Madhya Pradesh High Court
Abid Mohammad Siddiki vs State Of M.P. on 12 May, 2022
Author: Rajeev Kumar Shrivastava
Bench: G. S. Ahluwalia, Rajeev Kumar Shrivastava
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE RAJEEV KUMAR
SHRIVASTAVA
ON THE 12th MAY, 2022
CRIMINAL APPEAL NO. 1014 of 2011
Between:-
ABID MOHAMMAD SIDDIKI, SON OF
HANIF MOHAMMAD, AGED 30 YEARS,
OCCUPATION: LABOUR, RESIDENT OF
PICHOR KI PAHADIYA, ABADPURA,
LASHKAR, GWALIOR, MADHYA
PRADESH
.... APPELLANT
(BY SHRI IMRAN KHAN- ADVOCATE)
STATE OF MADHYA PRADESH
THROUGH POLICE STATION KAMPOO,
GWALIOR, MADHYA PRADESH
....RESPONDENT
(BY SHRI C.P. SINGH, PUBLIC PROSECUTOR)
Reserved on : 5th of May, 2022
Delivered on : 12th of May, 2022
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This appeal coming on for final hearing, Hon'ble Shri
Justice Rajeev Kumar Shrivastava, passed the following:
JUDGMENT
Being dissatisfied with the judgment of conviction and sentence dated 18th October, 2011 passed by 14th Sessions Judge, Gwalior (Madhya Pradesh) in Sessions Trial No.272 of 2010, whereby appellant has been convicted under Section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.3,000/- with default stipulation and has been further convicted under Section 324 of IPC and sentenced to undergo one year rigorous imprisonment with fine of Rs.1,000/- with default stipulation. Both the sentences have been directed to run concurrently.
(2) The prosecution case, in brief, is that marriage of Najia (the daughter of complainant Ajeem Khan) was solemnized with appellant Abid 10 years' ago and their relationship became strain and a report of which was lodged at Mahila Police Station Padav, by Najia and thereafter, they entered into a compromise and Najia started living with the appellant. It is alleged by complainant that 3 on 08-04-2010 in the night, Najia along with her two children one daughter Mushkan, son Saheel and his three daughters, namely, Najma, Nasreen and Tabsoom were slept in the room and near about 06:00 in the morning, appellant Abid entered in his inlaws' house and stabbed knife blows to Najia. After retaliation of Najma, the appellant with intention to kill stabbed blows at the back of Najma. On raising her alarm, when father and mother of Najia arrived at room, saw that the appellant was inflicting knife blows to Najia and on seeing them, appellant fled away from the scene of occurrence and Najia was found dead on the spot. Thereafter, the complainant went to lodge a report at police station. On information of complainant, merg Ex.P9 was got registered by Head Constable Gangaram (PW8) on the basis of which, thereafter FIR (Ex.P1) was got registered by Officer-in- Charge of Police Station Kampoo, Gwalior for offences under Section 302, 307 of IPC and the memo of corpse was prepared. The sister of deceased Najma (PW1) was sent for medical examination and the appellant accused was arrested and a knife was recovered from the possession of appellant. After completion 4 of investigation and other formalities, police filed a charge sheet before the Court from where case was committed to Sessions Court for its trial.
(3) Appellant accused abjured his guilt and in his defence, he did not examine any witness. In examination of the accused, he expressed that he is innocent and falsely implicated. He has not committed any offence and his in-laws have conspired against him. The prosecution, in support of its case, has examined eleven witnesses.
(4) Learned Trial Court, after appreciating the entire evidence led by the prosecution and relying on the same, found charges against the appellant as proved and accordingly, convicted and sentenced vide impugned judgment for offences as mentioned above in paragraph (1) of this judgment.
(5) It is contended on behalf of appellant that there is material contradiction and inconsistency on the vital points of case in the statements of the witnesses produced on behalf of prosecution. The material available on record has not been properly and 5 correctly appreciated by the Trial Court and findings arrived at by the Trial Court are against law. The prosecution story appears to be doubtful. It is also contended that no independent witnesses have been examined and no other eye-witnesses have been examined by prosecution. The FIR is an ante-dated and ante-time. The seized knife and copy of FIR were not sent to the doctor to corroborate the fact that the injuries have been caused by seized knife. It is also contended that evidence of child witness Mushkan (PW3) is contradictory and inconsistency on several material points of case. Even then, the trial Court has wrongly convicted and sentenced the appellant relying upon the said contradiction and inconsistency of said child witness. It is further contended that from where, how and who saw the accused by entering in the room. When it is explicit from statements of witnesses that there is only door to enter in a room, even then the trial Court has not seriously considered the said aspect. Hence, it is prayed that the impugned judgment passed by Trial Court deserves to be set aside by allowing this appeal.
