Patna High Court
Afzal Hussain vs State Of Bihar on 5 December, 2011
Author: Dinesh Kumar Singh
Bench: Dharnidhar Jha, Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.104 of 2003
Against the judgment of conviction dated 25th February
2003 and the order of sentence dated 26th February 2003
passed in Sessions Trial No. 225 of 1998/277 of 2002 by
Shri Bijendra Kumar Singh, Additional Sessions Judge,
FTC-No.IV, Sitamarhi.
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Afzal Hussain aged about 42 years S/o Late Wazahat
Hussain, R/o Village Bavdepur, (Mahanth Sah Chauk),
Main Road, P.S. & Distt. Sitamarhi.............................Appellant.
Versus
The State of Bihar........................................................................Respondent.
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For the Appellant: Mr. S.N.P. Sinha, Sr. Advocate.
Mr. Jitendra Narain Sinha, Advocate.
Ms. Rashmi Sinha, Advocate.
For the State : Ms. Sashi Bala Verma, APP.
With
Criminal Appeal (DB) No. 105 of 2003
1. Rana Randhir Singh aged about 44 years, S/o Late
Ram Narayan Singh. R/o Village Raghunathpuri,
Sitamarhi, P.S. Sitamarhi, Distt. Sitamarhi.
2. Mangal Singh @ Brij Mangal Singh, aged about 40
years, S/o Ramanand Singh, R/o Village Nrakatia,
P.S. Majorganj, Distt. Sitamarhi. ...........Appellants.
Versus
The State of Bihar ... ..............................................................Respondent.
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For the Appellants Mr. Kanhaiya Prasad Singh, Sr. Advocate.
Mr. Naresh Dikshit, Advocate.
Mr. Ranjit Kumar Pandey, Advocate.
Mr. Atal Bihari, Advocate.
For the State : Ms. Sashi Bala Verma, APP.
with
Criminal Appeal (DB) No. 110 of 2003
2
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Sharafat Hussain, aged about 38 years, S/o Late Wazahat
Hussain, R/o Village Bavdepur (Mahanth Sah Chauk), Main
Road, P.S. and Distt. Sitamarhi........................Appellant.
Versus
The State of Bihar........................................................................Respondent.
----------
For the Appellant : Mr. S.N.P. Sinha, Sr. Advocate.
Mr. Jitendra Narain Sinha,
Advocate.
Ms. Rashmi Sinha, Advocate.
For the State : Ms. Sashi Bala Verma, APP.
with
Criminal Appeal (DB) No. 134 of 2003
==========================================================
Asgar Hussain aged about 40 years, S/o Late Wazahat
Hussain, R/o Village Bhabdepur, Main Road, Sitamarhi,
P.S. & Distt. Sitamarhi...............................................................Appellant.
Versus
The State of Bihar.......................................................................Respondent.
For the Appellant : Mr. S.N.P. Sinha, Sr. Advocate.
Mr. Jitendra Narain Sinha, Advocate
Ms. Rashmi Sinha, Advocate.
For the State : Ms. Sashi Bala Verma, APP.
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PRESENT
THE HON'BLE SRI JUSTICE DHARNIDHAR JHA
THE HON'BLE SRI JUSTICE DINESH KUMAR SINGH
D.K.Singh,J. Through the aforesaid four appeals,
five appellants have challenged the judgment
and order of conviction and sentence dated
25.2.2003and 26.2.2003, respectively, 3 passed by learned Additional Sessions Judge, FTC-IV, Sitamarhi, in Sessions Trial No. 225 of 1998/277 of 2002 whereby and whereunder all the five appellants have been held guilty for the charge under sections 302/149 of the IPC and sentenced to undergo imprisonment for life.
2. (i) Appellant Asgar Hussain has further been convicted under section 302 of the IPC and sentenced to undergo imprisonment for life. Rana Randhir Singh has further been convicted under sections 302/109 of the IPC and sentenced to undergo imprisonment for life.
(ii) Sharafat Hussain and Asgar Hussain have also been convicted under section 27 of the Arms Act and sentenced to undergo R.I. for 3 years.
(iii) Sharafat Hussain has further been convicted under section 307 of the IPC and sentenced to undergo R.I. for 5 years.
All the sentences, of the respective convicts, were directed to run concurrently.
Since all the four appeals arise out of one judgment passed in Sessions Trial No. 225 of 1998/277 of 2002, hence all the appeals were heard together and are being 4 disposed of by this common judgment.
3. The prosecution case emanates from the fardbeyan of Md. Tahsim Khan (P.W. 6) recorded by S.I., S.S. Rajhans at Emergency Ward of Sadar Hospital, Sitamarhi at 8 p.m. on 30.12.1997 to the effect that the informant's brother Md. Tanveer Khan @ Pappu (deceased) used to run a shoe store, namely, M/s Grand Shoe Store, at 15 yards west to Gandhi Chowk.
On 30.12.1997 at 7.15 p.m. the informant was with his younger brother Md. Tanveer Khan at his shop. In the meantime, Afazal Hussain (42), Asagar Hussain (38), Sharafat Hussain (37), Rana Randhir Singh (44), Mangal Singh (40) came to the shop of the informant and challenged in abusive language that the shop has not been vacated as yet and ordered to fire on the informant's side in the following words:
"esjs nqdku ij ,dk,d vk, vkSj cksys dh lkyk vHkh rd nqdku ugha [kkyh fd;k gS! bu yksxksa dks xksyh ekj nks!"
