Allahabad High Court
Nannha @ Rais & Another vs State Of U.P. on 24 August, 2018
Equivalent citations: AIRONLINE 2018 ALL 3521
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment reserved on 1.8.2018
Judgment delivered on 24.8.2018
Court No. 47
(1) Case :- CRIMINAL APPEAL No. - 3676 of 2006
Appellant :- Nannha @ Rais & Another
Respondent :- State Of U.P.
Counsel for Appellant :- Nasiruzzaman,A.K.Pandey,Anubhav Trivedi,Brijesh Kumar Pandey,R.K.Singh,Sudhir Solanki
Counsel for Respondent :- Govt. Advocate
And
(2) Case :- CRIMINAL APPEAL No. - 3745 of 2006
Appellant :- Suleman
Respondent :- State of U.P.
Counsel for Appellant :- R.B. Singh,N.K. Singh,R.K.Singh,Zafeer Ahmad N
Counsel for Respondent :- Govt. Advocate
Hon'ble Ram Surat Ram (Maurya),J.
Hon'ble Umesh Chandra Tripathi,J.
(Delivered by Umesh Chandra Tripathi,J)
1. Heard Sri Saghir Ahmad alongwith Sri Brijesh Kumar Pandey, counsels for the appellants and Sri Anil Kumar Kushwaha, A.G.A., for the State of U.P.
2. These two appeals are directed against the common judgment and order dated 8.6.2006 passed by learned Addl. Sessions Judge, Court No. 1, Rampur in S.T. No. 488 of 1999 (State Vs. Nanha @ Rais and others) arising out of case crime no. 139 of 1997 whereby the accused-appellants Nanha @ Rais, Basheer Ahmed and Suleman were convicted and sentenced as follows: (a) Life imprisonment alongwith fine of Rs. 2000/- each under Section 302/34 Indian Penal Code (hereinafter referred to as "IPC") and (b) Ten years rigorous imprisonment alongwith fine of Rs. 2000/- each under Section 307/34 IPC. In case of default in payment of fine, all the appellants shall undergo simple imprisonment for further six months.
3. Both the sentences were directed to run concurrently.
4. The brief facts of the prosecution case are that a first information report was lodged on information of informant Shabir PW-1 on 9.8.1997 at 1:30 AM at Police Station Azeem Nagar, District Rampur as Case Crime No. 139 of 1999 under Sections 304, 324 IPC. As per the first information report, the house of informant Shabir was parallel to the houses of accused/appellants Nanha @ Rais Ahmed, Basheer Ahmed and Suleman in the same lane. Accused/appellants used to tie their bulls and park their bullock cart on the way of the houses. For this issue, usually verbal spat was going on between informant and accused/appellants. In the night of 8.8.1997 informant Shabir, his nephew Shakirnoor and his brother Mohd. Noor were irrigating their paddy field near the village Dokpuri where a lantern was burning. At about 11:00 PM in the night, while informant's nephew Shakirnoor was sleeping, appellants Nanha @ Rais Ahmed, Basheer Ahmed and Suleman reached there and started abusing the informant. When the informant objected the appellants not to abuse, appellant Nanha @ Rais Ahmed made fire upon the informant's nephew Shakirnoor, who was sleeping on the cot. The said fire hit on left side of his head. On hearing hue and cry of informant as well as sound of fire, Maksood and Mohd. Noor of Village Dokpuri, who were irrigating their field, came on the spot alongwith torch. On seeing them, accused/appellants fled in the west direction by making fire. Informant's brother sustained injuries of pellets in the right hand as well as on other several parts of the body. Shakirnoor died at once. Informant took his injured brother to the police station by vehicle and informed the police about the incident.
5. Injured Mohd. Noor was examined by PW-4 Dr Satish Chandra on 9.8.1997 at 2:10 AM at District Hospital, Rampur, who prepared injury report Ex. Ka-2 and noted the following injuries on his person:-
"(i) Fire arm wound 0.5 cm x 0.5 cm on the top of skull. A bullet was found inside the wound and some part of the bullet was outside the skull. No blackening and scorching. X-ray advised for skull.
