Allahabad High Court
Istkhar S/O Sri Raees Khan (In Jail) vs State Of U.P. on 10 November, 2006
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza, M. Chaudhary
JUDGMENT Imtiyaz Murtaza, J.
1. Both these appeals have been filed against the judgment and order dated 14.12.2005 passed by Special Judge/Additional Sessions Judge, J.P. Nagar, in S.T. Nos. 156 -164 and 212 of 2000 whereby the appellant Istkhar, appellant in Crl. Appeal No. 5825 of 2005 has been convicted under Section 302/149 I.P.C. and sentenced to death and under Section 148 I.P.C. sentenced to two years R.I. and a fine of Rs. 20,0000 and in default of payment of fine further for a period of 6 months R.I. and appellants in Crl. Appeal No. 5704 of 2005 have been convicted under Section 302/149 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 50,000/- and in default of payment of fine to undergo six months' R.I. and under Section 148 I.P.C. sentenced to two years R.I. and in default of payment of fine further for a period of six months R.I.
2. Criminal Reference No. 12 is for the confirmation of death sentence of Istkhar, appellant in Crl. Appeal No. 5825 of 2005.
3. Brief facts of the case mentioned in the report lodged by Sadaqat Khan at P.S. Rajabpur registered at Case Crime No. 105 of 2000 under Section 147, 148, 149, 302, 504/34 I.P.C. are that a long standing enmity was going on between the family of the informant and Firasat of his village. They were trying to ruin their family. On 16.3.2000 he alongwith his brother Mazahar Khan, Sardar Khan, Abrar Khan and father Wajid Khan, cousin Ansar Khan, nephew Saddiq and his cousins Mumtaz Khan of village Haivatpur and Akram of Mohalla Kante Kala Shaheed were plucking peapods. At about 3.30 P.M. Firasat, Sadaqat, Rais, Istkhar, Gulzar, Sharafat, Mahfooz, Liyaqat, Dilshad, Adil, Ansar, Istkhar's brother in law Naseem and Diwakar reached there and surrounded them and started abusing saying that they have got abducted Jabbar and started indiscriminate firing. His father Wajid Khan, brother Mazhar Khan, Abrar Khan and Sardar Khan were shot dead. This occurrence was witnessed by Ansar Khan, Mumtaz Khan, Sadiq Khan and Akram Khan. All the four dead bodies were lying in the field. Several persons of the village were also collected there. The report was registered at the police station at 5.00 P.M. on 16.3.2000.The distance of the police station from the place of occurrence was 8 Kms.
4. After the registration of the case S.H.O. Tejveer Singh Chauhan commenced investigation. On his instructions S.I. Kailash Chandra Sharma prepared the inquest memos. All the dead bodies were sealed and handed over to Con. Kailash Chandra, Con. Phulwari Singh, Con. Mor Singh and Con. Sanjay Kumar for taking to the mortuary. Blood stained and plain earth was collected from near the dead bodies and recovery memos were prepared which are Exts. Ka. 6 to Ka. 9. Six empty cartridges of 12 bore were also recovered from the place of occurrence and its recovery memo was prepared which is Ext. Ka. 10. A 315 bore rifle alongwith 12 live cartridges was handed over to him by the informant. Site plan was prepared which is Ext. Ka. 11. He recorded the statements of Ansar Khan, Sadiq and Mumtaz on 17.3.2000. On 18.3.2000 accused Gulzar was arrested alongwith country made pistol of 315 bore and 2 cartridges and its recovery memo was prepared which is Ext. Ka. 12. On 19.3.2000 accused Sharafat, Firasat, Mahfooz and Sadaqat were arrested. A country made pistol of 315 bore alongwith 2 cartridges from the possession of Firasat, a country made pistol of 315 bore alongwith two cartridges was recovered from the possession of Sharafat, a country made pistol alongwith two cartridges of 12 bore was recovered from the possession of Mahfooz and a country made pistol of/12 bore alongwith two cartridges was recovered from the possession of Sadaqat. A recovery memo of these recoveries were prepared which is Ext. Ka. 13. On 20.3.2000 the statements of inquest witnesses were recorded. On 21.3.2000 he arrested the accused Istkhar Khan and Adil. Their statements were recorded. On 22.3.2000 accused Liyaqat was arrested and a country made pistol of 12 bore and 2 cartridges were recovered from his possession and its recovery memo Ext. Ka. 14 was prepared. On 23.3.2000 accused Rais and Ansar were arrested. On 24.3.2000 on the pointing out of Ansar a country made pistol of 315 bore alongwith 2 cartridges were recovered and its recovery memo Ext. Ka. 15 was prepared. Thereafter investigation was transferred to S.I. Raghunath Singh. He had commenced investigation on 26.3.2000. On 1.4.2000 he recorded the statement of Akram. On 4.4.2000 accused Naseem was arrested and a country made pistol and one cartridge of 315 Bore was recovered from his possession and its recovery memo was prepared. On 29.5.2000 he submitted the chargesheet against named accused Firasat, Rais, Sadaqat, Iftakhar, Gulzar, Shamshad, Mahfooz, Liyaqat, Dilshad, Adil alias Pappu, Ansar and Waseem Beg under Sections 147/148/149/302/34 I.P.C. which is Ext. Ka. 18. On 20.2.2004 he had submitted chargesheet against accused Bhoora which is Ext. Ka. 19. The appellant Diwakar was absconding at the time of filing of charge sheet against him.
5. Dr. Megh Singh had conducted the post-mortem examination on the dead bodies of the deceased. The post-mortem examination on the dead body of Wajid Khan was conducted on 17.3.2000 at 1.15 P.M. and he noted following ante-mortem injuries:
1. Gun shot wound of entry 8 cm x 6 cm bone deep over left side of front of shoulder margins were inverted blackening and charring present; bone underlying was fractured.
2. Multiple gun shot wound of entry 20 cm x 12 cm over front of both side of chest.
3. Gun shot wound of entry 6 cm x 4 cm brain cavity deep over right side of back of head just above the back of right ear margins inverted and blackening and charring present around the wound.
6. In the opinion of the doctor the cause of death of the victim was shock and haemorrhage due to ante-mortem injuries.
7. He had examined the dead body of Mazhar at 12.30 P.M. and noted following ante-mortem injuries:
1. Fire arm wound of entry 2 cm x 2 cm brain cavity deep on right side of face 1 cm below one cm. below the right ear; blackening & charring in an area of 12 cm x 8 cm. present; the margins were inverted.
2. Gun shot wound of exit 14 cm x 6 cm over left side of skull with underlying bones fractured; margins everted brain matter coming out; the wound was 1 cm above left eye-brow.
