Allahabad High Court
Abdul Khaliq And 6 Others vs State Of U.P. on 23 September, 2019
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 68 Case :- CRIMINAL APPEAL No. - 5146 of 2018 Appellant :- Abdul Khaliq And 6 Others Respondent :- State Of U.P. Counsel for Appellant :- Ajay Kumar Upadhyay, Sri Kamal Krishna, Senior Advocate Counsel for Respondent :- G.A.,Dhanbeer Mishra, Satendra Prakash Srivastava With Case :- CRIMINAL APPEAL No. - 5666 of 2018 Appellant :- Islahur Rahman @ Islam And 14 Others Respondent :- State Of U.P. Counsel for Appellant :- Ajay Kumar Upadhyay Counsel for Respondent :- G.A. Hon'ble Pradeep Kumar Srivastava,J.
1. These two appeals have been preferred against the impugned judgment dated 31.08.2018, passed by Additional Sessions Judge/Fast Track Court-II, Basti, in two connected Sessions Trial No. 110 of 2011 (State vs. Abdul Khaliq and 6 others), arising out of Case Crime No. 2B of 2009, under Sections 147, 148, 149, 323, 504, 506, 307 I.P.C. and Section 7 of the Criminal Law Amendment Act, Police Station Rudhauli, District Basti and in Sessions Trial No. 168 of 2011 (State vs. Islahur Rahman @ Islam and 14 others), arising out of Case Crime No. 2 of 2009, under Sections 147, 148, 323/149, 504, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act, Police Station Rudhauli, District Basti.
2. In Sessions Trial No. 110 of 2011, the accused-appellants Abdul Khaliq, Razi Ahmad @ Raju, Tufel Ahmad, Nurul Huda, Jamil Ahmad, Ujer Ahmad and Abdul Mutaliq have been convicted and sentenced for the offence under Section 307/149 I.P.C. for seven years simple imprisonment and fine of Rs. 5000/- each and in default six months additional imprisonment, under Section 323/149 I.P.C. for six months simple imprisonment and fine of Rs. 500/- each and in default one month additional imprisonment, under Section 147 I.P.C. for six months simple imprisonment and fine of Rs. 500/- each and in default one month additional imprisonment, under Section 148 I.P.C. for two years imprisonment along with fine of Rs. 2000/- each and in default three months additional imprisonment. The appellants have been acquitted for the offence under Sections 504, 506 I.P.C. and Section 7 Criminal Law Amendment Act.
3. In Sessions Trial No. 168 of 2011, the accused-appellants Islahur Rahman @ Islam, Miswahur Rahman, Abdul Mutaliq, Abdul Khaliq, Jamil Ahmad, Tufel Ahmad, Wasiullah, Ujer Ahmad, Nurulhuda, Ainuullah, Iflahur Rahman, Gulam Husen, Israhul Haq, Taufiq Ahmad and Razi Ahmad have been convicted and sentenced for the offence under Section 147 I.P.C. for six months imprisonment each, under Section 323/149 I.P.C. for six month imprisonment and fine of Rs. 500/- each and in default one month additional imprisonment. The appellants have been acquitted for the offence under Section 148, 504, 506 I.P.C. and Section 7 Criminal Law Amendment Act.
4. Brief facts of Sessions Trial No. 110 of 2011 arising out of Case Crime No. 2B of 2009 are that the complainant Abdul Samad lodged a first information report on the basis of written report filed by him on 05.01.2009 stating that Abdul Wafa was returning from Dankuiya on 03.01.2009. At about 11 AM when he passed near the house of Abdul Khaliq, Razi Ahmad @ Raju exhorted to kill him and on his exhortation, Tufail Ahmad, Nurul Huda, with country made pistol in their hands, fired on the son of complainant, but he escaped. Then Abdul Khaliq exhorted and on his exhortation Jamil Ahmad hit his son on his head by lathi in order to kill him and Abdul Mutaliq and Ujer Ahmad also hit him on his head and back due to which, he fell down. People gathered there including Ahmad Ali, Mohd. Yaseen, Abdul Kuddus and Iqbal Ahmad. His son sustained serious injuries and was taken to Rudauli Hospital. He was medically examined and his condition was found serious as he was regularly vomiting and his injury was bleeding. He was sent to District Hospital and some treatment was provided to him but he became unconscious. He was referred to Lucknow Medical College where he is under treatment. The accused persons are of the same village and they have old enmity with the complainant. On the basis of report, offence was registered as Case Crime No. 2B of 2009, under Sections 147, 148, 149, 307, 323, 504, 506 I.P.C. and Section 7 Criminal Law Amendment Act on 05.01.2009 at about 06:50 P.M. The Investigating Officer investigated into the offence and finding sufficient evidence against the accused persons, filed charge sheet under the aforesaid sections.