(ii) Lacerated wound 6 cm x 6 cm x bone deep on dorsal side of right hand. Bleeding oozing from wound present. No blackening was present around the wound. X-ray advised for right hand."
In the opinion of doctor, both the injuries were fresh and caused by fire-arm.
In supervision of PW-5 Akhilesh Kumar, X-ray of head and of right hand of injured Mohd. Noor was conducted and X-ray plate material Ex-1, material Ex-2 and report Ex-K-3 were prepared. Accordingly, second meta carpal bone of right hand of injured was fractured. In skull no radio opaque shadow was detected.
6. The post mortem of dead body of Shakirnoor was conducted by (PW-6) Dr Ved Prakash on 9.8.1997 at 12:30 PM, who prepared post mortem report Ex.K-4. As per post mortem report and statement of (PW-6) Dr Ved Prakash, following ante-mortem injury was found on the body of deceased Shakirnoor:-
"A firearm wound of entry 2.5 cm x 2.5 cm x brain cavity deep on left side of head 3 cm above from left ear. Margins inverted, blackening scorching and tattooing present around the wound. Left parietal bone was found fractured in multiple pieces."
Brain was congested and lacerated. One wadding cork, two tiklies and thirty five pellets were recovered from the brain. In the opinion of doctor, cause of death was coma as a result of ante-mortem injury of head. Duration of death was about 1 ½ day.
7. After investigation chargesheet has been submitted against appellants Nanha @ Rais Ahmed, Basheer Ahmed and Suleman under Sections 304, 324 IPC.
8. Learned Trial Court has framed charges under Sections 302 and 307 IPC against accused-appellant Nanha @ Raes Ahmed and under Sections 302/34 and 307/34 IPC against accused-appellants Basheer Ahmed and Suleman and explained charges to them. They pleaded not guilty and claimed to be tried.
9. To substantiate charge against accused persons, prosecution has examined PW-1 Informant Shabir, PW-2 Mohd. Noor and PW-3 Maksood as witnesses of facts and PW-4 Dr Satish Chandra, PW-5 Dr. Akhilesh Kumar, PW-6 Dr. Ved Prakash and PW-7 Inspector Rahman Khan as formal witnesses.
10. Except as above, no other witness was adduced, therefore, evidence for the prosecution was closed and statements of the accused were recorded under Section 313 Code of Criminal Procedure (hereafter referred to as Cr.P.C."), wherein, they claimed their innocence and pleaded that they have been falsely implicated in this case due to enmity. They further stated that witnesses are deposing falsely against them due to enmity.
11. In defence, no evidence either oral or documentary was adduced by the respondents/accused.
12. Upon detailed consideration of evidence on record, learned Trial Court found that the guilt of the accused/appellants for the offences punishable under Sections 302/34 and 307/34 IPC is proved beyond reasonable doubt and passed aforesaid order of conviction and sentence.
13. Aggrieved by the order of learned trial Judge, the accused-appellants have preferred these two separate criminal appeals.
14. Learned counsel for the appellants contended that FIR is anti-timed. It had not been lodged on 9.8.1997 at 1:30 AM, but lodged later on showing date and time of lodging as mentioned above. Witnesses of facts were not present on the spot at the time of occurrence and they are not reliable witnesses. There are material contradiction in their statements. Injuries of injured Mohd. Noor was manufactured, fabricated and concocted. There was no motive for accused-appellants to commit the offence. PW-3 Maksood admitted in his cross examination that he had not seen any person causing death of deceased Shakirnoor. Learned trial court has erroneously held that this statement, is not admissible in evidence as the same is not on oath. Learned Trial Court without properly appreciating the evidence on record, has passed the impugned order of conviction, which is not sustainable and liable to be set-aside and as such, appeals deserve to be allowed.
15. Learned A.G.A., has contended that there is no error or infirmity in the order passed by the learned Trial Court and as such the appeals are liable to be dismissed.
