Allahabad High Court
Munawwar vs State Of U.P. on 8 February, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD "AFR" Court No. - 45 Case :- CRIMINAL APPEAL No. - 4759 of 2007 Appellant :- Munawwar Respondent :- State of U.P. Counsel for Appellant :- R.P.S. Chauhan,Amir Khan,Beena Mishra,K.D. Tiwari,Mohd. Asad,Mohd. Samiuzzaman Khan,Mukhtar Alam,Noor Mohammad,Zahid Ali Counsel for Respondent :- Govt. Advocate Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
1. We have heard Mohd. Samiuzzaman Khan along with Ms. Beena Mishra for the appellant - Munawwar; Sri J.K. Upadhyaya, learned AGA, for the State and have perused the record.
2. This appeal is against the judgment and order dated 12.07.2007, passed by Additional Sessions Judge, Court No.7, Badaun in Sessions Trial No.544 of 2006 connected with Sessions Trial No.545 of 2006. In Sessions Trial No.544 of 2006, the appellant was prosecuted for offence punishable under Section 302 read with Section 34 IPC, arising out of Case Crime No.18 of 2006, police station Bisauli, district Badaun; whereas, in Sessions Trial No.545 of 2006 the appellant was prosecuted for offence punishable under Section 25 of the Arms Act, arising out of Case Crime No.94 of 2006, police station Bisauli, district Badaun. By the impugned judgment and order, in Sessions Trial No.544 of 2006, the appellant has been convicted under Section 302 read with Section 34 IPC and sentenced to imprisonment for life with fine of Rs.5,000/- and a default sentence of one year; whereas, in Sessions Trial No.545 of 2006, the appellant has been acquitted of the charge of offence punishable under Section 25 of the Arms Act. Consequently, this appeal assails the judgment and order of conviction and sentence recorded under Section 302 read with Section 34 IPC in Sessions Trial No.544 of 2006.
Introductory facts
3. The prosecution case in a nutshell, instituted on a written report (Exb. Ka-1), lodged by the informant - Jalaluddin (PW-1), at 16.30 hours, on 03.01.2006, at police station Bisauli, district Badaun (of which check report no.03 of 2006 (Ex. Ka-13) and GD Entry No.31 (Ex. Ka-14), giving rise to case crime no.18 of 2006, was made by PW-6), is that while PW-1 and his brother Raees Khan (the deceased) were returning on a motor cycle, after taking medicine for the deceased, at about 3.00 pm, when they took a turn to Bahoran's place of residence, on way, the accused, namely, Harvir, Iliyas (both not put to trial as they had died in a police encounter) and Munawwar (the present appellant), were noticed with firearms, coming from front. As soon as they (accused) saw the informant and his brother, they shouted that after a long time they could get an opportunity to finish off the deceased. Hearing their shouts, the deceased jumped off from the motorcycle, as a result whereof, the licensed gun which he was carrying on his shoulder fell and was lifted by co-accused Iliyas. All of them (accused) chased the deceased who ran towards the house of Sardar Mewa; there, the deceased was surrounded and killed by the accused persons. It is alleged that Iliyas shot the deceased from the gun which fell off the shoulder of the deceased and the other two accused fired at the deceased from their own country made pistols. It was alleged that the body of the deceased was lying at the spot and that the incident was witnessed by several persons of the village including Shamshad (PW-2) and Rahmat Khan (PW-3). The motive disclosed for the crime was animosity on account of the deceased being elected Gram Pradhan.
4. The inquest proceedings were completed at the spot by 17.40 hours on 03.01.2006 of which report (Ex. Ka-3A) was prepared. The informant (PW-1) is one of the inquest witnesses. Autopsy was conducted on 04.01.2006 at about 3.30 p.m. Autopsy report (Ex Ka-3) prepared by PW-4 reveals following external ante-mortem injuries on the body of the deceased:
1. An abrasion of 3 cm x 3.5 cm over left side of hip, 12 cm below from pelvic bone.
2. An abrasion of 1.5 cm x 1 cm, 12 cm above from injury no.1.
3. An entry wound of firearm of 1 cm x 1 cm x cavity deep on right side of back of chest, 9.5 cm below from inferior angle of right scapula. Margins inverted burning present with clotted blood.
4. An exit wound of firearm 4 cm x 3.5 cm on right side of lateral aspect of trunk, 21 cm below from apex of Axilla. Injury no.(3) and (4) communicates each other.