5. Brief facts of Sessions Trial No. 168 of 2011 arising out of Case Crime No. 2 of 2009 are that at about 01:30 P.M., a written report in Police Station Rudhauli was given stating that on 03.01.2009, at about 11 AM in the north side of Raunahia Village in a pit of Gram Samaj, Abdul Khaliq was taking water for irrigating his field. When the water was likely to over in the pit, he stopped taking water from it. Thereafter the whole village went there for fishing in the pit. Abdul Khaliq said that he has cleared the pit and, therefore, he will alone have the right of fishing. Some people of the village, however, started fishing whereupon the accused persons Islahur Rahman @ Islam, Miswahur Rahman, Abdul Mutaliq, Abdul Khaliq, Jamil Ahmad, Tufel Ahmad, Wasiullah, Ujer Ahmad, Nurulhuda, Ainuullah, Iflahur Rahman, Gulam Husen, Israhul Haq, Taufiq Ahmad and Razi Ahmad, with lathi and danda in their hands, with intention to kill Abdul Wafa and Rafiuddin, attacked on them, who after sustaining injuries fell on the ground. The first information report was registered as Case Crime No. 2 of 2009, under Sections 147, 148, 323 I.P.C. and Section 7 Criminal Law Amendment Act and after investigation, the Investigating Officer submitted charge sheet against the accused persons.
6. Charges were framed against all the accused persons under aforesaid sections who denied the charges and claimed trial. By order dated 20.12.2014, passed by Additional Sessions Judge, Court No. 5, both the aforesaid mentioned cases were consolidated and Sessions Trial No. 110 of 2011 was made the leading file, in which the evidence was recorded.
7. The prosecution examined PW-1 Abdul Wafa, PW-2 Dr. A.K. Chaudhari, PW-3 Abdul Hamid, PW-4 Ram Kawal Yadav, PW-5 Arvind Nath Tiwari, PW-6 Ahmad Ali, PW-7 Yashwant Krinvendra Chaudhari and PW-8 Gaurav Bhushan, who proved the written report Ext. Ka-1, medical report of Abdul Wafa Ext. Ka-2, written report of Sessions Trial No. 168 of 2011 Ext. Ka-3, site map as Ext. Ka-4, charge sheets Ext. Ka-5 to Ka-13, chik F.I.R. in Case Crime No. 2B of 2009 Ext. Ka-14, G.D. Ext. Ka-15, chik F.I.R. of Case Crime No. 2 of 2009 Ext. Ka-16, GD Ext. Ka-17, reference slip Ext. Ka-18 and CT Scan report as Material Ext.-1.
8. Statements of accused-appellants were recorded under section 313 of the Criminal Procedure Code in which they have stated that they have been falsely implicated out of enmity. Accused Mutaliq has stated himself to be handicapped. Accused Tufail has pleaded innocence as he was irrigating and complainant side came carrying lathi danda and became aggressive on the issue of fishing and instituted false case crime no. 2A/09 to create evidence of innocence. Accused Jameel Ahamad has pleaded innocence and has stated that except Israhulhaq, none was present on spot. In defence, the accused persons have filed statement of Harimohan in ST No. 153/11, charge-sheet and statement, photo-state admit card of Razi and certificate about Ujer Ahamad.
9. The learned trial court after hearing both sides and perusing evidence on record, convicted and sentenced the accused-appellants by impugned judgment in both the session trials by a common judgment.
10. Aggrieved by the impugned judgment, these two appeals have been preferred challenging the impugned judgment on the ground that the same is illegal, arbitrary, perverse and contrary to evidence on record. The appellants have been assigned no specific role and prosecution case is based on general allegations. Two incidents have been alleged and in both Abdul Wafa has been alleged to have sustained injuries. The offence under section 307 I.P.C. was not proved in view of injuries. Defence evidence has been completely ignored. The sentence is too severe. The impugned judgment is not sustainable under law and is liable to be set aside. Therefore, the appellants are entitled for acquittal.
11. PW-1 Abdul Wafa, the injured has stated that on 03.01.02009 at about 11 AM, when he was coming to his house from Danokuiya and passing nearby the house of Abdul Khaliq, Abdul Khaliq and Razi Ahmad @ Raju exhorted to kill him at which Tufail Ahmad and Nurul Huda having country made pistol in their hands fired on him but he escaped by sitting down. Again Abdul Khaliq exhorted to kill him, whereupon, Jamil Ahmad and Abdul Mutaliq hit him on his head by lathi in order to kill him. Accused Ujer Ahmad also hit him by lathi below his neck on his back. He sustained injuries on his head and fell down. Witnesses and others reached there. He was vomiting and became unconscious. When be became conscious, he found himself in Mayo Medical Centre, Lucknow, where he was admitted and kept under treatment for 10 to 12 days. The accused persons have enmity with his family. The complainant in the case is his father who has died and who had given a written report by his signature. The witness has identified the signature on the written report Ext. Ka-1. The witness also filed original medical report, CT Scan report and discharge slip, the photostat thereof were already on record. He has further stated that because of the injuries, he is still under treatment and he is not comfortable in speaking.
12. PW-2 Dr. A.K. Chaudhary has stated that on 03.01.2009, he was posted as Medical Officer in PHC, Rudhauli and injured Abdul Wafa aged about 55 years was brought by police of PS Rudhauli. He found following injuries on his body :-
(1) lacerated would 9 x 5 cm. x scalp deep on the left perital region, above 8 cm. on the back side. Bleeding was present, X-ray was advised.
(2) lacerated wound 3 x 0.4 cm. x scalp deep close to injury no. 1. Bleeding was present.
(3) contusion 3 x 2 cm. (red colour) on the left side on chest 5 cm. below the scapular.
