Allahabad High Court
Shafi Ahmad And Others vs State Of U.P. on 30 July, 2018
Bench: Naheed Ara Moonis, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No.: 46 Case :- CRIMINAL APPEAL No. - 631 of 1983 Appellant :- Shafi Ahmad & others Respondent :- State Of U.P. Counsel for Appellant :- A.N. Srivastav,J.N.Chaturvedi,Jafeer Ahmad,P.N. Chaturvedi,S.A.N. Shah,Saurabh Gaur,Shahabudeen Counsel for Respondent :- Govt. Advocate Hon'ble Naheed Ara Moonis,J.
Hon'ble Chandra Dhari Singh,J.
(Delivered by Hon.Chandra Dhari Singh,J.)
01. The instant criminal appeal has been filed against the judgment and order dated 09.03.1983 passed by the 3rd Additional Sessions Judge, Rampur in Sessions Trial No.241, 297 of 1981 and S.T. no.19 of 1982, whereby all the four accused persons Shafi Ahmad, Siraj Ahmad, Holu Shah and Maqbool Ahmad were found guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and were sentenced to undergo life imprisonment each of them. All the four accused persons were found guilty of the offence punishable under Section 364 I.P.C. and were further sentenced to undergo two years R.I. each. Accused Shafi Ahmad is further sentenced to undergo two months R.I. under Section 323 I.P.C. All the sentences shall run concurrently.
02. We have heard Sri Shahabudeen learned counsel appearing on behalf of appellant no.1 Shafi Ahmad and appellant no.4 Maqbool and Sri S.A.N. Shah, learned counsel appearing on behalf of appellant no.3 Holu Shah @ Firoz and Sri Ram Yash Pandey, learned A.G.A. appearing on behalf of State, Sri Ramesh Kumar Arya, learned counsel for the complainant and perused the record.
03. Brief facts of the case are that the accused Shafi Ahmad, Siraj Ahmad, Shakir Ahmad, Holu Shah and Chanda Shah are real brothers and are sons of Bhola Shah. Accused Aziz Ahmad is nephew of Bhola Shah, father of the accused Shafi Ahmad. The accused Maqbool Shah is sister's son of accused Shafi Ahmad. All the accused persons are the residents of village Sitora within the circle of police station Bilaspur, District Rampur.
About two months prior to the occurrence in question, a theft had taken place in the house of the accused Chanda Shah. About one and half month prior to the occurrence in question another theft had taken place in the house of accused Shafi Ahmad. Although no report about the alleged thefts was lodged by the accused but the accused persons suspected the participation of Shakoor Ahmad (the deceased) in the aforesaid thefts. To remove the doubt, a Panchayat was held in the village. In the said Panchayat, it was found that Shakoor Ahmad had no hand in the alleged thefts. The accused persons nevertheless continued to feel enmity against Shakoor Ahmad (deceased). They had serious doubt on the participation of the deceased Shakoor Ahmad in thefts. A day before the occurrence in question Ghafoor Ahmad (P.W.4), who is the father of deceased Shakoor Ahamad, was returning along with his younger son Jameel from his field to his house. When they reached near the school of the village Sitora, they heard that the name of Shakoor Ahmad, was discussed by the accused persons. They stopped near the school. They saw all the seven accused persons sitting in the school and talking among themselves. They were making plan of murder of Shakoor Ahmad. This conversation was heard by them. They came at home and Ghafoor Ahmad (P.W.4) told about this conspiracy to his wife Smt. Sakeena (P.W.3), mother of Shakoor Ahmad. He instructed her to warn Shakoor Ahmad on his return from Kichha.
On 18.04.1981 at about 12 noon, Shakoor Ahmad returned home in village Sitora from Kichha. At about 1 P.M. Ahmad Husain (P.W.1) brother of Shakoor Ahmad, Smt. Sakeena, mother of Shakoor Ahmad and Waheed, younger brother of Shakoor Ahmad were present in the house, at that time, four accused persons namely Shafi Ahmad, Siraj Ahmad, Holu Shah and Maqbool Shah entered into the house of Shakoor Ahmad and asked him to accompany them to explain his participation in the thefts. All the four accused persons forcefully took away Shakoor Ahmad to the house of accused Shafi Ahmad. Ahmad Hussain (P.W.1), Smt. Sakeena (P.W.3) and Waheed Ahmad (P.W.2) also followed the accused persons and requested them to release Shakoor Ahmad but they did not accede their request and they threatened them to return back otherwise ready to face the consequences. The accused Shafi Ahmad and Mahboob Shah had Tabal in their hands while accused Siraj Ahmad and Holu Shah had lathies. The complainant party also entered into the house of Shafi Ahmad to save Shakoor Ahmad, whereupon Shafi Ahmad threw a brick-bat towards Smt. Sakeena and she sustained an injury on the right side of the head. The accused persons killed Shakoor Ahmad inside the house. Ahmad Hussain, his mother and brother returned home due to fear of the accused persons. Ahmad Hussain started search of the Chowkidar of the village but he was not found. Thereafter, on the same day, Ahmad Hussain alongwith one Jit Singh (D.W.1) went to the police station Bilaspur where he lodged an oral report as Ext.Ka-1 at 08.20 P.M.
