Jumman Khan & Others vs State Of U.P. on 10 September, 2014

[Cites 15, Cited by 2]

Allahabad High Court

Jumman Khan & Others vs State Of U.P. on 10 September, 2014

(Delivered by Hon'ble Akhtar Husain Khan, J.) Present appeal has been filed by accused-appellants Jumman Khan, Suleman, Munne Khan and Laeeq, under Section 374 Cr.P.C. against judgement and order dated 19.12.1994 passed by Additional Session Judge/Special Judge (D.A.A.), Farrukhabad in S.T. No. 670 of 1992, State Vs. Jumman Khan and others, Crime No. 284 of 1992, P.S. Shamsabad, District Farrukhabad, under Sections 302/34 and 307/34 I.P.C. whereby learned Additional Session Judge/Special Judge (D.A.A.) has convicted accused-appellants Jumman Khan, Suleman, Munne Khan and Laeeq for offences punishable under Sections 302/34 and 307/34 I.P.C. and sentenced each of them for offence punishable under Section 302/34 I.P.C. with imprisonment for life and fine of Rs. 5,000/- and for offence punishable under Section 307/34 I.P.C. with rigorous imprisonment for seven year and fine of Rs. 2,000/-.

Learned Additional Session Judge further directed that in default of payment of fine awarded for offence punishable under Section 302/34 I.P.C. each accused-appellant shall undergo rigorous imprisonment for six month and in default of payment of fine awarded for offence punishable under Section 307/34 each of them shall under go rigorous imprisonment for three month.

Learned Additional Session Judge directed that all the sentences awarded to accused-appellants shall run concurrently.

Sri Satish Trivedi, learned Senior counsel assisted by Sri U.S. Bind appeared on behalf of accused-appellants and Sri R.C. Maurya, advocate appeared for State-respondent as well as Sri Tahir Husain, advocate, appeared for complainant.

We have heard the parties and perused the records.

In brief, according to F.I.R. Exhibit Ka.01 prosecution case is that Yaqub Ali Khan s/o complainant's elder father had no issue with his first wife Saliman Begum. Therefore, he married Kishwari Begam (widow of Miyan Jaan) about 15 to 16 years before occurrence. Accused Jumman Khan, Suleman, Munne Khan and Laeeq are sons of late Miyan Jaan Khan and Kishwari Begam. All of them felt annoyed with Yaqub Ali Khan due to his marriage with their mother Kishwari Begam. Besides this no issue was born with wedlock of Yaqub Ali Khan and Kiswari Begum, accused Jumman Khan desired to get properties of Yaqub Ali Khan but Yaqub Ali Khan sold his some land about 2 years before occurrence and he was thinking to sell his remaining land also, this also caused annoyance to accused Jumman Khan and his brothers Suleman, Munne Khan and Laeeq.

According to F.I.R. Exhibit Ka.01 in the intervening of night 07.10.1992 and 08.10.1992 the aforesaid Yaqub Ali Khan and Dayaram s/o Dalchand Kumhar who was Bataidar (parter) of Yaqub Ali Khan were sleeping in the hut and his wife Saliman Begum, maternal nephew Kallan Khan s/o Lal Khan and Qamar Khan s/o Nannhe Khan were sleeping in another hut. Accused Jumman Khan, Laeeq, Suleman Khan and Munne Khan armed with Tamanchas and gandasas came at about 2:30 a.m and fired at Yaqub Ali Khan and Dayaram with intention to kill them. Having received injury Dayaram wake up and ran way. Aforesaid Kallan also raised alarm whereupon complainant Akhtar Khan and witnesses Ishrar Khan, Riyaz Mohammad Khan, Sher Khan and others rushed from the Village with torches but the aforesaid four accused cut the throat of Yaqub Ali Khan who had already sustained fire arm injury. In the meantime, Saliman Begum w/o Yaqub Ali Khan came out of her hut, she was get fallen down by accused Munne Khan and Suleman Khan. Thereafter, accused Jumman Khan fired at her and accused Laeeq caused her injuries with gandasa and separated her head from the rest part of body. Thereafter, all the accused made aireal fire and ran away towards fields.

According to F.I.R. Exhibit Ka.01, complainant Akhtar Khan and witnesses have seen the occurrence in the light of lantern and Torches and have identified assailants in the light of lantern and torches as well as with their voice.

According to F.I.R. Exhibit Ka.01, due to fear complainant Akhtar Khan did not go to Police Station in the night. Therefore,in the morning leaving dead bodies of both deceased on spot he went to Police Station and presented written report Exhibit Ka.01 in Police Station Shamsabad, District Farrukhabad; whereupon Crime No. 284 of 1992, under Sections 302 and 307 I.P.C. was registered in P.S. Shamsabad against accused Jumman Khan, Suleman, Munne Khan and Laeeq and investigation was started by police. Inquest reportd of deceased Yaqub Ali Khan and his wife Saliman Begum were prepared by police and dead body of both deceased were sent for post mortem in sealed cover after having completed necessary formalities. Injured Dayaram was also sent for medical examination and his medical examination was conducted on 08.10.1992 at 02:50 p.m. by PW7 Dr. R.K. Chatwal and injury report Exhibit Ka.16 was prepared by him.