13. According to doctor, all the injuries were caused by blunt object and were simple in nature, except injury no. 1 for which X-ray and expert opinion was advised. During treatment, the injured vomited once and complained that he is feeling tendency of vomiting and he has vomited 7 times. The patient was advised to be kept under observation in District Hospital, Basti. Injuries were fresh. The doctor has proved the injury report as Ext. Ka-2 and said that the injuries must have been caused at about 11 AM on 03.01.2009.
14. PW-3 Abdul Hamid has stated that eight and half years ago, the said incident took place when he was present in his house. Abdul Khaliq was irrigating his field by water collected in a pit of Gram Samaj. When the water in the pit was getting over, many persons of the village became excited for fishing which was opposed by Abdul Khaliq saying that he has cleared water from the pit and he has alone right of fishing in the said pit. The pit was of Gram Samaj and, therefore, some persons stepped down in the pit for fishing. Abdul Khaliq became angry and started speaking otherwise. All the 16 accused persons namely Islahur Rahman @ Islam, Miswahur Rahman, Abdul Mutaliq, Abdul Khaliq, Jamil Ahmad, Tufel Ahmad, Wasiullah, Ujer Ahmad, Nurulhuda, Ainuullah, Iflahur Rahman, Gulam Husen, Israhul Haq, Taufiq Ahmad, Razi Ahmad and Karam Husen along with lathi, danda, country made pistol and spade. Accused Ujer Ahmad and Razi Ahmad were having country made pistol, Nurul Huda was having spade in his hand and the remaining accused persons were having lathi and danda in their hands and they started beating Abdul Wafa and Rafiuddin. He and others saw the whole incident. He got the report inscribed by a person about this incident and gave the same in police station on the basis of which, first information report was registered. The witness proved the written report as Ext. Ka-3.
15. PW-4 SI Ram Kewal is the Investigating Officer who proved the site map as Ext. Ka-4 and Ka-6 and has recorded the statements of the witnesses. After finding sufficient evidence, he submitted charge sheet Ext. Ka-5 and Ka-7.
16. PW-5 SI Arvind Nath Tiwari is subsequent IO who has proved charge-sheet Ext. Ka-8, Ka-9, Ka-10, Ka-11, Ka-12 and Ka-13.
17. PW-6 Ahmad Ali has stated that on the date of incident at about 11 AM Abdul Wafa was returning to his house and when he came near the house of Abdul Khaliq, on the exhortation of Abdul Khaliq and Razi Ahmad, accused Tufail Ahmad and Nurulhuda fired on him but he escaped, whereupon on the exhortation of Abdul Khaliq, Jamil Ahmad hit Abdul Wafa by lathi on his head but he missed and lathi hit on his back, below the neck. He fell on the ground. Abdul Wafa was also hit by Abdul Mutaliq and Ujer Ahmad and he sustained injuries on his head. He was taken to Rudhauli for treatment and in view of the seriousness of the injuries, he was referred to the District Hospital.
18. PW-7 Yashwant Krinvendra Chaudhary is Constable Moharir, who has proved the chik F.I.R. Ext. Ka-14, GD Report Ext. Ka-15, Chik F.I.R. Ext. Ka-16, GD report Ext. Ka-17.
19. PW-8 Dr. Gaurav, Radiologist has stated that on 16.01.2019, he was deputed on Raj Scanning Limited, Jiyamau, Lucknow. Abdul Wafa aged about 54 years was sent by Dr. Sumil Agarwal for CT Scan. In the CT Scan depressed fracture of frontal bone was found and clotting was present on frontal labes. He has proved the CT Scan report as Ext. Ka-18. CT Scan film has been proved as Material Ext.-1.
20. The learned counsel to the accused-appellants, Sri Kamal Krishna, Senior Advocate, has argued that in respect of same occurrence, two fires were lodged and two charge-sheets were submitted and in both the cases, the accused-appellants have been convicted, whereas, the place of occurrence for both the cases are different and the evidence of the prosecution has become self-contradictory and the whole prosecution case is doubtful. The learned A.G.A. and counsel for the complainant side have submitted that the prosecution by cogent evidence has established the case beyond shadow of doubt and the learned trial court has rightly convicted and sentenced the accused-appellants.
21. Certain pertinent facts need to be mentioned in order to understand the overall factual matrix in this case. Two F.I.R. has been lodged in respect of an incident taking place on 3.1.2009 at 11 AM, one got registered on the written report of Abdul Hameed on the same day at 13.30 PM naming 16 accused persons. The second F.I.R. was lodged by Abdul Samad, the father of the injured, on 5.1.2019 at 6.50 PM naming only 7 accused persons from the group of those 16 persons who were earlier named in the F.I.R. lodged on 3.1.2009. It is not understandable how another F.I.R. was registered by police in respect of same incident and why not the subsequent F.I.R. was included with the first F.I.R. which was earlier in time and date. Both were in respect of same incident bearing Crime No. 2/09 and Crime No. 2B/09 and were investigated altogether by the I.O. Two separate charge-sheets were filed and cognizance was taken on both and both were committed to sessions for trial. Naturally, it could be so done if they are connected and in respect of same criminal incident or if they are cross cases.