16. PW-2 Mohd. Noor is injured witness and as such, his presence on the spot cannot be doubted. PW-1 Shabir and PW-2 Mohd. Noor have stated before the Court that in the night of incident, they were irrigating their paddy field. Deceased Shakirnoor was sleeping on the cot. At about 11:00 PM, appellants-accused reached there and started abusing them. They asked the accused, not to abuse, then appellant Nanha @ Raes Ahmed fired on Shakirnoor due to which, he sustained injury and died on the spot.
17. Learned counsel for the appellants contended that trial court has discarded the statement of PW-3 Maksood in his cross-examination on the ground that it is not on oath, whereas relied on his statement of examination-in-chief which is against law. In Rameshwar Vs. State of Rajasthan reported in AIR (39) 1952 SC 54, the Hon'ble Apex Court observed as follows:-
"7. The proviso quoted above must be read along with section 118 of the Evidence Act and section 13 of the Oaths Act. In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in section 118. Every witness is competent unless the Court considers he is pre- vented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that section 118 must prevail.
8. Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of section 118 these matters only touch credibility and not admissibility. In my opinion, section 13 of the Oaths Act places this beyond doubt. It states--
"No omission to take any oath or make any affirmation......... and no irregularity whatever, in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever.......... "
9. Section 5 is the main provision regarding the administration of oaths. The proviso only sets out the cases in which the oath is not to be administered. If, therefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either. Section 118 remains and unless the judge considers otherwise the witness is competent."
18. Accordingly, the statement of PW-3 Maksood in his cross-examination was admissible even though he refused to take oath and trial court was not justified to discard the statement of witness made by him in his cross-examination.
19. As per provision of Section 138 of the Indian Evidence Act, witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. His examination will be completed only after cross-examination by the adverse party, if adverse party so desire. If adverse party does not get opportunity to cross-examine the witness, the examination in chief shall not be admissible. If trial court found that cross-examination of PW-3 is not admissible, then trial court cannot rely on his examination in chief as the witness refused to take oath and opportunity to cross-examine him was denied to accused. In the present case, statement in cross-examination made by the witness is admissible. Accordingly, examination in chief of PW-3 Maksood is also admissible.
20. PW-1 Shabir admitted this fact that Maksood had come on the spot after hearing sound of fire. Therefore, it was not possible for PW-3 Maksood to see the person who cause fire arm injury to deceased Shakirnoor. As such, statement of PW-3 in cross-examination that he could not see the person who caused death of Shakirnoor, is correct and reliable.
21. Although, PW-3 Maksood admitted in his cross-examination that he had not seen the person who had caused death of his brother-in-law Shakirnoor but he supported the fact that on 8.8.1997 at 11:00 PM, Shakirnoor had sustained fire arm injuries in his paddy field due to which he died.
22. Learned counsel for the appellants further contended that from one shot, head injury of injured Mohd. Noor and injury of deceased Shakirnoor cannot be caused, as bullet was recovered from the head injury of injured Mohd. Noor and 35 pellets were recovered from the injury of deceased Shakirnoor. We do not agree with the contention of learned counsel for the appellants. Cartridge having bullet and cartridge having pellet may be fired from the same weapon, even in the same cartridge, bullet and pellet may be found together.
23. The fact that Mohd. Noor sustained fire arm injury on his head, is not mentioned in the first information report and in the entry of GD at the time of lodging of the FIR. In X-ray of head of injured Mohd. Noor, there was no any radio opaque shadow. On these grounds, learned counsel for the appellants contended that injury of Mohd. Noor is manufactured, fabricated and concocted. The injury on the head of Mohd. Noor is on the top of the skull and of size 0.5 cm x 0.5 cm. Although, bullet was present inside the wound but some part of bullet was present outside the skull. This injury was of trifling in nature and any one may ignore to take notice of such injury. As some part of bullet was outside the wound, the bullet may easily eject from the wound. In such circumstances, in X-ray report of skull, no any radio opaque shadow will be found. Accordingly, it cannot be said that head injury of injured Mohd. Noor is fabricated.
