Allahabad High Court
Yunus vs State Of U.P. on 12 December, 2022
Bench: Ramesh Sinha, Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on: 27.9.2022 Delivered on : 12.12.2022 Court No. - 1 Case :- CRIMINAL APPEAL No. - 445 of 2005 Appellant :- Yunus Respondent :- State of U.P. Counsel for Appellant :- Amitabh Srivastava,Sanjay Kumar,Shivam Sharma Counsel for Respondent :- Govt.Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Renu Agarwal,J.
(The judgment is pronounced in terms of Chapter VII Sub-rule (2) of Rule (1) of the Allahabad High Court Rules, 1952 by Hon'ble Ramesh Sinha, J.) (Per Ramesh Sinha, J. for the Bench) (1) The convict/appellant, Yunus was tried by the Additional Sessions Judge, Fast Tract Court No.1, District Hardoi in Sessions Trial No.189 of 2002: State vs. Yunus, arising out of Case Crime No.338 of 2001 for the offence under Sections 307, 302 of Indian Penal Code, 1860 (in short "I.P.C.") and in Sessions Trial No.190 of 2002: State vs. Yunus arising out of Case Crime No.351 of 2001 for the offence under Section 3/25 Arms Act, which were registered at Police Station Shahbad, District Hardoi.
(2) Vide judgment and order dated 01.02.2005 passed in Sessions Trial Nos. 189 of 2002 & 190 of 2002, the Additional Sessions Judge, Fast Track Court No.1, Hardoi convicted the appellant under Sections 302, 307 I.P.C.. and Section 25 Arms Act and sentenced him to undergo:-
"(a) Under Section 302 I.P.C. to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default of payment of fine, to undergo additional imprisonment for two years.
(b) Under Section 307 I.P.C. to undergo seven years imprisonment and to pay a fine of Rs.4,000/-, in default of payment of fine, to undergo additional imprisonment for one year.
(c) Under Section 25 Arms Act to undergo one year rigorous imprisonment and to pay a fine of Rs.2,000/-, in default of payment of fine, to undergo six months additional imprisonment."
All the aforesaid sentences were directed to be run concurrently.
(3) Feeling aggrieved by the aforesaid judgment and order dated 01.02.2005, convict/appellant has preferred the instant appeal before this Court.
(4) The facts relating to the case are as under:-
The informant, Smt. Gudiya alias Guddi (P.W.1) was sleeping along with her family members. Her son and husband were sleeping outside in the courtyard and the informant alongwith her daughter Km. Nagma were sleeping on one cot and another daughter Km. Gulshan was sleeping equally on the other cot. The bulb was burning in the house, therefore, there was light. The locks of the outer doors were closed from inside. Then on 30.10.2001 at around 4:30 a.m., suddenly voice of husband and sons's of the informant was heard, then her eyes opened. When she got up and came to the door of the room, she saw that her brother-in-law's son Yunus (convict/appellant) was assaulting her husband and son with Gandasa (a sharp edged weapon) and when the convict/accused saw the informant then he assaulted her with Gandasa. Then the informant fell there after being injured. Thereafter, she kept silent due to fear, then convict/appellant Yunus thinking her to be dead and also assaulted her daughter Gulshan and Nagama with Gandasa and said that everyone is dead. Thinking everyone was dead, he started leaving with a burrow and climbed the ladder. Then the informant cried out in fear, then people from outside came. After that convict/appellant Yunus armed with country-made pistol has fired at roof and fled away by jumping from his house. Then she opened her door. The dead body of her husband, son and daughter are lying on the spot. It was further stated in the F.I.R. that the appellant Yusuf and his family members wanted to take all the property from the informant and her family members, due to which, they have done this incident. She has brought her injured daughter Nagma to police station and submitted a report for registering F.I.R. against the accused/appellant.
(5) The informant Smt. Gudiya alias Guddi (P.W.1) got the written report of the incident scribed by one Shambhu Nath Gupta, Moharir, who after scribing it read it over to her. She thereafter affixed her thumb impression on it. She then proceeded to the Police Station Shahabad and lodged it. The written report of the incident is proved as Ext. Ka-1.
(6) The evidence of P.W.3- Jamuna Pandey shows that on 30.10.2001, he was posted as Constable at Police Station Sahabad, District Hardoi and on the said date, at 6:15 a.m., informant- Smt. Guddi (P.W.1) came and filed a written report, on the basis of which, he prepared the chik F.I.R. (Ext. Ka-2). He further entered the same in G.D. Report No.7 (Ext. Ka-3).
(7) A perusal of the chik F.I.R. shows that distance between the place of incident and Police Station Sahabad was four furlang. It is significant to mention that a perusal of the chik F.I.R. also shows that on its basis, a Case Crime No. 338 of 2001, under Sections 302, 307 I.P.C. was registered against the appellant Yunus. After lodging the F.I.R., the informant Smt. Guddi and Km. Nagma, who sustained injuries, were sent to District Hospital Hardoi wherein between 8:30 to 8:50 a.m., the Doctor examined them.
