Allahabad High Court
Zahid vs State Of U.P. on 6 August, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on : 08.07.2020 Delivered on : 06.08.2020
CRIMINAL APPEAL No. 2293 of 1982
Zahid --------Appellant
Vs
State of Uttar Pradesh ---------Respondent
_______________________________________________________
For Appellants : Sri Moeez Uddin, Amicus Curiae
For Respondent/State : Sri Attreya Dutt, AGA _______________________________________________________
Hon'ble Raj Beer Singh, J.
1. This appeal has been preferred against judgment and order dated 16.9.1982, passed by learned Sessions Judge, Rampur, in Session Trial No. 33 of 1982, State vs. Zahid, under Section 302 IPC, P.S. Ganj, District Rampur, whereby, accused-appellant Zahid was convicted under Section 304 Part-I IPC and sentenced to four years rigorous imprisonment with fine of Rs. 100/. In default of payment of fine he has to undergo three months rigorous imprisonment.
2. According to prosecution version, accused-appellant Zahid Khan as well as deceased Khalid used to ply their respective rickshaws. Three-four days prior to the incident, rickshaw of deceased Khalid has got struck with rickshaw of accused-appellant Zahid Khan and due to that reason, accused-appellant Zahid Khan has threatened him. The incident took place on 17.9.1981. On that day at about 7:00 pm accused-appellant has sent one boy to call the deceased from his house and accused-appellant Zahid Khan took position in nearby lane (Gali) by concealing himself. When deceased Khalid, while taking his rickshaw, reached near water tank in the lane, accused-appellant Zahid Khan attacked him with knife. Deceased Zahid Khan sustained knife injury at his abdomen. Hearing his noise, one Bhoora Khan and Zafar Khan as well as some other nearby residents rushed to spot but Zahid Khan fled away from there.
3. Deceased Khalid, who was in injured condition at that time, himself reported the matter to police by submitting a written complaint Ex. Ka-1 and on that basis first information report was registered on 17.09.1981 at 19:20 PM against Zahid Khan, under Section 324 IPC vide Ex. Ka-4.
4. Injured Khalid was medically examined by PW-6 Dr. S.K. Gupta vide MLC Ex. Ka- 3 and he has sustained following injuries:
(i) Incised wound 3 cm x 1.5 cm x abdominal cavity deep. Loops of intestines were protruding out. Kept under observation. Advised X-Ray. It was on left side of abdomen 6 cm below umblicus.
(ii) Incised wound 4.5 cm x ½ cm x muscle deep on inner surface of right hand. It was a simple injury.
5. Deceased Khalid, being in injured condition, was admitted in hospital but during course of treatment on 21.09.1981 he succumbed to injuries. In this regard information was sent to police vide memo Ex. Ka- 8 and the case was converted from Section 324 IPC to Section 304 IPC vide G.D. Entry Ex. Ka- 5.
6. Inquest proceedings were conducted by Investigating Officer P.W.-9 S.I. Ompal Singh vide inquest report Ex. Ka-10 and dead body of the deceased was sent for postmortem. Postmortem on the dead body of the deceased Khalid was conducted by PW-2 Dr. P.L. Shah on 22.09.1981 vide postmortem report Ex. Ka-2. Deceased has sustained following injuries.
(i) stitched wound 3.2 cm left iliac region of abdomen 10 cm below and laterally to umblicus 2 cm above the ingunial legament left side that is in the lowest part of the abdomen.
(ii) stitched wound 4.5 cm right palm posteriorly between thumb and index finger (roots) extending upwards to dorsum of palm.
Cause of death of the deceased was on account of injury no.1 causing hemorrhage and shock.
7. Investigation of the case was conducted by PW-9 S.I. Ompal Singh. After completion of investigation, accused-appellant Zahid Khan was charge-sheeted for offence under Section 304 IPC.
8. Trial court framed charge under Section 302 IPC against accused-appellant Zahid Khan, who pleaded not guilty and claimed trial.
