Allahabad High Court
State Of U.P. vs Shane Haidar And Others on 30 January, 2015
Bench: Rakesh Tiwari, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 37 Case :- GOVERNMENT APPEAL No. - 6939 of 2006 Appellant :- State Of U.P. Respondent :- Shane Haidar And Others Counsel for Appellant :- Govt.Advocate Hon'ble Rakesh Tiwari,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Mrs.Vijay Lakshmi, J.) Aggrieved with the judgement of acquittal dated 24.07.2006, passed by Additional Sessions Judge, Moradabad, the State has preferred this appeal with a prayer to set aside the impugned judgment and to punish all the accused persons / respondents no. 1 to 4, in accordance with law.
We have heard Shri Pradeep Pandey, learned AGA appearing on behalf of the appellant-State and Shri V.M. Zaidi, learned counsel for the respondents and have carefully gone through the original record.
The prosecution case in brief is that on February 21, 2004 at about 3.30 P.M., when the informant Saalim, his father Israrul Hassan and his brother Mohd. Waquir were working in their field and were cutting the sugar cane crop, the accused respondents tried to take away their Tractor through the informant's field. In the field of informant wheat crop was also standing at that time. Apprehending its destruction, when the informant forbade them from doing so, the accused persons came forward to mount an assault. The informant, his father and brother somehow saved themselves by running to their house. Thereafter, all the accused persons, armed with guns and country made pistols reached the informant's house and mounted a murderous assault on informant's family. The respondent no.4 Mohd. Hasnain, who was armed with a country made pistol, fired a shot on informant's father with intention to kill him. Thereafter, the respondents no. 2 and 3 Tausif Haider and Naz Haider opened fire on Mohd. Waquir, brother of the informant. The father and brother of the informant sustained fire arm injuries on their chest, legs and face. The father of the informant became unconscious and fell on the ground. Informant's mother ran to save him by holding him in her arms, whereupon the respondent no.1 Shane Haider hit on her head with the butt of his gun. On hearing the alarm, witnesses Islam Raza and Mohd. Zaqi reached at the spot and challenged the assailants, on which all of them fled away extending threats to kill the informant and the witnesses. The FIR of the incident was lodged on the same day i.e. 21.02.2004 at 6.15 P.M. and the injured were taken to the Hospital for treatment. The informant's father died on the way to the Hospital and was declared "brought dead" on 21.02.2004 at 7.00 P.M. by C.M.O. District Hospital, Moradabad. The injured brother and mother of the informant were medically examined at 7.15 P.M. on the same day. Multiple fire arm wounds in area 18cm x 0.8cm on the top of nose with chin and neck and two fire arm wounds in area 7cm x 2cm on the right side front of chest and multiple fire arm wounds in area 23cm on the front of lateral aspect of right forearm were found on the body of informant's brother Mohd. Waquir. All the injuries were kept under observation and X-ray was advised. On X-ray of chest, face and neck small rounded radio opaque shadow of metallic density were seen. However, according to supplementary medical report all the injuries were found to be simple in nature. The mother of informant, injured Nazfi Khatoon, too, was medically examined on the same day i.e. 21.02.2004 at 7.55 P.M. and a lacerated wound 4cm x 0.5cm x scalp deep was found on the right side of her head with bleeding present on it.
The dead body of the father of informant Israrul Hassan was sent for post mortem after completion of inquest proceedings. The Doctor, conducting post mortem, found the presence of multiple gun shot wounds of entry at the front of both sides chest and abdomen in an area of 42cm x 30cm and multiple gun shot wounds of entry on both front of thighs above the knee joints in an area of 12cm X 20cm. On exploration, chest cavity was found containing blood more than one litre. Heart and both lungs of the deceased were found lacerated. Multiple small pellets were recovered from his left lung, heart and thighs. In the opinion of Doctor, the cause of death was shock and haemorrhage as a result of anti mortem multiple gun shot wounds.
Initially the FIR in this case was registered under sections 307 and 506 I.P.C. because till that time deceased Israrul was struggling for his life, but after receiving the information about his death, sections 302, 147, 148, 149 I.P.C. were also added vide entry in G.D. No.2 at 1.15 P.M. on 22.02.2004.