04. The investigation of this case was taken up by Sri K.P.Singh (P.W.9), the then Station Officer of Police Station Bilaspur in whose presence, the F.I.R. (Ext. ka-1) was lodged. He recorded the statements of Ahmad Hussain and Jit Singh at the police station. He reached the place of incident and took the dead-body of Shakoor Ahmad in his possession but could not prepare the Panchayatnama on the same day as there were no light, arrangement also could not be made. On the following morning, Panchayat-nama and other relevant papers were prepared by S.I. V.P. Singh. The dead-body of Shakoor Ahmad was sealed on the spot and was sent for postmortem-examination through constable Gaj Raj Singh and constable Bhoop Singh (P.W.7). He then recorded the statements of other witnesses and prepared site-plan (Ext. Ka 10). He took blood stained earth and simple earth from the spot in his possession and prepared a Memo (Ext. ka-12) to that effect. Sri. V. P. Singh Sub-Inspector also took Banyan and one trouser stained with blood belonging to deceased Shakoor Ahmad and prepared a Memo (Ext. ka-15). Thereafter, Sri K.P. Singh further interrogated other witnesses and arrested the accused Aziz, Shafi Ahmad, Siraj Ahmad. The accused Hollu Shah had surrendered himself in the court.
05. After completion of the investigation the police had submitted chargesheet on 16.5.1981 (Ext. ka-16) against the accused Siraj Ahmad, Shafi Ahmad, Aziz Ahmad, Maqbool Shah and Holu Shah. The accused Chanda Shah and Shakir had surrendered themselves in the court on 26.5.1981 and 27.5.1981 respectively. Thereafter a charge-sheet (Ext. ka-17) was submitted against them on 02.07.1981. Sri. K.P. Singh also took blood stained lathi, from the place of occurrence in his possession and prepared a Memo (Ext. ka-18). He cut the lathi into four places (Ext. 2 to 6) and sealed it.
06. Smt. Sakeena was medically examined on 19.04.81 at 4 P.M by Dr. R.S. Gangwar (P.W.5) at Public Health Centre Bilaspur, Rampur. The Doctor found the following injuries on her person;
1. Abraded contusion 1.5 cm x 0.5 cm on right side head 9.5 cm above the right ear.
2. Complained of pain in chest. The Doctor stated that the aforesaid injury was one day old and could be caused by blunt weapon. The injury could also be caused with brick-bat at 1 P.M on 18.04.1981. Doctor R.S. Gangwar proved his injury Report (Ext. ka-2). The Doctor also stated in his cross-examination that the injury no.1 could be caused due to fall on any blunt object or due to friction against the blunt object.
07. On 19.04.1981, Dr. R.N. Bhardwaj (P.W.6), performed autopsy on the dead-body of Shakoor Ahmad at 1.30 P.M. in the District Hospital, Rampur. The Doctor prepared post-mortem examination Report (Ext. ka-3), which shows the following observations;
Shakoor Ahmad (deceased) was about 30 years old and was of the average built body. Rigor-mortis was absent in upper but present in the lower extremity. Both the nostriles and ears were bleeding. The Doctor found the following Anti-mortem injuries on the person of deceased Shakoor Ahmad:-
1. Incised wound 3 cm x 1 cm x bone deep along the left eye brow cutting the frontal bone partially.
2. Incised wound 2 cm x ½ cm x bone just above right eye-brow vertical direction.
3. Contusion 2cm x 2cm on left check prominance.
4. Incised wound 3cm x 2cm x bone on left side back of head 15 cm above and behind left ear transverse direction.
5. Lacerated wound 6cm x 3cm x scalp on left side of head 7 cm above left ear, intro posterior direction.
6. Incised wound 5cm x 2cm x bone deep on top of head transverse direction.
7. Incised wound 4 cm x 2 cm x bone deep 3 cm in front of injury no. 6.
8. Incised wound 10 cm x 5.5 cm on right side head 5 cm on the right ear. The parietal bone and the temporal bone underlyng injury fractured in many small pieces few of which are missing exposing the brain and meninges. The hair are cut from the skin tag over the wound.
