Allahabad High Court
Shahid Ali vs State Of U.P. on 4 April, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgment Reserved on 28.2.2019
Judgment Delivered on 04.04.2019
Court No. - 1
Case :- CRIMINAL APPEAL No. - 1462 of 2018
Appellant :- Shahid Ali
Respondent :- State Of U.P.
Counsel for Appellant :- Dharmendra Singhal,Shivendra Raj Singhal,Yogesh Kumar Srivastava
Counsel for Respondent :- G.A.
Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon. Ramesh Sinha, J.)
1. Heard Sri Dharmendra Singhal, learned counsel for the appellant and Sri J.P. Tripathi, learned AGA for the State.
2. This criminal appeal has been preferred against the judgment and order dated 23.2.2018 passed by Sessions Judge, Firozabad in S.T. No.290 of 2016 State of U.P. Vs. Sahid Ali arising out of case crime no.108 of 2016, u/s 302 IPC, P.S. Jasrana, district Firozabad and in S.T. No.291 of 2016 State of U.P Vs. Sahid Ali, arising out of case crime no.147 of 2016, u/s 25/27 Arms Act, P.S. Jasrana, district Firozabad convicting and sentencing the accused-appellant to undergo imprisonment for life with fine of Rs.10,000/- u/s 302 IPC in default of payment of fine 6 months rigorous imprisonment and 5 years R.I u/s 27 Arms Act with fine of Rs.5,000/- and in default of payment of fine 3 months R.I.
3. The prosecution case as has been set-out in the FIR by P.W.1 Gulab Ali who is the chaukidar of village Katena Sikeriya, district Firozabad in his written report to the Police Station Jasrana narrated that on 17.3.2016, the marriage of the daughter of Nizamuddin of his village was being solemnized. The deceased Ishfaq Ali and co-accused Shahid Ali along with other relatives were invited in the marriage. In the evening at about 15.30 p.m on 17.3.2016 when the marriage ceremony was going on, the accused Shahid Ali opened fire at Ishfaq Ali with an intention to cause his death which hit him on his neck through and through and Ishfaq Ali succumbed to his injuries on the spot. It was stated that there was previous enmity between the two and at that moment there were many people present at the spot who have seen the incident. On the basis of the written report lodged by the said Chaukidar Gulab Ali, FIR was registered against the accused Shahid Ali which was registered as Case Crime No.108 of 2016 u/s 302 IPC at P.S. Jasrana, district Firozabad. The FIR has been proved as Ext. Ka-13. Entry regarding FIR was made in the G.D. Rapat No.34 Ext.Ka-4 on dated 17.3.2016 at 17.05 hours at the said police station. Lokendra Pal Singh, P.W.10 was the Station Officer of the Police Station Jasrana, district Firozabad took the investigation of the said case on the same day and he went to the spot with his official Jeep with the driver and other police personnel. After reaching to the spot, he conducted inquest on the dead-body of the deceased and he prepared the inquest report Ext.Ka-7. He prepared the site-plan Ext.Ka-5 of the place of occurrence along with Challanash Ext.Ka-8, Photonash Ext.Ka-9, report Ext.Ka-10 to the Pratisar Nirikshak/R.I. And letter to C.M.O Ext.Ka-11. After preparing the inquest report, the dead-body of the deceased was sealed and sent to district hospital for conducting post-mortem examination through the police constable The post-mortem on the dead-body of the deceased Ishfaq Ali was conducted by the Medical Officer Dr. Nitin Jaggi on 18.3.2016. During the course of investigation, the statement of the accused was recorded in jail by the Investigating Officer who confessed his guilt and admitted that he had committed the murder of Ishfaq Ali by opening fire and he had hidden the used fire-arm under the bush/shrubs existed in the field of Devidas in the jungle of Fatehpur Katena Sikeriya. On the disclosure, the I.O proceeded to the said place with the accused while he was in custody along with other police personnel after taking him on police remand. On the pointing out of the accused, the Investigating Officer along with other witnesses reached to the shrubs where accused searched out the used fire-arm with empty cartridge and provided to the Investigating Officer admitting this was the fire-arm which he used in committing the murder of deceased Ishfaq Ali. The said recovery was made by the accused on police remand on 8.4.2016 after obtaining order from the Magistrate on 6.4.2016.
4. A recovery memo/FIR was registered against the accused Shahid Ali on 8.4.2016 at 11.15 which was registered as Case Crime No.147 of 2016 u/s 25/27 Arms Act by the informant Lokendra Pal Singh, Station Officer of Police Station Jasrana, Firozabad and proved as Ext.Ka-13. Signatures of the witness and the accused were made on the recovery memo. The site-plan of the place from where the weapon of assault was recovered was also prepared by the Investigating Officer being Ext.Ka-6 and after recording the statement of the witness a charge sheet was submitted against the accused for the aforesaid offence which is marked as Ext.Ka-12. The genuineness with respect to FIR Ext.Ka-13, site-plan Ext.Ka-14, sanction to prosecute from the District Magistrate Ext.Ka-15, copy of G.D. Ext.Ka-16 and charge sheet Ext.Ka-17 was dispensed with by the defence u/s 294 Cr.P.C. Accordingly it has been admitted as evidence and got exhibited as shown above.