It is worth mentioning that the informant on the same day, after the death of his father, had informed the S.P. Rural Moradabad about the death of his father through a second written report. In that report he implicated three more persons apart from the present four accused respondents. In the second report he alleged that the Police in connivance with the accused persons was reluctant to lodge even the first report and it lodged his first report only when he took out the names of those three additional accused persons named by him in the second report. On the second application, the S.P. Rural, Moradabad ordered the S.H.O., P.S. Paakbada, Moradabad to register and investigate the case against seven accused persons named in the second report. Accordingly, the case was registered and investigated. The I.O. recorded the statement of witnesses, prepared the site plan of the place of occurrence and collected the relevant evidence. On 27.02.2004, the Police arrested accused Mohd. Hasnain and accused Shane Haider and recovered a country made pistol from the pocket of Mohd. Hasnain who confessed before the Police that it was the same country made pistol by which he had fired a shot on Mohd. Israrul and his son Mohd. Waquir on 21.02.2004. The blood stained clothes i.e. the Kurta and Paijama of deceased Israrul were sent for chemical examination at Forensic Lab, Agra, which submitted its report on 05.03.2004 with regard to presence of human blood on Kurta and Paijama of the deceased. After completion of investigation, the Police submitted charge sheet against the respondents in the court of Chief Judicial Magistrate, Moradabad. The case being triable by the court of sessions, it was committed to the sessions court, where charges under sections 302 read with 34 I.P.C., section 307 read with 34 I.P.C. and 506 I.P.C. were framed against all the respondents.
All the accused denied the charges and claimed their trial.
The prosecution in order to prove its case produced ten witnesses in all, out of which three witnesses were of fact and the remaining were of formal character. As PW-1, the informant Mohd. Saalim was produced, who corroborated the prosecution case in his testimony and proved both the written reports lodged by him. PW-2, injured Mohd. Waquir, the brother of the informant, also supported the prosecution case. He produced in court the blood stained towel, shirt and vest, he was wearing on the day of occurrence. Those clothes were exhibited as material Exhibits No.1, 2 and 3.
PW-3 is Islam Raza, a neighbour, was produced as an eyewitness of the occurrence. He was said to have seen the occurrence from outside the boundary wall of court-yard of informant, which according to him was only 2 or 2-1/2 ft. high at that time.
The remaining formal witnesses include the two Doctors and the police officials. Dr. K. Kumar who conducted the autopsy of deceased Israrul and Dr. R.P. Bharadwaj who medically examined both the injured were examined as PW-5 and PW-9 respectively. The two I.Os. of the case, were produced as PW-8 and PW-10.
After conclusion of the prosecution evidence, the statements of accused persons under section 313 Cr.P.C. were recorded, in which they denied the prosecution story and pleaded their innocence and false implication due to enmity. The accused respondents produced a defence witness named Farooq Ahmad, Office Superintendent, Rajputana Unani Medical College Hospital/Research Centre, Jaipur in proof of the fact that accused Naz Haider was not present at the spot at the time of incident as he was prosecuting his studies in the aforesaid Unani Medical College at Jaipur on the fateful day. The defence also produced some documentary evidence to show the criminal antecedents of deceased Israrul and the pending litigations between the parties to prove the personal enmity persisting between them.
The learned trial court however did not rely on the prosecution story. It found the prosecution witnesses unworthy of credence and the prosecution story doubtful on the following grounds:-
(1)The FIR in this case is shaky, ante timed and unreliable.
(2)The place of occurrence is doubtful as no blood has been found by the Police at the spot.
(3)The time of occurrence is also unreliable because during post mortem examination 200 grams of semi digested food has been found in the stomach of the deceased, whereas the informant has stated that his father had not taken any meal till 3.00 P.M. on the fateful day.
(4)The oral evidence in this case does not find support with the site plan because the I.O. has not shown any such place in it where the deceased fell down after sustaining the fire arm injury.
