Allahabad High Court
Tayyab And Anr. vs State Of U.P. on 22 November, 2022
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 43 Case :- CRIMINAL APPEAL No. - 5705 of 2013 Appellant :- Tayyab And Another Respondent :- State of U.P. Counsel for Appellant :- Salman Ahmad,Atharva Dixit,Rajiv Lochan Shukla,Vijay Kumar Dwivedi Counsel for Respondent :- Govt. Advocate,Amit Kr.Srivasstava,Shams Tabrez Ali Connected with Case :- CRIMINAL APPEAL No. - 324 of 2014 Appellant :- Waheed Ahmad Respondent :- State of U.P. Counsel for Appellant :- Faizul Hasan,Vijay Kumar Dwivedi Counsel for Respondent :- Govt. Advocate,Amit Kr Srivastava,Shams Tabrez Ali And Case :- CRIMINAL APPEAL No. - 362 of 2014 Appellant :- Iqbal Respondent :- State of U.P. Counsel for Appellant :- Ajay Sengar,Vijay Kumar Dwivedi Counsel for Respondent :- Govt. Advocate,Amit Kumar Srivastava,Rakesh Chandra Upadhaya,Shams Tabrez Ali Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
(Per Hon'ble Ashwani Kumar Mishra, J.)
1. Criminal Appeal Nos. 5705 of 2013 (Tayyab & Tahir vs. State of U.P.), 324 of 2014 (Waheed Ahmad vs. State of U.P.) and 362 of 2014 (Iqbal vs. State of U.P.) are directed against the judgment and order dated 27.11.2013, passed by Additional Session Judge/Special Judge (E.C. Act), Bareilly in Session Trial No.345 of 2009 (State vs. Tahir and others), arising out of Case Crime No.76 of 2009 under Sections 323/34, 324/34, 302/34, 504 and 506(2) IPC, Police Station Bahedi, District Bareilly, whereby accused appellants have been convicted and sentenced to undergo one year imprisonment under section 323/34 IPC; two year imprisonment under section 324/34 IPC; and life imprisonment under section 302/34 IPC with fine of Rs.10,000/- each and in default of fine the accused appellants are to further undergo one year additional imprisonment. All the sentences are to run concurrently and half of the fine is directed to be paid to the nearest relative of deceased Minzar.
2. Prosecution case in this case proceeds upon a written report of first informant Mohd. Arif (PW-1) alleging that on 17.01.2009, at about 08.45 PM, he was going towards Majar of Maula Shah Miyan when accused Tahir on a motorcycle kicked him and on his objection hurled filthy abuses and also threatened him. On his return when he reached Hauli Chauraha he found that the accused Tahir alongwith his real brothers Iqbal and Tayyab and cousin Wahid Ahmad were waiting, armed with pistol, sword, kanta and lathi (wooden log) and on seeing him the accused Iqbal exhorted that kill the informant. Accused persons started assaulting the informant with the pistol grip and lathi (wooden log) and on hearing his cries the informant's brother Minzar and Ashraf came and saved him, whereafter accused persons took Minzar and Ashraf inside their house and with an intent to kill them started assaulting them with sword and kanta and accused Tahir fired from his pistol but the bullet missed. Minzar and Ashraf suffered injuries from sword and kanta and the accused persons left them in the nearby lane presuming them to be dead. The entire incident was seen in the tube-light by the informant and that his brothers are in serious condition.
3. On the basis of aforesaid written report (Ex.Ka.1) the First Information Report (Ex.Ka.7) came to be registered as Case Crime No.76 of 2009 under Sections 323/34, 324/34, 302/34, 504 and 506(2) IPC, Police Station Bahedi, District Bareilly on 17.01.2009 at 09.10 PM. The injured Minzar was sent to the Community Health Centre for his medical examination alongwith Chitthi Majroobi with Home Guard Dwarika Prasad. The Medical Officer (PW-3) examined the injured Minzar on 17.01.2009 at 09.30 PM and found following injuries on him:-
"An incised wound 8cm x 3cm Not probed on the left side back of abdomen (in the loin region) margins are clear, regular, fresh blood oozing present. Pulse weak, B.P. note recordable respiration- in gasping condition, G.C. Low, altered sesnsorium."
In the opinion of Medical Officer the injuries were to be kept under observation and were caused by a sharp object and were fresh injuries. The injured was referred to District Hospital where he died soon thereafter. The information regarding his death was sent to the nearest Police Station at 00.15 AM on 18.01.2009. Inquest proceedings commenced at 11.30 AM and concluded at 12.20 PM at the District Hospital itself. The first informant Mohd. Arif was one of the inquest witnesses and in the opinion of inquest witnesses the deceased Minzar died on account of injuries sustained on his back and to know the cause of death his postmortem be got conducted. The body of the deceased Minzar was sealed and sent for postmortem. The postmortem (Ex.Ka.5) of the deceased has been conducted by Dr. K. K. Mishra (PW-5) at 02.15 PM on 18.01.2009 and the cause of death has been determined as shock and haemorrhage due to ante-mortem stab wound injury. The injuries found during postmortem are as under:-
"Incised wound 8cm x 3cm x body cavity deep 18cm below the left scapula over back lumbar area underneath rib is also cut down"
4. The first informant Mohd. Arif and his brother Mohd. Ashraf were also sent to Community Health Centre, Bahedi for their medical examination on the next day i.e. on 18.01.2009. They have been medically examined at 10.15 AM and their injury reports are also part of the record and their injuries are as under:-
"Injuries of Mohd. Arif
1. Abrasion 1cm x .5cm on mid part of upper lip. Colour Red.
2. Abrasion 3cm x 2cm on anterior surface of neck. 3cm above supra sternal notch. Colour Red.
Injuries of Mohd. Ashraf
1. Incised wound 2cm x .5cm x muscle deep on left side of scalp. 5cm above the left year clotted blood present. Margin sharp.