Thereafter, investigation was completed by police in accordance with law and after having completed investigation, police submitted chargesheet against accused Jumman Khan, Suleman, Munne Khan and Laeeq for offences punishable under Sections 302 and 307 I.P.C. whereupon learned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the Court of Sessions for Trial of all accused. Thereafter Sessions Trial No. 670 of 1992, State Vs. Jumman Khan and others, under Sections 302/34 and 307/34 I.P.C. was registered in the Sessions Court of District Farrukhabad. Later on said Sessions Trial was transferred to the Court of Additional Sessions Judge/Special Judge (D.A.A.), Farrukhabad who framed charges against accused Jumman Khan, Suleman, Munne Khan and Laeeq for offences punishable under Sections 302/34 and 307/34 I.P.C. All the accused pleaded not guilty and claimed to be tried.

Prosecution examined PW1 complainant Akhtar Khan, PW2 Dayaram, PW3 Israr Ahmed, PW4 H.C. Nukhai Ram, PW5 S.O. Har Prasad Singh, PW6 Dr. S.K. Tripathi, PW7 Dr R.K. Chatwal and PW8 Constable Mohan Singh and closed his evidence.

After prosecution evidence statements of all accused were recorded under Section 313 Cr.P.C. All accused stated that they have been falsely implicated. No oral evidence was adduced on behalf of accused in defence. Accused filed documentary evidence only in defence.

After having heard the parties, learned Trial Court passed impugned judgement and order whereby he has convicted and sentenced accused-appellants as mentioned above.

Learned counsel for the accused-appellants contended that F.I.R. is anti time and whole prosecution story is false and concocted. The murders of Yaqub Ali Khan and Smt. Saliman Begum have been committed in dark night by some other person and accused-appellants have been falsely implicated.

Learned counsel for the accused-appellants contended that PW1 complainant Akhtar Khan and PW3 Israr Ahmed are cousin brothers and PW2 Dayaram is inimical to accused-appellants, therefore, theses witnesses are interested and unreliable witnesses.

Learned counsel for the accused-appellants contended that statements of PW1 complainant Akhtar Khan, PW2 Dayaram and PW3 Israr Ahmed are inconsistent with their statements recorded under Section 161 Cr.P.C. They have made several improvements in their statements before Court.

Learned counsel for accused-appellants contended that PW1 complainant Akhtar Khan has stated in examination in chief that he has not seen occurrence as well as accused-appellants on spot. Later on he has changed his statement in cross-examination made by prosecution under pressure. His statement may not be relied at all.

Learned counsel for the accused-appellants contended that there are material contradictions also in statements of PW1 complainant Akhtar Khan, PW2 Dayaram and PW3 Israr Ahmed.

Learned counsel for the accused-appellants contended that source of light alleged by prosecution is also doubtful.

Learned counsel for the accused-appellants contended that alleged presence of PW2 Dayaram at the time of occurrence as well as his injury is false and fabricated.

In view of above, learned counsel for the accused-appellants contended that Trial Court has committed error in placing reliance upon the story of prosecution and the conviction of accused-appellants recorded by Trial Court is against evidence as well as law.

Learned counsel for the accused-appellants prayed that the appeal should be allowed and accused-appellants should be acquitted.

Learned A.G.A. contended that F.I.R. has been lodged without delay. PW1 complainant Akhtar Khan, PW2 Dayaram and PW3 Israr Ahmed are independent witnesses and PW2 Dayaram is injured also. Therefore, these witnesses are trustworthy and Trial Court has rightly relied upon them.

Learned A.G.A. contended that there is no material contradiction in statements of witnesses examined by prosecution to disbelieve them.

Learned A.G.A. contended that evidence adduced by prosecution is sufficient to prove accused-appellants guilty for offences punishable under Sections 302/34 and 307/34 I.P.C. and the Trial Court has rightly convicted accused-appellants for the said offences.

Learned A.G.A. contended that punishment awarded by Trial Court is not excessive and there is no sufficient ground to justify interference in the impugned judgement and order passed by Trial Court.

Learned A.G.A. prayed that appeal should be dismissed.

We have considered the submissions made by both parties.

In examination in chief PW1 complainant Akhtar Khan turned hostile and did not support version of F.I.R. and stated that after having heard noise he reached near hut of Yaqub Ali Khan. He saw Yaqub Ali Khan and Saliman Begum dead. He did not see assailants. He stated that he did not see accused-appellants. But in cross-examination by public prosecution he has supported the version of F.I.R. and proved F.I.R. Exhibit Ka.01.

PW2 Dayaram and PW3 Israr Ahmed have fully supported version of F.I.R. in their statements on oath. PW3 Israr Ahmed is scribe of F.I.R. Exhibit Ka.01. He also has proved F.I.R. Exhibit Ka.01.

PW4 Head Constable Nukhair Ram has proved chik F.I.R. Exhibit Ka.02 and copy of G.D. Relating to registration of Crime Exhibit Ka.03.

PW5 S.O. Har Prasad Singh is the Investigating Officer. He has stated in his statement that on 08.10.1992 at about 8:30 a.m. this crime was registered on written report of complainant Akhtar Khan in his presence. He has proved his signature on chik F.I.R. Exhibit Ka.02 and has stated that after registration of crime injured Dayaram was sent for medical examination.

PW5 S.O. Har Prasad Singh has stated that he took investigation of the case and recorded statement of complainant Akhtar Khan, Dayaram, Israr Ahmed and other witnesses. Thereafter, he went to place of occurrence. He has stated that inquest report of deceased Yaqub Ali Khan and inquest report of deceased Smt. Saliman Begum were prepared by S.I. R.L. Verma on his direction. He has proved the inquest reports of both deceased as Exhibit Ka.4 and Ka.08. He has further proved Chalan Nash of deceased Yaqub Ali Khan Exhibit Ka.05, his Photo Nash Exhibit Ka.06 and letter written to C.M.O. for his post mortem Exhibit Ka.07. He has further proved Chalan Nash of deceased Smt. Saliman Begum Exhibit ka.09, her Phot Nash Exhibit Ka.10 and letter to C.M.O. for her post mortem Exhibit Ka.11.