(5)The medical evidence does not coincide with the oral evidence, as the Doctor who has examined the injured witnesses has clearly stated that the blunt injury, having a width of 0.5cm only, found on the head of mother of the informant, could not have been caused by the butt of a gun.
(6)The prosecution has failed to prove any immediate motive in this case because there is no corroborating evidence to prove the earlier occurrence of forcibly taking out the Tractor from the field of informant in the morning by the accused persons.
(7)The recovery of country made pistol from the pocket of accused Mohd. Hasnain and his confessional statement after that recovery cannot be read in evidence due to bar created by Section 25 of Evidence Act.
(8)The witnesses have given evasive answers of the questions put to them during cross examination about the criminal cases, in which their family members were convicted and sentenced for imprisonment.
(9)PW-3 is a chance witness. Moreover he has stated that 100 or 50 persons were standing between him and place of occurrence at that time. Hence it was not possible for him to see the occurrence.
(10)The wife of the deceased, injured Nazfi, has not been produced in court.
(11)No Majroobi Chitthi is in existence.
(12)FIR is ante timed which is evident from the fact that on the inquest report section 302 of I.P.C. is mentioned whereas the I.O. has admitted that at the time when he proceeded to Hospital for inquest proceedings, the check report available with him was under section 307 of I.P.C. only.
(13)The second report having the addition of three more accused persons is doubtful due to the reason that there is no description of earlier incident of accused persons taking away the Tractor through the field of informant in this report.
(14)There are improvements in the statements of witnesses because what they have stated in court has not been recorded in the case diary.
(15)All the witnesses are not only relatives and interested witnesses but they are inimical too due to pending ligations between both the parties.
(16)"Plea of alibi" taken by accused Shane Haider has been found successfully established by the convincing statement of DW-1.
On the aforesaid grounds and expressing the view that defence has succeeded in throwing a reasonable doubt on the prosecution case, the learned court below acquitted all the accused respondents from the charges levelled against them, by giving them benefit of doubt.
Learned AGA Shri Pradeep Pandey representing the State has assailed the validity and correctness of the impugned judgment by arguing that the court below has acquitted the accused persons on flimsy grounds and has discarded the prosecution case on the basis of some minor contradictions, occurring in the statement of the witnesses, without keeping in view the well settled legal principle that minor contradictions are natural and are bound to occur in the statement of the witnesses due to lapse of time, which should be ignored. Learned AGA has submitted that the prosecution in this case has produced cogent and reliable evidence. It is a broad day light murder case. There is no question of mistaken identity because all the accused persons were priorly known to the witnesses. The motive behind the occurrence has been successfully proved by the prosecution. Moreover, it is a case of direct evidence, where the motive has a lesser importance. The motive i.e. previous enmity, finds corroboration by the statements of accused persons recorded under section 313 Cr.P.C. in which they themselves have clearly stated about their previous enmity with the prosecution party. Learned AGA has further submitted that it does not make any difference if the Police has not collected the blood stained and plain earth from the spot and has not properly prepared the site plan, in view of the settled legal principle that laches and lacunas on the part of I.O. would not help the accused persons. Learned AGA has contended that prompt FIR has been lodged by the informant in this case naming all the accused persons mentioning the specific roles played by each of them. All the prosecution witnesses have fully supported the prosecution case, as alleged in the FIR. The two Doctors conducting the post mortem and medical examination of the injured persons, have fully supported the prosecution case. However, the court below by misreading the statements of the witnesses and mis-appreciating the evidence on record has wrongly acquitted the accused persons. On the aforesaid grounds learned AGA Shri Pradeep Pandey has prayed that the judgment passed by the trial court be set aside and all the accused respondents be punished.
On the other hand, learned counsel for the respondents Mr. V.M. Zaidi has argued that the prosecution has miserably failed to prove this case beyond doubt against the accused respondents. The witnesses are unreliable and highly interested persons. No independent witness has been produced by the prosecution, even the injured mother of the informant has not been produced by the prosecution for the reasons best known to it. The motive as alleged by the prosecution is very weak. The deceased himself was a criminal having several enemies hence the possibility of his assassination by some of his enemy cannot be ruled out. It has further been submitted by learned counsel for the accused respondents that the trial court has rightly acquitted the accused persons by a well reasoned judgment and there is no need to interfere with the same in view of the well settled legal proposition that even where two views are possible the finding of acquittal should not be disturbed by appellate court.
