Allahabad High Court
Sartaz vs State Of U.P. on 24 February, 2023
Bench: Kaushal Jayendra Thaker, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Court No. - 44 Case :- CRIMINAL APPEAL No. - 6511 of 2006 Appellant :- Sartaz Respondent :- State of U.P. Counsel for Appellant :- Raghuraj Kishore, Anand Kumar Mishra,Mohd. Samiuzzaman Khan, Noor Mohd, Rajiv Kumar, Sachichida Nand, Sameer Jain, Shyam Shanker Pandey, V.M.Zaidi, Yogesh Kumar Srivastava Counsel for Respondent :- Govt. Advocate, P.S.Pundir Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajit Singh,J.
( Per Hon'ble Ajit Singh, J.)
1. Heard learned counsel for the parties and perused the record.
2. This Criminal Appeal has been filed against the judgment and order dated 19.09.2006 passed by learned Additional Sessions Judge, Court No.5, Muzaffarnagar in Sessions Trial No.239 of 2005, Police Station Meerapur, Muzaffarnagar, who by its order convicted the appellant under Section 302/34 I.P.C. for life imprisonment and a fine of Rs.10,000/- in default of payment of fine to further undergo R.I. for one year and further convicted under Section 342 I.P.C. for one year R.I.
3. The prosecution story in brief is that marriage between the accused and Naushaba was solemnized three years prior to the incident. The accused had illicit relations with a girl in the village and on that account a dispute arose between the husband and wife and due to that reason the brother-in-law of the accused wanted to establish physical relations with the daughter of the first informant. Two months before the incident the accused along with his brother-in-law Haji Sayed, Salmu and Islam had reached the house of the informant in a Maruti car and requested the informant to sent back her daughter to her matrimonial home. They also made a promise that in future no difficulty will be faced by her daughter. On the said promise, the informant send back her daughter with them. On 22.9.2004 in the noon, the accused, his brother-in-law Haji Sayed, Salmu and Islam came to the house of informant and taken her daughter on the pretext that they had prepared a ''Tabeez' for her. When the daughter of the informant did not return till late night, then a search was launched but her whereabouts were not known. At about 5:30 a.m. Tasleem and Dilshad told him that at about 8:00 p.m. they had heard the hue and cry emanating from the field of Adesh son of Ompal Jat. Upon hearing the hue and cry both Tasleem and Dilshad reached near the place of occurrence and saw the accused Sartaz, his brother-in-law Haji Sayed, Salmu and Islam causing death to Naushaba by strangulating her with ''Duppata'. When the accused persons saw Tasleem and Dilshad, they chased them and caught. The accused persons had carried them in a ''Maruti' car and left them in the forest at Meerut. After receiving the information when the informant along with some other villagers reached at the spot, he found her daughter lying dead. A ''Duppata' around the neck of the deceased was found and her ''shalwar' was found opened. The locals were also present at the spot.
4. The information of the incident was given to the police and on that basis a case under sections 302 and 342 I.P.C. was registered against accused-appellant Sartaz, Haji Sayed, Samlu and Islam. The investigation of the case was entrusted to S.O. Rampal Singh and after completion of investigation, the I.O. has submitted chargesheet only against the accused/appellant Sartaz under sections 302/34 and 342 I.P.C. and exonerated the other accused, namely, Haji Saeed, Salmu. Cognizance was taken by the learned Magistrate and considering that the case was triable by the court of session and it was committed to the court of session and the session court charged the accused under sections 302/34 and 342 I.P.C.
5. In order to prove its case the prosecution has examined as many as five witnesses namely, PW1 Mujra, who is the complainant of the case, PW2 Dilshad, PW3 Dr. R.C. Gyani, PW4 S.I. Kharak Singh and PW5 Inspector Rajpal Singh.
6. The prosecution has also produced evidence; postmortem report Ex.Ka1, panchayatnama Ex.Ka2, letter to R.I. Ex.Ka3, photolash Ex.Ka4, Chalanlash Ex.Ka5, letter to C.M.O. Ex. Ka6, tabeez Kx.Ka7, site plan Ex.Ka8, chargesheet Ex.Ka9, chik FIR Ex.Ka10, copy of G.D. entry Ex.Ka11, statement of witnesses Ex.Ka12.
