Jammu & Kashmir High Court
Javed Iqbal And Ors. vs State Thr. P/S Mendhar on 26 July, 2017
Bench: Alok Aradhe, Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Appeal No. 34/2014 MP No. 01/2015
c/w
Confirm No. 13/2014
Date of decision : 26.07.2017
Javed Ahmed and ors. vs. State th. P/S Mendhar
Coram:
Hon'ble Mr. Justice Alok Aradhe
Hon'ble Mr. Justice Sanjeev Kumar
Appearing counsel:
For the petitioner (s) : Mr. Sunil Sethi, Sr. Advocate with
Mr. Ravi Abrol, Advocate
Mr. For the respondent(s) : Mr. Asheesh Singh Kotwal, Dy. AG
i/ Whether to be reported in : Yes/No Press/Media ii/ Whether to be reported in : Yes Digest/Journal Per Sanjeev Kumar-J The appellant No. 1 Javed Ahmed has been convicted for an offence under Section 302 read with section 34 of the RPC as well as under
Section 4 read with section 25(1-A) of the Arms Act. The appellant Nos. 2 to 10 have been convicted for offences under section 302 read with section 34 of the RPC. In addition, appellant No. 4 has been convicted for offence under section 325 of the RPC as well.
2. According to the prosecution case, injured complainant, Abdul Qayoom on 25.04.2010 lodged a written complaint that Mohd Javed, Cr. Appeal No. 34/2014 Page 1 of 18 Saraj-ud-Din, Baz Hussain, Meraj Din, Anwar-ul-Haq, Makhan Din, Jamal Din, Mohd Nasir, Mohd Din, Mohd Zuffer, Mst. Karam Noor, and Mst. Zahien are closely related to the complainant. It was stated in the complaint that accused No. 2 borrowed a sum of Rs. 6,40,000/- from his brother for purchase of land one year ago, which was to be returned on 31.12.2009. It was agreed by accused No. 2 in earlier Panchayat as well that he would refund the amount by the aforesaid date. On 25.04.2010, a Panchayat was convened at Govt. Girls Higher Secondary School, Mendhar, where accused Nos. 1 to 20 with common intention entered the said school at about 2.30 P.M and attacked him and his brother with an intention to commit their murder. The accused Nos. 1 to 20 caught hold the arms, legs and head of his brother and accused No. 1 attacked his brother on the abdomen with knife and accused Nos. 1 to 20 did not allow his brother to escape till his death, whereafter they raised slogan of joy and tried to commit the murder of the complainant. However, the complainant escaped, otherwise he would have also been killed. It was stated that accused committed murder in the broad day light in the presence of fifty witnesses.
3. On the basis of aforesaid written report, First Information Report was lodged for offences Cr. Appeal No. 34/2014 Page 2 of 18 under Sections 302, 109, 147, 148 RPC and Section 4/25 of the Arms Act in Police Station, Mendhar. Dr. Pervaiz Ahmad Khan, Assistant Surgeon, Sub District Hospital, Mendhar conducted the post-mortem examination on the dead body of Abdul Rehman. He found a wound on the left side of the back medial aspect of scapula at inferior angle at 4th intercostals space, slightly medial to mid clavicular line, parallel to spine 18 inches below the top of the head and 4" to the left midline. The margins of wound regular 2 inches long ½ inch wide at the skin surface. The upper and superior corner of wound blunt and lower end at inferior angle of scapula inferior corner of wound pointed. The margins of wound are clean cut. No abrasion or bruising seen at the wound margin. Wound bright read in colour. No exit wound seen. A track about 4 x ½ inches deep evenly cut from back to front. No tissue bridging is seen. The track perforates from the back at the 4th intercostals space passing through in prior of Trapenzum muscle and superior and of latissmuss dorsi muscle and perforate the posterior wall/Border of left lung. An abrasion 2 inches x ½ inch is seen at left shoulder brought red in colour was also noticed. No other injury was seen except left lung, heart with abrasion over left shoulder. The weapon of offence, Cr. Appeal No. 34/2014 Page 3 of 18 namely, a Khokhri was produced before aforesaid witness, who opined that injury may be inflicted on deceased, Abdul Rehman by the aforesaid weapon.