9. In order to bring home the guilt of accused-appellant Zahid Khan, prosecution has examined nine witnesses. After prosecution evidence, accused-appellant was examined under Section 313 of Cr.P.C., wherein, he has denied prosecution evidence and claimed false implication. However, no evidence was adduced in defence.
10. After hearing and analyzing the evidence on record, trial Court convicted accused-appellant Zahid Khan under Section 304 Part-I of IPC and sentenced as stated in opening part of this judgment.
11. Being aggrieved of his conviction and sentence, accused-appellant Zahid Khan has preferred the present appeal.
12. Heard Sri Moeez Uddin, learned Amicus Curiae for the appellant and Sri Attreya Dutt, learned A.G.A. for the State.
13. Learned Amicus Curiae has argued:
I. that both the eye-witness PW-3 Bhoora Khan and PW-5 Zafar Miyan are inimical witnesses and their presence at the spot is highly doubtful and that there are contradictions in their testimony. It was stated that statements of these witnesses are not reliable.
II. that prosecution has failed to prove any motive on the part of accused-appellant to cause death of deceased Khalid. The prosecution version that a few days prior to the incident, rickshaw of deceased has got struck with rickshaw of accused-appellant, is not established. It was stated that accused-appellant has taken a specific plea that as he used not to run any rickshaw.
III. that alleged statements of deceased, recorded by PW-1 Salim Khan, which has been treated as dying declaration, is not reliable and there is no evidence that deceased was in a fit state of mind to make such an statement. As per prosecution version, deceased has sustained serious injuries at his abdomen area and thus, it does not appear reliable that he was in such mental state to make any such statement.
14. Per contra, it has been submitted by the learned State Counsel that first information report of this case was lodged by deceased himself within half an hour of the incident naming the accused-appellant Zahid Khan. Both the eye-witnesses PW-3 Bhoora Khan and PW-5 Zafar Miyan have made clear and consistent statement. No material contradiction or inconsistency could emerge in their cross-examination. Their version is amply supported by medical evidence. It was further submitted that after incident, while the deceased was in injured condition he made complaint exhibit ka-1 and his statement was recorded by Investigating Officer PW-9 S.I. Ompal Singh, which has been duly proved as Ex. Ka-6. There are no reasons to disbelieve the alleged dying declarations. Learned State counsel submitted that there is overwhelming evidence against accused-appellant, which has been duly appreciated by trial Court and that conviction of accused-appellant is based on evidence.
15. I have considered the rival submissions and perused the record.
16. In evidence PW-1 Salim Khan has stated that on 17.09.1981 Khalid has got written tahreer Ex. Ka-1 from him and whatever was dictated by Khalid, the same was written down in the same. The tahreer was read over to him and after that Khalid has affixed his thumb impression on the same. PW-1 Salim has stated that Khalid has got written the following tahreer from him:
udy rgjhj fgUnh **Fkkuk bZUpktZ xat jkeiqj fuosnu gS fd rhu pkj fnu igys esjk fjd'kk tkghn eksgYyk tsy jksM dh fjd'kk ls Vdjk x;k Fkk rks blus eq>s dgk Fkk fd rw>s ns[akwxkA vkt djhc 7 cts 'kke tkghn us eq>s cqykus ,d yM+dk Hkstk vkSj vius vki Nqi dj xyh eas [kM+k gks x;k tc eS viuk fjd'kk ysdj Vadh ds ikl vk;k rks blus Nqjh ls esjs Åij okj dj fn;k Nqjh esjs isV esa o nk;s gkFk esa yxh esjs 'kksj ls eksgYys ds Hkwjk [kka o tQj vk;s vkSj cgqr ls vkneh vk;s ftUgsa vkrk ns[kdj tkghn Hkkx x;k esjh jiV fy[k dj dkjokgh dh tk;s eq>s vLirky Hkst fn;k tk;sA** izkFkh [kkyhn iq= cUus [kak eksgYyk enjlk dksuk Fkkuk xat jkeiqjA rgjhj ys[kd& lyhe [kka iq= utkdy vyh [kka eksgYyk BksVj Fkkuk xat jkeiqj g- vaxzsth lyhe [kka 17-9-81