(8) The investigation of the case was conducted by Shri T.P. Singh (P.W.5). His evidence runs as under:-
From 30.10.2001 to 27.12.2001, he was posted as Inspector In-charge/S.H.O. at Police Station Sahabad. The case was registered at police station on 30.10.2001 at 6:15 a.m. in his presence. The investigation of the case was taken by him on the date itself. He recorded the statement of informant Smt. Guddi (P.W.1) at police station and send her immediately to the District Hospital along with her minor daughter for medical examination. Thereafter he proceeded to the place of occurrence. On reaching the place of occurrence, recorded the statement of witness Fuddan (neighbour of informant) and directed S.I. Maharaj Singh to conduct the inquest proceedings and sent the three dead bodies for post-mortem examination. He, thereafter, inspected the place of occurrence and prepared the site plan (Ext. Ka-6). He collected the blood stained earth and plain earth from the place of occurrence in a two separate containers, kathari and pillow (Ext. Ka-7, 8 and 9). He further collected the 13 numbers of broken glass bangles (Ext. Ka-10) and also recovered one empty cartridge (Ext. Ka-11). The accused Yunus was arrested on 04.11.2001 then he stated in presence of witness that bloodstained Gandasa, with which, he committed murder and bloodstained clothes, which he was wearing at the time of occurrence were hidden in his house. Then he proceeded to the house of accused Yunus along with witnesses Sonpal and Nausheshah. He recovered bloodstained Gandasa, pant and shirt from the house of the accused and the accused has confessed his crime there. Then S.I. Chandra Bhan Yadav has prepared the recovery memo of the said recovery as Ext. Ka-12. All the aforesaid recovered articles were sent to Forensic Science Laboratory, Lucknow for examination. He recorded the statement of witness Mangal Shah and after concluding the investigation, he submitted charge-sheet on 08.12.2001 which was proved as Ext. Ka-13.
P.W.5- T.P. Singh further deposed in his examination-in-chief that on 03.11.2001 at 8:30 p.m., he along with his companion have arrested the accused Km. Yunus from railway crossing at Bahad village Sikandarpur and during his physical search, a country-made pistol in running position was recovered from the right pocket of his pant whereas from the left pocket of his pant, two live cartridges of 12 bore were recovered and the accused was unable to show the licence for keeping the aforesaid weapon with him. The accused was acknowledged about registration of case under Section 302 I.P.C. against him and taken him into police custody. The accused has confessed his crime, therefore, he enquired him separately. He prepared the recovery memo of a country-made pistol and live cartridges which was proved as Ext. Ka-17. The case under Section 25 Arms Act was registered against the appellant. The statement of accused was recorded on 04.11.2001, in which, he has confessed his crime.
P.W.5- T.P. Singh, in his cross-examination deposed that prior to search of accused, they have searched each other and assured that no contraband item is found in the possession of Police Team. On search of accused, nothing incriminating was recovered except a country-made pistol and live cartridges at the pointing out of accused. The recovery memo was prepared in the light of jeep headlight and torch.
(9) The evidence of P.W.7- Sri Krishan Yadav shows that on 03.11.2001, he was posted as Constable at Police Station Shahabad. On the said date, he along with Inspector In-charge T.P. Singh (P.W.5), S.I. C.P. Yadav, S.I. Vrishkant Ray, S.I. Lamheraj Singh, Constable Sham Bahadur Yadav and jeep driver Amar Nath Tiwari had gone to Shahadara railway station in order to arrest the wanted accused. Then on the information given by the informer that accused Yunus has gone to Aujhi station. They arrested the accused Yunus near railway crossing on 03.11.2001 at 8:30 p.m. and during search of accused Yunus, they found one country-made pistol of 12 bore in his right pocket of pant and two live cartridges of 12 bore was also found in his left pocket of pant and recovery memo of the said articles was prepared in his presence. In the said recovery memo, he and his companion also put their signature. The recovered articles were present on the spot. The accused has confessed the commission of murder.
P.W.7- Sri Krishan Yadav, in his cross-examination deposed that they have arrested the accused Yunus from the spot. No search of anyone was made before and after the arrest of the accused. Nothing was recovered except a country-made pistol or live cartridges at the pointing out of the accused. He further deposed that records and the arrest was made on the spot and thereafter they came back to the police station and submitted the recovered articles and custody of accused was made. The entry of the said recovered articles and arrest of accused in G.D. was made by S.I. C.K. Yadav.
(10) The evidence of P.W.8- Sarvesh Kumar Sharma shows that on 03.11.2001, he was posted as Constable Moharir at police station Shahbabd, District Hardoi. He deposed in his examination-in-chief that on the said date, he lodged the chik F.I.R. of the said case under Section 25 Arms Act on the basis of recovery memo which was proved as Ext. Ka-18. He had made the entry of the same in G.D. Report No.30.
In his cross-examination P.W.8- Sarvesh Kumar Sharma deposed that it is wrong to say that chik F.I.R. under Section 25 Arms Act was lodged anti-timed.