On this, Asagar Hussain fired at Pappu from the place adjacent to the counter Screen glass, which hit on his right temple region after piercing through the counter 5 screen glass as a result of which Pappu fell down. Sharafat Hussain also fired from pistol but it mis-fired and on alarm being raised by the informant (P.W. 6), the accused persons fled away towards the west. Informant with the help of other people, immediately took the victim on a rickshaw to the hospital where during treatment the victim died.
4. The motive for the occurrence is alleged to be the dispute with Afazal Hussain, Sharafat Hussain and Asagar Hussain for vacating the shop, whereas, the allegation against Rana Randhir Singh and Mangal Singh is that they used to actively assist the three other convicts.
On the basis of the aforesaid fardbeyan (Ext. 4), Sitamarhi P.S. Case No. 348 of 1997 was registered under section 302/34 of the IPC and 27 of the Arms Act (Ext. 5) on 30.12.1997 at 9 p.m. Police submitted charge sheet against the five appellants and thereafter, on cognizance being taken, the case was committed to the Court of Sessions where the charges were framed on 20.2.1999 under:-
i) Section 302 IPC against 6 Asagar Hussain for causing death of Md. Tanveer Khan @ Pappu. ii) Section 307 IPC against Sharafat Hussain for attempting to commit murder of the informant (P.W. 6) by means of pistol, which mis- fired. iii) Section 27(1) Arms Act against Asagar Hussain and Sharafat Hussain for using pistol.
iv) Section 302 read with Section 109 IPC against Rana Randhir Singh and Mangal Singh for abetting commission of the offence.
v) Section 302 IPC read with Section 149 IPC against Afazal Hussain, Sharafat Hussain, Mangal Singh, Rana Randhir Singh and Asagar
Hussain for committing murder of Tanveer Khan with a common object.
5. The prosecution examined 13 witnesses 7 of which only 7 figure as charge sheet witnesses:
P.W. 1 - Helal Akhtar.
P.W. 2 - Sayad Tanveer Hussain.
P.W. 4 - Md. Nooruddin.
P.W. 6 (Informant) - Md. Tahsim Khan, who claimed themselves to be eye witnesses.
P.W. 3 - Dr. Abhay Kumar, conducted post-mortem on 31.12.1997 at 8.30 a.m. on the dead body of Tanveer Khan @ Pappu.
P.W. 5 - Md. Mobin Khan is the relative of the informant and has been
tendered for cross examination.
P.W. 7- Suman Shekhar Rajhans is the SI of Sitamarhi P.S., who registered the case and himself became the IO to investigate the case.
P.W. 8 - Bilat Paswan is the Advocate's clerk, who has proved the FIR and signature of informant in Sitamarhi P.S. Case Nos. 322 of 1997 and 336 of 1997, marked as (Exts. 4/1, 4/2, 5/1 and 5/2).
P.W. 9 is Ramdeo Rai, who was entrusted with dead body to get post-mortem examination of deceased Tanveer done.
P.W. 10 is Abdul Annan @ Md. Anwar, Advocate's clerk, who has identified the 8 signature of the Insurance official on the Insurance paper and the application filed in the Insurance Company by accused Afazal against the informant as well as the attendance filed by the accused persons in the court (Exts. 13, 14, 15, 15/1, 16, 16/1, 16/2).
P.W. 11 is Shiv Kumar Lal Karna, clerk in the SDO Office, Sitamarhi, who has proved the order dated 11.12.1997 passed in Case No. 2438 of 1997 under Section 107 Cr.P.C. as well as the orders dated 19.12.1997, 30.12.1997, 9.2.1998 (Exts. 11/1, 11/2).
P.W. 12 is Dr. Jawahar Lal, who examined accused Asagar Hussain on 26.11.1997 referred by Dr. Yogesh and admitted that on 29.11.1997 the patient was referred back to Dr. Yogesh.
P.W. 13 is Devendra Paswan, the Advocate's clerk, who deposed on 30.12.1997 to the effect that Asagar Hussain, Afazal Hussain and Sharafat Hussain went to SDO court at 12 p.m. for making pairvi in case.
6. Defence has examined 21 witnesses, of which D.W. 1 - Aftab Ahmad is the Assistant in the Labour Office, Samastipur, who has 9 proved the Service Card (Ext. Y/1) of P.W. 4 being the employee of the shop, Bharat Shoe, run by one Onkar Singh at Samastipur.
D.W. 2 - Govind Kumar Das is Assistant in the Labour Office, Sitamarhi, who has proved the Service Card dated 09.08.1988 (A/6 and A/7) of D. Ws., 3 and 4 being the employees of the Grand Shoe Store of the deceased Tanveer.
D.W. 3 - Md. Mustaque claimed himself to be the salesman of deceased's shoe shop and has stated that some unidentified criminals fired from the road which hit the deceased and that the informant pressurised him to implicate the present appellants but he did not agree to it.
D.W. 4 - Ishrafil claims himself to be the Manager of the deceased's shop, who also does not support the prosecution version and he also refused the informant's request for becoming witness against the present appellants.
D.W. 5 - Deepak Kumar is the neighbouring shop keeper of the deceased, having a readymade garments shop and has
deposed that D.Ws., 3 and 4 were the regular employees of the deceased and they were 10 chasing the unknown criminals when the occurrence took place.