5. An entry wound 1.5 cm x 1 cm on right side of front of chest, 9 cm above from right nipple at 11 'O' clock position. Burning present. Margin inverted. This communicates to its exit wound described below as injury no.6.
6. A wound of exit of firearm 2 cm x 1.5 cm on right side of back of chest, 5.5 cm lateral from injury no.(3).
7. A wound of entry of firearm 3 cm x 1.5 cm on right side of front of abdomen 3 cm above from umbilicus at 10 'O' clock position margin inverted. Burning present with clotted blood.
8. An exit wound 3.5 cm x 2 cm on right side of back of trunk, 17 cm above from upper end of (sic). Injury no. (7) & (8) communicate each other.
The internal examination of the body of the deceased revealed:
Both lungs with pleura lacerated; and the stomach contained 75 gm of semi-digested semi-solid food material.
According to the Doctor, the death was a result of haemorrhage and shock due to ante-mortem firearm injuries; and the death could have occurred about one day before.
It be noted that 17 metallic pellets were recovered from the body of the deceased.
5. During the course of investigation, a seizure cum supardgi memo (Ex. Ka-2) of 12 bore DBBL gun lifted from the spot, which allegedly fell off deceased's shoulder and was used to fire at him, was prepared on 03.01.2006. The memo mentions that the barrel of the gun smells of burnt explosive. The Investigating Officer (I.O.) also lifted plain earth and blood stained earth from the spot of which recovery memo (Ex. Ka-10) dated 03.01.2006 was prepared. The I.O. also prepared the site plan (Ex. Ka-9) of the place of occurrence on 03.01.2006 and on 07.02.2006 recovered a .315 bore country made pistol from the appellant; of which seizure memo (Ex. Ka-11) was prepared. In respect of recovery of country made pistol from the appellant, a separate case was registered, namely, Case Crime No.94 of 2006, which gave rise to Sessions Trial No.545 of 2006.
6. After completing the investigation, the police submitted two charge-sheets. In Case Crime No.18 of 2006, charge-sheet (Ex. Ka-12) was submitted by PW-5 against the appellant under Section 302 read with Section 34 IPC, whereas in Case Crime No.94 of 2006 a separate charge-sheet (Ex. Ka-16) was prepared and submitted by PW-7. In the charge-sheet submitted against the appellant in Case Crime No.18 of 2006 it was mentioned that the other two co-accused, namely, Iliyas and Harvir have been killed in a police encounter and therefore, they have not been sent for trial. After taking cognizance on the two charge-sheets, the two cases were committed to the Court of Session resulting in two separate trials, namely, Sessions Trial No.544 of 2006 where the appellant was charged under Section 302 read with Section 34 IPC and Sessions Trial No.545 of 2006 where the appellant was charged for offence punishable under Section 25 of the Arms Act. Upon denial of the charge, both these trials commenced and were connected. Ultimately, they were decided by common impugned judgment and order.
7. During the course of trial, the prosecution examined as many as eight prosecution witnesses. PW -1 - Jalaluddin i.e. the informant who is also an eye-witness of the incident; PW-2 - Shamshad, also alleged to be an eye-witness but was declared hostile. PW-3 - Rahmat Khan, another eye witness, who, though, proved the occurrence and participation of three assailants including co-accused Harvir in the murder of the deceased but, except Harvir, he could not recognise the other two assailants, as they were not known to him. PW-4 - Dr. Satyapal Singh proved the autopsy report and stated that he found two liters of blood and 17 metallic pellets inside the body at the time of autopsy and that looking to the presence of semi-digested food in the stomach there was a possibility that the deceased might have consumed food material 2½ to 5 hours before his death. PW-4 also disclosed that there were three entry wounds and those wounds were not likely to have been caused by same firearm. PW-4 accepted the possibility of death having occurred at or about 3.30 p.m. on 03.01.2006. PW-5 is the I. O. of Case Crime No.18 of 2006, who proved various stages of the investigation such as: inquest including preparation of its report (Ex. Ka-3A); preparation of photo nash (Ex. Ka-4), challan nash (Ex Ka-6, letter to R.I. (Ex. Ka-7) and CMO (Ex. Ka-8) for autopsy; preparation of site plan (Ex. Ka-9); lifting of blood stained earth and plain earth from the spot (Ex. Ka-10); taking possession and handing over possession of DBBL gun (Ex. Ka-2) including the thumb mark / signature appearing there on; recording statement of witnesses during the course of investigation; arrest of appellant and recovery of a country made pistol from the pocket of his trouser worn by him at the time of arrest