We have given our thoughtful consideration to the submissions advanced by learned counsel for both the parties and have re-appreciated the evidence as available on the original record.
Before dealing with the issues canvassed, it is considered expedient to have a bird's eye view of the relevant prosecution witnesses.
PW-1 Mohd. Saalim, who is the first informant in this case, has fully supported the prosecution story, as depicted in the FIR, in his examination in chief and there is no need to repeat the same. He has faced gruelling cross examination, but he appears throughout cogent and consistent with his testimony. During his cross examination, he has deposed about the situation of his field, where earlier occurrence regarding taking out of Tractor of the assailants had occurred. In reply to the questions about the reason for the discrepancy taking place between his two reports, he has categorically stated that the second FIR was written by him on the dictation of Pradhan Munazir Hussain. He has stated that he had informed the I.O. about this fact in his statement recorded under section 161 Cr.P.C. by stating that the three accused have been wrongly implicated in the second report. He has stated that boundary wall of his house was only 2 or 3 ft. high at the time of occurrence. It was made of mud. About the reason for not calling any Doctor of his village to treat his father, he has stated that as all the Doctors practising in his village were quacks, he did not intend to call any of them. He has stated that he was stopped at Police Station and his father, mother and younger brother were sent to District Hospital, Moradabad with Police Constable. He has stated that Police had not taken the blood stained clothes of his brother and mother. He has fairly stated that he did not sustain any injury in this occurrence. This witness, when asked about the criminal case, in which his father along with other accused persons was sentenced to 10 years Rigorous Imprisonment, has expressed his ignorance about the same. He has stated about the reason as to why neither he nor any of his family members had shown the cut-crop of sugar-cane or crop of wheat to the I.O. during his inspection. He has expressed his ignorance regarding the fact that accused Naz Haider was studying at Jaipur or accused Tausif Haider was working in some metal factory at Jaipur.
PW-2 Mohd. Waquir, the injured brother of informant, has corroborated the statement of PW-1 and has fully supported the prosecution case. He has produced in Court a towel, a shirt and a vest, which he was wearing on the date of occurrence stating about the presence of blood stains on all those clothes. All these articles were marked as material Exhibits No.1, 2 and 3. PW-2 has also been cross-examined at length by learned defence counsel and he has reiterated the facts relating to firing by accused Hasnain on his father and by accused Naz Haider and Tausif Haider, on both of them. He has stated that after sustaining firearm injury he ran towards southern direction. About 4.30 P.M. they proceeded towards the Hospital from their village. His brother (the informant) was stopped at the Police Station for recording his statement. He has denied the suggestion given by learned defence counsel regarding absence of any blood marks or marks of firing on the clothes produced by him in the court.
It appears strange that the learned trial judge has not recorded his observation about presence of blood marks or the marks of firing on the clothes produced in court before him at the time of recording of statement of PW-2. Hence no finding can be given on this point.
The mother of the informant, second injured witness Nazfi Khatoon, has not been produced by the prosecution.
PW-3 Islam Raza has been produced as an eyewitness, who has stated that at about 3.30 PM on 21.02.2004 when he was busy in some conversation with Mohd. Zaqi, standing on the road, he saw the accused respondents coming towards the house of Israrul Hassan armed with guns and country made pistols. At that time, Mohd. Israrul, Mohd. Waquir, Mohd. Saalim and Nazfi Khatoon all were sitting in the courtyard. As wall of the courtyard was only 2 or 2-1/2 ft. high, he could easily see inside the house. This witness, thereafter, has categorically stated about the roles played by each of the accused persons by stating that the first fire was shot by accused Hasnain aiming Israrul, inflicting fatal injuries on his body. When his son ran after him, accused Naz Haider and Tausif Haider inflicted fire arm injuries on both of them. After sustaining fire arm injuries Israrul fell down on the earth and Mohd. Waquir ran towards south. The wife of Israrul rushed towards him and lied down on her husband to shield him, whereupon accused Shane Haider assaulted on her head by the butt of his gun causing injury on her head. After the occurrence, all the accused persons ran away form the spot extending threats. During his cross examination, this witness has spoken about the blood oozing out from the body of the deceased. He has stated that he could not see the blood stains on earth because he was standing at some distance.