4. Dr. Zaheer Ahmad Baig, Dental Surgeon, Sub District Hospital, Mendhar examined injured Abdul Qayoom and found wound on upper lip and muscle of upper left three teeth. There was some bleeding and laceration. The X-ray of the person examined was got conducted and X-ray report showed fracture of three teeth with reframed root stamps. In his opinion, i.e., Ex- PW 27 ZA, the injury was caused by blunt object and was grievous in nature.
5. During the trial, the prosecution examined 27 witnesses, whereas the appellants examined one witness in defense. The trial court inter alia relying on the evidence of eye witnesses namely, PW1-Abdul Qayoom, PW 2- Abdul Aziz, PW 3- Mohd Bashir, PW-5 Mohd Zahoor, PW-6 Mohd Irshad, PW 7-Javed Mian Dad, PW 8-Mukthiar Ahmed, PW 9-Abdul Rashid, PW-10 Mohd Sadeeq, PW 11- Mohd Rashid, PW 16- Sakinder Hayat, and PW 17-Mumtaz Ahmad found the commission of the offence to be proved. It was further held that merely because aforesaid eye witnesses are related to the family members of the deceased, their testimony cannot be discarded because of some material omission in Cr. Appeal No. 34/2014 Page 4 of 18 the statement under section 161 of Code of Criminal Procedure and the evidence before the court. On the basis of disclosure statement made by the accused Javed Ahmed, the recovery of weapon of offence from the drain situate at the building of Gandhi Sewa Centre Town, Mendhar was found to be proved. The trial court noticed that PW 4-Mohd Bashir and PW 9-Abdul Rashid were declared hostile by the prosecution.
It was further held that appellant Nos. 2 to 10shared the common intention with appellant No. 1, Javed Ahmed for inflicting dangerous injury on the back of deceased, Abdul Rehman and also shared common intention to commit the murder of the deceased by catching hold of the deceased from the front side till appellant No. 1 inflected Khokhari on the back of the deceased penetrating his body and resulted in rupture on the vital organ of heart and the lungs. Accordingly, the appellants were convicted of the offences alleged against them as aforesaid.
6. Learned senior counsel for the appellants submitted that First Information Report has been anti Timed. It is pointed out that FIR is shown to have been registered on the date of occurrence at 4.00 p.m. i.e. 25.04.2010, whereas the FIR is signed on 26.04.2010 i.e. a day after the incident and the FIR itself states that it has been filed one day after the incident.
Cr. Appeal No. 34/2014 Page 5 of 18It is also pointed out that FIR is submitted to the Court a day after the incident, though the court is a walking distance from the place of occurrence and the FIR did not mention any details about the presence of the witnesses. It further submitted that in the FIR 20 accused have been named, whereas charge sheet has been filed only against ten accused, which shows that even at the time of lodging of the FIR it was not known to the complainant as to who has committed the offence. It is also submitted that weapon of offence in the FIR named as knife and no details of injury to the complainant has been mentioned in the FIR. It is also pointed out that FIR was read over and explained to the complainant and thereafter was signed by him. In the FIR it is not mentioned that the complainant was beaten by lathi. It is also submitted that in the FIR it is not mentioned that farewell party of a teacher was going on at the time of incident at the premises.
7. The prosecution has failed to prove the motive. It is submitted that Panchayat was convened on 25.04.2010 to discuss the amount taken by Saraj Din from his real brother, Mohd Iqbal. However, the statement of Mohd Iqbal was not recorded by the Investigating Officer, nor any explanation was offered as to why the same was not recorded. It is further argued that the Cr. Appeal No. 34/2014 Page 6 of 18 Panchayat was convened by one Nazir, Public Prosecutor and Choudhary Mir Mohd, Lumberdar. Despite availability of aforesaid independent witnesses, their statements were not recorded. It is also submitted that different figures of amount taken by Saraj Din have been mentioned by the witnessed and even though according to the prosecution witnesses, the money was withdrawn from the bank and paid to Saraj Din, no bank statement was filed along with the charge sheet. It is further submitted that medical report clearly indicates that no injury was caused to the complainant on the day of occurrence but prior to that. It is submitted that injury on the body of the complainant was not proved by the prosecution. It is also argued that even though as per the statement of prosecution witnesses, lathies were used by the accused persons, however, the same were neither mentioned in the written complaint nor in the FIR and the Lathies were not recovered during the investigation. It is also pointed out that as per FIR and written complaint, injury was caused to the deceased with a knife in the abdomen, whereas the prosecution witnesses have stated that the injury was caused with a khokhari at the back of the deceased.