of which memo (Ex. Ka11), dated 07.02.2006, was prepared; and submission of charge-sheet (Ex. Ka-12) in case crime no.18 of 2006. He produced the country made pistol and cartridge recovered by him which were marked material exhibits 1 & 2 respectively. He also stated that the recovered items were sent for forensic examination. PW-6, constable Rajesh Kumar, proved the G.D. Entry of the written report /FIR in Case Crime No.18 of 2006 at 16.30 hours as well as preparation of its check FIR, which were exhibited as Ex. Ka-14 and Ex. Ka-13 respectively; PW-7 Sub-Inspector V.P. Singh is the Investigating Officer of Case Crime No.94 of 2006, under Section 25 of the Arms Act, he proved the various stages of investigation of that case with which we are not concerned in the present appeal as the appellant has been acquitted in that case and no Government Appeal against the order of acquittal has been filed by the State. Similarly, testimony of PW-8 - Head Constable Jai Prakash, who is a witness of recovery of country made pistol/ cartridge, is not relevant in the context of the present appeal as the appellant has been acquitted of the charge under section 25 of the Arms Act.
8. The report of forensic laboratory, U P, at Agra was obtained in respect of blood stained earth / plain earth lifted from the spot; and also the clothes worn by the deceased worn at the time of incident. The report (Ex. Ka-20) indicated that on the blood stained articles there was presence of blood though its origin, due to disintegration, could not be determined in the soil; whereas, in the clothes sent for forensic examination presence of human blood was found.
9. Incriminating materials appearing in the prosecution evidence were put to the accused for recording his statement under Section 313 CrPC. The accused denied his involvement in the crime; claimed that the recovery of country made pistol at the time of arrest is false. A defence witness, namely, Bashir, was examined to discredit the recovery and arrest at the date and time alleged, which we do not propose to address as the appellant has been acquitted of the charge under section 25 of the Arms Act.
10. The trial court after considering the prosecution evidence found that the prosecution was successful in proving the charge of offence punishable under Section 302 read with Section 34 IPC but failed to prove the charge under Section 25 of the Arms Act.
11. As the current appeal is limited to questioning the conviction and sentence recorded by the trial court under Section 302 read with Section 34 IPC in Sessions Trial No.544 of 2006, learned counsel for the parties have confined their submissions in respect thereof.
Submissions on behalf of the Appellant
12. Sri Mohd. Samiuzzaman Khan, learned counsel for the appellant, submitted as follows :
(a) It is a case where there is a solitary eye-witness to support the prosecution case as against the appellant because the other two eye-witnesses, namely, PW-2 and PW-3, have not supported the prosecution case therefore, unless and until the testimony of solitary eye-witness is of an unimpeachable character and is wholly reliable, conviction ought not to be based on the same. He submits that in so far as PW-1 is concerned, if his testimony is read as a whole it would suggest that as soon as the assailants were spotted, the deceased alighted from the motorcycle to run away from the spot and PW-1 escaped on his motorcycle therefore, PW-1 had no opportunity to witness the incident. The presence of PW-1 is also doubtful for the reason that, according to him the deceased was not well and had no food intake since the morning whereas the autopsy report suggested presence of food material in the stomach, which means that PW-1 and the deceased were not together. The statement of PW-1 that he had gone to fetch medicines with the deceased is not truthful because PW-1 could not disclose the shop from where medicines were purchased. Moreover, PW-1 could not disclose the reason as to why they took a turn to the spot where they were attacked by the accused party. Absence of reason to take a turn to reach the place of incident also suggests that PW-1 was not with the deceased at the time of the incident.
(b) PW-3, though discloses the presence of Harvir as one of the assailants amongst the three who attacked the deceased with firearms but, does not disclose the presence of the appellant at the spot therefore, there is a doubt with regard to the participation of the appellant in the incident.
(c) According to PW-1 after lifting the DBBL gun that fell on the spot, Iliyas fired two DBBL gunshots on the abdomen of the deceased but there appears single gunshot wound on the abdomen. Thus, the ocular account rendered by PW-1 being in conflict with medical evidence is unworthy of acceptance.