PW-4 is Sub Inspector Suresh Chandra Sharma, who was posted at P.S. Paakbada, Moradabad, on 27.02.2004. He has stated about the arrest of accused Mohd. Hasnain and recovery of country made pistol from his pocket and also about the arrest of Shane Haider accompanying him. He has produced in court the country made pistol and the live cartridges recovered by him from the accused Hasnain.
PW-5 is Dr. K. Kumar, who has conducted the post mortem on the dead body of deceased Israrul on 22.02.2004 at 3.00 P.M. The post mortem report (Ext. Ka-4) shows that following anti mortem injuries were found by him during post mortem:-
(I)Multiple gun shot wounds of entry and abrasions present on the front of both sides chest and front of abdomen in an area of 42cm x 30cm.
(II) Multiple gun shot wounds of entry and abrasions present on both front of thighs above the knee joints in an area of 12cm X 20cm.
(III)The chest cavity contained blood more than one litre and 13 metalled small pellets were recovered from it.
(IV)Five mettled pellets were found inside the cavity of stomach.
(V)Sternum and 6th, 7th, and 8th ribs on the lift side were found fractured.
(VI)Both lungs and intestines were found lacerated.
PW-5 has duly proved the post mortem examination report prepared by him. He has stated that all these injuries might have been caused by fire arm at the time as alleged by the prosecution. However, he has stated that a person sustaining such type of injury may not survive for more than 3 or 3-1/2 hours and is sure to die within 10 or 15 minutes. He has also stated that the deceased might have taken food before one or one and half hours from his death.
PW-6 is Constable Anand Giri, who has registered the case and has prepared the check report (Ext. Ka-5).
PW-7 is Sub Inspector Manoj Kumar, who had conducted the inquest proceedings. He has stated that on 22.02.2004, he was posted at P.S. Paakbada. In the morning, he received a telephonic information from P.S. Civil Lines about the death of injured Israrul Hassan, so he proceeded at 6.50 A.M. to District Hospital, Moradabad along with the connected documents of Case Crime No.85 of 2004. He reached to the mortuary of Hospital, where the dead body had been kept and after opening its lock conducted the inquest proceedings.
PW-8 is Sub Inspector Saudan Singh, who is I.O. in this case. He has deposed about the investigation proceedings. During his cross-examination, he has admitted that no blood was found at the place of occurrence by him. Learned counsel for the accused respondents has drawn our attention towards that part of his statement where he has admitted that the witness Islam Raza had not informed him about the role of Naz Haider and Tausif Haider in firing on Israrul Hassan. There appears no discrepancy in his deposition in view of his following statement:-
"xokg bLyke jtk us eq>s ;g C;ku ugh fn;k fd ukt gSnj o rkSflQ gSnj us bljk#y glu ij Qk;j fd;s A cfYd ;g c;ku fn;k fd ukt gSnj o rkSflQ gSnj us tku ls ekjus dh fu;r ls Qk;j fd, os ekS0 ckfdj ds yxs "
PW-9 is Dr. R.P. Bharadwaj, who has proved the injury reports and supplementary report i.e. Ext. Ka-14, Ext. Ka-15 and Ext. Ka-16. He has stated that on 21.02.2004 at 7.15 P.M. he had examined Mohd. Waquir, son of Israrul Hassan, who was brought by Mohd. Zaqi and had found following injuries on him:-
(I)Multiple fire arm wounds in area 18cm x 0.8cm on the top of nose with chin and neck. Fresh bleeding was found present.
(II)Two fire arm wounds in area 7cm x 2cm on the right side front of chest with fresh bleeding present.