(6) On the other hand, learned counsel for the State supported 6 the impugned judgment and submitted that prosecution evidence is fully corroborated by medical evidence and there is no infirmity in the impugned judgment. The Trial Court has not committed any error in convicting and sentencing the appellant for the aforesaid offences. Hence, prayed for dismissal of this appeal.
(7) The moot question for consideration of this appeal is as to whether the appellant with intention to kill, committed murder of his wife Najia on the alleged date of incident by means of knife by entering in the room of his in-laws' house or not ? (8) We have heard learned counsel for the parties and perused the impugned record.
(9) Najma (PW1), who is younger sister of deceased Najia in her evidence deposed that accused- appellant used to harass and torture to her elder sister Najia and a report in this regard was lodged by Najia at Mahila Police Station Padav on 9 th March, 2010. This witness in para 2 of her examination-in-chief deposed that since her brother-in-law Jijaji (appellant accused) Abid had 7 remained absconding in connection with criminal case, therefore, her sister Najia was living with her children in their house. On the date of incident i.e. 8th April, 2010 at around 06:00- 06:15 in the morning, Najia along with children was sleeping on the floor of kitchen by lying a mattress because of stop-working of their cooler. On the early morning, accused Abid came there and started giving knife blows and when she tried to rescue her sister Najia, accused Abid also inflicted knife blows on her back as a result of which, blood started oozing. Accused Abid was continuously inflicting knife blows at Najia. Mushkan, the daughter of Najia was wrapped on neck and said her father appellant Abid to leave her mother Najia. This witness further deposed that thereafter, she came out from the house and on raising her alarm, her father, mother and brother Ramjan reached there, who saw that appellant-accused was inflicting injuries by knife blows. This witness in para 15 of her cross-examination deposed that there was one inch cut mark of knife in her salwar suit and the said articles were not seized by police on the date of incident and till now, these articles are kept by her. This witness 8 further deposed that the information regarding blood-stained salwar suit was given by her to police and there is no individual dispute of her with appellant-accused Abid. The evidence of this witness remained unchanged in her cross-examination. (10) The child witness of the incident, namely, Mushkan (PW3) in her evidence deposed that on the date of incident, her father Abid was inflicting knife blows to her mother Najia and she told her father to leave her mother after wrapping on the neck of her father, but her father Abid told her to step aside otherwise he will kill her and her aunt (Khalla) Najma had also sustained knife injuries in the incident. This child witness further deposed that there was an illicit relationship between her father with the wife of one Pappu and she had seen both of them in naked position. Her father falsely made allegation on her mother that her mother has also some illicit relationship with one Akhtar but her mother was not of that type. After inflicting knife blows, her mother died and thereafter, her father accused- appellant Abid fled away from the scene of occurrence. This child witness in paragraph 19 of her cross-examination, deposed that she had never seen Akhtar since 9 the date of their living in her maternal grand-father's house. This witness denied that Akhtar used to come and meet in secret to her mother. This witness further denied that neither her mother was caught red-handed nor there was any doubt on this issue. The examination-in-chief of this child witness as well as of Najma (PW1) is fully corroborated by father of deceased- complainant Ajeem Khan (PW4) in his para 2 of his cross-examination. (11) Anjumb Bano (PW2) who is the mother of deceased Najia in her evidence deposed that on hearing cries, when she reached the scene of occurrence, she saw that the appellant Abid was inflicting knife blows at her daughter Najia and thereafter fled away from back gate of her house and accused appellant had also caused knife blow at the back of her daughter Najma.This witness deposed that her daughter deceased Najia died on the spot and thereafter, they brought her daughter injured Najma to Hospital through an ambulance.
(12) Munna Khan & Usman Khan (PW5) in his evidence deposed that on the basis of his memorandum Ex.P4, police had 10 seized a knife from the possession of appellant in his presence vide Ex.P5.
(13) Dr.JP Goyal (PW6) in his evidence deposed that he was posted as Medical Officer in Emergency Ward, Gwalior and on 08-04-2010 at around 07:00 am, on medical examination of injured Najma (PW1), he found an incised wound size 3cmx5cmx exact depth of 5 cm unforeseen. On the left sequel region of middle bakhore, blood oozing was present. Injuries were caused by sharp-cutting object and was within six hours of examination. This witness in paragraph 3 of his evidence denied that these injuries would be caused due to falling by the injured on sharp- cutting object.