5. After the case was committed to the court of Sessions by the Magistrate, the charges were framed u/s 302 IPC and also u/s 25/27 Arms Act by the trial court against the accused Shahid Ali who denied the charges and pleaded not guilty and claimed to be tried.
6. The prosecution in support of it's case has examined as many as 12 witnesses to bring home the guilt of the accused i.e. P.W.1 Gulab Ali, P.W.2 Idrish Ali, P.W.3 Nizamuddin, P.W.4 Raju Ali, P.W.5 Mohd. Shakeel, P.W.6 Shamsher Ali, P.W.7 Chaman Babu, P.W.8 Dr. Nitin Jaggi, P.W.9 HCP. Kshetrapal Singh, P.W.10 S.O./I.O. Lokendrapal Singh, P.W.11 S.I. Yashpal Singh and P.W.12 Constable Clerk, Bhupendra Singh.
7. A documentary evidence relied upon by the prosecution in support of it's case are written report Ext.Ka-1, post-mortem report Ext.Ka-2, chik FIR Ext.Ka-3, copy of G.D. Ext.Ka-4, site-plan Ext.Ka-5, site-plan in regard to spot recovery of weapon Ext.Ka-6, inquest report Ext.Ka-7, challanash Ext.Ka-8, photonash Ext.Ka-9, letter to R.I. Ext.Ka-10, letter to CMO Ext.Ka-11, charge sheet Ext.Ka-12, u/s 302 IPC against accused Shahid Ali recovery memo Ext.Ka-13, FIR Ext.Ka-13, site-plan Ext.Ka-14, sanction to prosecute from the D.M Ext.Ka-15, copy of G.D. Ext.Ka-16 and charge sheet Ext.Ka-17 u/s 25/27 Arms Act against accused Shahid Ali.
8. The accused in his statement u/s 313 Cr.P.C has stated that he is innocent and has been falsely implicated in the present case on account of enmity.
9. P.W.1 Gulab Ali who is the informant of the case and Chaukidar has deposed before the trial court that on 17.3.2016, there was marriage of the daughter of Nizamuddin who is r/o his mohalla in which Ishfaq Ali r/o Jamalpur, Police Station Jasmantnagar, Etawah and Shahid Ali r/o Baurra Kala, Police Station Awagarh and other relatives were invited. The accused Shahid Ali is the son-in-law of the elder brother of deceased Ishfaq Ali. The accused Shahid Ali was the Bhanja of Nizamuddin. On 17.3.2016 at about 3.30 p.m., in the evening the program of marriage ceremony was going on and at that time, Shahid Ali with an intention to murder the deceased Ishfaq Ali shot a fire from country-made pistol which hit him on his neck and he succumbed to his injuries on the spot. The accused has shot dead Ishfaq Ali on account of old enmity. At the time of incident, many persons and relatives were present. He received the information about the incident from the people present there on which he got written report by one person and gave the same to Police Station Jasrana. He proved paper no.3-A/4 which was available on record, which was read-out to him and has stated that it was the report which was given by him at the police station and he has identified his signatures on the same which has been proved as Ext.Ka-1.
10. In his cross-examination, this witness has deposed that he has not seen the incident with his own eyes and the person who has written the report Ext. Ka-1, he has no knowledge about him. He showed his unawareness that there was old enmity between the deceased and the accused prior to the incident. He deposed that on the basis of hear-say evidence of the people, he had deposed about the enmity between the accused and the deceased prior to the incident and the person who has written report Ext.Ka-1 had not read-out the said report to him and in hurry he had put his signatures on the same. He further stated that he did not know as to who had shot the deceased.
11. P.W.2 Idrish Ali who is the son of the deceased was examined by the trial court, has stated that his father Ishfaq Ali was shot dead by some person on 17.3.2016 in the marriage ceremony of the daughter of Nizamuddin r/o Fatehpur Katena. His family members arrived at village Fatehpur Katena and he does not know as to who had killed his father. The Investigating Officer had prepared the inquest report of the dead-body of his father and appointed Panch witnesses and he was also one of the Panch witnesses. He has proved his signatures on the same which is paper no.6A/1 with 6A/2 which was shown to him and stated that the same was prepared in his presence. The said witness was turned hostile on the application given by the prosecution. He was cross-examined by the prosecution and stated that the police has interrogated him about the incident and had conducted the inquest proceeding in his presence. He stated that whether there was enmity between his father and Shahid Ali, he has no knowledge. Shahid Ali the accused is known to him as he is Bahnoi (Jeeja). He denied the suggestion that because of old enmity, the accused Shahid Ali has shot dead his father Ishfaq Ali. He further denied the suggestion that accused Shahid Ali is his Jeeja and because of he being his relative and to save him, he is deposing in his favour and is not speaking truth before the Court. It is correct that accused Shahid Ali used to come to his village as he is the son-in-law of his real uncle, hence he because of the said relationship knows him.