(III)Multiple fire arm wounds in area 23cm on the front of lateral aspect of right forearm and hand.
All the injuries were kept under observation and X-ray was advised.
On the same day at 7.55 P.M. he had examined Nazfi Khatoon, W/o Israrul Hassan, and found a lacerated wound 4cm x 0.5cm x scalp deep on the right side of her head with fresh bleeding present on it.
PW-9 Dr. Bharadwaj has identified Mohd. Waquir, who was present in court at the time of recording of his statement and has clarified that he had wrongly mentioned his name as "Majroob Bankey" in the injury report because at that time he could not properly hear the correct pronunciation of his name. About the injuries of Nazfi Khatoon, PW-9 has clearly stated that the injury sustained by her on her head might have been caused by the butt of a gun. However, during his cross-examination, he has stated that as the injury of Nazfi was only 0.5cm width wise it could not have been caused by the butt of a gun. He has also stated that he had not received any Majroobi Chitthi otherwise he would have made a mention about it in the injury report.
PW-10 is Inspector Chandra Shekher Yadav, who is the second I.O. in this case. He has stated about the investigation done by him.
No other witness has been produced by the prosecution.
The defence has produced Farooq Ahmad, Office Superintendent, Rajputana Unani Medical College Hospital / Research Centre, Jaipur as DW-1 in order to prove the fact that accused Naz Haider was not present at the date and time of occurrence and he was present in the aforesaid college situated at Jaipur.
After an overall assessment of all the witnesses, produced by prosecution, we are of the firm view that all the witnesses are throughout cogent and consistent while deposing in court. All the factual witnesses are rustic villagers, who are bound to get confused during their cross-examination. PW-2 is an injured witness, which fact is evident from his injury report, duly proved by the Doctor. Apart from some minor contradictions nothing has been elicited in their statements to cause a shadow of doubt on their credibility.
The apex court has reiterated the legal proposition in a catena of judgments that the evidence of a victim of a crime must be placed on a somewhat higher pedestal in terms of credibility attached to it, than evidence of any other witness. (Kunjumon Vs. State of Kerala (2012) 13 SCC 750).
In view of settled legal proposition as stated above we are not inclined to discard the testimony of PW-2 Mohd. Waquir only on the ground that some minor contradictions have occurred in his testimony about the manner of occurrence.
In State of Rajasthan Vs. Major Singh AIR 1999 SC 1073, the Hon'ble Supreme Court has laid down the law about the contradictions or inconsistencies occurring in the statement of an injured witness as under:-
"It would be practically impossible for any injured witness to exactly notice and memorise which accused was assaulting by the blunt side of the weapon and which was causing injuries by a sharp edged weapon.
Even if such a statement is made, it may amount to an exaggeration because when a number of assailants are there, injuries are not inflicted in a manner which could exactly be noted by the witness, specially when the witness himself was receiving injuries."
Now, returning to the facts of case in hand, learned court below has disbelieved the prosecution witnesses on the ground that they are near relatives of the deceased, so they are highly interested witness. The Apex Court in several earlier judgments and recently in Shyam Babu Vs. State of U.P. (2012) 8 SCC 651, has laid down the law that version of an eyewitness cannot be discarded mearly on the ground that such eyewitness happened to be a relative or friend of the deceased.
On a close scrutiny of the evidence, available on record we find that the trial judge has discarded the testimony of witnesses on flimsy and unjustifiable grounds without keeping in mind that the witnesses are rustic villagers. The apex court in the case of State of U.P. v. Krishna Master and others (2010) 12 Supreme Court Cases 324 has held as under:-
"A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore the discrepancies noticed in the evidence of a rustic witness who is subjected to gruelling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime."
In the above cited case, the apex court has observed that the court should read the evidence as a whole. If it appears to have a ring of truth than the discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching core of the case should not be a ground for rejecting the evidence. Courts should sift the evidence to separate falsehood from the truth. It should not adopt a hyper technical approach.