3. Gun shot wound of entry 2 cm x 2 cm chest cavity deep right side of chest 13 cm below the right nipple; margins were inverted; blackening and charring present in an area of 4 cm x 3 cm.
4. Gun shot wound of entry 3 cm x 2 cm chest cavity deep over right side of chest about the right nipple and 2 cm below right axilla margins were inverted; blackening and charring was present in an area of 4 cm x 3 cm.
5. Gun shot wound of exit 4 cm x 4 cm over left side of back 3 cm lateral to the tip of left scapula & 11 cm below left shoulder; margins everted.
6. Gun shot wound of exit 4 cm x 4.5 cm over back of left chest wall 7 cm lateral to tip of left scapula 6 cm below left axilla; margins everted.
7. Gun shot wound of entry 4 cm x 4 cm chest cavity deep over right side of back of chest 20 cm below the base of neck and 3 cm lateral to midline; margins are inverted; blackening and charring present in an area of 6 cm x 7 cm around the wound.
8. Gun shot wound of exit 8 cm x 8 cm over right side of abdomen; intestines protruding out 6 cm lateral to umbilicus and 3 cm above the right iliac crest; margins were everted.
9. Lacerated wound 8 cm x 4 cm muscle deep over right side of back of forearm 13 cm below the elbow joint.
10. Gun shot wound of entry 3 cm x 3 cm muscle deep over right side of thigh; 25 cm below the right iliac crest; margins inverted; blackening and charring present over in an area of 5 cm x 5 cm around the wound.
11. Gun shot wound of exit 5 cm x 6 cm over medial aspect of right thigh; margins everted 18 cm above the right knee.
8. In the opinion of doctor the cause of death of the victim was shock and haemorrhage as a result of ante-mortem injuries.
9. Dr. Megh Singh examined the dead body of Abrar Khan at 12.00 noon and found following ante-mortem injuries:
1. Gun shot wound of entry 6 cm x 6 cm buccal cavity deep present over mouth; blackening and charring present in an area of 12 cm x 8 cm around the mouth; fracture of mandible and lower part of maxilla and teeth were fractured; two metallic pieces, two wadding pieces of cork recovered.
2. Gun shot wound of entry 2 cm x 2 cm bone deep over right side of neck 2 cm above the right clavicle; margins inverted; blackening and charring present in an area of 4 cm x 3 cm around the wound with right clavicle fractured.
3. Gun shot wound of entry 1 cm x 1.5 cm chest cavity deep over right side of chest 7 cm medial to right nipple; fracture of third right rib found; margins inverted; blackening and charring absent; one big metallic piece, two pieces of cap cork and some pieces of wadding cork recovered.
4. Multiple abrasions 20 cm x 15 cm over both side of front of chest.
5. Gun shot wound of exit 3 cm x 2 cm over back of neck 6 cm below the first cervical vertebrae; margins everted.
10. In the opinion of the doctor cause of death was shock and haemorrhage as a result of ante-mortem injuries.
11. Dr. Megh Singh examined the dead body of Sardar Khan at 1.45 P.M. and he noted following ante-mortem injuries:
1. Gun shot wound of entry 4 cm x 4 cm brain cavity deep left side of skull 8 cm away from left ear; blackening and charring present in an area of 5 cm x 6 cm.
2. Gun shot wound of entry 8 cm x 8 cm bone deep 3 cm above the left axilla; blackening and charring present in an area of 10 cm x 10 cm.
3. Gun shot of entry 4 cm x 4 cm right side of front of abdomen; margins are inverted; blackening and charring present, the wound was 10 cm below the right nipple.
4. Multiple gun shot wound of entry 10 cm x 8 cm over the tip of the right shoulder.
12. In the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante-mortem injuries.
13. After the submission of the charge sheet case was committed to the court of Sessions and the learned Sessions Judge has framed charges against the accused persons.
14. The prosecution in support of its case had examined 11 witnesses. Three defence witnesses were examined and one court witness was also examined in this case.
15. P.W. 1 Sadaqat deposed that on 16.3.2000 at about 3.15 P.M. he was plucking peapods from his field alongwith his father Wajid Khan, elder brothers Abrar Khan, Sardar Khan, Pradhan Mazahar Khan, nephew Sadiq, cousins Ansar, Akram Khan, Mumtaz Khan and labourers. Accused Sadaqat, Rais, Istkhar, Gulzar, Dilshad, Pappu @ Adil Ansar, Naseem, Diwakar, Mahfooz, Sharafat, Liyaqat and Firasat reached there carrying illicit weapons. The accused surrounded them and started indiscriminate firing. Wajid Khan, Abrar Khan, Mazhar Khan and Sardar Khan died on the spot. The accused were also challenging that Pradhan had abducted his brother and he should taste the consequences. He further deposed that there was long standing enmity between the parties. His brother Mazhar had successfully contested the election but Jabbar had lost. The father of Firasat was murdered and Wajid Khan was made accused in that murder case. He was convicted by the trial court but acquitted by the High Court. He got prepared the report by Anees Ahmad and lodged it at the police station which is Ext. Ka. 1. He had also narrated the occurrence to the investigating officer. Jabbar was abducted by Delhi Police. His father, brothers Istkhar and Gulzar had close relations with Diwakar. They had blocked the road and report was lodged against Mazahar that his brother was abducted by him.
16. P.W. 2 Ansar deposed that on 16.3.2000 at about 3.30 P.M. he was at the field of Mazhar Khan. Peapods were being plucked from his field. He, Mumtaz, Akram, Sadiq, Sadaqat and labourers were plucking peapods. At that time accused Sadaqat, Rais, Istkhar, Gulzar, Dilshad, Pappu @ Adil Ansar, Naseem, Diwakar, Mahfooz, Sharafat, Liyaqat and Firasat reached there. Naseem belongs to Rachete and Diwakar is resident of Lambiya. They were carrying country made weapons and they were saying that Jabbar was abducted by Mazhar and they will teach them a lesson and started indiscriminate firing. On account of this firing Mazhar Khan, Wajid Khan, Sardar Khan and Abrar Khan died on the spot and the assailants thereafter ran away towards eastern side. Mazhar had contested the election of Pradhan in which Mazhar had won and Jabbar was defeated and this was the enmity between the parties. Jabbar was abducted by Delhi Police as he was suspected terrorist and a report was lodged at the police station alleging therein that Mazhar got killed Jabbar.
17. P.W. 3 is Constable Mohar Singh. He deposed that on 16.3.2000 he was posted at P.S. Gajraula. He alongwith Con. Kailash Singh, Con. Phulwari Singh and Con Sanjay were entrusted with the dead bodies for carrying to the mortuary.