D.W. 6 - Om Prakash Gupta, the neighbouring shop keeper of Bengal Potteries has deposed that he saw unknown criminals, aged about 20 years, firing from the road and subsequently he was being chased by D. Ws., 3 and 4 and D. Ws., 3 and 4 took the victim to the hospital. He claims to have informed the Police from the shop of the deceased and his statement was recorded by the police under Section 161 of the Cr. P. C. This witness was also interrogated by the C.I.D. D.W. 7 - Rajendra Prasad has a shop, adjacent east to the shop of the deceased and he has also claimed that unknown criminal fired who was chased by D.Ws., 3 and 4 and, thereafter, they took the victim to hospital. His statement was recorded under Section 161 Cr. P. C. by the police and the CID also.
D.W. 8 - Ram Kumar used to run the Sajni General Store situated opposite to the shop of the deceased, who after hearing the gun shot firing saw unknown criminal aged about 20 years running away from the place 11 of occurrence who was being chased by D. Ws., 3 and 4 and subsequently, D. Ws., 3 and 4 took the victim to the hospital.
D.W. 9 - Awadhesh Kumar was the Reader in Sitamarhi Police Inspector's Office, who deposed that the case diary of Sitamarhi P.S. Case No. 348 of 1997, from page 1 to 59 (Ext. T), was received in the Inspector's office on 05.02.1998.
D.W. 10 - Shri Shaligram Singh was the Principal of Raghunath Jha College and has proved that appellant Mangal Singh was Lecturer and Controller of Examination of the aforesaid College at the relevant time. Whereas appellant Rana Randhir Singh was the Founder Secretary of the College.
D.W. 11 - Dr. Bharat Singh has examined the accused Asagar Hussain and found pain and stiffness in the Right elbow and in the X-Ray, found the fracture of lateral condyle of the right hand of Asagar Hussain. He has proved the X-Ray plate as (Ext. Y/1).
D.W. 12 - Sahid Ali Khan, MLA, being relative of the deceased was Chairman of Patna Industrial Development Authority from February 1996 to February 1998 has deposed that accused Sharafat Hussain was at his 12 official residence at Patna from 6.30 a.m. to 10.30 p.m. on 30.12.1997.
D.W 13 - Rama Shankar Prasad was technician in Rama X-Ray Clinic, who conducted the X-Ray of Asagar on 29.12.1996.
D.W. 14 - Jitendra Jha was clerk in Sitamarhi P.P. Office, who has proved Sanha No. 04 of 1987 dated 26.12.1996 (Ext. C/2).
D.W. 15 - Mahrur Hasan was the land lord of accused Afazal at Patna, who has proved that Afazal was in training at the relevant time. Moreover, Afazal's wife Farha Khatoon gave birth to a child at the relevant time.
D.W. 16 - Nemchandra Lal proved the Sanha (Ext. E/2) lodged for bomb throwing near the petrol pump.
D.W. 17 - Raj Kishore Kumar is a typist, who typed the petition of Afazal, which was given to the Insurance Company against the informant.
D.W. 18 - Kamod Kumar, agent of National Insurance Company has proved the
signature of the Surveyor of the Insurance Company, Engineer Ashok Kumar.
D.W. 19 - Md. Abdus Salam Ansari, compounder of the Physiotherapist, Dr. Manoj 13 Kumar Mishra, who has proved the prescription (Ext. W) of accused Asagar Hussain.
D.W. 20 - Manibhushan Kumar, Advocate's clerk, has proved the application (Ext. X) of accused Sharafat Hussain submitted to Assistant Engineer of Electricity Department.
D.W. 21 - Sheo Kumar Gope was the Branch Manager of National Insurance Company, who proved the Insurance Policy (Ext. 13) of deceased's shop.
7. That the learned Trial Court relying upon the evidence of P. Ws., 1 to 4 and 6 and absolutely not relying on the evidence of D. Ws., has passed the judgment and order of conviction.
Now this court has to see whether P.Ws. 1 to 4 and 6 have been able to prove the case beyond reasonable doubt by virtue of their claim to be the eye witnesses or the prosecution evidence and the defence evidence needs to be reappraised.
8. The death of Tanveer Khan @ Pappu at the shoe store on 30.12.1997 is an admitted fact. The dispute is with regard to the manner of the occurrence as the 14 independent neighbouring shop keepers, who have been examined as defence witnesses, claim an entirely different manner of occurrence then that claimed by the prosecution.
The dispute is also with regard to the time of the occurrence. The prosecution claims that the occurrence took place at 7.15 p.m., whereas the defence witnesses claim the occurrence to have taken place at 7 p.m.
9. The evidence of P. Ws., 1 to 4 and 6 (who are relatives of the deceased), on the basis of which the prosecution claim to prove its case, requires to be scanned carefully and is relevant for discussion.
10. P.W. 6 being the informant, the pilot of the prosecution case, has got his fardbeyan recorded and has stated in the fardbyean that all the 5 accused persons came to the shop of the deceased and then some one ordered to kill. Thereupon, Asagar fired from outer side of the glass screen fixed on the counter, which hit the deceased after piercing the counter glass screen. P.W. 6 has claimed to have taken the victim to hospital with the assistance of other 15 people. The fardbeyan neither talks about the presence of P. Ws., 1, 2 or 4 at the shop nor the informant (P.W. 6) talks about any assistance being taken from them. The fardbeyan also does not disclose, the name of the person who ordered to fire.
11. The presence of P. Ws. 1 to 4 and 6, at the place of occurrence, has been seriously disputed by the defence by examining the defence witnesses.
