Allahabad High Court
Sabir Beg vs State Of U.P. on 6 August, 2018
Author: Mahboob Ali
Bench: Mahboob Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 11.07.2018 Delivered on 06.08.2018 In Chamber Case :- CRIMINAL APPEAL No. - 3991 of 2005 Appellant :- Sabir Beg Respondent :- State Of U.P. Counsel for Appellant :- P.C. Srivastava,A.P.S. Raghav,B.K.Solanki,Rahul Chaturvedi,Shadab Ali,Sudhakar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Hon'ble Mahboob Ali,J.
(Delivered by Hon'ble Mahboob Ali,J) Heard learned counsel for the appellant and learned AGA for the State.
(2). The present appeal has been preferred against the judgement of conviction and order of sentence dated 30.08.2005 passed by learned Additional Sessions Judge/Special Judge (Essential Commodities Act), Badaun in Sessions Trial No. 163 of 1994 (State Vs. Sabir Beg and another) whereby convicting the appellant under Section 302 read with Section 34 IPC and sentencing him to undergo life imprisonment.
(3). As per prosecution case, FIR was lodged by one Sabir Khan P.W.-1, nephew of the deceased, on 08.11.1992 at about 23.30 hours at Police Station Bisauli, District Badaun with regard to the incident which took place on 08.11.1992 at about 5.30 P.M. with the averments that when he along with his uncle Ahmad Nabi Khan @ Sher Khan was returning from graveyard after attending the funeral of one Mukaddas Beg at about 5.30 P.M. on 08.11.1992 and when they reached near the house of one Shamshad Khan of the village, the appellant- Sabir Beg met the deceased and stated that he is spreading rumour against his business, which is adversely affecting his business, on account of which, some altercation took place between them and the appellant ran towards his house and brought a country made pistol along with his father namely, Nabban Beg, who had 12 bore single barrel gun and both of them fired upon the deceased on account of which, he sustained injuries in his abdomen and fell down. It is further averred that when alarm was raised by the first informant, the persons of the village, who were returning from the funeral ceremony came and exhorted the appellant and his father (co-accused) and tried to snatch away the gun, whereupon the co-accused Nabban tried to re-load his gun but the persons collected snatched away the gun from his hand, however, the appellant and his father fled away. After making arrangement for transportation, the injured was being taken to hospital but on the way to hospital, he died near Dabtori Morh, Qasba Bisauli. With regard to the incident, a report was written by Afzal Khan (PW-2) on the dictation of first informant Sabir Khan (PW-1) which was given at the concerned Police Station and the snatched gun was also handed over to the police. Upon aforesaid averments F.I.R. in Case Crime No. 714 of 1992 under Sections 302/504 I.P.C., Case Crime No. 715 of 1992 under Section 25/27 Arms Act and Case Crime No. 716 of 1992 under Sections 30 Arms Act was lodged at Police Station Bisauli, District Badaun.
(4). After registration of the FIR investigation was carried out and charge sheet was submitted before the concerned Court below against three accused persons i.e. Sabir Beg-appellant, Nabban Beg and Ram Pal and during the pendency of the trial Nabban Beg died; since charges were denied by the appellant and another co-accused Ram Pal, they were put to trial, registered as Sessions Trial No. 163 of 1994 (State Vs. Sabir Beg and another) arising out of aforesaid case crime numbers.
(5). The prosecution, in order to prove its case against accused persons, examined as many as five witnesses of whom PW-1 Sabir Khan, the first informant and PW-2 Afzal Khan, were examined as witnesses of fact and PW-3 Hari Dutt Gautam, the investigating officer of the case, PW-4 Dr. A.K. Agarwal who conducted the post mortem of the body of deceased and PW-5 Kalloo Lal Mishra, the pairokar of Police Station, Kadar Chowk, were examined as formal witnesses of the case.
(6). The incriminating evidence and circumstances have been put to the accused-appellant by way of his examination under Section 313 Cr.P.C. so as to afford him an opportunity to render his explanation regarding the same. In his examination under Section 313 Cr.P.C., the appellant alleging his false implication in the case, has stated that Mukaddas Beg was burried in the morning and not in the evening of 08.11.1992 as alleged; he discarded other factums of the case as being wrong; he also discarded the evidence of PW-1 Sabir Khan and PW-2 Afzal Khan being wrong on the basis of their being nephews of the deceased. The appellant has produced two witnesses in his defence namely-Khalil Beg (DW-1) and Pappu (DW-2).