17. PW-2 Dr. P.L. Shah has conducted postmortem.
18. PW-3 Bhoora Khan has stated that he knows the accused-appellant Zahid Khan. On the day of incident, at around 7:00 pm when he was going towards his field and reached at some distance from the house of Azam Khan MLA, near turn of road, he heard noise and when he reached there, he saw that in the lane accused Zahid Khan was giving knife blow at stomach of Khalid. PW-3 Bhoora Khan raised alarm and thereafter accused-appellant ran away towards north side. PW-3 Bhoora Khan further stated that one Bachhan Khan, Zafar Khan and some other persons have also reached there. Deceased Khalid, while he was in injured condition, has dictated a report to Salim Khan.
19. PW-5 Zafar Miyan has stated that accused-appellant is known to him. On day of incident at around 6:45 / 7.00 PM while he was passing through Jail road and he reached near house of Azam Khan, after hearing noise, he reached in the lane and saw that accused-appellant Zahid Khan was causing injuries to Khalid. At that time Bhoora Khan, Bachhan Khan and Sher Ahmad have also reached there. They all raised alarm and thereafter accused-appellant fled away. Deceased Khalid sustained injuries at his stomach and hand.
20. PW-4 constable Omkar Singh and PW-7 constable Devendu Singh have assisted during investigation.
21. PW-6 Dr. S.K. Gupta has medically examined the deceased Khalid Khan, while deceased was in injured condition.
22. PW-8 Rashid is brother of deceased and he has stated that after incident, deceased was admitted in hospital and on 21.09.1981 he was to be taken to Delhi institute but as soon as he was taken out from the hospital, he succumbed to injuries and thus, deceased was again taken back to the same hospital.
23. PW-9 S.I. Ompal Singh has conducted investigation. He has stated that on 17.09.1981 after registration of case he has recorded statement of Khalid at the police station. That statement of deceased has been proved as Ex. Ka-6. PW 9 Ompal Singh has spoken the contents of exhibit Ka-6 as under:
"rkbZn o rLnhd jiV nkf[ky djrs gq;s C;ku fn;k] fd eaS fjd'kk pykrk gwWA rhu pkj fnu igys esjk fjd'kk tkfgn dh fjd'kk ls Vdjk x;k Fkk tks fd tsy jksM ij jgrk gS rks tkfgn us eq>ls dgk Fkk fd rq>s ns[kwXkkA vkt djhc] 7 cts tkfgn us eq>s ,d yM+ds ls cqyok;k tcfd eS viuh fjd'kk ysdj tsy jksM dks tk jgk Fkk ml yM+dk dk uke irk eS ugh tkurk gwW vkSj tkfgn [kk xyh esa Nqidj [kM+k gks x;kA tc eS viuh fjd'kk ysdj eksgYyk ?ksj ehjckt [kk dh Vadh ds ikl igqWpk rks tkfgn [kk us esjs Åij Nqjh ls okj dj fn;kA Nqjh esjs isV o nkfgus ckg esa vaxwBs o vaxqyh ds ikl yxhA esjs 'kksj ij eksgYYkk Hkwjk [kka o tkQj vk x;k ckn dks vkSj Hkh cgqr ls vkneh vk; x;s FksA ftUgsa ns[kdj tkfgn Nqjh fy;s gq;s Hkkx x;kA eSusa ogh ij lyhe [kka cki dk uke utkdr vyh [kka ls bl ckr dh] [kqn cksydj ,d rsgjhj fy[kokbZ tks eSus cksyk mlus ogh fy[kk eq>s i<+dj lqukdj esjk fu'kkuh vaxwBk yxok;kA rsgjhj ysdj Fkkus vk;k vkSj nhokuth dks rsgjhj nsdj jiV fy[kkbZA nhokuth us jiV fy[kdj udy eq>s nh gSA vkSj pksVsa ns[kdj fy[kh gS vc eS vLirky tk jgk gwWA**"
PW 9 further stated that during course of investigation, statements of other witnesses were recorded. On 21.09.1981 after receipt of information regarding death of Khalid, case was converted from Section 324 to Section 304 IPC. After completion of investigation appellant was charge-sheeted vide Ex. Ka-14.