24. Second injury of the injured Mohd. Noor was on dorsal side of his right hand of size 6 cm x 6 cm x bone deep and head of second meta carpal bone was fractured. As such, this injury was of grievous in nature and may be caused by spread of pellets of cartridge of fire arm. Mohd. Noor has admitted in his cross-examination that a single fire was made due to which Shakirnoor sustained injury on left side of his head and died. At the same time, he further stated that accused fled in west direction by making fire. In the first information report, it is also mentioned that after incident, appellants fled away from the spot by making fire. PW-1 Shabir has specifically stated that appellant Nanha @ Raes Ahmed has made second fire, due to which, Mohd. Noor sustained injuries. All the witnesses of facts have put their thumb impressions on statements before the court. They are illiterate villagers. Deceased Shakirnoor was the son of injured Mohd. Noor as such Mohd. Noor was in shock and horror at the time of occurrence. It was not possible for him to observed each and every moment of incident. Due to mistake in observation, he might have stated in his cross-examination that single fire has occurred.
25. PW-1 Shabir has admitted in his cross-examination that at about 1:30 AM or 2:00 AM, Mohd. Noor was present on the spot. He further admitted that police had came on the spot at about 1:30 AM-2:00 AM in the night. Till then, he was present on the spot. PW-1 Shabir further admitted that he had gone with Mohd. Noor at 8:00 PM for irrigating the field. The tube well was operated from 4:00 AM. PW-2 Mohd. Noor admitted in his cross-examination that he had gone at tubewell at 4:00 PM with his brother Shabir. PW-1 Shabir has stated in his examination-in-chief that accused-appellants Basheer Ahmed and Suleman were armed with 'patal' but in his cross-examination he specifically stated that they were not armed with any weapon. In examination-in-chief, he falsely stated that these two accused were armed with 'patal'. This shows that Shabir is very innocent and natural witness. For an illiterate villagers, it is not possible to note time of every event of occurrence without watching clock. It will be not possible, even for a literate person, to narrate the actual time of each and every event of occurrence. No one is expected to make vivid and video-graphic presentation of scene after about 6 years of the occurrence. These are minor contradictions on the basis of which, whole prosecution version cannot be discarded.
26. In Gangadhar Behera and others v. State of Orissa reported in (2002) 8 SCC 381, Hon'ble Apex Court held that :
"Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
27. Injured Mohd. Noor was examined at District Hospital, Rampur at 2:10 AM on 9.8.1997. He was sent to the hospital by the police after lodging FIR. His injuries is mentioned in the GD. In such circumstances, it cannot be said that staff of police station, district hospital and Dr Satish Chandra, who conducted the medical examination of Mohd. Noor, were in conspiracy. Only by conspiracy of all these person, present ante-time FIR might have been lodged. Accordingly, we find no force in the argument of learned counsel for the appellants that FIR is ante-timed.
28. PW-1 Shabir Ahmed has made contradictory statements on the point of place, where written report was scribed. At one time, he said that written information was scribed by Shamshaduddin on the spot. Further he stated that written report was scribed at police station. From the perusal of the first information report, it is evident that written information was scribed at police station. Otherwise, it was not possible for a layman or illiterate man to narrate such fact in the first information report. Lantern was burning on the spot, was not much material. A layman will not narrate this fact in the first information report. Most of the FIR is lodged with due deliberation particularly with advice of head constable, who is posted at police station to scribe chik. This is a realty of the day. Only because, first information report was lodged at police station with due deliberation, whole prosecution version cannot be discarded.
29. Learned counsel for the appellants contended that no independent witness has supported the prosecution version. Learned counsel for the appellants further contended that only on the basis of statements of interested witnesses, accused-appellants cannot be convicted.
30. In Gangadhar Behera's case (supra), Hon'ble Apex Court held as follows :
".....Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.
We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) 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 through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses 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 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p, 209-210 para 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.......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."
31. In Sardul Singh v. State of Haryana reported in (2002) 8 SCC 372, Hon'ble Apex Court held as under :
"There cannot be a prosecution case with a cast-iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seems to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt. This Court in Ugar Ahir v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] has observed, as to what should be the approach of a court in such circumstances, as follows:
"6. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
32. In the present case, occurrence has taken place in the night where family members of the deceased were irrigating their paddy crop. In such a situation, there was no possibility of presence of independent witnesses on the spot. PW-2 Mohd. Noor is father of deceased Shakirnoor. There was no any reason for Mohd. Noor to screen the real culprits and falsely implicate the appellant Nanha @ Raes Ahmed.
