Rajasthan High Court - Jodhpur
Mohd Refiq Shah vs State on 26 August, 2011
Author: Sangeet Lodha
Bench: Sangeet Lodha
D.B. Criminal Appeals No. 323, 382,
674, 675, 676 & 737 of 2005
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
(1) D.B. CRIMINAL APPEAL NO. 323/2005
Shahjad Hussain Versus The State of Rajasthan
(2) D.B. CRIMINAL APPEAL NO. 382/2005
Mahamood Pathan @ Guddu Versus The State of Rajasthan
(3) D.B. CRIMINAL APPEAL NO. 674/2005
Sarafat Hussain Shah @ Lala Versus The State of Rajasthan
(4) D.B. CRIMINAL APPEAL NO. 675/2005
Mohd. Refiq Shah Versus The State of Rajasthan
(5) D.B. CRIMINAL APPEAL NO. 676/2005
Sarafat Ali Shah Versus The State of Rajasthan
(6) D.B. CRIMINAL APPEAL NO. 737/2005
Mohammed Rafiq Versus The State of Rajasthan
Date of Judgment : 26.08.2011
PRESENT
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI
Mr. P.N. Mohnani ]
Mr. K.R. Bhati ]
Ms. Kausar Parveen ]
Mr. Sandeep Saruparia] for the appellants
Mr. K.R. Bishnoi - Public Prosecutor
BY THE COURT (PER HON'BLE JOSHI,J.)
This judgment will dispose of six criminal appeals filed by the appellants against the common judgment of conviction and order of sentence dated 03.03.2005 passed in Sessions Case No. 109/2003 by the learned Additional Page 1 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 District and Sessions Judge (Fast Track) No.1, Bhilwara, whereby all the accused-appellants were convicted for the commission of offence under Section 302 IPC and sentenced to undergo life term imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine, further to undergo imprisonment of one month.
The brief facts giving rise to the present appeals are that on 25.06.1999 at 1.05 p.m. P.W.10 Sohan Lal submitted a written report to the Station House Officer of the Police Station Pratap Nagar, District Bhilwara to the effect that on that day in the morning at about 7.15 a.m., his Bhabi Fefa Devi informed him over the phone that his brother Bhanwar Lal had died in the night. On this information he alongwith brother-in-laws of the deceased, Chatar Lal, Mishri Lal, Sohan Lal and Heera Lal etc. came to Bhilwara and found that dead body of Bhanwar Lal was lying in the room. It appeared that his death has been caused either by taking some poisonous thing or by strangulation.
On the aforesaid report, police commenced proceedings under Section 174 CrPC. A criminal case No. Page 2 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 288/1999 under Section 302, 120-B IPC was registered. After usual investigation, police filed charge-sheet against seven persons, including the six accused-appellants, under Section 302, 120-B before the Chief Judicial Magistrate, Bhilwara. Since the case was triable by Court of Session, therefore, the case was committed to the Sessions Judge, Bhilwara, from where the case was transferred to the Court of Additional Sessions Judge No.2, Bhilwara and ultimately the case was transferred to the Court of Additional District and Sessions Judge (Fast Track) No.1, Bhilwara for trial.
The learned trial court ordered to frame charge under Section 302, 120-B IPC against all the accused- appellants, to which they did not plead guilty and claimed to be tried.
During the course of the trial, to prove the charge against the accused-appellants, prosecution examined as many as 27 witnesses and exhibited documents Ex.P.1 to Ex.P.88.
P.W.1 Sohan Lal is a formal witness, who reached the place of the incident on being informed by Page 3 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 Mishri Lal regarding the death of Bhanwar Lal. He deposed that 11 months earlier to recording his statement in the court, he alongwith Mishri Lal went to the residence of Bhanwar Lal because Mishri Lal informed him about the death of Bhanwar Lal. At the residence of Bhanwar Lal, Fefi Devi and her two daughters met them. He saw the dead body of Bhanwar Lal. He found a stab wound on the back of the deceased. He is witness of memos Ex.P.1 to Ex.P.5. He further deposed that police seized the tablets from the house of Bhanwar Lal.
P.W.2 Balkishan is again a formal witness and the witness of recovery of blood-stained clothes and other articles. He admitted his signature on the memos Ex.P.1, Ex.P.3, Ex.P.6 and Ex.P.7. He further identified the rope, two kinves with cover and blood-stained clothes.