7. The prosecution laid the evidence against the accused and the court after prosecution evidence examined the accused under section 313 Cr.P.C. and the accused submitted that he has been falsely implicated in the present case. The accused pleaded not guilty and claimed to be tried.
8. After considering the evidence available on record, the trial court convicted the accused as aforesaid. Being aggrieved by the conviction judgement and order this appeal has been filed.
9. Learned counsel for the accused appellant submits that the accused-appellant is absolutely innocent and has been falsely implicated in the present case. Further submission is that sometime before the alleged incident, the deceased had gone to her parental home, where under suspicious circumstances she was murdered by some unidentified persons in the forest. He further submits that the PW-2 Dilshad, who has testified that he is the resident of the same village, where the incident happened and he had informed the complainant that in the night of 22.09.2004 at about 08:00 p.m. he had gone to attend the call of nature in the forest then he heard hue and cry emanating from the sugarcane field of Aadesh, son of Om Prakash and on reaching there along with Tasleem, son of Maluk at the spot he witnessed that the accused/appellant Sartaz, Haji Said, Salmu and Islam were committing the murder of the deceased Naushaba by tying dupatta around her neck in the torch light. When the accused persons saw the witnesses Tasleem and Dilshad then they caught hold of them, threatened to kill them if they raise alarm. The accused carried them in a Maruti car and dropped them in the forest of Meerut. After receiving the information from both the witnesses, the complainant along with other villagers reached the spot and found lying dead her daughter, Naushaba. A dupatta was found around her neck and her salwar was also found opened. This story put up by the prosecution is totally false, unreliable and improbable. He further submitted that the story narrated by PW-2, Dilshad is totally unreliable and untrustworthy. If the story narrated by PW-2 is accepted to be true on its face value then the question arise if he was caught hold by the accused persons at the place of occurrence, why was he dropped by them without causing any assault, in the jungle of Meerut and why he did not reported the matter to the nearby police station is also quizzing. He also submits that when PW-2 and Taslim were carried away by the accused persons in their Maruti car why they did not raise alarm anywhere for help for their rescue. The evidence given by PW-2 can not be relied upon as he belonged to the same village where the complainant resided, hence his evidence is not worthy and can not be accepted to be true as he was a partisan witness. He further submitted that after registration of the F.I.R. the police had investigated the matter and had absolved the other named accused persons, namely, Haji Saeed, Salmu and Islam from the commission of this crime and had submitted the charge sheet only against the accused/appellant, Sartaz. In support of his submission learned counsel for the appellant has placed reliance upon the judgment of the Apex Court in the case of Harbir Singh, State of Rajasthan VS. Sheesh Pal Singh and others, reported in 2016 Lawsuit (SC), 1031. In paragraph no.25 of the said judgment the Apex Court has held that the evidence of eye witnesses is not truthful, reliable and trustworthy and hence, can not form the basis of conviction. The presence of the witnesses at the scene of occurrence at the time of incident is highly unnatural as also their ability to individually and correctly identify each of the accused from a considerable distance especially when it was dark at the place of occurrence, which is itself suspect.
10. Learned A.G.A. submitted that at the time of incident the deceased Naushaba was carrying pregnancy of eight months and there was a fully developed male fetus in her uterus, which is evident from the statement of Dr. R.C.Gyani and the deceased was brutally done to death.
11. The main question before this Court is whether the accused has committed the murder of the deceased, Naushaba as alleged by the prosecution.
12. In the case of Chunthuram Vs. State of Chhattisgarh, reported in (2020) 10 SCC, 733, the Apex Court in paragraph nos.14 and 15 held as follows:
14. The testimony of the eye-witness Bhagat Ram (PW-4) will now bear scrutiny. His testimony was discarded by the High Court to acquit the co-accused Jagan Ram. To reach a different conclusion for the appellant Chunthuram, the eye-witness's Testimony was found to have been corroborated by Taj Khan (PW2). The question therefore is whether Bhagat Ram (PW-4) can be treated as a reliable eye-witness of the incident. The witness Bhagat Ram admitted to having poor eyesight and through his cross-examination it was elicited that witness is incapable of seeing things beyond one or two feet. The witness also admitted that when he left Tamta market, it was dark and cloudy as it was raining on that day. Besides he claimed to have heard the deceased cry out for help while being attacked. The record indicates that PW4 was at a distance of 200 yards when he heard the cry. However, Taj Khan (PW-2) who was only around 54 yards away from the place of the incident and was expected to better hear the victim's cry, never heard anything. This would render the testimony of Bhagat Ram unreliable, particularly because of the poor vision and hearing capacity of the witness.