22. The committing court has mentioned in the committal order about the case pertaining to S.T. No. 168/11 to be cross case of other S.T. No. 110/11, though the same is not correct as it was not a cross case at all. The learned trial court by order dated 21.8.2014 refused to undertake joint trial and still retained S.T. No. 168/11 which was for the offence u/s 148,147,323,504,506 I.P.C. and 7 Criminal Law Amendment Act which was triable by Magistrate. Two trials of at least those 7 accused persons who were common in both the cases was not possible. The matter went to the High Court on this point in Criminal Misc. No. 42513/14 and vide order dated 27.10.2014, the order of the trial court dated 21.8.2014 was quashed directing the trial court to take a fresh decision on this point. Thereafter, by order dated 20.12.2014, both the trials were consolidated and a joint trial was directed making S.T. No. 110/11 to be leading file. Against this order, the prosecution did not seek any judicial remedy. It means that the prosecution accepted both the cases to be connected, arising out of one incident and adduced evidence accordingly.
23. In S.T. No. 110/11 charges were framed for the offence u/s 147, 148, 323/149, 504, 506, 307/149 I.P.C. and Section 7 of the Criminal Law Amendment Act and in ST No. 168/11 for the offence u/s 147, 148, 323/149, 504, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act. Clearly, in both the trials, all the sections were common except section 307 I.P.C. which is additional in ST No. 110/11. Both the session trials have been decided by the impugned judgment and all the accused persons have been convicted in both the session trial. Therefore, I find that at both level, investigation and trial, procedural lapse and omission has occurred, may be because of inexperience or ignorance. I will come to the legal effect of such lapse and omission later on. Now the question is what should have been done in such situation and what was the legal course open during investigation and trial. Just for guidance, it is observed as follows:
1. The second F.I.R. should not have been registered, and if registered, as it has happened in this case, it should have been merged with the earlier F.I.R. and the offence should have been investigated taking into consideration the subsequent report. By doing so, the mistake could have been avoided which has occurred in respect of those 7 accused persons whose names are common in both the cases because a double trial is not legally possible for the same offence.
2. Now, if the investigating agency committed that error, the learned trial court should not let the error to continue and the same could have been corrected during trial. The learned trial court should and must have struck down the names of the seven accused persons whose names are common in both the cases from the case which related to smaller and less serious offence, to avoid double trial resulting in double jeopardy of those accused persons which is in violation of the constitutionally protected fundamental right of the accused persons as guaranteed by Article 20 of the Constitution of India.
24. Instead of doing so, the learned trial court convicted all those seven accused persons in both the cases. Therefore, the trial of 7 accused persons charge-sheeted in ST No. 168/11 who are also accused in ST No. 110/11 is absolutely vitiated being infringement of the protection provided against double jeopardy under Art. 20 of the Constitution of India as no body can be tried or convicted twice for the same criminal incident and offence. Hence, the trial, conviction and sentence of the accused-appellants Abdul Khaliq, Razi Ahmad @ Raju, Tufel Ahmad, Nurul Huda, Jamil Ahmad, Ujer Ahmad and Abdul Mutaliq in ST No. 168/11, arising out of Crime No. 2/09, under Sections 147, 148, 323/149, 504, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act, Police Station Rudhauli, District Basti is liable to be set aside and quashed and consequently they are entitled to be acquitted.
25. Prosecution admits that both the criminal incident took place on same date and same time. But, it appears that there remained confusion in the prosecution during investigation and till the end of trial whether both the cases relate to one offence or both are distinct offences taking place at the same time and because of this, discrepancy has occurred, both in investigation and also in the statement of the fact witnesses. first F.I.R. was lodged on the same day by Abdul Hameed and he named 15 persons as accused. The second F.I.R. was lodged by Abdul Samad after two days and the reason put forward for delay was his son was injured and was under treatment in Medical College, Lucknow and when he came back from there, he lodged F.I.R. against 7 persons. In the first report the reason for the incident was alleged to be the dispute which arose because of fishing. No such reason has been alleged in the subsequent F.I.R. lodged by the father of injured. Three fact witnesses have been examined- PW-1 Abdul Wafa (injured), PW-3 Abdul Hameed (informant of first F.I.R.) and PW-6 Ahamad Ali as eyewitness. Abdul Samad, the informant of second F.I.R. died and could not be examined and the written report has been proved by PW-1 injured as secondary witness. Both PW-1 and PW-6 have confined their statement to the facts of second F.I.R.. As such, in respect of facts in ST No. 168/11, only informant appears to have supported his F.I.R. version as eyewitness. In the F.I.R., it has been stated that in addition to Abdul Wafa, Rafiuddin also sustained injury, but, Rafiuddin has not been examined in the court nor any medical report has been produced to show that he sustained injury in the incident.