P.W.3 Madhu, P.W.14 Jagdish, P.W.16 Kundanmal Nahar, P.W.17 Pratap Singh, P.W.22 Jitendra Goyal and P.W.24 Pramod Kumar did not corroborate the prosecution story and therefore, they were declared hostile.
P.W.4 Manohar Singh and P.W.5 Hemendra Singh Page 4 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 admitted their signatures on memo Ex.P.12, but in the cross-examination they denied the fact of any recovery in their presence.
P.W.6 Savita deposed that her father has died. While he was alive, he used to live at Bhilwara. The house at Bhilwara was built by Mohammedan person. At the time of the construction of the house, her father used to go on tours. At the time of the construction of the house, Shahjad, Pappudiyo and Rafikio used to work as labourers. Rafikia used to come to her house at the time when her father used to remain on tour. He used to live at their house for 10-12 days. On the day of the occurrence, in the night she was sleeping with her father, mother and sister. In the night Rafiq, Shahjad and Pappudiya alongwith other persons, total six in number came there. She identified Rafique, Shahjad and Sarafat Hussain as Pappudiya. All the six persons went to the roof of the house. When her father had slept, her mother called all the six persons from the roof. All the six persons came in the shop. Shahjad, Rafique alongwith other persons strangulated the neck of her father with a rope. Rest of the persons sat on the knees of her father. Her mother put a saree on the face of Page 5 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 the deceased. After some time her father died. Blood oozed from his mouth. Her father was sleeping on a bed, which was stained with blood. Her mother prepared tea for all the six persons. After that Rafique remained there and rest of the persons left her house. Then her mother made phone call to Chirpatiya. Rafique brought her to Baneda village. She further identified accused Rafique in Photo Ex.P.13.
P.W.7 Pema Ram is the witness who identified the recovered ornaments and admitted the fact of making thumb impression on the identification memos.
P.W.8 Mitha Lal is witness of memos Ex.P.4 and Ex.P.5 and seizure memo Ex.P.14. He further deposed that the police recovered 7 tablets from the almirah and 2 tablets from the kitchen. He further admitted his signatures on the recovery memos as well as on the chits found on the sealed packets of the recovered articles.
P.W.9 Hari Singh deposed that from the residence of Mohammed Rafique, police recovered rope, knife, photo, cheque-book, purse and he further identified Page 6 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 all the articles in the court and admitted his signatures on the memos Ex.P.8 to Ex.P.13.
P.W.10 Sohan Lal is again a witness of Ex.P.1, Ex.P.2, Ex.P.3, Ex.P.14, Ex.P.18 to Ex.P.22A and Ex.P.23 to Ex.P.26. He further identified all the recovered articles in the court.
P.W.11 Abyub Khan deposed that Deepak Lalwani presented two gold bangles to police vide memo Ex.P.27.
P.W.12 Deepak Lalwani deposed that Saddique tempo driver had given the two gold bangles, which he presented to the police. He admitted his signatures on Ex.P.27 and further identified both the bangles.
P.W.13 Drishti Vallabh Pande is the photographer who identified photo Ex.P.13 and deposed that the photos Ex.P.13, Ex.P.28 and Ex.P.29 were taken at his studio.
P.W.15 Ramesh Chandra is the witness of recovery of the gold ornaments and he admitted his Page 7 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 signatures on memo Ex.P.1 and Ex.P.31 to Ex.P.36. He admitted that gold articles were recovered at the instance of Shaukat, Lala, Mehmood and Sarafat Ali.
P.W.18 Patanjali Sharma is the judicial officer who conducted the identification of the Malkhana articles recovered at the instance of different accused on 16.03.1999. He deposed about the various steps taken during the identification parade and he further admitted his signatures on the memos of the identification parade.
P.W.19 Suresh Chandra, P.W.23 Laxman Ram, P.W. 25 Bhagwati Lal, P.W.26 Satya Narayan and P.W.27 Riyaz Khan are the police personnel who deposed about the various steps taken during the course of the investigation.
P.W.20 Saddique Mohammed is the witness who deposed that Lala and Sarafat came to him to sell the gold bangles and he brought both of them to Deepak, who gave them Rs.6000/- for those bangles.
P.W.21 Dr. Avadhesh Mathur is the doctor who conducted autopsy on the body of the deceased. He Page 8 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 deposed that there were blood clots in both the lungs, respiratory tract and brain. In the opinion of the Medical Board, the cause of death of deceased Bhanwar Lal was strangulation and asphyxia. He further deposed that he found nine injuries on the body of the deceased.