(11) The evidence of P.W.9- S.I. Ram Awatar Singh shows that on 03.11.2001, he was posted as S.I. at police station Shahabad, District Hardoi. P.W.9 deposed in his examination-in-chief that the investigation of Case Crime No.351 of 2001, under Section 25 Arms Act was handed over to him. During investigation, he has recorded the chik F.I.R., copy of report in G.D. and the statements of companion Inspector-in-charge S.I. T.P. Singh, S.I. Mehraj Singh, S.I. Krishna Kant, S.I. Chandra Bhan Yadav, Constable Sri Krishna Yadav (P.W.7) and Constable Ram Bahadur Yadav was recorded by him. The aforesaid procedure was done on 03.11.2001 and 04.11.2001. On 04.11.2001, on the direction of the S.I. Krishna Kant Roy, he inspected the place of occurrence and prepared the site plan (naksha nazri) under his signature which was proved as Ext. Ka-20. The Investigating Officer has framed the charges against the accused Yunus under Sections 302, 307 I.P.C. and took the custody of bloodstained Gandasa and bloodstained clothes of the accused Yunus and recovery memo of the said articles was prepared under his handwriting and signature in presence of witnesses Son Pal and Naushad Ali (P.W.10) which was proved as Ext. Ka-12. On 08.12.2001 the permission for initiating proceedings under Section 25 Arms Act was granted by the then District Magistrate Shri V.V. Singh which was proved by Ext. Ka-21. On the said date, on the basis of sufficient evidence, filed a chargesheet against the accused/appellant Yunus under Section 3/25 of Arms Act, which was signed by him and proved as Ext. Ka-22. He further deposed that he is well aware of the handwriting and signature of S.I. Mehraj Singh as he was posted at Police Station Sahabad along with him. In Case Crime No.338 of 2001 which was registered under Sections 302, 307 I.P.C., the panchayatnama and related police documents of deceased Nabiullah, Asif and Km. Gulshan was prepared by S.I. Mehraj Singh in his presence. The said document was presented before the witness in the Court. The panchayatnama of deceased Nabiullaha was proved as Ext. Ka 23, Chitthi Mazrobi as Ext.Ka 24, letter to C.M.O. (Ext. Ka 25), Challan lash (Ext. Ka-26), Photo lash (Ext. Ka-27), C.M.O. Report (Ext. Ka-28) and sample stamp (Ext. Ka 29). The panchayatnama of deceased Asif was proved as Ext. Ka 30, Chithi Mazroobi (Ext. Ka 31), letter to C.M.O. (Ext. Ka 32), Challan lash (Ext. Ka- 33), Photo lash (Ext. Ka 34), C.M.O. report on the cloth of deceased which was sent to police station (Ext. Ka- 35) and sample stamp (Ext. Ka 36). The panchayatnama of deceased Km. Gulshan was proved as Ext. Ka 37, Chithi Mazroobi (Ext. Ka 38), letter to C.M.O. (Ext. Ka 39), Challan lash (Ext. Ka- 40), Photo lash (Ext. Ka 41), C.M.O. report on the cloth of deceased which was sent to police station (Ext. Ka- 42) and sample stamp (Ext. Ka 43).
P.W.9- S.I. Ram Awatar Singh, in his cross-examination, deposed that neither he was aware of the fact that for how long recovered articles were in the police station nor he knew when they were sent to Forensic Science Laboratory, Lucknow. Furthermore, he neither inquired anything from the accused before the recovery of the articles nor any statements were recorded. The statement of accused were written in the case diary by Investigating Officer. The place from where the accused was arrested shown to him by the S.I. but where the jeep was stalled was not shown to him. The witness was not aware as to how many persons lived in the house with the accused. When the witness along with the accused entered in the house, there was no man or woman in the house and also no one from nearby was willing to come when called upon by the witness. This fact was not mentioned in the recovery memo reason being there were two person from public with the accused already. He could not recollect when his statement was taken but he affirmed that the Investigating Officer has taken his statement. Although upon seeing the case diary, he deposed that statement of witness Son Pal and others along with his statements are not recorded in it.
(12) The evidence of P.W.10- Naushad Ali alias Naushe shah, who is the witness of recovery of alleged weapon of assault i.e. Gandasa, has deposed in his examination-in-chief that on 04.11.2001, the accused-appellant Yunus has not given any Gandasa or any other items to the police. He also did not go inside the house at the instance of the police. The said witness was declared hostile by the trial Court and was permitted for the cross-examination.
In cross-examination, P.W.10 deposed that the recovery memo (ext. Ka-12) was presented to the witness which upon seeing deposed that it was his signature which was made at the instance of the police officer on a blank paper in the police station. The Investigating Officer has not ever recorded any statement regarding to the present case. It is wrong to say that he has joined the hand with the accused, therefore, he has falsely deposed.
(13) The injuries of injured Smt. Guddi (P.W.1) and Km. Nagma (P.W.2) were examined on 30.10.2001 at 8:30 a.m. and 8:50 a.m. respectively, by Dr. C.K. Gupta (P.W.4), who was posted as E.M.O. (Emergency Medical Officer) at District Hospital Hardoi.