2. Contusion with traumatic swelling 3cm x 1cm on posterior surface of left hand. Colour reddish. Advise x-ray left hand AP & lateral view."
5. The Investigating Officer collected bloodstained and plain floor (Ex.Ka.20). On 19.01.2009 the accused Tahir during custodial interrogation is stated to have informed the Investigating Officer about the place where the weapon of assault was kept by him and on his pointing out a bloodstained knife has been recovered, which allegedly was used by Tahir to cause fatal injury to Minzar. This knife, however, has not been sent for forensic report and has also not been produced before the Court. The recovery of knife vide recovery memo alone has been proved by Ram Siromani Saroj, SHO, Bahedi (PW-8). The description of knife is that its blade size is eight fingers; its handle is ten fingers in length; in the nature of fish and contains carving of red and blue colour; and having a brass clip for its opening and closing.
6. The statutory investigation ultimately concluded with submission of charge sheet on 02.03.2009 against accused appellants Tahir, Iqbal, Tayyab and Wahid. The magistrate took cognizance on the charge sheet and committed the case to the court of sessions, who took cognizance on the charge sheet. Five charges were framed against the accused appellants under sections 323/34, 324/34, 302/34, 504, 506(2) IPC. The accused appellants denied the charges and demanded trial.
7. The prosecution in order to bring home the charge has adduced several documentary evidence i.e. FIR as Ex.Ka.7; written report as Ex.Ka.1; recovery memo of bloodstained and plain floor as Ex.Ka.20; recovery memo of knife as Ex.Ka.9; injury report of Mohd. Arif as Ex.Ka.4; injury report of Mohd. Ashraf as Ex.Ka.3; injury report of deceased Minzar as Ex.Ka.2; postmortem report as Ex.Ka.5; inquest report as Ex.Ka.12; charge sheet as Ex.Ka.11; and site plans with index as Ex.Ka.21 and 10 etc.
8. The prosecution in order to bring home the charge has also produced oral testimony of first informant Mohd. Arif as PW-1; Mohd. Ashraf (injured) as PW-2; Dr. Ram Prasad, Medical Officer, CHC, Bahedi as PW-3 who proved the injury report of deceased Minzar; Dr. Jai Prakash, CHC, Bahedi as PW-4, who proved the injuries of injured Mohd. Ashraf and Mohd. Arif; Dr. K. K. Mishra, Autopsy Surgeon from District Hospital, Bareilly as PW-5, who proved the postmortem report of deceased Minzar; Constable Jhajhan Lal, Moharir as PW-6, who proved the G.D. Entry; Head Constable Rohitas Singh as PW-7, who proved the Chik FIR and G.D. Entry Kayami Mukadma; Ram Shiromani Saroj, SHO Bahedi as PW-8, who proved recovery memo of knife and charge sheet etc.; S.I. Subhash Chand Yadav as PW-9, who proved inquest report etc.; and Sushil Kumar Verma, Outpost Incharge Police Station Bahedi as PW-10, who proved recovery memo of bloodstained earth etc.
9. As against the above-noted prosecution version, in respect of the incident, the defence version is somewhat distinct and needs to be noticed. Km. Fatima Parveen (DW-1), sister of the accused brothers, claims that on 17.01.2009 at about 09.00 PM the deceased Minzar Ahmad, who had a suspicious character entered her house after seeing her sister Shabana in the room and with a bad intent caught hold of her. When Shabana objected to his act she was inflicted a stab injury and on hearing the commotion DW-1 together with her sister Tabassum attempted to save Shabana but they too were inflicted knife injuries by Minzar. At this stage Km. Fatima claims to have taken a knife from kitchen and in order to save her sisters hit Minzar whereafter he fled. Mother of Fatima soon returned from the neighbourhood and all of them went to the police station Bahedi for lodging the report, but the police personnel did not register it and instead asked them to get themselves medically examined first. Km. Fatima, Shabana and Tabassum accordingly went to CHC, Bahedi and got themselves medically examined, whereafter they allegedly again came to the police station but even then their report was not registered. Following day i.e. 18th January was a Sunday and on 19.01.2009 a letter was sent to police personnel informing that the family members of Minzar have falsely lodged a report against her brothers for killing Minzar whereas her brothers were not even at home and the police has not registered her report. With similar contents letters have been allegedly sent to I.G. Range, Bareilly, S.S.P. Bareilly under certificate of posting which are at pages 6 to 11 of the paper book. These letters have been duly exhibited. The injury reports of Shabana, Tabassum and Fatima have also been exhibited and have been proved by Dr. Ram Prasad, Medical Officer, CHC Bahedi (PW-3). The injuries on the three sisters of accused have been noticed as under:-
Injuries of Sabhana चोट सं० 1- कटा हुआ घाव 7 से.मी x 2 से.मी. x मांस पेशी तक गहरा। बायीं अग्र भुजा पर पीछे की तरफ कलाई के जाेड से 8 से.मी ऊपर था।
चोट सं 2- 5 लाईन दार खरोंच 11 x 4 से.मी के क्षेत्रफल में बायी अग्र भुजा में पीछे की तरफ चोट सं. 1 से ठीक नीचे थी।
चोट सं 3- दो ऊपरी खरोंच 6 x 2 से.मी लम्बाई दाहिनी भुजा पर पीछे की तरफ दाहिनी अग्र भुजा पर पीछे की तरफ कलाई के जोड से 3 से.मी ऊपर थी।
Injuries of Tabassum चोट सं० 1- खरोंच 2 से.मी x 2 से.मी चेहरे में दायी तरफ दाहिने कान के (sic) हिस्से से आगे की तरफ जमा हुआ खून मौजूद था।
चोट सं० 2- 7 खरोंचे 7 से.मी x 4 से.मी क्षेत्रफल में बायीं अग्र भुजा के आगे की तरफ निचले हिस्से में थी।
Injuries of Fatima Parveen चोट सं० 1- लाईनदार खरोंच। माथे पर 2.5 से.मी दाहिनी तरफ थी। दाहिनी आई ब्रो से ठीक ऊपर थी।
चोट सं० 2- लाईनदार खरोंच (sic) से.मी x . 2 से.मी बाये हाथ में पीछे की तरफ थी।
चोट सं० 3- कई लाईनदार खरोंच संख्या में 6 सीने के ऊपरी हिस्से में आगे की तरफ थी।
10. The original register maintained in the CHC Bahedi has also been produced by the doctor to prove the injuries caused to three sisters.
