Jharkhand High Court
Sk.Mokbil & Ors vs State Of Jharkhand on 19 December, 2009
Author: J.C.S. Rawat
Bench: J.C.S. Rawat, Prashant Kumar
Criminal Appeal No. 121 of 2004
Against the judgment and order of conviction and sentence dated 12.12.2003
passed by Sri Ram Bachan Singh, 6th Additional Sessions Judge, (FTC No. 3)
Godda, in Sessions Trial No. 28. of 2000/ 76 of 2002.
1. Sk. Mokbil
2. Sk. Banni
3. Sk Naseem
4. Sk Chhedi .... Appellants
Versus
State of Jharkhand ... Respondent
For the appellants : M/s. A.K. Kashyap & Sarita Gupta
For the respondent State : Mrs. Sadhana Kumar, Addl.P.P.
For the informant : Mr. Ranjan Kumar Singh.
PRESENT
HON'BLE MR. JUSTICE J.C.S. RAWAT
HON'BLE MR. JUSTICE PRASHANT KUMAR
CAV on 11.12.2009 pronounced on 19/12/2009
J.C.S. RAWAT, J. This appeal by the appellants is against the
judgment and order of conviction and sentence dated 12.12.2003 passed by
the 6th Additional Sessions Judge, Godda in Sessions Trial No. 28 of 2000
arising out of Mehagama PS Case No. 115 of 1999 ( GR No. 1060 of 1999)
whereby and whereunder the appellants have been convicted under
section 302 read with section 34 of Indian penal Code and have been
sentenced to undergo imprisonment for life with fine of rupees 5000/-
each and in default of payment of fine, to undergo simple imprisonment
for two years further.
2. Facts of the prosecution case, in nutshell is that the deceased
Abdul Gafoor was Head Master in a Primary School in village Karhariya
and on 21.11.1999 he was going at about 6.00 a.m. on pulse polio duty.
Md. Nayeem PW15, son of the deceased also accompanied him to some
2
distance while he was going to ease himself and the deceased was going
to attend the pulse polio duty. Both of them i.e. the deceased and his son
PW15 who is the informant, went together to some distance and thereafter
his son parted with his father to ease himself in the field. His father alone
proceeded further towards the place of his duty in the Pulse Polio
programme. Md. Nayeem PW15 saw the appellant Mokbil armed with a
lathi, appellant Sk. Banni armed with a sabbal, and the appellants Sk
Naseem and Sk Chhedi both holding lathis in their hands and going
behind the father of the informant Nayeem. After some time, he saw that
the appellants had been assaulting his father with the weapons which they
were holding in their hands. While he was on way to the place of
occurrence, he made a hue and cry and thereafter the appellants fled away
from the scene of the occurrence. When he reached the spot, he found that
his father had sustained injuries on his persons and he died at the spot. It
is also in the prosecution story that there is a land dispute between the
parties for which a civil suit is pending before the competent court of law.
Apart from this, proceedings under sections 107, 144 and 145 of the Code
of Criminal Procedure were initiated in between the parties.
3. Fard beyan of the informant PW15 was recorded by the Police
at about 10.30 a.m. on the date of occurrence. The matter was investigated
by the Police and after completing the investigation, a charge sheet was
submitted before the Chief Judicial Magistrate and the case was committed
to the court of sessions and after committal, the charge was framed by the
trial court. The appellants denied the charges and claimed to be tried.
3
4. The prosecution in support of its case examined PW1 Md.
Farood, PW3 Sk Zafir, PW4 Maksood, PW6 Md Azhar, PW10 Md Kabil,
PW11 Abdul Samad; PW17 Gyas Ali and PW18 Sk Majhar. They are not
eye witnesses to the incident. They had reached at the spot after the
occurrence and they had seen the dead body of the deceased at the place
of occurrence and they have given hearsay evidence that the appellants
had assaulted the deceased and consequently he died. PW5 Rafique
Sheikh, PW8 Srikant Yadav, PW9 Suresh Sah, PW16 Ganesh Sah were
declared hostile by the prosecution. They have not supported the
prosecution case. They had stated that they did not see the appellants
causing injuries on the deceased and they stated that they had seen the
dead body of the deceased at the spot. PW15 Nayeem is the informant
who has stated that he had seen the occurrence with his own eyes and his
fard beyan was recorded by the Police. PW13 Md. Kalimuddin is also an
eye witness who has corroborated the evidence of the informant PW15.
