Allahabad High Court
Iqbal Khan vs State Of U.P. on 12 April, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 01.04.2019 Delivered on 12.04.2019 Criminal Appeal No. 8512 of 2008 Iqbal Khan ----- Appellant Vs State Of U.P. ----- Respondent For Appellant : Shri G.S. Chaturvedi (Sr. Advocate) Shri Ajatshatru Pandey, Sri Araf Khan For Respondent/State : Shri B.A. Khan, A.G.A. Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J
1. This appeal arises out of impugned judgement and order dated 03.12.2008 passed by Additional District & Sessions Judge/F.T.C., Court No. 1, Ghazipur in Sessions Trial No. 36 of 2007 (State Vs. Iqbal Khan & Anr.), convicting the accused-appellant under Sections 307/34 & 302/34 of I.P.C. and sentencing him to undergo under Section 307/34 of I.P.C. four years rigorous imprisonment and a fine of Rs. 4,000/-, in case of default thereof, one year additional imprisonment and under Section 302/34 of I.P.C., imprisonment for life and a fine of Rs. 16,000/-, in default thereof, one year additional imprisonment.
2. As per prosecution case, deceased Aurangzeb Khan, aged about 23 years was having an illicit relation with the second wife of accused-appellant Iqbal Khan as a result of which, on 25.04.2006 at about 9:00 P.M., accused-appellant Iqbal and the acquitted accused Imran Khan committed murder of the deceased by a country made pistol. It is said that on 25.04.2006 at 9:00 P.M., deceased Aurangzeb Khan was playing a game, known in the village as 'dominus' along with his friends. Accused-appellant reached there and caused firearm injury to the deceased on his back resulting his instantaneous death. Firearm injury was also sustained by PW-2 Mohd. Aasif Khan, who was sitting along with the deceased but the said injured witness has not supported the prosecution case. The incident has been witnessed by PW-3 Hasina Khatoon, mother of the deceased, who came out from her house to call the deceased for a dinner. At the instance of PW-3, at 10:00 P.M., on the basis of written report Ex.Ka.1., F.I.R. Ex.Ka.2 was registered against the appellant Iqbal Khan, acquitted accused Imran Khan and two other persons under Sections 307 and 302 of IPC. After preparing inquest, body was sent for postmortem, which was conducted by PW-7 Dr. Anil Kumar on 26.04.2006 vide Ex.Ka.6.
3. As per Autopsy Surgeon, following injuries have been found on the body of the deceased:
"(i) Wound of Entry: Oval in shape 1 cm x 1 cm with collar of abrasion + margin inverted.
(ii) Blackening + Tattooing in the area of 10 x 12 cm around the wound on the rt. back, 15 cm below shoulder and 3 cm from midline.
(iii) Wound of exit 2 cm x 2 cm on the lt. chest anterior side, 6 cm above and medial to lt. nipple, margins everted and wound communicate to entry wound."
4. The cause of death of the deceased was due to shock and haemorrhage as a result of ante mortem firearm injury.
5. While framing charge, the trial Judge has framed charge against two accused persons under Sections 307/34 and 302/34 of IPC.
6. So as to hold the accused persons guilty, prosecution has examined ten witnesses, whereas three defence witnesses have also been examined. Statement of the accused persons were also recorded under Section 313 of Cr.P.C. in which they pleaded their innocence and false implication.
7. By the impugned judgment, the trial Judge has acquitted co-accused Imran Khan of all the offences, whereas the appellant has been convicted under Sections 307/34 and 302/34 of I.P.C. and has been sentenced as mentioned in paragraph no.1 of this judgment. Hence this appeal.
8. Learned counsel for the appellant submits:
(i) that once on the same set of evidence, accused-appellant Imran Khan has been acquitted, the same benefit ought to have been given to the present appellant.
(ii) that PW-2 Mohd. Aasif Khan having been declared hostile, offence under Section 307/34 of I.P.C. has not been proved by the prosecution.
(iii) that after the acquittal of co-accused Imran Khan, appellant cannot be convicted with the aid of Section 34 of I.P.C.
(iv) that PW-3 Haseena Khatoon is not an eye-witness to the incident and has been planted as an eye-witness after the incident. It cannot be a co-incident that when PW-3 had come to call her son for a dinner, the incident takes place. In fact, presence of PW-3 itself is doubted at the place of occurrence.
(v) that there was no sufficient source of light at the place of occurrence and, therefore, question of identification of accused does not arise.
(vi) that co-accused Imran Khan has been acquitted solely on the basis of single eye-witness, PW-3 Hasina Khatoon, mother of the deceased and in such circumstances, her evidence is required to be viewed minutely and considering the fact that she is an interested eye-witness, appellant cannot be convicted.
(vii) that motive has not been proved by the prosecution. Lastly, it has been argued that the appellant is in jail since last 13 years and, therefore, has served the enough sentence.
9. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:
(i) that PW-1 Bashir Khan and PW-2 Aasif Khan were two eye-witnesses to the incident but unfortunately they have not supported the prosecution case.
(ii) that sole eye-witness PW-3 Hasina Khatoon is a reliable and trustworthy witness and her statement cannot be simply ignored just because she happens to be the mother of the deceased.
