Garg as well as post mortem report Ext.Ka-7 shows that four ante mortem injuries have been found on the dead body of deceased Azimuddin. Out of which injuries no. 1 and 2 mentioned in post mortem report Ext.Ka-7 were gun shot wounds of entry and injuries no. 3 and 4 mentioned in post mortem report Ext.Ka-7 were gun shot wounds of exit. Thus, it is apparent from post mortem report Ext.Ka-7 as well as statement of P.W.-3 Dr. M.L. Garg that deceased Azimuddin has received injuries of two fires and according to FIR Ext.Ka-2 as well as statement of P.W.-1 complainant Fariddudin said two fires were made by accused appellant Dr. Sajid Akbar. In FIR Ext.Ka-2 it has also been mentioned that after receiving second fire arm injury caused by accused appellant Dr. Sajid Akbar complainant's brother Azimuddin ran towards police out post, whereupon accused appellants Dr. Sajid Akbar and Mahboob chased him and made two or three more fires. In his statement on oath also P.W.-1 complainant Fariddudin has stated that in addition to two fires made by accused appellant Dr. Sajid Akbar causing injuries to his brother Azimuddin two more fires were made. After having gone through FIR Ext.Ka-2 as well as statement of P.W.-1 complainant Fariddudin it can not be said that role of firing has not been assigned to accused appellant Mahboob in FIR Ext.Ka-2. Besides this, it is relevant to mention that in First Information Report given by complainant to police out post reduced in G.D. Ext.Ka-8 as well as in FIR Ext.Ka-2 presence and involvement of both accused appellants have been mentioned in the occurrence alleged by prosecution. Soon after occurrence P.W.-1 complainant Fariddudin has rushed to police chawki and gave information regarding occurrence in brief, whereupon police officials of out post P.W.-4 H.C. 144 Raghunath Singh and P.W.-8 Constable C.P. 872 Rishi Pal Singh went to the injured Azimuddin brother of complainant, who was lying injured. Injured Azimuddin has also given information regarding incident in brief as he was seriously injured. While in FIR Ext.Ka-2 P.W.-1 complainant Fariddudin has given detail description of incident.

Considering whole evidence and circumstances of the case, we are of the view that there is no material contradiction between first information given by Fariddudin to police out post reduced in G.D. Ext.Ka-8 and version of FIR Ext.Ka-2.

In the case of Brahm Swaroop and another Vs. State of U.P., AIR 2011 S.C. 280, Hon'ble Apex Court has held that,"If the evidence of eye-witnesses is trustworthy and believed by the court, the question of motive becomes totally irrelevant."

In view of this pronouncement of Hon'ble Apex Court and statement of eye witness P.W.-1 complainant Fariddudin as well as dying declaration of deceased, motive of occurrence appears immaterial. However, the complainant has mentioned reason/motive of occurrence and has proved the same in his statement on oath.

In the case of Sharda Vs State of Rajasthan, AIR 2010 S.C. 408, Hon'ble Apex Court has held that it is indicative of the fact that," a man who is on a deathbed would not tell a lie to falsely implicate an innocent person."

Time and manner of occurrence alleged by prosecution and complainant P.W.-1 Fariddudin are fully corroborated by statement of P.W.-3 Dr. M.L. Garg and post mortem report Ext.Ka-7. Place of occurrence is fully corroborated by statement of P.W.-5 I.O. Anand Swarup Sharma and site plan Ext.Ka.-10.

In site plan Ext.Ka-10 Akbar Medical Store has been shown where first fire arm injury was caused to deceased Azimuddin by accused appellant Dr. Sajid Akbar. In site plan Ext.Ka-10 Akbar Nursing Home has also been shown where accused appellant Dr. Sajid Akbar caused second fire arm injury to deceased Azimuddin. D.W.-2 Mohd. Yusuf Hashmi has stated that in assessment register there is entry of Matab duplex and kothari in the name of Dr. Sajid Akbar and his nursing home is situated in front of registry office. Site plan Ext.Ka-10 is corroborated by statement of D.W.-2 Mohd. Yusuf Hashmi also.

It is apparent from statement of P.W.-7 Inspector Rakch Pal Singh that after investigation made by P.W.-5 Anand Swarup Sharma, investigation had been referred to C.B. C.I.D. and P.W.-7 Inspector Rakch Pal Singh has investigated the case on behalf of C.B. C.I.D.. He has stated in his statement on oath that after investigation he found charge sheet correct.

Considering entire evidence on record as well as statement of P.W.-7 Inspector Rakch Pal Singh, we are of the view that no adverse inference may be drawn against prosecution on the ground that accused appellant Dr. Sajid Akbar had raised complaints against I.O. P.W.-5 Anand Swarup Sharma before this occurrence.

After having gone through entire evidence on record as well as facts and circumstances of the case, we are of the view that evidence adduced by prosecution is sufficient to convict both accused appellants for offence punishable under section 302 IPC read with section 34 IPC and conviction recorded by trial court against accused appellants is not against evidence as well as law.

Perusal of impugned judgement passed by trial court shows that trial court has gone through entire evidence on record and has considered all facts relevant for determination of the case. The conclusion drawn by trial court is based on judicious analysis and evidence on record in the light of judicial pronouncements. In the case of State Vs. Saravanan, AIR 2009 SC 152, Hon'ble Apex Court has held that,"The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons".

Sentence awarded by trial court can not be said to be excessive and no appeal has been preferred by State for enhancement of sentence.

In view of discussion made and conclusion drawn above, we are of the view that there is no sufficient ground for interference in the impugned judgement and order passed by trial court.

Appeal has no merit and is dismissed accordingly.

Accused appellants Dr. Sajid Akbar and Mahboob alias Gutka are on bail. They shall surrender before the trial court for serving sentence within 30 days from the date of judgement of this Court, failing which trial court shall ensure their arrest and shall send them to jail for serving sentence in accordance with law.

Office is directed to send copy of this judgement to trial court for securing compliance.

Send back records of trial court immediately.

Order Date :-16.01.2015 LJ/-

(Hon. Akhtar Husain Khan,J) (Hon. Arun Tandon,J.)

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