9. Incised wound 5 cm x 1cm x pinna on right ear which is divided in its middle.
10. Contusion 6 cm x 3 cm x on left side chest 6 cm above and inna to left nipple.
11. Contusion 1 cm x 1 cm on right cheek prominance.
12. Abrasion 2 cm x linear on root of nose.
13. Contusion 18 cm x 2.5 cm on left side chest starting from left nipple and going down medially.
14. Contusion 5 cm x 4 cm on front of left arm 8 cm below top of shoulder joint.
15. Contusion 12 cm x 2 cm on outer aspect of left arm just below injury no. 14.
16. Contusion 6 cm x 2 cm on back of left arm 6 cm above elbow joint.
17. Incised wound 2 cm x 1 cm on outer aspect of left fore-arm 15 cm below joint with fractured of ulna bone.
18. Incised wound 1 cm x ½ cm on back of left palm middle vertical.
19. Contusion 2 cm x 1 cm on left coller bone middle.
20. Contusion 6 cm x 2 cm on outer aspect of right arm 6 cm below the shoulder joint.
21. Contusion 6 cm x 2 cm on back of right arm 6 cm above elbow joint.
22. Contusion 5 cm x 2 cm on outer aspect of right forearm 7 cm below elbow joint.
23. Incised wound 2 cm x 1 cm bone on left tibial tuberosity.
24. Abrasion 4 cm x ½ cm on left leg 15 cm below injury no. 23.
25. Abrasion numbering two parallel to each other 2 cm each side by side 13 cm above ankle joint on front of right leg.
26. Contusion 18 cm x 2 cm on right side back upper scapula region.
27. Contusion 10 cm x 2 cm on right side back starting from lower scapula region and going below.
28. Contusion 8 cm x 2 cm on left side back lower scapula region.
08. On internal examination, the Doctor found little fluid and clotted blood in the skull cavity. Brain was found cut under injury no.8. The base of skull was broken. The stomach contained 12 ounces of semi-digested food.
In the opinion of the doctor, the death of the deceased was due to coma was a result of head injury. The head injury was sufficient to cause the death of deceased.
09. The accused persons were charged with the offences punishable under Section 302 read with Section 34 I.P.C., 364 and 323 I.P.C.. They had pleaded not guilty to the charges and claimed their false implication on account of the influence of the police. The accused Shafi Ahmad had stated that the dead-body of deceased Shakoor Ahmad was lying on the way of outside his house. The police Inspector asked him about the assailants of the deceased. He showed his ignorance. The Police Inspector demanded money from him to which he did not agree and, therefore, he and his family members were falsely implicated in this case. The other accused also attributed their false implication to the aforesaid case. Accused persons examined Sardar Jit Singh as ( D.W.1) in their defence.
10. Prosecution, in support of its case, had examined as many as, 9 witnesses, namely, Ahmad Hussain (P.W.1), Waheed Ahmad (P.W.2), Smt. Sakeena (P.W.3), Ghafoor Ahmad (P.W.4) Dr. R.S. Gangwar (P.W.5), Dr. R.N. Bharadwaj (P.W.6), Constable as Bhoop Singh (P.W.7), constable Vishnu Dutt (P.W.8), and K.P. Singh as (P.W.(9). The first three witnesses are the eye witnesses of the murder of Shakoor Ahmad. Ghafoor Ahmad (P.W.4) is the witness of the alleged conspiracy among the accused. The remaining witnesses are of formal nature.
11. The 3rd Additional Sessions Judge, Rampur had convicted the accused Shafi Ahmad, Siraj Ahmad, Holu Shah and Maqbool Shah for the offence punishable under Sections 364 and 302 read with Section 34 I.P.C. Accused Shafi Ahmad had been further convicted for the offence punishable under Section 323 I.P.C..All the seven accused persons namely Shafi Ahmad, Siraj Ahmad, Maqbool, Holu Shah, Ajij Ahmad, Shakeel Ahmad and Chanda Shah were acquitted for the offence punishable under Section 120 B. I.P.C.. The Additional Sessions Judge awarded sentence each of the accused Shafi Ahmad, Siraj Ahmad, Holu Shah and Maqbool Shah to undergo life imprisonment under Section 302 read with Section 34 I.P.C.. All the accused persons were further sentenced to undergo two years R.I. each under Section 364 I.P.C.. The accused Shafi Ahmad was further sentenced to undergo two months R.I. under Section 323 I.P.C.. All the sentences shall run concurrently.
12. Aggrieved by the impugned judgment and order dated 09.03.1983 of Additional Sessions Judge, Rampur, the instant criminal appeal was filed.
13. P.W.1, Ahmad Hussain had stated in his deposition that two months before an incident of theft occurred in the house of the accused Chanda Shah and one and half months before the incident of theft occurred in the house of the accused Safi Ahmad. Both had doubted that Shakoor Ahmad (the deceased) involved in the incident of theft. On that doubt the Panchayat had taken place in the village and the Panchayat came to a conclusion that the deceased had not been involved in the incident of theft in the house of the accused Chanda Shah as well as Safi Ahmad. From the date of the Panchayat, both had become more inimical with the deceased. Shakoor Ahmad, the deceased left his house and settled Kichha, where he was pulling Rikshaw for livelihood. He further stated that one year seven months before Shakoor Ahmad came in the village Sitora at 12 noon. At that time he was present in the house along with his mother Sakeena, younger brother Waheed. About 1 P.M. Safi Ahmad, Siraj Ahmad, Holu Shah and Maqbool Shah came to his house and they had taken away Shakoor Ahmad forcibly from his house. P.W.1 further stated that his mother and younger brother also went towards the house of the accused Safi Ahmad and tried to save the deceased. The accused persons threatened to life to his mother and younger brother. On that threatening, both had left the place of occurrence. He further stated in his deposition that in the house of Safi Ahmad, accused Shafi Ahmad, Siraj Ahmad, Holu Shah and Maqbool started beating Shakoor Ahmad by lathi and tabal. Maqbool and Safi Ahmad had Tabal, Holu and Siraj Ahmad had lathies. He further stated that he himself, his mother and his younger brother entered into house of Safi Ahmad to save his brother. Safi Ahmad had pelted brick-bat on her mother and she sustained head injury. After sometime, all the accused persons ran away from the place of occurrence. Shakoor Ahmad died on spot. Thereafter, he went to the Chaukidar of the village for lodging F.I.R.. The Chaukidar was not found then he went to the police station along with one Jeet Singh Sardar at about 8.30 P.M. and lodged the report. In the cross-examination P.W.1 Ahmad Hussain stated that all the four accused came to his house. They called out Shakoor Ahmad from his house and thereafter, all the four accused persons took him away forcefully. Nothing has come out contradictory to the statement given in the examination-in-chief.
