Allahabad High Court
Irfan vs State Of U.P. on 8 January, 2020
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 27.11.2019
Delivered on 08.01.2020
Criminal Appeal No. 403 of 2018
Irfan ............ Appellant
Vs.
State of U.P. .......... Respondent
For Appellant : Sri S.P.S. Chauhan
For Respondent : Sri Ankit Prakash, A.G.A.
Criminal Appeal No. 7700 of 2017
Naushad ........... Appellant
Vs.
State of U.P. ....... Respondent
For Appellant : Sri V.P. Srivastava, Senior Adv. assisted by Sri Rajan Srivastava
For Respondent : Sri Ankit Prakash, A.G.A.
Criminal Appeal No. 7775 of 2017
Waseem .............. Appellant
Vs.
State of U.P. ............ Respondent
___________________________________________________________
For Appellant : Sri V.C. Mishra, Senior Adv. assisted by Sri Ashok Kumar
For Respondent : Sri Ankit Prakash, A.G.A.
Criminal Appeal No. 506 of 2017
Mustkeem .........Appellant
Vs.
State of U.P. ...........Respondent
For Appellant : Sri S.P.S. Chauhan
For Respondent : Sri Ankit Prakash, A.G.A.
Criminal Appeal No. 7772 of 2017
Nadeem
Saleem ........ Appellants
Vs.
State of U.P. ........ Respondent
For Appellants : Sri V.C. Mishra, Senior Adv. assisted by Sri Ashok Kumar
For Respondent : Sri Ankit Prakash, A.G.A.
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J.
1. These five appeals have been preferred against a common judgment and order dated 27.11.2017 passed by learned Special Judge (SC & ST Act)/ Additional Sessions Judge, Ghaziabad in Session Trial Nos. 1417 of 2016, 430 of 2017 and 503 of 2017, arising out of Crime No. 280 of 2016, under Sections 147, 302/34, 506 of IPC, Police Station Bhojpur, District Ghaziabad, whereby accused-appellants Irfan, Saleem, Nadeem, Waseem, Naushad and Mustkeem have been convicted under Section 147, 302/149 and 506 IPC. They have been sentenced to two years imprisonment under Section 147 of IPC, imprisonment for life along with fine of Rs. 20,000/- under Section 302/149 and two years imprisonment under Section 506 of IPC. In default of payment of fine, they have to undergo one year additional imprisonment. All the sentences have been directed to run concurrently.
2. As per FIR Ex. Ka-5, version of prosecution is that on intervening night of 21/22.08.2016 at 12:30 am, complainant's son Jeeshan (deceased) had gone outside his home to attend call of nature and after sometime, complainant and his family members heard cries of Jeeshan. Complainant Shaukeen (PW-1), his wife Gulshan (PW-2) and son Mahtab (PW-3) and Gulshanovar came outside their home and saw that accused Irfan, Saleem, Nadeem, Waseem, Naushad and Mustkeem were beating his son Jeeshan. Complainant and his family members tried to stop them but in vain. They gave beatings to Jeeshan by tying him with a tree inside house of Jaan Mohammad, father of accused Saleem, Nadeem and Waseem. Irfan took out a pistol and threatened said witnesses. They had beaten Jeeshan to death and asked complainant to take his dead body away. Complainant and his family members brought Jeeshan to their home and called a doctor, who declared him dead.
3. Complainant Shaukeen reported matter the to police by submitting written complaint Ex. Ka-1 and on that basis, case was registered on 22.08.2016 at 09:30 am against all six accused-appellants under Section 147, 302, 506, 34 of IPC.
4. Inquest proceedings were conducted by PW-10 S.I. Sayeed Ahmad and dead body of deceased was sealed and sent for post-mortem.
5. Post-mortem on dead body of the deceased was conducted by PW-4 Dr. Sudhir Kumar Sharma vide postmortem report Ex. Ka-3 and as per post-mortem report, deceased Jeeshan has sustained following ante-mortem injuries:
(i) Multiple abraded contusion (AC) 30 cm x 26 cm chest.
(ii) AC 30 cm x 8 cm Rt. forearm & hand.
(iii) Multiple AC 36 x 10 cm Rt. shoulder out to elbow joint.