(d) PW-2, who has been declared hostile in his cross-examination has stated that Raees Khan (deceased) was chased by few miscreants who killed him. This suggests that some unknown persons committed the crime.
(e) From the statement of PW-1, it appears, within twenty minutes of the incident the police had arrived at the spot and one Gaus Mohammad had gone to inform the police, which suggests that the first information report was not lodged at the first opportunity but was lodged much later, which renders the presence of PW-1 at the spot doubtful.
(f) Summing up his submissions, learned counsel for the appellant submitted that this is a case where unknown assailants killed the deceased and the first information report was lodged by guess work on past enmity and political rivalry and therefore, it is a fit case where the appellant should be extended benefit of doubt more so when he has been acquitted of the charge under section 25 of the Arms Act.
Submissions on behalf of the State
13. Per contra, learned AGA submits that this is a case where the occurrence took place in broad day light; the first information report was promptly lodged; the inquest was conducted on the same day and the inquest papers reveal that the case had been registered; there is no dispute or challenge to the spot where the occurrence took place; no suggestion has been put to PW-1 that he was not with the deceased at the time of the incident and even PW-3, declared hostile, has disclosed that PW-1 and the deceased were seen together at the spot therefore, there is no doubt as to the presence of PW-1 at the spot; the ocular account finds support from the medical evidence which not only suggests that the incident could have occurred on or about the time when it is stated to have occurred by the prosecution but also that the injuries were sustained by the deceased in the manner suggested by the prosecution and from three weapons, suggesting participation of three assailants as is the prosecution story. It was submitted that although it might not have been disclosed as to for what purpose the deceased and PW-1 were there at the spot when they were attacked but that, by itself, is not a ground to disbelieve the ocular account because neither suggestion has been put to the eye-witness to challenge the spot where the incident occurred nor suggestion is there to challenge the presence of PW-1 at the spot. Further, mere presence of semi-digested food in the stomach of the deceased would not render the presence of PW-1 doubtful as it is possible that PW-1 might not have been aware with regard to consumption of food article by the deceased before they had left their house. In so far as the statement of PW-2 is cornered, in his cross-examination, he stated that: "MAIN NISHCHIT RUP SE NAHI KAH SAKTA KI FAYAR KARNE WALON ME ILIYAS, HARVIR, MUNAWWAR ME KOI THA YA NAHI", which means that, firstly, he admits the incident, and, secondly, he is not sure with regard to the presence or absence of the accused persons at the spot. He submits that, under the circumstances, the testimony of PW-2 cannot be utilised to discredit the testimony of PW-1 and, similarly, the testimony of PW-3 cannot be utilised to discredit the testimony of PW-1 because PW-3 also discloses participation of three persons though, out of them, he could recognise only Harvir as the other two were not known to him. Seen in that context, rather, both PW-2 and PW-3 support the prosecution story with regard to the manner in which the incident occurred as narrated by PW-1 and their testimony corroborates the statement of PW-1 to that extent and also certifies his presence at the spot. Learned AGA therefore submits that this is a case where the prosecution has been able to prove the charge against the appellant beyond reasonable doubt hence the appeal is liable to be dismissed.
Prosecution evidence
14. Having noticed the rival submissions, before we proceed to assess and appreciate their respective merit, it would be apposite to notice the testimony of the prosecution witnesses in some detail.