11. PW-1 in his deposition has supported the prosecution case by stating that at about 08.45 PM on 17.01.2009 he was going towards Majar of Maula Shahmiyan when the accused Tahir kicked him while going on motorcycle and on his resisting it the accused hurled filthy abuses and also threatened him. On his return when he reached Hauli Chauraha he saw that accused Tahir together with his brothers Iqbal, Tayyab and cousin Wahid were waiting with arms. Tahir was carrying a pistol, Iqbal had a sword, Wahid was armed with kanta and Tayyab was armed with lathi. Accused Iqbal exhorted to kill the informant and he was assaulted by pistol grip (but) and lathi. On raising an alarm by him, his brothers Minzar Ahamd and Mohd. Ashraf came and started saving him on which the accused persons took them inside their house and while accused Tahir tried to kill Minzar, by firing pistol, but the bullet missed whereafter Minzar and Ashraf were assaulted by sword and kanta and they got injured. Presuming them to have died the accused persons left them in the adjoining lane. He has stated that when the accused persons were taking his two brothers inside their house and assaulting them the informant (PW-1) saw the incident from the courtyard in the tube-light lighted on an inverter. The incident was also seen by Parvej and Ikhtyar Ahmad but they have not been produced in evidence. It is also stated that he took his brother Minzar and Ashraf to the police station and dictated the written report to his brother Tahir, which is exhibited Ka.1. A constable thereafter was sent alongwith deceased Minzar and he was examined in the government hospital Bahedi, whereafter Minzar was referred to district hospital at Bareilly.
In the cross examination questions have been put to PW-1 with regard to contest of election of Nagar Palika Bahedi. He has stated that accused Iqbal has attended marriage of deceased Minzar. The witness at a later stage in the cross-examination has clarified that his relations with accused Iqbal were good and they used to wish each other. The house of PW-1 was at a distance of about 300-350 paces from the Hauli Chauraha, whereas the house of accused from Hauli Chauraha was about 200 paces. PW-1 has also verified the written report on the basis of which FIR got registered. He has, however, stated that details about possessing of arms by accused i.e. Iqbal having sword, Wahid Ahmad having kanta and Tayyab having lathi was disclosed to the Investigating Officer and no reasons can be given for its non-narration in the statement under Section 161 Cr.P.C. He has further admitted that in the written report he has not mentioned the injuries caused to him. He has also admitted that he has not disclosed that Ashraf was taken with him to police station. PW-1 has categorically stated that prior to the incident in which he was kicked there was no enmity or bad breath between the accused and PW-1. He has stated that at the crossing he was assaulted by Tahir with pistol butt and Tayyab with lathi. The second assault by pistol butt was on his lips. He was held by two persons while other two accused were assaulting him and he had cut injury. On his raising alarm his brothers Minzar and Ashraf came from the Rice Mill and saved PW-1. Ashraf was also assaulted with lathi by Tayyab. None of the shop keepers came to their rescue. The witness however was not able to identify as to in front of whose shop the incident occurred. The accused took Ashraf and Minzar to their house by holding their colour and while PW-1 kept shouting while following them, yet, none came to save them. PW-1 was 10-15 paces behind the accused who were taking Ashraf and Minzar. He has denied any knowledge about the family members living in their house. The two brothers of PW-1 were taken through the courtyard to a small room where they were assaulted. Accused also fired at Minzar and Ashraf and assaulted them with sword and kanta. PW-1 claims to have seen the incident from a distance near the courtyard. The accused later brought Minzar and Ashraf on shoulder support when PW-1 rushed towards the north. There was no street light and when PW-1 returned he found his brothers Minzar and Ashraf wounded and bleeding. He took them on a rickshaw to the police station. PW-1 took Minzar inside the police station who was sent for medical examination while Ashraf stayed outside the police station. PW-1 has stated that he had not shown his or Ashraf's injury to the police personnel. He has denied the suggestion that there were no injuries caused to PW-1 and Ashraf and that is why it was not shown to the police. He has further denied the defence version that his brother Minzar with bad intent entered the house of accused finding Shabana to be alone and caused injuries to Shabana and Fatima or that he got hurt by the knife blow of Fatima.