14. P.W.2, Waheed Ahmad s/o Gafoor Ahmad, aged about 12 years is younger brother of the deceased. He has stated in the deposition that one year and seven months and before one year and nine months before the incident, the incident of theft had taken place in the house Chanda Shah and in the house of Safi Ahmad respectively. At the instance of accused persons, Panchayat had taken place in the village and in the Panchayat, the deceased Shakoor Ahmad had been given clean chit. After the decision of Panchayat, both accused persons became more inimical with the deceased. He stated that at about 1.00 P.M., the accused Safi Ahmad, Siraj, Holu and Maqbool came to his house and taken away Shakoor Ahmad forcibly. They followed the accused persons to save Shakoor Ahmad. When they entered in the house of Safi Ahmad, they saw that accused persons were beating Shakoor Ahmad by lathies and tabal. The accused Safi Ahmad had given injury to his mother Sakeena by brick-bat and due to that she sustained head injury. After sometime all the accused persons left the place of occurrence and when they saw his brother, he was found dead.
15. P.W.3, Smt. Sakeena, mother of the deceased has also supported the statements of P.W.1 and P.W.2. In her examination-in-chief, she stated that accused persons started beating Shakoor Ahmad with lathies and tabal in the Dalan of accused Shafi Ahmad. Shakoor Ahmad fell down in the courtyard of house and died. She stated in her cross-examination that when she reached the gate of the house of the accused Shafi Ahamd, she raised alarm but none came there. According to her, she did not enter into the house of Shafi Ahmad but she remained standing at the gate of the house. Her both sons remained standing behind her. The accused took out weapons from the southern khota facing in the east towards dalan. Accused started beating Shakoor Ahmad in the dalan at a distance of one pace from the door of the kotha. Shakoor Ahmad fell down in the courtyard. This place was about 2 and 1/2 to 3 paces away from the place, where accused started beating him. She stated that when her son fell down in the courtyard after having received injuries, she was present in the courtyard. She also stated that she also fell down after being hit by the brick-bat thrown by the accused Safi Ahmad. According to her, she had disclosed facts to the Investigating Officer as to which of the accused was armed with what weapon.
16. P.W.4, Gafoor Ahmad, father of the deceased, stated in his deposition that one day before the incident, he and his son Jameel were coming from field and when they reached near school, they heard that accused persons were talking about his deceased son and they were making plan to kill Shakoor Ahmad. The accused persons were talking that whenever Shakoor Ahmad will come from Kichha, he would be killed by them. He further stated that he informed his wife Shakeena (P.W.3) about the planing of the accused persons for killing of Shakoor Ahmad and warned him not to come village as the accused persons were planing to kill him.
17. P.W.6 Dr. R.N. Bhardwaj performed autopsy on the dead-body of Shakoor Ahmad at 1.30 P.M. in the District Hospital, Rampur. The Doctor prepared post-mortem examination Report (Ext. ka-3), which shows the following observations;
Shakoor Ahmad (deceased) was about 30 years old and was of the average built body. Rigor-mortis was absent in upper but present in the lower extremity. Both the nostriles and ears were bleeding. The Doctor found 28 Anti-mortem injuries on the person of deceased Shakoor Ahmad.
On internal examination, the Doctor found little fluid and clotted blood in the skull cavity. Brain was found cut under injury no.8. The base of skull was broken. The stomach contained 12 ounces of semi-digested food.
In the opinion of the doctor, the death of the deceased was due to coma was a result of head injury. The head injury was sufficient to cause the death of deceased.
18. P.W.7, Constable Bhoop Singh has stated in the deposition that on 18.04.1981, he was posted as Constable at police station Bilaspur. He further stated that Inquiry Officer handed over dead-body of the deceased to him with all relevant papers for the purpose of post mortem. On 19.04.1981, he identified the body and after post mortem Doctor had given one sealed bundle and one envelop, which had been entered into G.D. as report no.29 at 17.40 hrs dated 19.04.1981. In the cross examination, he stated that after post mortm, deadbody was handed over to the relatives of the deceased.
19. P.W.8, Vishnu Datt Sharma stated in the deposition that on 18.04.1981, he was posted as Constable at police station Bilaspur. He stated that complainant Ahmad Hussan came to police station at 08.30 p.m.. He had narrated the whole incident and on the information, he scribed the F.I.R and read over the same before the complainant. On the report, the thumb impression of the complainant was taken. The same was also entered into G.D.. He had also identified the signature and also proved his signature on the F.I.R. In the cross examination, he had denied that the F.I.R. was not lodged by the complainant on 18.04.1981 at 8.30 p.m.