24. Perusal of record shows that conviction of accused-appellant Zahid Khan is based on dying declaration of deceased Khalid as well as testimony of eye-witness PW-3 Bhoora Khan.
25. So far the dying declarations of deceased Khalid are concerned, the case of prosecution is that in alleged incident deceased Khalid has sustained knife injuries at his abdomen area. For reporting the matter to police, he dictated a tahreer exhibit ka-1 to PW 1 Salim Khan and submitted the same to police and case was registered on the basis of that tahreer. On fourth day deceased succumbed to injuries and thus, after death of deceased, the said document (exhibit ka-1) amounts to dying declaration made by deceased before PW 1 Salim Khan. Secondly after registration of case at the police station, statement (exhibit ka-6) of deceased was recorded under section 161 CrPC by PW 9 SI Ompal Singh at the police station itself and thereafter he was sent to hospital. As stated earlier, on 21.09.1981 deceased succumbed to injuries, thus according to prosecution said statement exhibit ka-6 made by deceased to PW-9 SI Ompal Singh would also fall within the ambit of 'dying declaration'.
Here it may be stated that both PW-1 Salim Khan and PW-9 SI Ompal Singh have made clear and consistent statements regarding alleged statements exhibit ka- 1 and exhibit ka-6 respectively. PW-1 Salim has made a consistent and cogent statement that on 17.09.1981 Khalid has got written tahreer exhibit Ka-1 from him and whatever was dictated by Khalid, the same was taken down in the tahreer exhibit ka-1 and that it was read over to him and after that Khalid had affixed his thumb impression on the same. PW-1 Salim has also spoken about contents of exhibit ka-1 in his statement. In the similar manner, the statement of PW-9 SI Ompal is also quite clear, consistent and cogent. He has clearly stated that after registration of case he has recorded statement of Khalid at the police station. That statement has been proved by him as exhibit ka-6. Both these witnesses are independent witness. No contradiction or inconsistency could be shown in their statements. Both these witnesses have been subjected to cross-examination but no such fact could emerge so as to create any doubt about said dying declarations, which have been duly proved as exhibit ka-1 and ka-6.
26. There can be no doubt in legal position that if an injured person makes an statement regarding the incident as to how he sustained injuries and later on he dies of same injuries, such an statement would fall within the ambit of 'dying declaration' as enshrined under section 32(1) of Evidence Act. The admissibility of dying declaration has been explained under sec 32 of Indian Evidence Act which, provides as under:-
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(i)When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
Perusal of Section 32(1) Evidence Act, makes it quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement fall under Section 32(1) of the Evidence Act, time and again Hon'ble Apex Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.
The principle on which the dying declaration is admitted is indicated by the Maxim of the Law - nemo moriturus proesumitur mentiri - 'a man will not meet his Maker with a lie in his mouth'. The statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death are relevant whatever may be the nature of the proceedings in which the cause of the death of the person who made the statement comes into question. If after sustaining injuries, such injured person makes an statement as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such an statement would be admissible under section 32(1) Evidence Act. Similarly if the Investigation Officer records the statement of an injured person under Section 161 Cr.P.C. in the course of the investigation of case which has been originally registered under Section 307 or 324 etc. IPC and if the injured person subsequently dies of same injuries and the provision of law under which the case was registered is altered into Section 302 or 304 IPC, then also a dying declaration becomes admissible in evidence as substantive piece of evidence.
27. In the instant case nothing adverse could be pointed out against the dying declaration exhibit ka-1, which has been duly proved by PW 1. It bears thumb impression of deceased. PW-1 Salim Khan appears an independent witness and there are no reasons why he would depose falsely. He was subjected to cross-examination, but nothing adverse could emerge. His version finds fortification from the fact that first information report was registered on the basis of this document (exhibit ka-1). There is absolutely no evidence that deceased was not fit to make such a statement. The fact that deceased has died fourth day of making such statement also indicate that he was in position to make such an statement. Further, statement of victim was not recorded in hospital and thus there is no question of any medical certification regarding his condition. Considering entire facts it is apparent that trial court was justified in placing reliance on exhibit ka-1 as dying declaration of deceased.