(iv) AC 5 cm and 3 cm Rt. back chest 7 cm below angle of Rt. scapula. (v) Contusion 17 cm x 15 cm on lower back. (vi) Contusion 21 cm x 18 cm Rt. buttock. (vii) Contusion 30 cm x 15 cm Lt. Buttock. (viii) Contusion 14 cm x 10 cm Lt. side back of chest. (ix) Contusion 33 cm x 15 cm Rt. thigh. (x) Contusion 30 cm x 10 cm Lt. thigh. (xi) Contusion 50 cm x 10 cm Lt. arm and forearm. (xii) L.W. 2 cm x 0.5 cm muscle deep on base of thumb of Lt. hand.
The cause of death of deceased was stated due to shock and haemorrhage as a result of ante-mortem injuries.
6. Initial investigation was conducted by PW-6 Rajesh Kumar Sharma, who has prepared site plan of the spot. Some sticks, thapki (wooden stick used in washing clothes), cricket bat and one broken leg of cot were found at the spot and same were taken into police possession vide seizure memo Ex. Ka-6. Further investigation was conducted by PW-7, SHO Ravindra Kumar Rathi, PW-8 Shiv Prakash and PW-9 Virendra Kumar Barwal, who after investigation, filed the charge sheet.
7. During investigation, on 03.09.2016, one wooden stick of spade was recovered at the instance of accused-appellant Irfan and it was taken into possession vide recovery memo Ex. Ka-9. Charge sheet against accused Irfan, Saleem, Nadeem and Mustkeem was filed by PW-9 Virendra Kumar Barwal.
8. Learned trial Court framed charges under Sections 147, 302/34 and 506 of IPC against all the six accused-appellants.
9. In order to bring home guilt of the accused persons, prosecution has examined ten witnesses. Accused persons were examined under Section 313 Cr.P.C. wherein they have denied the prosecution version and claimed false implication. In defence, they have examined two witnesses.
10. After hearing and analysing evidence on record, accused appellants have been convicted under Sections 147, 302/149, 506 of IPC by trial court vide impugned judgment and order dated 27.11.2017 and sentenced as stated in para no. 1 of this judgement.
11. Being aggrieved by the impugned judgment and order, accused-appellants Irfan has preferred Criminal Appeal No. 403 of 2018, Accused-appellant Waseem has preferred Criminal Appeal No. 7775 of 2017, accused-appellant Mustkeem has preferred Crimial Appeal No. 506 of 2018, accused appellant Naushad has preferred Criminal Appeal No. 7700 of 2017, and accused appellants Nadeem and Saleem have preferred Criminal Appeal No. 7772 of 2017. As all these appeals pertain to same incident and common judgment and order, thus, these are being disposed of by this common judgment.
12. Heard Sri S.P.S. Chauhan, learned counsel for accused- appellants-Irfan and Mustkeem, Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Rajan Srivastava, learned counsel for accused-appellant-Naushad, Sri V.C. Mishra, learned Senior Counsel assisted by Sri Ashok Kumar Pandey, learned counsel for accused-appellants Nadeem, Saleem and Waseem and Sri Amit Sinha, learned A.G.A. for the State and perused the record.
13. Learned counsel for the appellants submit:-
(i) PW-1 Shaukeen, PW-2 Gulshan and PW-3 Mahtab are interested witnesses and there are various contradictions and inconsistencies in statement of these witnesses. No independent witness was examined. It was submitted that testimony of these interested witnesses is not reliable.
(ii) that prosecution has not clarified that why and how deceased has reached inside the house of Jan Mohammad. It was pointed out that there was toilet in the house of deceased and that there was open place adjoining to his house, as indicated in site plan of the spot, but despite that deceased has gone to house of Jaan Mohammad, which creates doubt about entire prosecution version.
(iii) That as per prosecution version alleged incident of beating took place in the house of Jaan Mohammad but site plan of the spot shows that alleged weapons stick, thapki, cricket bat etc. were found lying in house of deceased near his dead body. Even if body of deceased was shifted from house of Jaan Mohammad to the house of complainant, it is not clear that how these weapons have reached there. Learned counsel argued that all these facts create serious doubt about spot of incident.
(iv) that trial court has not considered statements of CW-1 Surendra Kumar, CW-2 Dinesh Kumar Sharma, CW-3 Ramhit Tripathi, CW-4 Dharamvir Gautam and of CW-5 Pratap Singh, and thus,committed an error by convicting accused-appellants.
(v) that there is delay in lodging the FIR. It was submitted that alleged incident took place at around 12:30 in night whereas FIR has been lodged at 09:30 am, which makes prosecution version doubtful.