20. P.W.9, K. P. Singh was the Investigating Officer of the case and he was posted at the time of incident as Station House Officer of the police station Bilaspur. He has stated in the deposition that the F.I.R. (Ext. ka-1) was lodged in front of him. He recorded the statement of Ahmad Husain, Jeet Singh at police station and he reached the place of occurrence along with other police force. He took the dead-body of the deceased in his possession but could not prepare Panchayatnama on the same day because of darkness and no light source was available. On 19.04.1981, Panchayatnama of the deceased was prepared by S.I. V. P. Singh. Dead-body of Shakoor Ahmad was sealed on the spot and was sent for post mortem examination. He recorded the statement of other witnesses and prepared site plan (Ext. ka-10). He took blood stained earth and plain earth on the spot in his possession and prepared memo Ext-Ka-12 to that effect. He took some blood stained cot lying on the spot and prepared Memo (Ext.ka-4) to that effect. He also took in his possession some of the leaves of straw and wheat crop stained with blood from the nearby pit and prepared a memo Ext. ka-14. Thereafter, he further interrogated other witnesses and arrested the accused Aziz, accused Shafi Ahmad, Siraj Ahmad, Holu Shah, Maqbool Shah had surrendered themselves in the court. On 16.05.1981, he submitted a chargesheet (Ext.ka-16) against accused Shafi Ahamad, Siraj Ahmad, Firoj Shah alias Haulu Shah, Maqbool Shah and Aziz Ahmad. Accused Chanda Shah and Shakir Ali had surrendered themselves in the court on 26.05.1981 and 27.05.1981 respectively and thereafter a chargesheet (Ext. ka-17) was submitted against them. He also took in his possession the blood stained lathi from the place of occurrence and prepared a memo Ext.ka-18. He cut the lathi into four pieces and sealed it. Nothing has come out contradictory in the cross-examination.
21. Learned counsel appearing on behalf of the appellants submitted that the motive in the case as alleged by the prosecution has not been established. The prosecution has alleged that about two months prior to the occurrence in question, a theft had taken place in the house of Chanda Shah. About one and half months before the occurrence in question, another theft had taken place in the house of accused Shafi Ahmad. Although no report was lodged about the said thefts but the accused continued to feel enmity against the deceased Shakoor Ahmad as they had doubt that the theft had been committed by him. Ahmad Hussain (P.W.1) had stated that a Panchayat was held in the village in which deceased Shakoor Ahmad had been exonerated from the aforesaid charge. This statement had also been corroborated by Waheed Ahmad (P.W.2). Waheed Ahmad (P.W.2) is the younger brother of Ahmad Hussain. Since there is no other independent evidence to corroborate this part of the prosecution story, it is difficult to believe such version of the prosecution. There was no motive to commit the murder of the deceased. He further submitted that next part of the prosecution story is that there was a conspiracy among all the accused to commit the murder of Shakoor Ahmad on the previous day of the alleged murder. On this point there is solitary evidence of Ghafoor Ahmad (P.W.4) who is the father of the deceased Shakoor Ahmad. Ghafoor Ahmad (P.W.4) had stated in the testimony that about a day before the murder of his son Shakoor Ahmad, he along with his son Jameel was returning from his field and when he came near the school of his village he heard the name of Shakoor Ahmad. He and his son Jamil Ahmad stopped on the way near the school and saw all the seven accused talking themselves in the Varandah of the school. He stated in his testimony that "Shafi Ahmad said that Shakoor should be killed whereas Aziz Ahmad told that this was beyond their control. Chanda Shah said that if Shakoor Ahmad will return from Kichha, he should be killed." All this conversation was heard by him and his son Jameel. After this conversation all the accused persons went to their respective houses. He came to his house and told about this occurrence to his wife Smt. Sakeena and asked her to warn Shakoor on his return from Kichha. He did not convey about this conspiracy to any other person except his wife. It is also improbable to believe that the accused persons were talking in an open place in the manner as alleged. The statement of this witness is full of improbability and contradictions. The story of the conspiracy had also not been mentioned in the F.I.R. The names of three accused namely Aziz Ahmad, Shakir and Chanda Shah were not found mentioned in the report, therefore, conspiracy story has not at all been proved by the prosecution. It is submitted that prosecution story regarding dragging of Shakoor Ahmad by the accused persons is also improbable. In this context, Shakoor Ahmad would not have gone with the accused and even if the accused tried to take him from the house, he could have easily released himself from the grip of the accused persons but he could not do anything for releasing himself from grip of the accused persons.
22. It is submitted by learned counsel for the appellants that the place of occurrence has also not been established by the prosecution. It is contended that dead-body of Shakoor Ahmad was lying on the way and police had falsely shown it inside the house of accused Shafi Ahmad. In support of this contention learned counsel for the appellant relied upon contradictions in the statement of the eye witnesses, the statement of Sardar Jit Singh (D.W.1) and also on the fact that the blood allegedly recovered from the spot which does not match with the site plan.