28. Learned counsel for the appellant has attacked the alleged dying declaration of deceased Khalid, recorded by PW 9 vide exhibit ka-6, mainly on the ground that the investigating officer PW-9 SI Ompal Singh has not followed mandatory provisions of Regulation-115 of U.P. Police Regulations, as he was required to record such declaration in presence of two respectable witnesses and signature or thumb mark of the victim should have been obtained on such statement. In the instant case it may be seen that the statement of deceased Khalid u/s 161 Cr.P.C. was recorded by the investigating officer soon after registration of the case at the police station and before sending him for medical aid, so the statement was not recorded in the shape of dying declaration. The condition of deceased was not very much critical. Deceased has reached at police station and he himself has filed written complaint and that he died on fourth day of incident. Hon'ble Apex Court in case of Shri Bhagwan Das Vs. State of U. P. (Criminal Appeal no. 1709 of 2009) decided on 6.12.2012, has stated that a statement u/s 161 Cr.P.C. of an injured recorded by the investigating officer during the course of investigation can be accepted as a dying declaration even if compliance of Regulation 115 of U.P. Police Regulation has not been made. It was held that said paragraph appears to be a guideline issued to the investigating officers as to the precautions to be taken while recording a dying declaration. It was stated therein that such declaration can be recorded by the investigating officer himself in the presence of two respectable witnesses and obtain the signature or mark of the declarant and the witnesses at the foot of the declaration. Leaving aside such a proposition which does not require to be considered in this case, the said para 115 will apply only in a grave situation where the victim is seriously injured. Such guidelines have been issued to ensure that at least the basic requirement of recording such a dying declaration in the presence of two respectable persons as witnesses while obtaining the signature or mark of the victim himself. It is relevant to note that the said paragraph 115 makes a specific reference to the recording of the dying declaration in which event alone such precautions have to be ensured by the investigating officers and not when Section 161 statement is recorded which does not require the signature of the author of the statement. (Sri Bhagwan Vs. State of U.P. (2013) 12 SCC 137.)
29. In the instant case, though the trial court has not believed alleged dying declaration exhibit ka-6 solely on the ground after making statement to scribe of tahreer exhibit ka-1, there was no need to make similar statement to the investigating officer, but it is apparent that firstly the deceased got written tahreer exhibit ka-1 from PW-1 and got the case registered and after that his statement was recorded by investigating officer (PW-9) under section 161 CrPC. There is nothing abnormal or unnatural in this process. In fact learned trial court has not assigned any satisfactory reason for disbelieving dying declaration exhibit ka-6. It is apparent from record and facts and circumstances of case that at the time when 161 Cr.P.C. statement (exhibit ka-6) of the deceased was recorded, the offence registered was under Section 324 IPC having regard to the knife injuries sustained by the victim Khalid. The investigating officer (PW 9) was not contemplating to record the dying declaration of the victim inasmuch as the victim was seriously injured and immediately needed medical aid. Before sending him to the hospital for proper treatment, PW-9 thought it fit to get the version about the occurrence recorded from the victim himself that had taken place and that is how Exhibit Ka-6 came to be recorded. There can be no doubt in stating that the statement was recorded as one under Section 161 Cr. P. C. Subsequent development resulted in the death of the victim on the fourth day and thus, said statement can be treated as a dying declaration.
Considering the legal position and evidence on record, it can be stated without any hesitation that the said statement of deceased was admissible in evidence under section 32(1) Evidence Act in the form of dying declaration. No other conflicting circumstance could be pointed out or demonstrated before this court in order to exclude the said document from being relied upon as a dying declaration of the deceased. Having regard to the manner in which the said statement was recorded at the time when the crime was registered originally under section 324 IPC within the shortest time possible, within which it could be recorded by PW-9 SI Ompal Singh, in order to provide proper medical treatment to the deceased by sending him to the hospital, with no other intention pointed out at the instance of the appellant to discredit contents of the said statement, it can be safely held that the dying declaration exhibit ka-6 can safely be relied upon and thus, the trial court committed error by discarding this dying declaration.