PW5 S.O. Har Prasad Singh has stated in his statement that he sent dead body of both deceased for post mortem. He has further stated that he inspected the place of occurrence and prepared the site plan Exhibit Ka.12.

PW5 S.O. Har Prasad Singh has stated that he saw the Lantern which was burning at the time of occurrence and prepared its fard. He has further stated that he saw the torches of witness Israr Ahmed and Riyaz Mohammad Khan and returned them.

PW5 S.O. Har Prasad Singh has stated in his statement that he took blood stained and plain earth from the place of occurrence where the dead body of Smt. Saliman Begum was found. He took blood stained and plain earth from the place lying under caught of deceased Yaqub Ali Khan also.

PW5 S.O. Har Prasad Singh has stated in his statement that one fired cartridge and one hand made cartridge were recovered from the place where dead body of Smt. Saliman Begum was found. He has further stated that he took into possession blood stained (Bandh) of the cot of deceased Yaqub Ali Khan as well as his blood stained (Dari). He took into possession part of quilt also in which holes have been caused by firing. He has proved all the above articles produced before Trial Court as material Exhibit 01 to 10.

PW5 S.O. Har Prasad Singh has stated that he had prepared memos of all above articles. He has stated in his statement that after having completed investigation, he submitted charge sheet Exhibit Ka.13.

PW6 Dr. Satyendra Kumar Srivastava has stated in his statement that on 09.10.1992 he was posted in District Hospital Fatehgarh and on that day he conduced post mortem of deceased Smt. Saliman Begum whose dead body was brought by C.P. 634 Mohan Singh and C.P. 463 Rodan Singh, Police Station Shamsabad and dead body was identified by them.

PW6 Dr. Satyendra Kumar Srivastava has further stated in his statement that on the same day at about 2:15 p.m. he conducted post mortem of deceased Yaqub Ali Khan whose dead body was brought by above said two Constables and was identified by them.

PW6 Dr. Satyendra Kumar Srivastava has proved post mortem reports of deceased Smt. Saliman Begum and Yaqub Ali Khan as Exhibit Ka.14 and Ka.15 respectively.

PW7 Dr. Rakesh Kumar Chatwal has stated in his statement that on 08.10.1992 he was posted in District Hospital Fatehgarh. He has stated that on that day at about 12:50 p.m. he conducted medical examination of PW2 Dayaram. In his statement, he has proved injury of PW2 Dayaram as well as his injury report Exhibit Ka.16.

PW8 Constable Mohan Singh has stated in his statement that on 08.10.1992 he was posted in P.S. Shamsabad as Constable on that day after preparation of inquest report, dead bodies of deceased Yaqub Ali Khan and Smt. Saliman Begum were handed over to him and Constable Rodan Singh in sealed cover. He has stated in his statement that on 09.10.1992 at 9:50 a.m. he reached Police Line Fatehgarh and entry was made at Rapat No. 22 of G.D. on that day.

PW8 Constable Mohan Singh has stated that they were carrying dead bodies with the tractor. Tractor faced mechanical fault in the way which caused delay in reaching Police Line, Fatehgarh.

PW8 Constable Mohan Singh has stated in his statement that dead body of both deceased remained in sealed cover till it was handed over for post mortem.

In the Case of Brahm Swaroop and another Vs. State of U.P. A.I.R. 2011 S.C. 280, Hon'ble Apex Court held that "merely because the witnesses were closed relatives to the deceased that cannot be ground to discard their evidence."

In the case of Vithal Vs. State of Maharashtra (2008) 1 SCC (Crl.) 91, Hon'ble Apex Court held that "testimony of mother of deceased should not be discarded on the ground that she is an interested witness."

In the case of Ranjit Singh and others Vs. State of Madhya Pradesh A.I.R. 2011 S.C. 255, Hon'ble Apex Court held that "undoubtedly, all the eye witnesses including injured witnesses are closely related to the deceased. Thus, in such a fact situation, the law requires the Court to examine their evidence with care and caution. Such close relatives and injured witnesses would definitely not shield the real culprits of the crime and name somebody else because of enmity."

In view of above pronouncements of Hon'ble Apex Court, it is apparent that testimonies of witnesses may not be discarded only on the ground of relationship.

PW1 complainant Akhtar Khan and PW3 Israr Ahmed both have admitted in cross-examination that they are cousin brothers. PW1 complainant Akhtar Khan has stated in cross-examination that deceased Yaqub Ali Khan was grandson of Bhura Khan and his grandfather Dilsher Khan was cousin brother of Bhura Khan. Thus, it is apparent that PW1 complainant Akhtar Khan, PW3 Israr Khan and deceased Yaqub Ali Khan had same pedigree and PW1 complainant Akhtar Khan and PW3 Israr Khan are cousin brothers but in view of above pronouncements of Hon'ble Apex Court, the testimonies of these witnesses PW1 and PW3 may not be discarded merely on the ground of relationship. More over it appears relevant to mention at this juncture that the pedigree admitted by complainant Akhtar Khan shows that PW1 complainant Akhtar Khan and PW3 Israr Ahmed have distant pedigree with deceased Yaqub Ali Khan and there is no evidence on record to show that PW1 complainant Akhtar Khan and PW2 Israr Ahmed had any enmity with accused-appellants. Therefore, there is no reason that PW1 Akhtar Khan and PW3 Israr Khan shall falsely implicate accused-appellants.

