Allahabad High Court
Anees vs State Of U.P. on 6 May, 2016
Author: Shashi Kant Gupta
Bench: Shashi Kant Gupta, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CRIMINAL APPEAL No. - 6555 of 2006 Appellant :- Anees Respondent :- State Of U.P. Counsel for Appellant :- K.K. Singh,Brijesh Sahai,Nazrul Islam Jafri,Qamrul Hasan Siddiqui,R.A. Siddiqui,R.C. Singh Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 5792 of 2006 Appellant :- Kaluwa Respondent :- State Of U.P. Counsel for Appellant :- K.K. Singh Counsel for Respondent :- Govt. Advocate ------------- Hon'ble Shashi Kant Gupta,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Mrs. Vijay Lakshmi,J.) Both these criminal appeals arise out of the same judgment and order dated 19.09.06 passed by Additional Sessions Judge, Court No.7, Pilibhit in S.T. No. 61 of 1998 (State Versus Anees and another), under Section 302/34 I.P.C., P.S. Kotwali, Pilibhit, whereby the learned trial court has convicted the appellants for offence under Section 302/34 I.P.C. and has sentenced them to undergo life imprisonment with fine of Rs.8,000/- imposed on each of them, in default of which they were to undergo two years further imprisonment. Being related to the same occurrence and same case crime number both these appeals were connected and are disposed of by this common judgment.
Heard Shri Dilip Kumar assisted by Shri Rajarshi Gupta, on behalf of the accused appellants, learned AGA, representing the State and carefully perused the evidence available on the lower Court's record.
Shorn of unnecessary details, the prosecution case as appearing from the First Information Report lodged by one Sanavvar Khan, father of the deceased, on 07.04.1997 at 9.50 P.M. at Police Station Kotwali, Pilibhit, is that earlier at about 12 noon on the same day, some altercation had taken place between informant's son deceased Waseem @ Fuddu and the appellant Anees during arm wrestling/ "punja fight" and the deceased had slapped appellant Anees. Although the dispute was pacified at that time, the accused appellants Anees and Kaluwa, having a grudge and feeling of revenge against deceased Waseem, reached to the house of the informant at about 8.30 P.M. They called Waseem, using abusive language. When he came out, they assaulted him and took him to Tangewali Gali, where appellant Kaluwa, caught hold of deceased's hands and appellant Anees made a hard blow from a "gupti" (a sharp edged long knife) he was carrying on the chest of the deceased, which pierced his heart causing his instantaneous death. At the time of occurrence, several persons of the vicinity were present, who saw the occurrence. Waseem @ Fuddu was immediately taken to the hospital, where doctors declared him brought dead. The informant, in the F.I.R., also expressed his apprehension about the involvement of the real brothers and cousin brothers of appellant Anees in the occurrence. However, the case was registered against both the appellants only.
The inquest proceedings on the dead body of the deceased was conducted and it was sent for the post mortem.
According to postmortem report (Ex. Ka.1), the deceased Waseem at the time of his death was a young man of 22 years with an average built body. Following ante mortem injuries were found by the doctors on his body during his postmortem. :-
"1) Lacerated wound 1 cm.X0.5c.m.X muscle deep on lower lip. In the middle inner surface of lower lip is lacerated 1cm. X0.5 cm.
2) Abrasion 3cm. X 1 cm. in front of chin in middle.
3) Abrasion 1 cm X 1 cm. in front of right nose.
4) Multiple abrasion marks 0.5cm long X liner in front of neck in area 6 cm. X 4 cm.
5) Punctured wound 3cm. X 1cm. X heart muscle deep in front of chest in the middle 15 cm. above amblicus. On desecting, sternum is cut anterior surface of heart is pierced up to myocardium margin sharp and clean."
The cause of death according to the post mortem report was shock and haemorrhage as a result of ante mortem injuries.
It is relevant to mention here that on the same date i.e., on 07.04.1997 the accused appellant Kaluwa was also medically examined at 9.55 P.M. in the district hospital and as per his injury report (Ex.Ka-2) the following injuries were found on his body:-
"1) Lacerated wound 3 cm.X0.5 cm. bone deep in front of head 4cm. above juncture of eyebrows bleeding.
2) Lacerated wound 1cm.X0.5cm X Muscle deep on the distal phalanx of ring finger of left hand."
The case was investigated. The investigating officer prepared the site plan. He collected plain earth and blood stained earth from Tangewali Gali, searched the houses of accused Anees and Kaluwa for securing their arrest and recorded the statement of witnesses. However, the weapon of offence, i.e., "gupti" could not be recovered.
The Investigating Officer, after concluding the investigation, submitted charge sheets against six persons i.e., Anees, Kaluwa, Khalik Ahmad, Nafees, Aakil, and Mujeeb Ahmad.
Charges under Section 302 read with Section 149 and Section 147 of I.P.C. were framed against the four accused persons, i.e., Khalik Ahmad, Nafees, Aakil and Mujeeb Ahmad. Against appellant-accused Anees and Kaluwa, charges under Section 302 read with 34 of I.P.C. were framed. All the accused persons denied the charges and faced the trial.