(14) Dr. Nikhil Agrawal (PW9) had conducted autopsy of deceased Najia on 08-04-2010 at around 12:50 pm and found following antemortem injuries on the body of deceased Najia:-
''(1) An incised wound present on anterior aspect of neck in horizontal manner 6 cm below chin, size 6.5 long margin approximated and deep to superficial layer of skin and subcutaneous layer of skin.
(2) A stab wound present on neck at right side lateral part 5.5 cm vertically above mid clavicular region size 2 11 cm x 0.3 cm deep to subcutaneous tissue. (3) Another stab wound present on right side neck 1.5 cm supper-posterior to wound no.2, size 1.5 cm x 0.2 cm x 1.5 cm.
(4) An incised wound present on back of neck at mid part, semi-linear in shape, convexity facing on upwards and right side size 2.5 cm x 0.2 cm deep to skin. (5) Another incised wound present 2.5 cm below the wound No.4, size 1.5 cm x 0.2 cm skin deep. (6) A stab wound present on posterolateral aspect of chest on right side 12 cm below axillaryfold size 2.5 cm x 1 cm deep to thoracic cavity bleeding evident. (7) A stab wound present on lateral aspect of right upper arm size 1 cm x 0.5 cm and 2 cm deep up to muscles. (8) A stab wound present on right side lower thoracic abdominal part on lateral aspect, 12 cm above iliac chest size 3 cm x 1cm and 5 cm deep to abdominal cavity damaging the liver in its parenchyma. Another stab wound present on lateral aspect of abdomen, 4 cm below the mentioned wound size 2.5 cm x 0.5 cm and 4.5 cm deep into abdominal cavity by damaging the large bowel on its upper part and then damaging the posterior wall of parenchyma and damaging the right kidney.
(9) A stab wound present on right breast on its interolateral aspect size 2 cm x 1cm extending deep into the thoracic cavity and damaging the right lung lower lobe through and through.
(10) A stab wound present on right breast at interior right-bottom fold size 3 cm x 2 cm extending into thoracic cavity through 6th inter-coastal space and damaging the right lobe of liver at upper part, would place obliquely vertical, upper part is facing laterally. (11) A stab wound present on right breast interior right- 12 bottom fold on lower lateral aspect size 3.5 cm x 0.5 cm and extending deep into abdominal cavity through 7 th inter-coastal space with damaging medially. An abrasion present on sight breast in interolateral aspect size 2.5 cm x 2 cm reddish coloured.
(12) A stab wound present on right forearm flexor part at mid-region along its length size 3.5 cm x 2.5 cm and 6.5 deep into muscles and by damaging and cutting them and exit out at exterior surface, in through and through manner by making and cutting. A wound of 2 cm x 1.5 cm on exterior surface.
(13) A stab wound present on right palm size 3 cm x. 0.2 cm extending in palm and cutting the muscles and hand and exit at dorsum of hand upto phalangeal joint of index finger by making a wound of size 2.5 cm x 5 cm long with damage to vessels of hand.
(14) An incised wound present on left wrist at dorsolateral border size 3 cm x 1.5 cm bone deep, bone visible.
(15) An incised wound present on dorsum of ring finger of left hand size 2 cm x1 cm, skin retracted, bone visible at interphalangeal joint. Another incised wound present at dorsum of middle finger of left hand at nail region size 3 cm x margins approximated deep up-to bone. A incised and stab that are sharp cutting and penetrating.'' (15) According to Dr. Agrawal, all mentioned injuries are fresh still death. All injuries have been caused by a sharp-cutting weapon having sharpness on single edge, except an abrasion described in wound No.11. Nature of death of deceased was homicidal. Injuries mentioned, extending to chest and abdomen 13 and on upper limb and fatal consecutively and individually and sufficient to cause death in the ordinary course of nature.
According to opinion of doctor, the death of deceased was due to shock and haemorrhage as a result of injuries to chest and abdomen. Injuries have been caused by single edged sharp-cutting penetrating weapon. Duration of death was within 3 to 24 hours since postmortem examination. Nature of death of deceased was homicidal.