(7). On conclusion of the trial, learned Additional Sessions Judge/Special Judge (Essential Commodities Act), Badaun, after considering the arguments advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, acquitted accused Ram Pal for the offence under Section 30, Arms Act and convicted the accused-appellant Sabir Beg for the offence under Section 302 IPC read with Section 34 IPC and sentenced him to undergo imprisonment for life.
(8). Hence, this appeal.
(9). Learned counsel for the appellant has contended that as per the FIR four eye witnesses namely Sabir Khan, Habeeb, Afzal and Rafiq, have been mentioned, out of whom only two witnesses-Sabir Khan and Afzal Khan, were examined and they too, are nephews of the deceased and there is no independent eye witness of the alleged incident and only the interested witnesses were examined whose testimony cannot be relied upon. Learned counsel for the appellant has further referred to the statement of PW-1 Sabir Khan who had reiterated the prosecution version and in his examination he has tried to develop the story to explain the delay in lodging the FIR which is lodged after an inordinate delay of six hours, while the distance of the Police Station from the place of occurrence, is 10 Km. Learned counsel for the appellant has also drawn attention of the court to the statement of PW-2 and has contended that there are material contradictions between the statement of PW-1 and PW-2 which shows that the presence of PW-2 at the place of occurrence is doubtful. It is further argued that PW-2, the scribe of the FIR did not go the the police station for lodging the FIR nor did he go to attend the post mortem of the deceased, on the other hand he went to Badaun for making a phone call which is highly improbable and doubtful as no person will go for his business work, when his relative has been murdered. Learned counsel has next drawn attention of the court to the examination of the investigating officer (PW-3) wherein he has stated that PW-2 Afzal has not given statement before him that he was standing behind the deceased at the time and place of occurrence. It has also been contended on behalf of the appellant that the post mortem of the deceased was conducted at 2.00 p.m. on 09.11.1992 by Dr. A.K. Agarwal (PW-4) who has stated that the injuries have been caused by at least two fires, about six hours before the post mortem. Learned counsel for the appellant has further contended that the deceased was a history sheeter, therefore, it is possible that on account of his criminal antecedent, he might have been murdered by some other person for which the appellant has been falsely implicated due to old village animosity. It has also been contended that DW-1 and DW-2 have stated that they have not seen the occurrence nor they have seen any person committing the offence, thus, it makes the prosecution story doubtful. Learned counsel has next contended that there was no intention of the appellant to commit the alleged offence as it is a case of single shot without any repeated firing and therefore, it appears that the incident occurred due to heat of the moment. Lastly, learned counsel for the appellant has submitted that the appellant has been in jail for the last more than 12 years.
(10). Per contra, learned AGA has contended that the time of alleged incident has been proved by the contents of the FIR as well as the statements of PW-1 and PW-2 and also by the statement of DW-2 Pappu and there is no material contradiction in the statement of prosecution witnesses and also there is no delay in lodging the FIR as it took time to make arrangement for taking the injured to the hospital and initially no transportation could be available and the first informant (PW-1) proceeded to take the injured on foot by placing him on a cot and on the way he got a tractor and shifted the injured on the tractor and while going to hospital, the deceased died, thereafter an FIR was lodged. Learned AGA has also referred to the statement of PW-4 the Doctor who had conducted the post mortem of the person of the deceased who has stated that the injury could be caused by two fires, which, as per the contention of the learned AGA, is in consonance with the prosecution story. Learned AGA has further referred to the contention of learned counsel for the appellant that the deceased was a history-sheeter and the offence might have been committed by somebody else for which the appellant has been falsely implicated and argued that it is a mere assumption and there is no evidence with regard to this contention whereas the cogent and direct evidence produced by the prosecution has established that the offence has been committed by the appellant. Learned AGA has also refuted this contention of the learned counsel for the appellant that the offence has been committed on sudden provocation and has proceeded to state that it is not a case of sudden provocation and it is a case of clear intention.
(11). While deciding the appeal, the High Court has been guided by the principles laid down by Hon'ble Apex Court from time to time. The Hon'ble Apex Court has propounded the following principles in Padam Singh Vs. State of U.P., 2000 (1) SCC 621.