26. PW-3 Abdul Hameed has stated that accused Ujer Ahamad was carrying country made pistol and accused Nurulhuda was carrying spade, while all other accused persons were carrying lathi danda at the time of incident and all committed marpeet and caused injuries to Abdul Wafa and Rafiuddin. Rafiuddin has not been examined who could be the best witness to say that he sustained injury in the incident. His statement has not been even recorded by IO nor he is a witness of charge-sheet. Abdul Wafa is not a witness in respect of case based on the F.I.R. lodged by Abdul Hameed and while giving statement in court, he has disowned the F.I.R. version and he has denied his presence on pond/pit at the time of incident. PW-6 Ahmad has also disowned that F.I.R. and has stated that he was not present there at pond/pit at the time of incident. Both these witnesses have expressed their ignorance about the incident taking place there as the same did not happen in their presence and any thing, though very little, came in their statement regarding that incident is totally hearsay which cannot be taken in support of prosecution case so far as ST No. 168/11 is concerned. The evidence of PW-3 Abdul Hameed also does not stand during cross-examination as he has stated in his chief that Abdul Wafa and Rafiuddin sustained injuries, but in cross-examination he states that in addition to both he and one Tamudin also sustained injuries. There is no such medical report nor Tamudin has been examined. He has never said in his F.I.R. that he also sustained injury. In corresponding GD also there is no mention about his injury or injury of Tamudin or Rafiuddin. The two fact witnesses of the charge-sheet, Abdul Quddus and Nurulhaq have also not been examined in support.
27. In view of the above discussion, I find that the finding of conviction in the impugned judgment in S.T. No. 168/11 is perverse, suffers from illegality and is not sustainable under law and the same is liable to be set aside. Consequently, the accused-appellants are entitled to be acquitted.
28. So far as the other session trial S.T. No. 110/11 is concerned, in the F.I.R., 7 accused persons are named and against them charge-sheet has been filed. It needs to be pertinently mentioned that it has been the prosecution case that only Abdul Wafa sustained injuries and in the medical examination 3 injuries have been found on his body- two lacerated wound on head and one contusion on back below the neck.
29. Ext Ka-4 is the site-map for this case in which the place of occurrence has been shown as 'X' which is situated on Hanumanganj-Padi road in front of house of Khaliq. The F.I.R. also contains that the incident took place on the road in front of the house of Khaliq while the injured was coming from Dankuia. This has been proved by PW-1 and PW-6 in their statements The submission of the learned counsel to the accused-appellants is that in the first F.I.R., the place of incident is different. Since both the witnesses, PW-1 and PW-6 have disowned that F.I.R., and that case has been disbelieved earlier in this judgment, therefore, that difference is not material and need not to be considered for the purpose of this case. Moreover, if the site-map of both the cases are compared, it is clear that there is not much distance between the two places of occurrence. In the north house of accused Khaliq has been shown and in the south the agricultural land of Nurulhaq has been shown and in between the two, there is pond/pit to which the agricultural land of Nurulhaq is very close. In the north of the pond/pit and in the south of the house of Khaliq, there is road on which by 'X' the place of occurrence has been shown in the site-map. Therefore, the difference in place of occurrence has no legal impact. Thus, the place of occurrence stands established.
30. The date and time of incident has been also proved by the witnesses PW-1 who is injured and by virtue of injury, his presence at the time of occurrence can hardly be disputed and his statement finds further support from the testimony of the eyewitness PW-6. PW-2 Doctor has stated while proving the injury report that the injuries could have been possibly caused by blunt object such as lathi and it was possible to have been caused on 3.1.2009 at 11 A.M. In C.T. Scan, a depressed fracture on head has been found on his head along with blood clotting. Therefore, it is also established that on the said date, time and place, Abdul Wafa sustained injuries with a depressed fracture on head.
31. Now, the only thing which is required to be determined whether the seven accused persons caused the injury and committed offence as alleged by prosecution. PW-1 Abdul Wafa has stated that on the exhortation of Khaliq and Razi Ahamad alias Raju to kill him, accused Tufail and Nurulhuda fired on him by country made pistol whereupon, he sat down and escaped. When it is alleged that the injured was shot fire and no such firearm was incurred by him, the use of firearm by two accused persons becomes suspicious. It just remains an oral saying in absence of any firearm injury and also in absence of any recovery of pistol from both the accused or any object from spot in terms of pellets etc. showing use of firearms in commission of offence. In the factual matrix of the case also, it appears that the attack was direct and from close distance, and therefore, the fact that the injured escaped because he dropped himself down, seems to be improbable and unbelievable. Therefore, the presence and involvement of accused Tufail and Nurulhuda has become extremely doubtful.
32. PW-1 Abdul wafa has further stated that again on exhortation of Khalik, Jameel Ahamad, Mutaliq and Ujer hit him by lathi by which he sustained injuries. This time the witness has not stated that accused Razi Ahamad alias Raju also exhorted both on which they acted upon. His role of exhortation has been confined to exhortation of accused Tufail and Nurulhuda who were allegedly shot fire and in respect of them when the case of prosecution has been found to be doubtful. Therefore, the exhortation by accused Razi Ahamad alias Raju, consequently becomes doubtful.
33. Thereafter, on exhortation of Khaliq, Jameel Ahamad, Mutaliq and Ujer hit Abdul Wafa by lathi by which he sustained injuries. He was taken to hospital and was medically examined at P.H.C. and from there he was sent to District Hospital and then referred to Medical College Lucknow. In his statement, PW-1 has also stated that Abdul Mutaliq also hit him by lathi. The learned counsel of appellant has submitted that inclusion of Abdul Mutaliq appears to be an improvement and the statement of PW-6 is also an exaggeration on the point as he mentions the name of Mutaliq subsequently, though says that he and Ujer Ahamand hit first by lathi on exhortation. But, I find no force in this submission as both injured witness and eye-witness have stated that he also hit the injured by lathi causing injury to him. In the F.I.R. also he has been alleged to have caused injury by lathi. It should be remembered that PW-1 is an injured witness and there is no reason to discredit the testimony of an injured witness and law gives a very higher value to a witness who has sustained injury in the incident.