12. The presence of P. Ws. 1, 2 and 4 gets clouded, on the basis of the fact that they are not witness to the FIR. The only witness to the FIR is Shahanawaz, who has not been examined and about whom P.W. 6 in paragraph no. 180 of his evidence admits that he was not known to Shahnawaz, but he signed it because he was present at the time when the Fardbeyan was being recorded. This sounds not only unreasonable but also absurd, as P.W. 6 claims that P. Ws. 1 and 4 were present in the hospital when the fardbeyan was recorded, then in such circumstance there was no occasion for Shahnawaz becoming the attesting witness to the fardbeyan. The informant, in paragraph no. 181 of his evidence, clearly suggests 16 that he is not willing to examine Shahnawaz as witness, which creates doubt on the credibility of the informant (P.W. 6).
P. Ws. 1 and 4 claim themselves to be the salesmen at the deceased's shoe shop. Defence has examined D.W. 1, Assistant in the Labour Office, Samastipur, who has proved the service card of P.W. 4 dated 03.12.1997 (Exts. X/1 and Y/1) which clearly suggests that P.W. 4 was the employee of Bharat Shoe belonging to one Onkar Singh at Samastipur, but the learned trial court has not relied upon the same, because the father's name of P.W. 4, in Service Card, has been recorded as Md. Jainuddin, whereas, while deposing in court, P.W. 4 got his father's name recorded as Saifullah but D.W. 4 in paragraph no. 88 of his evidence has clearly stated that the father's name of P.W. 4 is Jainuddin @ Saifullah. The Service Card of P.W. 4 (Ext. Y/1), depicts the parentage of P.W. 4 as Jainuddin, whereas the other service card, Ext., X/1 does not depict the parentage of P.W. 4. Moreover, both the Exhibits bear the signature of P.W. 4, which has not been denied by P.W. 4.
D.W. 2, the Assistant in Sitamarhi 17 Labour Office has clearly stated that Exts. A/6 and A/7 are the service cards of D. Ws., 3 and 4 whereas paragraph no. 5 of his evidence clearly suggests that no document, with regard to removal of P. Ws. 1 and 4, are available in the record.
13. P.W. 1 in paragraph no. 30 has stated that he is not in possession of any document to suggest that he was the employee in the shop of the deceased. The evidence of P.W. 1 in paragraph no. 7 clears the mist when he further deposed that D. Ws., 3 and 4 were the registered Salesmen of the deceased, which was in following words:
";g lp gS fd nqdku ds jftLVMZ lsYl eSu esa eqLrkd vkSj b'kjkQhy gSA"
14. P.W. 6 in paragraph no. 155 has admitted that D. Ws., 3 and 4 were regular employees of the deceased's shop, but claims that they were terminated few months prior to the occurrence due to the theft committed by them but no document to that effect has been produced by the prosecution.
15. P.W. 6 in paragraph no. 90 of his evidence has stated that Labour Department used to be informed about the working staff. 18 In paragraph no. 104, P.W. 6 has stated that the deceased's shop was registered in the Labour Department, but learned Trial court has disbelieved the registration of D. Ws., 3 and 4 as salesmen of the deceased's shop, since there was cutting with regard to the registration number of the shop without any initial over it, but the registration of the shop of the deceased has been admitted by the informant and working of D. Ws., 3 and 4, as salesmen, has been proved by D.W. 2.
16. P.W. 7 in paragraph no. 48 of his evidence said that P.W. 6 never said that P. Ws., 1 and 4 are the salesmen of the deceased's shop.
17. P.W. 7 in paragraph no. 24 and 25 of his evidence has stated that no witness was named by the informant in the fardbeyan and the informant's contention that he conveyed to the IO about witnesses name is absolutely wrong.
18. The evidence of D. Ws., 5 to 8, the neighbouring shop keepers of the deceased clearly suggests that D.Ws., 3 and 4 were the salesmen of the deceased and not P. Ws., 1 and 4. The cross examination of P. Ws., 1 and 4 clearly suggests that they 19 had no knowledge about the working pattern of the shop in question or about the stocks of the shop, or they ever issued any cash memo to any customer, or they had any business expertise with regard to the shoe business. Moreover, they were not acquainted with any neighbouring shop keepers. P. Ws., 1 and 4 have admitted that when they reached hospital they failed to identify any person and P.W. 1 went to the house of the informant from hospital.
19. P.W. 1 in paragraph no. 5, P.W. 2 in paragraph no. 11, P.W. 6 in paragraph no. 70 of their respective evidences have admitted that P. Ws., 1 and 2 are maternal (MAUSERA) brothers of the deceased and informant. Hence, P. Ws., 1 and 2 being the interested witnesses cannot be ruled out. Moreover, it has been suggested by the defence that P. Ws., 1 and 4 are residents of Samastipur and they were working in the market of maternal uncle of the deceased Manjar Zafri at the Zafri Market and they were brought by the maternal uncle of the deceased after the occurrence.
P.W. 2, who claims himself to be a chance witness, went to purchase shoe from 20 the deceased's shop and has admitted that he is a resident of Muzaffarpur, and was having a business of supplying dresses to the schools at Muzaffarpur but subsequently shifted his business to Sitamarhi. However, P.W. 2 has failed to depose the name of the school to which he used to make supply or any document to suggest that he was running the business at Sitamarhi at the relevant time. Hence, in the background of the serious inconsistencies in the evidence of P. Ws., 1, 2 and 4, their presence at the P.O. becomes doubtful.