PW2 Dayaram has stated in his statement on oath before Trial Court that at the time of occurrence he was lying on cot along with deceased Yaqub Ali Khan and they had quilt over them. He has further stated that in another hut Smt. Saliman Begum wife of Yaqub Ali Khan, Qumar Khan and Kallan Khan, were sleeping on cots. He has stated that at about 2 or 2:30 O'clock in night he was sleeping, he wake up having suffered fire injury and ran towards north. He has stated that he went near tree and saw the occurrence from that place.

PW2 Dayaram has stated in his statement that in morning PW1 complainant Akhtar Khan get report written by PW3 Israr Ahmed. He has further stated that he went to Police Station along with PW1 complainant Akhtar Khan. He has stated that his medical examination was done.

G.D. Exhibit Ka.03 shows that PW2 Dayaram also accompanied PW1 complainant Akhtar Khan at the time of lodging of F.I.R. and his injury has been entered in G.D. Exhibit Ka.03.

Statement of PW7 Dr. Rakesh Kumar Chatwal as well as injury report of PW2 Dayaram Exhibit Ka.16 shows that medical examination of PW2 Dayaram was conducted on 08.10.1992 at 12:50 p.m. in District Hospital Fategarh by PW7 Dr. Rakesh Kumar Chatwal.

Statement of PW7 Dr. Rakesh Kumar Chatwal as well as injury report of PW2 Dayaram Exhibit Ka.16 shows that following injury was found on the body of PW2 Dayaram;

1)Blackening with abrasion in an area of 9cm x 3cm over left lower side of chest tramatic swelling present all around the injury.

Statement of PW7 Dr. Rakesh Kumar Chatwal as well injury report of PW2 Dayaram Exhibit Ka.16 shows that injury found on the body of PW3 Dayaram was caused by fire arm and was half day old at the time of medical examination. Therefore, it is apparent from the statement of PW7 Dr. Rakesh Kumar Chatwal as well as injury report of PW2 Dayaram Exhibit Ka.16 that the injury found on his body may be caused at the time of occurrence alleged by prosecution.

PW2 Dayaram has stated in cross-examination made by defence at page 5 (Page 23 of the Paper Book.) as follows:-

"ge nksuksa ,d gh jtkbZ vks PW2 Dayaram has stated in his examination in chief that at the time of occurrence he was sleeping on cot along with Yaqub Ali Khan and both had quilt over them. Thus, the perusal of statement of PW2 Dayaram shows that he had quilt over him when he received injury of fire.

PW5 S.O. Har Prasad Singh, Investigating Officer has stated in his statement on oath that he has seen quilt in which hole of firing were present. He has taken the part of quilt containing hole of firing. He has proved said part of quilt as material Exhibit 10 before Trial Court.

Thus, it is apparent from statement of PW2 Dayaram that he had quilt over him when he received fire arm injury and this version of PW2 Dayaram is corroborated by statement of PW5 Investigating Officer S.O. Har Prasad Singh and part of quilt material Exhibit 10. The nature of injuries of PW2 Dayaram also corroborates the fact that this injury of PW2 Dayaram has been caused with fire arm while he had quilt over him. Certainly force of pellets will become low in crossing cloth and cotton of quilt. Therefore, we are of the view that injury of PW2 Dayaram is not fabricated but it reveals actual occurrence.

In the case of State of Punjab Vs. Wasam Singh A.I.R. 1981 S.C. 697, Hon'ble Apex Court held that "the fact that some of witnesses escaped unheart is no ground for holding that they were not besides the deceased during attack on him."

In view of this pronouncement of Hon'ble Apex Court it is apparent that presence of PW2 Dayaram may not be disbelieved on the ground that why he suffered only one injury at the time of occurrence when there was occasion to cause him further injuries.

It is apparent from the statement of PW2 Dayaram that having received fire arm injury, he wake up and ran towards north and he went near tree from where he saw the occurrence. Conduct of PW2 Dayaram appears natural.

Besides this the manner in which murder of Yaqub Ali Khan and his wife Saliman Begum has been committed shows that the target was Yaqub Ali Khan and his wife Saliman Begum, not others.

After having considered the whole facts and circumstances of the case as well as evidence on record, we are of the view that presence of PW2 Dayaram may not be disbelieved.

Perusal of statement of PW6 Dr. Satyendra Kumar Srivastava as well as post mortem of deceased Smt. Saliman Begum Exhibit Ka.14 shows that following ante mortem injuries were found on the dead body of Smt. Saliman Begum;

1)Fire arm wound of entry 3cm x 2cm Semicircular on front of neck at level of thyroid margins lacerated and invested lower end with blacknening and latooing present on area13cm x 9cm below & arround wound. Direction from front to back.

2)Incised wound 13cm x 12cm x through & then with amputation (amputated part present) over neck at level of thyroid cartilege to C4 C5 margins clear out ragged. Margins at thyroid cartilege major invested and lacerated due to fire arm injury. The amputated part also shows margins lacerated and invested at level of thyroid in neck with blacking & tattooing around neck rest of the margins are clear out & ragged. On desection of portioned neck merely 13 small pallets recovered.