PW14 is Dr. Ashok Kumar who had conducted autopsy on the dead body
of the deceased Abdul Gafoor and had prepared post mortem report (
Ext.8). PW12 Arun Kumar Singh is the Investigating Officer of the case
who had visited the spot and recorded statements of the witnesses and
proved the papers produced by the prosecution and he also submitted
charge sheet before the court.
5. After recording evidence of the prosecution, the appellants
were examined under section 313 Cr.P.C. They have denied all the
allegations made against them and have stated that they have been falsely
implicated in the case due to enmity in between the parties in connection
4
with the land. The defence has not produced any evidence, oral or
documentary, in support of its case.
6. After hearing the learned counsel for the parties, the trial
court convicted and sentenced the appellants as indicated above.
7. We have heard the learned counsel for the parties and
perused the records. With the help of the learned counsel for the parties
we have gone though the entire judgment of case as well as the evidence of
the witnesses, oral and documentary, adduced by the parties in support of
its case.
8 It needs to be mentioned that there is no dispute that the
deceased died at the spot and sustained injuries on his person on the date
and time of the incident. Dr. Ashok Kumar (PW14) conducted autopsy on
the dead body of the deceased Adbdul Gafoor at 4..30 p.m. on 21.11.1999
and found the following ante mortem injuries on his person :
(i) Four linear bruises about ¾ "x 1"x ¼ " on the lower chest
on thoracabdominal junction in a parallel fashion;
(ii) bruised wide areas on both sides of anterior thorax more
on the outer side. Badly bruised occipital area of scalp in the lower
half involving more right half than the left with hard bonny
protrusion;
(iii) on cutting the ligature, round the neck
carefully, there was wide bruise round the
neck with three abrasions on the back and
lateral portion of neck;
The doctor (PW14) has further opined that the death occurred
due to shock and haemorrhage from multiple injuries on the head and
thorax which was caused by hard and blunt object. Duration of death
according to the Doctor was about 12 hours at the time of post mortem.
Further, PW13 Md. Kalimuddin and PW 15 Md. Nayem (informant) have
stated that they had seen the appellants committing assault on the
deceased. The other witnesses i.e. PW1, Md Farooq; PW3 Sk. Zakir, PW4
5
Maksood, PW 6 Md Azhar, PW10 Md Kabil, PW11 Abdul Samad, PW17
Gyas Ali and PW18 Sk Majhar have stated that they reached at the spot
after the incident and they saw the deceased lying on the ground and saw
the dead body having injuries on his person. Thus, it is amply established
that the death of the deceased occurred on 21.11.1999 at about 6.a.m.
9 Now, we have to examine who is the author of the injuries on
the person of the deceased. The case rests mainly on the evidence of PW
13 and 15 who had seen the occurrence. The prosecution in support of its
case examined PW 15 Nayeem who is the informant of the case. He is also
the son of the deceased. He has stated that his father Abdul Gafoor was
employed as a Head Master in a school in village Karhariya and had been
deputed to attend the pulse polio programme in village Chilha on
21.11.1999. The deceased Abdul Gafoor left his home at 6.00 a.m. on 21.11.1999 and went to work in village Chilha where had had been deputed to discharge his duties in Pulse Polio Abhiyaan. The informant also accompanied him to ease himself to some distance. Both of them went together to some of distance from their house and thereafter PW 15, the informant, parted with him towards other direction to meet nature's call in the morning. The deceased Abdul Gafoor took his way towards village Chilha. When his father had gone, he was easing himself and he saw that the appellant Mokbil, was having a lathi in his hand; appellant Banni was holding a sabbal in his hand while appellants Naseem and Cheedi were having lathis in their hands and they were going behind the deceased, the father of the informant. After some time, he saw that the appellants assaulted his father with the weapons which they were having in their hands. He rushed towards the place of the occurrence and also made a cry. The appellants fled away from the place of occurrence after seeing the informant PW15. When he (PW15) reached at the spot, he found his father had sustained head injuries and he died at the spot. He has stated that the place of occurrence is situate at a distance of about 200 to 300 yards from the place where he was attending his natural call. He has further stated that there is enmity between them and a civil litigation is pending with regard to the land between the parties.