20. P.W. 6, the informant, in paragraph no. 130 of his evidence has admitted that in the protest petition filed by him, he had not mentioned the presence of P. Ws., 1, 2 and 4 at the P.O. as salesmen or customer. So far as the presence of P.W. 6 at the P.O. is concerned, he himself makes his presence doubtful as in the fardbeyan P.W. 6 says that he was talking with the deceased about the business, which has been supported by P.W. 1, whereas, P.W. 4 in paragraph nos. 35 and 36 of his evidence has stated that both brothers were not talking. P.W. 6 in the protest petition has stated 21 that he went to deceased's shop to help the deceased since there was rush of customers. The further conduct of P.W. 6 makes his presence doubtful due to his inimical relationship with the deceased in view of the deceased having illicit relation with the informant's wife, which was also found by CID. The informant neither bothered to inform the police nor did he convey about the occurrence to any one and he admits in paragraph no. 189 of his evidence that blood stains were there on his clothes but it was never seized by the police. Whereas P.W. 7, (the I.O.) in paragraph no. 31 has stated that he neither saw the blood stained clothes nor it was given to him, P.W. 1 in paragraph no. 17 and P.W. 2 in paragraph no. 41 have shown ignorance as to whether there was any blood stain on their clothes or not and P.W. 4 in paragraph no. 38 of his evidence has stated that there was no blood stain on his clothes, which impeaches the credibility of the prosecution witnesses in view of the injury caused to the deceased.
21. The variations in the statement of P. W. 6 from fardbeyan to 164 Cr. P. C. statement as well as in protest petition 22 further clouds his credibility. P.W. 6 in paragraph no. 112 of his evidence admits that he got the 164 Cr. P. C. statement recorded whereas he admits about signing the protest petition in paragraph no. 113 of his evidence but subsequently tried not to take the help of 164 statement and protest petition due to the variance in the two versions which resulted into withholding of those two documents by the prosecution side, which has subsequently been exhibited by defence as Exts. Z/1 and Z-1/1. Hence, the above conduct of the informant creates doubt about his presence at the P.O. So far as the role of order giver is concerned, in fardbeyan P.W. 6 does not specifically name any one as order giver, rather the allegation is general against all the 5 accused persons. Whereas, in paragraph nos. 3 and 78 of his evidence, he developed his version by saying that Rana Randhir ordered to fire. P. Ws., 1 and 2 in paragraph no.1 of their evidences have also stated the same thing. P.W. 4 in paragraph nos. 2 and 37 of his evidence has stated that he neither saw nor heard as to who specifically ordered to fire, whereas, in 23 paragraph no. 85 of his deposition, P.W. 7 has stated that P.W. 6 never stated that any one ordered to kill. Hence, in view of the prosecution's own inconsistent evidences, this charge, of order being given by Rana Randhir Singh has not been proved by the prosecution.
22. The specific case of P. Ws., 1 to 4 and 6 is that five persons entered the shop then Asagar Hussain fired from outside. P.W. 7 in paragraph no. 3 of his evidence has stated that out side the shop there was shutter and inside adjacent to the shutter there was the counter and on the counter there was a glass screen, which was 26 inches in width and 45 inches in length. Whereas the counter was angular to the northern side and on that side the glass width was 13 inches. P.W. 6 in paragraph no. 139 has stated that the shop's length was 16 to 17 ft. and its width was about 10 ft,. P.W. 1 in paragraph no. 11, P.W. 2 in paragraph no. 24, P.W. 4 in paragraph nos. 24 and 66 and P.W. 6 in paragraph no. 71 have admitted that the entry passage was 3 ft. to 4 ft. wide P.W. 6 in paragraph no. 142 has stated that he was sitting 5-6 ft. 24 away from the shutter. Whereas the accused persons were 3-4 ft. away from the informant near the counter. P.W. 7 in paragraph no. 3 has stated that the victim's stool was 5 ft. away from the glass screen of the counter, meaning thereby that the accused persons just entered into the shop when the firing was made. It appears unreasonable that one accused will fire from outside when his other fellows were in the shop, jeopardizing the life of his other fellow accused.
23. P.W. 1 in paragraph no. 17 of his evidence has stated that he did not see any body firing, hence, his evidence is of no help to the prosecution. P.W. 2 in paragraph no. 29 has stated that the firing was made from outside, while P.W. 6 in paragraph no. 3 has stated that Asagar fired from outside but the evidence of the IO clearly negates the claim of P. Ws., 1 to 4 and 6 of having seen Asgar firing. As P.W. 7 in paragraph no. 41 has stated that P.W. 1 did not say that he saw the actual firing being made by Asagar. In paragraph no. 46 P.W. 7 has stated that P.W. 2 did not name any one as assailant. P.W. 7 in paragraph no. 47 has stated that P.W. 4 did not say 25 about firing from outside or attempt to fire from inside the shop. P.W. 7 in paragraph no. 48 and 85 of his evidence has stated that P.W. 6 never stated about P. Ws., 1 and 2 taking the victim to hospital on rickshaw nor named any customer. Hence, in view of evidence of P.W. 7, it is clear that neither P. Ws., 1 to 4 nor P.W. 6 actually saw the firing, which clearly lends credence to the defence version when D. Ws., 3 and 4 claim themselves to be the regular salesmen of deceased's shop and they were only present in the shop when the unknown boy of 20 years fired from the road hitting the victim then D. Ws., 3 and 4 chased the criminal and took the victim to hospital, where the victim was declared dead. But when the informant reached at the hospital, he asked D. Ws., 3 and 4 to depose against the appellants and on refusal they were deserted by the informant. The evidence of D. Ws., 3 and 4 gets corroborated from the fact that DW 5 is deceased's neighbouring readymade garments shopkeeper and was tenant of Samsul Nishan, the mother of the accused Afazal, Asagar and Sharafat. The deceased was also the tenant of Samsul Nisan. D.W. 6, Om Prakash is 26 neighbouring shop keeper, namely, Bengal Potteries. D.W. 7 is the adjacent shop keeper of the deceased whereas D.W. 8 has the shop just opposite the shop of the deceased. They all have deposed that they saw an unknown criminal aged about 20 years running away with arms and was being chased by the D.Ws. 3 and 4, who were regular salesmen of the deceased's shop and they did not find the presence of P. Ws., 1 to 4 and 6 at the P.O.