12. Mohd. Ashraf has been produced as PW-2, who has stated that around 09.00 PM on 17.01.2009 he alongwith Minzar was returning home from Rice Mill. When he reached near Hauli Chauraha crossing he heard the screams of brother Arif. He alongwith Minzar rushed there and found that accused Iqbal, Tayyab and Wahid were assaulting his brother with lathi and revolver butt. PW-2 tried to save his brother Arif. He and Minzar were dragged to the house of accused with an intent to kill them. Accused Tahir fired at PW-2 and Minzar but the bullet fortunately missed. Tayyab assaulted PW-2 with lathi while Wahid hit mhim by kanta on his head. Iqbal assaulted Minzar with sword and left him and Minzar outside their house in the lane. At the time of incident tube-light was lit with inverter in which the incident has been seen by PW-2 as also by Parvej and Iftakhar. He has further stated that he alongwith Arif took Minzar to police station whereafter Minzar was sent to Government Hospital, Bahedi and from there he was referred to District Hospital, Bareilly where he was declared dead. PW-2 also got himself medically examined.
In the cross-examination PW-2 has stated that he left his house for Rice Mill at about 08.30 PM. It is also stated that version of his return from the Rice Mill has been disclosed for the first time in court. He had denied the suggestion that Rice Mill was lying closed from before the incident. About the incident he has explained that from Hauli Chauraha the accused firstly took them (PW-2 and Minzar) in the courtyard of their house and then in the room. Four accused alongwith PW-2 and Minzar were in the room when the accused started assaulting them. He has stated that Tahir fired when they were about to enter the room and was at a distance of 5-6 paces and that when the accused left them in the lane after assaulting them none was present and Arif reached later. Minzar had fallen on the road when he was left by the accused. He has also denied the suggestion that after three sisters of accused caused injury to Minzar thereafter injuries were got fabricated by PW-1 and PW-2. He also denied the suggestion that Minzar was a drinker or characterless person and entered the house with bad intent towards Shabana finding her alone and sustained injuries when Fatima acted in self-defence.
13. Dr. Ram Prasad of C.H.C., Bahedi has appeared as PW-3 and verifed the injuries caused to Minzar and stated that such injuries could have caused by sharp weapon like sword and was sufficient to cause death. He later stated that in comparison to sword the injuries of Minzar could have been caused more probably by kitchen knife. He has also verified the injuries of Shabana, Tabassum and Fatima. The injuries could have been caused at about 09.00 PM in scuffle. The injuries of three sisters were simple and he could not say whether they were self inflicted or were caused by someone else.
14. Dr. Jai Prakash, C.H.C., Bahedi has appeared as PW-4, who has verified the injuries of Ashraf (PW-2) and Arif (PW-2). The injuries were simple and superficial and has denied that injuries could be self inflicted.
15. Dr. K. K. Mishra, Autopsy Surgeon has appeared as PW-5. In his opinion the cause of death of Minzar was ante-mortem injuries which could be caused by sharp weapon like sword.
16. The other witnesses are the formal witnesses and would be referred at appropriate stage, including PW-8 who has stated that during investigation he came to know that some of the ladies in the house of accused had also sustained injuries in the incident. He further denied that in the statement under section 161 Cr.P.C. Ashraf had not disclosed the weapon available with the accused or that Wahid assaulted him with kanta or that Iqbal assaulted Minzar with sword or Tayyab assaulted him by lathi.
17. On the basis of evidence led by the prosecution the incriminating materials were put to accused, who denied the charges and stated that they have been falsely implicated due to enmity. Accused Abdul Wahid stated that he too has been implicated as none to do pairvi of his cousin, who too have been falsely implicated. Written statement under section 313 Cr.P.C. has also been given by accused stating that around 09.00 PM on 17.01.2009 the accused were not at home when Minzar with bad intent entered their house and grabbed their sister Shabana and on her objecting assaulted her with knife and when their sisters Tabassum and Fatima tried to intervene they too were caused injuries whereafter Fatima brought knife from kitchen and attacked Minzar and blue knife which hit Minzar after which Minzar fled. When the sisters came to lodge report they were asked to get themselves medically examined and that they were in fact medically examined on the same night and when they returned to lodge the report, yet, their report was not registered and a false case was lodged against accused for murdering Minzar. Complaint in that regard has been sent to police officers on 19.01.2009. The statement under section 313 Cr.P.C. is common on behalf of other three brothers namely Iqbal, Tayyab and Tahir.
18. On behalf of the accused DW-1 Fatima Parveen has also been produced, who has stated that Tahir, Iqbal and Tayyab are real brothers while Wahid his cousin. She knew the deceased Minzar who had a bad character. Shabana is her sister who was unmarried then and is now married. She has stated that on 17.01.2009 around 8.45-9.00 PM she alongwith her sister Tabassum and Shabana were in the house alongwith their father, who was in coma. She and Tabassum were in the room of father and Shabana in the room next to road. The brothers of DW-1 had gone to Ajmer Sarif to offer prayers for welfare of her father who died 15-20 days after the incident. She has also stated that Minzar entered the house and grabbed Shabana and on her objecting Minzar caused a knife injury on her hand. DW-1 alongwith Tabassum tried to save her sister Shabana from Minzar, to which Minzar caused injuries to her and Tabassum also. In defence the DW-1 claims to have brought out a knife from kitchen and attacked Minzar who got hit and left thereafter. She could not say as to where injury was caused to Minzar. She claims to have gone wiith her cousin Babblu @ Iftakhar for lodging report but they were asked to get themselves medically examined but even thereafter their report was not registered. She has verified the complaint sent to police personnel, which is duly exhibited. Letters were sent by UPC and the receipt is also exhibited. In the cross examination DW-1 stated that when Minzar came to her house there was no light in the lane but inverter light was available. Minzar had come alone. She had elaborately explained as to how she saw Minzar holding knife when she entered in the room of Shabana on her raising alarm. The sisters were shouting but Minzar did not retreat and they got injured by knife. She claimed that knife by which she attacked Minzar was thrown in the room. She further admitted that the police was not informed about causing of knife injury nor the knife was taken to the police station. She claims that three brothers of DW-1 had returned on 18.01.2009 and she heard that they were arrested by the police.