The prosecution, in support of his case produced 15 witnesses in all, out of whom, the depositions of PW-1 Mahnaz Jahan, PW-2 Mohd. Majid, who are said to be eyewitnesses of the occurrence and PW-4 Naeem Aara, the mother of deceased, are relevant.
PW-1 Mahnaz Jahan is the real sister of the deceased Waseem. She has been produced as eye witnesses of the occurrence, who has fully supported the prosecution case in her testimony. Her examination in chief is reproduced below.:-
eS gkftj vnkyr eqyfteku dh ?kVuk ls iwoZ ls tkurh gwW blesa uke vuhl] uQhl Mk0 [kyhd o eqtho gSA eqyfte dyqvk o vkfdy vkt xSj gkftj gSA fnukad 7 vizSy 1997 dh ?kVuk gS lk<+s vkB cts dk le; Fkk esjk HkkbZ Qqn~nw mQZ olhe fQzt Bhd dj jgs Fks vkSj eS Vh0oh0 ns[k jgk FkhA fQj dgk fd ?kVuk 7 viSzy lu~ 1997 dh gSA rHkh ckgj ls [kV[kVkus dh vkokt lqukbZ nh] eS njokts ij x;h rks dyqvk us dgk fd vius HkkbZ Qqn~nw dks Hkst nks rks eSus dgk fd Qqn~nw ckgj rqEgkjk nksLr cqyk jgk gS] eS Hkh mlds ihN&ihNs x;h tSls gh njoktk [ksyk] rks eS cjkcj esa vius HkkbZ ds ikl [kM+h FkhA ,d ne dkyqvk] uQhl] eqtho vkfdy us esjs HkkbZ dks yisV fd;k fdlh us gkFk fdlh us iSj idM+ fy;kA eS ph[k jgh Fkh brus esa vuhl us esjs HkkbZ Qqn~nw ds xqIrh ekj nh vkSj vuhl cksyk fd rsjs HkkbZ dk dke dj fn;k gSA esjk HkkbZ rkWxs okyh xyh esa 20&25 dne Hkkxk vkSj eS Hkh muds ihNs x;h eSus ns[kk fd og [kwu ls yFkiFk FksA mudks ns[kus ds ckn eS csgks'k gks x;h vkSj fxj x;hA mlds ckn eq>s ugh irk fd D;k gqvkA ftl le; ?kVuk gqbZ ml le; fctyh ds cYc dh jks'kuh Fkh] ml le; ykbV vk;h gqbZ Fkh vkSj eS Vh0oh0 ns[k jgh FkhA esjs lkSrsys firk luo~oj [kka gSA luOoj [kka dh vc e`R;q gks x;h gSA The second eyewitness is PW-2 Mohd. Majid. His statement, as recorded during his Examination-in-Chief is as under. :-
eS eqyfteku gkftj vnkyr dks ?kVuk ls igys ls gh tkurk gwWA muds uke dyqvk] Mk0 [kyhd eqthc] pkSFks dk uke ugh tkurk] vuhl] uQhl gSA fnukad 7 vizSy 1997 dh ckr gS yxHkx 6 o"kZ gks x, gSA yxHkx jkr ds 8-30 ikSus ukS dk le; Fkk] eS olhe mQZ Qqn~nw ds ?kj ds lkeus pk; dh nqdku ij ekStwn FkkA pk; ih jgk FkkA ml le; ykbZV FkhA eSus ;g ns[kk fd dyqvk vkSj vuhl nksuksa Qqn~nw ds njokts ij vk;s dyqvk us fdokM+s [kV[kVkbZ] vuhl ihNs [kM+s FksA mlds ckn Mk0 [kyhd] eqtho ftlds gkFk esa reapk Fkk Mk0 [kyhd ds gkFk esa gkdh Fkh] ;s yksx Hkh ogka ij vk x;s FksA muds lkFk uQhl Hkh FkkA dyqvk us dq.Mh [kV[kVkbZ rks ?kj ls dksbZ vkokt ugh vk;h] bl chp esa pk; dh nqdku ls mBdj bu nksuksa ds ikl igqWp x;k ;s yksx tksj tksj ls xkfy;ka cd jgs Fks] eSus buls iwNk fd D;k ckr gS] rks bUgksaus dqN ugh crk;k vkSj xkfy;ka cdrs jgsA mlds ckn e`rd dh cgu egukt njoktk [kksydj ckgj vk;h vuhl us mlls dgk fd vius HkkbZ dks ckgj Hkstks mlus dgk fd vius HkkbZ olhe dks ckgj Hkstks mlds dqN nsj ckn olhe tSls gh njokts ij vk;k rks dyqvk] vuhl uQhl ml ij >iV iM+s vkSj mls njokts ls ?klhV fy;k] ckdh yksxksa us Hkh [khapk rkuh dh] Mk0 [kyhd o eqtho us Hkh [khpk rkuh dhA brus esa olhe uhps fxjk] vkSj mlds ckn og rqjUr lh/kk [kM+k gks x;k] ml chp vuhl us mlds lhus esa xqIrh