(vi) There is nothing to show that there was any source of light at the spot and thus, identity of accused-appellants is not established.
(vii) Regarding accused-appellant Naushad, it was also submitted by learned Senior Counsel that during investigation his involvement was not found in the alleged incident and there is evidence on record, which indicates that accused-appellant Naushad has accompanied the complainant while he has gone to lodge FIR. It was argued that involvement of accused Naushad is thoroughly doubtful and learned trial court committed error by convicting him.
(viii) that the deceased has not sustained any serious injury, rather he has sustained only contusions. As per prosecution version, one of accused was armed with pistol but no firearm injury was caused to deceased. Similarly, no injury was caused at vital parts of deceased. It was argued if accused-appellants might have intention to commit murder of deceased, they would have attacked him at vital parts like head but there was no injury at head and one accused was armed with pistol but it was not used. It was argued that in view of nature of injuries and attending facts and circumstances of the case, it is clear that accused-appellants have no intention to commit murder of deceased nor they can be attributed with any such knowledge that they knew that alleged act would result into death of deceased. It was submitted that at the most, it is a case of causing simple injury to deceased and thus, accused-appellants can not be convicted for more grievous offence then the one under Section 323 of IPC.
14. Per-contra, it has been submitted by learned State counsel that all the three eye witnesses have supported prosecution version and there was no major contradiction in their testimony. As incident took place near their house, thus, presence of these witnesses at the spot is established. All the accused persons were known to these witnesses since before incident and in fact, accused appellants Irfan, Saleem, Nadeem, Waseem and Naushad were neighbour of complainant and thus, they could have been easily identified. It was submitted that six accused persons have given beatings to deceased with weapons like stick, cricket bat, thapki and leg of cot and thus, it can be inferred that they have intention to commit murder of deceased. There is no contradiction between oral and medical evidence. The act of accused persons falls under Sections 302/149 of IPC. There was no undue delay in lodging FIR, as the alleged incident took place in mid night at 12:30 am and police station was situated at a distance of ten kilometres from spot and FIR was lodged at 09:30 am. The contradictions cited by learned counsel for the appellants regarding position of spot and alleged weapons, are minor in nature and testimony of eye witnesses can not be disbelieved on such grounds. Learned State Counsel argued that conviction of appellants is based on evidence and that learned trial court has appreciated evidence properly and convicted accused-appellants.
15. We have considered the rival submissions and perused the record.
16. In evidence, PW-1 Shaukeen stated that incident took place on night of 22.08.2016 at 12:30 am. After hearing noise, He (PW-1) and his family members saw that his son (deceased) was not in his cot and when they went outside their home, they saw that Jeeshan was lying tied with Pilkhan tree in house of Jaan Mohammad and all the six accused-appellants were giving beatings to him with Serva (part of cot), bamboo stick, cricket wicket and thapki. When PW-1 Shaukeen tried to intervene, accused persons told that deceased was having evil eye on daughter of Mustkeem, namely, Bushra and thus, they would kill him. PW 1 Shaukeen tried to make them understand but accused-appellants continued beating for 20-25 minutes and they left him when they felt that he has died. PW-1 Shaukeen stated that incident was also witnessed by his wife Gulshan and sons Mahtab and Gulshanovar. Accused persons have slapped Gulshanovar and when PW-3 Mahtab has tried to save the deceased, Irfan has threatened him at point of pistol. PW-1 Shaukeen and his family members untied deceased from tree and brought him to their home. They called a bengali doctor, who stated that Jeeshan has died. PW-1 Shaukeen has lodged FIR by submitting written tehrir Ex. Ka-1. Police have reached at spot and have seized leg of cot, bamboo stick, cricket wicket and thapki etc from spot and inquest proceedings were conducted.
17. PW-2 Gulshan, who is wife of complainant Shaukeen, stated that on the night of incident, at around 12:30 am, she and her family members heard noise and when they went towards the spot, they saw that all the six accused persons were beating her son Jeeshan by tying him with Pilkhan tree in house of Jan Mohammad. When they tried to intervene, accused persons told that deceased was having evil intention on daughter of Mustkeem, namely, Bushra. When they tried to save deceased, Irfan has threatened by pointing pistol at her son Mahtab. All the accused persons have given beatings to deceased with cot leg, bamboo stick, cricket wicket. When deceased reached in condition of death, only then they left him and asked to take his body away from there. PW-2 Gulshan stated that they brought Jeeshan to their home and a bengali doctor was called but the doctor told that Jeeshan has died.