610. The prosecution has also examined PW13 Md. Kalimuddin in support of his case. He has stated that on the date of occurrence, he had gone to Bahiyar to meet the natural call. When he finished his natural call, he heard the noise made by Md. Nayeem PW15 that his father has been assaulted. After hearing the alarm from Md. Nayeem PW15, he reached at the spot and he saw that the appellants were running towards western side and the deceased was lying dead at the spot The other witnesses produced by the prosecution are hear-say witnesses and they had seen the dead body of the deceased. PW13 Md. Kalimuddin has corroborated the evidence of PW15 Md. Nayeem. Thus, the main witnesses to the occurrence are PW15 Nayeem and Kalimuddin PW13.
11 The learned trial court after going through the entire records has found the prosecution evidence credible and cogent. We have also gone through the entire evidence of the prosecution witnesses. All the eye witnesses have corroborated the evidence of each other. By our own appreciation of the evidence of the prosecution witnesses, we do not find any material to differ with the findings recorded by the learned trial court. The defence counsel has cross-examined all the witnesses at length, but nothing could be elicited from the evidence to discredit their testimonies. While appreciating the evidence of PW15 Md. Nayeem and PW13 Md. Kalimuddin, who are son and the nephew of the deceased, we cannot lose sight of the panic suffered by the son and the nephew of the deceased at the time of the incident. Even then, both these witnesses have come forward with vivid details of the incidents as to how the incident occurred. The presence of these witnesses cannot be doubted at the spot. They are natural witnesses. We are satisfied that the witnesses have basically remained at the same position which they had stated at the initial stage. The prosecution witnesses remained consistent during the course of their cross examination. Their evidence is wholly believable and we find their evidence cogent and credible. The prosecution witnesses have further corroborated by stating the name of the witness who had seen the deceased lying at the spot immediately after the incident. There is prompt 7 FIR of the incident. The injuries caused also corroborate the factum of the incident.
12 Learned counsel for the appellants contended that the independent eye witness present at the scene of the occurrence has not been examined and therefore an adverse inference should be drawn. He further relied upon the evidence of the informant PW15, who has stated in his cross examination that after hearing the cries of his father, when he raised alarms, some of the villagers arrived at the spot. Learned counsel for the State refuted the contention. It is settled law that non examination of the eye witnesses cannot be pressed into service like a ritual formula for discarding the evidence with a stroke of pen. Efforts should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of eye witnesses examined in the case is found to be trustworthy and worthy of being relied upon so as to form a safe basis of recording finding as to the guilt of the accused persons, then non examination of yet another witness merely repeating the same story as has already been narrated by other reliable witnesses, would not cause dent and infirmity to the prosecution case. In the case in hand, PW15 has categorically stated that he has seen the occurrence and PW13 Kalimuddun has corroborated his evidence. It is also settled position of law that it is not necessary to multiply the evidence of incident on the same point. It has to be seen what is the quality of the witnesses and not the quantity. Moreover, it is almost seen now-a-days that public is reluctant to appear and depose before the court in criminal cases because criminal cases are kept dragging for years together and witnesses have to be harassed a lot. Some time they are threatened, intimidated and, at the top of all, subjected to unnecessary lengthy cross examination. So the witnesses avoid to come to the court. We cannot forget this aspect and the attitude of the public at present. Thus, we do not find any substance or force in the said contention.
13. Learned counsel for the appellants further contended that all the witnesses are related with each other and their evidence cannot be taken into account and they are partisan witnesses. It is true that the 8 informant PW15 is the son of the deceased and PW13 is the nephew of the deceased. It is admitted that they are related with each other. PW1 Md. Farooq is also the son of the deceased. PW2 Md Kamaluddin and PW4 Maksood are nephews of the deceased. Admittedly, the prosecution is relying on the evidence of PWs. 13 and 15. The trial court has also relied on their evidence and convicted the appellants on the basis of their depositions. Admittedly, PW 13 and 15 are nephews and son of the deceased. There is no rule of law or prudence which requires that evidence of close relations must be discarded for the simple reason that they are related to each other. Just because the witnesses are related to the deceased would not be a ground to discard their testimony, if otherwise, their testimonies inspire confidence. In the present case, their evidence is natural. We have no reason to disbelieve their testimony. Being relative, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong person(s) in the crime so as to allow the real culprits to escape from punishment.
14. The Supreme Court in the case of Masalti vs. State of Uttar. Pradesh) AIR 1965 SC 202 has observed as follows in para 14 :
"14 ................ But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. "
In the case of State of Punjab Vs. Karnail Singh reported in 2004(1) SCC ( Crl.) 135, the apex court has held as follows :
98. "We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh V State of Punjab ( AIR 1953 SC 364: 1953 Cr L.J. 1465) in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses.