8. It is also pointed out that as per the written complaint, twenty persons were involved but in Cr. Appeal No. 34/2014 Page 7 of 18 the examination-in-chief the complainant has stated that only ten persons were involved and ten were standing by the side, whereas none of the other prosecution witnesses has stated anything about remaining ten persons. From the statement of the complainant himself, it is evident that the murder took place at the spur of moment and no planning was made in his presence. It is also urged that weapon of offence was neither sealed nor it was sent to FSL for chemical examination. It is also argued that from the statement of the prosecution witnesses and perusal of the written complain, it is clear that they were not present on the spot on the date of incident. It is also argued that site plan neither mentions the eye witnesses nor the position of the accused persons, even though the same was prepared on the indication of the complainant. It is also urged that recovery of weapon of offence is highly doubtful and the same was produced before the Doctor without any seal. It is also pointed out that no explanation has been furnished by the Investigating officer as to why statement of Advocate Nazir, Public Prosecutor, Choudhary Mir Mohd, Lumberdar, Deputy CEO, Fani and Abdul Kareem were not recorded, who were independent witnesses. It is further submitted that even though accused persons were charged Cr. Appeal No. 34/2014 Page 8 of 18 for an offence under section 149 of the Cr. P.C. yet they were convicted under section 34 of the Cr. P.C, for which they were neither charged nor were put on trial. In support of his submissions, learned counsel for the appellants has referred to the decisions in the cases of Suresh Sakharam Nangare vs. State of Maharashtra (2012) 09 SCC 249, D. Thamodaran v.
Kandasamy and anr. (2015) 16 SCC 758, K. A. Kortrappa Reddy and anr. vs. Rayara Manjunatha Reddy Alias N.R. Manjunatha and others (2016), 14 SCC 729, Sahid Khan v. State of Rajasthan (2016) 04 96 and Balu and anr. vs. State (UT of Pondicherry) (2016) 15 SCC 471.
9. On the other hand, learned counsel for the respondents submitted that there is no delay in lodging the FIR and the testimony of eye witnesses is trustworthy. It is further submitted that FIR need not contain every single detail and every part of the prosecution case. It is also submitted that even if FIR contains the broad facts of prosecution case, the same is sufficient. It is also submitted that there are 12 eye witnesses to the incident and their evidence cannot be discarded and the same has rightly been found to be reliable. It is also argued that there is a possibility of some improvements, exaggerations, and even embellishment in the Cr. Appeal No. 34/2014 Page 9 of 18 evidence of the eye witnesses recorded at the different stages of the trial particularly when the witnesses are rustic, illiterate and from rural background and minor and inconsequential contradictions and improvements cannot dent the credibility of a witness. The trial court has meticulously appreciated the evidence available on record and has rightly relied on the testimony of injured eye witness PW 1 Abdul Qayoom. Therefore, no interference with the judgment passed by the trial court is made out. In support of his submissions, learned counsel for the respondents has placed reliance on the decisions in the cases of Kamla Kant Dubey vs. State of Uttar Pradesh, (2015) 11 SCC 145, Phula Singh vs. State of Himachal Pradesh, (2014) 4 SCC 9, V. K. Mishra and anr. vs. State of Uttarakhand and anr. (2015) 9 SCC 588, S. R. Sukumar vs. S. Sunaad Raghuram (2015) 9 SCC 609, Sheesh Ram and other vs. State of Rajasthan (2014) 4 SCC (Crl.) 669, Vishal Agrawal and anr. vs. Chhattisgarh State Electricity Board and anr. (2014) 4 SCC (Cri.) 674, State of Punjab vs. Suraj Prakash and anr. (2015) 17 SCC 84, Shanker Gounda and others vs. State of Karnatka, (2015) 17 SCC 564, Inder Singh and others vs. State of Rajasthan, (2015) 2 SCC 734, Ganga Bhavani vs. Rayapati Venkat Reddy and others (2014) Cr. Appeal No. 34/2014 Page 10 of 18 6 SCC Cri.) 182, Harpal Singh alias Chhota vs. State of Punjab, (2017) 1 SCC 734, E Subbulakshmi vs. State of Tamil Nadu (2017) 1 SCC 757, Ram Chander and other vs. State of Haryana (2017) 2 SCC 321, Board of Control for Cricket in India vs. Cricket Association of Bihar and other (2017) 2 SCC 333, M.G. Eshwarappa and others vs. State of Karnataka, (2017) 2 SCC 558, Commissioner of Central Excise vs. Nestle India ltd. (2015) 17 SCC 569 Paui Meli and anr. vs. State of Tamil Nadu (2014) 13 SCC 90, Anwarul Haq vs. State of Uttar Pradesh, AIR 2005 SC 2381 and Kamta Yadav and others. Vs. State of Bihar (2016) 16 SCC 164.