23. Per-contra learned counsel appearing on behalf of the State as well as the complainant's counsel submitted that the prosecution has proved its case beyond reasonable doubt. All the eye witnesses P.W.1, P.W.2 and P.W.3 had fully supported the case of the prosecution. Medical report as well as occular evidence supported to each other and no material contradictions found in the statement of the witnesses. He further submitted that motive has also been established by the prosecution. After the result of the Panchayat, all the accused persons became more inimical with deceased. Conspiracy part has also been proved by P.W.3 and P.W.4. It is submitted that P.W.3 had stated in the deposition that her husband told her that the deceased has life threat from the accused persons and he should be warned.
In view of the facts and circumstances of the case, learned AGA on behalf of the State submitted that prosecution has proved the case beyond reasonable doubt. The accused persons committed offence as alleged. Therefore, the present criminal appeal has no merit and the same is liable to be dismissed.
24. The point arises in the present case, whether the accused persons committed murder of the deceased Shakoor Ahmad on the place of manner alleged by the prosecution. The prosecution has examined P.W.1, P.W.2 and P.W.3 against the accused persons. The P.W.1. Ahmad Hussain has corroborated the prosecution story as stated in the F.I.R. He has stated to the effect that at about 12 noon, his brother Shakoor Ahmad came to his house from Kichha. He and his mother Sakeena, his brother Waheed were present in the house. At about 1.00 p.m. on the day of the alleged incident, all the four accused Safi Ahmad, Siraj Ahmad, Holu Shah and Maqbool Shah came in his house and asked Shakoor Ahmad to accompany them and to give his explanation about the thefts. All the accused persons forcibly took Shakoor Ahmad towards the house of the accused Shafi Ahmad. He stated that his mother Smt. Sakeena, his younger brother Waheed Ahmad followed the accused and requested them to release Shakoor Ahmad. Accused persons did not accede to their request and took Shakoor Ahmad in the house of Shafi Ahmad where all the accused persons started beating Shakoor Ahmad with lathi and tabal. Accused Shafi Ahmad and Maqbool Shah had tabal while accused Holu Shah and Shiraj Ahmad had lathies. They entered into the house of accused Shafi Ahmad to save Shakoor Ahmad. The accused Shafi Ahmad threw brick-bat on his mother, she sustained brick-bat injury on head and fell down. The accused persons threatened them and asked to leave the place. None of the villagers were prepared to accompany him to police station for lodging the report. Thereafter he went to Jeet Singh Sardar of Village 'Godi Ki Gotiya' and lodged a report at 8.30 P.M at the police station. He also proved the report Ext.-Ka-1. He deposed in his cross examination that there was abadi in between his house and the house of the accused Shafi Ahmad. He has also stated that house of the accused Shafi Ahmad is about 200-300 paces away from his house. In his deposition P.W.1 has fully supported the prosecution case.
25. P.W.2 -Waheed Ahmad has also corroborated the statement of Amhad Hussain (P.W.1). In his examination-in-chief he has stated that accused had killed Shakoor Ahmad in dalan and deadbody of the deceased was lying in dalan of the house of accused Shafi Ahmad. This witness had stated in his cross examination that when four accused came, they were empty hand. All the four accused took Shakoor Ahmad from the house after putting his hands on his shoulder. He could not say whether the accused had dragged Shakoor on the way. According to him, he did not see accused persons bringing lathies and tabal. According to him, when the accused took his brother inside the house of the accused Shafi Ahmad, he, his brother Ahmad Hussain and mother remained standing outside the house because the accused had threatened them. He also stated that until police came on the spot, the dead-body of the deceased Shakoor Ahmad remained lying inside the house of accused Shafi Ahmad.
26. P.W.3-Smt. Sakeena has fully corroborated the prosecution case. In her examination-in-chief, according to her, accused persons started beating Shakoor Ahmad with tabal and lathies in the dalan of accused Shafi Ahmad. Shakoor Ahmad fell down in the courtyard of house and died. She stated in her cross-examination that when she reached the gate of the house of the accused Shafi Ahmad, she raised alarm but none came there to save Shakoor Ahmad. According to her, she did not enter into the house of Shafi Ahmad but she remained standing at the gate of the house. She stated that the accused persons took out weapons from the southern kotha facing in the east towards dalan. Shakoor Ahmad fell down in the courtyard. She stated that when her son fell down in the courtyard, she was present in the courtyard. She also stated that she had also fell down after being hit by brick bat thrown by the accused Shafi Ahmad.
27. As such the prosecution story has been corroborated by the aforesaid three witnesses P.W.1, P.W.2 and P.W.3. No doubt all the three witnesses have not stated to the Investigating Officer the fact as to which of the accused was armed with what weapon but they had clearly stated that the accused persons had beaten Shakoor Ahmad with tabal and lathies. Some omissions in the statements have been made by the witnesses before the Investigating Officer. It is also true that there are minor contradictions in the statement of these witnesses with regard to the manner in which deceased Shakoor Ahmad was dragged by the four accused persons from his house to the house of accused Shafi Ahmad but minor omissions cannot be said to have affected the case of the prosecution.