15. PW-1 is the brother of the deceased and the informant of the case. He states specifically that he knew the accused Munawwar (the appellant) as he used to visit PW-1's village. PW-1 also states that he knows the other two co-accused Iliyas and Harvir, who have been killed in police encounter. There is no challenge to this part of PW-1's testimony. In respect of the incident, PW-1 states that he and his brother - the deceased (Raees Khan) had gone to Sangrampur to fetch medicine as his brother -the deceased was not feeling well. While they were returning on a motorcycle, which was being driven by PW-1, the deceased, who was a pillion rider and holding the licensed DBBL gun of the informant, on reaching village Sirsawar, told PW-1 to take a turn to visit Bahoran. As soon as PW-1 took the turn towards Bahoran's house, near Chhavi Lal's house, they were spotted by the accused Iliyas, Harvir and Munawar (appellant) who came in front of the motorcycle and shouted that they had been in search for them (the victims) and therefore the victims be not let off. Seeing the accused persons, the victim (Raees Khan) jumped off from the motorcycle and ran; in that process, the DBBL gun which he was carrying fell off his shoulder, which was picked up by co-accused Iliyas. Raees Khan (victim) to save himself ran towards the house of Sardar Mewa whereas the three accused chased him and fired at him and, after surrounding him killed him in front of the house of Sardar Mewa. PW-1 stated that Iliyas fired from the DBBL gun which he had picked from the spot whereas Harvir and Munawwar fired from their respective country made pistols. PW-1 stated that the incident was also witnessed by Shamshad (PW-2) and Rahmat Khan (PW-3). Elaborating upon his narration of the incident, PW-1 stated that on being challenged by the villagers, the accused persons escaped towards the east by leaving the DBBL gun at the spot. PW-1 stated that the first information report of the incident was scribed by Hasan Khan on which he had put his thumb impression after the same was readout to him and understood by him. He proved the written report, which was marked as Ex .Ka-1. PW-1 also stated that the police had arrived at the spot and conducted inquest; the report of which, bears his signature. PW-1 also stated that the DBBL gun was handed over to the police by him at the spot of which custody was handed over to PW-1 and a recovery / custody memo (Ex . Ka-2) was prepared.
In his cross-examination, PW-1 stated that the distance of his house from the place of occurrence is about 3-4 kms or may be 1.5 - 2 kms. He could not tell the name of the Doctor from whom the deceased took medicine at Sangrampur because he was sitting outside the Doctor's shop. PW-1 stated that the deceased had been a Pradhan for three months. He admitted that the accused Munawwar's vote did not fall in his constituency. He stated that he does not know the name of the father of Munawwar but he knows Munawwar from before. On further cross-examination, he stated that PW-1 and his brother had left home at about quarter to 3 pm to take medicine; and as the deceased was having fever, he had not consumed any food material since the morning though, had consumed tea in the morning at about 8.00 a.m. On being questioned whether money for the medicines was paid by the deceased, PW-1 stated that the deceased had money. In respect of arrival of the police at the spot, PW-1 stated that the police arrived at the spot in twenty minutes. Gaus Mohammad, a fellow villager, took PW-1's motorcycle to inform the police. Investigating Officer upon arrival stayed there for about half an hour and inspected the spot, sealed the body of the deceased and took the body to Chowki Davtari where it was kept overnight. He reiterated that he had lodged the report on the date of occurrence and that report was written in the village where the incident took place. He also stated that when I.O. had left the place he had got the report (Ex .Ka-1) written and had it lodged at the police station.
In respect of the presence of Shamshad (PW-2) and Rahmat (PW-3) at the spot he stated that they were present at the spot to take delivery of a buffalo. In respect of the arrival of Hasan Khan, scribe of the first information report, he stated that he arrived twenty minutes later. He stated that the distance between Bahoran's Chabutara and the spot where the deceased was surrounded is about 30 paces. He further stated that at the time when shots were fired, the witnesses were sitting on the Chabutara. He stated that he had pointed out to the I.O. the place of the incident.
On further cross-examination, PW-1 stated that the deceased after alighting from the motorcycle must have ran 50 paces. He stated that on or about the spot there are houses all around and many people had witnessed the incident. In respect of the nature of the weapons used to cause injury, PW-1 stated that his licensed DBBL 12 bore gun was picked up from the spot and used by accused Iliyas to fire two shots at the abdomen of the deceased; and the remaining two accused had fired from .315 bore country made pistol. On further cross-examination, at one place, PW-1 stated that as soon as Raees Khan (the deceased) jumped off the motorcycle and ran, he escaped on his motorcycle and returned back after collecting men from his village and by the time he returned, he found Raees Khan lying dead. Immediately, after stating as above, PW-1 clarified that Raees Khan was shot in his presence. This portion of PW-1's statement is extracted below: "JAISE HI RAEES KHAN MOTORCYCLE SE UTARKAR BHAGE MAI MOTORCYCLE LEKAR BHAG GAYA. GAON PAHUNCHKAR LOGON KO LIWAKAR LAYA. JAB LAUTKAR AYA TO RAEES KHAN MARE PADE THE. RAEES KHAN KE FAYAR MERE SAMNE MARE THE".