34. As held in State of Haryana Vs. Krishan, AIR 2017 SC 3125, Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (Three-Judge Bench), Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537 and Jarnail Singh Vs. State of Punjab, 2009 (6) Supreme 526, deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene stands established in the case and it is proved that he suffered the injuries during the said incident.
35. Other witness PW-6 is of the same locality and is neighbor of the injured and he has also supported that on the exhortation of Khaliq, the other three accused persons hit the injured by lathi and caused injury to the injured. The injured has sustained three injuries which also supports the participation of accused persons. Moreover, both the witnesses are illiterate villager and keeping in view the law laid down in State of U.P. Vs. Chhoteylal, AIR 2011 SC 697, Dimple Gupta (minor) Vs. Rajiv Gupta, AIR 2008 SC 239 the court should keep in mind the rural background and the scenario in which the incident had happened and should not appreciate the evidence from rational angle and discredit the otherwise truthful version on technical grounds.
36. In view of above discussion, participation and involvement of four accused persons in commission of offence is established- Khaliq who exhorted and Jameel Ahamad, Abdul Mutaliq and Ujer who hit the injured on his exhortation.
37. Now, the nature of injuries needs to be examined. As per F.I.R., Abdul Wafa was seriously injured and he was taken to Rudhouli Hospital where he was examined. But he was regularly vomiting and his injury was bleeding, and therefore, he was taken to District Hospital where some treatment was provided to him. But he started vomiting, getting unconscious and fits also started and then, he was referred to Medical College, Lucknow where he is under treatment and condition is serious.
38. Medical report which is on record is of P.H.C., Rudhouli which has been referred above. PW-8 is Dr. Gourav (Radiologist) of Raj Scanning Ltd., Jiyamau, Lucknow has stated that in C.T. scan, a depressed fracture was found on left frontal bone on head of Abdul Wafa. In his cross-examination, he has admitted that he did not see the patient and he prepared the report on the basis of C.T. Scan film which is Mat. Ext.-1 and C.T. Scan was conducted on 16.1.2009 in his supervision by the technician on the reference of Dr. Sunil Agrwal. He has also admitted that Raj Scanning Ltd. is a private institution. In the Report, he has written 'co-relate clinically' which means that the doctor doing treatment should verify the report with the real condition of the patient. There is no such supplementary report after co-relating clinically as advised in the report. A discharge slip of Mayo Hospital, Lucknow is on record as paper no. 92 kha showing date of admission in the hospital on 8.1.2009 and discharged on 21.1.2009, but the same has not been proved by prosecution.
39. The submission of the learned counsel is that there is no supplementary report of any doctor under whom Abdul Wafa was under treatment. Moreover, there is no evidence that he was ever treated in Medical College, Lucknow as alleged in F.I.R. and injured Abdul Wafa in his statement has also not stated so and instead, he has stated that when he got conscious, he found himself in Mayo Hospital, Lucknow which is a private hospital. It has been further argued that the C.T. scan report and the discharge slip was not delivered to the I.O. and even the statement of Abdul Wafa was not recorded by I.O. nor he was named in the list of witnesses in charge-sheet.
40. So far as not showing Abdul Wafa as witness in charge-sheet, or not recording his statement by I.O., this lapse can be assigned to investigating agency and that cannot be given much importance as F.I.R. contains that he sustained injuries and he was a necessary witness. Injury to him also finds mention in the corresponding G.D. of F.I.R. lodged by Hameed and it shows that he was taken to Police Station and he was medically examined by police in P.H.C. on the same day.
41. PW-1 has stated in his examination-in-chief that after the incident he became unconscious and when he got conscious, he was in Mayo Hospital, Lucknow. There is no such report on record that he remained unconscious for 4-5 days as he was admitted there on 8.1.2009. On the contrary, PW-2 Dr. A.K. Choudhary who examined him on the date of incident at 2.10 P.M., has stated that the patient vomited once before him and complained that he has feeling of vomiting regularly and he has vomited 7 times prior to that. Though the doctor has mentioned nothing about his mental and physical condition, but from his statement, it is clear that the injured was conscious at the time of medical examination. It has been said by the witness that he was provided some treatment in District Hospital, Basti, but, there is no evidence on record regarding his treatment there. In my view this discrepancy could only be explained by Abdul Samad (informant) who died without being examined and PW-1 Abdul Wafa because of injuries might not be able to notice the treatment in District Hospital. The informant being illiterate villager might not have been able to distinguish between Medical College and Mayo Hospital.
42. The learned counsel to the accused-appellants has submitted that there is no reason shown by the prosecution that the F.I.R. lodged by Abdul Hameed was not correct nor it has been anywhere asserted that he was having any reason to lodge F.I.R. with wrong facts. If Abdul Wafa was not present there, was there any convincing reason available to PW-3 to allege that he sustained injuries in the same incident. This fact is also significant in view of the on oath statement of the I.O. in the court that during investigation he found that Abdul Wafa got injured in the same dispute which took place near pond/pit on the issue of fishing. The learned counsel has argued that a conviction cannot be recorded on the basis that some one has sustained injuries and has been under treatment here or there. For conviction, it is necessary for the prosecution to prove the events in the way they have been alleged without anything unnatural, contradictory and discrepant. The non-explanation and no account of 4-5 days from the date of incident and admission in Mayo Hospital, Lucknow about the injured also creates a lot of doubt because, if his condition was so serious, the treatment for those 4-5 days must have been placed on record or the reason for not doing so must have been put forward before the court.