The incriminating evidence adduced by the prosecution was put to the accused for their explanation under Section 313 CrPC. The accused in their statements simply denied the evidence of the prosecution witnesses and no specific defence was taken by any of the accused.
The accused in their defence examined 5
witnesses.
D.W.1 Mohammed Umar deposed that
Mohammed Rafique had never been engaged in the
construction of the house of Bhanwar Lal.
D.W.2 Arif Mohammed deposed that Mohammed Rafique is his relative. He came to his marriage on 24.06.1999 and did not bring any gift. He remained with him upto morning of 25.06.1999.
Page 9 of 22
D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 D.W.3 Mohammed Saleem, D.W.4 Kursheed Ahmed and D.W.5 Sharif Mohammed corroborated the evidence of D.W.2 Arif Mohammed.
The learned trial court while relying upon the evidence of P.W.6 Savita and the fact of recovery of the gold ornaments and other evidence, convicted all the accused-appellants for the commission of offence under Section 302 IPC and sentenced them as narrated in earlier para.
Being aggrived by the judgment of conviction and order of sentence dated 03.03.2005 passed by the learned trial court, six accused-appellants have filed the present six appeals.
All the learned counsel appearing for the accused-appellants contended that P.W.6 Savita cannot be held to be a reliable witness, who can inspire faith and confidence because firstly she is a tutored witness and secondly being a child witness her statement requirs independent corroboration because it is always unsafe to Page 10 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 convict the accused solely on the basis of the the statement of a child witness without there being any independent corroboration. They further contended that there are material discrepencies, omissions and improvements in the statement of this witness because this witness deposed in her statement about the facts which she did not stated in her police statement recorded under Section 161 CrPC and thus, she made material improvements in her statement during the trial, therefore, her statement cannot be relied upon.
The learned counsel for the appellants relied upon the following judgments in support of their arguments :-
(1) 1971 CAR 247 (SC) (Yudhishtir Vs. The State of Madhya Pradesh) (2) 2000 Cri.L.J. 1436 (State of U.P. Vs. Ashok Dixit & Anr.) (3) 2001 Cr.L.R. [Raj.] 604 (Banwari Lal Vs. State of Rajasthan) (4) 2002(2) Cr.L.R. [Raj.] 1362 (Darshan Ram Vs. State of Rajasthan) (5) 2003 Cri.L.J. 1262 (Bhagwan Singh & Ors. Vs. State of M.P.) (6) 2003 Cri.L.J. 3552 (Pawan Kumar Vs. State of Haryana) Per contra, the learned Public Prosecutor Page 11 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 vehemently defended the judgment of the learned trial court and argued that there is evidence on record that P.W.6 Savita identified two accused-appellants Rafique Mohammed and Shahjad during the course of the trial.
We have considered the rival contentions of both the parties and perused the judgments cited by the learned counsel for the accused-appellants.
In State of U.P. Vs. Ashok Dixit & Anr. (supra), it has been held that identification of the accused in the court for the first time is not reliable.
In Bhagwan Singh & Ors. Vs. State of M.P. (supra), it has been held that in case of child witness, the evidence has to be evaluated carefully and adequate corroboration has to be looked from other evidence to his testimony.
In Pawan Kumar Vs. State of Haryana (supra) it has been held that identification of the ornaments cannot be made basis of conviction.
Page 12 of 22
D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 In Yudhishtir Vs. State of M.P. (supra) it has been held that where there is omissions in the police statement and witness makes substantial improvements in his statement in the court, the evidence of such witness cannot be relied upon.
In Banwari Lal Vs. State of Rajasthan (supra), the Division Bench of this court held that where a child witness has given statement as a tutored witness and the prosecution failed to explain the injuries found on the body of the accused-appellant, the accused cannot be convicted.
In Darshan Ram Vs. State of Rajasthan (supra), where the evidence of two child witnesses was found to be contradictory and unreliable on material grounds, their statements were held to be unreliable and conviction of the accused was held illegal by the Division Bench of this court.