18. P.W. 4 Dr. Megh Singh had conducted the post-mortem examination on the dead bodies of the victims.
19. P.W. 5 Tejveer Singh Chauhan is the first investigating officer of this case.
20. P.W. 6 Raghunath Singh Bhadauriya, S.I. is the second investigating officer of the case and after the conclusion of the investigation he had submitted the chargesheet against the accused persons.
21. P.W. 7 S.I. Khetal Singh deposed that in the month of March, 2000 he was posted as Sub Inspector at P.S. Razabpura. He was entrusted with the investigation of Case Crime Nos. 107 to 111 of 2000 against Gulzar, Firasat, Sharafat, Mahfooz and Sadaqat under Section 25 Arms Act. and he had submitted the chargesheet,
22. P.W. 8 S.I. Kailash Chandra Sharma deposed that in the month of March, 2000 he was posted as Sub Inspector at P.S. Rajabpura. On 16.3.2000 the informant of the Case Crime No. 104 of 2000 under Section 364 I.P.C. came to the police station for the registration of a case alongwith 50-60 persons and they had created ruckus and Mahmood @ Bhoora was enticing the public to take revenge. At 2.40 P.M. he reached at the place of occurrence of abduction of Jabbar and after sometime S.O. Tejveer Singh Chauhar reached there and they came to know about this occurrence. Con. Kailash Chandra and Con. Puhulwari Singh also reached there alongwith report and inquest memos and thereafter they reached at the place of occurrence and the investigating officer had instructed him to prepare the inquest memos. He prepared the inquest memo of Wajid Khan and also prepared the relevant papers for his post-mortem examination (Ext.Ka33-Ka39). Thereafter the inquest memo of the dead body of Mazhar was prepared and relevant papers are Exts. Ka. 40 to Ka. 45. Inquest memo on the dead body of Sardar Khan was prepared alongwith relevant papers which are Exts. Ka. 46 to 52 and lastly inquest memo on the dead body of Abrar Khan was prepared and relevant papers for the post-mortem were also prepared which are Exts. Ka. 53 to Ka. 59. Blood stained and plain earth from near the dead bodies were also collected and its recovery memos were prepared which are Exts. Ka. 6 to Ka9. Recovery memo of empty cartridges was prepared which is Ext. Ka. 10. The dead bodies were handed over to Constables r for carrying to the mortuary.
23. P.W. 9 S.A. Zaidi, was posted as S.H.O. of P.S. Kunwarki. He deposed that on 22.3.2000 he was posted as Sub Inspector at P.S. Rajabpura. He stated that accused Liyaqat was arrested and a country made pistol was recovered from his possession. Its recovery memo is Ext. Ka. 14. On 24.3.2000 case crime No. 114 of 2000 was registered against Ansar under Section 25 Arms Act and he had investigated the case and submitted the chargesheet.
24. P.W. 10 A.S.I. Irshad Ali Khan deposed that Case Crime No. 135 of 2000 under Section 25 Arms Act was registered against Naseem and he had investigated the case and submitted the chargesheet which is Ext. Ka. 75.
25. P.W. 11 A.S.I. Devraj Tamta deposed that in the year 2000 he was posted as Head Moharrir at P.S. Rajabpura. On 16.3.2000 on the basis of report of Sadaqat he had registered Case Crime No. 105 of 2000 under Sections 147/148/149/302/304/34 I.P.C. He had prepared Chik No. 39 which is Ext. Ka. 78. He had informed the S.H.O. at R.T. Set and Constables Kailash Chandra and Phulwari Singh had handed over the copies of inquest memos and other papers, copy of G.D. is Ext. Ka. 79. On 24.3.2000 had lodged one accused Ansar alongwith a bundle and copy of the G.D. entry is Ext. Ka. 72. On 19.3.2000 Tej Veer Singh Chauhan, S.O. had lodged 4 accused persons alongwith bundles in the police station. He had prepared G.D. entry which is Ext. Ka. 80. Case Crime Nos. 108 to 111 of 2000 under Section 25 Arms Act were registered. Copy of chik F.I.R. is Ext. Ka. 81. On 16.3.2000 at 2.45 P.M. Istkhar Khan reached at the police station alongwith 50-60 companions and other for lodging a report against Mazahar under Section 364 I.P.C. He had prepared Chik No. 38 and in the meantime Istkhar alongwith 50 - 60 persons did not lodge the report and they wanted to take revenge themselves and they returned back to the village. He had prepared the G D. and informed the high officers on R.T. set. Chik F.I.R. is Ext. Ka. 82 and G.D. entry is Ext. Ka. 83.
26. D.W. 1 Chandra Pal Singh deposed that about 5 years back a Panchayat was held relating to Chakbandi. This Panchayat was held in connection with a dispute between Rajendra Singh and Madan Pal. This Panchayat was started at 10.00 A.M. and concluded at 6.00 P.M. Diwakar had also attended this Panchayat. After about 7-8 days of this Panchayat he came to know that a murder had taken place on the day when Panchayat was held and name of Diwakar was also introduced in that murder case. He had given an affidavit to the Superintendent of Police also.
27. D.W. 2 Rishipal Singh deposed that about 5 years back a Panchayat was held at the house of Chandra Pal Singh in connection with a dispute between Rajendra Singh and Madan Pal. This Panchayat had started at 10.00 A.M. and concluded at 6.00 P.M. Diwakar had also attended this Panchayat from 10.00 A.M. to 6.00 P.M. After about 2-3 days he came to know that on that date of Panchayat murders had taken place in which the name of Diwakar was also introduced. He had also given an affidavit to Superintendent of Police. 28. D.W. 3 Dr. Parvendra Singh deposed that on 15.3.2000 he was posted at P.H.C., Machhoura, Moradabad. On that date Naseem was admitted in the Primary Health Center. He was slightly unconscious. He was suffering from typhoid. He had prepared prescription which is Ext. Kha. 1. Naseem was discharged on 18.3.2000 and his discharge slip is Ext. Kha. 2.
28. C.W. 1 Con. Heera Singh deposed that he had prepared G.D. No. 39 dated 23.3.2000. He had also filed the Supurdaginama of vehicle No. UTR 4213. The vehicle was related to Niranjan Singh.
29. The case of the defence was of denial and false implication and appellants Diwakar and Naseem took the plea of alibi.
30. The Sessions Judge after considering the evidence on record convicted the appellants as aforesaid. Hence these appeals. The Sessions Judge acquitted Gulzar, Firasat, Sharafat, Mehfooz, Sadaqat, Liyaqat, Ansar and Naseem under Section 25 Arms Act.
31. We have heard Sri V.C. Tewari Sr. Advocate Sri D.N. Wali Sr. Advocate, Sri Manish Tewari, Shri A.K. Awasthi, Shri Arvind Misra and Shri B.B. Sirohi for the appellants, learned A.G.A. for the State and Sri M. D. Misra Advocate for the complainant.