10. We have considered the submissions made by learned counsel for the parties and have perused the record. The conviction of the appellants is founded on twin grounds, namely, Section 34 of the RPC and evidence of the eye witnesses to the incident. Before proceeding further, at this stage, it is relevant to take note of Section 34 of the RPC, which reads as under:
"34. Acts done by several persons in furtherance of common intention - when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."Cr. Appeal No. 34/2014 Page 11 of 18
Ordinarily, a person would be responsible for his own act and he can be fastened with the vicarious liability for the acts of others, unless he had common intention to commit the offence.
11. The words „common intention‟ implies pre arranged plan and acting in concert pursuant to the plan. The prosecution must proof that the criminal act was done in concert pursuant to a pre-arranged plan and common intent must be shared by all participating in the commission of the crime, prior in point of time. In order to prove prior meeting of minds, previous plan is not necessary to be proved, as common intention to bring out particular result may develop on the spot amongst the persons participating in the crime which depends on the facts and circumstances of the case. See, Amrik Singh and others v. State of Punjab, 1972 Cr.LJ 465 SC. The common intention can only be spelt out from the facts and circumstances of the case after careful appreciation of the evidence. See. Virender Singh v. State of M.P., (2010 ) 8 SCC 407.
12. We have carefully scanned the evidence on record. Admittedly, from the testimony of eye witnesses, it is axiomatic that during the course of Panchayat proceeding, a fight ensued when accused Baz Hussain started hurling abuses on Cr. Appeal No. 34/2014 Page 12 of 18 the complainant, namely, Abdul Qayoom and then caught hold of him and started beating him with a stick. The deceased was real brother of the complainant, who rushed towards him to rescue him but was attacked by all the accused persons. From the evidence of eye witnesses, namely, PW1- Abdul Qayoom, PW 2- Abdul Aziz, PW 3- Mohd Bashir, PW 5-Mohd Zahoor, PW-6 Mohd Irshad, PW 7-Javed Mian Dad, PW 8- Mukthiar Ahmed, PW 9-Abdul Rashid, PW-10 Mohd Sadeeq, PW 11- Mohd Rashid, PW 16, Sakinder Hayat, and PW 17 Mumtaz Ahmad, it is evident that appellant Nos. 2 to 10 caught hold of deceased Abdul Rehman by arms, legs and head and appellant No.1 brought out a khokhri from his socks and stabbed the deceased, which resulted in grievous injury to which ultimately the deceased succumbed. Thus, it is evident that prosecution has failed to bring on record any material showing the pre- arranged plan or prior concert to commit the murder of the deceased. It is also pertinent to note that there is no material on record that appellants No. 2 to 10 had knowledge that appellant No.1 was carrying khokhri with him. The appellants No.2 to 10 were carrying sticks, which is not unusual in Gujjar community to which appellants No.2 to 10 belong to. The injured witness, PW 1-Abdul Qayoom has also Cr. Appeal No. 34/2014 Page 13 of 18 stated in his evidence that fight ensued on the spot at the spur of the moment. Thus, it cannot be said that appellants 2 to 10 shared the common intention to murder the deceased Abdul Rehman and in furtherance thereof participated in the commission of crime. In our considered opinion, in any case, the Trial Court has rightly acquitted the appellants 2 to 10 of the offences under Section 149 of the RPC and therefore, we need not dilate further on the aforesaid issue.