Now we have to see the facts of this case to find out whether the facts of the cases cited by the learned counsel for the appellants are identical to those of the present case. So far as the case State of U.P. Vs. Ashok Dixit & Anr. (supra) is concerned, the identification of the accused was made by the witness for the first time in the Page 13 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 court and that was not relied upon, whereas in the case of Bhagwan Singh & Ors. Vs. State of M.P. (supra), the Hon'ble Apex Court held that so far as identification of the accused is concerned, where the witness was found to be acquainted with the three accused already, there is no necessity for the prosecution to have a test identification parade. In the present case, P.W.6 Savita stated that she knew Mohammed Rafique and Shahjad even prior to the occurrence, therefore, there was no necessity for the police to hold test identification parade during the course of the investigation.
The facts of the present case are totally different from those of the cases cited by the learned counsel for the appellants because there is no material contradictions in the statements of the witnesses. There is nothing on the record to show that the child witness was tutored by someone and there is no defence of the appellants to have injuries on their bodies. It is a settled principle of law decided cases are of no use in appreciating evidence. Each case depends on its own facts.
The learned counsel for the appellants contended Page 14 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 that there are material improvements in the statement of P.W.6 Savita to her earlier statement recorded during the course of the investigation under Section 161 CrPC.
In our view, the evidence of a witness cannot be rejected on the ground that he did not behave in a particular manner. People react differently in different situations. It is difficult to probe into minds of people as to how they act in a particular way. Every person cannot act or react in a particular manner. His reaction has to be viewed in the totality of his mental makeup and extent and nature of fear generated. In view of the aforesaid preposition, the evidence of P.W.6 Savita cannot be held to be unreliable solely on the ground that she did not disclose the fact of witnessing the incident in her earlier statement recorded by the police because her earlier statement has to be viewed in the totality of her mental make up and extent and nature of fear generated. She clearly deposed that her mother gave her threat to cause injuries by knife if she disclosed anything about the occurrence. In this background of fear and offence, the omissions cannot be said to be material and the statement made by P.W.6 Savita cannot be said to be material improvement from her Page 15 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 earlier statement.
The learned counsel for the appellants further contended that P.W.6 Savita did not assign any overt act to accused Fefa Devi and appellants Mohammed Rafique and Shahjad. For convicting the appellants, the overt act of each accused-appellant has to be assigned by the witness.
In our view, it is sufficient for an eye-witness to state how the accused-appellants acted at the scene of offence and it is not necessary for a witness to depose about every injury caused by each of the accused.
So far as the discrepencies in the statement of P.W.6 Savita are concerned, it is well-settled principle of law that when a witness is subjected to lengthy and arduous cross-examination over as lengthy period of time, there is always a possibility of his committing mistakes which can be termed as 'omissions', 'improvements' and 'contradictions'. In Jai Shree Yadav Vs. State of U.P. [AIR 2004 SC 4443], the Hon'ble Apex Court held that those 'infirmities' have to be appreciated in the background of ground realities which makes the witness confused because of the filibustering Page 16 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 tactices of the cross-examination.
The present case wholly rests upon the ocular evidence of P.W.6 Savita and the learned trial court has convicted all the accused-appellants for the commission of offence under Section 302 IPC on the basis of sole statement of P.W.6 Savita alongwith recovery of the gold ornaments and other articles. The argument of the learned counsel for the appellants is that as P.W.6 Savita admitted in her cross-examination that she was tutored by her relatives, her testimony cannot be relied upon. We have perused the statement of P.W.6 Savita. P.W.6 Savita categorically and in unequivocal terms deposed that she saw the incident in the night when her father was sleeping and six accused persons alongwith her mother caused strangulated to her father and due to which he died on the spot. The evidence of this witness does inspire confidence and faith because in the case of such child witness, minor discrepencies, omissions or improvements are bound to occur. In Hardev singh Vs. Harbhej Singh [AIR 1997 SC 1487], the Hon'ble Apex Court held that trifling discrepencies must be ignored as natural discrepencies occur among honest witnesses. There may be discrepencies Page 17 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 of truth as well as of falsehood. In honest witnesses, discrepencies are due to differences in individual power of observation, recollection, reproduction and recitation and not due to deliberate attempt to suppress or depart from the truth. The broad facts of the case and not minor details have to be considered in weighing evidence. Consideration may be given to the situation in life, status, educational background and way of life of witness. In State of Rajasthan Vs. Om Prakash [AIR 2007 SC 2257], the Hon'ble Apex Court held that improvements made by witness in evidence regarding details which are irrelevant are not "contradictions" and hence dod not affect the credibility of the witness. In Kulesh Mondal Vs. State of West Bengal [AIR 2007 SC 3228], Hon'ble Supreme Court held that normal discrepencies are those which are due to normal errors of observation, of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, which are always there, however honest and truthful a witness may be. Material discrepencies are those, which are not normal and not expected of a normal person. In the present case, it is an established fact that just after the death of the father of P.W.6 Savita, her mother threatened her to cause her death by knife in case Page 18 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 of disclosure of the occurrence by her to any other person and in the light of the above horror and threat, the statement made by this witness during the course of the investigation vide Ex.D.1 vis-a-vis the statement made by this witness in court cannot be termed as omission in the earlier statement recorded by the police and improvements in the statement made during the course of the trial. The courts in India do not follow the maxim "Falsus in Uno Falsus in Omnibus" (false in one, false in all).