"It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be Said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate Court in drawing inference from proved and admitted facts. It must be remembered that the appellate Court like the trial Court has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubts as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."
(12). Further guidelines have been issued by the Hon'ble Apex Court in case of Rama & others vs. State of Rajasthan, 2002 (4) SCC 571 which are as under:
"It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused which cannot be permitted under law"
(13). In the case of Majjal Vs. State of Haryana, 2013 (6) SCC 798, three Judges Bench of the Hon'ble Apex Court has issued guidelines which are reproduced below:-
"It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expectd to writ an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which to to the root of the matter."
(14). The aforesaid observations have also been quoted by the Hon'ble Apex Court in the case of Kamlesh Prabhudas Tanna and Anr V. State of Gujarat, 2014 Cr.LJ 443.
(15). Keeping in view the propositions cited above, the Court is to scrutinize the evidence available before it afresh and to draw the conclusion accordingly, bearing in mind the presumption of innocence of accused unless otherwise is established from evidence available on record without being influenced by the findings recorded by learned trial court.
(16). We have heard the submissions of both the parties, perused the record and scrutinized the entire evidence.
(17). Learned counsel for the appellant has submitted that both the witnesses produced by the prosecution as PW-1 and PW-2 are interested witnesses being nephews of the deceased Ahmed Nabi @ Sher Khan and their evidence cannot be relied upon. Learned A.G.A., countering the submission, has contented that evidence of both the witnesses is reliable and consistent.
(18). In order to appreciate respective agruments that has been so advanced on behalf of the parties, this Court at the out set proceeds to note that the evidence that has come on record in the form of eye-witness account is that of PW-1 Sabir Khan who proceeded to describe the deceased Ahmad Nabi @ Sher Khan as his uncle and PW-2 Afzal Khan who has stated the deceased to be his uncle in village-relation. Now the question which arises for consideration is whether the testimony of a witness can be discarded merely on the ground that he happens to be a relative of the deceased. Such an issue has been raised on numerous occasions and the Apex Court has settled parameters on this score.
(19). In the case of Dilip Singh Vs. State of Punjab, AIR 1953 SC 364, Hon'ble Apex Court has observed that the evidence of an eye-witness cannot be discarded merely because he happens to be a relative of the deceased, as close relative would be the last one to screen out the real culprit and implicate innocent person and this aspect of the matter has further been clarified by the Apex Court in the case of Dharnidhar Vs. State of Uttar Pradesh, (2010) 7 SCC 759, relevant paras are extracted below:
"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24)
23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.
13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. AIR 1954 SC 704, where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same."
(20). The Apex Court in the case of Thoti Manohar vs. State of A.P. 2012 (7) SCC has stated as follows:
"39. No evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Thus, the duty of the court is to see with the vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh, wherein H.R. Khanna, J., speaking for the Court, observed thus:
"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by a yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
40. In view of our aforesaid analysis, we are unable to accept the submission of the learned counsel for the appellant that the evidence of the eyewitnesses should be rejected solely on the ground that they are close relatives and interested witnesses."
(21). Law on the subject is thus, clear that in reference to appreciation of evidence of witnesses who are near and dear ones of victims, version of such witnesses cannot be thrown outrightly but the same has to be examined carefully before accepting the same. The testimony of an eye-witness if found truthful, cannot be discarded merely because the eye-witness is a relative of the deceased. Where the witness is wholly unreliable, the Court may discard the statement of such a witness, but where a witness is neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the Court may base its judgement on the statement of said witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of witness is corroborated by other attending circumstances. Such a view has been taken by the Apex Court in the case of Kuria v. State of Rajasthan (2012) 10 SCC 433.
(22). Having scrutinized the eye-witness account carefully, it has come to be concluded that the testimony of PW-1 and PW-2 has been quite consistent.