24. D.W. 6, Om Prakash is the witness who saw the unknown accused, aged about 20 years, firing and that D.Ws., 3 and 4 were chasing the criminal and after the chase D. Ws., 3 and 4 took the victim to the hospital. He (DW 6) also deposed that he made telephone call from the shop of the deceased to the P.S. informing that some unknown criminal had fired and this fact has been admitted by D.W. 4 in paragraph no. 26, D.W. 5 in paragraph no. 2, D.W. 6 in paragraph no.2, D.W. 7 in paragraph no. 2 and D.W. 8 in paragraph no. 2 of their evidence.
25. I.O., P.W. 7, though in paragraph no. 1 of his evidence admits that he made 27 the Sanha Diary Entry No. 867 at 7.25 p.m. on 30.12.1997 on a telephone call, but in paragraph no. 21, has stated that he neither inquired about the caller's name nor verified as to who had made the call. This creates doubt about the conduct of the IO also. It is admitted fact that D.Ws. 5 to 8 were examined under Section 161 Cr.P.C., being independent witnesses being neighbouring shop keepers but they have not been made charge sheet witnesses because they failed to support the prosecution case. D.Ws. 5 to 8 being the neighbouring shop keepers have not been relied by the prosecution nor any reason has been assigned for not examining them as witness as they would have been the most natural witness to unfold the truth.
Hence, after scanning the evidence of prosecution vis-à-vis defence evidence, the defence witnesses appear to be more reliable as they unfold the prosecution case in a more convincing way as these witnesses have suggested that it was D. Ws., 3 and 4 who took the victim to hospital.
26. D.W. 3 in paragraph no. 17 of his evidence has stated that D.W. 4 had the 28 blood stains over his clothes while carrying the deceased, but since they did not support the false accusation against the appellants, they were disowned by the prosecution. That appears the reason for not making D. Ws., 1 to 4 as FIR or Inquest witness or naming them to be present at the P.O. Whereas the seizure list witnesses of the seizure of broken screen glass and blood stains from the P.O. are Sahnawaz (not examined) and P.W. 2 Sayeed Tanvir Husain.
27. The time of the occurrence, given by the defence witness also appears to be probable as according to the defence, the occurrence took place at 7 p.m., whereas as per the prosecution the occurrence took place at 7.15 p.m. the Sanha entry no.867 depicts that it was recorded at 7 p.m., which by cutting the same was made 7.25 p.m., which makes the defence version more convincing that the IO being the friend of the deceased came to know about the occurrence at 7 p.m. on the telephone call of D.W. 6, Om Prakash, but since Om Prakash was not supporting the prosecution version and in the fardbeyan P.W. 6 got recorded the time of occurrence as 7.15, hence the IO got 29 the timing of sanha entry interpolated which creates serious doubt not only with regard to the conduct of the IO but with regard to the entire prosecution version.
28. P.W. 7 is the IO of the case, who initially registered the case. It is the consistent case of the defence that the IO was friend of the deceased and was of immoral character as he was carrying on an illicit relation with one Meenakshi, who used to reside adjacent to Priyanka with whom deceased had illicit relation. The IO in his evidence has admitted that he had deserted his wife and the matrimonial case is pending. The IO was made accused in Darauli P.S. Case No. 52 of 2000 under sections 304(B) and 201 of the IPC. Hence, the conduct of the IO creates doubt about his conducting the investigation fairly, which gets crystallized from paragraph no. 11 of his evidence where he said that neighbouring shop keepers did not give statement due to fear. Whereas in paragraph no. 7, he has stated that he recorded the statements of neighbouring shop keepers, namely, Deepak Kumar, Vijay Kumar Sunder, Rajendar Prasad, etc., and in paragraph no. 30 21, it has been stated that he did not verify as to who made the telephone call. In paragraph no. 22, he has deposed that he never asked or entered in the case diary, the name of the person, who were crying near the dead body. He has also not mentioned that how many family members came to the hospital. In paragraph no. 29 he has admitted that he had not measured the length and breadth of the shop and the blood was not sent for chemical examination. Area of blood stain marks was neither measured nor entered into the case diary. In Paragraph no. 3 of his evidence, he admits that the broken glass at the PO was not examined. No photograph of the PO was taken. In Paragraph no. 37, the IO has stated that he did not take the statement of the neighbouring shopkeepers but it was taken by the CID. Paragraph nos. 176 to 180 of case diary contain the statement of neighbouring shop keeper, Rajendra Prasad (DW 7), Om Prakash Gupta (D.W. 6), Ram Kumar (D.W. 8), Rajesh Kumar, Narendra Kumar. In Paragraph no. 71, P.W. 7 has stated that no map of P.O. was drawn, in paragraph no. 33; he admitted that no register of the shop, Cash 31 memo or any document was inspected nor did he verify the presence of electricity meter. P. Ws. 1 and 4's residence was not verified. Paragraph no. 34 of his evidence reflects that he did not verify about the protest petition filed by the informant. Paragraph no. 36 of his evidence depicts that statement of P.W. 1 was recorded on 31.12.1997, which makes the defence version more credible that P.W. 1 came to Sitamarhi on 31.12.1997 with the maternal uncle of the informant. Paragraph no. 37 of his evidence depicts that P.W. 7 does not know about CID finding that the deceased married Priyanka a Hindu girl and that he did not verify the parentage of the deceased. Paragraph no. 43 depicts that the alibi of the accused was not verified. No verification was done about disconnection of electricity from electricity department and the statement of the wife of the informant was not recorded.
