Jammu & Kashmir High Court
) Mohd. Sharief And Anr vs Mohd.Sharief And Another on 2 August, 2007
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Criminal Appeal No. 21 OF 2005 AND CrMP No. 44 OF 2005 AND Confirmation No. 10 OF 2005 1) Mohd. Sharief and anr. 2) State Petitioners 1) State of J&K. 2) Mohd. Sharief and anr Respondent ! Mr. M.A.Goni, Sr.Advocate with Mr. Ahtsham Hussain, Advocate for the Appellants. ^ Mr.A.H.Qazi, AAG for the Respondent Hon'ble Mr. Justice Mansoor Ahmad Mir, Judge Date: 02.08.2007 :J U D G M E N T :
Per Mansoor Ahmad Mir-J:
1. This Criminal Appeal is directed against Judgment dated 8th of August, 2005 and Order dated 9th of August, 2005 passed by the Learned Sessions Judge, Poonch in a case titled State Versus Mohd.Sharief and another, in File No. 22/Sessions, instituted on 06-
11-98, whereunder appellants came to be convicted and sentenced under Sections 302, 449, 380/34 RPC.
2. Appellant No.1 came to be sentenced to death for commission of offence under Section 302 RPC as also rigorous imprisonment for three years and five years for the commission of offences under Sections 380 and 449 RPC and fine of Rs.1000/-.
3. Appellant No.2 came to be sentenced to life imprisonment for offence under Section 302/34 RPC as also rigorous imprisonment for three years and five years for the commission of offences under Sections 380 and 449 RPC and fine of Rs.500/- and Rs.1000/-.
4. It is necessary to notice the prosecution case in nut-shell as under:-
5. Police Station, Surankote, received an information by reliable sources on 22nd of August, 1998 that in the intervening night of 21st /22nd of August, 1998, deceased Mohd. Yousuf and his wife Mst. Resham Bi were murdered at their home at Dhara Samote. This information set the police in motion. During the investigation, statement of Gulnaz Begum aged 7 years, grand daughter of deceased Mohd. Yousuf and daughter of accused Mohd. Sharief, was recorded, who was present at the time of occurrence in the house and witnessed the entire occurrence.
6. The case of the prosecution against the accused was that they entered into the house of deceased during the intervening night of 21st/22nd of August, 1998, at Dhara Samote. Accused Mohd. Sharief asked deceased Mohd. Yousuf to transfer his land in his favour and also to give him money. Mohd. Yousuf-deceased replied that he will do it on next day in presence of some respectables persons and tried to escape through window. Mohd. Sharief-accused hit him on the head with a stone, which he was carrying, caused the death of the deceased. Thereafter, he tied arms of Resham Bi and slashed/slit her throat with a knife and accused, Aamar Hussain held her by legs. It is also alleged that they took away the money etc. from the box which was lying in the house of the deceased. During investigation, site plan and seizure memos were prepared, Samples of blood stained clay were taken from the spot, dead bodies of deceased persons were seized and post-mortem got conducted and blood stained clothes were also seized. Identity card of accused Aamar Hussain was found in the store near the room-spot of occurrence and was seized. Accused Mohd. Sharief and Aamar Hussain came to be arrested and made disclosure statements. In pursuance of the disclosure statement, stone and knife etc., weapons of offence, were recovered from the house of accused Mohd. Sharief and seized at his instance and stone was also recovered at his instance from the store near the room spot of occurrence. Rs.4000/- were recovered in pursuance of the disclosure statement made by Aamar Hussain.
7. The Challan was filed against the accused. Charge came to be framed against the accused for the commission of offences under Sections 302/449/380/34 RPC. Accused- appellants pleaded not guilty and claimed to be tried.
8. Prosecution during trial examined almost 42 witnesses out of the 45 witnesses cited in the witness Calendar.
PW-Gulnaz Begum, witness of the occurrence. PW-Abdul Hamid Manhas, witness to seizures-site plan, sample of blood stained clay, seizure of blood stained earth, seizure of Nawar, disclosure statement of accused Mohd. Sharief.
PW-Mohd.Shafi S/o Faqar Din, witness of recovery of identity card of Aamar Hussain, disclosure statements of Mohd.Sharief- EXPWAH/III and of Aamar Hussain.
PW-Mohd.Shafi S/o Sadeeq, witness to seizure of Nawaar, disclosure statement of Mohd.Sharief and recovery of other articles seized.
PW-Muslim Shah, witness to the disclosure statement EXPWAH/III, recovery of Knife, Torch, Dupatta.
PWs-Mohd. Niaz and Mohd.Sharief are witnesses to the disclosure statement made by accused Aamar Hussain.
PW-Mst.Hanifa Bi, witness of identity card of Aamar Hussain, recovery of the stone at the instance of Mohd. Sharief.