18. PW-3 Mahtab, who is son of complainant Shaukeen, has also made a similar statement and stated that on night of 21.08.2016 at around 12:30 am, he has awoken hearing noise and saw that his brother Jeeshan was not at home. He saw that accused persons were beating Jeeshan by tying him with a Pilkhan tree in house of Jaan Mohammad. All these accused persons were beating deceased with wicket, leg of coat, thapki and stick. When they asked reason of same, accused Mustkeem told that deceased used to keep an evil eye on his daughter Bushra. When PW-3 Mahtab tried to save his brother, accused Irfan pointed pistol at him and threatened to kill him. All the accused persons have given beatings to deceased for about 30-45 minutes, till he became in dead condition and after that they asked to take his dead body away. PW-3 Mahtab and his family members brought deceased to their house and bengali doctor was called, who told that Jeeshan has died.
19. PW-4 Dr. Sudhir Kumar Sharma has conducted post-mortem on dead body of the deceased.
20. PW-5 Kunwar Pal Singh has recorded FIR.
21. PW-6 Rajesh Kumar Sharma, in-charge of Police Station Bhojpur, has conducted investigation and PW-7 Ravindra Kumar Rathi, PW-8 Shiv Prakash Singh and PW-9 Virendra Kumar Barwal have conducted part investigation. PW-10 Sayeed Ahmad is a witness of inquest and seizure memo of alleged weapons.
22. CW-1 SI Surendra Kumar has stated that on 22.08.2016, he was posted at police control room, Ghaziabad and on that day at 7:49:17, information was received from mobile number 7078550410 that in village Kalchhina a 12-13 year-old-child has been murdered. At 16:13:11, information was received from same mobile number that an scuffle has taken place and at 23:56:26 information was received that some thieves have trespassed into house. He has filed copies of these record, which have been exhibited as Ga-1 and Ga-2.
23. CW-2 Dinesh Kumar Sharma was also working in control room and he has forwarded above stated information to concerned police authorities.
24. CW-3 HCP Ramhit Tripathi has produced guest register of Police Station Bhojpur in court, whereas CW-4 Dharamveer Gautam has filed report of Circle Officer office that CD of statement of Shaukeen was not available. CW-5 Constable Pratap Singh has also made similar statement.
25. DW-1 Najru @ Nazzu has stated that his house is situated near house of complainant Shaukeen and on 21/22.08.2016, Jeeshan son of Shaukeen was murdered and after that on 22.08.2016, Naushad son of Shamshad has visited house of Shaukeen and Shamshad has taken him to police station for lodging FIR.
26. DW-2 Ishteqar has stated that on night of 21.08.2016, his relative Haji Naushad has stayed at his house in Kalchhina village and on morning of 22.08.2016, after hearing that one Jeeshan son of Shaukeen has been murdered, he as well as Naushad have gone at house of Shaukeen and after that Haji Naushad and Shaukeen have gone to police station for lodging report.
27. So far as the question of delay in lodging FIR is concerned, it is well settled, if delay in lodging FIR has been explained from the evidence on record, no adverse inference can be drawn against prosecution merely on the ground that the FIR was lodged with delay. There is no hard and fast rule that any length of delay in lodging FIR would automatically render the prosecution case doubtful. In "Ravinder Kumar & Anr. Vs. State of Punjab", (2001) 7SCC 690, has held;
''The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."
In Sahebrao & Anr. Vs. State of Maharashtra (2006) 9 SCC 794, Court has held:
"The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."..
From the above discussed exposition of law, it is manifest that prosecution version can not be rejected solely on the ground of delay in lodging FIR. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR. In Tara Singh V. State of Punjab AIR (1991) SC 63, it was observed that the delay in giving the FIR by itself can not be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case.
28. In instant case, the alleged incident took place on intervening night of 21/22.08.2016 at 12.30 AM and the FIR was registered on the same day (22.8.2016) at 09.30 AM. The distance of police station from spot has been shown of 10 Km. PW 1 has stated that after incident, they brought dead body of deceased to their home and called a doctor, who has stated that deceased has already died and thereafter, in morning, he has gone to police station to lodge FIR. In view of these facts and circumstances, the period which elapsed in lodging the FIR of the incident has been explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.30 AM. Recently in Palani V State of Tamilnadu, Criminal Appeal No. 1100 of 2009, decided on 27.11.2018, it was observed by the Hon'ble Supreme Court that in some cases delay in registration of FIR is inevitable. Even a long delay can be condoned if witness has no motive for falsely implicating the accused. In the instant case, in view of all these facts, it can not be said that there is undue delay in lodging the FIR and thus, the contention of learned counsel for the appellant has no force.