(16) Yashwant Goyal (PW10) who was posted as Sub-Inspector of Police Station Kotwali, Morena on 10-04-2010 in his deposition stated that on receiving information, he had arrested accused vide arrest memo Ex.P11. Similarly, Rajendra Pathak (PW11) who was posted as SHO at Police Station Kampoo, Gwalior on 08-04-2010 in his evidence deposed that FIR Ex.P1 was registered and copy of same was sent to concerning Magistrate. Spot map was prepared by him vide Ex.P2. Blood stained incriminating materials from the spot were seized by him vide Ex.P12. Statements of the witnesses were recorded. After 14 preparation of safina form Ex.P13, lash panchnama was got prepared. Panchnama of dead body of deceased was prepared vide Ex.P14 and thereafter, an application for conduction of postmortem of deceased was sent vide Ex.P10-A. On the basis of memorandum of accused appellant, from his possession, a knife which was kept under bushes of Bhuri Mata Mandir, was seized vide seizure memo Ex.P5. Similarly, Pramod Tiwari (PW7) in his evidence deposed that he had brought the eized articles from JA Hospital, Gwalior through seizure memo Ex.P8. The merg report Ex.P9 has been found proved by Gangaram (PW8) who was posted, on the date of incident, as Head Constable at Police Station Kampoo.
(17) So far as contention of counsel for the appellant that no independent witness and other eye-witnesses have been examined by prosecution is concerned, the said contention of the counsel for the appellant has no force as the Hon'ble Apex Court in the matter of Guru Dutt Pathak vs. State of Uttar Pradesh, (2021) 6 SCC 116, has already held that mere non-examination of independent witnesses and/or in absence of examination of any independent 15 witnesses, would not be fatal to prosecution case. Therefore, failure to examine any available independent witness is inconsequential. It is quality of evidence and not number of witnesses, that is relevant. In the case at hand, the injured witness Najma (PW1) and child witness Mushkan (PW3) are eye- witnesses to the alleged incident when appellant-accused was inflicting knife blows to his wife deceased Najia. (18) So far as next contention of counsel for the appellant that there is some contradictory and inconsistency in the evidence of Mushkan (PW3) who is daughter of appellant, is concerned, although there is minor contradiction and omission in evidence of child witness Mushkan (PW3) but her testimony should not be rejected on the ground that she being a tender age. The Court may seek corroboration of such testimony not as a rule but way of caution. Discrepancy in the testimony if not in material particulars, would lend credence to it. If child witness withstands cross-examination and if her testimony inspires confidence so as to rule out the possibility of tutoring, it can be relied upon as the sole basis for convicting the accused. In the case at hand, when 16 the sole child witness as well as eye-witness to incident, at the time of her deposition before trial Court has already supported the prosecution version stating that her father appellant had inflicted fatal knife blows on her mother-deceased Najia, then it cannot be said that her evidence is not believable. In this regard, the judgment of Hon'ble Apex Court passed in the matter of Suryanarayana vs. State of Karnataka, (2001) 9 SCC 129 is relevant.
(19) So far as next contention of counsel for appellant that there is no forensic report regarding recovery of the seized knife is concerned, there is no substance in the said argument advanced by Counsel for accused. As discovery of weapon was made on the basis of memorandum of accused at the behest of accused at the place where he had kept by concealing it. Further, bloodstained and other incriminating articles were collected by police from the spot. Also, ocular evidence is supported by medical evidence. Therefore, it cannot be said that accused person has not used any weapon causing injuries to deceased as well as to injured Najma (PW1) in the incident.
17(20) Regarding minor inconsistency while appreciating evidence of witnesses, Hon'ble Apex Court Court in the matter of Krishna Gope vs. State of Bihar (2003) 10 SCC 45 has held as under:-
''3. On the side of the prosecution, PW-5 Bhola Gope and PW-6 Banwari Gope were examined to prove the incident. PW-6 is the sole eye-witness who saw the entire incident. According to him, at the relevant time, he was in the hut of one Ram Chandra Gope which was about 30 feet from the place of incident. He stated that he heard the noise of the wordy altercation that was going on between the deceased and the accused persons and saw the appellant-Krishna Gope bringing a country-made rifle and shooting the deceased. It was suggested to him that the hut of Ramchandra Gope was at some distance away from the place of occurrence and that it was not possible to see the place of occurrence as the same was at a lower level than the land on which Ramchandra Gope's hut was situated. But there is nothing in the evidence to show that there was anything to obstruct the visibility. It is quite common that a witness being a curious onlooker would always take up a vantage position to find out and gather the reasons of the quarrel that takes place in the village. Moreover, the accused is very much known to him and there could not have been possibility of his mistaking the identity of the accused.
4. The evidence of PW-6 is further corroborated by the evidence of PW-5, Bhola Gope. PW-5 deposed that at the relevant time his nephew Ashok Kumar came running to him and told him that a quarrel was going on between Sarjug Gope and accused Arbind Gope 18 and Karoo Gope. Bhola Gope, who was grazing his buffalo, left the cattle in the custody of Ashok Kumar and proceeded to the place of incident. When he reached there, he saw appellant-Krishna Gope running away from the place of occurrence. He saw Sarjug Gope lying in the field with injuries on his abdomen.