ekj nhA xqIrh yxus ij olhe NqM+kdj Hkkxk] nkfguh rjQ rkaxsa okyh xyh esa Hkkxk] bl chp eqyfte [kyhd o eqtho us dgk fd dke gks x;k] Hkkxks vkSj ;g yksx mRrj rjQ 'kkg th fe;k dh etkj dh rjQ Hkkx x,A tc olhe ?kj ds njokts ij vk;k Fkk] rc mldh cgu egukt Hkh mlds lkFk vk;hA eqyfteku ds Hkkxus ds ckn olhe rkaxs okyh xyh esa tkdj fxj x;kA mldh cgu egukt us fpYyk dj dgk fd mlds HkkbZ ds pksV yxh gSA vkdj ns[kksA mlds ihNs eS] rlyhe vkSj eksgYys ds dbZ yksx ftUgsa eS ugh tkurk gwW tkdj ns[kk fd olhe xyh esa fxj iM+k FkkA vkSj mlds lhus esa [kwu cg jgk Fkk ukyh esa [kwu cg jgk FkkA rHkh fdlh us fjD'kk cqyk yhA rlyhe us mij ls mBk;k vkSj eSus Vkaxs idM+ dj fjD'ks ij cSBk;k vkSj Mk0 ih0,u0 lDlsuk ds ;gkW ysdj x, tks pkSjkgs ls 100] 200 ehVj nwj gSA mlds crkus ij fd og [kre gks x;k gS rlYyh ds fy, ljdkjh vLirky ys x, tgka mls e`r ?kksf"kr dj fn;k x;kA bl ?kVuk ls igys vuhl dk olhe dk vkil esa iats yM+kus dks ysdj >xM+k gqvk Fkk vuhl us mls psrkouh nh Fkh fd 'kke dks fuiV ywaxkA ?kVuk LFky ij gh ;g ckr eq>s irk pyh FkhA PW-4 Smt. Naeem Aara is the wife of the first informant Sanavvar Khan and the mother of PW-1 Mahnaz Jahan and the deceased. The first informant Sanavvar Khan expired so he could not be produced in Court to prove the F.I.R. His widow PW-4 Smt. Naeem Aara has proved the F.I.R. by identifying the signature and handwriting of her husband Sanavvar Khan on it. Her statement is as follows. :-
esjh cgu 'kehe vkjk esjB esa jgrh gSA djhc 8 lky igys eS viuh cgu 'kehe vkjk ds ;gkW esjB xbZ FkhA esjh yM+dh egukt tgkW dk jkr esa djhc 8 cts Qksu vk;k Fkk mlus ;kuh esjh yM+dh us lwpuk nh fd yM+kbZ gks xbZ gSA eEeh rqe tYnh vk tkvksA vuhl dyqvk] eqtho vkfdy] uQhl vkSj [kyhd MkDVj us esjs yM+ds olhe mQZ Qqn~nw ds lkFk ekjihV dh gSA ;g lwpuk feyus ij eS lqcg djhc ukS lk<+s ukS cts ihyhHkhr igqWph fQj eq>s irk pyk fd bu yksxksa us esjs yM+ds olhe dks ?kj ls cqykdj mlds lkFk ekjikhV dhA ftl dkj.k esjs yM+ds dh e`R;q gks xbZA esjk yM+dk olhe xkM+h pykrk FkkA mlus edku [kjhnk Fkk rFkk thi csap nh Fkh rFkk blds ckn mlus ijpwu dh nqdku dj yh Fkh esjs ifr luOoj [kka Bsdsnkjh dk dke djrs FksA Bsdsnkjh esa mUgs uqdlku gks x;k FkkA ftl otg ls mUgksus dke NksM+ fn;k FkkA esjs ifr ds [kkyh jgus ij gekjh vkSj ifr dh dgklquh gksrh jgrh FkhA luOoj [kka ls esjh nwljh 'kknh FkhA igys ifr ls esjs nks cPps ,d olhe o nwljh egukt tgkW yM+dh FkhA esjs ifr luOoj [kka mnwZ i<+s Fks og esjs lkeus fy[krs i<+rs jgrs FksA eS mudk ys[k o gLrk{kj igpkurh gwWA xokg dks i=koyh ij ekStwn ifji= la0d&14@2 fn[kk;k x;k rks xokg us dgk fd bl ij esjs ifr luOoj [kka ds gLrk{kj ekStwn gSA bu gLrk{kj ij izn'kZ d&3 Mkyk x;kA esjs ifr luOoj [kka dh e`R;q gks pqdh gSA The statements of remaining material witnesses i.e., PW-5 Mohd. Umar, PW-6 Mohd. Tahseen Khan, PW-8 Afjal, PW-9 Sayed Athar Ali are of little relevance due to the reason that PW-5 Mohd. Umar, who is alleged to be an eye witness and PW-8 & PW-9 who are said to be witnesses of search, have turned hostile. PW-6 is witness of inquest proceedings only.