Speaking though Vivian Bose, J., it was observed: ( AIR P- 366, para 25)."
25. "We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - ' Rameshwar V State of Rajasthan ( AIR 1852 SC 54: 1952 Cri L.J. 547) ( AIR at page 59). We fin, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
The evidence of prosecution witnesses is credible and cogent and we do not find any ground to reject the evidences of these witnesses on the ground that they are related with the deceased and we do not find force in the contention of the learned counsel for the appellants.
15. Learned counsel for the appellants further contended that the prosecution has failed to prove that there was common intention to cause injuries on the person of the deceased. Learned counsel for the State has refuted the contention and contended that the prosecution has established beyond all reasonable doubts that the appellants had common intention to cause death of the deceased. Direct proof of common intention is seldom available and therefore such intention can only be inferred from the circumstances appearing from the true facts of the case. To infer common intention to cause death of the deceased has to be gathered generally from combination of few or several circumstances. In this case, we have noticed that the appellants were carrying dangerous weapons like sabbal, lathis in their hands. The appellants had came prepared from their 10 houses and assaulted the deceased at the spot. According to the prosecution evidence of PW15, he saw them carrying weapons in their hands and going behind the deceased, the father of the informant. It is evident from the evidence on record that the appellants had shared common intention to cause death of the deceased and appeared to commit murder of the deceased. Section 34 of the IPC recognizes the principle of vicarious liability in criminal jurisprudence. It makes a person liable for offence not committed by him, but by another person with whom he shared a common intention. It is the rule of evidence and it does not create any substantive offence. The Section gives statutory recognition to common sense principle i.e. two or more person intentionally committing a thing jointly; it is just the same as if all of them had done it individually. There is no gain-say that a common intention pre supposes a pre-concert which requires a pre arranged plan of the appellants participating in the offence. Such pre concert or pre plan may develop at the spot or during the course of commission of the offence, but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in course of occurrence and on the spur of the moment. The existence of common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. In the case in hand, the appellants had deadly weapons in their hands. They went behind the deceased along with the weapons and they caused fatal injuries to the deceased at the spot. As such it is amply proved that there was a common intention of all the appellants to cause injuries and kill the deceased.
16. Learned counsel further contended that the appellants 1 and 4 are old aged and infirm persons and they were having lathis in their hands according to the prosecution and injuries on the person of the deceased was not found to be of lathis. As such their participation is ruled out in the incident. As we have pointed out that the appellants 1 and 4 had common intention and they had a pre-concert and as such they are also liable under section 302 read with section 34 of the Indian Penal Code. We 11 do not find any force in the contention of the learned counsel for the appellants.
17. Learned counsel appearing for the appellants further contended that the name of PW13 Md. Kalimuddin did not find place in the fard beyan or the FIR. If he was present at the time of the occurrence, his name should have been mentioned in the fard beyan/ FIR. It was further pointed out that PW13 had also gone to ease himself. The informant PW15 would have mentioned it in his fard beyan or the FIR. The evidence of a person whose name did not figure in the FIR as a witness by itself does not become doubtful. It is a settled principle of law that FIR is not an encyclopaedia in which all the details should be mentioned. The genesis of the incident should be mentioned in the FIR. FIR is lodged only to give motion to the investigation. It is not expected that a scared eye witness especially, the son of the deceased would be able to give meticulous and precise account of the details with names of witnesses at the time of incident. The informant has only narrated the incident which is sufficient. The apex court in the Case of Chittar Lal Vs. State of Rajasthan ( 2003 [6] SCC 397 has observed as follows in paragraph 7:
"7. Evidence of the person whose name did not figure in the FIR as witness does not perforce become suspect. There can be no hard and fast rule that the names of all witnesses, more particularly eye witnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan Vs State of Rajasthan mere non-mention of the name of an eye witness does not render the prosecution version fragile. The information was not lodged by an eye witness. Mental condition of a person whose father has lost his life inevitably gets disturbed. Explanation offered by witnesses for non-mention of PW3's name is plausible. Additionally, it is to be noted that in the present case the statement of PW3 was recorded on the same day of incident, immediately after the investigation process was set into motion. Therefore, the plea that PW3's testimony is doubtful lacks substance. The other plea was that conviction should not have been made on the basis of a single witness, PW 3's testimony. This plea is equally without essence. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 ( in short "the Evidence Act"). Administration of justice can be affected and hampered 12 if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. This position has been settled by a series of decisions. The first decision which has become locus classicus is Mohd. Sugal Esa Mamasan Rer Alalah V R. The privy Council focused on the difference between English law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and section 134 of the Evidence Act. The view has been echoed in Vadivelu Thevar V State of Madras, Guli Chand V State of Rajasthan, Vahula Bhushan V State of T.N, Jagdish Prasad V State of M.P. and Kartik Malhar V State of Bihar ."