PWs-Abdul Gani, Mst. Shariefa Bi, Kulwant Singh, Mohd.Sharief, Khadim Hussain, Mohd.Rafiq, Mohd.Sadiq, are the witnesses to the seizures.
PWs-Mohd.Aslam, Mohd.Bashir, Wali Mohd. and Mohd.Sadiq, are the witnesses of taking samples etc. PW-Khurshid Ahmed is the witness to seizure of ring- used for the seal of the stone, PW-Mohd.Rashid & PW-Mohd.Farooq, are the witnesses to the seizure memos.
PW-Mohd.Razak is a witness to the re-sealing of the packets viz clothes and clay etc. PW-Sh.Yash Pal Kotwal, witness of recording the statement under Section 164 Cr.P.C of Gulnaz Begum, PW-Dr.Mumtaz Hussain, conducted the post-mortem. PW-Nazir Hussain Shah has deposed that Mohd.Sharief was the son-in-law of Mohd.Yousuf deceased and he tried to get share in the land of deceased Mohd.Yousuf, PW-Mohd. Majid Khan has proved the signatures of Jagjit Singh-Investigating Officer on FIR EXPWMMK, disclosure memos EXPWAH/III, EXPWMNM, seizure memos EXPWAH, EXPWAH/I, EXPWMR, EXPWMS and signatures of Investigating Officer on the other seizure memos and documents.
9. Accused-appellants have not examined any witness in defence.
10. After hearing the learned counsel for the parties, the trial court convicted and sentenced, accused No.1 for the commission of offences under Sections 302,380,449/34 RPC and, accused No.2 for the commission of offences under Sections 302/34, 380 & 449 RPC vide Judgment dated 8th of August, 2005 and Order dated 9th of August, 2005 respectively.
11. The entire case as set-up by the prosecution revolves around the statement of Gulnaz Begum-daughter of accused, grand daughter of deceased-maternal grand parent. Gulnaz Begum in her statement under section 161 Cr.P.C has given the entire story that the two accused persons Mohd.Sharief and Aamar Hussain knocked the door. Deceased Mohd. Sharief opened the door and they stepped in. Accused Mohd. Sharief asked Mohd. Yousuf to transfer the land. In reply deceased said that he would do so on the next day in presence of four/five respectable persons and tried to run away from window. Accused Mohd.Sharief had stone in his hand, hit deceased on the head, who fell down and thereafter accused Mohd.Sharief caught hold of her mother-in-law and tied her hands with a piece of Nawaar and accused Aamar Hussain tied her legs. Mohd. Sharief had taken knife from the CHHULA and slashed/slit her throat. Gulnaz Begum further stated that she got frightened and covered her eyes/face with blanket (Loi).
12. She made the same statements before the Magistrate under Section 164 Cr.P.C and also before the trial Court while appearing as a witness. The trial Court after putting questions to her came to the conclusion that she is intelligent child and is capable to understand and answer and recorded the certificate to that extent. Thereafter it recorded her statement.
13. Her statement was recorded under Section 164 Cr.P.C, stands proved by the prosecution by examining Mr. Yash Pal Kotwal (Ist Class Magistrate). Accused- appellants have not been able to demolish the statement of Gulnaz Begum in any way. There is not even an iota of contradiction in the statements recorded under Section 161 Cr.P.C, 164 Cr.P.C by the Magistrate and before the trial Court. The argument of learned counsel for the defence-appellant that she was tutored by Hanifa Bi-maternal aunt i.e. Witness No.5 is of no weight. There is nothing on the file which would suggest that Hanifa Bi had even a chance of tutoring her. Had there been any tutoring at all, there would have been contradiction here and there.
14. The argument of learned counsel is also devoid of any force for the follow reasons also.
15. Knife and stone were recovered and seized at the instance of accused Mohd.Sharief. The blood stains on the stone and knife, were found to be that of the blood group of deceased by the expert opinion. Thus, the statement of Gulnaz Begum received corroboration by the seizure of knife and stone-weapon of offences, statement of Mr.Yash Pal Kotwal, Magistrate and the expert evidence read with recovery of Rs.4000/- and identity card of accused Aamar Hussain.
16. Dr. Mumtaz Hussain Shah, during her cross-examination, has categorically stated that injury on the head of the deceased Mohd. Yousuf, could not be caused by stone of any other dimension or weight than the stone shown to him in the Court.
17. Prosecution has proved the contents of disclosure statements by examining the witnesses, the details of which are given in the impugned judgment.
18. Section 118 of Evidence Act (1 of 1872) provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The Competency of a witness is a rule and their incompetency is the exception. The sole test is whether witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth.
19. Under Section 118 of the Evidence Act a child is competent to testify, provided he can understand the questions put to him and giving rational answers thereto.