43. So far as the discrepancy and contradiction is concerned, as laid down in State of U.P. v. Naresh; 2011 (75) ACC 215) (SC), in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror because of occurrence. Contradictions/inconsistencies/embellishments or improvements of minor nature on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
44. In Gosu Jayarami Reddy and another Vs. State of Andhra Pradesh; (2011) 3 SCC (Cri) 630, it was observed that Courts need to be realistic in their expectation from the witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorized by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased on what part of the body there is some mix-up or confusion.
45. Further, in Parsu Ram Pandey v/s State of Bihar AIR 2004 SC 5068, Shivappa v. State of Karnataka; AIR 2682, Ramchandaran v/s State of Kerala AIR 2011 SC 3581, it was held that minor discrepancies or some improvements would not justify rejection of the testimonies of the eye-witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court. In Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (Three-Judge Bench) and Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 53, it was reiterated that minor contradictions in the testimonies of the Prosecution Witnesses are bound to be there and in fact they go to support the truthfulness of the witnesses.
46. There is no doubt that there is lapse in the prosecution version, but the same is because of investigating agency as the I.O. should have taken the statement of injured and he should have collected the evidence which took place in District Hospital, Basti and should have also verified his treatment in Mayo Hospital, Lucknow. In his statement also, the I.O. has not given any cogent reason for not doing so except that he has stated more than once that there was bonafide mistake committed by him. There is discrepancy in the prosecution case, but the same has occurred because of mistake committed by police machinery and investigating agency. Two F.I.R. was registered in respect of the incident, injured Abdul Wafa was got medically examined in PHC by the police as there is mention of his being brought to police station in injured condition in the corresponding G.D. of registration of F.I.R. by Abdul Hameed, but no further step was taken towards collection of evidence regarding nature and seriousness of injury and even he was not made a witness in the charge-sheet. Of course, there is exaggeration in the testimony of injured and PW-6 as they have tried to involve and implicate more persons in the incident. But, experience shows that this is a tendency which is found prevalent, particularly in rustics society as people try to implicate more persons even though they are innocent.
47. Now, accepting all the submissions with regards to discrepancies in prosecution version and lapse in investigation, the question is whether the role of criminal court is to lay emphasis on the same and acquit those who appears to have committed offence or to unveil the curtain and discover truth behind it. In India doctrine of falsus in uno, falsus in omnibus does not apply. The Supreme Court has been constantly of the view that the trial as well as appellate courts have to play a very important role in India in criminal justice administration and while appreciating the evidence efforts have to be made to arrive at the truth and to separate from the statements of the witnesses what is untrue and exaggerated. The Supreme Court, from Nasir Ali Vs. State of U.P., AIR 1957 SC 366 and Ugar Ahir Vs. State of Bihar, AIR 1965 SC 277, Sucha Singh Vs. State of Punjab, (2003) 7 SCC 643 to Babu Vs. State of Tamilnadu, (2013) 8 SCC 60 and State of Karnataka Vs. Suvarnamma, (2015) 1 SCC 323, has time and again observed:
"Maxim ''falsus in uno, falsus in omnibus' is not applicable in India. It is merely a rule of caution. Thus even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. The court has to separate grain from chaff and appraise in each case as to what extent the evidence is acceptable. If separation cannot be done, the evidence has to be rejected in toto. A witness may be speaking untruth in some respect and it has to be appraised in each case as to what extent the evidence is worthy of acceptance and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. Falsity of particular material witness on a material particular would not ruin it from the beginning to end. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain untruth or at any rate exaggeration, embroideries or embellishment."
48. In Ram Gulam Chowdhary Vs. State of Bihar, 2001(2) JIC 986 (SC), upholding the conviction of the accused, the Supreme Court held that since the I.O. is not an eye witness to the incident and the reliable eye witnesses had proved the place of occurrence by their testimony, so non proving the map by I.O. or his non-examination is not fatal to the prosecution case. Meaning thereby, where ocular testimonies are reliable, even non-examination of I.O. is not relevant, then the lapse committed by him during investigation, can also be not given so much of importance to render the prosecution version false or unbelievable.
49. In Khem Ram Vs. State of Himachal Pradesh, (2018) 1 SCC 202 State of Punjab Vs. Hakam Singh, (2005) 7 SCC 408 and Leela Ram Vs. State of Haryana, (1999) 9 SCC 52510, it has been held that incomplete or defective investigation or any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent. In Rupinder Singh Sandhu vs State of Punjab, (2018) 16 SCC 475, it has been remarked by the supreme court that even if there is lapse in investigation, the same cannot be used to give advantage to accused person in cases where prosecution has led credible evidence, as it is difficult to determine that the investigative defect occurred due to general inefficiency of system or deliberated to shield the accused.