Dr. C.K. Gupta (P.W.4) found the following injuries on the persons of injured Smt. Guddi (P.W.1) and Km. Nagma (P.W.2):-
"Injury of informant Smt. Guddi (P.W.1), wife of Nabiullah (1) I.W. on left eyebrow lateral half 2.5 cm x 0.5 cm x bone deep fresh bleeding.
(2) I.W. on left face cheek transfers 2.5 cm x 0.5 cm x subcut deep fresh blood.
(3) I.W. on Rt. forearm dorsal middle 5 cm x 2.5 cm x subcut deep fresh blood margin clear cut.
(4) I.W. on Rt. hand medial border middle 3 cm x 0.5 cm x bone deep fresh blood margin clear cut.
(5) I.W. on Lt. wrist dorsal extending onto hand 6 cm x 3 cm x bone deep fresh blood.
(6) I.W. on Lt. forearm dorsal medial border upper part 6cm x 3 cm x subcut deep fresh blood margin clear cut.
(7) I.W. on scalp frontal region middle transfers 4.5 cm x 0.5 cm scalp deep 7 cm above bridge of nose.
(8) I.W. on scalp front parietal junction 5 cm x 0.5 cm x scalp deep fresh blood."
As per the opinion of the Doctor condition of the patient was very poor; injuries were caused by sharp object; duration was about fresh; all the injuries were kept under observation; advise for x-ray of skull, Rt. forearm and Lt. forearm.
"Injury of Km. Nagma (P.W.2) D/o Mohd. Nabiullah aged about 4 years (1) I.W. on Lt. forehead transfers extending from midleni to temporal region side 12 cm x 3 cm x cranial cavity deep underlying bone deep and fresh blood with parts of cerebral malte flowing out. Margins clear cut."
As per opinion of Doctor the injury caused by sharp object. Duration of injury is fresh; nature of injury kept under observation; advised for x-ray skull.
(14) The post-mortem on the dead body of the deceased Nabiullah, Asif and Km. Gulshan were conducted on 30.10.2001 at 4:00 pm., 4:30 pm. and 5:00 p.m. respectively by Dr. J.L. Gautam (P.W.6), who was posted as E.M.O. (Emergency Medical Officer) at District Hospital, Hardoi.
"Ante-mortem injuries of deceased Nabiullah aged about 40 years (1) Incised wound 12.0 cm x 3.0 cm x bone deep present left knee scalp 7.0 cm above from left ear. Cranial cavity exposed brain matter coming out of wound in obliquely placed.
(2) Incised wound 9.0 cm x 2.0 cm x cranial cavity deep present left side scalp 1.5 cm below injury no.1.
(3) Incised wound 10.0 c.m. x 1.0 cm muscle above deep present on left face upto left ear."
"Ante-mortem injuries of deceased Asif aged about 6 years (1) Incised wound 14.0 cm x 2.0 cm. x cranial cavity deep presema tab of scalp obliquely situated underneath postrial part of both parietal and occipital bones found fractured. Brain matter in cavity."
"Ante-mortem injuries of deceased Km. Gulshan aged about 10 years (1) Incised wound 10.0 cm x 2.0 cm x cranial cavity deep presema middle of scalp 6.0 cm. above root of nose. Underneath frontal bone found fractured.
(2) Incised wound 3.0 cm x 1.0 cm x bone deep presema left side scalp just above left ear with cut wound through and through of left ear pinna underneath left parietal bone found fractured.
(3) Incised wound 2.0 cm x 0.5 cm x bone deep present over chin."
The cause of death spelt out in post-mortem report is due to coma as a result of ante-mortem injuries.
P.W.6- Dr. J.L. Gautam has proved the post-mortem of all the three deceased as Ext.Ka-14, Ka-15 and Ka-16. He further opined that ante-mortem injuries of all the three deceased could be attributable by sharp edged weapon i.e. Gandasa. He further deposed that death of the deceased could be caused possibly on 30.10.2001 at 4:30 a.m. In his cross-examination P.W.6- Dr. J.L. Gautam deposed that upon observing the injuries of the deceased, it can be perceived that it could be sustained from one or two sharp-edged heavy weapon. The time of death of the deceased mentioned could be inclusive of 2-3 hours from both end.
(15) The case was committed to the Court of Chief Judicial Magistrate, Hardoi on 25.02.2002 and the Additional Sessions Judge, Court No.5, Hardoi framed charges against convict/appellant- Yunus, under Sections 302/307 I.P.C. on 06.10.2003 and Additional Sessions Judge, Fast Tract Court No.1, Hardoi framed charge against convict/appellant under Section 25 Arms Act on 20.11.2004. He pleaded not guilty to the charges and claimed to be tried. His defence was of denial.
(16) During trial, in all, the prosecution examined ten witnesses viz. P.W.1-Smt. Gudiya alias Guddi, who is the informant of the case, P.W.2- Km. Nagma, who is an eyewitness of the incident, P.W.3- Constable Jamuna Pandey, who lodged chik F.I.R. against the convict/appellant, P.W.4- Dr. C.K. Gupta, who examined the injury of injured i.e. Smt. Gudiya alias Guddi (P.W.1) and Km. Nagma (P.W.2), P.W.5- T.P. Singh, who is the Investigating Officer of the case, P.W.6- Dr. J.L. Gautam, who conducted post-mortem of the body of deceased, P.W.7- Constable Sri Krishan Yadav, P.W.8- Sarvesh Kumar Sharma, P.W.9- S.I. Ram Awatar, P.W.10- Naushad Ali alias Nausheshah, who is the witness of recovery of alleged weapon of assault i.e. Gandasa.