A perusal of statements of the three witnesses as quoted above, shows that PW-4 the mother of the deceased Waseem was not present at the place of occurrence at the time when it took place. Admittedly, she was at Pilibhit on the fateful day. Her statement shows that she had reached there after getting the information about the occurrence by telephone of her daughter PW-1 Mahnaz.
Thus, the prosecution case rests mainly on the evidence of two witnesses, i.e., PW-1 and PW-2.
It is well settled legal position that in order to test the credibility of the prosecution case, the quality and not the quantity of the witnesses is important and conviction can be based on the sole testimony of a witnesses if it inspires confidence.
The statements as recorded during examination-in-chief of both PW-1 and PW-2, reveal that barring few exceptions both the witnesses are throughout cogent and consistent in so far as the time, date, place, weapon and manner of occurrence is concerned. Both these witnesses have stated that it was 7th April, 1997. The time was about 8.30 P.M. The accused persons reached at the door of the house of the deceased Waseem and called him. As soon as the deceased opened the door, they attacked on him and overpowered him. The accused appellant Kaluwa caught hold of deceased and accused appellant Anees inflicted a hard blow with the gupti he was carrying, which pierced through the sternum into the heart of deceased Waseem. Both these witnesses have stated that deceased Waseem somehow managed to come out from their grip and ran towards the Tangewali Gali, but due to injury he could move only up to 20 or 25 paces, thereafter, he collapsed and died in Tangewali Gali.
Before proceeding to scrutinize what the witnesses have deposed during their cross examination, the grounds taken by their learned counsel Shri Dilip Kumar, for challenging their credibility and trustworthiness are worth mentioning.
Shri Dileep Kumar has assailed the prosecution case and the witnesses produced in support thereof mainly on the following grounds:-
1. PW-1 Mahnaz has been wrongly depicted as an eyewitness by the prosecution. She is not an eye witness because her name does not find place in the F.I.R. as such.
2. Mahnaz has shifted the place of occurrence. As per the FIR version, the place where the occurrence (of stabbing) took place is Tangewali Gali where as PW-1 Mahnaz has stated that the act of stabbing took place at the door of the deceased which cannot be believed because no blood has been found at the door of the deceased. To the contrary, blood has been found in Tangewali Gali.
3. The testimony of Mahnaz can not be relied upon due to the reason that she, in her statement recorded under Section 164 Cr.P.C., has stated that she had lodged the F.I.R. of this case but no such F.I.R., lodged by her is available. There is only one F.I.R. lodged by her father Sanavvar Khan.
4. Mahnaz, during her cross examination, has denied that she had given any such statement about lodging of F.I.R. before the Magistrate whereas the Magistrate, who has recorded her statement under Section 164 Cr.P.C. has been produced in Court as P.W.14, who has proved Mahnaz's statement under Section 164 Cr.P.C. as Ex. Ka 10 and has stated that Mahnaz had deposed before him about lodging of an F.I.R. at the police station Kotwali.
5. The statement of PW-1 Mahnaz that after seeing the occurrence she became unconscious at the place of occurrence and remained there in that state for about 1 ½ hours, appears unnatural and improbable.
6. Testimony of Mahnaz suffers from serious contradictions on material aspects. The prosecution case came-up with an initial theory in the First Information Report naming two assailants and four conspirators. Subsequently, material improvements were made in this theory by introducing eye witness account, who named six persons all having active roles as assailants and not mere 'conspirators' as alleged in the F.I.R..
7. The F.I.R., which forms the basis of a criminal case is shrouded with mystery in this case. The first informant Sanavvar Khan, is clearly is not an eye witness of the occurrence and he has lodged the First Information Report on the basis of information given to him by some other persons and the prosecution has absolutely failed to bring on record as to who could have informed Sanavvar Khan about the incident. P.W.1 Mahnaz has categorically stated that she did not inform Sanavvar Khan about the incident. According to her own statement, she became unconscious after seeing the occurrence and remained in an unconscious position for about 1 ½ hours. By that time the first information report had been lodged. P.W.2 Majid has also admitted that he had not informed Sanavvar Khan about the incident. Learned counsel for the appellants has contended that it is a great mystery as to who informed the first informant Sanavvar Khan about the incident which casts a serious shadow of doubt in the prosecution story regarding the reliability of the F.I.R.
8. It is next contended that PW-2 Majid is a 'chance witness' and his presence at the place of occurrence is doubtful, which is evident from the fact that he has stated that he was present at the tea stall, situated on the western side of the place of occurrence but according to the statement of Investigating Officer, there was no tea stall in the western side of the house of the deceased. Moreso, PW-2 does not even know the name of 'Chaiwala' or the owner of the tea stall though he was a frequent visitor there.
9. Both the aforesaid so called eye witnesses PW-1 and PW-2 have categorically stated that the 'place of assault' where the fatal blow by gupti was inflicted on the deceased Waseem, was the door of the house of the deceased, whereas the dead body of Waseem, has been found lying in a pool of blood at "Tangewali Gali." No blood has been found at the door steps of Waseem's house, which completely rules out the possibility of incident being taken place there and it creates a serious doubts in the veracity of statement of both the witnesses in so far as place of occurrence is concerned.