Statement of PW6 Dr. Satyendra Kumar Srivastava as well as post mortem report of Yaqub Ali Khan Exhibit Ka.15 shows that following antimorem injuries were found on the dead body of Yaqub Ali Khan;

1)Fire arm wound of entry 2.5cm x 2cm x bone deep on lef side face just below left ear margins lacerated invested echyueserd blacking & tatooing around the wound in an area of 10cm x 5cm with communicating wound of exist 3cm x 2.5 cm on right side neck upper part just below angle of mandible margins everted lacerated direction from left to right shortly downward.

2)Incised wound 14cm x 4cm x cervical vertebra body deep front of neck middle part over level of thyroid cartileges margins ragged clear out both angles sharp.

3)Fire arm cutter shaped wound 4cm x 1.5 cm on top of right shoulder.

4)Abrasion 3cm x 1cm front of left shoulder.

5)Fire arm cutter shaped wound 2cm x 1.5cm outer side of left knee. Margins inverted lacerated echyvered outensily blaking looting part around wound everted lacerated latrally.

6)Fire arm wound Giller shefed 3.5cm x 1cm x substances deep over left side chest 11cm below left neeple at 6 Oclock portion. Lacerated invested on left side and lacerated everted on right side.

7)Fire arm wound of entry 4.5cm x 3.5cm cavity deep on right side chest 10cm below right neeple margines invested lacerated echyured blacking latooing prent around the wound in an area of 11cm x 9cm.

8)Fire arm wound of entry 3.5cm x 2.5cm x muscle deep outside left thigh lower part. 3Cm above knee margins lacerated invested ehyered.

Perusal of post mortem reports of both deceased Exhibit Ka.14 and Exhibit Ka.15 as well as statement of PW6 Dr. Satyendra Kumar Srivastava shows that post mortem of Smt. Saliman Begum was conducted on 09.10.1992 at 3:20 p.m. and post mortem of Yaqub Ali Khan was conducted on 09.10.1992 at 2:15 p.m. and time of death of both deceased has been mentioned about one and half day. Thus, time of occurrence alleged by prosecution is corroborated by post mortem reports.

Nature of ante mortem injuries found on the dead body of both deceased shows that they have been caused fire arm injuries as well as incised wound by sharp edged weapons. Deceased Yaqub Ali Khan had 4 fire arm injuries and Smt. Saliman Begum has 1 fire arm injury. Therefore, it is apparent that several fire has been made by assailants to cause injuries to deceased Yaqub Ali Khan and his wife Smt. Saliman Begum.

PW1 complainant Akhtar Khan who in the beginning of his statement said that after having heard noise when he reached hut of Yaqub Ali Khan, he saw Yaqub Ali Khan and his wife Saliman Begum dead, he did not see assailants. He further stated that he did not see accused-appellants there but in cross-examination by Public Prosecutor he has stated that he has seen accused-appellants committing murder of Yaqub Ali Khan and his wife Saliman Begum in the light of Lantern and Torches. He has stated in cross-examination that the place of occurrence is at distance of one furlong in east from the abadi of Village. He has stated in cross-examination made by defence at the time of occurrence, he was going from his house to tube well for taking water for irrigation of field. He has further stated in cross-examination by defence that his field where he was going for irrigation is situated at a distance of one furlong in north-east side from the place of occurrence.

Having heard the noise at dead night the arrival of PW1 complainant Akhtar Khan at the place of occurrence from a distance of one furlong (220 yards) is not unnatural. Having heard the noise he rushed to place of occurrence. He may easily reach the place of occurrence within few minutes.

PW3 Israr Ahmed has stated in his statement that it was 8th October of 1992. At about 2 or 2:30 O'clock in night he was at his house and was preparing to go to fields for irrigation. In the meantime, he heard the noise of firing from the eastern side of Village where huts of Yaqub Ali Khan were situated. He rushed to place of occurrence with torch and fawada and saw the occurrence. Thus arrival of PW3 Israr Ahmed also on place of occurrence from village aabadi is reliable.

As concluded above PW1 complainant Akhtar Khan and PW3 Israr Ahmed have distant pedigree with deceased Yaqub Ali Khan and they have no enmity with accused-appellants. Therefore, there is no reason as to why they shall tell a lie.

Perusal of statement of PW4 Head Constable Nukhai Ram as well as chik F.I.R. Exhibit Ka.02 and G.D. relating to registration of crime Exhibit Ka.03 shows that F.I.R. Exhibit Ka.01 has been presented by PW1 complainant Akhtar Khan in Police Station Shamsabad on 08.10.1992 at 08:30 a.m. and on the basis F.I.R. Exhibit Ka.01 Crime No. 284 of 1992, under Sections 302 and 307 I.P.C. was registered in Police Station Shamsabad, District Farrukhabad.

Inquest report of deceased Yaqub Ali Khan Exhibit Ka.4 proved by PW5 S.O. Har Prasad Singh shows that the preparation of inquest report has been started at 10:00 a.m. of 08.10.1992 and inquest report of deceased Smt. Saliman Begum Exhibit Ka.08 proved by PW5 S.O. Har Prasad Singh shows that preparation of her inquest report has been started at 12:00 p.m. of 08.10.1992. In inquest reports of both deceased Exhibit Ka.04 and Exhibit Ka.08 Crime No. 284 of 1992, under Sections 302 and 307 I.P.C. has been mentioned. A copy of chik F.I.R. has also been annexed in both inquest report Exhibit Ka.04 and Exhibit Ka.8 as annexure 2. In photonash of deceased Yaqub Ali Khan Exhibit Ka.06 as well as photonash of Smt. Saliman Begum Exhibit Ka.10 Crime No. 284 of 1992, under Sections 302 and 307 I.P.C., Police Station Shamsabad, District Farrukhabad has been mentioned.