(17) After completion of prosecution, statement of convict/appellant- Yunus was recorded under Section 313 Cr.P.C., wherein he denied the prosecution evidence and stated that he has been falsely implicated in the present case due to enmity.
(18) Now, we would first like to deal with the evidence of informant, P.W.1- Smt. Gudiya alias Guddi, who is also an injured witness, deposed in her examination-in-chief that deceased Nabiullah was her husband, deceased Asif was her son and deceased Gulshan was her daughter. The incident was of around two and half years ago, the witness, her husband and their children were sleeping inside the house. Her house is in Shahbad where the facility of electricity is available. On the night of the incident, a bulb was illuminating because of which there was light over there. Her husband and her son was lying in the corridor while the witness and her daughters were lying in a room. At around 4-4:30 a.m., she heard the cries of her husband and son and she ran. When she reached at the doorstep of the room, she saw that accused Yunus armed with Gandasa was hitting her husband and son. Accused Yunus was accompanied by Asif Beg, Tanveer, Nasir, Waseem, Nanhey and Raviullah. The companions of the accused ran and grabbed her, meanwhile, the daughters Gulshan and Nagma also came out, all the companions of the accused caught hold of the witness and her daughter while accused Yusuf hit them with Gandasa. On hearing the hues and cries of them, the people of the locality gathered then accused and his companions run away from where they came i.e. the roof of the house. The accused was on the roof and he fired. Thereafter, other companion ran away. Then somehow the witness opened the front door and saw that her husband and son Asif and daughter were dead. She and her daughter Nagma had sustained injuries. All the accused had country-made pistol in their hand. The accused Rafiqullah is jeth (brother-in-law) of the witness and the accused Yunus is his son. The house of the witness had three shops which are in possession of Asif, Nasir, Tanveer and Waseem and in her house, has been taken possession by her brother-in-law Rafiqullah. The witness is living in fear in Momeen District Hardoi and the accused are still searching for her with the intention to kill her. She went to Shahabad Police Station in order to lodge the report of the incident where she met one Munshi and she narrated whole incident to him and told him the names of the accused. The witness deposed that she is illiterate and also that report was not read over to her but she imprinted the thumb impression over the report. The witness is sustained a lot of injuries because of which, she could not understand that the names of the accused she was telling while deposing in the trial Court has not been mentioned in the said report. When the said report was read it over to her, she said that the names of accused is not completed and remaining thing is true which was proved as Ext. Ka-1. All the accused were identified in proper light by her.
P.W.1- Smt. Gudiya alias Guddi in her cross-examination deposed that her mother is alive. She has no real brother, cousin brothers. Names of cousin brothers are Firoz, Siddiq, Anis, Siraj etc. She did not know their father's name. He died. Her father's name is Babu. He also died. After the murder, she was living at Mominabad. She has danger to her life and also to the person on whose place she lives. In Mominabad, she lives at the place of one Sakraula. Sakraula is present in the Trial Court. She attends the Court along with Sakraula and cousins. Younger brother of the accused Yunus is Yusuf. The house of the witness and the house of the accused Yunus are separate. The witness and her husband along with their children used to live in a separate house. Accused Yunus, Yusuf (brother) and father used to live together in a separate house. There was not any difference in the age of the witness and her husband at the time of their marriage. It is wrong to say that the age of the husband was older than the witness. The Inspector has taken the statement of the witness. The witness denied that she has given the statement to the police that her husband was much older to her, if the Inspector has written such a statement then witness is not aware of reason thereof. After the incident, the witness didn't go to the police station. The police personnel had came to her house. She told the names of Naseer, Wasim, Yunus, who had killed her husband and children by a Gandasa. One boy Tanveer and Asif were involved in murder. Wasim, Naseer, Nanhe, Rafiullah were also involved in the murder. The witness had told the names of all the accused to the Police. The police has not lodged any report. The witness opened the lock when the police had arrived. She had told the names of the accused to the police and after telling the names she fainted. The witness deposed that she remained unconscious till reaching to Lucknow. The witness doesn't know to which place did the Police take her. During the scuffle, she had also sustained injuries. She was hit by the Banka six times. The witness had also the scar of the injuries on her head and hand. The witness is illiterate. At the time of the incident she was sleeping in the room along with her two daughters. The husband of the witness and her son Asif were sleeping outside the house. When Tanvir and Asif grabbed her husband then she screamed and made a lot of noise. While screaming she reached to rescue. Accused Yunus had cut the husband of the witness by Gandasa. When she reached near her husband to protect then Naseer and Wasim had grabbed her. Accused Yunus also hit her on the said spot with the Gandasa. She instructed the children to run away. The daughter of the witness Gulshan ran away in the room and hid under the blanket and pleaded "dear brother don't kill me". Nanhe caught the daughter of the witness and Yunus hit her. The son of the witness hold her then the accused Yunus also hit her. The roof of the house of Yunus , Rafeeullah and the witness is conjoined and their stairs are always there. They came in and went back by climbing up to the roof of the house. The witness had deposed that names of all the accused in the court and had not told it before anyone. The witness deposed a total of seven persons came into her house.