10. The doctor, has argued that the doctor has categorically opined that the fatal blow inflicted on the deceased was of such a nature that the deceased could not have moved any further after sustaining it. But according to both the eye witnesses, after sustaining the blow of gupti, the deceased ran upto 20-25 paces towards Tangewali Gali, which appears improbable and makes the prosecution story unworthy of credit.
11. There was no "source of light" at the place of occurrence. The occurrence is of night and the trial court has recorded a finding that there was no electricity supply in the city at the time of occurrence. Therefore, it was not possible for PW-1 and PW-2 to witness the incident and to identify the assailants.
12. The 'motive' as alleged by the prosecution is very weak because only on a trivial dispute during hand wrestling or "punja fighting", no one would take revenge in such a heinous and cruel way.
13. There is apparent 'improvement' in prosecution version not only with regard to 'manner of incident' but also regarding 'number of assailants', which creates serious doubts in prosecution story and probablises the defence story that the incident might have taken place in some other manner, at some other time and at some other place which was not witnessed by any person. However, the accused appellants have been falsely implicated in the case after due deliberations, because of enmity.
On the aforesaid grounds, learned counsel for the appellants has contended that the trial court has rightly acquitted four accused persons by giving them benefit of doubt but has committed gross illegality by convicting the appellants, relying only on the testimony of PW-1 and PW-2, both of whom are highly interested and partisan witnesses.
Accordingly, learned counsel for the appellants has prayed that that part of the impugned judgment whereby the appellants have been convicted and sentenced, be set aside and their appeal be allowed.
Per contra, the submission of learned AGA is that the prosecution by means of cogent and convincing evidence, has proved its case against the appellants beyond every shadow of reasonable doubt and as such the impugned judgment does not require any interference.
Learned AGA has vehemently argued that minor contradictions and some improvements are natural in the statement of witnesses, who have not been tutored. Some discrepancies and omissions are bound to occur in the statement of witnesses, as with the passage of time, the memory fades. Learned AGA has further contended that none of the accused appellants have stated anything in his defence during his examination under Section 313 Cr.P.C. except that on the night of occurrence, there was no electricity supply in the city. He has contended that both the eyewitnesses have categorically stated that electricity supply had resumed at about 8.25 P.M. PW-1 during her cross-examination on this point, has given satisfactory answer. In this regard, learned A.G.A. has drawn our attention to the following statement of PW-1 :-
?kVuk okys fnu ?kVuk ls 10&15 feuV igys ?kj ij Vsyhfotu ns[k jgh FkhA tc eS Vh-oh- ns[k jgh Fkh] ml le; iM+ksl dh ykMyh csxe Fkh esjs lkFk Vh-oh- ns[k jgh FkhA ;g ykMyh csxe ?kVuk ls ,d ?kUVk igys esjs ?kj ij FkhA ykMyh csxe ,d ?kUVk igys ls Vh-oh- ugh ns[k jgh FkhA D;ksafd ykbV 8&25 cts vk;h FkhA Learned A.G.A. has argued that the F.I.R. in this case has been lodged promptly by the first informant Sanavvar Khan. However, as he died before his deposition could have been recorded, the F.I.R. was proved by his widow PW-4 Smt. Naeem Aara, by identifying her deceased husband's signature on it. On the aforesaid grounds learned A.G.A. has prayed that the appeal being devoid of merit be dismissed.
Nothing has been elicited in the cross-examination of Naeem Ara to show that the signature of Sanavvar on the F.I.R. are not genuine. It has been contended by learned A.G.A. that promptness of F.I.R. rules out the possibility of any deliberation or consultation before lodging of F.I.R. in order to falsely implicate some one. Advancing his arguments further learned A.G.A. has contended that even the witness PW-5 Mohd. Umar, who has turned hostile, has stated that when he reached at Tangewali Gali, where Fuddu was lying dead, he saw Mahnaz weeping there. Thus, the presence of Mahnaz at the seen of occurrence is admitted to the hostile witness also. Learned A.G.A. has further submitted that the absence or weakness of motive does not make any difference in wake of the well settled legal position that where the eyewitness account of the occurrence is available the motive pales into insignificance.
We have duly considered the evidence on record and the arguments based thereon.
A close scrutiny of the statements of both the eyewitnesses examined by the prosecution in this case reveals that both of them are throughout consistent with regard to the place where deceased Waseem had sustained the fatal gupti blow, which according to them is the door of the house of deceased Waseem. Both these witnesses have been cross-examined at length by learned counsel for the accused persons, but their deposition is remained intact and unshaken with regard to the place where the fatal gupti blow was inflicted on the deceased by the accused persons.
The defence has tried to assail the place of occurrence on three grounds. First, that no blood was found at the door of deceased Waseem, which totally belies the prosecution story that the gupti blow was inflicted by the accused-appellant Anees at his door, second, in the F.I.R., it has clearly been mentioned that the accused persons took the deceased in Tangewali Gali and at there they pierced the heart of deceased by 'Gupti' and third, in the site plan the I.O. has shown 'Tangewali Gali' as place of occurrence. Learned counsel for the appellants has vehemently argued that had such a hard blow of gupti been inflicted on the chest of deceased, which penetrated into his heart piercing it, at his door step definitely a fountain of blood would have been oozed out and would have spilt on his door step. But the blood has been found at Tangewali Gali and not at the door of the deceased.