30. It is well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. In case of Koli Chunilal Savji V State of Gujrat AIR 1999 SC 3695, the Hon'ble Apex Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon. (See also: Baburam V State of Punjab, AIR 1998 SC 2808). In case of Babulal v. State of M.P.(2003) 12 SCC 490, it has been held that a person, who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. Then mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentiri).
31. In Atbir v. Government of NCT of Delhi MANU/SC/0576/2010 : (2010) 9 SCC 1, the Hon'ble Apex Court, after referring its earlier judgments, has laid following guidelines with regard to admissibility of the dying declaration:
The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute Rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The Rule requiring corroboration is merely a Rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
Thus, it is clear that the law regarding dying declaration is well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. In the instant case both the dying declarations ie exhibit ka-1 and ka-6 are found credible and nothing is brought on record that the deceased was in such a condition that he could not have made a dying declaration to the said witness, hence there is no justification to discard the same. Both dying declarations are consistent with each other. In view of this evidence, conviction of accused-appellants can be based on these two dying declarations without any further corroboration.
32. So far the evidence of alleged eye-witnesses PW-3 Bhoora Khan and PW-5 Zafar Miya is concerned, scrutiny of the same shows that both these witnesses have made clear and consistent statements regarding incident. They have stated that after hearing noise when they reached at the spot, accused-appellant Zahid was giving knife blow at stomach of deceased.
It was pointed out by learned Amicus Curiae that in first information report it was mentioned that hearing noise of deceased, one Bhoora Khan and Zafar Miya, residents of his colony, reached there whereas PW-3 Bhoora Khan and PW-5 Zafar Miya are not resident of his colony. In this connection it was also stated that in fact persons by the name of Bhoora Khan and Zafar Miyan were living in mohalla of deceased but the prosecution did not examine them and that in their place, other witnesses of same name have been examined.
In this connection it was observed by the trial Court that during evidence, PW-5 has stated his name as Zafar Miya whereas in FIR his name was stated merely as Zafar and that statement of PW-5 Zafar Miya under Section 161 Cr.P.C. was recorded after 13 days of the incident and and in view of these reasons, testimony of PW-5 Zafar Miya has not been believed by the trial Court.
33. However, so far PW-3 Bhoora Khan is concerned, he is a resident of same locality, where deceased was residing. His version that at the time of alleged incident he was going to his field and after hearing noise he reached at the spot of occurrence, appears quite consistent and convincing. His statement under section 161 Cr.P.C. was recorded on the day of incident without any delay. He has been subjected to cross-examination but nothing adverse could emerge. An attempt made to discredit PW-3 Bhoora Khan by alleging that earlier some incident has taken place with Bhoora Khan and in that case deceased used to do Parvi in defence of Bhoora Khan and it was suggested that PW-3 Bhoora Khan was deposing falsely due to that reason. In this connection it may be observed that there is absolutely no such evidence on record that deceased Khalid used to do Parvi in defence of PW-3 Bhoora Khan in the said case related to some earlier incident. No such evidence was brought on record to support the said allegation. In fact PW-3 Bhoora Khan is quite natural witness as he is a resident of same locality and that the incident took place at 7:00 PM. As stated earlier, statement of PW-3 Bhoora Khan under Section 161 Cr.P.C. was recorded on the same day. Statement of PW-3 Bhoora Khan finds ample corroboration from medical evidence and it has stood test of cross-examination. Considering entire evidence carefully, there are no reasons to disbelieve testimony of PW-3 Bhoora Khan.