29. So far the contention that PW-1 Shaukeen, PW-2 Gulshan and PW-3 Mahtab, being closely related to deceased, are interested witnesses, is concerned, it is well settled that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In case of State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Apex Court that ordinarily the mere relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. The contention about branding the witnesses as 'interested witness' and credibility of close relationship of witnesses has been examined by Apex Court in number of cases. It has been held by the Hon'ble Apex Court that a close relative, who is a very natural witness in the circumstances of a case, can not be regarded as an 'interested witness'. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 (1954), is one of the earliest cases on the point. In that case, it was held:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 (1977) 4 SCC 452, the Apex Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
"it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
In Jayabalan Vs. UT of Pondicherry (2010) 1 SCC 199, the Supreme Court held as under:
"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."
Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by the Apex Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
From above mentioned pronouncements, it is clear that a close relative, who is a very natural witness in the circumstances of a case, can not be regarded as an 'interested witness' unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. A survey of the judicial pronouncements of the Hon'ble Apex Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
30. Keeping in view the aforesaid legal position in mind, in the instant case, it may be seen that PW-1 is father of deceased Jeeshan, PW-2 is mother of deceased and wife of complainant and PW-3 Mahtab is brother of deceased and thus, all these witnesses were closely related to each other and to deceased but the alleged incident took place in midnight at about 12:30 AM, just in house adjoining to their house and their version is that after hearing cries of their son Jeeshan, they have reached at spot and witnessed alleged incident and thus, their presence at spot of incident is quite natural and probable. If an incident takes place just outside their house, the inmates of that house are natural witnesses and they can not be levelled as interested witnesses. All these witnesses have been subjected to cross-examination, but no such fact could emerge, which may create any doubt about their presence at spot. Thus, the evidence of these witnesses can not be doubted on the ground that they are closely related to each other or to deceased.
31. As far as the argument of the defence is concerned that no independent witness has been examined, it is not the case of prosecution that public persons have also reached at spot. Even otherwise, there is no such law that testimony of a related witness has to be necessarily corroborated by some independent witness. The test is whether the testimony of such related witness is found credible and inspires confidence. It is trite that that it is the quality of evidence and not quantity of evidence, which matters. Even testimony of sole eye witness can be acted upon to base conviction, if it is found credible and inspires confidence of court. There is no such law or rule that all the witnesses have necessarily to be examined. If a fact has been proved by a reliable and credible evidence of a witness, there is no legal requirement to examine any other witness to support that fact. There is no such law that the testimony of an eye-witness can not be relied upon unless it is corroborated by some independent witness. Corroboration is a rule of caution and not a mandatory requirement. If the testimony of an eye-witness is clear, cogent and credible, such testimony can not disbelieved on the ground that it has not been corroborated by any independent witness. It is the quality and not the quantity of the evidence, which matters. In case of Gulam Sarbar vs. State of Bihar, Criminal Appeal No. 1316 of 2012, the Hon'ble Apex Court has held that:
"In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle that the test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence. (Vide:Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638;Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626; Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10; and Kishan Chand v. State of Haryana JT 2013( 1) SC 222)."
32. In instant case, prosecution has examined three eye witnesses (PW-1, PW-2 and PW-3). Presence of these witnesses at spot appears natural. Their presence is established by fact that they have brought body of deceased from house of Jaan Mohammad to their house. So far their presence at spot is concerned, no major contradiction or infirmity could be pointed out in their testimony. Considering entire facts and the above discussed position of law, testimony of PW-1 Shaukeen, PW-2 Gulshan and PW-3 Mahtab cannot be disbelieved or doubted on ground that no independent witness has been examined and thus, contention of learned senior counsel has no force.
33. It was next argued that prosecution has not clarified as to why deceased has gone inside the house of Jan Mohammad, that too in mid night. It was pointed out that there was toilet in house of deceased and that there was open place adjoining to his house but despite that deceased has gone to house of Jan Mohammad, which creates doubt about entire prosecution version.