12. P.W.3 Nizamuddin is the witness whose daughter's marriage was being solemnized on 17.3.2016 in which the deceased Ishfaq Ali and accused Shahid Ali were invitees along with other relatives. He deposed before the trial court that on 17.3.2016 his daughter Sadima's barat had come from Naravi. In which his relatives were invited and in the said marriage Ishfaq Ali (deceased) and his Bhanja Shahid Ali had also come. On some issue, there was a dispute arose between them on which Shahid Ali threatened to Ishfaq Ali not to leave him alive and he took out a country-made pistol and fired shot at Ishfaq Ali which hit him on his neck who died on the spot. The incident had taken place at 3.30 p.m. and the said incident had taken place in-front of his house at Pakki Gali and besides him other persons were also present on the spot have seen the incident.
13. This witness in his cross-examination has deposed that he was present on the spot but as his daughter's marriage was being solemnized, he was busy in work with respect to the marriage ceremony. He identified accused Shahid Ali who was present in the Court and stated that he was his Bhanja and has stated that he did not see the accused Shahid Ali while firing shot at the deceased Ishfaq Ali as he reached the place of occurrence on hearing the fire-arm shot and after the shot hit Ishfaq Ali who was lying in a pool of blood and while he was being taken for medical treatment, he succumbed to his injuries. The deceased Ishfaq Ali was his real maternal uncle. The prosecution at this stage moved an application for declaring the said witness as hostile and the A.D.G.C sought permission to cross-examine the said witness. He in his cross-examination by the prosecution has stated that the police has not taken his statement u/s 161 Cr.P.C in connection with the incident when the witness was read-over his statement u/s 161 Cr.P.C., then he stated that he has not given any such statement to the Investigating Officer and he cannot give any reason as to how the Investigating Officer has written his such statement. The accused present in the Court is his real Bhanja and he has further stated that there has been compromise between him and the accused Shahid Ali. He denied the suggestion that as the accused Shahid Ali is his real relative, he in order to save him is not deposing the correct fact in the court. He further denied the suggestion that he has seen the accused threatening the deceased for not leaving him alive and shooting the deceased by the accused on his neck on account of which Ishfaq Ali died.
14. P.W.4 Raju Ali has deposed before the trial court that the deceased Ishfaq Ali was his uncle and he had come in the marriage of the daughter of his uncle Nizamuddin in village Fatehpur Katena Sikeriya. He had gone along with his uncle in the said marriage in which Shahid Ali, s/o Rahmat Ali had also come. Shahid Ali is the son-in-law of his Tau Liyaqat Ali who had also participated in the said marriage and there were other persons between 100-150 also assembled in the said marriage. Shahid Ali was known to him from before. There was no enmity between the deceased Ishfaq Ali and accused Shahid Ali earlier. During the course of marriage ceremony, no quarrel took place between the two. His uncle died on account of fire-arm shot. The shot was fired on his neck at 3.30 p.m. The said incident had taken place in-front of the house of Nizamuddin at Pakki Gali where the marriage ceremony was going on. At the time of the incident Chaman Babu was also present. After the incident till date he could not know as to who has shot fire at his uncle. The said witness was declared hostile at the instance of prosecution who sought permission for his cross-examination.
15. In his cross-examination, the said witness stated that after the incident police has arrived at the place of occurrence. The police has not made any interrogation from him nor recorded his statement. When the said witness was read-over statement u/s 161 Cr.P.C, then he stated that he has not given such a statement and how the said statement was recorded by the police, he does not know. He stated that Shahid Ali happens to be his Bahnoi (Jeeja) and he has no talking terms with him. Shahid Ali is in jail in connection with the murder of his uncle. He denied the suggestion that he is not telling truth as the accused present before the court is his Bahnoi. He further denied the suggestion that there was enmity going on between the Ishfaq Ali and Shahid Ali on account of which Shahid Ali has threatened his uncle not to leave him alive and he took out a country-made pistol and shot at his uncle which hit him on his neck. Thereafter he was again cross-examined by the defence and deposed that Shahid Ali was present with him at the time of incident and marriage ceremony was going on. At that time people were making celebrate firing. At that time he and Shahid Ali were having food in the marriage and on the alarm and scream, he and Shahid Ali reached the place of occurrence. He did not see the incident of shooting.