(23). PW-1 Sabir Khan who happens to be the nephew of the deceased has proceeded to state that on 08.11.1992 at about 5.30 in the evening he and his deceased uncle were coming from the graveyard after the funeral of Mukaddas Beg and as they reached near the house of Shamshad, appellant Sabir came there and argued with the deceased saying that he has damaged his business of milk by misguiding the villagers, this resulted into an altercation between the two and the appellant rushed to his house and brought a country made pistol and also came with him his father having a single barrel gun; both of them father, son duo exhorting the deceased to kill him, shot fire which hit him in his abdomen and he fell down. The witness has further proceeded to mention that other villagers namely Afzal Khan, Habeeb Khan and Rafeek Khan who were coming only behind them, have also witnessed the incident and exhorted the accused persons and snatched away the gun from co-accused Nabban Beg (father of the appellant). PW-1 has further proceeded to state that he rushed to take his injured uncle to hospital by placing him on a cot and on the way when he got a tractor, he shifted the deceased on tractor but he succumbed to injuries enroute then he got a report written by Afzal Khan (PW-2) and gave the same alongwith the snatched gun at Police Station, accordingly, an F.I.R. was lodged at P.S. Bisauli, Badaun.
(24). PW-2 Afzal Khan scribe of the FIR reiterating the factual scenario of the occurrence, has proceeded to support the prosecution version and corroborate the testimony of PW-1. Both the witnesses PW-1 and PW-2 have been very consistent in their deposition and no such significant discrepancy or inconsistency could be brought out in their cross-examination which could cast any shadow of doubt on their credibility; the presence of both the witnesses at the place of occurrence is very natural and justified and there is natural coherence in their statements, thus, it is concluded that eye witness-account of the incident is cogent and clear in the form of evidence of PW-1 Sabir Khan and PW-2 Afzal Khan.
(25). Learned counsel has also argued that there are contradictions in the statements of PW-1 and PW-2.
(26). Learned A.G.A. has refuted the contention advanced on behalf of the appellant and submitted that there are no material contradictions in the statements of PW-1 and PW-2 as PW-1 Sabir Khan has clearly stated that on 08.11.1992 at about 5:30 PM when he and his deceased uncle were returning from the graveyard after the funeral of their villager Mukaddas Beg and as they reached near the house of Shamshad, the appellant Sabir Beg came there and had some altercation with his uncle alleging that the latter had damaged his business by misguiding the villagers, and during this while, the appellant ran to his house and came back with a country made pistol and along with him was his father, co-accused Nabban Beg carrying a licensed gun of co-accused Ram Pal; the appellant and co-accused Nabban Beg exhorted the deceased to kill him and fired at him which hit the deceased and he fell down, this incident was witnessed by Afzal Khan, Rafeek Khan and Habeeb Khan, who were also coming from the graveyard, they exhorted the accused persons and snatched away the gun from co-accused Nabban Beg, who alongwith the appellant fled away. PW-2 Afzal Khan also supporting the prosecution version, corroborated the testimony of PW-1 and deposed that on 08.11.1992 at about 5:30 PM when he alongwith Habeeb Khan and Rafeek was returning from the graveyard after burrying Mukaddas Beg, at the same time, Ahmed Nabi @ Sher Khan and his nephew Sabir Khan, were also coming back from the graveyard, when all of them reached near the house of Shamshad Khan, appellant Sabir Beg met there and argued with the deceased Ahmed Nabi that he has been damaging his business-reputation, this gave rise to an altercation between them and the appellant ran to his house and came back armed with a country made pistol and accompanied by his father Nabban Beg who was also armed with a single barrel gun, the appellant and his father exhorted the deceased that they will not spare him and shot fire at him which hit the deceased in his abdomen and he fell down on the spot, seeing this, he, Sabir, Habeeb and Rafeek exhorted the appellant and his father Nabban who was trying to re-load his gun which was snatched away from him but the appellant and his father pushing the witnesses, fled away from the spot.
(27). Having heard the submissions advanced on behalf of both the parties and having scrutinized the evidence on record, we are of the considered view that there is no material inconsistency in the evidence of PW-1 and PW-2 and their testimony has all through been cogent and consistent with regard to the time, place and manner of the incident.