15. Next the unnatural conduct of PW4 will require some scrutiny. The witness Bhagat Ram was known to the deceased and claimed to have seen the assault on Laxman by Chunthuram and another person. But curiously, he did not take any pro-active steps in the matter to either report to the police or inform any of the family members. Such conduct of the eyewitness is contrary to human nature. In Amar Singh Vs. State (NST of Delhi), reported in 2020 SCC OnLine SC 826, one of us, Justice Krishna Murari made the following pertinent comments on the unreliability of such eye-witness:-
"32. The conviction of the appellants rests on the oral testimony of PW-1 who was produced as eye witness of the murder of the deceased. Both the Learned Sessions Judge, as well as High Court have placed reliance on the evidence of PW-1 and ordinarily this Court could be reluctant to disturb the concurrent view but since there 17 are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the incorroborated testimony of the sole eye witness. Similar view has been taken by a Three Judge Bench of this Court in the case of Selvaraj V/s The State of Tamil Nadu. Wherein on an appreciation of evidence the prosecution story was found highly improbable and inconsistent of ordinary course of human nature concurrent findings of guilt recorded by the two Courts below was set aside."
13. In the case of Amar Singh Vs. State (NCT of Delhi), reported in (2020) 19 SCC 165, the Apex Court in paragraph nos.17 to 20 held as follows:
"17. This case primarily hinges on the testimony of sole eye witness, Parminder Singh PW-1, brother of the deceased. As already discussed above conviction can be based on the testimony of a single eye witness so long he is found to be wholly reliable. In the light of the settled legal principles we proceed to examine the testimony of Parminder Singh PW-1 and also his conduct at the time of the incident.
18. According to his own testimony on the fateful night at about 10:00 PM, the three brothers (Parminder Singh PW-1, Amar Singh PW-11 and deceased Devinder Singh @ Ladi) left the Mother's house for their respective houses. Parminder Singh and Amar Singh were walking a few paces ahead of Devinder Singh @ Ladi when they heard him shouting ''Bachao-Bachao' when they turned around they found three persons attacking their brother Devinder Singh @ Ladi. Accused Inderjeet Singh was armed with a knife while accused Amar Singh and Shiv Charan were armed with hockey sticks. He further stated that he recognised all the three accused from before and when they try to intervene all the three persons aimed their weapons at them and threatened to kill. Due to assault Devinder Singh @ Ladi fell down on the ground and became unconscious and thereafter the accused persons fled from the place. He also stated that while they were taking care of the injured brother the police van arrived at the spot in which Devinder Singh @ Ladi was removed to the Hospital where he was declared brought dead. During the cross-examination he stated that entire incident barely lasted five minutes and they did not make any complaint to the police but the police came of its own after about 15 minutes of the incident. He had also admitted in the cross- examination that he did not inform his mother though she was living nearby. He also stated that he and his brother Amar Singh went to the Hospital with injured Devinder Singh @ Ladi in the PCR van. He also stated that he informed the Doctor who examined Devinder Singh @ Ladi as to the manner in which he sustained injuries. He also stated that Devinder Singh @ Ladi sustained injury on his head on account of hockey blows however he did not bleed from his head.
19. The unnatural conduct of Parminder Singh PW-1 and Amar Singh PW-11 the two brothers of the deceased which we have noticed from record is that though they claim to be present at the time of occurrence no attempt was made by them to save their brother from assault. Though PW-1 has tried to explain in his examination in chief that when they tried to intervene and save their brother Devinder Singh @Ladi all the three accused persons aimed their weapons at them and threatened that in case they intervened they would also be killed. It may be relevant to notice that Amar Singh PW-11 neither in statement in chief nor in his cross-examination by the prosecution after being declared hostile stated about any efforts made either by him or by PW-1 Parminder Singh to save their brother Devinder Singh @ Ladi when he was attacked. On the contrary PW-11 stated in his examination in chief that he was not able to run because of his spinal injury. In the cross-examination he categorically stated that he never told the police that when they tried to rescue Accused Inderjeet Singh brandished the knife and accused Amar Singh and Shiv Charan brandished hockey towards them threatening to kill anyone who comes to rescue Devinder Singh @ Ladi. He also denied in the cross-examination having ever being given any statement to the police that he had identified the culprits or accused Inderjeet Singh has stabbed with knife and accused Amar Singh gave hockey blows and the front portion of the hockey had broken because of assault and the 3rd accused Shiv Charan also gave hockey blows.