Thus, in view of statement of PW4 Head Constable Nukhai Ram as well as above documents, it is apparent that F.I.R. Exhibit Ka.01 has been lodged in Police Station Shamsabad on 08.10.1992 at 8:30 a.m. and there is no reasonable ground to presume that F.I.R. is anti time.

Time of occurrence alleged by prosecution is 2:30 a.m. of 08.10.1992 while report has been lodged on the same day at 8:30 a.m. Distance of Police Station from place of occurrence is 9 kilometre. In F.I.R. Exhibit Ka.01 specific mention has been made that due to fear, complainant Akhtar Khan could not go to Police Station in night. Place of occurrence is Village Chilsadda, therefore, the reason stated by complainant in F.I.R. Exhibit Ka.01 for not lodging report at once just after occurrence in night appears reasonable.

Considering the whole facts and circumstances of the case, we are of the view that F.I.R. is not delayed and no adverse presumption may be made against prosecution on the ground of lodging of F.I.R. in the morning at 8:30 a.m. Specific mention has been made in F.I.R. that Yaqub Ali Khan had no issue with his first wife Saliman Begum, therefore, he married Kishwari Begum widow of late Miyan Jaan about 15 to 16 years before occurrence and accused-appellants Jumman Khan, Suleman, Munne Khan and Laeeq are sons of Kishwari Begum and her late husband Miyan Jaan. All of them were annoyed with Yaqub Ali Khan due to his marriage with their mother Kishwari Begam.

In F.I.R. Exhibit Ka.01 it has also been mentioned that no issue was born with wedlock of Kishwari Begum and Yaqub Ali Khan and Jumman Khan desired to get property of Yaqub Ali Khan, but Yaqub Ali Khan sold his some land about 2 years before occurrence and he was thinking to sell his remaining land also. This also caused annoyance to accused Jumman Khan, Suleman, Munne Khan and Laeeq.

PW1 complainant Akhtar Khan has stated in his cross-examination by prosecution that Jumman Khan, Suleman, Munne Khan and Laeeq are sons of Miyan Jaan and Kishwari Begum and after death of Miyan Jaan, Yaqub Ali Khan married their mother Kishwari Begum but no issue was born with wedlock of Kishwari Begum and Yaqub Ali Khan.

PW1 complainant Akhtar Khan has stated in his examination in chief that Yaqub Ali Khan has sold his land for two time before his death and he was thinking to sell his remaining land also. Accused did not like this. All the accused have admitted in their statement under Section 313 Cr.P.C. that all the accused are real brothers and deceased Yaqub Ali Khan was their step-father.

In view of discussion made above, it is apparent from F.I.R. Exhibit Ka.01 as well as statement of PW1 complainant Akhtar Khan that Yaqub Ali Khan married Kishwari Begum, mother of accused-appellants but after marriage no issue was born with their wedlock. In the meantime, Yaqub Ali Khan sold his two properties and was thinking to sell his remaining properties. The desire to get properties of Yaqub Ali Khan through mother Kishwari Begum appears natural and reliable and to secure the right of mother to the properties of Yaqub Ali Khan, murder of Yaqub Ali Khan and his first wife Saliman Begum may be committed by accused-appellants. Therefore, there is strong cause or motive for causing murders of Yaqub Ali Khan and Saliman Begum by accused-appellants.

Prosecution has produced extract of khatauni, certified copy of memo of appeal and certified copy of plaint before Trial Court. These papers are Paper No. 33A, 39A and 40A of Lower Court records. Extract khatauni is public document and certified copy of memo of appeal and certified copy of plaint may be read in evidence under Section 90A of Evidence Act. These papers show that after death of Yaqub Ali Khan the name of Kishwari Begum mother of accused-appellants was substituted in place of deceased Yaqub Ali Khan on his properties vide order dated 28.10.1992 passed by Bhoolekh Nirik chhak. A question has been framed on this issue in questionnaire framed for statement of accused under Section 313 Cr.P.C. In reply to this question all the accused expressed their ignorance and did not make specific denial. Therefore, evidence on record is sufficient to show that name of Kishwari Begum mother of accused-appellants was substituted in place of Yaqub Ali Khan on his properties soon after murders of Yaqub Ali Khan and Smt. Saliman Begum. Substitution of name of Kishwari Begum in place of Yaqub Ali Khan after murders of Yaqub Ali Khan and Smt. Saliman Begum is relevant under Section 8 of Evidence Act.

PW1 complainant Akhtar Khan has stated in cross-examination by defence that one day before murder Yaqub Ali Khan executed a will in favour of his mother. Certified copies of memo of appeal and plaint referred above shows that alleged will of Yaqub Ali Khan has been challenged by Kishwari Begum mother of accused-appellants.

After having considered whole evidence on record as well as whole facts and circumstances of the case, we are of the view that the reason behind murders of Yaqub Ali Khan and Smt. Saliman Begum is property of Yaqub Ali Khan and motive alleged by prosecution for causing murders of both deceased by accused-appellants is highly reliable.

In F.I.R. Exhibit Ka.01 specific mention has been made that in the light of Lantern burning in the hut as well as in the light of torches accused-appellants have been seen and identified. In F.I.R. Exhibit Ka.01, it has also been mentioned that accused were seen and identified by their voice also.

PW5 S.O. Har Prasad Singh has stated in his statement that he has seen the Lantern at the time of inspection and he had shown with letter E, the place where Lantern was burning.

Perusal of site plan Exhibit Ka.12 shows that PW5 S.O. Har Prasad Singh has shown with Letter E, the place where Lantern was burning.