(19) P.W.2- Nagma, who is daughter of the informant in her examination-in-chief deposed that name of her mother is Gudiya (P.W.1). In her house, father Nabiullah, brother Asif Beg, sister Gulshan and her mother Gudi were lived. The accused Yunus intruded in her house in the night which is present in the trial court. He had hit everyone present in the house. Her father, Asif and Gulshan died on the spot while the witness sustained injuries. There was light in the house as the bulb was illuminating.
(20) In her cross-examination P.W.2- Nagma deposed that she and her mother were lived with Babu at Mominabad, Hardoi. Accused Yunus had grabbed her in the house. Asif, Tanvir and Yunus had hit the witness. They also hit her mother and father. Naseer and Wasim had grabbed her mother and the witness remained standing there. There were seven people who intruded in the house and all seven of them were involved in the fight. They took away the box from her house. When the fight occurred, the mother of the witness (P.W.1) was present on the spot. The witness had eye-witness of the incident. It is wrong to say that the witness is deposing after being tutored.
(21) Heard Shri Sanjay Kumar, learned counsel for the appellant, Shri Arunendra, learned A.G.A. for the State-respondents and perused the material available on record.
(22) It has been argued by learned counsel for appellant that the appellant has been falsely implicated in the present case on account of the fact that he was having some previous animosity with the informant and her husband, as the appellant was the son of the elder brother of the husband of the deceased. He further argued that the incident has taken place in the night wherein the deceased and his minor son and daughter was done to death by some unknown miscreants with an intention to commit dacoity in his house entered and murdered three persons and the informant and her daughter received injuries at their hands. He further argued that from the F.I.R., it is apparent that the same was lodged against the appellant but during the trial the statement of the informant P.W.1- Smt. Gudiya alias Guddi was recorded by the trial court wherein, she has stated that there were six other accused persons i.e. Asif Beg, Tanveer, Naseer, Wasim, Nanhey, Rafiullah along with the appellant, who have entered her house and committed murder of her husband, two children and also inflicted injury on her as well as on her daughter. The falsity of the prosecution case is evident from the fact that the said accused persons were not put to trial by the prosecution and the appellant alone has been tried and convicted and sentenced by the trial court without there being any cogent evidence against him, hence, the impugned judgment and order passed by the trial Court is liable to be set aside and the appellant be acquitted.
(23) It has further been argued by learned counsel for appellant that there was no proper source of light at the place of occurrence, in which the appellant could be identified and it has come in the evidence that the bulb was illuminiting at the house of the informant and deceased but the Investigating Officer has not shown the source of light in the site plan prepared of the place of occurrence, hence, the involvement of the appellant in the present crime is only on the basis of suspicion and inimical relationship with the informant's family. He next argued that the bloodstained Gandansa, which is a weapon of assault, stated to have been recovered at the pointing out of the appellant from his house along with the bloodstained pant and shirt of the appellant which he was wearing at the time of the occurrence, is in fact, a false recovery, as two witnesses of recovery of the said recovery which has been prepared as recovery memo Ext. Ka-12 dated 04.11.2001, namely, Son Pal and Naushad Ali (P.W. 10), out of which, Son Pal was not produced before the prosecution to prove the said recovery whereas Naushad Ali (P.W. 10) has not supported the said recovery.
(24) Learned counsel for appellant further argued that the evidence of P.W.1- Smt. Gudiya alias Guddi is not a reliable piece of evidence because informant is a highly interested and partitioned witness and moreover there appears to be major contradiction in her evidence which is contrary to the F.I.R. lodged by her of the incident. P.W.3- Kumari Nagma, who is a child witness, is also not a reliable one, as she happens to be a tutored witness, as she was in the company of some other, who has compelled her to depose against the appellant. He further argued that one Waseem had lodged the N.C.R. for the offence under Sections 498 I.P.C. on 30.01.2001 stating that his wife Smt. Guddi (P.W.1) has been enticed away by some persons and she was found at the house of the deceased Nabiullah, due to which, the appellant has been implicated in the present case and the origin of the prosecution case, has been deliberately concealed by the prosecution.
(25) Learned A.G.A., on the other hand, has vehementally rebutted the argument of learned counsel for appellant and has submitted that appellant was named in the F.I.R. and he has committed the murder of deceased (Nabiullah), who was his uncle and two cousins by Gandasa and also assaulted the informant P.W.1- Smt. Guddi, who is wife of the deceased Nabiullah and her minor daughter, namely, Km. Nagma, who have suffered incised wound on their person. He further submitted that one of the deceased (Km. Gulshan) was aged about 10 years whereas deceased Asif was aged about 6 years and it is a cold blooded murder and the P.W.1- Smt. Guddi along with P.W.2- Kumari Nagma, who are the injured witnesses of the occurrence have fully supported the prosecution case which is corroborated by the ocular testimony. He next submitted that the complicity of the appellant in the present case cannot be ruled out as when the appellant was arrested by the police on 03.11.2021 and he was taken out from the police lockup on 04.11.2021 and on his pointing out bloodstained Gandasa, weapon of assault and bloodstained pant and shirt were recovered from his house and it was kept in a jute beg. The said articles were sent to the Forensic Science Laboratory, Lucknow and as per report of the Forensic Science Laboratory, human blood was found on the Gandasa, pant and shirt of the appellant.