19. The trial court on the basis of evidence led by the prosecution has found the charges levelled against the accused appellants to be proved beyond reasonable doubt and consequently convicted them vide impugned judgement and order.
20. Sri Rajiv Lochan Shukla, learned counsel for the appellants submits that the prosecution has not been able to explain the genesis of the incident nor the commissioning of offence in the manner suggested by its witnesses. He contends that the entire prosecution case lacks credibility and the two witnesses of fact are not reliable. He also submits that the deposition of prosecution witnesses is untruthful. It is also argued that genesis of incident lies in mystery and the prosecution has otherwise suppressed the injuries on the accused. He submits that the injuries on the accused clearly probablize the plea taken by the defence and in such circumstances the prosecution has failed to establish the guilt of accused appellant beyond reasonable doubt. In support of his submission learned counsel has placed reliance upon judgments of the Supreme Court in Suchand Pal Vs. Phani Pal, 2003 (11) SCC 527; Vijay Narain Mishra Vs. State of U.P., 2013 0 Supreme (All) 1913; Balwan Singh Vs. State of Haryana, 2005 3 Supreme (SC) 740; Ganesh Datt Vs. State of Uttarakhand, 2014 0 Supreme (SC) 457, and judgment of the High Court in Sanjay Sharma Vs. State of U.P., passed in Criminal Appeal No.3667 of 2018, decided on 24.12.2021.
21. Sri Manish Tiwari, learned Senior Counsel assisted by Sri Atharva Dixit for the informant, on the other hand, that the prosecution witnesses have truthfully narrated the incident and the conviction of the court below relying upon the prosecution witnesses is valid. He states that presence of PW-1 and PW-2 at the place of occurrence is natural and probable and finds corroboration from the medical evidence available on record. He submits that the cross-version pleaded by the defence is not supported by medical evidence and the defence story is wholly improbable. He also argues that as the defence has come up with a cross-case the onus would be upon it to prove its case beyond all reasonable doubts or at least to shake the prosecution story leaving it no legs to stand which the defence has failed to do. He also submits that the solitary blow on the deceased could not have been caused by kitchen knife, as is sought to be urged on behalf of defence. He argues that the injuries on the deceased had clearly been caused by a heavy cutting weapon, which in the present case happens to be a sword. He also submits that the defence has not explained as to why it did not pursue its cross-case and that neither dispatch of letter by UPC is reliable nor the conduct of defence in not filing a letter application under Section 156(3) Cr.P.C. is credible. He further submits that the injuries on the defence were clearly self-inflicted and although the cross-version is not substantiated but taking of such stand by the defence clearly proves that the incident is admitted to the defence as well. Learned Senior Counsel has placed reliance upon judgment of the Madhya Pradesh Court in Sukhendra Singh Vs. State of Madhya Pradesh, 2017 SCC OnLine MP 1138 and judgments of the Supreme Court in Jagdish Narain and another Vs. State of U.P., (1996) 8 SCC 199; Shivanna Vs. State by Hunsur Town Police, (2010) 15 SCC 91; Tori Singh and another Vs. State of Uttar Pradesh, (1962) 3 SCR 580; Ganga Singh Vs. State of Madhya Pradesh, (2013) 7 SCC 278; Jai Prakash Vs. State of Uttar Pradesh and others, (2020) 17 SCC 632; Hema Vs. State through Inspector of Police, Madras, (2013) 10 SCC 192 and Ram Bali Vs. State of U.P., (2004) 10 SCC 598. He further submits that in the case of a defective investigation the court has to be circumspect in evaluating the evidence. He further points out that the doctor has clearly stated that the injuries on the prosecution witnesses were not self-inflicted and none of the accused in their statement under Section 313 Cr.P.C. have been taken the plea that they were at Ajmer.
22. It is in the light of the above conditions and the evidence placed on record that this Court is required to consider as to whether the prosecution has succeeded in proving the guilt of the accused appellant beyond reasonable doubt?
Analysis on Facts:
23. The prosecution story emanates on the report of PW-1, who claims that while going to offer prayer at Majar of Maula Shah Miyan on 17.1.2009, at about 08.45 PM, he was kicked by accused Tahir. PW-1 objected to it on which the accused allegedly hurled filthy abuses and threatened him. This part of the prosecution story, which provides the genesis of occurrence is based upon the sole testimony of PW-1. The reliability of the testimony of PW-1 is therefore required to be examined, first.
24. PW-1 in his testimony has supported the prosecution case about the genesis of incident and has been elaborately cross-examined. In his cross-examination PW-1 has clearly stated that he had no enmity with the accused Tahir and that their relations were cordial. That being so, the conduct of accused Tahir in kicking PW-1, for no obvious reason, seems doubtful. Accused Tahir otherwise has no criminal history and is not known to be a person of cantankerous or quarrelsome nature. The genesis of occurrence, as per the prosecution, therefore, does not seem probable and remains a grey area.