32. According to the prosecution case occurrence took place on 16.3.2000 at 3.30 p.m. in which four persons lost their lives. The report of the occurrence was lodged by P.W.I Sadaqat at P.S. Rajabpur registered at case crime No. 105/2000. The eye witness account was furnished by P.W.I Sadaqat and P.W.2 Ansar.Their testimony shows that on 16.3.2000 at 3.15 when they along with Wajid, AbrarKhan, SardarKhan, Mazhar. Khan, Sadiq, Ansar, Akram, Mumtaz Khan and labourers were in their field plucking pea cods, all the accused armed with illicit weapons reached there and surrounded them. They started firing with their respective weapons. There had been old enmity with the accused. Mazhar, brother of the first informant had defeated Jabbar in election and became Pradhan. Firasat's father was murdered and Wajid Khan was convicted by the Sessions Court but he was acquitted by the High Court. On 16.3.2000 a report was lodged against Mazhar and his brothers at police station at Cr. No. 104/2000, that Jabbar was abducted through criminals and got killed.
33. Both the eyewitnesses have supported the prosecution case in detail. They have explained their presence in their field along with the deceased. P.W.I Sadaqat had lodged the report (Ext. Ka. l) at the police station. P.W.I 1 Head Moharrir Veg Ram proved lodging of the report by Sadaqat. He had prepared the Chick F.I.R.(No. 39) on the basis of a written report of Sadaqat (Ext. Ka.78). He had proved the G.D. Entry (Ext.Ka79). He had informed the Station House Officer through R.T. Set who was present at the spot of Case Cr. No. 104/2000. He had dispatched Const. Kailash Chand and Const. Phulwari Singh for handing over the chick F.I.R., inquest papers and other relevant papers for the Station House Officer. P.W5 Tejveer Singh deposed that while he was at the place of occurrence of Case Cr. No. 104/2000 he had received papers of this case and he reached at the place of occurrence and started investigation. The above facts fully prove the time of lodging of the report. According to the prosecution occurrence took place on 16.3.2000 at 3.30 p.m. and a written report was lodged at the police station at 5 p.m., the distance of the police station was 8 km. The first information report was promptly lodged which contains time of occurrence, motive and manner of the crime, names of the accused etc. The courts attach great importance to the prompt lodging of the report because it eliminates the chances of embellishment in the prosecution case.
34. The place of the occurrence is also proved by the fact that the investigating officer had collected blood stained earth from near the dead bodies of Abrar Khan,Wajid Khan, Sardar Khan and Mazhar Khan and prepared recovery memos which are Exts. Ka 6 to Ka 9. The chemical examination report of the samples shows that human blood was found in the samples and the blood stained earth was of the same origin of plain earth collected from the place of occurrence. The investigating officer had also found six empty cartridges of 12 bore from the place of occurrence and also prepared its recovery memo which is Ext Ka 10. The inquest memos of the dead bodies were also prepared at the place of occurrence and the dead bodies were dispatched to the mortuary from the place of occurrence through constables as deposed by P.W.3 Const. Mohar Singh.
35. The prosecution has also proved motive of the crime. In the first information report it was alleged that in the election of Pradhan Mazhar had defeated Jabbar and father of Firasat was murdered and Wajid Khan was convicted by the trial court but he was acquitted by the High Court. It was also alleged in the First Information Report that assailants had challenged that they have abducted Jabbar and they should be killed. This was the immediate motive of the crime. The prosecution has also proved lodging a report for abduction of Jabbar against Mazhar.
36. The eye witness account is also corroborated by the medical evidence. It is consistent case of the prosecution that assailants were armed with illicit weapons and they had started indiscriminate firing resulting in the death of four persons. The post mortem reports confirms the death due to fire arm injuries. The eye witness account about the time of occurrence is also confirmed by the testimony of Dr. Megh Singh P.W.4 who stated that ante mortem injuries of all the deceased could have been caused on 16.3.2000 at 3.30.
Prosecution Witnesses
37. The counsel for the appellants has challenged the findings of the trial court on various grounds. The first submission of the counsel for the appellants is that no independent witness was produced by the prosecution to support its case. P.W. 1 Sadaqat, who is the first informant of the case is brother of deceased Mazhar Khan, Sardar Khan, Abrar Khan and son of deceased Wazid Khan. P.W. 2 Ansar is cousin of the first informant. It is vehemently submitted that according to the prosecution case several other persons were present at the time of occurrence but none of them produced by the prosecution. It is contended by the counsel for the appellants that only two eye witnesses were examined by the prosecution who are close relatives of the deceased therefore, their evidence is not sufficient to convict the appellants. In support of his submissions the counsel for the appellants placed reliance in the case of Hem Raj v. State of Haryana reported in 2005 SCC (Crl.) 1646 wherein it was observed that "Non-examination of independent witnesses by itself may not give rise to adverse inference against the prosecution However, when the evidence of the alleged eyewitnesses raises serious doubts on the point of their presence at the time of actual occurrence the unexplained omission to examine the independent witness Kapur Singh, would assume significance.
38. We have considered the submissions of the counsel for the appellants and in our opinion there is no substance in this submission. It is a settled position that there is no proposition in law that relatives are to be treated as untruthful witness, just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. Being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong person in the crime, so as to allow the real culprits to escape unpunished. The submission of the non examination of other witnesses is concerned, mere failure to examine all the witnesses who may have witnessed the occurrence will not result in out right rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons. In the case of Ravi v. State it has been observed by the Apex Court that "It is settled by a catena of cases by this Court that the evidence of eyewitnesses cannot be rejected merely because they are related. In such a situation, the evidence of PW 2 in the present case, there is no strong motive or ill will on the part of PW 2 to exonerate the real person who caused the injuries to her son and to implicate the accused."
39. In the case of Appabhai v. State of Gujarat reported in 1988 (supp.) SCC 241 the Apex Court has observed as under:
Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.
40. It is now well settled that the evidence of a witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness. In the case of Seeman v. State , at page 145 the Apex court had observed that 'the prosecution's non-production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.'
41. In the case of Birendra Rai v. State of Bihar , the Apex Court had observed as under:
Mere failure to examine all the witnesses who may have witnessed the occurrence will not result in outright rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eyewitnesses shy away from giving evidence for obvious reasons.
42. In the case of Harbans Kaur v. State of Haryana the Apex Court had observed:
There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. No evidence has been led in this regard.