(26) Learned A.G.A. further submitted that the appellant has also strong motive to commit the murder of the deceased, as it has come in the evidence of P.W.1- Smt. Guddi that the appellant wanted to grab the property of the deceased (Nabiullah) and the informant due to which her husband and two children were done to death and the recovery memo Ext. Ka-12, shows the recovery of bloodstained Gandasa, pant and shirt of the appellant has also been prepared and the same was also signed in the presence of all the witnesses, namely, Son Pal and one Naushad Ali alias Nausheshah (P.W.10). He further submitted that simply because Naushad Ali (P.W.10) has turned hostile, the recovery memo cannot be said to be doubted, as the appellant has also signed in the recovery memo.
(27) After considered the submissions advanced by learned counsel for parties, we have perused the impugned judgment along with lower court record and its exhibits and has further given a thoughtful consideration to the submissions advanced by learned counsel for the parties.
(28) It is evident from the prosecution case that the incident has taken place in the house of the informant in early hours of the morning on 10.02.2001 at 4:30 a.m. in which, the appellant, who entered the house of informant and the deceased, who were sleeping in their house with their children. The house of the appellant was adjacent to the house of the deceased. The convict/appellant entered and assaulted the deceased Nabiullah and his son, who were sleeping outside the room whereas the informant and his two minor daughters were sleeping inside the room on other cot and on hearing alarm raised by her husband Nabiullah while he was assaulted by the appellant with Gandasa, she woke up and saw that the appellant was assaulted her husband and minor son Asif with Gandasa and when she and her daughter tried to save them then the appellant assaulted the informant as well as his two daughters with Gandasa due to which her daughter Km. Gulshan has succumbed to her injuries whereas the informant and other daughter Km. Nagma (P.W.2) received injuries. The F.I.R. of the incident was lodged by the informant after getting the written report prepared by Munshi and she lodged the same at Police Station Shahabad, District Hardoi on 30.10.2001 at 6:15 pm. against the appellant which was at the distance of four furlang. The said F.I.R. was registered as Case Crime No. 168 of 2001 for the offences under Sections 302 and 307 I.P.C., P.S. Shahabad District Hardoi. She has proved the written report as Ext. Ka-1.
(29) The evidence of P.W.1- Smt. Gudiya alias Guddi, who is an informant as well as injured eyewitness of the incident goes to show that she has narrated the prosecution case in toto against the appellant, who has killed her husband and minor son and daughter with gandasa (weapon of assault). The contention of learned counsel for appellant that her evidence is not a reliable one is concerned, as she has disclosed the participation of five other accused persons along with the appellant. P.W.1 has categorically stated that she has disclosed the names of all the accused persons, who were involved in present case to the police but the police had not registered the F.I.R. against the said accused persons. It is well settled that because of the mischievous act and conduct of the police, the prosecution case against the appellant cannot be thrown out on this count, as she is an injured witness and her presence at the place of occurrence cannot be doubted. Similarly, the evidence of P.W.2- Nagma is concerned, she too has narrated the prosecution case, who is also an injured eyewitness of the incident and the daughter of the appellant and one of the deceased, namely, Nabiullah. She too has reiterated the prosecution case as has been stated by her mother P.W. 1- Smt. Guddi and the same found fully corroborated with the post-mortem report of the deceased as well as from the injury report of the two injured persons.
(30) In Mano Dutt and another v. State of Uttar Pradesh - (2012) 4 SCC 79, Hon'ble Apex court held:
"We may merely refer to Abdul Sayeed v. State of M.P. - (2010) 10 SCC 259 where this Court held as under:
"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.] (31) The next argument of learned counsel for appellant that there was no proper source of light at the place of occurrence, in which the witnesses could have identified the appellant, hence, the prosecution case is not a reliable one. It is noteworthy to mention here that P.W.1- Smt. Gudiya @ Guddi has categorically stated that there was a light of bulb at the place of occurrence which was burning in her house. The witnesses were cross-examined at great length by the learned counsel for the defense, nothing significant could be brought on record from which one can, with certainty deduced that there was no light of electricity bulb at the place of incident. Further in Re: State of U.P. vs. Krishna Master: (2010) 12 SCC it was held that "the High Court was not justified in holding that there was no electric power in the whole village and there was complete darkness on account of amavasya of rainy season due to which it was impossible for the eyewitnesses to witness the incident. Further the visibility capacity of urban people is not the standard to be applied to the villagers". Moreover, in the case of Nathuni Yadav vs. State of Bihar: (1998) 9 SCC 238, the Court observed that: "the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those, who were sleeping on the terrace. If the light then available, though meager, was enough for assailants, why should we think that the same light was not enough for the injured, who would certainly have pointedly focused their eyes on the faces of the intruders standing in front of them."