25. PW-1 then stated that he went to Majar; offered prayers and returned soon thereafter to find that the four accused armed with pistol, sword, kanta and lathi were waiting at Hauli Chauraha and on seeing him Iqbal exhorted that kill the informant. This part of the prosecution story sounds improbable. It is difficult to understand as to why the accused party would come armed with an intent to kill PW-1 when there exists no reason for it. Mere kicking or consequential altercation between PW-1 and Tahir also would not create sufficient reason or provocation for such an act on part of the accused.
26. It is thereafter that PW-1 was assaulted with pistol grip and lathi and on hearing his cries the informant's brother Minzar and Ashraf came and saved him. This part of the prosecution version is also based substantially upon the statement of PW-1. The only material available on record for the purposes of corroboration of such version of PW-1 is the injury report of PW-1 (Ex.Ka-4). The injuries on PW-1 Arif consists of abrasion 1 cm x 0.5 cm on mid front of upper lip and; (2) Abrasion 3cm x 2cm on anterior surface of neck. In the opinion of the doctor both the injuries were caused by rubbing of body part against rough surface of hard blunt object. Both the injuries were simple in nature. The injuries of Arif have not been examined on the date of incident, rather his examination was done on the next morning i.e. 18.1.2009 at 10.55 am.
27. Even if the issue with regard to timing of the medical examination is for the time being kept aside, yet the two injuries which are in the nature of rubbing of blunt object cannot be caused by pistol butt or by lathi. The testimony of PW-1 that he was hit by a butt of revolver or was hit by a lathi does not therefore find corroboration from the injury sustained by PW-1.
28. The prosecution case then is that Ashraf and Minzar hearing the screams of PW-1 came on the spot while returning from the rice mill. The prosecution case further is that two brothers namely Mohd. Ashraf and Minzar saved PW-1, whereafter the two brothers Mohd. Ashraf and Minzar were taken by the accused party to their house situated at a distance of about 200 paces. This part of the prosecution story requires a careful analysis.
29. As per the prosecution case the fight was between PW-1 and the accused Tahir. However, instead of PW-1 being taken by the accused party it was the other two brothers, with whom there was no enmity who were taken by the accused party. PW-1 was left behind. No possible reason is disclosed for such unusual act. There is no material on record to even remotely suggest that there existed any enmity/fight between Minzar and Mohd. Ashraf with the accused persons. There is thus no possible explanation on record as to why the accused persons choose to take Minzar and Mohd. Ashraf with them to their house leaving behind PW-1, when the discord was with PW-1.
30. The statement of PW-1 and PW-2 are to the effect that the accused took Minzar and Mohd. Ashraf with them to their house. This part of the prosecution version remains wholly unexplained. The statement of PW-1 and PW-2 goes contrary to the charge framed against the accused as per which all three brothers were taken by accused party to their house.
31. Once the discord/fight was with PW-1, the natural conduct would have been for the accused to take PW-1, if they wanted to cause any harm to him. However, the prosecution version is that PW-1 was left and the two other brothers Minzar and Ashraf, who had come to save PW-1, were rather taken by the accused to their house. This version of prosecution is also improbable.
32. It is then the prosecution case that the accused held Ashraf and Minzar and took them to their house at a distance of about 200 paces. It is admitted that the incident occurred at Hauli Chauraha and there were shops around which were open. As per the PW-1 none came forward to save them. As per the prosecution case Minzar, Ashraf and Mohd Arif were on one side while four accused were on the other. It sounds a little unusual that three able bodied men would be taken with an intent to cause harm without any resistance or scuffle on their part through an area inhabited by others. Even if none directly intervened as accused were armed yet the natural conduct would be that someone in the market would raise alarm or inform the police.
33. Even if the accused were armed yet some sort of resistance was expected to be made by Minzar, Ashraf and Arif which is totally missing. This conduct of three able bodied young men in blindly following the accused to their house cannot be termed natural.
34. The prosecution version that PW-1 was following the accused without any protest while his brothers were taken by the accused party also seems unnatural.
35. PW-1 then claims that he saw from a distance the incident in which his two brothers were taken through the courtyard inside a small room. There is no possible explanation as to why PW-1 was left out while the other two brothers were taken inside the house and then assaulted. PW-1 and PW-2 moreover stated that when they entered the room accused Tahir fired at Ashraf and Minzar. There is no empty cartridge found from the spot. If the bullet had missed the two brothers, it would have hit some other wall etc. but no signs/evidence of bullet being fired in the room is available. None of the two brothers have otherwise sustained any bullet injuries.
36. In the event the accused wanted to kill either or both the brothers they could have done so easily by firing upon them particularly when they were armed with firearms but admittedly they have not caused any bullet injuries. There is no reason to take the two brothers inside the house and then assault one of them so as to kill him. The room in which PW-2 and Minzar have been allegedly assaulted is a small room of 8 x 10 feet in which the four accused alongwith Minzar and Ashraf were present. The room otherwise had a fridge, a sofa and bed as per the site plan. No specific reason is thus disclosed for taking the two brothers inside the house. Such conduct of accused otherwise sounds unlikely in a muslim family consisting of aged parents and unmarried sisters, where privacy of ladies is observed.
37. According to the prosecution the deceased Minzar was assaulted with sword by Iqbal and the incident has been seen by PW-1. PW-1, however, admits that he kept seeing the incident without raising any alarm or resisting such act. This conduct is also unusual and creates a doubt on the prosecution story.