(iii) that incident took place at 9:00 P.M., which is normally a dinner time, PW-3 Hasina Khatoon came out from her house to call the deceased and during the said period, accused-appellant caused firearm injury to the deceased resulting his death.
(iv) that a very prompt F.I.R. was lodged by PW-3 Hasina Khatoon
(v) that incident occurred at 9:00 P.M., whereas report has been lodged at 10:10 P.M. and distance between the place of occurrence and that of police station is about seven kilometers.
(vi) that there was hardly any time for PW-3 Hasina Khatoon to cook up a story to falsely implicate the accused and most importantly there was no reason for her to falsely implicate the accused.
(vii) that motive part has been duly proved by the prosecution. Accused-appellant used to suspect illicit relation between his wife and the deceased as a result of which, he eliminated the deceased by causing firearm injury.
(viii) that the statement of eye-witness has been duly supported by the post-mortem report of the deceased.
(ix) that there is no proper cross-examination of PW-3 Hasina Khatoon regarding presence of light, at the place of occurrence, and the identification of the accused. The accused was previously known to PW-3 and, therefore, identification of the accused becomes easy and even assuming the fact that there was little source of light, it was good enough for PW-3 to identify the accused.
(x) that if the appellant cannot be convicted under Sections 307/34 of IPC for causing injuries to PW-2 Mohd. Aasif Khan, his conviction under Section 302 of IPC is in accordance with law.
10. We have heard counsel for the parties and perused the record.
11. PW-1 Bashir Khan has not supported the prosecution case. Similar is the position of PW-2 Mohd. Aasif Khan, injured eye-witness to the incident, who too has been declared hostile by the prosecution.
12. PW-3 Hasina Khatoon is a mother of the deceased, informant and eye-witness to the incident. While supporting the prosecution case she has stated that she knew the accused-appellant who was her neighbour, she has small house having two rooms and two windows and there is platform in her courtyard. Accused-appellant used to suspect illicit relation between his wife and that of deceased. At the time of occurrence at about 9:00 P.M., deceased was sitting on the platform along with his friends and they were playing 'dominus' game in the light of earthen lamp. While she came out from her house to call the deceased for a dinner, she saw the accused-appellant and acquitted accused Imran khan coming towards her son and it is accused-appellant Iqbal Khan, who caused firearm injury to her son by a country made pistol. After sustaining injury her son died at the place of occurrence itself and upon hearing her cries, her neighbours also reached to the place of occurrence. After the incident, both the accused fled away from the spot. She dictated the contents of F.I.R. to scribe PW-4 Abdul Hafeez and thereafter put her thumb impression on the said report and lodged the F.I.R. in the police station. Along with her, Sartaj and Junaid and other persons, had also gone to the police station and after lodging the report, she returned back to her village. In her cross-examination, she remained firm and has reiterated as to the manner in which her son was done to death by the accused-appellant. No proper question was put to this witness regarding source of light nor regarding the identification of the accused-appellant. From various questions put forth to this witness, she appears to be very natural witness and has described the incident as it took place.
13. PW-4 Abdul Hafeez scribed the FIR and has duly supported the prosecution case. PW-5 S.P. Singh registered the chik FIR. PW-6 Abhay Kumar Singh, PW-8 Nathuni Singh and PW-9 Ram Nayak Misra assisted during investigation. PW-7 Dr. Anil Kumar conducted post-mortem on the body of the deceased. PW-10 Dr. B.K. Singh did the MLC of injured Mohd. Aasif Khan and treated him.
14. Defence witnesses DW-1 Akhtar Ali, DW-2 Afzal Ahmad and DW-3 Mohd. Yusuf Khan have been examined to prove the plea of alibi of acquitted accused Imran Khan.
15. Close scrutiny of the evidence makes it clear that accused-appellant Iqbal Khan used to suspect illicit relation of his wife with the deceased and on 25.04.2006 at 9:00 P.M. he had gone to the house of deceased, where the deceased was playing 'dominus' game in the light of earthen lamp. Taking the advantage of the situation, from a very close range, he caused firearm injury to the deceased by a country made pistol resulting his instantaneous death. Incident has been witnessed by PW-3 Hasina Khatoon, mother of the deceased, who, at the time of occurrence, had gone to call the deceased for a dinner. A very prompt report was lodged by PW-3 within one hour and ten minutes of the incident. Considering the fact that the deceased must have taken some time to dictate the contents of FIR to scribe PW-4 Abdul Hafeez and then had gone to police station, which was about 7 kms. far from the place of occurrence, on a Jeep to lodge the FIR, delay of one hour and ten minutes in lodging the F.I.R. cannot be termed as inordinate delay. There is absolutely no evidence on record that from the time of incident till lodging of F.I.R., there was any opportunity for PW-3 to cook up a story and lodge a false F.I.R., even no suggestion to this effect has been given to PW-3 by the defence. There is no proper cross-examination of PW-3 in respect of availability of source of light. The witnesses have stated that the deceased was playing 'dominus' game in the light of earthen lamp and the defence did not put-forth any question to PW-3 that in the said light she could not have seen the occurrence. In absence of any contrary evidence, we cannot presume that there was no sufficient source of light at the place of occurrence.