29. The unbecoming conduct of the IO gets further reflected from paragraph no. 9 of his evidence, where he has stated that on 31.12.1997 at 2.30 a.m. and at 3.30 a.m. he had tried to arrest the accused persons, whereas he prepared the Inquest report 32 thereafter on 31.12.1997 at 6.40 a.m. In paragraph no. 56, he admitted that in CID Report Priyanka's name was there but in paragraph no. 58 it is admitted that no verification about Priyanka was done. In paragraph no. 63 it is stated that no seizure list was made when the house of Rana Randhir Singh was searched. In paragraph no. 65 of his evidence it is admitted that the recovered bullet was not sent to FSL for examination. In paragraph no. 67 of his evidence P.W. 7 states that he did not note the case diary dispatch number into the dispatch register. Whereas D.W. 9, Reader in the Inspector's office has clearly suggested in paragraph no. 3 of his evidence that Page nos. 1 to 59 of the case diary were received in the Inspector's office on 5.2.1998, but such serious lapses has been casually taken by the learned trial court. Moreover, the delayed receiving of the case diary suggests the defence contention that the IO interpolated not only the FIR but also the initial investigation in connivance with the informant.
30. In paragraph no. 71 P.W. 7 has stated that the stool on which the deceased 33 was sitting was not seized, no blood stain on wall, stool or cushion of the stool was found. In paragraph no. 72, I.O. has admitted that no enquiry from the Labour Department was made. In paragraph no. 85 it is admitted that permanent residence of P.Ws. 1 and 4 were not verified. From paragraph no. 89 it is apparent that bed head ticket, prescription of the deceased were not examined during investigation, paragraph no. 96 reflects that presence of generator or electric connection was not verified. Paragraph no. 99 reflects that CID report regarding illicit relation of the deceased with the wife of the informant was not verified, Paragraph no. 103 reflects no mention about time of death and paragraph no. 113 reflects that over writing on Sanha does not bear signature of any officer.
31. The aforesaid facts clearly depicts that the I.O. has not conducted the investigation in the proper manner and the doubtful conduct is apparent right from making the Sanha diary entry till the submission of the charge sheet.
32. Learned trial court has also 34 doubted bonafide of I.O. as recorded in the paragraph no. 70 of the judgment but has failed to confer the benefit of doubt to the accused flowing from the deliberate attempt of the I.O. in malicious conduction of the investigation.
33. The manner of the occurrence also becomes doubtful on the evidence of the P. Ws., where they describe the accused of their being armed, as P.W. 2 in paragraph no. 28 of his evidence has stated that the five accused persons were armed with pistol whereas in paragraph no. 65 he has stated that Rana Randhir and Mangal were not armed with pistol. P.W. 4 in paragraph no. 33, P.W. 6 in paragraph no. 73 have stated that only Asagar and Sharafat were armed with pistol. Whereas P.W. 6 in paragraph no. 141 has stated that only 4 persons entered into the shop of which only Sharafat was armed. This description by P. Ws., not only reflects the inconsistency in their evidence but also creates doubt about their presence at P.O.
34. So far as the motive is concerned, it is alleged in the fardbeyan that there was dispute with regard to vacation of the 35 shop at the behest of Asagar, Afazal and Sharafat but this motive was not alleged against Rana Randhir and Mangal Singh. Though in the fardbeyan it is alleged that these two accused used to help the aforesaid three accused persons, but in his evidence P.W. 6 has stated that he had no litigation with Rana Randhir Singh and Mangal Singh nor in the petition filed before the police officials on behalf of the informant and the deceased, Rana Randhir or Mangal were ever named.
So far as the dispute with regard to forceful vacation of the shop is concerned, it is an admitted fact that the deceased was a tenant of the mother of Sharafat, Asagar and Afazal and there was some dispute with regard to vacating the same but the deceased was having inimical terms with several persons as :-
i) he was a young man aged about 30 years and had illicit relation with a Hindu girl Priyanka, which has been admitted by P.W. 7 that the CID found deceased's illicit relation with Priyanka.
ii) Deceased had very bad
36
relationship with his father
Yasin Khan, who subsequently
performed second marriage and
gifted his property to his
second wife and the father of
the deceased threatened him with gun which led to filing of the informatory petition in the court of SDM, Sitamarhi, Sadar on 8.2.1994 (Ext. P).
iii) Deceased Tanwir Khan took loan from one Nawab Singh at high rate of interest and when he failed to return the money then Nawab Singh threatened which resulted into Sanha Diary Entry No. 279 dated 08.05.1992 (Ext.