In this connection, it may be seen that all the three eye-witnesses have consistently stated that when they asked accused-appellants as to why they were beating deceased, they were told by accused-appellants that deceased was having evil eye on Bushra, daughter of daughter of accused-appellant Mustkeem and used to tease her. Suggestions were also made to PW-1 Shaukeen, PW-2 Gulshan and PW-3 Mahtab that deceased Jeeshan was having evil eye on Bushra and he used to tease her. In his cross-examination, PW-1 Shaukeen has admitted that earlier Mustkeem has made a complaint to him that his son Jeeshan used to tease his daughter Bushra. Though various other suggestions like that deceased used to indulge in commission of theft and he was beaten by some persons in that connection, that he was involved in some incident of robbery at Noida and that earlier he has misbehaved with daughters of one Prakashi etc, were also made but there is absolutely nothing on record to indicate any such eventuality. Considering entire evidence in attending facts and circumstances of case, it appears quite probable that, as deceased was having some affair with alleged Bushra and he has gone in house Jan Mohammed in connection with his relationship with alleged Bushra. Though, as per prosecution case, deceased has gone to attend call of nature but this aspect of prosecution does not appear convincing as it has come in evidence that there was toilet in house of deceased and that there was open place adjoining to his house. Prosecution has not come up with any such theory that even if deceased has gone to attend call of nature, how he reached inside house of Jan Mohammed. However, this version of said eye witnesses that when hearing cries, they came outside their home, they have seen that accused persons were beating deceased by tying him with tree inside house Jan Mohammed, the same appears cogent and reliable and it is not affected on ground of alleged inconsistency that how deceased reached there. Here it would be relevant to mention that accused-appellants have also not come up with any satisfactory theory that how deceased reached in house of Jan Mohammed. Be that as it may, substance of testimony of said eye witnesses can not be doubted on that ground.
34. It was also pointed out by learned counsel for appellants that as per prosecution version alleged incident took place inside the house of Jaan Mohammed, but as per evidence of Investigating Officer, alleged weapons have been found in house of complainant, near dead body of deceased. In this connection, it may be observed that it has been consistently spoken by all three eye witnesses that when they reached at the spot, all accused-appellants were beating the deceased with bamboo stick, cricket bat, leg of cot and 'thapki' and when deceased became in dead condition, they asked to take away his body and after that PW-1 Shaukeen and his family members have brought the deceased to their home. It is correct that as per the Investigating Officer, alleged weapons were seized from the place, where dead body of deceased was lying, whereas incident of beating took place inside house of Jaan Mohammed, but recovery memo Ex.Ka.6 does not say that they were recovered from house of deceased. No doubt, there is contradiction regarding spot, from where alleged weapons were seized, however, question arises whether merely on basis of that contradiction, prosecution version becomes doubtful. It is well settled that testimony of a witness has to be examined as a whole. May be, this fact might have arisen due to carelessness of Investigating Officer. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Be that as it may, considering the evidence of alleged eye-witnesses, in attending fact and circumstances of case, alleged contradiction would not go to the root of matter. This contradiction is not of such a nature so as to create doubt about authenticity of evidence of said eye witnesses, which otherwise is quite consistent, cogent and credible.
35. It was also submitted on behalf of appellants that there is nothing to show that there was any source of light at the spot and thus, identity of accused-appellants is not established. In this connection, it may be observed that PW 3 Mahtab has clearly stated in his cross-examination that there was electricity light at spot. It has come in evidence that there were electricity connections in village. Further all the accused-appellants were known to the eye-witnesses since before the incident and in fact accused-appellants Saleem, Nadeem and Waseem were neighbour of complainant. Similarly accused-appellant Mustkeem was also related to them and was residing near house of complainant. In view of these facts, it can not be said that identity of accused-appellants is not established.
36. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC 796).
37. Regarding accused-appellant Naushad, it was also submitted by learned Senior Counsel that during investigation his involvement was not found in alleged incident and there is evidence on record, which indicates that accused-appellant has accompanied the complainant, while he has gone to lodge FIR. It was submitted that considering the evidence of court witnesses (CW-1 to CW-5), involvement of accused Naushad is thoroughly doubtful and learned trial court committed error by convicting him.