20. The assailants were only armed with hockey sticks and a knife and not with any fire arms. It seems very unnatural that two brothers present on the spot will not even make slightest attempt to intervene and try to save the other brother being assaulted, merely on the threat extended by the assailants armed with hockey sticks and a knife. This unnatural conduct totally against natural human behaviour casts a serious doubt of shadow on the presence of eye witness on the spot at the time of occurrence. Moreover the facts stated by PW-1 Parminder Singh in this regard, as already discussed above, has not been corroborated by the other brother Amar Singh PW-11."
14. After considering the evidence available on record and after perusal of the evidence of the complainant, who is father of the deceased, who has lodged the F.I.R. and the PW-2, who is said to have witnessed the incident, whether their statements are trustworthy and reliable, has to be seen by this Court and after perusal of the statement of PW-2, on whose evidence, the fate of the case hinges, this Court finds that the statement of PW-2 is not truthful, trustworthy and reliable as this witness has allegedly said to have seen the incident from his eyes and he has allegedly seen all the accused strangulating the deceased in his village. This alleged witness was having ample opportunity to raise alarm from the place of incident and he could have raise alarm in the village but he has not raised any alarm anywhere and it has not been mentioned anywhere in the F.I.R. that how the accused overpowered PW-2 and other witness Talseem, who have allegedly seen the incident. The prosecution story seems to be doubtful as the alleged witness PW-2, Dilshad and the witness of the F.I.R. Tasleem have allegedly told the complainant that they had seen the occurrence being committed by all the accused persons does not find support during the investigation from the police as the police has only chargesheeted the accused/appellant-Sartaz and other accused persons were exonerated by the police. There is one more aspect which cast doubt on the prosecution story is that the eye-witness, PW-2, Dilshad was taken away by all the accused to the forest in Meerut and he was released by the accused persons in the night and after his release by the accused persons this witness and other F.I.R. witness, Tasleem had not reported this matter to the police anywhere in the district Meerut or to anywhere in the district Muzaffarnagar. It also seems to be quite unnatural that nowhere it has been mentioned that the accused persons were having fire-arm or any other weapon and by the use of such fire-arm or any other weapon they have overpowered the witness PW-2 Dilshad and F.I.R. witness Tasleem. In such scenario the statement given by the PW-2 Dilshad which does not found any corroboration from any material evidence is highly doubtful and improbable and no reliance can be placed on the testimony of such witness, whose evidence is improbable and could not be relied upon.
15. After assessing the entire oral and documentary evidence this Court feels that the story put forward by the prosecution to prove its case is improbable and seems to be unreliable and untrustworthy and no reliance can be placed on the evidence adduced by the prosecution and prosecution has failed to prove its case beyond reasonable doubt.
16. It seems very unnatural that when two witnesses were present at the spot and they have seen the accused committing the murder of deceased, Naushaba and the deceased was also the resident of the same village and both the witness PW-2 Dilshad and F.I.R. witness Tasleem had not made any attempt to intervene and had not tried to save the deceased where there is no mention of any fire arm or weapon in the F.I.R. or in the statement of PW-2 Dilshad and F.I.R. witness Tasleem about the fact that they were overpowered by pointing out fire arm upon them. This seems to be unnatural conduct of PW-2 Dilshad and other F.I.R. witness, Tasleem and the conduct is totally against the unnatural human behaviour of the villagers, which cast serious doubt of the present of the alleged eye witness of PW-2 Dilshad at the place of occurrence.
17. The fact that after investigation, the police had submitted the charge sheet against the accused/appellant-Sartaz and the police had given clean chit to other named accused. This fact also cast doubt on the veracity of the prosecution story. The statement of PW-2 Dilshad is not trustworthy, reliable and on the basis of this statement, the accused/appellant can not be held guilty.
18. The appeal succeeds. The conviction of the accused/appellant-Sartaz is set aside and it is directed that he be released forthwith from the jail, if he is not wanted in any other case.
19. Record and proceedings be sent back to the court below forthwith.
Order Date : 24.02.2023 R./