43. The next submission of the learned Counsel for the appellants is that the presence of both the prosecution witness is also doubtful because they failed to specify weapons in the hands of the accused persons. If they were present they should have definitely noticed each weapons in the hands of the individual accused but they have only described that the assailants were armed with illicit arms. It has come in evidence that all the accused persons were armed with illicit weapons. They had seen weapons at a time when the accused had indulged in indiscriminate firing and the witnesses were apprehending danger to their lives. The assailants had killed their four close relatives. It is common experience that in the confusion of the moment the witnesses are prone to make such errors especially if seized by sudden fear. The eyewitnesses have withstood the test of cross-examination and have been rightly relied upon by the court below. We do not find any ground to hold that the statements of the aforesaid eyewitnesses cannot be accepted only because weapons in the hands of individual accused are not specified. The presence of these witnesses is also challenged because the deceased were close relatives of these witnesses and they did nothing to save them and there presence on the place of occurrence is also challenged on the ground that after the occurrence they did nothing to save their lives and their clothes were not smeared with blood. We do not find any substance in this submission because.
44. The assailants in this case were armed with deadly weapons and the witnesses were totally un-armed and in such a situation it was absurd to expect any intervention and if they were to do so it would have led to some more causality. The behaviour of the witnesses varies from person to person. Different people behave and react differently in different situation. The Apex Court in the case State of U.P. v. Devendra Singh had observed that human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Some may remain tightlipped, overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon a variety of circumstances. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
45. It is a settled position of law that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra-note, as well, on perusal of the evidence on record.
46. It is further contended that the witnesses were equally inimical with the accused who were large in number and heavily armed but they did not assault the witnesses. Had they been present at the alleged time place of occurrence the assailants must have assaulted them too. There is no dispute that there was a long standing enmity between the two families. The evidence of P.W.11 Dev Raj Tamta shows that on 16.3.2000 at 2.45 p.m. Istkhar Khan alongwith 50-60 supporters came at the police station and asked him to register a report about abduction of Jabbar and Ashraf. He had noted the statement verbatum at chick No. 38. In the meantime companions of Istkhar Khan started saying that they will take revenge themselves and will not lodge the report. He had requested Istkhar to put his signature on the report but he refused to do so and went away along with his supporters. This clearly indicates that immediate motive of the crime was abduction of Jabbar and their grievance was against Mazhar. The post mortem report of Mazhar shows that he had sustained maximum number of fire arm injuries in the incident in question. In such a situation if the prosecution witnesses were not assaulted then it can not be presumed that they were not present at the place of occurrence. The witnesses have explained that after the assailants had killed the deceased they had run away in the fields to save themselves.
47. We have carefully examined the evidence of PW 1 Sadaqat and P.W.2 Ansar. Their testimonies inspired confidence with the court below, despite the fact that they are persons close relative and nothing concrete or substantial has been shown to us from the materials on record to castigate their version or condemn their evidence and take a different view. The cross examination of these two witnesses, though effected extensively, has not yielded any benefit to the appellants and the evidence remained totally unshaken and thus worthy of acceptance by a court of law.
Place of Occurrence
48. The next submission of the counsel for the appellants is that the place of occurrence is doubtful because investigating officer did not mention presence of blood in the site plan. The investigating officer did not find anything to support the prosecution case that at the time of occurrence accused and witnesses were plucking pea pod. He had also not prepared the recovery memo of pea pod nor any crop was mentioned in the field of place of occurrence. The Counsel for the Appellants placed reliance on the observation of the Apex Court in the case of Bir Singh v. State of U.P. reported in 1977 CAR 398 (SC) where the Apex Court had doubted the place of occurrence because the investigating officer did not collect the blood from the place of occurrence nor shown in the site plan and observed as under;
Another important argument advanced by the counsel for the appellants is that there is absolutely no evidence to show that there was any blood at the place where P.W.2 fell down. It was contended that according to the Doctor's version having regard to the injury, blood must have been oozing out. If the blood was there then the investigating officer could not have failed to notice the same. The fact that blood at that place was not indicated in the sketch map clearly shows that P.W.2 did not receive injuries at that place.
49. We have considered the submission and do not find any substance because investigating officer had collected blood from the place of occurrence and prepared its recovery memo Ext. Ka 6 and serologist confirms human blood in the sample of earth. The inquest reports were prepared at the place of occurrence and thereafter dead bodies were dispatched to the mortuary through constables. The place of occurrence is proved beyond reasonable doubt by overwhelming evidence on record.
Investigation
50. The counsel for the appellants had challenged the report of Istkhar which was registered at Case Crime No. 104 at the police station and submitted that Istkhar had not lodged any report and the police officer in order to cook up a false case concocted a story of lodging report about abduction of Jabbar to create immediate motive of the crime. P.W. 11 Deo Raj Tamta deposed that on 16.3.2000 at 2.45 P.M. Istkhar Khan alongwith 50 - 60 persons reached at the police station and lodged oral report under Section 364 I.P.C. about the abduction of Jabbar and Ashraf. He had noted the report verbatim and prepared Chik No. 38. Istkhar did not sign the report because mob which came alongwith Istkhar wanted to take revenge themselves. He had also mentioned in the G.D. No. 20 and informed the officer on RT set. He had also informed the control room and S.O. on mobile. S.I. Kailash Chandra Sharma was deputed to reach at the place of occurrence. Copy of the Chik F.I.R. is Ext. Ka. 82 and copy of the GD is Ex. Ka. 83. His statement was recorded by the investigating officer of Crime No. 104/2000.
51. P.W. 8 S.I. Kailash Chandra Sharma deposed that on 16.3.2000 at 2.40 P.M. he had reached at the place of occurrence of Crime No. 104/2000 under Section 364 I.P.C. for the release of abductee Jabbar. After some time S.O. Tejveer Singh also reached there. At about 5.00 P.M. they came to know about this incident through RT set and thereafter Constables Kailash Chandra and Constable Phulwari Singh reached there alongwith the relevant papers. He alongwith S.O. came at the place of occurrence and on his dictation he had prepared the inquest reports.
52. P.W. 5 Tejveer Singh deposed that he had received information about this occurrence while he was at the place of occurrence of Crime No. 104/2000 under Section 364 I.P.C. Const. Kailash Chandra and Phulwari Singh had handed over papers relating to this offence and he had started investigation of the case. On his direction S.I. Kailash Chandra Sharma had prepared the inquest reports. These statement clearly indicate that a report was lodged by Istkhar at the police station. There was no reason for the police officer Jo concoct a false story for creating a motive of the crime. The incident had occurred in broad day light and in the presence of eye witnesses. It is also important to mention that there was no suggestion to police witnesses as to why they were helping P.W.I by manipulating something which could be easily exposed. Once the prosecution has shown that regular entry about registration of first information report by Istkhar was made in public document namely, the general diary regarding the registration of the case the legal presumption would be that official act must have been duly performed.