34. It was further argued that prosecution has failed to prove motive of alleged incident. It was stated that accused Zahid used not to ply any rickshaw and thus, the alleged first incident of colliding his rickshaw with that of deceased, can not be accpeted. It was further pointed out that even otherwise, alleged incident of striking rickshaw of deceased and of accused, would not give rise to such an motive to cause death of deceased.
35. So far the question of motive is concerned, it is fairly well settled that if a case is based on direct evidence, motive has no much significance. Clear proof of motive lends additional assurance to other evidence but the absence of motive does not lead to contrary conclusion however in that case, other evidence has to be closely scrutinized. If positive evidence is clear and cogent the question of motive is not important. However, this is relevant to lend assurance the other evidence. Motive is not a sine qua non for the commission of a crime. Moreover, failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Reference may be made to the case law pronounced in case of State of U.P. V Nawab Singh, 2005 SCC (Criminal) 33.
Dealing with similar issue the Apex Court in State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:
"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
36. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. In Shivji Genu Mohite V. State of Maharashtra, AIR 1973 SC 55, the Hon'ble Supreme Court has held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance.
37. In the instant case, as the conviction of accused-appellant is based on the two dying declarations of the deceased as well as the direct evidence of PW 3 Bhoora Khan, thus even the absence of motive would not make much difference, however considering entire evidence carefully it can not be said that case sans any motive. In the FIR it was clearly stated that 3-4 days prior to the incident, the rikshaw of deceased got struck with that of the accused-appellant and on that issue the accused-appellant has threatened the deceased. In both the dying declarations Ex. Ka-1 and Ex. Ka-6, it has been clearly mentioned that about 3-4 days prior to the incident, rickshaw of deceased has collided with that of accused and due to this accused Zahid has threatened the deceased. As stated earlier, both the dying declarations have been found reliable and credible and thus, it can not be said that there was no motive at all on the part of accused-appellant. The contention raised by the learned Amicus Curiae has no force.
38. Having considered entire evidence carefully, it clearly emerges that both the dying declarations Ex. Ka-1 and Ex. Ka-6 are reliable and credible and the same can safely be acted upon. These dying declarations are of impeccable character and sufficient to base conviction of accused-appellant. The version of said dying declarations further finds corroboration from evidence of eye-witness PW-3 Bhoora Khan. As observed earlier, testimony of PW-3 Bhoora Khan is found quite credible and inspires confidence. In view of evidence on record and discussion made herein above, it is apparent that conviction of accused-appellant is based on evidence and there are no tangible reason to interfere in the same.
39. So far as question of sentence is concerned, it is correct that alleged incident took place about 38 years and 8 months back and at that time deceased was a young man aged about 20 years and that this appeal is also pending since 1982, but in view of the attending facts and circumstances of the case and the quantum of sentence awarded by the trial court, no case for reduction in sentence is made out. No doubt the long delay of about 38 years in disposal of appeal is a relevant factor for considering the quantum of sentence in favor of appellant, however, facts of the case reveal that deceased was attacked with knife at his stomach. The act of accused-appellant in attacking the deceased with knife was pre-meditated. Accused-appellant was charged under Section 302 IPC, however, despite the evidence that deceased was attacked with knife at his stomach and act of accused was pre-meditated, the Trial Court has choose to convict him under Section 304 Part-I IPC and he was awarded sentence of only four years along with fine of Rs. 100/. Thus, it is quite manifest that the trial Court has already dealt with the matter of sentence very liberally in favour of accused-appellant. In view of these specific facts and circumstances of the case, it would not be appropriate to reduce sentence of accused-appellant merely on the ground that appeal is pending since long. Accordingly, sentence awarded by the trial Court is also upheld.
40. In view of the aforesaid, appeal is dismissed. Accused-appellant Zahid shall be taken into custody forthwith to serve out the sentence.
41. The Court appreciates the assistance provided by Sri Moeez Uddin, learned Amicus Curiae. He shall be entitled to get Rs.5000/-, as remuneration for his assistance, from State Government.
42. Copy of this order along with record of trial Court be sent back to the Court concerned for necessary compliance.
Date: 06.08.2020 A. Tripathi (Raj Beer Singh, J)