If we examine the evidence of P.W.6 Savita in the light of the discussion made hereinabove, it does inspire confidence and faith because her presence at the scene of occurrence was natural and just after the incident, she was having horror of occurrence as well as the threat given by her mother, therefore, as discussed earlier, the evidence of this witness cannot be termed as having omissions, discrepencies and improvements.
So far as the identification parade is concerned, in the case of Bhagwan Singh (supra) cited by the learned counsel for the appellants, it has been held that where the witness knew the accused earlier to the incident, there is no Page 19 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 need to have a test identification parade.
Now we have to see whether on the basis of the statement of P.W.6 Savita, all the six accused-appellants can be convicted. P.W.6 Savita identified only two accused- appellants, namely, Mohammed Rafiq and Shahjad Hussain, for which she stated that she knew them prior to the occurrence also. In our view, when she was knowing these two accused-appellants even prior to the incident, then there was no occasion for the Investigating Officer to conduct an identification parade. So far as rest of the accused persons are concerned, P.W.6 Savita did not identified them in the court because she simply stated that alongwith these two accused-appellants, other persons were also there on the fateful night of the incident and she could not identify Sarafat Hussain by his correct name. So far as the recovery of the gold ornaments is concerned, simply the recovery of the gold ornaments from the rest of the accused-appellants cannot be made basis for conviction under Section 302 IPC as there is no evidence on record that these gold articles were stolen by any of the accused- appellants, therefore, we rely upon the evidence of P.W.6 Savita regarding the commission of offence under Section Page 20 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 302 IPC by the accused-appellants Mohammed Rafiq and Shahjad Hussain. Further P.W.6 Savita identified Sarafat Hussain as Pappudiya, but there is no evidence on record that Sarafat Hussain is being called as Pappudiya. Therefore, so far as the rest of the appellants are concerned, in our considered view, the learned trial court erred in convicting them for the commission of offence under Section 302 IPC because there is no material on record to hold them guilty for the commission of offence. Hence, the appeals filed by accused-appellants Mohammed Rafiq and Shahjad Hussain deserve to be dismissed and the appeals filed by appellants Mahamood Pathan @ Guddu, Sarafat Hussain Shah @ Lala, Mohd. Refiq Shah, Sarafat Ali Shah deserve acceptance.
Consequently, the appeals filed by accused- appellants Mohammed Rafiq S/o Vali Mohammed bearing D.B. Criminal Appeal No. 737/2005 and Shahjad Hussain S/o Noor Mohd. bearing D.B. Criminal Appeal No. 323/2005 are dismissed and the judgment of conviction and order of sentence dated 03.03.2005 passed against these two accused-appellants by the learned Additional District and Sessions Judge (Fast Track) No.1, Bhilwara in Sessions Case Page 21 of 22 D.B. Criminal Appeals No. 323, 382, 674, 675, 676 & 737 of 2005 No.109/2003 is affirmed. The appeals filed by accused- appellants Mahamood Pathan @ Guddu S/o Matlub Ahmed Pathan bearing D.B. Criminal Appeal No.382/2005, Sarafat Hussain Shah @ Lala S/o Abdul Karim Shah (Fakir) bearing D.B. Criminal Appeal No.674/2005, Mohd. Refiq Shah S/o Ayub Ali Shah (Fakir) bearing D.B. Criminal Appeal No. 675/2005 and Sarafat Ali Shah S/o Anwar Ali Shah bearing D.B. Criminal Appeal No.676/2005 are allowed and these four appellants are acquitted from the charge of offence under Section 302 IPC.
[KAILASH CHANDRA JOSHI],J. [SANGEET LODHA],J. Pramod Page 22 of 22