13. Now we may advert to the evidence of eye witnesses, namely, PW1-Abdul Qayoom, PW 2- Abdul Aziz, PW 3- Mohd Bashir, PW 5- Mohd Zahoor PW-6 Mohd Irshad, PW 7-Javed Mian Dad, PW 8-Mukthiar Ahmed, PW 9-Abdul Rashid, PW-10 Mohd Sadeeq, PW 11, Mohd Rashid, PW 16, Sakinder Hayat, and PW 17 Mumtaz Ahmad. All the aforesaid eye witnesses in one voice have stated that appellant No.1 had hit the deceased with a Khokhri. On careful scrutiny of the evidence of the eye witnesses, we find that contradictions and inconsistencies which have crept in the evidence of the eye witnesses have been well explained and in any case are not so serious so as to be fatal to the prosecution case. The evidence on record has to be tested on the touchstone whether the same inspires confidence and if the evidence is correctly appreciated by the test of a prudent Cr. Appeal No. 34/2014 Page 14 of 18 person, it may not be fatal to the case of the prosecution. If omission or inconsistency or contradiction goes to the root of the matter, then the defense can take advantage of such an inconsistency. The evidence of all the 12 eye witnesses that appellant No.1 had caused an injury with a Khokhri to the deceased is corroborated by medical evidence. It is well settled in law that ocular evidence has to be given primacy over the medical evidence and minor variations do not take away the primacy of the latter. See, Baleshwar Mahto and another v. State of Bihar and another, (2017) 3 SCC 152. The post-mortem has also been conducted on 25.04.2010. The communication gap between the complainant and the scribe of the complainant and the minor discrepancies have crept in the complaint as the complaint was written at the behest of the complainant specially when dead body of his brother was lying before him and there was lot of noise by the people who had gathered. The rustic and illiterate villagers, who were the eye witnesses may not be aware about the distinction between knife and Khokhri and therefore, the discrepancy with regard to nature of weapon of offence also pales into insignificance. It is the quality and not the quantity of evidence which is important in criminal trials. The appellant No.1 Cr. Appeal No. 34/2014 Page 15 of 18 caused an injury on the back of the deceased which pierced through the border of lungs and pierced the heart also. It is noteworthy that the weapon of offence was recovered on the basis of disclosure statement made by the appellant No.1. Though a single blow was made, but the same was made with such a force that it pierced about 5 and ½ inch inside the body of the deceased and therefore the injury was sufficient to cause death.
14. From the testimony of the eye witnesses through which we have carefully gone through, it is evident that prosecution has succeeded in establishing its case against appellant No.1 for an offence under Section 302 of the RPC and Section 4 read with Section 25 (1-A) of the Arms Act and against appellant No.4 for offence under Section 325 of the RPC. It is well settled legal proposition that testimony of a related witness cannot be discarded merely on the ground that he is related to the family of the victim. The court shall scrutinize the evidence of related witness with care as a rule of prudence and not as rule of law. See, Arjun and another v. State of Chhatishgarh, (2017) 3 SCC 247. Therefore, the submission made on behalf of the appellants that evidence recorded by the prosecution was full of inconsistencies and all the witnesses are related to the family of the deceased and Cr. Appeal No. 34/2014 Page 16 of 18 therefore their testimony is not worthy of reliance, cannot be accepted.
15. So far as submission made on behalf of the appellants that whole trial is vitiated as neither any charge was framed against the appellants under Section 34 of the RPC nor they were tried for the same also does not deserve acceptance in view of specific provision contained in Section 535 (1) of the Code of Criminal Procedure, which provides that no finding or sentence pronounced or passed shall be deemed to be invalid merely on the ground that no charge was framed, unless in the opinion of Court of appeal or revision, a failure of justice has in fact been occasioned thereby. It has not been demonstrated before us as to how the appellants were prejudiced on account of omission of charge under Section 34 of the RPC.
16. In view of preceding analysis, we modify the judgment passed by the Trial court. The conviction and sentence imposed on the appellant No.1 for offences under Section 302 of the RPC and Section 4 read with Section 25(1-A) of the Arms Act as also the conviction and sentence imposed on the appellant No.4 for offence under Section 325 RPC is upheld. The appellants No.2 to 9 are acquitted of the charges for commission of offences under Section 302 of Cr. Appeal No. 34/2014 Page 17 of 18 the RPC read with Section 34 of the RPC. The appeal is allowed to the aforesaid extent.
Criminal Reference No.13/2014:
17. In view of the judgment passed in Cr. Appeal No. 34/2014, the conviction of accused No.1 and sentence imposed by the Trial Court for commission of offence under Section 302 alone stands confirmed and the same shall be executed in accordance with law.
(Sanjeev Kumar) (Alok Aradhe)
Judge Judge
Jammu:
26.07.2017
Karam Chand
Cr. Appeal No. 34/2014 Page 18 of 18