50. The prosecution case may be considered from a different angle also. What could have been the fate of the case, had it been a case based on complaint without police or investigating agency being involved? Could it make any difference if written report is considered to be a complaint and both witnesses would have been examined as injured complainant and eye-witness? Certainly, the defect and investigating lapse could not have occurred. In that situation, whether it was possible to completely disbelieve the prosecution version?
51. Viewing from that angle, I find that there is a written report given by the father of the injured on the basis of which F.I.R. was registered. If it is considered to be second F.I.R. about the same incident, it is fault of the police. Why the informant lodged this, could be explained by the informant but he could not be examined as he died before being examined. He was an illiterate villager and if he wrote that his son is under treatment in Medical College, Lucknow, the mistake is bonafide as according to injured he was admitted in Mayo Hospital, and the same eventually is situated in Lucknow. In the corresponding GD of the F.I.R. of Abdul Hameed, it is mentioned that the injured was brought to police station and he had head injury which was bleeding and he was sent by police for medical in PHC. The medical report proved by PW-2 Dr Choudhary shows that he had sustained two lacerated wound over his head and in CT Scan, depressed fracture was found on his head. The discharge slip of Mayo Hospital has not been proved nor the CT Scan Report has been clinically co-related by any doctor nor any supplementary report has been prepared to show the seriousness of injury, but, even without that, it is clear in view of medical report and CT Scan, that the head injury of Abdul Wafa was grievous in nature. But, there is no opinion of doctor that by the said injury, death of the injured was in any way possible. The injury was caused by blunt object like lathi and not by any deadly weapon, and therefore, intention to cause death cannot be imputed and instead of offence under section 307 I.P.C., only an offence under section 325 and 323 I.P.C. for voluntarily causing grievous hurt and simple hurt is proved. In the earlier discussion, it has been found to have been established that the accused persons were present together at the place of occurrence and on the exhortation of Khaliq, Jameel Ahamad, Abdul Mutaliq and Ujer Ahamad hit the injured by lathi by which he sustained injuries. It also shows their common intention in causing injuries and section 34 I.P.C. is very much applicable.
52. On the basis of above discussion, I find the impugned judgment in ST No. 168 of 2011, Crime No. 2 of 2009, passed by Addl. Sessions Judge/Fast Track Court-II, Basti on 31.8.2018 is perverse, illegal and not sustainable under law and the appeal is liable to be allowed. So far as the appeal against the judgment in ST No. 110 of 2011 is concerned, the appeal is liable to be partly allowed with modifications, as the conviction and sentence of accused-appellants, Razi Ahmad @ Raju, Tufel Ahmad and Nurul Huda for the offence under section 307/323 read with 149 and section 147, 148 I.P.C. and the conviction and sentence of accused-appellants Jamil Ahmad, Abdul Khailq, Ujer Ahmad and Abdul Mutaliq for the offence under section 147,148 I.P.C. is perverse, illegal and not sustainable under law and is liable to be set aside. The conviction of accused-appellants Jamil Ahmad, Abdul Khailq, Ujer Ahmad and Abdul Mutaliq for the offence under section 307 I.P.C. is liable to be converted for the offence under section 325/34 I.P.C. and the sentence is liable to be reduced and modified for both offences under section 325/323 read with section 34 I.P.C..
53. Accordingly, following order is passed in respect of both session trials-
1. The conviction and sentence in ST No. 110 of 2011 of the accused-appellants, Razi Ahmad @ Raju, Tufel Ahmad and Nurul Huda for the offence under section 307/323 read with 149 and section 147, 148 I.P.C. is set aside and consequently they are acquitted. They be released from jail forthwith.
2. The conviction and sentence in S.T. No. 110 of 2011 of accused-appellants Jamil Ahmad, Abdul Khailq, Ujer Ahmad and Abdul Mutaliq for the offence under section 147, 148 I.P.C. is set aside and consequently they are acquitted from the said charge.
3. The appeal in respect of ST No. 168/11 is allowed and the impugned judgment is set aside. Consequently, the accused-appellants Islahur Rahman @ Islam, Miswahur Rahman, Abdul Mutaliq, Abdul Khaliq, Jamil Ahmad, Tufel Ahmad, Wasiullah, Ujer Ahmad, Nurulhuda, Ainuullah, Iflahur Rahman, Gulam Husen, Israhul Haq, Taufiq Ahmad and Razi Ahmad are acquitted from the charge for the offence under Section 147, 323/149 I.P.C.. All the accused-appellants be released from jail forthwith.
4. The conviction of Jamil Ahmad, Abdul Khailq Ujer Ahmad and Abdul Mutaliq in ST No. 110 of 2011 for the offence under Section 307/149 I.P.C. is converted into the offence under section 325/34 I.P.C. and are sentenced for one year and six months simple imprisonment and fine of Rs. 2000/- each and in default 1 month additional imprisonment and under Section 323/34 I.P.C. for 3 months simple imprisonment and fine of Rs. 500/- each and in default 15 days additional imprisonment. The sentence for both the offences shall run concurrently and the period underwent by them in jail shall be adjusted against awarded sentence.
54. The office is directed to transmit back the lower court record to the learned trial court immediately along with a copy of this judgment for information and compliance.
Order Date :- 23. 9.2019 sailesh (Hon'ble Pradeep Kumar Srivastava, J.)