38. After considering the entire evidence, we find no force in the above contention. Though it appears from record that initially he was not charge sheeted by police and he was summoned by the trial court under section 319 CrPC, however, record further reflects that later on charge sheet was also filed against him. Be that as it may, fact remains that all the three eye-witnesses have consistently deposed about involvement of accused Naushad in alleged incident. The evidence of said court witnesses (CW-1 to CW-5) has been failed to erode the substance of eye-witnesses. In this regard, it may also be stated that from the evidence it appears that there was one more person by name of Naushad. It could not be established that it was accused-appellant Naushad, who has gone with complainant for lodging of FIR. PW-1 Shaukeen has candidly accepted in his cross-examination that he has no previous enmity with accused-appellant Naushad. There are absolutely no reasons, why complainant and other eye-witnesses of incident would depose falsely against him. In the alleged incident, complainant has lost his 18 years old son and it cannot be expected that he would depose falsely against an innocent person. After considering the entire evidence, we do not find any force in said contention.
39. Having considered the entire evidence on record, it is apparent that after incident, FIR was lodged, naming all the other accused-appellants. PW-1 Shaukeen, PW-2 Gulshan and PW-3 Mahtab have made clear and cogent statements regarding entire incident. The alleged incident took place in house of Jaan Mohammed, which is adjoining to the house of these witnesses and thus, presence of these witnesses, at the scene of offence, is quite natural. These witnesses have been subjected to quite lengthy cross- examination, but no such material fact could emerge in their cross-examination so as to create any doubt about their presence at the spot or otherwise to affect their credibility. The version of PW-1 has been corroborated by PW-2 and PW-3. The version of said eye-witnesses is consistent with medical evidence. Considering the entire evidence and all attending facts and circumstances of the case, testimony of PW-1 Shaukeen, PW-2 Gulshan and PW-3 Mahtab, appears trustworthy. In view of entire evidence on record, the involvement of all the six accused-appellants in the incident is established.
40. However, examining the entire evidence carefully, it appears that evidence regarding common object of unlawful assembly, comprising all the accused-appellants, was not to commit murder of deceased. Perusal of evidence on record and attending facts and circumstances of case give an indication that deceased was having an affair with alleged Bushra, daughter of Mustkeem and in that connection, he has gone to the house of accused Saleem, Nadeem and Waseem, sons of Jaan Mohammed. Though deceased was attacked by six accused persons, but no injury was caused at his head and he suffered 11 contusions and one lacerated wounds on different part of his body, mainly on back, hips and on hands and feet. Deceased died as his spleen was lacerated. As per eye witnesses, one of the accused-appellant namely Irfan was armed with pistol, but no injury was caused by fire arm. Now question arises, whether object of unlawful assembly, comprising all accused-appellants, was to commit murder of deceased or only to cause injury to him? Provisions of Section 149 of IPC provide that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The first part of Section 149 of IPC states about the commission of an offence in prosecution of the common object of the assembly whereas the second part takes within its fold knowledge of likelihood of the commission of that offence in prosecution of the common object. Scope of two parts of Section 149 of IPC has been explained in Rajendra Shantaram Todankar Vs. State of Maharashtra and Ors. [JT 2003 (2) SC 95], this Court has explained Section 149 of IPC and held as under:
"14. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 -- either clause -- is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act...... " [underlining added].
The same principles have been reiterated in State of Punjab v. Sanjiv Kumar alias Sanju and Ors. [JT 2007 (9) SC 274]. Creation of vicarious liability under Section 149 of IPC is well elucidated in Allauddin Mian and Others, Sharif Mian and Anr. v. State of Bihar [JT 1989 (2) SC 171], themselves Court held:
"8. ........Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly......" [underlining added].
The same principles were reiterated in paras (26) and (27) in Daya Kishan v. State of Haryana [JT 2010 (4) SC 325] and also in Kuldip Yadav and Ors. v. State of Bihar [JT 2011 (4) SC 436].
Whether the members of unlawful assembly really had the common object to commit murder of deceased has to be decided in the facts and circumstances of each case, nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the circumstances under which the occurrence took place. It is an inference to be deduced from the facts and circumstances of each case (vide Lalji and Ors. v. State of U.P. [JT 1989 (1) SC 109]; Ranbir Yadav v. State of Bihar [JT 1995 (3) SC 228]; Rachamreddy Chenna Reddy and Ors. v. State of A.P. [JT 1999 (1) SC 412].