We do not find any substance in the aforesaid contention of learned counsel for the appellants for the following two reasons:-
(1) PW-1 Mahnaz Jahan, during her cross-examination, has categorically stated that she had seen the blood at her door after the occurrence. Her statement in this regard is as under:-
ftl txg ij esjs HkkbZ ds xqIrh yxh ogkW tehu ij [kwu fxjk Fkk A [kwu tehu ij ogkW ugh Fkk ogh feVzVh esa bdVBk gks x;k Fkk [kwu eSus jkr esa Hkh ns[kk Fkk vkSj tc eSa lqcg ckgj vk;h rc Hkh ns[kk Fkk A jkr dks 8&1@2 cts ns[kk Fkk lqcg dks fdrus cts ns[kk /;ku ugh A Although PW-2 Mohd. Majid has stated that he had not seen any blood at the door, but he has stated that he had seen the blood at the place where Waseem had fallen down. He has further clarified the scene by stating that when Waseem sustained gupti blow then the blood did not ooze out immediately from his chest. The following statement of PW-2 is relevant in this regard "olhe ds tc xqIrh yxh rks mlds rsth ls [kwu ugh fudyk ftl le; xqIrh yxh Fkh ml le; eSa ;g ugh ns[k ik;k fd mlds diMs [kwu ls Hkhxs gS ;k ugh".
Both the witnesses i.e. PW-1 and PW-2 have stated that after sustaining gupti blow, Waseem somehow managed to come out from the grip of the assailants and ran towards Tangewali Gali and after going 20 or 25 paces, he collapsed in the Gali.
The aforesaid picture of the occurrence clearly indicates that deceased Waseem even after sustaining the gupti blow somehow, managed to free himself from the grip of assailants and ran towards Tangewali Gali. As the gupti had pierced his heart after cutting his sternum, it appears probable that the internal bleeding might had started and the blood oozed out after a few seconds when Waseem collapsed at the Tangewali Gali. It is worth mentioning that PW-3 Dr. Saubhagya Prakash who has conducted the postmortem has stated that he found one liter of blood in his chest cavity during the postmortem. This fact also shows that there was internal bleeding and the blood oozed out when the deceased fell down in Tangewali Gali.
Under almost identical situation, the Apex Court in the case of Sanjeev Kumar Gupta Versus State of U.P. (Now State of Uttarakhand) 2015(5) Supreme 369 has observed as under:-
"The defence was raised that there has been improvement by the prosecution witnesses with respect to the place of occurrence of the incident. However, from a perusal of the site map it becomes clear that the incident originally took place near the cycle stand and on receiving the injuries deceased ran away from the place and fell down after 10-20 steps. He was chased by four accused and injuries were caused to him by the near I.G.N.O.U. building, which was hardly 10-20 steps from the place where he fell down after getting trapped with the wire. The veracity of the above-mentioned distance has come forth in the cross- examination of the witnesses. We believe a person may presume them to be one place or two separate places. Therefore the discrepancy with respect to the place of occurrence has no bearing on the prosecution case."
The argument of learned counsel for the appellants that after sustaining such gupti blow there is probability of immediate death, and it was not possible for deceased to run for about 15 or 20 paces, appears to have no force because it depends on the capacity to endure the pain and the physical condition of a person and the reaction may be different among different persons.
We do not find any reason to disbelieve the oral evidence of the eyewitnesses only on the ground that I.O., in the site plan has shown the place of occurrence as Tangewali Gali. The statement of both the eyewitnesses as a whole inspire confidence. Both of them, in no way, were going to be benefited by remaining firm on their statement that the occurrence took place at the door step of deceased Waseem. They could have easily stated that the incident had occurred at Tangewali Gali in order to strengthen their case, but both the eyewitnesses have stated the truth without caring that I.O. has shown a different place i.e. 'Tangewali Gali' where the incident of inflicting the gupti blow had taken place.
(2) The place of occurrence cannot be disputed simply on the ground that there is no recovery of blood stained earth from the door step of Waseem. It may be possible that the I.O., due to negligence or laches on his part, failed to collect the blood fallen at the door of deceased Waseem.
Likewise non-recovery of 'Gupti' i.e. the weapon of assault is also not fatal to prosecution in wake of well settled legal position that accused will not be benefitted by laches of Investigating Officer.
In the case of Sanjeev Kumar Gupta (supra), the Apex Court has held as under:-
"The investigation suffers from certain flaws such as non recovery of the weapon used by the accused appellants and recovery of the blood stained shirt after six days of the date of the incident. However, merely on the basis of these circumstances the entire case of the prosecution cannot be brushed aside when it has been proved by medical evidence corroborated by testimonies of the prosecution witnesses that the deceased died a homicidal death. Reaffirmed the law as laid down in Manjit Singh and Anr. Vs. State of Punjab and Anr. (2013) 12 SCC 746, that when there is ample unimpeachable ocular evidence and the same has received corroboration from medical evidence, non recovery of blood stained clothes or even the murder weapon does not affect the prosecution case."