16. So far as the identification of the appellant is concerned, undisputedly, appellant was neighbour of PW-3 Hasina Khatoon, known to her previously and, therefore, in such circumstances, even if there is dim light, identification of accused persons becomes easy.
Thus, it was very easy for PW-3 Hasina Khatoon to identify the accused persons. Moreover, law in this respect is well settled. In the case of Dalbir Singh v. State of Haryana; (2008) 11 SCC 425, it has been observed that "in a dark night ocular identification may be difficult in some cases but if a person is acquainted and closely related to another, from the manner of speech, gait and voice identification is possible." Earlier, the same issue has also been discussed in Anwar Hussain v. The State of U.P. and Anr. (AIR 1981 SC 2073), wherein it was observed that "even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gaits, features etc."
17. True it is that in a case of incident based on sole eye-witness, his evidence is required to be viewed minutely. However, in the present case PW-3 Hasina Khatoon appears to be very natural eye-witness, who had gone to the place of occurrence to call her son and during the said period, her son was done to death by the accused. In lengthy cross-examination she was subjected to various tricky questions, but this witness remained firm and has reiterated as to the manner in which her son was done to death. We have absolutely no reason to disbelieve the statement of PW-3, whose statement inspires the confidence of the Court and, who appears to be fully trustworthy. If there is sole eye-witness to the incident and the said witness inspires confidence of the Court, conviction can be based on the said statement. It is a settled proposition of law that it is not the quantity of evidence, which is required to be seen, but it is quality of evidence, which is required to be considered by the courts. In the case of Namdeo vs State Of Maharashtra; (2007) 14 SCC 150, the Supreme Court has held as under:
"It is not seldom that a crime had been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.
The Court also stated;
There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect." In Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : JT 1995 (8) SC 425, referring to several cases, this Court stated; "On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence." In Chittar Lal v. State of Rajasthan, (2003) 6 SCC 397 : JT 2003 (7) SC 270, this Court had an occasion to consider a similar question. In that case, the sole testimony of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohamed Sugal and reiterating the law laid down therein, this Court stated:"
18. The mere fact that PW-3 Hasina Khatoon, being a mother of the deceased, is an interested eye-witness, her statement cannot be discarded.
In a case where the incident had taken place in the presence of relatives, it is only relatives, who will come forward and depose against the commission of the said crime. Law in respect of the examination of interested witnesses and their deposition in the court is well settled. Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized 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 (See: Harbans Kaur and another -Vs- State of Haryana, 2005 AIR SCW 2074; Namdeo -Vs- State of Maharashtra, 2007 AIR SCW 1835; Sonelal -Vs- State of M.P., 2008 AIR SCW 7988; and Dharnidhar -Vs- State of Uttar Pradesh and Others & other connected appeals, (2010) 7 SCC 759)."
19. Most importantly, statement of eye-witness PW-3 Hasina Khatoon has been duly supported by the post-mortem report, wherein it has come that the gunshot injury was caused to the deceased from a close range.
20. We find no substance in the argument of learned counsel for the defence that once on the same set of evidence, co-accused Imran Khan has been acquitted, the same benefit ought to have been given to the present appellant as well. The case of the co-accused is on different footing and there is sufficient evidence against the appellant. We further find no substance in the argument of the defence that PW-3 Haseena Khatoon is a planted witness and she had not seen the incident. From the evidence it is apparent that when PW-3 came out from her room to call her son for a dinner, the incident occurred, which was duly witnessed by her. We further find no substance in the argument of the defence that there was no source of light at the place of occurrence and thus, question of identification of accused does not arise. While examining the witnesses in respect of availability of source of light, no proper questions were put and on the contrary, the evidence is on record that there was sufficient light at the place of occurrence where the deceased was playing 'dominus' along with his friends. Further, there is no substance in the argument of the defence that motive has not been proved. Motive part has also been proved by the prosecution and according to which, deceased was eliminated because of suspicion in the mind of the accused that his wife was having illicit relation with the deceased.
21. Considering the entire evidence, we are of the view that conviction of the appellant for committing murder of deceased Aurangzeb Khan is in accordance with law and there is no infirmity in the same. Appellant is liable to be convicted under Section 302 of I.P.C. instead of Section 302/34 of I.P.C. Appellant deserves to be acquitted of the charge under Section 307/34 of I.P.C., as injured Mohd. Aasif Khan has not supported the prosecution case nor PW-3 Hasina Khatoon, in her statement, has stated that it is the appellant who caused injury to injured Mohd. Aasif Khan.
22. Accordingly, the appellant Iqbal Khan is convicted under Section 302 of I.P.C. instead of Section 302/34 of I.P.C. and he is acquitted of the charge under Section 307/34 of I.P.C.
23. The appeal is dismissed. As the appellant Iqbal Khan is already in jail, no further order is required.
Dated: 12.04.2019
SK/A.Tripathi
(Raj Beer Singh, J.) (Pritinker Diwaker, J.)