16. P.W.5 Mohd. Shakeel has deposed before the trial court that on 17.3.2016 he had gone in the marriage of the daughter of Nizamuddin and the Barat had come from Naraubi in which many relatives and other persons had assembled in which his father-in-law Ishfaq Ali and his elder brother Liyaqat Ali and his son-in-law Shahid Ali had also come. The marriage ceremony program was going on and in the meanwhile Ishfaq Ali received gun-shot on his neck and he had fallen down and agonizing on account of which there was turmoil in the marriage ceremony, he was being taken by them for medical treatment but he died. The incident had taken place at 3.30 p.m in the afternoon. The incident had taken place in-front of the house of Nizamuddin at Pakki Gali where marriage ceremony was going on and besides him, there were other persons present. He knows the accused Shahid Ali present in the court and deposed that he did not see as to who shot the deceased. He was declared hostile and the prosecution has sought permission for his cross-examination in which he stated that Ishfaq Ali was his father-in-law who received gun-shot injury and when he received gun-shot injury, he along with other persons have assembled and the police has arrived and he also deposed in the manner as P.W.4 has deposed and further he was also cross-examined by the defence. He deposed in the manner as has been stated by the P.W.4 and the same is not being repeated for the sake of brevity.
17. P.W.6 Shamsher Ali has also reiterated the prosecution story in examination-in-chief as has been stated by P.W.4 and P.W.5. The said witness was declared hostile at the instance of prosecution who sought permission for his cross-examination. In his cross-examination, the said witness stated that after the incident police has arrived at the place of occurrence. The police has not made any interrogation from him nor recorded his statement. When the said witness was read-over statement u/s 161 Cr.P.C, then he stated that he has not given such a statement and how the said statement was recorded by the police, he does not know. He knew Ishfaq Ali but did not knew Shahid Ali. He has not seen the dispute happening between them. He denied the suggestion that he is not telling truth as there has been compromise with Shahid Ali. He does not know whether Shahid Ali is in jail in the murder case of Ishfaq Ali. He further denied the suggestion that there was enmity going on between the Ishfaq Ali and Shahid Ali on account of which Shahid Ali had threatened his uncle that he would not be left alive and he took out a country-made pistol and shot at his uncle which hit him on his neck.
18. P.W.7 Chaman Babu has also reiterated the prosecution story in examination-in-chief as has been stated by P.W.4 and P.W.5. The said witness was also declared hostile at the instance of prosecution who sought permission for his cross-examination. In his cross-examination, the said witness stated that he knew accused Shahid Ali who happened to be his Bahnoi. He stated that he knows that Shahid Ali was in jail in the case of his uncle's murder. The police had arrived in his presence. The police had not made any interrogation from him. When the said witness was read-over his statement u/s 161 Cr.P.C, then he denied the suggestion that there was enmity going on between the Ishfaq Ali and Shahid Ali on account of which Shahid Ali had threatened his uncle that he would not be left alive and he took out a country-made pistol and shot at his uncle which hit him on his neck. He stated that he has not given such a statement. He further denied the suggestion that accused Shahid Ali is his Bahnoi and because of he being his relative and to save him, he is deposing in his favour and is not speaking truth before the Court.
19. P.W.8 Dr. Nitin Jaggi has deposed before the trial court that on 17.3.2016 at about 7.05 p.m., dead-body of Ishfaq Ali, s/o Pahalwan Ali, r/o Jamalpur, P.S. Jaswant Nagar, district Etawah was brought by C.P. 111 Ramesh Chandra, P.S. Jasrana which has been identified by the son of the deceased Idrish Ali. Mohd. Shakeel has also identified the said dead-body. The said dead-body was brought along with relevant documents and after perusing the same, he put his initials on the same and he conducted the post-mortem of the deceased. At that time he was posted at Community Health Centre, Tundla, Firozabad and he proved the post-mortem as Ext. Ka-2. In the opinion of the doctor, the deceased received following injuries on his person:-
1. Gun shot wound of entry of size 1 cm. X 1 cm. X through and through over the right side of face at angle of mandible, margins are inverted and lacerated. Blackening and tattooing present over the wound which is situated 3 cm. from the right ear.
2. Gun shot wound of exit of size 1 cm. X 1 cm. X communicating injury No.1. No blackening and tattooing seen, margins are everted of wound region which is situated 3 cm. behind the left neck, on left side of neck.
Internal Examination Finding, on brain, Lung, Spleen, Kidneys were pale. B/L Chambers were found empty, Semi-digested food was found in small intestine including appendix, In large intestine fical matters and gases were found. Time since death was about ¾ day from the post-mortem report. Death is shown to be caused due to shock and hemorrhage as a result of ante-mortem/(gun shot) injuries.