53. It was also submitted that the first information report is also suspicious and it was registered ante timed. It was pointed out that in the chik F.I.R. Section 34 I.P.C. was mentioned whereas according to the allegations of the first information report there were large number of accused. It is submitted that at the time of lodging of the report it was not certain as to how many persons are to be implicated. The counsel for the appellants also drew the attention of the court towards certain cuttings and over writings in the inquest report. It was also pointed out that parentage of the first informant was wrong in the first information report and why one jeep and a rifle and cartridges of the deceased was taken in possession by the investigating officer. It is now well settled by catena of decisions by the Apex Court that any irregularity during investigation ought not to be treated as a ground to reject the prosecution case.
54. In the case of Munshi Prasad v. State of Bihar it was observed by the Apex-Court that Preparation of an inquest report is part of the investigation within the meaning of the Criminal Procedure Code and as noticed above, neither the inquest report nor the post-mortem report can be termed to be a basic evidence or substantive evidence and discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case.
55. The counsel for the appellants had submitted that alleged time of lodging of the report is also doubtful because the scribe of the F.I.R. was also not examined. We do not find any force in this submission because the first information report was lodged at 3.30 on 16.3.2000 and the name of scribe was also mentioned therein. The lodging of the first information report is proved by overwhelming evidence on record. In the case of State of U.P v. Vinod Kumar where the prompt report was lodged which contained the names of two accused and they had described the occurrence and in the first information report name of the scribe was specifically mentioned, the Apex Court had held that "non examination of the scribe does not in any way affect the prosecution case." In this case also the non examination of the scribe is immaterial because the first information report was promptly lodged which contained name of the accused, witnesses and scribe. The prosecution case was supported by the eye witnesses and the lodging of the report is also proved beyond reasonable doubt.
56. The next submission of the counsel for the appellant is that the provisions of Section 157 of the Code of Criminal Procedure were also not complied with. The special report was not sent "forthwith". While it is true that Section 157 of the Code makes it obligatory on the officer in charge of the police station to send a report of the information received to a Magistrate forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice
-- if the court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case.
57. Even if the special report is not dispatched forthwith it was only a fault of the investigation and on that ground eye witness account which was otherwise reliable cannot be disbelieved. The Apex Court in the case of Rabindra Mahto v. Sate of Jharkhand reported in JT 2006 (1) 137. held as under:
There cannot be any manner of doubt that Section 157 of Code of Criminal Procedure requires sending of an F.I.R. to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157 Cr.P.C. are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation. The cases cited by the learned Counsel for the appellants do not lay down any law that simply because there is a delay in lodging the F.I.R. or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. The decision rendered by this court and relied upon by the learned Counsel for the appellant would only show that this will be a material circumstance which will be taken into consideration while appreciating the evidence on record.
58. It was also pointed out that the place of occurrence is changed. The witnesses have given different source of light in which inquest reports were prepared. It was pointed out that one witness had stated that inquest was prepared in the torch light and another witness stated that it was prepared in the light of a Jeep. In our opinion these are not contradiction to reject the testimony of the witness. The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to laps of memory may be given to allowance. In the case of Bharosi v. State of M.P. Reported in the Apex Court held that trial court also committed an error in giving undue importance to minor discrepancies that too in regard to the subsequent events and not to the actual accident." The preparation of inquest report either in the torch light or in the light of a Jeep is a subsequent event of minor importance. This cannot be considered to be a contradiction to reject the testimonies of the eyewitnesses.
Medical Evidence
59. It was also contended that eye-witness account cannot be relied upon because there is conflict in direct and medical evidence. According to the prosecution case, the assailants had assaulted the deceased with the fire arms but the injury No. 9 of Mazhar was not of fire arm and remained unexplained.
60. We have considered the submission of the counsel for the appellants and perused the post mortems reports of the deceased and statement of Dr. Megh Singh P.W 4 and we do not find any substance in this submission also. The deceased had suffered mostly fire arm injuries and this is consistent testimonies of the eye witnesses that all the assailants were armed with fire arm and as they reached they started firing which resulted in the death of four persons. The medical reports fully supports the ocular testimony. The post-mortem report of Mazhar shows that most of the injuries that he has sustained are of fire arms and injury No. 9 was a lacerated wound 8 cm x 4 cm. muscle deep over right side of back of forearm 13 cm below the elbow joint. This injury is also possible because of fall on some hard substance. His dead body was also found in the Sugarcane field. In this case assailants were 12 in number and there were four deceased and it is not possible for the witnesses to watch each and every blow on the deceased. In our opinion there is no contradiction or conflict between the oral testimony and medical evidence.
61. The Apex Court in the case of Thaman Kumar v. State of Union Territory of Chandigarh , has held as under;
The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.
Age of Gulzar
62. The counsel for the appellants submitted that Gulzar was a juvenile and he was wrongly sentenced to life.
63. In support of this submission, learned Counsel for the appellant submitted that statement of Gulzar under Section 313 Cr.P.C. was recorded on 16.4.2005 and he had mentioned his age as 20 years. The occurrence is of 16.3.2000. He was less than 16 years on the date of occurrence. He had filed a supplementary affidavit annexing school leaving certificate in which his date of birth was mentioned as 5.6.1985. According to this school leaving certificate also he was less than 16 years.
64. The Apex Court in the case of Ravindra Singh Gorkhi v. State of U.P. Reported in (2006) 2 SCC (Crl) 623 has held as under:
The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage, obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. Necessity of being represented in a court of law by a guardian or where as suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." It was also observed that "Determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of the materials on record. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provisions of Section 35 of the Evidence Act can not be applied in a civil or criminal case.