The description of ante mortem injuries in the postmortem report of deceased shows that a scuffle had taken place before his death, which is evident from the fact that the doctor, who has conducted postmortem has stated that on 07.04.1997 he had also medically examined the appellant Kaluwa at 9.55 P.M. and he had found the following injuries on his body:-
"1) Lacerated wound 3 cm.X0.5 cm. bone deep in front of head 4cm. above juncture of eyebrows bleeding.
2) Lacerated wound 1cm.X0.5cm X Muscle deep on the distal phalanx of ring finger of left hand."
The date and time of occurrence i.e. 7.4.1997 at 8.30 P.M. and the date and time of medical examination as mentioned in the injury report of Kaluwa clearly shows that appellant Kaluwa had sustained injuries in the same occurrence. All his injuries were found fresh, which fortifies the prosecution story that a scuffle took place between Kaluwa and deceased Waseem when Kaluwa tried to catch hold of the deceased in order to over power him.
So far as the source of light at the place of occurrence is concerned, the statement of both the eyewitnesses reveals that electricity supply was resumed at 8.30 P.M. PW-1 Mahnaz has remained firm on her statement that she was watching TV and his brother deceased Waseem was repairing the refrigerator when the accused appellants reached at his door and called him to come out. Her statement is as follows:-
?kVuk okys fnu ?kVuk ls 10&15 feuV igys ?kj ij Vsyhfotu ns[k jgh Fkh A tc eS Vh0oh0 ns[k jgh Fkh ml le; iMksl dh ykMyh csxe Hkh esjs lkFk Vh0oh0 ns[k jgh FkhA ;g ykMyh csxe ?kVuk ls ,d ?kUVk igys esjs ?kj ij FkhA ykMyh csxe ,d ?kUVk igys ls Vh0oh0 ugh ns[k jgh Fkh D;ksfd ykbV 8&25 cts vk;h FkhA It is not possible to watch TV or to repair fridge without electricity.
Even assuming for the sake of arguments that there was no electricity supply at the time of occurrence, it does not make any difference as all the accused appellants had prior acquaintance with the deceased and his family and they could have been easily identified by their voice and their body language even in the dark also.
The weakness or absence of 'motive' has no relevance in a case where there is eyewitness account of the incident. Hon'ble Apex Court in a catena of judgments has laid down the law that in case of direct evidence motive pales into insignificance. Whether the motive behind the occurrence was quarrel during 'hand wrestling' or 'Punja fight' which took place earlier in the morning or something else could be known only to the assailants and the prosecution is not required to prove it if has successfully proved its case with the help of reliable eyewitnesses.
In the case of Sanjeev Versus State of Haryana (2015) 2 SCC (Cri) 630, Hon'ble Supreme Court has held as under:-
"It is settled principle of law that, to establish commission of murder by an accused, motive is not required to be proved. Motive is something which prompts a man to form an intention. The intention can be formed even at the place of incident at the time of commission of crime. It is only either intention or knowledge on the part of the accused which is required to be seen in respect of the offence of culpable homicide. In order to read either intention or knowledge, the courts have to examine the circumstances, as there cannot be any direct evidence as to the state of mind of the accused."
No doubt the star witness of this case PW-1 Mehnaz who is the real sister of deceased is a pardanashin lady and it cannot be expected form her to face the gruelling cross examination without any contradiction or omission. We do not find any substance in the argument advanced by learned counsel for the appellants pointing out the discrepancy with regard to lodging of F.I.R. by Mehnaz as stated by her in her statement under Section 164 Cr.P.C.
Her statement recorded under Section 164 Cr.P.C. shows that she has stated that eSuas FIR ntZ djk;h Fkh A Although Mehnaz has stated that she had lodged the FIR, but only on this ground alone her entire deposition cannot be discarded. The use of word 'eSuas' may denote the lodging of FIR by her family members and not by her only.
The I.O. has not stated anything about lodging of 2nd FIR by Mehnaz. Defence has not even put any question in this respect from the I.O. The magistrate recording her statement under Section 164 Cr.P.C. was duty bound to clarify the position but he has failed to do so. In R. Shaji v. State of Kerala (2013) 14 SCC 266, the apex court has held as under:-
"In a case where the the magistrate has to perform the duty of recording a statement under Section 164 Cr.P.C., he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought and what he must disclose in his statement under Section 164 Cr.P.C.. Hence, the magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case."
The testimony of Mehnaz cannot be discarded on the ground that she being the real sister is an interested and partisan witness. A near relative will never exonerate the real culprit and falsely implicate an innocent person.
In Dharnidhar v. State of U.P. (2010) 7 SCC 759 it has been held be apex court that "There is no hard and fast rule that family members can never be true witnesses to the occurrence and they will always depose falsely before the court. A pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence can not be ignored or thrown out solely because it comes from a person closely related to the victim."