In view of the above, I do not find any force in the said contention.
18. Learned counsel for the appellants further contended that evidence of PW15 is not reliable. He has further stated that he reached at the spot and he had not seen the incident and he was not eye witness of the incident. PW15 has stated in his evidence that he saw that the appellants were assaulting his father the deceased and distance between him and the place of occurrence was about 200 to 300 yards and he raised alarms that his father had been assaulted by the appellants. He has stated in his evidence that he saw the appellants fleeing away when he was standing at about 150 yards from the place of occurrence. He has further stated in his cross examination that on hearing cries of his father he also raised alarms and villagers reached there before he reached and raised alarms. Later on, he stated that he reached at the place of occurrence at the first time and thereafter the aforesaid villagers arrived there after half an hour. Learned counsel also pointed out that there is inconsistencies in the 13 evidence of Md. Nayeem PW15. Learned counsel for the State refuted the contention. The incident occurred on 21.11.1999 and evidence of PW 15 was recorded on 5.7.2003 after lapse of about three years. The witness is a villager. Minor discrepancies in the evidence are due to normal error of observation, normal error of memory and lapse of time and due to mental disposition such as shock and horror at the time of incident. The witnesses can only recall the main purport of the incident. It is unrealistic to expect a witness to be a human tape recorder or a video camera. The witness was overtaken by incident because he could not have anticipated the occurrence which showed element of surprise. In the instant case the witness has narrated the main purport of the incident. A witness cannot recall accurately the consequence of incident taking place in a rapid succession or short span of time. He is likely to get confused or mixed up when interrogated later on. It is not expected from him to narrate the incident with mathematical niceties in a criminal case. Minor contradictions and inconsistencies do not render the evidence of witness unbelievable. Feeble discrepancies are not to obliterate the otherwise acceptable evidence. We do not find any substance in the contention of the learned counsel for the defence.
19. The prosecution has further established the motive of the incident. The prosecution has filed documentary evidence (Ext 10 and
11) which are orders of the SDO, Godda, passed in Criminal Application No. 304 and 486 of 1998. PW15 has categorically stated that there is litigation pending between the parties and due to such land dispute, there was enmity between the parties. It has also revealed from the record that proceeding under sections 107/144 /145 Cr.P.C. have been initiated against the parties. The prosecution has further established the motive to kill the deceased on the date of incident. The incident occurred at about 6.00 a.m. in the morning and the fard beyan was recorded at about 10.30 a.m. The distance between the place of occurrence and police station is 10 kms. As such prompt FIR was recorded by the informant. Prompt FIR also inspire confidence that a true version would have been reported to the police station. Prompt FIR thus inspire confidence that it was not outcome 14 of any consultation or deliberation. Thus, the prompt FIR also corroborates the factum of the incident.
20. The evidence of the Dr Ashok Kumar PW14 further corroborates the injuries and the weapon used in causing injuries to the deceased.
21. For the reasons recorded above, we are of the view that the prosecution has established the case against the appellants beyond reasonable doubt and the appellants have been rightly convicted and accordingly sentenced by the learned trial court. We do not find any infirmity in the impugned judgment and order passed by the trial court in Sessions Trial No. 28 of 2000. The appellants are liable to be convicted and sentenced as awarded by the trial Court. Hence the appeal is liable to be dismissed and is accordingly dismissed.
From the record, it appears that the appellant no.4 is on bail. His bail bond are cancelled and he is directed to be taken into custody forthwith to service out the sentence. The trial court shall take all coercive steps against the appellant(s) who are on bail and submit compliance report within six months from the date of this order.
( J.C.S. Rawat, J.) Prashant Kumar, J.
( Prashant Kumar, J ) Jharkhand High Court, Ranchi, dated 19/12/2009 Ambastha/ NAFR