20. In the opinion of the doctor, the deceased died on account of hemorrhage as a result of ante-mortem gunshot injuries. In his cross-examination, the said witness has stated that the date on which the dead-body of the deceased was brought, he was not on duty and further he has no knowledge that who had brought the dead-body. On 18.3.2016 he was on duty from 10 am. to 5 p.m and in the morning when he had come on duty then he came to know about the dead-body. There were six papers received in connection with the dead-body and who had brought the same, he is not aware and at what time, it was given, he cannot tell the time on which he has received the papers. He further stated that the papers relating to dead-body was handed over at 1.30 p.m. Whether he has conducted any post-mortem of any other dead-body or not, he did not remember. He deposed in his cross-examination with respect to injury no.1 that there was blackening and tattooing found and from which distance the shot is fired, such symptom can be stated by the expert only. From the body of the deceased, no pellet or bullet was recovered. Both the chambers of heart were empty as there was excessive bleeding. The deceased must have taken food about 4 to 6 hours prior to his death. He denied that he conducted the post-mortem of the deceased on the information given by 4th class employee and did not conduct the same on true facts.
21. P.W.9 H.C.P. Kshatrapal Singh is formal witness while deposing before the trial court, he narrated that on 17.3.2016, he was posted as head constable at police station Jasrana and on the basis of written report, he had dictated the same to constable 575 Heera Singh Dhakar who typed the same accordingly on the computer. Paper No.3A/1, 3A/3 were identified by this witness and proved the same and it was exhibited as Ext. Ka-3 and entry of the said FIR was made on his dictation at rapat no.34 dated 17.3.2016 at 17.05 hours which is paper no.9B/23 i.e. G.D. was identified by the said witness in the court and compared with the original. It was proved and was exhibited as Ext.Ka-4. In his cross-examination, the defence was not able to dislodge his evidence which may lead us to draw some adverse inference against the prosecution.
22. P.W.10 Station Officer Lokendra Pal Singh, posted at P.S. Jasrana has deposed that on 17.3.2016 he was posted at police station Jasrana and Case Crime No.105 of 2016 u/s 302 IPC was registered against accused Shahid Ali. He took out the investigation of the case on the same day and recorded the contents of the chik FIR, G.D Rapat and inspected the spot. He further interrogated the witness Mohd. Shakeel, Raju Ali, Chaman Babu. On 18.3.2016, he also made efforts to arrest the accused Shahid Ali but he could not be apprehended. He prepared the inquest report and other papers and proved the same as Ext.Ka-7, charge sheet as Ext.Ka-12 and paper nos.81/1 challanash, 8A/2 photonash, 81/7, letter to Pratisar Nirikshak/R.I., 8A/8 letter to CMO which were prepared by this witness and exhibited from Ext.Ka-8 to Ext.Ka-11 respectively. He also stated that accused Shahid Ali confessed his guilt before him disclosing that he had hidden the fire-arm by which he had committed the murder of the deceased Ishfaq Ali. Upon disclosure in the statement made by the accused, he requested to C.J.M., Firozabad for police custody remand on which learned Magistrate considered the request and allowed his application for police custody remand of the accused vide order dated 6.4.2016. In pursuance of which he visited the District Jail, Firozabad and took away the accused. During the period of police custody, accused confessed the guilt and made statement that he knew the place where he had hidden the used fire-arm and cartridge. The accused was taken to the place of recovery and on his pointing out, the accused searched out the fire-arm and empty cartridge under the shrubs in the field of Devidas and provided to the I.O in the presence of other police witnesses. He prepared recovery memo Ext.Ka-13 in the presence and under signature of the accused and other witnesses recovered articles were kept in a sealed cover and sent to Forensic Laboratory for their examination. Investigating Officer also prepared site-plan Ext.Ka-6 of the spot in his own handwriting. On the basis of above investigation, I.O. also got registered the case crime no.147 of 2016 u/s 25/27 Arms Act. All the police papers of the recovery except the recovery memo were admitted.
23. The genuineness of paper No.3A Chick FIR, Paper No.4A charge sheet, site plan, paper no.6A is the Sanction by the District Magistrate, Nidhi Kesharwani, paper No.7B Copy of G.D which are exhibited as Ext.Ka-13, Ext.Ka-17, Ext.Ka-14, Ext.Ka-15 and Ext.Ka-16 respectively, genuineness of which was dispensed with by the defence u/s 294 of Cr.P.C. Accordingly it has been admitted as evidence and got exhibited.
24. P.W.11 S.I. Yashpal Singh who was posted as Sub-Inspector, Police Station Jasrana, district Firozabad and was present alongwith P.W.10 during the period of police custody remand of accused Shahid Ali and he has deposed that recovery of fire-arm and cartridge was made at the pointing out of the accused and he was witness with the I.O and supported the version of P.W.10 Lokendra Pal Singh. Recovery memo was written in his own handwriting on the dictation of Station Officer. He further narrated that on the recovery memo, accused also put his signature and he also proved the recovery memo as Ext.Ka-13.