In a recent case of Gurjit Singh alias Gora and Anr. Versus State of Haryana (2015) 2 SCC (Cri) 624, it has been observed by Hon'ble Supreme Court as under:-
"Once the prosecution has been able to prove its case by leading admissible and cogent evidence with reference to statements of the witnesses, the same cannot be brushed aside merely on the ground that the witnesses are relatives of the deceased. It is further reaffirmed that even a close relative who is a natural witness cannot be regarded as an interested witness. The term "interested" postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason. The evidence of interested witnesses is not infirm."
The specific roles have been assigned to both the appellants who have been found guilty under Section 302 read with Section 34 I.P.C. The appellant Kaluwa has been assigned the role of catching hold of deceased and his active participation is aiding the crime finds corroboration with his injury report showing that he has sustained injuries at the same time.
Though some minor contradictions and discrepancies have occurred during lengthy cross-examination of witnesses but that makes no difference as those deserves to be over looked in wake of the legal position as settled by Hon'ble Apex Court in a catena of judgments.
In the case of State of Rajasthan Vs. Abdul Mannan AIR 2011 SC 3013, the Apex Court has observed that "variations in minor details of incident are immaterial, unless discrepancy in statement of witness or entire statement of witness erodes credibility of witness himself."
In the case of Chittarmal Vs. State of Rajasthan AIR 2003 SC 796, the Hon'ble Supreme Court has held that "merely because PW has sought to make improvements in course of his deposition, his entire evidence could not be rejected."
The apex court in the case of Pawan Kumar @ Monu Mittal Vs. State of Uttar Pradesh & Anr. AIR 2015 SC 2050 has observed as under:-
"When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence."
In Major Singh & Anr. Vs. State of Punjab; 2007 (1) ACR 734 (SC) , the apex court has held as under:-
"It is well settled that the principle of falsus in uno falsus in omnibus is not an acceptable principle. It is well known fact that in our country very often the prosecution implicates not only real assailants but also implicates innocent persons so as to spread the net wide.
The court can always discriminate and find out that who were the real assailants and who were not."
Lastly, learned counsel for the appellants, by way of desperate argument has contended that even if the entire prosecution version and evidence are accepted to be true on their face value, the case would not travel beyond Section 304 I.P.C. The contention of the learned counsel for the appellants was that there was no intention on the part of the appellant to cause the death of deceased and he had given only one blow by gupti, due to which the offence of murder punishable under Section 302 I.P.C. would not be made out in this case and hence the conviction of the appellant under Section 302 of I.P.C. cannot be sustained.
The learned A.G.A. on the other hand submitted that bodily injury sufficient in the ordinary course of nature to cause death was inflicted to the deceased by the appellant-accused Anees by pierce a gupti in his chest, hence clause 'thirdly' of Section 300 I.P.C. is squarely attracted in this case and since the case is not covered by any Exception of Section 300 I.P.C., the offence of murder punishable under Section 302 I.P.C. is clearly made out in this case.
Having given our thoughtful consideration to the rival submissions made by the parties counsel, we entirely agree with the submission of the learned A.G.A.
From the evidence on record, this fact is borne out that bodily injury sufficient in the ordinary course of nature to cause death was inflicted to the deceased by the appellant Anees by piercing a gupti in his chest. As would appear from Section 300 I.P.C., if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death and if the case is not covered by any of the Exceptions enumerated in this section, then clause 'thirdly' of Section 300 would be attracted in such case and the offence of murder punishable under Section 302 I.P.C. would be clearly made out. Illustration (c) of Section 300 I.P.C. is also relevant in this regard, which reads thus:-
(c) A intentionally gives Z a sword cut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.
In the present case, according to the evidence of the eyewitnesses examined by the prosecution during trial, a gupti was pierced by the appellant in the chest of the deceased, which proved fatal to his life and he died almost instantaneously. By piercing gupti in the chest of deceased, the appellant had certainly intended to cause bodily injury to the deceased and since the bodily injury inflicted to the deceased by piercing gupti in his chest was sufficient in the ordinary course of nature to cause death, hence clause 'thirdly' of Section 300 I.P.C. would squarely be attracted and since the case is not covered by any of the Exceptions mentioned in this section, therefore prima facie offence of murder punishable under Section 302 I.P.C. is clearly made out in this case.
Keeping in view the facts and circumstances of the case, there does not appear any ground to interfere in the judgment passed by learned trial court. The appeals being devoid of merit are liable to be dismissed. Both the appeals are, accordingly, dismissed. The judgment and sentence of the appellants awarded by the trial court is upheld.
The appellant Anees is in jail. He shall remain in jail to serve out the remaining period of his sentence as awarded by the trial court.
The appellant Kaluwa was released on bail during the pendency of appeal vide order dated 26.9.2006 of this Court. His bail bonds are cancelled. He shall be taken into custody forthwith for serving out the rest of sentence. The Chief Judicial Magistrate concerned is directed to ensure his arrest and send his report within one month from the date of receipt of copy of this order.
Let a certified copy of this judgment be sent to the Chief Judicial Magistrate concerned for compliance and also to the trial court for its intimation.
Dated:-6.5.2016 L.F./NS