38. As per prosecution case Minzar and Ashraf after being assaulted by the accused were brought to the adjoining lane by offering support and were left there. Minzar was bleeding while he was lying in the lane but no blood has been recovered from the spot. This is clearly admitted by the Investigating Officer PW-10.
39. A suggestion has been given to PW-1 that deceased Minzar was a drunkard and characterless person who entered the house of accused seen Shabana alone, with a bad intent, and on being objected he injured the three sisters of accused namely Shabana, Tabassum and Fatima and Fatima in defence caused injury to Minzar whereafter a false report after deliberation has been lodged.
40. In the facts of the case we find that the genesis of the offence explained by the prosecution through its witness PW-1 is thus not convincing and the manner in which events are stated to have occurred leaves many improbables.
41. PW-2 has also come up with similar testimony, as is the testimony of PW-1, and for the reasons narrated above we do not find him reliable, either.
42. Although, we have doubted the genesis of crime as also the manner in which the incident is said to have occurred, as per the prosecution, yet before arriving at a conclusion in the matter it would be appropriate to examine the defence version about the manner in which the incident occurred.
43. DW-1 in her statement has come up with a entirely different version of the incident. She has stated that it was the deceased Minzar who entered the accuseds' house seeing her sister Shabana alone and tried to grab her with an intent to outrage her modesty. The three accused brothers were stated to have gone to Ajmer to offer prayers for their ailing father. A scuffle followed between the victim Shabana and Minzar and soon thereafter the other two sisters namely DW-1 Fatima and Tabassum also came to the rescue of Shabana. The three sisters were injured by Minzar who caused knife blows to them. DW-1 then states that she took out a kitchen knife and caused a blow to Minzar from behind while he was attempting to grab Shabana after which he fled. She further states that information of the incident was given to police who asked them to get themselves medically examined. Such medical examination took place on the date of incident at about 11 pm. The injuries have been proved by Dr. Ram Prasad, Medical Officer, C.H.C. Bahedi (PW-3) and the original register has also been produced during trial in support of the injuries. Since the police did not register the report of DW-1 a complaint was allegedly made to higher police authorities on 19.1.2009.
44. As per the defence it was the deceased Minzar who was the aggressor and entered their house with evil intent and sustained injury in the scuffle with the three sisters who also got injured.
45. Sri Manish Tiwari, learned Senior Advocate argued that the defence was under an obligation to establish its case beyond reasonable doubt, which it failed to do since the injuries on the three sisters were simple in nature and could have been self-inflicted as per the doctor and the alleged dispatch of complaint by UPC is not reliable. He further submits that adverse inference must be drawn against the defence for such reason and since the incident has been witnessed by PW-1 and PW-2, who are injured witnesses, as such the appeals merit rejection.
46. Law on the standard of proof required on part of the defence is by now well settled. It is not the obligation of the defence to prove its version beyond reasonable doubt, rather, the limited requirement on its part is to probablise it. It is the prosecution case which is on trial and not the defence.
47. Although the prosecution case is that the deceased Minzar was assaulted by a sword but no recovery of sword has been made from any of the accused. The injuries of Minzar have been examined by PW-3, who has opined that the injuries could have been caused by a sharp edged weapon and was fresh injury. He has stated that the injury could have been caused by a sword. This witness in cross-examination has, however, stated that the injury could have been caused to Minzar more by kitchen knife than by a sword. Learned counsel for the parties have laid much emphasis on the nature of injury caused to Minzar and the weapon by which it could have been caused. The postmortem report also shows that 7th rib of left side of deceased was cut down. The injury to the deceased was on back lumbar and apparently was caused from behind.
48. Although on behalf of prosecution and the informant, it is suggested that the ribs were also fractured but such contention does not find support from the medical evidence on record. The ribs are not shown to have been fractured, rather the 7th rib of left side alone has been cut down. This is clearly possible if the assault on deceased was by a sharp edged weapon from behind. Such weapon whether is a knife or a sword would depend upon the physical shape and size of the weapon. However, neither any sword has been produced during the course of trial nor even knife has been placed before the court below in evidence. The Court is, therefore, not in a position to comment on the weapon of assault, which could have caused the injury itself.
49. The record merely shows that a bloodstained knife has been recovered on the pointing out of the accused Tahir from within his house. The length of the knife was about 08 fingers and it had carvings on its handle having the size of 10 fingers. There was a brass clip for opening and closing the knife. The argument of Sri Rajiv Lochan Shukla, Advocate is that description of the recovered knife resembles more like a dagger rather than a kitchen knife. His further argument that this was a muslim household and generally knife in such kitchen would be used for cutting meat and other such hard objects and therefore the possibility of such knife causing the injury to the deceased cannot be ruled out. We may clarify that this discussion nevertheless remains hypothetical as no weapon of assault has been produced by the prosecution.
50. It is in the above context that we are called upon to examine the question as to whether the defence has been able to probablize its version contained in statement of DW-1 or not?
51. The records clearly reveal that the accused brothers have two real sisters and a cousin, who were living in the house in which the incident allegedly occurred. The prosecution story, however, does not refer to their existence in the house nor the witnesses of fact i.e. PW-1 and PW-2 have referred to them. PW-1 rather states that he is not aware about the sisters of the accused brothers.
52. The prosecution story that the two brothers Ashraf and Minzar were taken inside a muslim household, in a small room, just to assault them also seems unlikely when there are young girls living in the same house. The normal conduct would be that no male members would be taken inside the house when it is inhabited by young unmarried girls in a muslim family where privacy of ladies is of importance. The prosecution story, therefore, does not sound convincing.