(28). It has also been contended by the learned counsel for the appellant that the defence witnesses, namely, Khalil Beg (DW-1) and Pappu (DW-2) are of the same village and they have stated to have heard that somebody had killed the deceased (Sher Khan) at about 9:00 PM. Referring the statement of the appellant under Section 313 Cr.P.C. to the effect that funeral of Mukaddas Beg, took place in the morning of 08.11.1992 and not in the evening at 5.30 PM, learned counsel has contended that the statements of DW-1 and DW-2 and the statement of the appellant under Section 313 Cr.P.C., reflect that the offence has not been committed at the time as alleged in the F.I.R. In the presence of direct and cogent eye witness account in the form of PW-1 and PW-2, the bald statement made by DW-1 and DW-2 to the effect that the deceased was killed at 9.00 in the evening, cannot be sustained, these defence witnesses have only stated that they heard the sound of fire and went there and many people were gathered at the place, but there is no evidence to this effect that the offence was committed at 9:00 in the evening. It is significant to mention that DW-1 Khalil Beg has stated that it was being talked about in the village that the gun of Rampal has been used in this case, he has also admitted the killing of the deceased (Sher Khan). Thus in a way DW-1 supports the prosecution version to the extent of the involvement of the gun of Rampal in the incident (which gun was snatched away on the spot from the father of the appellant co-accused) Nabban Beg and factum of murder of the deceased (Sher Khan) with a variation of time on the same day as alleged in the F.I.R. DW-2 has also admitted the murder of the deceased and his dead body lying in the village. He has also admitted the factum that on the same day one mohammedan died in the village who was buried between 4:00 to 5:00 PM, this statement supports the prosecution version that the incident took place at about 5.30 PM when the deceased and witnesses alongwith other villagers were coming back after the funeral of one Mukaddas Beg. Thus, it has come to be concluded that the evidence of DW-1 and DW-2 does not fetch any benefit to the appellant and, instead, their statements render some support to the prosecution case.
(29). Learned counsel for the appellant has also pointed out that PW-2 Afzal Khan is also scribe of the FIR but he did not go to the police station for lodging the FIR nor he went to the hospital to see the postmortem of the deceased being conducted and contrary to this he went to Badaun for making a phone call, thus, the contention of the learned counsel for the appellant is that this conduct of the witness is improbable. Learned A.G.A. in this regard has submitted that PW-2 Afzal is only a scribe of FIR but the FIR has been lodged by Sabir Khan (PW-1) who went to the police station and also handed over to police, the single barrel gun snatched away from co-accused Nabban, thus contention of learned A.G.A. is, that by not accompanying the first informant to the police station by the scribe of the FIR, would not have any adverse effect on the credibility of the witness. We are also in agreement with the submission of learned A.G.A. that this is not so significant a fact which may reflect adversely on the credibility of the witness tainting his conduct as improbable or doubtful, moreover, it is pertinent to mention that PW-2 Afzal Khan is not a family member of the deceased, nor he is a closed relative as PW-1 Sabir Khan is, but as described by the witness, deceased was his uncle in village-relationship.
(30). Learned counsel for the appellant has also contended that there is six hours' delay in lodging the FIR. The incident is alleged to have taken place on 08.11.1992 at 5.30 p.m. wherein deceased Ahmad Nabi @ Sher Khan sustained gun-shot injuries; the FIR was lodged at 11.30 p.m., the same day; distance of the police station from the place of occurrence is mentioned as 10 Km. The first informant Sabir Khan (PW-1) has proceeded to state that after receiving the gun-shot injuries, his uncle Sher Khan fell down and he along with other witnesses, exhorted and chased the accused persons who fled away but the gun from co-accused Nabban was snatched and, immediately, he rushed to take his injured uncle to Hospital on cot and on the way he was placed on the tractor which became available in village Persia but he succumbed to his injuries on way to hospital, then at Bisauli Roadways, he got a report written on his dictation by Afzal Khan (PW 2) and thereafter the same was given at the police station and the gun, snatched away from co-accused Nabban Beg was also deposited at the Police Station. It is worth mention that after such a serious and shocking incident wherein uncle of the first informant received fire arm injuries, it was very obvious and natural for him to first of all, take the injured to hospital and once such is the factual situation that transportation could not be arranged to take the injured to hospital and he was being taken to hospital on foot by placing him on a cot and one tractor could become available only enroute in village Persia and when the injured was being taken to hospital, he died before he could reach the hospital, it is quite natural that in all this arrangements and process a considerable time would have been consumed; again a considerable time was required to get a report written, then going to police station at a distance of 10 km from the place of incident and finally getting an FIR lodged. Once such is the factual matrix, lodging of FIR after 6 hours of the incident, does not reflect any delay.