28. There is overwhelming evidence on record to show that the incident had taken place when once the genesis of the occurrence is proved, it is now well settled that contradictions which are minor in nature would not be sufficient to dispel the entire prosecution case. It is true that all the three prosecution witnesses, who have been relied upon by the court below are related/interested witnesses and there are minor contradictions in their statements but it can not be held fatal for the prosecution. All the prosecution witnesses are natural witnesses. The essential ingredients to prove the crime against the accused persons have categorically been stated by them. Our attention has not been drawn to any major contradictions in the deposition of the witnesses so as to disbelieve the entire prosecution case.
29. In the case of Sudha Renukaiah and others vs. State of Andhra Pradesh AIR 2017 SC 2124 the Hon'ble Supreme Court held:-
"37. Present is a case where reasoning of the Trial Court in discarding the evidence of injured witness and other eye-witnesses have been found perverse. The High Court, thus, in our opinion did not commit any error in reversing the order of acquittal and convicted the accused. From the eye-witnesses account, as noticed above and for the reasons given by the High Court in its judgment, we are of the view that High Court is correct in setting aside the order of acquittal and convicting the accused."
30. In the case of Pudhu Raja and another vs. State represented by Inspector of Police (2012) 11 SCC 196, the Hon'ble Supreme Court held :-
"18. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same again without providing justifiable reasons for the same. (Vide State v. Saravanan )
19. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witness also makes material improvements before the court, in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of the eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence available or with a statement that has already been recorded, then, in such a case it cannot be held that the prosecution has proved its case beyond reasonable doubt."
31. Learned counsel for the appellants has endeavored hard to highlight certain discrepancies among testimony of the witnesses, in our considered opinion, they are absolutely minor in nature. The minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored.
32. In view of our aforesaid analysis, we are unable to accept the submission of the learned counsel for the appellants that the evidence of the eye witnesses should be rejected solely on the ground that there are several contradictions in the testimonies and they are close relative and interested witnesses.
33. The presence of the Waheed (P.W.2) on the spot was challenged on behalf of the defence during trial on the ground that his name was not mentioned either in the F.I.R. or in the statement of the complainant Ahmad Hussain under Section 161 Cr.P.C. but after perusal of the F.I.R. and other documents available on record, it is clear that name of Waheed was not specifically mentioned by either in the report or in the statement of witnesses under Section 161 Cr.P.C. But it has been clearly mentioned in the F.I.R. and in the statement of Ahmad Hussain under Section 161 Cr.P.C. that "his younger brother" was with him. So in view of this fact the absence of the name of Waheed in the F.I.R. is not much material. Mere non mentioning the name of the P.W. 2 Waheed in the F.I.R. and in statement recorded under Section 161 Cr.P.C. would not belie the prosecution case.
34. In this context, we may reproduce a passage from the decision of Hon'ble Supreme Court in State of Punjab v. Jagir Singh Baljit Singh and Karam Singh AIR 1973 SC 2407, wherein H.R. Khanna, J., observed thus:-
"A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
35. Learned counsel appearing on behalf of the accused/ appellants submitted that the place of occurrence has not been established by the prosecution. It was contended that the deadbody of the deceased Shakoor Ahmad was lying on the way and police had falsely shown it inside the house of Shafi Ahmad. This has been the main attack of the learned counsel for the appellants. In support of this contention the learned counsel for the appellants relied upon the contradictions in the statements of the eye witnesses, in the statement of Sardar Jit Singh (D.W.1) and also on the fact that blood allegedly recovered from the spot was not sent to Chemical Examiner. Having considered the argument advanced on behalf of the appellants, we find that this argument cannot be accepted. The Investigating Officer had shown in the site plan (Ext. Ka-10) that the dead-body of Shakoor Ahmad was found in the courtyard of the house of the accused Shafi Ahmad at the time of his visit. According to him, he recovered blood stained and simple earth from the place inside the varandah of the house of the accused Shafi Ahmad. He also recovered some blood stained jute rope from the cot lying in the house of accused Shafi Ahmad. He also recovered some blood stained leaves of grain and straw lying in the pit of the courtyard of accused Shafi Ahmad. P.W.9- Sri K.P. Singh had proved these facts and proved the memo to that effect prepared on the spot. The Investigating Officer had no enmity with the accused and there was no reason to give false statement by police.
36. In the site-plan the deadbody was shown lying in the courtyard of the house of accused Shafi Ahmad at a distance of about 10-12 paces away from the place where he was beaten. Ahmad Hussain and Smt. Sakeena have stated specifically that Shakoor Ahmad after having received injuries ran and fell down in the courtyard of accused Shafi Ahmad and died. Although there are minor contradictions in their testimonies as to which of the place where Shakoor Ahmad was beaten initially and where he fell down and died. These contradictions are wholly immaterial having regard to the situation of the varandah and the courtyard of the house of the accused Shafi Ahmad. The presence of Smt. Sakeena cannot easily be doubted as she had received injuries on the right side of her skull. The statement of Smt. Sakeena that when she tried to save Shakoor Ahmad, she was struck with brick-bat by the accused Shafi Ahmad, has been corroborated by the statement of Dr. R. S. Gangwar, who had examined injured Smt. Sakeena.