20. Apex Court in case titled as Baby Kandayanathil versus State of Kerala, reported in AIR 1993 SC 2275 held that the statement of a child is admissible evidence and can be acted upon when recorded after putting preliminary questions to him and satisfying that he was answering intelligently and fearlessly and also gave all details of occurrence and withstood test of cross-examination. It is profitable to reproduce Para 4 of the said judgment hereunder:-
4. The learned trial Judge has put preliminary questions to each of the witnesses and satisfying that they were answering questions intelligently without any fear whatsoever, proceeded to record the evidence. In the chief examination, each of the witnesses has given all the details of the occurrence. There has been a searching cross-examination and the witnesses withstood the same. We have also gone through the evidence and we do not see any reason to doubt their evidence. They are the most natural witnesses who had been present in the house at the night time. Both the courts have accepted their evidence and we see no ground to interfere. There are no merits in this appeal and the same is dismissed. The appellant who is on bail shall surrender and serve out the sentence and the bail bond stands cancelled.
21. Apex Court in case titled as Ratansinh Dalsukhbhat Nayak Versus State of Gujarat, reported as AIR 2004 SC 23 held that testimony of child witness is reliable moreso, when it receives corroboration from the evidence relating to the recovery and report of Forensic Science Laboratory. Further it is held in the judgment that a child who sticks to her statement recorded during investigation in all material particulars, the trial Court is within its jurisdiction and power, is justified in placing implicit reliance on her. It is profitable to reproduce Para 9 of the said judgment hereunder:-
9. Evidence of PW-11, the child witness has credibility which reveals a truthful approach and her evidence to put it milady has ring of truthing. There are no exaggerations and she has stuck to her statement made during investigation in all material particulars. That being so, the trial Court and the High Court were justified in placing implicit reliance on her testimony. In addition, the evidence to recovery and the report of the Forensic Science Laboratory provide additional support to the prosecution version.
22. In the instant case, the child Gulnaz Begum withstood the cross-examination and stuck to her statement as discussed above. Her statement stands also corroborated by other evidence. The Apex Court in case titled as Bhagwan Singh and others versus State of M.P, reported in AIR 2003 SC, 1088 held that in such circumstances the conviction can be based on evidence of child witness.
23. Applying this test to the present case, the trial Court held that a child is intelligent and is capable to understand questions and reply. Not only the trial Court, but the Magistrate who recorded the statement has also certified while recording her statement under section 164 Cr.P.C that child was intelligent and competent witness. Thus in the given circumstances the statement of Gulnaz Begum is reliable and can be acted upon.
24. Learned Counsel for the appellants-accused argued that there was delay in sending F.I.R to the learned Magistrate in terms of Section 157 of the Code of Criminal Procedure (Cr.P.C). This argument is devoid of any force for the reason that there is a clinching evidence and creditworthy ocular evidence as discussed hereinabove. Apex Court in case titled as Balram Singh and another versus State of Punjab, reported as AIR 2003 SC 2213 held that delay of sending the F.I.R to the jurisdictional Magistrate by itself, would not in any manner weaken the prosecution case. It has to be judged keeping in mind creditworthiness of the ocular evidence.
25. Learned Counsel for the appellants-accused submitted that Investigating Officer has not been examined and prejudice is caused to the accused. We are of the considered view that even if the Investigating Officer is not examined during the trial it will not affect the prosecution case in any way, if the ocular evidence coupled with expert opinion and other evidence available on the file, proves the guilt of the accused.
26. Apex Court in case titled as Bhadur Naik Versus State of Bihar, reported as AIR 2000 SC 1582 held that non-examination of the Investigating Officer is of no consequence when defence has failed to shake credibility of the eye witness.
Applying the test, we are of the view that prosecution evidence is sufficient to convict the accused. Moreso, the defence has failed to shake the evidence of the prosecution in any way.
27. Apex Court in case titled as Raj Kishore Jha Versus State of Bihar and Others, reported as AIR 2003 SC 4664 held that if the Investigating Officer is dead, his non- examination will not affect the prosecution case in any way. It is profitable to reproduce Para 11 of the said judgment hereunder:-
11.Mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In Ram Dev and another V. State of U.P (1995 Supp (1) SCC 547), it was noted that non-
examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye-witnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after examination-in- chief and partial cross-examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have caused any prejudice to the accused on account of Investigating Officers non-examination. The prosecution cannot be attributed with any lapse or ulterior motives in such circumstances. In Behari Parsad and others v. State of Bihar {1996(2) SCC 317} it was held that case of prejudice likely to the suffered mostly depends upon facts of each case and no universal straight-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Parase and another V. State (Delhi Administration) {2000 (2) SCC, 646}. Bahadur Naik V. State of Bihar {2000 (9) SCC
153) and Ram Gulam Chaudhury and othersV. State of Bihar {JT 2001(8) SC 110}.