PW5 S.O. Har Prasad Singh has stated in his statement that he had seen the Torches of Israr Ahmed and Riyaz Mohammad Khan and had given in their supurdigi.

PW3 Israr Ahmed has also stated in his statement that he had Torch with him. He has stated in cross-examination that he and Riyaz Mohammad Khan both have Torches and they have lighted their Torches. He has further stated that Lantern was kept on platform (Chabutra) before hut of Smt. Saliman Begum. Thus, the evidence on record is sufficient to believe that Lantern was burning on the place of occurrence in the hut of Smt. Saliman Begum and witnesses Israr Ahmed and Riyaz Mohammad Khan had Torches.

PW3 Israr Ahmed has stated that Lantern was burning at the platform (Chabutra) before the hut of Smt. Saliman Begum. In site plan Exhibit Ka.12 also E Place of lantern has been shown out of hut of Smt. Saliman Begum.

In F.I.R. Exhibit Ka.01, PW1 complainant Akhtar Khan has mentioned that lantern was burning in hut. In cross-examination by prosecution he has stated that the burning lantern was kept out of hut of Smt. Saliman Begum. Therefore, in view of statement of PW1 complainant Akhtar Khan it is clear that place of lantern was out of hut. In cross-examination, PW2 Dayaram has also stated that lantern was burning out of hut. Lantern burning in hut does not mean inside hut, it may be out of hut also. Therefore, we are of the view that there is no contradiction regarding place of lantern.

After having considered entire evidence on record we are of the view that prosecution has proved source of light beyond doubt.

PW2 Dayaram has stated in his statement on oath that he was sleeping with Yaqub Ali Khan on the same cot they had quilt over them. He has further stated in his statement that having received fire injury he wake up and went towards north near tree from where he saw the occurrence. He has stated that accused Jumman Khan, Suleman, Munne Khan and Laeeq fired with Tamanchas, fire made by them caused injuries to Yaqub Ali Khan and him both. He has stated that he raised alarm whereupon PW1 complainant Akhtar Khan, Riyaz Mohammad Khan and PW3 Israr Ahmed came to the place of occurrence. PW2 Dayaram has stated that after having received fire arm injury Yaqub Ali Khan remained on the bed. Accused Suleman, Munne Khan and Jumman Khan caught hold of him on the bed and accused Laeeq cut his throat with gandasa. In the meantime, Smt. Saliman Begum came out of her hut and cried but accused Suleman and Munne Khan caught her and get her fallen. Accused Jumman Khan fired at her. Thereafter, accused Laeeq cut her throat also with gandasa other accused also fire.

PW1 complainant Akhtar Khan has stated in his cross-examination made by public prosecutor that when he reached on spot he saw all accused cutting throat of Yaqub Ali Khan. He has further stated that accused Laeek cut throat of Yaqub Ali Khan and remaining accused caught hold of Yaqub Ali Khan. He has stated in his statement on oath that when Smt. Saliman Begum came out and raised alarm accused Jumman Khan, Suleman and Munne Khan caught hold of her and accused Jumman Khan fired at her neck thereafter, accused Laeek cut her throat.

PW3 Israr Ahmed has also stated that accused Laeek cut the throat of Yaqub Ali Khan while remaining accused caught hold of him. He has also stated that accused Suleman and Munne Khan caused Smt. Saliman Begum to fell down and accused Jumman Khan fired at her neck. Thereafter accused Laeek cut her throat by gandasa. Thus, the statements of all the three witnesses of facts and occurrence are inconsonance with each other regarding manner of occurrence.

Description of ante mortem injuries of deceased Yaqub Ali Khan and Smt. Saliman Begum in their post mortem reports Exhibit Ka.14 and Ka.15 respectively shows that fire armed injuries found on their bodies were having tatooing which shows that fire has been done on the both deceased with close point. Post mortem reports of both deceased show that both deceased have been caused injuries by fire arm and sharp edged weapon. Gandasa is a sharp edged weapon.

In view of above, it is apparent that the version of prosecution and statements of all the three witnesses of occurrence are fully corroborated by medical evidence. Time of death of both deceased is also corroborated by statement of PW6 Dr. S.K. Srivastava and post mortem reports Exhibit Ka.14 and Ka.15. Place of occurrence is corroborated by site plan Exhibit Ka.12 as well as statement of PW5 S.O. Har Prasad Singh.

Defence has shown through documentary evidence that accused-appellant Suleman was witness against Sheo Saran brother of PW2 Dayaram in criminal case under Section 307 I.P.C. but it has not been shown by defence that accused-appellant Suleman deposed in Court against Sheo Saran in said criminal case. It has also not be cleared by defence that PW2 Dayaram and his brother Sheo Saran are living jointly or they have separate living. Relation between PW2 Dayaram and Sheo Saran are cordial, it has also not been established by defence.

Defence has shown through cross-examination of PW2 Dayaram as well as documentary evidence that wife of PW2 Dayaram had lodged a non-cognizable report against accused-appellants in May 1992. But PW2 Dayaram has stated on oath that he had been cultivating fields of Yaqub Ali Khan on Batai for 2 or 4 years before occurrence of present crime. PW2 Dayaram is Bataidar of deceased Yaqub Ali Khan. Therefore, his presence at the time of occurrence with Yaqub Ali Khan for keeping watch of the crops is natural and he is injured also. Learned counsel for the accused-appellants has failed to show any material contradiction in his statement regarding occurrence.