The evidence of PW-5 was severely attacked on the ground that this witness had no occasion to see the actual incident. Of course, this witness had not seen the appellant shooting the deceased, but, nevertheless, the fact that the appellant was at the place of incident and that he was seen running away from there is certainly an incriminating circumstance. Thus, the prosecution has satisfactorily proved that the appellant-Krishna Gope used his country-made firearm to cause injuries to the deceased.
5. Learned counsel for the appellant strenuously urged before us that the First Information statement itself is a fabricated document and that PW-12 could not have recorded the statement of the deceased Sarjug Gope. This contention was based on a note made at the bottom of the injury report prepared by Dr. Inderjit Prasad, who was the duty doctor at the Karai Parsurai dispensary where the injured Sarjug Gope was first taken for treatment. The injury report is Annexure P- 1, which is purported to have been prepared at 5.15 P.M. on 25.6.1984. In the last portion of this report, it is noted by Doctor : "As the patient was unconscious and so I could not be able to take dying delcaration and referred to P.M.C.H." Based on this note, it was contended by learned counsel that the injured Sarjug Gope must have been unconscious when he was stated to have made the statement to PW-12 at the Karai Parsarai hospital and therefore, the deposition of PW- 12 that he had gone to the hospital and recorded the First Information statement between 5.00 and 5.30 P.M. is highly improbable. We do not find much force 19 in the contention advanced by learned counsel for the appellant. It is pertinent to note that the doctor at the Karai Parasarai hospital was never asked to record any dying declaration nor was his assistance sought for the same by anybody. It might be possible that when the doctor saw the injured Sarjug Gope, he may have been unconscious. But that does not mean that when the Sub Inspector came to the hospital, the injured continued to be in that state. Moreover, PW-12 Sub Inspector could have recorded the statement of any other witness who was present at the hospital and treated the same as the First Information statement for the purpose of the case. PW-6 Banwari Gope was very much present at the hospital when the Sub Inspector took the statement of Sarju Gope. PW-6 even deposed that the statement recorded by PW-12 was read over to him and it was admitted to be correct by Sarjug Gope.
6. Counsel for the appellant also contended that PW- 12 when examined as a witness deposed that the statement of Sarjug Gope was recorded by one Braj Kishore Pandey and when he was confronted with a question that Braj Kishore Pandey, Asstt. Sub Inspector could not have been the person to record the statement of Sarjug Gope, PW-12 changed his version and said that it was recorded by one Suresh Singh and not Braj Kishore Pandey. This sort of minor mistakes are not uncommon and often committed as the investigating officer may, at a given point of time, be required to handle investigation of more than one criminal case. We do not attach much importance to an inconsistency of this sort.'' (21) On going through the prosecution evidence as well as on the basis of aforesaid discussion, it is evident that as per medical 20 evidence, the death of deceased Najia was homicidal in nature and was caused by sharp-cutting object like knife. Injuries were sufficient to cause death of deceased in the ordinary course of nature and injuries have been caused by single edged sharp- cutting penetrating weapon viz. knife by accused. Injured witness Najma (PW1) who is the younger sister of deceased Najia had also sustained knife injuries in the incident. Similarly, evidence of father of deceased Azeem Khan (PW4) and mother of deceased Anjumb Bano (PW2) who quickly reached the scene of occurrence at the time of inflicting knife blows by the appellant accused is fully corroborated by medical evidence and the same is emerged out from the material produced by Prosecution before the Trial Court.
(22) In the light of foregoing discussion, we are of the considered opinion that the learned Trial Court has properly and legally analyzed and appreciated the entire evidence available on record and did not commit any mistake in convicting and sentencing the appellant. Therefore, the judgment of conviction and sentence dated 18th October, 2011 passed by 14th Sessions 21 Judge, Gwalior (Madhya Pradesh) in Sessions Trial No.272 of 2010 is hereby affirmed.
(23) As a consequence thereof, the appeal fails and is hereby dismissed.
(24) Since appellant is stated to be in jail, therefore, he shall remain in jail to serve out the remaining jail sentence awarded by the Trial Court.
Let a copy of this judgment be sent to concerning jail authorities and also a copy of this judgment along with record be sent to concerning Trial Court for information and compliance.
(G. S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
MKB
Digitally signed by MAHENDRA
BARIK
Date: 2022.05.12 20:08:41 +05'30'