So far as the "motive" of the case in hand is concerned, the learned trial court has ignored the well settled legal principle that prosecution is not required to prove "motive" of the crime, when it relies on direct evidence of eyewitness. In Krishna Master's case (supra), the apex court has reiterated the law that if the prosecution has relied on direct evidence and the evidence is found to be trustworthy and unimpeachable, failure to establish motive would not entitle the respondents to an acquittal.
The learned trial court has found that the statement of witnesses suffer from improvements as no such fact has been recorded by the I.O. in Case Diary, without considering that the Case Diary is not a substantive evidence and court should consider what a witness deposes in the court. Learned trial judge has found the FIR ante timed on the basis of fact that there is no mention of section 302 IPC., on the inquest report. This finding of learned trial court appears clearly perverse in view of the statement of PW-7 Sub Inspector Manoj Kumar that on receiving a telephonic information from P.S. Civil Lines about the death of Israrul Hassan he proceeded to District Hospital, Moradabad along with the check report already available with him so he has fairly admitted that on the check report available with him at that time there was no mention of section 302 IPC.
The aforesaid statement of PW-7 inspire confidence as he was not authorise to add any section in the FIR. If, he on receiving information, mentioned section 302 of IPC on the inquest report, it does not make any difference because inquest proceeding which always relate to the death of a person and not to attempt to murder, is not a substantive piece of evidence. In Brahm Swaroop and another vs. State of Uttar Pradesh (2011) 6 Supreme Court Cases 288 it has been held as under:-
"The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery, etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses cannot be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest.
........Even where the attention of the author of the inquest is drawn to the alleged discrepancy, overwriting, omission or contradiction in the inquest report and the author in his deposition has also admitted that through a mistake he omitted to mention the crime number in the inquest report, the Supreme Court has held that just because the author of the report had not been diligent did not mean that reliable and clinching evidence adduced by the eyewitnesses should be discarded by the court."
The testimony of two eyewitnesses namely Mohd. Saalim (PW-1) and Islam Raza (PW-3) appears wholesome and convincing with no ripples whatsoever. Both of them are natural witnesses of the incident, who have plausibly explained their presence at the spot which could not be doubted at all. The post mortem report reveals that there is complete harmony between the ocular testimony and medical evidence. The Doctor has found blood stained Kurta and Paijama in a sealed bundle along with the dead body. The Kurta and Paijama have been sent to Forensic Lab for chemical examination, on which human blood has been found.
So far as the 'plea of alibi' taken by accused respondent Naz Haider is concerned, on a perusal of original record this fact becomes clearly evident that accused Naz Haider has nowhere earlier stated about his absence from the place of occurrence on the fateful day. In his statement recorded under Section 313 Cr.P.C. he has not stated any such fact. He has been specifically asked by the Court, "KYA AUR KUCHH KAHNA HAI" and he has replied "KUCHH NAHI". In the original record the bail applications moved by all the accused respondents are also available which show that the accused respondents have taken as many as 11 grounds in support of their bail plea but no such ground relating to 'plea of alibi' has been taken by any of them. The original record also shows that accused Naz Haider has been granted bail by this Court vide order dated 27.4.2004, the certified copy of which is available on record, wherein various grounds taken by Naz Haider have been mentioned. But there is no iota of any plea of alibi in it. It was for the first time a witness DW-1 has appeared in court and has stated about the absence of Naz Haider on the date and place of occurrence. The learned trial judge has found the plea of alibi successfully proved in favour of the accused Naz Haider on the basis of the fact that informant has not denied from the fact that Naz Haider is a student studying in Jaipur and has only expressed its ignorance about it. (Para 1, page 43 of the impugned judgment).
It appears strange that the learned trial court has doubted the presence of informant inside his house i.e. the place of occurrence on flimsy ground that time of occurrence was 3.30 P.M. when generally male members of the house remain busy outside their house, in their work for earning their livelihood, however, the learned trial judge has believed the absence of Naz Haider on the spot only on the basis of uncorroborated statement of DW-1 who is an employee of Unani Medical College, Jaipur speaking about it for the first time in the court.