33. In the FIR and statement of witnesses of fact, it has come that lantern was burning on the spot but even in light of burning lantern, it will not be possible to identify a stranger but in the present case, appellants, witnesses of fact and deceased were residence of same vicinity. Appellant Nanha @ Raes Ahmed had fired on deceased Shakirnoor, after altercation between informant Shabir and his brother Mohd. Noor from one side and appellants from the other side. In such circumstances, the witnesses may easily identify the accused even in dark night.
34. In Shivraj Bapuray Jadhav & Ors. v. State of Karnataka reported in (2003) 6 SCC 392, Hon'ble Apex Court observed as follows :
"The submission that the occurrence was two days prior to the new moon day and, therefore, the ocular witnesses could not have witnessed the occurrence as they claimed to have, does not appeal to us for the reason that not only, as noticed by the High Court, the parties are used to living in the midst of nature and accustomed to live without light, the parties could have been identified easily not only from the voices but from the fact that they are known persons and close relatives and living in the neighbouring huts. Though the learned trial Judge had noticed some of the discrepancies in the evidence, as rightly observed by the High Court, nothing substantial seems to turn out of the so-called discrepancies which appear to be merely trivial, not undermining the credibility or truthfulness of the evidence spoken to by the witness or the case of the prosecution and as rightly noticed by the High Court, the defence could not succeed in bringing to the notice of the Court any single discrepancy on any material aspect of the case in the form of contradiction by marking it on behalf of the accused in the evidence of the eyewitness, which could be said to either belie or undermine the credibility of those witnesses who claimed to have witnessed the occurrence and deposed before the court. In a case which turns on direct evidence, the motive element does not play such an important role as to cast any doubt on the credibility of the prosecution witness even if there be any doubts raised in this regard.
35. Accordingly, identification of accused by the witnesses of fact cannot be doubted.
36. PW-1 Shabir and PW-2 Mohd. Noor admitted in their statements that accused were used to tie their bulls and park their bullock carts on the way, due to which verbal spats have taken place for several times. PW-2 Mohd. Noor has narrated in his cross-examination that appellants were parking their bullock carts in the way before 4-5 years of the incident. Altercation took place between them before 5 years. On the basis of this statement of PW-2 Mohd. Noor, learned counsel for the appellants contended that there was no motive for appellants to commit offence for altercation, which took place before 4-5 years of the incident. We do not agree with the contention advanced by learned counsel for the appellants. The evidence shall not be read in piecemeal. Whole statement of witnesses shall be taken into consideration to come at a fruitful conclusion. PW-2 Mohd. Noor also stated that altercation had taken place before murder. From the statement of PW-1 Shabir and PW-2 Mohd. Noor, it is evident that altercation was going on at regular intervals between parties due to parking of bullock carts by the appellants in the way. Although prosecution witnesses have not specifically stated the date and time of altercation which has taken place just before the occurrence but only because of not specific narration of this fact, it cannot be said that there was no motive for the appellants to commit murder.
37. PW-1 Shabir admitted in his cross-examination that he had seen the accused persons coming from the west side at distance of 20-25 steps. PW-2 Mohd. Noor has also admitted this fact that at the time of occurrence, he was at distance of 20-25 steps from place, where his son Shakirnoor was sleeping. Learned counsel for the appellants contended that first of all, altercation had taken place between Shabir and Mohd. Noor from one side and appellants from other side. Deceased Shakirnoor was sleeping at that time. Accordingly, appellants should have murdered Shabir and Mohd. Noor. There was no reason for them to cause death of Shakirnoor, who was sleeping.