25. P.W.12 constable Bhupendra Singh is also an eye-witness of the recovery of alleged fire-arm and cartridge which were recovered on the pointing out of the accused. He too has supported the evidence given by P.W.10 and P.W.11 regarding recovery of fire-arm and cartridge from the accused-appellant. Hence for the sake of brevity, the same is not being repeated here. He was also cross-examined by the defence but nothing adverse was drawn from his cross-examination.
26. The trial court on the above evidence led by the prosecution and the defence version given by the accused has come to the conclusion that the accused was guilty for the offence and has convicted and sentenced by the impugned judgment and order. Aggrieved by the same, the accused has preferred the present appeal.
27. It has been argued by learned counsel for the appellant that the conviction and sentence of the appellant by the trial court is against the evidence on record. It was urged vehemently by him that P.W.1 who is the Chaukidar of the incident is not an eye-witness of the occurrence as it appears from his evidence before the trial court. The trial court taking him to be eye-witness coupled with the fact that he was an independent witness of the incident has wrongly convicted and sentenced the appellant. In this regard, he has drawn attention of the Court towards evidence of P.W.1 wherein it was pointed out that P.W.1 in his examination-in-chief has stated that he received the information about the incident from some persons and he had got a report written by one person and had given the same at Police Station Jasrana which shows that he was not an eye-witness of the occurrence. Moreover in his cross-examination, it has been clarified by him that he has not seen the incident with his own eyes and the person from whom he got report written as Ext.Ka-1, he has no knowledge about the same. He stated that though the said witness has not been got declared hostile but from his evidence, it is clear that he is not an eye-witness of the evidence nor has he seen the incident. Therefore, the finding recorded by the trial court believing his evidence is erroneous and should be set-aside by this Court and appellant be acquitted. He further argued that P.W.3 Nizamuddin whose daughter's marriage was being performed on 17.3.2016 at 3.30 p.m on the date of incident, though in his cross-examination, he has supported the prosecution case and stated that some quarrel took place between the appellant and the deceased Ishfaq Ali on account of which he took out his country-made pistol and shot at the deceased which hit him on his neck and he died instantaneously and the incident was witnessed by him along with other persons present in the marriage ceremony is of no consequence as he too has been declared hostile. During the cross-examination, he too has stated that he did not see that who had fired shot at the deceased Ishfaq Ali and he reached the spot on hearing the fire shot as he was busy in the various work during the marriage ceremony. He has been declared hostile at the instance of the prosecution who was cross-examined by the prosecution. The statement of his was readover to him which was recorded u/s 161 Cr.P.C. but he has denied to have given any such statement. In this context he stated that the evidence of the said witness cannot come in the category of wholly reliable witness, hence his evidence should be discarded and the trial court committed error in believing the evidence of the said witness in his examination-in-chief and has convicted and sentenced the appellant which is legally not sustainable and should be rejected by this Court and the appellant be acquitted. He next pointed out that other witnesses of fact who are relatives and son and other relatives of the deceased i.e. P.W.4 Raju Ali and P.W.5 Mohd. Shakeel, P.W.6 Shamsher Ali and P.W.7 Chaman Babu who have also denied the participation of the accused of the present case as they also could not tell as to who had shot at the deceased. So far as the recovery of country-made pistol at the pointing out of the appellant is concerned, he stated that the said recovery is also false one as it was made from an open place and on the basis of the said submission, the appeal of the appellant be allowed and the appellant be acquitted. In support of his arguments, he has placed reliance on the judgement of the Apex Court in the following cases:- (1) Javed Masood and another Vs. State of Rajasthan, reported in 2010 (2) Crimes 20, (2) Selvaraj @ Chinnapaiyan Vs. State reported in 2015 (2) SCC 662, (3) State of Rajasthan Vs. Babu Meena 2013 (4) SCC 206, (4) Mohan Lal and ors. Vs. State of Rajasthan 1999 SCC (Crl) 1144, (5) State of Bihar Vs. Lalu Prasad @ Lalu Prasad Yadav 2002 (3) Crimes 70, (6) Vadivelu Thevar Vs. the State of Madras 1957 AIR (SC)614.
28. Learned AGA on the other hand has opposed the arguments of learned counsel for the appellant and submitted that as per the evidence of P.W.3 Nizamuddin whose daughter's marriage was going on, has supported the prosecution case and has stated that it was the appellant who on account of some dispute with the deceased has shot fire on him who died on the spot. From the statement of P.W.1 who is also Chaukidar of the village, it appears that he is an eye-witness of the occurrence and also an independent person and has supported the prosecution case but in his cross-examination, he appears to have been influenced by the accused persons. Hence he has stated that he has not seen the incident but he has not been declared hostile by the prosecution. Moreover the recovery of country-made pistol which was made at the pointing out of the appellant shows that he had made the recovery of the weapon while he was interrogated by the police in jail who took him on remand and got the said recovery made, thus the trial court has rightly convicted and sentenced the appellant of the charges.