53. The injuries on three sisters Km. Fatima, Shabana and Tabassum as also the statement of Investigating Officer that he had heard that the ladies in the accused house also sustained injuries coupled with fact that they were medically examined on the same night at about 11.00 pm and their injuries have been proved by PW-3 clearly supports the defence case. The statement of DW-1 that she caused a knife blow from behind on Minzar while he was trying to grab Shabana also finds corroboration from the injuries shown on Minzar i.e. in the back lumbar area. We are, therefore, of the view that the defence version has been successfully probalised.
54. The prosecution has also failed to explain the injuries suffered by the three sisters of accused appellants. The only argument advanced is that these injuries could be self inflicted in the opinion of the doctor.
55. The argument about injuries caused to three sisters being self inflicted does not appeal to reason inasmuch as the injuries were actually examined on the very night of incident at around 11 pm. This is within two hours of the incident itself. PW-3 has verified the injuries and has also produced the original register to prove it. It seems highly unlikely that within such a short period the defence would be advised to create such evidence and get it examined at the local C.H.C. The Investigating Officer has also admitted that he heard during investigation that ladies in the accused family had sustained some injuries in the incident. We are, therefore, inclined to accept the argument that injuries were sustained by the three sisters in the incident which have not been explained by the prosecution.
56. Rather, it is the injuries of PW-1 and PW-2 which appears questionable for the reason that it was not examined on the date of incident i.e. 17.1.2009 but was examined on 18.1.2009. PW-1 and PW-2 although had gone to the police station on 17.1.2009 but did not inform the police about their injuries. The fact that injuries of Minzar were examined on 17.1.2009 itself yet injuries of Ashraf were not noticed or examined although he was present with Minzar at the police station also raises a doubt on the injuries on Ashraf. Similarly the act of Arif not reporting his injuries to police on the night of incident and getting himself medically examined the next morning also raises a doubt about the genuineness of their injuries.
57. On behalf of the appellants reliance is placed upon a judgement of Supreme Court in Balwan Singh vs. State of Haryana, (2005) 11 SCC 245, wherein the Court considered the consequence of failure of prosecution to explain the injuries suffered by the defence in the same incident and the defence had probablised its case. Relevant part of para 12 of the judgement is extracted hereinafter:-
"12. ...... From the facts of the case it becomes apparent that the prosecution has not disclosed the true genesis of the occurrence. The motive suggested by the prosecution does not appeal to us, because if there was an altercation between PW 5 and A-2 in Village Juan when a request was made by PW 5 to A-1 to take the groom on his motorcycle to the chaupal, there appears to be no reason why the accused would have assaulted his father after returning to the village, particularly, when PW 5 was not with his father. The motive as alleged by the prosecution does not appeal to us because it does not appear to be natural that for the conduct of his son at a different place, the appellant would return to the village and kill his father. Having regard to the place of occurrence as found by the High Court, the defence of the accused is probabilised. It is well settled that while the prosecution has to prove its case beyond reasonable doubt, the defence has only to produce evidence or show material on record which probabilises its defence."
58. The issue has recently been examined by the Supreme Court in Ramanand alias Nandlal Bharti vs. State of U.P., (2022) SCC Online SC 1396, wherein the Court has held as under in paragraph nos.113 to 116:-
"113. In Mohar Rai and Bharath Rai v. State of Bihar, AIR 1968 SC 1281, it was observed:
"6. .....In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants."
[Emphasis supplied]
114. In another important case Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394, after referring to the ratio laid down in Mohar Rai (supra), this Court observed:
"12. .....where the prosecution fails to explain the injuries on the accused, two results follow : (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants....."
115. It was further observed that:
"12. .....in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case....."
116. In Mohar Rai (supra) it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true, or at any rate, not wholly true. Likewise in Lakshmi Singh (supra) it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood, the mere fact that the injuries are not explained by the prosecution cannot itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. These aspects were highlighted by this Court in Vijay Singh v. State of U.P., 1990 Cri LJ 1510."
59. One of the circumstances cited on behalf of the appellants regarding improbability of the prosecution case was with reference to the site plan. Judgements have thus been relied upon on behalf of the informant on the evidentiary value of the site plan. However, as we are persuaded to decide the appeal on aspects other than site plan, therefore, the judgements in that regard are not being referred to. Similarly, judgements cited by the informant on the impact of embellishments on the investigation also need not be referred to as those aspects do not form the basis of our consideration in the present appeals.
60. The trial court has proceeded to accept the prosecution case relying upon the testimony of PW-1 and PW-2 without subjecting it to careful scrutiny. The failure of prosecution to explain the genesis and origin of the occurrence has the effect of prosecution failing to bring on record the correct version of event. The improbability of prosecution version regarding the genesis, events and the manner in which the events unfolded creates a doubt on the prosecution case which has not been examined by the court below in correct perspective. The defence had clearly probablised its version but the same has been overlooked. The finding of the court below that prosecution has established its case beyond reasonable doubt, therefore, cannot be sustained. The accused appellants are clearly entitled to benefit of doubt in the matter.
61. For the reasons and discussions held above, the present appeals succeed and are allowed. The judgment and order of conviction and sentence dated 27.11.2013 in Session Trial No.345 of 2009 is set aside. The appellants shall be set free if they are in jail and in the event they are on bail, their bail bonds shall stand discharged, subject to compliance of Section 437-A of the Criminal Procedure Code, provided they are not wanted in any other case.
Order Date :- 22.11.2022 Ashok Kr./Anil/Ranjeet (Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)