By the statement of DW-1 it is also apparent that the unofficial registers of the college, he produced in court, were neither seen nor attested by any officer or principal of the college. No officer or principal of the Unani Medical College, Jaipur has been produced as a witness in support of such plea.
The law relating to the 'plea of alibi' is also well settled. The Apex Court in the case of Daroga Singh and Others vs. B.K. Pandey; (2004) 5 SCC 26 has upheld the decision of High Court in not accepting the plea of alibi where it was found that none of the superior officer had supported such plea.
If the accused Naz Haider was not present at the place of occurrence on that date, what was the reason that he had not stated any such fact when he was given sufficient opportunity during recording of his statement under Section 313 Cr.P.C.?
The Supreme Court in the case of Ram Naresh Vs. State of Chhatisgarh; (2012) 4 SCC 257 has observed as under :
"The object of recording of a statement under Section 313 Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail the opportunity, the consequences in law must follow."
In the case of Munshi Prasad Vs. State of Bihar; AIR 2001 SC 3031 the Apex Court has laid down the law as under :
"The burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the Trial Court and not by filing some affidavits or statements purported to have been recorded under Section 161 Cr.P.C."
In the case of Binay Kumar Singh v. State of Bihar, AIR 1997 SC 322 it has been held that :
"once the prosecution succeeds in discharging its burden it is incumbent on the accused, who adopts the plea of alibi to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The burden of the accused is rather heavy. It follows, therefore, the strict proof is required for establishing the plea of alibi."
All the prosecution witnesses of fact have clearly supported the prosecution case by categorically stating about the specific roles played by each of the accused respondents. All of them being natural and probable witnesses their presence at the spot cannot be doubted. Their statements find corroboration with the documentary evidence produced by the prosecution. It inspires confidence and appears to be trustworthy. There appears no reason why a victim of the offence or the son of deceased victim would falsely implicate an innocent, exculpating the real assailants?
So far as the non-production of the wife of deceased injured Nazfi Khatoon is concerned, only on the aforesaid ground the entire prosecution case cannot be discarded. The apex court in the case of State of Karnataka Vs. Moin Patel and others; (1996) 8 Supreme Court Cases 167, has laid down the law in this regard as under:-
"The approach in such a case would be to find an answer to the question whether the evidence actually produced is reliable or not and not to the question whether non-examination of such witnesses ipso facto vitiates the entire prosecution case, if the presumption under Section 114(g) of the Evidence Act were to be drawn. In other words, if in a given case, it is found that there are independent witnesses whose evidence is reliable and trustworthy to prove the charges levelled against the accused the infirmities arising out of non-examination of other independent witnesses will not be sufficient to put the prosecution case out of Court."
On the basis of aforesaid discussion, we are of the considered view that the finding of acquittal recorded by the trial court is based on flimsy grounds and cannot be sustained at all. The acquittal of accused respondents in this case is wholly unjustified. As in this case the guilt of the accused respondents has been proved to the hilt by clinching, convincing and conclusive evidence of the eyewitnesses, injured witness and medical evidence, their acquittal by the trial court appears unjustified and perverse. It goes without saying that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system.
In view of the above discussion, we allow the appeal and set aside the impugned judgment. Accordingly, we hold the accused respondents guilty of the offence punishable under section 302 read with 34 IPC for committing murder of Israrul Hassan and under section 307 read with 34 IPC for attempting murder of Mohd. Waquir and Nazfi Khatoon. Accordingly, we sentence each of them to life imprisonment under section 302 read with 34 IPC and five years rigorous imprisonment for the offence punishable under section 307 read with 34 IPC. Both the sentences shall run concurrently. The Chief Judicial Magistrate, Moradabad shall ensure that all the accused respondents be arrested and lodged in jail to serve out the sentence passed against them and shall send compliance report within two months from the date of receipt of copy of this judgment and order.
Office is directed to send a certified copy of this judgment by Fax to CJM, Moradabad for compliance and also to the trial court for its intimation.
The Criminal Revision No.4467 of 2006 filed by the complainant relating to same occurrence, along with the lower court's record, be listed before the appropriate Bench.
Order Date :- 30.01.2015 NS