In prosecution of ''common object' means ''in order to attain the common object'. Effect of Section 149 of IPC may be different on different members of the same assembly. Common object is determined keeping in view the nature of the assembly, arms carried by members and behaviour of members present near the scene of incident. It is not necessary in all cases that the same must be translated into action or be successful. It is well settled that the expression ''in prosecution of common object'' has to be strictly construed as equivalent to ''in order to attain the common object.' The word ''knew' used in the second part of Section 149 of IPC implies something more than possibility and it cannot bear the sense of might have known'. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object. Members of an unlawful assembly may have community of object up to a certain point. The ''common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances.
41. Coming to the facts of present case, perusal of evidence shows that deceased was having an affair with alleged Bushra, daughter of Mustkeem and in mid night, he has gone to the house of accused Saleem, Nadeem and Waseem. Said Bushra was niece of these accused persons and that the house of these accused persons was adjacent to the house of accused Mustkeem, father of alleged Bushra. Though it appears that deceased was beaten mercilessly but no injury was caused at his head. Deceased has sustained 11 contusions around back of chest, hips, arms and leg and one lacerated wound at base of his thumb of left hand. No injury was caused at head or neck of deceased. It is also in evidence that accused-appellant Irfan was having a pistol, but no fire arm injury was caused to deceased. As per autopsy surgeon, his brain was pale and about one litre blood has accumulated in abdominal cavity and spleen was lacerated. Though PW-4 Dr Sudhir Kumar Sharma, who conducted post-mortem, has stated that cause of death was due to shock & haemorrhage, as a result of ante-mortem injuries, but it appears that deceased died due to laceration of his spleen. It goes without saying that laceration of spleen has taken place due to impact of injuries caused by accused-appellants on body of deceased. Here it may be reiterated that it was deceased, who has gone into house of the accused persons in mid night. It would be pertinent to mention that a suggestion was made to PW-3 Mahtab that deceased suffered injuries on his back due to beating, when he was found lying over Bushra. Keeping in view all these facts, nature of injuries, evidence on record and all attending facts and circumstances, it appears to be doubtful that common object of alleged unlawful assembly was to commit murder of deceased. Having considered the entire evidence carefully, it appears that common object of said unlawful assembly was only to cause grievous injuries to deceased and thus, the mischief of all accused-appellants would fall within ambit of Section 325/149 of IPC and not under Section 302/149 of IPC. Therefore, conviction and sentence of accused-appellants under Section 302/149 of IPC is liable to be altered under Section 325/149 of IPC. However, conviction of accused-appellants under Sections 147 and 506 of IPC, calls no interference.
42. So far as question of sentence is concerned, alleged incident took place on account of fact that deceased was having affair with daughter of accused-appellant Mustkeem and deceased has gone to house of accused-appellants Saleem, Nadeem and Waseem in midnight. Considering all the aspects, award of rigorous imprisonment of two and a half years under Section 325/149 of IPC along with some compensation to father of deceased, would serve ends of justice.
43. In view of the evidence available on record and the aforesaid analysis of facts, we reach to the inescapable conclusion that so far as offence under Sections 147, 325/149 and 506 of IPC are concerned, the prosecution has succeeded in bringing home the guilt of all the accused-appellants.
44. In view of the aforesaid, conviction and sentence of all the appellants-accused, namely, Naushad, Irfan, Waseem, Mustkeem, Nadeem and Saleem under Sections 302/149 of IPC is set aside and they are convicted under Section 325/149 IPC and sentenced to rigorous imprisonment of two and half years. Conviction and sentence of accused appellants under Section 147 and 506 of IPC is affirmed and all sentence shall run concurrently. Appellants are stated to be on bail, they be taken into custody forthwith to serve out remaining sentence.
45. Taking cumulative effect of the evidence and the facts and further considering the judgment of the Apex Court in Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770, all the accused-appellants are directed to compensate father of the deceased Shaukeen by paying compensation of Rs. 30,000/- each under Section 357 of Cr.P.C. Each of the accused-appellants, namely, Naushad, Irfan, Waseem, Mustkeem, Nadeem and Saleem is directed to deposit Rs. 30,000/- each within a period of six months from the date of their release before the trial court and, in turn, the trial court shall disburse the said amount to father of deceased PW-1 Shaukeen. In case, the accused-appellants fail to comply this order, they shall undergo additional jail sentence of one year.
46. Appeals are partly allowed in above terms.
47. Copy of this order be sent to the court concerned forthwith for necessary compliance.
Dated: 08.01.2020
Mohit Kushwaha
(Raj Beer Singh, J) (Pritinker Diwaker, J)