38. From perusal of the record, it is evident that deceased Shakirnoor and accused-appellant Nanha @ Raes Ahmed were of same age group. Being a young member of family, deceased Shakirnoor might have strongly opposed the appellant Nanha @ Raes Ahmed for parking the bullock carts in the way. As such, it may be a strong motive for the appellant Nanha @ Raes Ahmed to cause death of a young person of his age. It must also be noted that if offence is proved, the prosecution version cannot be doubted on the ground that it has failed to proved the motive of the accused to commit the offence. In Om Prakash @ Raja v. State of Uttaranchal reported in (2003) 1 SCC 648 Hon'ble Apex Court held as under :
"11. As regards the motive for the crime, the High Court on an analysis of the evidence found that it could either be a frustrated attempt to commit robbery or it could be for taking revenge against the master and his family. It is in evidence of PW-1 that the decision to dispense with his services was conveyed to the accused on the previous day because the accused incurred the displeasure of the family on account of his misbehaviour viz., suspected theft and his killing or harming the pet birds. That apart, as stated by the accused in his statement under Section 313 Cr.P.C., he was asked to quit the job for having illicit intimacy with the sister of the co-accused and he was scolded on that account. The accused would have been aggrieved for one or all of these reasons. We are not concerned with the sufficiency or otherwise of the motive which would have prompted the appellant to commit the crime. The correctness of conviction cannot be tested on the touchstone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused committed the crime. ......"
39. From perusal of the post-mortem report of deceased Shakirnoor, it is evident that single fire had been made from very close range. The statement of PW-1 Shabir and PW-2 Mohd. Noor was supported by post-mortem report. There is no any contradiction in their statements on this point, due to which, their testimony may be discarded. From their statements supported by medical evidence, it is proved beyond reasonable doubt that on 8.8.1997 at about 11:00 PM accused-appellant Nanha @ Raes Ahmed fired on Shakirnoor due to which he sustained injuries and died at once.
40. PW-1 Shabir has stated in his examination in chief that appellants/accused Basheer Ahmed and Suleman were armed with 'patal' but in his cross-examination, he specifically stated that they were not armed with any weapon. No active role is attributed to appellants/accused Basheer Ahmed and Suleman. Appellants-accused Nanha @ Raes Ahmed and Basheer Ahmed are real brother and appellant Suleman is cousin brother of Nanha @ Raes Ahmed. PW-2 Mohd. Noor has admitted in his cross-examination that Suleman does not park Bullock cart in the way. In such a circumstance, due to murder of Shakirnoor by appellant Nanha @ Raes Ahmed, possibility of falsely implicating appellants/accused Basheer Ahmed and Suleman, who are related to the accused Nanha @ Raes Ahmed, in the offence cannot be ruled out. Accordingly, appellants/accused Basheer Ahmed and Suleman deserve to be given benefit of doubt.
41. In this case charge for offence under Sections 302 and 307 IPC has been framed against appellant Nanha @ Raes Ahmed but due to clerical mistake, trial court has convicted him under Sections 302/34 and 307/34 IPC which is liable to be modified.
42. In the result, Criminal Appeal No. 3676 of 2006 (Nanha @ Raes and Another Vs. State of U.P.) is partly allowed. Conviction of appellant Nanha @ Raes Ahmed is modified from Sections 302/34 and 307/34 IPC to Sections 302 and 307 IPC and as such, he is sentenced to life imprisonment and to pay fine of Rs. 2,000/- under Section 302 IPC and ten years rigorous imprisonment and to pay fine of Rs. 2,000/- under Section 307 IPC. In case of default in payment of fine, he shall undergo simple imprisonment for further six months. He shall serve out his remaining part of sentence.
Furthermore, conviction and sentence of appellant Basheer Ahmed are set-aside and he is acquitted. He is on bail, he need not surrender. His bail bonds stand cancelled and sureties are discharged.
43. The Criminal Appeal No. 3745 of 2006 (Suleman Vs. State of U.P.) is allowed. Conviction and sentence of appellant Suleman are set aside and he is acquitted. He is also on bail, he need not surrender. His bail bonds stand cancelled and sureties are discharged.
44. Let a certified copy of this judgment and order along with Lower Court record be sent back to the trial court for its intimation and necessary compliance.
Order Date :- 24.8.2018 Jaswant (U.C. Tripathi,J.) (R.S.R. (Maurya), J)