29. We have given a thoughtful consideration to the submissions advanced by learned counsel for the parties and have perused the impugned judgment and order of the trial court as well as the record. It is an admitted case that the marriage of the daughter of P.W.3 Nizamuddin was on 17.3.2016 and all the relatives of P.W.3 were invited in which the appellant Shahid Ali and deceased Ishfaq Ali were also invitees and they are also the close relatives of P.W.3. The deceased happens to be the Bhanja of Nizamuddin (P.W.3) and the accused-appellant happens to be the son-in-law of the elder brother of deceased Ishfaq Ali. Thus the accused and the deceased are related to each other. Hence the presence of the accused and the deceased in the said marriage is not disputed by either of the parties. The date and time and also the place of occurrence has also not been disputed by either of the parties. It is further not disputed that the deceased died on account of fire-arm injuries. The arguments which has been advanced by learned counsel for the appellant that the trial court has misread the evidence of P.W.1 Gulab Ali who is the Chaukidar of the village Katena Sikeriya, P.S. Jasrana, district Firozabad and he is not an eye-witness of the occurrence as has been pointed out from his evidence that he received the information about the incident from the people gathered there at the marriage ceremony on which he got a report written by one person and submitted the same to the police station and in his cross-examination he has categorically stated that he has not seen the incident with his necked eyes and the trial court misread his evidence and taken him to be an eye-witness of the occurrence and has convicted and sentenced the appellant, has no force as it is quite natural for the appellant to be present at the place of occurrence as he was Chaukidar of the village and the marriage of the daughter of P.W.3 Nizamuddin was solemnized on 17.3.2016 at 3.30 p.m. and the presence of the said witness at the place of occurrence being the Chaukidar could be ruled out. He has narrated the prosecution case in his examination-in-chief as he was conversant with the relationship of the deceased and the accused and has stated that they had come in the marriage of the daughter of P.W.3 Nizamuddin on 17.3.2016. He has stated that the accused shot at the deceased which hit on his neck and the deceased died on the spot but during the cross-examination, the said witness has stated that he has not seen the incident with his necked eyes though in his examination-in-chief he has stated that on the information received by the people about the incident, he got a report written by some person and submitted the same to the police station Jasrana cannot be taken to be such an evidence which shakes the prosecution case so much so that his presence at the place of occurrence could be doubted. The possibilities of this witness having been won over by the accused cannot be ruled out as the other witnesses of fact P.W.2 Idrish Ali, P.W.4 Raju Ali, P.W.5 Mohd. Shakeel, P.W.6 Shamsher Ali and P.W.7 Chaman Babu who are also related to the deceased and the accused, in order to save the appellant have influenced the present witness to depose such fact in order to save the appellant. The said witness has not been declared hostile by the trial court. The evidence of the said witness falls within the category of reliable witness. Hence trial court was right in believing his evidence and sentencing the appellant. So far as P.W.3 Nizamuddin is concerned, it has been argued by the counsel for the appellant that he is wholly unreliable witness is also of no consequence and not at all acceptable merely for the reason that the witnesses have turned hostile in their cross-examination. The testimony in examination-in-chief supporting the prosecution is corroborated from other evidence on record.
30. From the perusal of the evidence of P.W.3 Nizamuddin, it is crystal clear that he has narrated the prosecution case about the incident dated 17.3.2016 at about 3.30 p.m. in which the accused and the deceased both were invited in the marriage ceremony of his daughter as they were related to him and there were other relatives and persons of the village. On account of some dispute which arose between the deceased and the accused on account of old enmity, the deceased was shot dead by the appellant with the country-made pistol which hit him on his neck and he died on the spot. The evidence of P.W.3 further goes to show that the said incident was witnessed by other relatives and persons invited in the marriage ceremony. It is well established fact that it was the appellant who had shot dead the deceased with the country-made pistol and in the cross-examination, the said witness though retracted from his evidence given before the trial court in examination-in-chief goes to show that he too being the relative of the accused has compromised with him as it appears from his cross-examination and he stated that it is correct that there has been compromise with the accused as he has uttered "Hajir Adalat Muljim Mera Saga Bhanja Hai. Yah Baat Sahi Hai ki mera isse mail jole ho gaya hai".
31. Thus he in order to save the accused from the present crime which was committed by him in the present case a large number of persons including his relatives who have been examined as P.W.4 Raju Ali, P.W.5 Mohd. Shakeel, P.W.6 Shamsher Ali, P.W.7 Chaman Babu including the present witness are shielding the accused. It would be a travesty of justice that the eye-witness of the occurrence who had seen the incident and have supported the prosecution case during the course of investigation and further before the trial court in their examination-in-chief and have resiled for the same during their cross-examination, should be discarded by the Court. They cannot be allowed to uproot the prosecution case which otherwise goes to show guilt of the accused. The Apex Court in it's catena of decision has held that simply because the witness has turned hostile cannot be a ground to discard the prosecution case and on the other hand the evidence of the hostile witness has to be judged with great scrutiny and the part of the evidence which goes to show the guilt of the accused should be considered by the Court in order to bring the guilty to book.