(31). Learned counsel for the appellant has also contended that injuries were caused by two fires but there is only one entry wound and there are two exist wounds. Countering the submission, learned A.G.A. has contended that the statement of the doctor corroborates the ocular testimony and so far as the question of two exist wounds are concerned, it is quite possible that pellets might have scattered and made another exist. We have not found any inconsistency in the medical evidence vis-a-vis ocular evidence, it is evident that medical evidence corroborates the ocular testimony. Dr. A.K. Agarwal (PW-4) who conducted postmortem of the deceased on 09.11.1992 at 2.00 PM has stated that the deceased died one day before the postmortem i.e., on 08.11.1992 (the date of incident). He has further stated that following anti-mortem injuries were found on the person of the deceased:
(i) Gun shot entry wound on left side of abdomen 7 cm X 7 cm X cavity deep.
(ii) Gun shot exist wound above nabhi 4 cm X 4 cm.
(iii) Gun shot exist wound 2 cm X 2 cm.
Doctor has clearly testified that injury no. 1 i.e. entry wound corresponds to both the exist wounds (i.e. injury no. 2 and 3); he has further proceeded to state that death of the deceased was caused due to shock and haemorrhage due to anti-mortem injuries; he has also stated that injuries are possible to have been caused by two fires. In view of the above, it has come to be established that medical evidence fully corroborates the ocular testimony.
(32). It has also been contended on behalf of the appellant that the deceased was a history-sheeter and somebody might have killed him for which appellant has been falsely implicated due to animosity. In this regard, learned A.G.A. has submitted that the enmity has been admitted by the appellant and there is sufficient direct evidence to the effect that the deceased was done to death by the appellant and his father co-accused Nabban Beg. PW-1 Sabir Khan and PW-2 Afzal Khan have consistently testified that the appellant had some altercation with the deceased alleging that the deceased had tarnished his business-reputation by spreading rumours amongst villagers and in the wake of altercation, the appellant Sabir Beg rushed to his house and brought a country made pistol and this time the appellant was not alone but his father Nabban Beg had also accompanied him with a gun which was snatched away from him on the spot and handed over to the police at the time of lodging the FIR. PW-3 Hari Dutt Gautam, the Investigating Officer of this case has testified the copy of G.D. with regard to the deposition of the said single barrel gun at the police station, thus, the presence of the father of the appellant (co-accused Nabban Beg) on the spot has been established. It has come to be established by the consistent evidence of PW-1 and PW-2 that the appellant and his father came on spot armed with guns and fired at the deceased who sustained gun-shot injuries of which he died, thus, there is direct and cogent evidence regarding the incident having been committed by the appellant and this appears to be a hypothetical assumption that somebody else might have killed the deceased.
(33). Learned counsel for the appellant has further contended that the incident took place on sudden provocation. Learned A.G.A. refuting the contention, has submitted that it is not a case of sudden provocation because after altercation the appellant went to his house and came back on the spot with a country made pistol and his father was also accompanying him with a single barrel gun, this conduct of the appellant and his co-accused father shows their intention to kill the deceased.
(34). Having heard the submissions of both the parties, it would reflect that the appellant had sufficient time to cool down as after the altercation he went to his house, took a country made pistol and came back on the spot with his father who was also having a single barrel gun and significantly the said gun did not belong to co-accused Nabban but belonged to co-accused Ram Pal which would go to show that either the gun was already in the house of the appellant under certain planning or the gun was managed from its owner, the co-accused Ram Pal, both ways it reflects intention on the part of accused persons to eliminate the deceased, thus, it does not appear to be a case of sudden provocation but it is a clear case of intention as both the accused, the appellant and his father came at the place of occurrence, armed with guns and executed their intention in the result of killing the deceased.
(35). Having scrutinized and reassessed the evidence, we are of the considered view that there is direct and cogent evidence regarding the incident in the form of oral testimony of PW-1 and PW-2 which has further been corroborated by the medical evidence. We do not find any infirmity in the impugned judgement and order of conviction and sentence passed by the learned trial Court. Hence, the conviction and sentence of the appellant is upheld.
(36). The appeal is devoid of any merit and is liable to be dismissed. The appeal is dismissed, accordingly.
(Mahboob Ali,J.) (Rajesh Dayal Khare,J.)
Order dated: 06.08.2018
Radhika