65. This court on 1.5.2006 directed special Judge, Addl. Sessions Judge, J.P. Nagar to ascertain the age of accused Gulzar from Chief Medical Officer on the basis of his ossification test and after recording the parties evidence. In pursuance of the said order the Addl. Sessions Judge./Special Judge had recorded the evidence of 12 witnesses. C.W. 1 Dr. Suraiya Jabeen, C.M.O. J.P. Nagar had given opinion about the age of Gulzar on the basis of x-ray reports. In her opinion Gulzar was aged about 22 years. C.W. 2 Atar Sen, X-ray Technician, District Hospital, Moradabad had x-rayed the right elbow, wrist, knee and clavicle on the direction of Dr. H.C. Dua, Radiologist. C.W. 3, Ramesh Singh Tube-well operator had issued extract of Pariwar Register (Paper No. 108) on the direction of Block Development Officer. He stated that he had brought Pariwar Register from Shaukat Hussain, who was Secretary of Panchayat. C.W. 4 Shaukat Hussain, Gram Panchayat Vikas Adhikari, deposed that he was posted since August, 2005. He also stated that he does not possess Pariwar Register of Village Panchayat, Salarpur Khalsa. C.W. 5 Liyakat Ali, District Panchayat Adhikari, deposed that under Rule 7 of U.P. Panchayat Raj (Kutumb Register), any one can obtain the copy of extract of register from Secretary. Gram Panchayat Vikas Adhikari is Secretary of Gram Panchayat. C.W. 6, Sita Ram, Sahayak Zila Nirvachan Adhikari deposed that he had certified Paper No. 11-B (Entry No. 639) on the basis of voter list supplied by Rajya Nirvachan Ayog. He deposed that in House No. 105, Ward-I Sl. No. 903 name of Gulzar is mentioned. A copy of the same is Paper No. 27-B/1 -5. C.W. 7, Dr. Harish Chandra Agarwal, Sr. Radiologist, District Hospital, Moradabad deposed that he had obtained the x-ray reports of Gulzar. He had prepared the report on the basis of x-ray plates which is paper No. 120-B. C.W. 8 Sukhdarshan Singh, Principal, Sikh Intermediate College, Narangpur, deposed that he had brought the scholar register of the year 1992-93 and at Sl. No. 9128 name of Gulzar Khan is entered. In the transfer certificate and S.R. register date of birth of Gulzar is mentioned as 5.6.1982 which are paper Nos. 13-B, 13-1-B and 13-2-B. C.W. 9, Sultan Haider Zaidi, Sahayak Zila Nirvachan Adhikari, deposed that he had brought voter list of 1999 and 2004. In the voter list of the year 1999 in House No. 54 from Sl. 197 to 206 name of 10 voters are registered and name of Gulzar is not mentioned. In the voter list of 2003-05 in House No. 105 at Sl. No. 629 to 639 name of 11 voters are entered and at Sl. No. 639 name of Gulzar Khan, mal, aged 18 years entered. The copy of extract is paper Nos. 38-B and 39-B. C.W. 10, Ram Charan Singh, Principal, Primary Pathshala, Salarganj, deposed that he is principal of Primary Pathshala, Salarganj Khalsa from July 2005. He had brought the T.C. register and scholar register. In the S.R. register name of Gulzar son of Raees is mentioned at Sl. No. 1089. He was admitted in Class I on 10.8.1987 and he studied in the school up till Class v. The date of birth of Gulzar is mentioned as 5.6.1982. He had denied to have issued Transfer Certificate, Paper No. 49. He also stated that in this paper date of admission and date of leaving the school is wrong. He had not signed paper No. 49-B. He also stated that the seal of school mentioned on this paper is similar to that of his school but it is not of his school. He also stated that in the Sl. No. 1051 of S.R. register there is over writing in the year of date of birth. C.W. 11, S.I. Rohtash Singh deposed that he had prepared the enquiry report of paper No. 48-B. He had gone to Primary Pathshala, Salarganj Khalsa for verifying the certificate. The principal had issued him certificate No. 49-B/2 C.W. 12 Dr. G.K. Jain, C.M.S. District Hospital, Badaun, deposed that he had prepared the x-ray of sternum of under trial Gulzar. Dr. S.C. Dua, Sr. Radiologist was also alongwith him. Gulzar was brought to the hospital by H.C. Dora Lal.
66. The Sessions Judge after considering the evidence on record has recorded a finding that appellant Gulzar was more than 18 years and 9 months old at the time of occurrence. The appellant Gulzar did not adduce any evidence. The Sessions Judge after carefully examining the evidence and other relevant materials recorded a finding that Gulzar was above 18 years at the time of occurrence. The counsel for the Gulzar had challenged the findings recorded by the trial court on the ground that the Sessions Judge had re examined the witnesses to obtain favorable report to the prosecution. We do not find any substance in this submission. It was also open for the appellant to lead any evidence in his defence but he did not do so. His school leaving certificate was not found genuine by the trial court. In our opinion the Sessions Judge has rightly held that Gulazar was not a juvenile at the time of occurrence.
Non- Framing of Charge Against Diwakar
67. It was also submitted that charge against. Diwakar was not framed and his conviction and sentence is bad in the eye of law. We have carefully considered the submission of the counsel for the appellant Diwakar and also perused the entire record. And we do not find any substance in this submission also. The occurrence is of 16.3.2000 and charge sheet was filed against Diwakar while he was absconding in the case. He had also filed a writ petition No. 1220/01 in this court for quashing of first Information Report which was dismissed on 13.2.2001. He was arrested on 22.3.2002. The trial court had ordered the office for preparation of the charge but due to rush of work charge could not be typed and file was returned to the court. The case of appellant was connected with other accused against who charges were already framed. It is not disputed that due to some mistake charge was not framed against Diwakar. The appellant Diwakar was represented throughout by his lawyer, He had also produced defence witnesses to prove his alibi. He never raised any objection against non-framing of the charges. The counsel for the appellant failed to point out any prejudice on account of non framing of the charge. The object of the framing of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the non framing of the charges, the accused cannot succeed by merely showing that the charges framed were defective. In judging a question of prejudice, as of guilt, court must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main fact sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Section 464 Cr.P.C. ought to be noticed at this juncture. Section 464 Cr.P.C. reads as under:
464. Effect of omission to frame, or absence of, or error in, charge.(1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may--
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
68. This section is in mandatory terms and specifically provides what is to he done in cases where a charge is not framed or there is an error, omission or irregularity in framing of the charge. From the unequivocal terms of the section, it can be stated that a finding, sentence or order could be set aside only in those cases where the facts are such that no valid charge could be preferred against the accused in respect of the facts proved. Secondly, if the facts are such that charge could be framed and yet it is not framed but no failure of justice has in fact been occasioned thereby, the finding, sentence or order of the court of competent jurisdiction is not to be set aside on that ground. Thirdly, if there is failure of justice occasioned by not framing of the charge in case of an error, omission or irregularity in the charge, retrial of the case is to be directed under Sub-section (2)
69. In the case of Lallan Rai v. State of Bihar reported in (2003) SCC 268 the Apex Court had observed It is axiomatic that procedural law is the handmaid of justice and the Code of Criminal Procedure is no exception thereto. It's incorporation in the statute book has been to subserve the ends of justice and non observance of the technicality alone would not outweigh the course of justice " It was further observed "we, however, hasten to add that in the event, however, being prejudice leading to a failure of justice, it cannot but he treated to be an illegality, which is otherwise incurable in nature.