37. Testimony of a injured witness has higher evidencary value for convicting all the accused persons. Natural injuries on the person of a witness assures his presence on the spot. The testimony of injured witness held more credence normally he/she would not shield real culprit. However, there is no immutable root that evidence of injured eye witness should be discarded rather. Injuries of witness may ensure of his or her presence on the spot.
38. In the case of Abdul Syaeed vs. State of Madhya Pradesh, (2010) 10 SCC 259 the Hon'ble Supreme Court while dealing with the evidencary value of the injured witness has held that :-
"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."
The Hon'ble Supreme Court has further held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. The special evidentiary status accorded to the testimony of an injured witness.
39. It is argued by learned counsel for the appellants that Waheed Ahmad (P.W.2) was a child witness and he was tutored witness and his evidence was full of contradictions, therefore, no reliance can be placed upon his testimony. In our opinion, this argument is not sustainable as under Section 118 of the Indian Evidence Act, 1872, a child can be competent witness provided that such witness is able to understand the question and able to give rational answer thereto. With respect to children, no precised age is fixed by law with which they are absolutely excluded from giving evidence on the presumption that they have no sufficient understanding. Object of putting the question to child witness is that the time of the court should not be wasted, if it is found, as a result of preliminary enquiry that child is neither intelligent nor give evidence which may be acceptable. In the instant case the testimony of Waheed Ahmad (P.W.2) is corroborated with other witnesses P.W.1 and P.W.3. P.W.2 was found competent to depose and his evidence was found reliable by the court below.
40. In the case of Suresh vs. State of U.P. AIR 1981 SC 1122 the Hon'ble Supreme Court accepted the evidence of child of five years who was the sole witness of murder of domestic servant.
In reference to the testimony of 13 years the Hon'ble Supreme Court observed that " In our country, particularly in rural areas it is difficult to think that a lad of 13 years as a child. A vast majority of boys around that age go to fields to do work. They are certainly capable of understanding the significance of oath and necessity to speak the truth."
41. A child is not an incompetent witness and his evidence could not be discredit per se. The evidence of child witness is to be taken with care and caution. There should be close scrutiny of the evidence of child witness before the same is accepted by court of law. It is sound rule in practice not to act on the uncorroborated evidence of child. Whether sound or unsound but this a rule of prudence and not of law. However, the statement of the child witness which inspires confidence can be relied upon without corroboration.
42. The Indian judicial system has laid down some rules to determine the competence of a testimony of a child witness, which has also been provided by the Indian Evidence Act and other relevant judgements of the Hon'ble Supreme Court.
For a testimony to be admissible, it must fulfill certain conditions, such as;
(i) A witness should be competent enough;
(ii) Must understand the question put before;
(iii) Must comprehend and give pragmatic and rational answers to the same.
The final discretion lies on the court to comprehend and determined whether the testimony shall be permissible or not, keeping in mind the account of the given facts and situation.
Hence, a court of law does not prohibit anyone from testifying, as long as they are able to satisfy the above conditions to the satisfaction of the court of law. Thus, we have often questioned as to why the testimony of a child is a subject matter to various questions.
43. Section 118 of the Indian Evidence Act mentions who is considered as competent enough to testify in the court of law; ''All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years..."
Hence, the above provision clearly states that one shall testify in case competent enough if considered otherwise by the court of law.
44. Thus having considered carefully entire evidence on record and facts and circumstances of the case, we have no reason to interfere with the judgment and order dated 09.03.1983 passed by the 3rd Additional Sessions Judge, Rampur in Sessions Trial No.241, 297 of 1981 and S.T. no.19 of 1982 to the effect that all the four accused Shafi Ahmad, Siraj Ahmad, Holu Shah and Maqbool Ahmad in furtherance of common intention on 18.04.1981 at about 1.00 p.m. abducted Shakoor Ahmad from outside of his house in order to murder him and further all the four accused persons in furtherance of common intention committed murder of Shakoor Ahmad intentionally in the house of Shafi Ahmad on the aforesaid date and time.
45. As per the report dated 16.06.2012 submitted by the C.J.M., Rampur, it has been reported that the appellant no.2, Shiraj Ahmad has died ten years ago and vide order of this Court dated 20.02.2014, the appeal against the appellant no.2, Shiraj Ahmad has already been abated.
46. The present criminal appeal is devoid of merit and, therefore, the same is dismissed. Impugned judgment and order dated 09.03.1983 is upheld. If the appellant no.1, Shafi Ahmad, appellant no.3 Holu Sah and appellant no.4 Maqbool are on bail, their bail bonds are hereby cancelled and they shall be taken into custody within thirty days from today. In case, the appellants do not surrender before the court below within the time stipulated by this Court, the C.J.M., Rampur is directed to initiate proceedings under Sections 82/83 Cr.P.C. to procure their arrest and send them jail to serve out the remaining sentences
47. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.
Order date:-30th July, 2018
Asha
(Chandra Dhari Singh,J.) (Naheed Ara Moonis,J.)