32. In this context it would be relevant to take into account some of the judgements of the Apex Court regarding the appreciation of evidence of hostile witnesses. The Apex Court has observed in it's judgement that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded u/s 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the Court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations.
33. In some of the judgments in past few years, the Apex Court has commented upon such peculiar behaviour of witnesses turning hostile, hence we would like to quote few such judgments:-
34. In Krishna Mochi Vs. State of Bihar reported in 2002, V, SCC 81, the Apex Court has observed as under:-
31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power." Likewise, in Zahira Habibullah v. State of Gujarat[8], this Court highlighted the problem with following observations: "40. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control, to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State representing by their presenting agencies do not suffer... there comes the need for protecting the witnesses. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery.
"99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system.
100. This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr., (AIR 2004 SC 524), this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.
101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v. State of Gujarat, AIR 2006 SC 1367, had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked." On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:
35. In the case of Ramesh and others Vs. State of Haryana, decided on 22.11.2016, the Apex Court has followed the aforesaid law laid down by the Apex Court and reiterated the law settled for considering the evidence of the hostile witness. The Apex Court in the case of Ramesh Harijan Vs. State of U.P passed in Criminal Appeal No.1340 of 2007 further reiterated the law settled for considering the evidence of the hostile witness.
36. In view of the above proposition of law as has been discussed above, the evidence of P.W.3 Nizamuddin which has been believed by the trial court, he was declared hostile and the findings recorded by the trial court on the basis of the evidence of P.W.3 in convicting and sentencing the accused is fully justified. It is not out of place to mention here that all the witnesses of fact i.e. P.W.1 Gulab Ali, P.W.2 Idrish Ali, P.W.4 Raju Ali, P.W.5 Mohd. Shakeel, P.W.6 Shamsher Ali and P.W.7 Chaman Babu who are eye-witnesses of the occurrence and were present at the place of incident being the relative of the accused and the deceased have categorically stated that the incident of murder of the deceased took place in the house of P.W.3 Nizamuddin whose daughter's marriage was being solemnized and have admitted their presence and also of the accused-appellant but with respect to the person who has shot dead the deceased has been deliberately concealed by them on account of the fact that the accused and the deceased were related to them. It is apparent on the face of it that the accused was being saved by the said persons but this Court cannot lose the sight that a person has been murdered in-front of his relative who were eye-witness of the occurrence but due to sociological factors the same has deliberately not been pointed out by them that who shot dead the deceased but P.W.3 has specifically stated that it was the accused-appellant who shot dead the deceased and observation made by the Apex Court in the above decisions, they have turned hostile and stated that they have not seen the actual person who has shot the deceased just to save the appellant.
37. Moreover, the participation of the appellant in the incident is also well established from the other circumstances that the recovery of the country-made pistol along with cartridge has been made at the pointing out of the appellant when he was interrogated by the Investigating Officer in jail in the present case and he offered to the Investigating Officer to get the weapon of assault recovered where he had hidden. The Investigating Officer on the disclosure of the said statement while he was in jail, had moved an application to the C.J.M, Firozabad for getting the appellant on police custody remand which was allowed by the Magistrate and the appellant was taken from jail on 6.4.2016 along with police team. On 8.4.2016, he got a country-made pistol recovered at the pointing out of the appellant bush/shrubs existed in the field of Devidas in the jungle of Fatehpur Katena Sikeriya and recovery memo of the same was prepared as Ext.Ka-13 by the Investigating Officer and the appellant was also charged u/s 25/27 Arms Act and charge sheet was submitted against him a Ext.Ka-12 and he has further confessed his guilt that he had murdered the said deceased Ishfaq Ali with the said country-made pistol. Before making the said recovery while he was in jail, it is apparent from the evidence of P.W.10 Lokendra Pal Singh, P.W.11 Yashpal Singh and P.W.12 Bhupendra Singh, the said evidence against the accused is admissible u/s 27 of the Evidence Act and the trial court has also rightly convicted him for the said offences also. Thus from the other evidence on record the participation of the accused-appellant also stands well established.
38. In view of the foregoing discussions, the participation of the accused is well established by the prosecution evidence and the trial court has rightly convicted the appellant for the offences in which he has been charged with and there appears to be no infirmity or illegality in it's judgment, hence the conviction and sentence of the appellant by the trial court is hereby upheld. The accused is in jail. He shall remain in jail to serve out the sentence.
39. The appeal lacks merit and is, accordingly, dismissed.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date :-04.04.2019
Gaurav