28. Here in this case Investigating Officer was dead, so question of not producing him or withholding him, does not arise at all, so no adverse inference can be drawn against the prosecution.
29. The appellants have taken defence in their statements recorded under Section 342 Cr.P.C, that may be the deceased had been killed by militants, meaning thereby it is admitted case that the deceased were killed. Accused have not led any evidence in defence in order to prove that the deceased were killed by the militants.
30. We are conscious that the statement recorded under Section 342 Cr.P.C of the accused cannot be made basis for conviction, but its effect is to be seen.
31. Apex Court in a recent case titled as Bishnu Prasad Sinha & anr. Versus State of Assam, reported as 2007 SCW 569 held that statements of accused made during examination under Section 342 Cr.P.C, cannot form basis of conviction, but their effect can be considered in the light of other evidence brought on record. It is profitable to reproduce Para 34 of the said judgment hereunder:-
34.It is well settled that statements under Section 313 of the Code of Criminal Procedure, cannot form the sole basis of conviction; but the effect thereof may be considered in the light of other evidences brought on record. (See Mohan Singh Vs. Prem Singh {(2002) 10 SCC 236}, State of U.P. Vs. Lakhmi {(1948) 4 SCC 336}, and Rattan Singh Vs. State of HP { (1997) 4 SCC 161}.
32. Applying the test, there is a clinching evidence-statements of Gulnaz Begum, Magistrate and the other witnesses- the disclosure statements and the recovery made in pursuance of the disclosure statements read with the expert opinion as discussed hereinabove.
33. In the given circumstances of the case, we are of the considered view that appellants have failed to pin point/highlight that the statement of Gulnaz Begum cannot be read against the accused, who happens to be her father. Viewed thus, the impugned judgment merits to be upheld.
34. Now the question is whether in the given circumstances of the case, the sentence recorded against both the accused-appellants merit to be upheld or otherwise. The sentence recorded so far accused No.2 is concerned needs no interference.
35. Now the crucial question is whether death penalty recorded by the trial Court in terms of impugned Order dated 9th of August, 2005 is to be confirmed or whether appellant No.1 is to be sentenced to life imprisonment.
36. Keeping in view the above discussion, the basis for conviction is the statement of child read with other corroborative evidence.
37. Apex Court in case titled as State of Himachal Pradesh Versus Prem Chand, reported in 2003 Cr.L.J, 872 has held that sentence based on the sole testimony of child witness which was though true, could not be made basis for extreme sentence and capital sentence reduced to sentence to life imprisonment. It is profitable to reproduce Para 12 of the said judgment hereunder:-
12.Though the Sessions Court has imposed death sentence upon the respondent by an order made on 29-9-1992, the High Court by its judgment dated 28-4-1993 acquitted him. In view of the following observations of this Court in Suresh V. State of U.P. (supra) (AIR 1981 SC 1122: 1981 Cri LJ 746) (Para 11).
Children, in the first place, mist up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. The extreme sentence cannot seek its main support from evidence of this kind which even if true, is not safe enough to act upon for putting out a life. (p.574).
and keeping in mind the fact that there is a long time gap between the date of the murder and conviction now by us and particularly when in the intervening period there is an order of acquittal in favour of the respondent. We do not think it is expedient to award the capital sentence upon the respondent. Therefore, we reduce the sentence to life imprisonment while upholding the conviction given by the Sessions Court. The appeal is allowed accordingly. If the respondent is on bail, the same shall stand cancelled and he shall surrender forthwith to serve out his sentence in accordance with law.
38. Judging this case from another angle that accused-appellants have not killed Gulnaz Begum, who was present at the occurrence, may be because accused Mohd. Sharief is his father, is suggestive of the fact that accused Mohd.Sharief has not acted brutally, thereby this case does not fall within the ambit rarest of the rare case.
39. Apex Court in case titled as Bishnu Prasad Sinha and anr. Versus State of Assam, reported as 2007 AIR SCW 569 laid-down the test that which case is coming/falling within the four corners of the definition of rarest of the rare cases.
40. Apex Court also laid-down the same test in case titled as Subhash Ramkumar Bind @ Vakil and another Vs. State of Maharashtra, reported as AIR 2003 SC 271.
41. Keeping in view the test laid-down, read with the fact, that the child witness is a star witness, we are of the considered view that case of Mohd. Sharief does not fall within the definition of rarest of the rare case.
42. Accordingly, we deem it fit and proper to convert death penalty into life imprisonment.
43. Having glance of the above discussion, the judgment of conviction is upheld, but order of sentence is modified only to the extent of death penalty which is converted into life imprisonment.
44. Accordingly, Confirmation Petition is answered.
Send down the file along with copy of the judgment for serving the sentence.