In the case of Dharamveer And Others Vs. State of U.P. A.I.R. 2010 S.C. 1378, Hon'ble Apex Court held that "Enmity with accused can not be sole ground to reject testimony."

In view of above pronouncement of Hon'ble Apex Court as well as discussion made above after having considered all spects and circumstances of the case, we are of the view that testimony of PW2 Dayaram may not be discarded on the ground of enmity alleged by defence.

PW1 complainant Akhtar Khan firstly in examination in chief has turned hostile but later on in cross-examination by prosecution he has fully supported the version of F.I.R. and has proved F.I.R. Exhibit Ka.01. He has stated in cross-examination by prosecution that mother of accused has threaten him. In cross-examination made by defence there is nothing in his statement to show that he is telling a lie. He has lodged report Exhibit Ka.01 soon after the occurrence and said report has been proved by him and PW3 Israr Ahmed.

In view of above considering entire facts and circumstances, it is apparent that PW1 complainant Akhtar Khan firstly tried to conceal true facts of occurrence to save accused-appellants but his conscience did not permit him to conceal truth. Therefore, he stated truth in cross-examination by prosecution.

We have perused whole statements of PW1 complainant Akhtar Khan, PW2 Dayaram and PW3 Israr Ahmed. There is no material contradiction in their statements to disbelieve them. There is no improvement in their statements. In F.I.R. Exhibit Ka.01 as well as in examination in chief of witnesses brief statement of fact has been made and details has been given in cross-examination made by defence. Therefore, contention of learned counsel for the accused-appellants regarding improvement of statement by witnesses is not acceptable.

In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri 2012 (IV) SCC 124, Hon'ble Apex Court held that "minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person."

In the case of State of U.P. Vs. M.K. Anthony A.I.R. 1985 S.C. 48, Hon'ble Apex Court has held that "every honest and truthful witness may differ in some details unrelated to main incident because power of observation, retention and reproduction differ with individuals."

In the case of Faquira Vs. State of U.P. A.I.R. 1976 S.C. 915, Hon'ble Apex Court has held that "minor discrepancy guarantees that witnsses are not tutored."

In the case of State of U.P. Vs. Krishna Master and others 2010 Cr.L.J. 3889 (SC), Hon'ble Apex Court has held that "prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof."

In the case of State of U.P. Vs. Krishna Master (Supra), Hon'ble Apex Court has held that "the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole."

In view of above pronouncements of Hon'ble Apex Court, we are of the view that testimonies of witnesses may not be discarded on the ground of minor contradiction or discrepancy.

In view of discussion made above, after having gone through entire facts and circumstances as well as evidence on record, we are of the view that PW1 complainant Akhtar Khan, PW2 Dayaram and PW3 Israr Ahmed are reliable witnesses and there is no sufficient ground to disbelieve them.

In the case of Narpal Singh Vs. State of Haryana 1977 Cr.L.J. 642 SC at Page 649, Hon'ble Apex Court has held that "if the witnesses examined are believed, the question of inference for non-examination does not arise."

In the case of Mahesh S/o Janardhan Gonnade Vs. State of Maharashtra 2008 (2) Supreme 898, Hon'ble Apex Court has held that "an eye-witness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses."

In view of above pronouncements of Hon'ble Apex Court the testimonies of PW1 complainant Akhtar Khan, PW2 Dayaram and PW3 Israr Ahmed may not be disbelieved merely on the ground that other witnesses named in the F.I.R. or charge sheet have not been examined.

Witness Qumar Khan named in F.I.R. died and could not be examined before Trial Court. Prosecution did not examine witness Kallan named in F.I.R. But in view of conclusion drawn above and principle laid down by Hon'ble Apex Court in above pronouncements no adverse inference may be drawn for non-examination of witness Kallan.

A suggestion has been given by defence to PW1 complainant Akhtar Khan and PW3 Israr Ahmed in cross-examination that present murders have been caused by Gang of Baba. But both of them have negatived this suggestion and there is no evidence on record to suggest that Baba Gang has caused these murders.

In view of discussion made and conclusion drawn above, after having gone through whole facts and circumstances of the case as well as evidence on record, we are of the view that the evidence adduced by prosecution is sufficient to hold accused-appellant guilty of offences punishable under Sections 302/34 and 307/34 I.P.C.

Perusal of impugned judgement of Trial Court shows that Trial Court has gone through entire facts and circumstances of the case as well as evidence on record. Trial Court has considered all relevant points at length. Findings recorded by Trial Court are based on judicious analysis of facts and evidence.

In view of discussion made above as well as conclusion drawn above, we are of the view that the Trial Court has rightly placed reliance upon the evidence adduced by prosecution and has rightly convicted the accused-appellants Jumman Khan, Suleman, Munne Khan and Laeeq for offences punishable under Sections 302/34 and 307/34 I.P.C.

The sentences awarded by Trial Court does not appear excessive and no appeal has been filed by State for enhancement of sentence, we are of the view that there is no justification for interference in the impugned judgement and order of Trial Court.

In view of conclusion drawn above. Appeal has no merit and is liable to be dismissed.

The appeal is dismissed accordingly.

Accused-appellants are on bail. They shall surrender before the Trial Court within 30 days from the date of this judgment for serving sentence, failing which, Trial Court shall ensure their arrest and shall send them Jail for serving sentence awarded to them.

Office is directed to send copy of this judgement and order to Trial Court for compliance.

Send back records of Trial Court immediately.

 
Order Date :- 10.09.2014
 
M/A.
 

 
	(Hon'ble Akhtar Husain Khan, J.)	          (Hon'ble Arun Tandon, J.)

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