F) at the behest of informant
(P.W. 6), which led to
proceeding of 107 Cr.P.C.
between the parties.
iv) Deceased had hostility with
Ashraf Ali of Sitamarhi with
whom deceased negotiated to
purchase land but on refusal to execute the sale deed, deceased lodged an FIR (Ext. O) in which 37 subsequently, the charge sheet was submitted.
v) The deceased had illicit relation with the wife of P.W. 6 as a result of which deceased and P.W. 6 were not on good terms and the hand of P.W. 6 in the occurrence cannot be ruled out, because he was the direct beneficiary of the property of deceased, and this fact has been admitted by P.W. 6 in paragraph no. 137 that P.W. 6 and his father are in possession of the properties of the deceased. On inquiry being made by the court about P.W. 6 being the beneficiary, he replied very humorously in a light manner which gets reflected from paragraph no. 180 of his evidence.
35. P.W. 6 was also an accused in poisoning his own sister. Moreover, P.W. 6 has admitted that he went to jail. Hence, the conduct of P.W. 6 suggests that he was having criminal antecedents. 38
36. While recording the evidence of P.W. 6 in paragraph nos. 83, 100 and 103, it has been recorded by learned trial court that P.W. 6 is very cunning person and is not giving the straight answer.
37. Hence, in the background of the aforesaid facts when the deceased had enmity with several persons then it is difficult to suggest as to who fired and at whose behest the firing was made.
So far as the medical evidence is concerned, it depicts that the doctor found one lacerated oval shape wound on right temporal reason 1½ " x 1" cavity deep with protruding of brain matter from the wound i.e. blood and blood clot but the doctor had not found any charring or blackening whereas the size of injury as well as claim of the prosecution witnesses is that the firing was made hardly from 5 ft., which again lends credence to the defence version that the firing was made from the road and not from the counter of the shop as claimed by the prosecution.
38. Non examination of the independent witnesses, particularly, the neighbouring shop keepers clouds the prosecution case and 39 on the contrary the prosecution has relied on the interested witnesses as the P.Ws. 1 and 2 are the maternal (Mausera) brothers of the deceased. P.W. 4 used to reside at the maternal uncle's place of the deceased at Samastipur and P.W. 6 is the own brother of the deceased. P.W. 5 was the maternal uncle of the deceased but he has not supported the prosecution case and has been tendered. Whereas P.W. 1 in paragraph no.1, has admitted that there were ten persons in the shop when the occurrence took place. Whereas P.W. 4 in paragraph no. 26 suggests the presence of 6-7 persons, whereas P.W. 6 in paragraph no. 69 suggests the presence of only about 2 customers which not only suggests that the independent witnesses were deliberately withheld but it also suggests material inconsistency in the evidence of prosecution witness.
39. So far as the charges of 302, 302/149 and 302/109 of the IPC is concerned, the prosecution has failed to prove the charge as no overt act has been proved on behalf of any such charged accused. So far as the charge under Arms Act is concerned, there is no recovery of any arms from any 40 accused or the recovery of bullet from the P.O. nor the wound of the deceased suggests that it was fired by pistol. Moreover, the absence of ballistic examination, creates doubt about the prosecution case. So far as the charge under section 307 of the IPC against Sharafat is concerned, the I.O. has not found any mis-fired cartridge at the place of occurrence nor any arms were recovered from Sharafat and above all the prosecution witness is not consistent about the firing resorted to by Sharafat.
40. Thus, the probative value of the evidences on record has to be put into the scale for its cumulative evaluation. A person has, no doubt, a profound right not to be convicted for an offence which is not established by evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to proof is an exercise to be done on fact and evidence of each case.
Doubt would be called reasonable if they are free from zest for abstract speculation. Law cannot afford any favourite other than 41 truth. To constitute reasonable doubt, it must be free from over emotional response. Doubt must be actual and substantial doubt as to the guilt of accused persons which arises from the evidence or from the lack of it as opposed to mere vague apprehension. A reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense. It must grow out on the evidence of case.
The concept of probability and the degree of it cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degree of probability and the quantum of proof. The last analysis, rests on a robust common sense and ultimately, on the trained intuitions of the judge.
41. Since the prosecution has failed to prove the charge beyond shadow of reasonable doubt and this court finds the evidence of D. Ws., more reliable and unfolding the case in more convincing manner, the main charge fails, as such this 42 court is not discussing the plea of alibi taken by different accused persons, particularly, Rana Randhir Singh and Mangal Singh, with whom admittedly the informant or deceased had no enmity nor any documentary evidence to that effect has been brought on record.
42. On the basis of the discussion made above, this court comes to the conclusion that prosecution has miserably failed to prove the manner of occurrence due to non examination of independent and reliable witness and tried to prove the case through interested, related witnesses, whose presence at the place of occurrence becomes doubtful due to the inconsistency appearing in their evidence.
43. As a result, the judgment and order of conviction is set aside. The appellants are acquitted. So far as the appellants Asagar Hussain, Rana Randhir Singh and Mangal Singh are concerned, they are directed to be discharged from the liability of their bail bonds. So far as appellants Sharafat Hussain and Afazal Hussain are concerned, since their bail bonds were subsequently cancelled vide order 43 dated 21.11.2003 passed in Cr. Appeal nos. 110 of 2003 and 104/2003 due to their being subsequently made accused in Sitamarhi P.S. Case No. 155 of 2003 lodged for the murder of informant (P.W. 6), both the appellants are directed to be released forthwith, if they are not wanted in any other case.
Accordingly, all the appeals are allowed.
( Dinesh Kumar Singh, J) (Dharnidhar Jha,J) I agree.
(Dharnidhar Jha,J) Patna High Court Dated 5th December,2011 N.A.F.R./U.K.