Plea of Alibi
70. The appellant Diwakar took the plea of alibi and in support of proof of alibi D.W. l Chandrapal Singh was examined who stated that at the time of occurrence Diwakar was present in his house and attended Panchayat D.W.2 had also deposed that on the date of occurrence he had attended a Panchayat at the house of Chandrapal and Diwakar had also attended the said Panchayat which started at 10 a.m. and continued up till 6 p.m.
71. The appellant Naseem also took the plea of alibi and examined D.W.3 Dr. Parvendra Singh, who had stated that Naseem was admitted in Primary Health Center Machaura Moradabad and he was posted there as Incharge Medical Officer, Naseem was discharged on 18.3.2000
72. The counsel for the appellants placed reliance upon the decision in the case of State of Punjab v. Daljeet Singh reported in 2004 SCC (Crl.) 1776 where the Apex Court had rejected the testimonies of the witnesses who were implicating a person whose alibi was accepted by the court and it was observed that "Having accepted the case of Lakhwinder Singh that he was not present at the time of incident, the trial court failed to consider the effect of such finding on the evidence of eye witnesses which, in our opinion, indicates that these eyewitnesses are capable of including the names of innocent persons." In the case of Doodh Nath Pandey v. State of U.P. reported in 1981 Crl. L.J. 618 the Apex Court had held that "Defence witnesses are entitled to equal treatment with those of the prosecution. And Courts ought to overcome their traditional, instinctive disbelief in the defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."
73. In the case of State of Haryana v. Ram Singh reported in 2002 SCC (Crl.) 350, the Apex Court had observed that "the evidence tendered by defence witnesses cannot always be termed to be a tainted one the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution."
74. We have considered the testimony of the defence witnesses in the light of the decisions cited by the counsel for the appellants
75. In law alibi is used to express that defence in a criminal prosecution, where the party-accused, in order to prove that he could not have committed the crime charged against him, offers evidence that he was in a different place at that time. The plea taken should be capable of meaning that having regard to the time and place when and where he is alleged to have committed the offence, he could not have been present. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place.
76. The Apex Court in the case of Jayantibhai Bhenkarbhai v. State of Gujarat, , has considered the law of plea of alibi and held as under.
The plea of alibi flows from Section 11 and is demonstrated by Illustration (a). Sarkar on Evidentce (15th Edn., p. 258) states the word "alibi" is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scales the evidence adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to the benefit of that reasonable doubt which would emerge in the mind of the court.
77. Learned Sessions Judge has considered the testimonies of D.W. 1 Chandra Pal Singh and D.W. 2 Rishi Pal Singh. Both have deposed that Diwakar had attended a Panchayat in village Gailua on the day of occurrence and at the time of occurrence he was also present in the Panchayat. D.W. 1 Chandra Pal Singh had admitted that Diwakar was his relative and Diwakar was also closely related with D.W. 2 Rishi Pal Singh. The place of occurrence is village Salarpur Khalsa. The distance of the village Gailua from the place of occurrence is not mentioned by the defence witnesses.
78. In the case of plea of alibi the burden is on accused to prove with certainty so as to exclude the possibility of his presence at the place and time of occurrence. The prosecution in this case has successfully proved its case beyond reasonable doubt. The first information report was promptly lodged. The eyewitnesses have named him. The Sessions Judge has rightly rejected his plea of alibi.
79. As regards the Naseem is concerned, the eyewitnesses have fully proved his participation in the crime. His defence is that he was admitted in P.H.C. Manauta. D.W. 3 Dr. P. Singh had admitted that he did not admit any other patient except Naseem for illness. The Sessions Judge also considered his plea of alibi and also considered that he had not taken this plea in his first bail application dated 19.5.2000. In the court of Sessions at the time of disposal of his bail application the doctor did not recognize him. The doctor did not record any mark of identification of the patient in his document. The Sessions Judge also noted that some irregularities in the entries mentioned in the register.
80. We have carefully considered the testimonies of the defence witnesses. We are of the opinion that learned Sessions Judge has rightly rejected the plea of alibi of Diwakar and Naseem.
81. We have carefully examined the testimonies of the witnesses and perused the entire record and we are of the opinion that the Sessions Judge has rightly relied upon the testimonies of the eye witnesses which were corroborated by the medical evidence and investigation and the prosecution has proved its case beyond reasonable doubt and we also affirm the findings of conviction recorded by the sessions Judge.
Sentence
82. Lastly, the question that arises for serious consideration is whether imposition of death penalty of Istkhar in the facts and circumstances of the case is justified?
83. Under the old code of criminal Procedure ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh v. State of Punjab A.I.R. 1980 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.
84. The Sessions Judge while awarding death sentence to Istkhar observed that "the case of accused Istkhar Khan distinguishes itself in as much as he spurns the legal process. He leaves the information report incomplete and joins others and leads them to the locale and also perpetrates the heinous crime. His conduct makes his offence distinguishable from that of others. The case of the accused is found to be the rarest of the rare cases. Considering all these facts and aspect of the case, we consider it just and expedient to award extreme penalty provided under Section 302 I.P.C. to convict Istkhar Khan." We have carefully examined the reasoning of the Sessions Judge awarding death sentence to Istkhar and in our opinion the distinction made by the Sessions Judge is not proper because the testimony of P.W.I 1 Deo Raj Tamta shows that he along with 50-60 companions came to the police station to lodge the report against Mazhar but his companions told him not to lodge the report because they wanted to take the revenge themselves. It is not clear from the evidence on the record whether other appellants accompanied him to the police station or not. So far as the role of participation in actual occurrence is concerned there is no distinction between the role of Istkhar and other appellants.
85. The Apex Court in the case of Ram Pal v. State of U.P. 2003(47) A.C.C. 567 for the reasons mentioned in paragraph 8 and 9 of the judgment reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident.
86. Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance.
87. Considering the over all circumstances of the case his case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellant Istikhar would meet the ends of justice.
88. We therefore, reduce the sentence of death of the appellant Istikhar to imprisonment for life.
89. In view of the above, the above appeals are decided as under:
Crl. Appeal No. 5825 of 2005 (Istkhar v. State of U.P.) is dismissed with the modification that conviction of the appellant Istkhar under Section 302/149 I.P.C. is upheld but the sentence of death is converted into imprisonment for life. His conviction and sentence under Section 148 I.P.C. awarded by the trial court is affirmed. He is in jail. He shall be detained there to serve out his sentences awarded by the trial court and modified by this court.
Crl. Appeal No. 5704 of 2005 (Firasat and Ors. v. State) is dismissed. The conviction and sentences of the appellants under Section 302/149 and 148 I.P.C. awarded by the trial court is affirmed. All the appellants are in jail. They shall be detained there to serve out their sentences awarded by the trial court and affirmed by this court.
90. Reference made by learned Sessions Judge for confirmation of death sentence of Istkhar is hereby rejected.