We must bear in the mind that the fact that the assailants were no strangers to the inmates of the tragedy bound house, the eyewitnesses being well acquainted with the physiognomy of each one of the killers. We are therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was a possibility for making a wrong identification of them, hence, it was easily possible for P.W.1- Smt. Gudiya alias Guddi and P.W.2- Nagma to identified the appellant, who committed the murder of the deceased which was witnessed by both of them.
(32) The contention of learned counsel for appellant that three deceased were done to death by some unknown miscreants as a dacoity took place in their house but the said contention has no legs to stand, as it is not borne out from the record that any articles from the house of the informant and the deceased were looted or taken away by the miscreants for which any information was given to the police which goes to show that no such dacoity taken place and the true picture was given by the P.W.1-Smt. Gudiya about the incident to the police in the F.I.R. lodged by her.
(33) The complicity of the appellant is further evident from the fact that at this pointing out a bloodstained banka was recovered along with bloodstained pant and shirt which the appellant was wearing from his house and the same was sent to the Forensic Science Laboratory and as per report of the Forensic Science Laboratory, human blood was found on the gandasa, pant and shirt of the appellant, therefore, the contention of learned counsel for appellant that one of the witness of recovery P.W.10- Naushad Ali has not supported the recovery, is also of no consequences.
(34) In case of Raja vs. State of Tamil Nadu: 2008 SCC Online Mad 478 held that "..... of course, the recovery cannot by itself be regarded as conclusive piece of evidence for incriminating accused, but it is certainly a piece of evidence which goes to support the other evidence about the guilt of accused, vide Namdeo Daulata Dhayagude vs. State of Maharashra, (1976) (4) SCC 441, and further the recovery of the blood-stained material object on the disclosure statement of the appellant provides enough corroboration to the prosecution evidence against the appellant, vide Puran Singh vs. State of Punjab, 1995 Supp (3) SCC 665. In the said case, the fact relating to the recovery of bloodstained weapon was similar to the instant case, wherein, the Apex Court observed that according to the report of serologist, the bloodstained on the kirpan were of human origin. The recovery of bloodstained Kirpan on the disclosure statement of the appellant provides enough corroboration to the prosecution evidence against the appellant.
(35) Further it has been argued by learned counsel for the appellant that the evidence of P.W.1- Smt. Gudiya @ Guddi and P.W.2- Nagma be not relied upon by this Court, as they are highly interested and partisaned witnesses, as they are relative of the deceased but the said argument of learned counsel for appellant also has no substance, as it is well settled law that the evidence of relatives of the deceased cannot be thrown on that count alone but their evidence has to be examined by this Court minutely with caution to rule out any possibility of false implication of the accused.
(36) The criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished as held by the Hon'ble Apex Court in Sudhakar Vs. State : (2018) 5 SCC 435. Thus, from the facts and circumstances of the case, it cannot be said that the testimonies of P.W.1- Smt. Gudiya and P.W.2- Nagma, are not trustworthy and are not reliable.
(37) It is well-settled in law that mere fact that relatives of the deceased are the only witnesses is not sufficient to discredit their cogent testimonies. The Apex Court in Mohd. Rojali v. State of Assam : (2019) 19 SCC 567 reiterated the distinction between "interested" and "related" witnesses and has held that the mere fact that the witnesses are related to the deceased does not impugn the credibility of their evidence if it is otherwise credible and cogent. The relevant extract of the report is reproduced as under :-
"13. As regards the contention that all the eye-witnesses are close relatives of the deceased, it is by now well settled that a related witness cannot be said to be an ''interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between ''interested' and ''related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three-Judge bench decision in State of Rajasthan v. Kalki (supra):
"14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested"..."
14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR 145, wherein this Court observed:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199:
"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
(38) Thus, from the evidences led by the prosecution, it is well established that it was the convict/appellant Yunus, who was involved in the present case and has murdered the three persons i.e. husband, minor son and daughter of the informant Smt. Gudiya @ Guddi (P.W.1) and also caused injuries to P.W.1- Smt. Gudiya @ Guddi and P.W.2- Km. Nagma. The prosecution has proved its case beyond reasonable doubt against the convict/appellant and the trial Court after examining the entire prosecution evidence has rightly convicted and sentenced the convict/appellant for the offence in question.
(39) In view of the above and for the reasons stated hereinabove, no interference of this Court is called for in the instant appeal as the learned trial Court has rightly convicted the appellant by the impugned judgment and order dated 01.02.2005.
(40) The instant appeal fails and deserves to be dismissed and is accordingly dismissed. The appellant- Yunus, who is in jail, shall serve the sentence as awarded by the trial Court.
(41) Let a certified copy of this order as well as lower Court record be transmitted to the trial Court concerned for necessary information and compliance forthwith.
(Mrs. Renu Agarwal,J.) (Ramesh Sinha, J.) Order Date :- 12.12.2022 Shubhankar