On being questioned about the distance from which shots were fired, PW-1 stated that the distance between the deceased and the accused at the time when shots were fired at the deceased must have been 2 - 4 paces. He also stated that when his brother ran towards the Chhappar of Sardar Mewa, there also, he was shot at. PW-1 clarified that one shot was fired while the deceased was running and two were fired when he fell near the Chhappar. He added that after running about 50 paces the deceased fell. He stated that the deceased ran towards north and the accused chased him from south. PW-1 stated that when the deceased was running he was shot at the chest region by .315 bore pistol. He also stated that where the deceased fell, blood had spilled there. He added that the deceased was wearing slippers and while running his slippers slipped away, which were later lifted by the police. He denied the suggestion that the deceased was killed by unknown assailants.
16. PW-2 Shamshad, who was declared hostile, stated that he had not witnessed the murder. When the prosecution cross-examined him and confronted him with his statement under section 161 CrPC, he denied having given any such statement. But, stated that Harvir, Iliyas and Munawwar are hardened criminals and that Iliyas and Harvir have been killed in police encounter. PW-2, however, denied the suggestion that he is not disclosing the truth because he is afraid.
On being cross-examined by the defence, he stated that the police had searched the body of the deceased in his presence and had found a 12 bore pistol in a broken condition. He added that the police arrived after an hour of the incident. He further added that the first information report was written by Hasan Khan on his dictation and when the report was being written, the informant was outside the police station. He added that Munnawar used to look after agricultural work of Raees and Raees had dues payable to Munnawwar. He stated that miscreants use to visit Raees and he saw few miscreants chasing the deceased (Raees) and firing at him upon which, the villagers returned fire and in that exchange of fire the deceased died. He further stated that he cannot with certainty say that Iliyas, Harvir and Munawwar were not amongst them who fired at the deceased.
17. PW-3 Rahmat Khan stated that he knows Harvir but does not know Iliyas and Munawwar. He stated that he and Shamshad had gone to purchase buffalo at village Sirsawar where they met Jalaluddin (PW-1) and Raees Khan (the deceased). He stated that in his presence Harvir and two of his associates had killed the deceased. He stated that except Harvir he was not able to identify the other two accused. He stated that he had not seen the present appellant (Munawwar) at the spot. He also stated that he had not seen Munawwar firing at the deceased.
At this stage, the witness was declared hostile by the prosecution and was cross-examined. On being confronted with the statement recorded under Section 161 CrPC, he denied having given any such statement and he also denied the suggestion that he has resiled from his earlier statement because of fear.
18. PW-4 proved the autopsy report, the contents of which have already been noticed above. He stated that there were three gunshot wounds of entry and the dimensions of injury no.7 indicated that it was from a different weapon though, in respect of other injuries, he could not tell whether they were from different firearms. He stated that death could have occurred on or about 3.30 p.m. on 03.01.2006 though, the estimated time of death could vary by six hours either side. He also stated that stomach of the deceased contained 75 gms of semi-digested food material suggesting that he may have eaten 2.30 hours to 5.00 hours before his death.
19. PW-5 Hariram Nimla is the Investigating Officer who proved various stages of investigation already noticed above including preparation of site plan at the pointing out of the informant which tallied with what he saw at the spot. In cross-examination, he stated that he does not clearly remember whether he visited the spot with the informant though, as far as he remembers, he directly visited the spot. He stated that he did not record the statement of the Doctor at Sangrampur and he also did not record the statement of Bahoran. He also stated that from the body of the deceased he did not recover any medical parcha (prescription) or medicines and that from deceased's body except for the clothes that he had worn nothing else was recovered. He stated that in the site plan he had not shown the place where the accused were standing because the deceased was shot while he was running and the accused were chasing him. He also stated that at the time of the incident there was none present in the house of Sardar Mewa. He denied the suggestion that at the time when the investigation started the sun had set.
In respect of taking possession of the gun and handing it back to the informant, PW-5 stated that he is not sure whether the informant had come with the gun at the police station. Then he stated that the gun was produced before him at the time of inquest. He did not rule out the possibility that the gun might have been discovered lying at the spot after the informant had arrived at the police station to lodge the report. He reiterated that the informant had come to the police station to lodge the report but had not asked the informant with whom he left the body because it is natural to expect that family members of the deceased would have had arrived at the spot. PW-5 stated that he had inspected the gun, which had no empty cartridge, and that, at the spot, he did not discover empty cartridge.
In respect of collecting information about the motor cycle, PW-5 stated that he did not collect any information in respect thereof.
In respect of the case under section 25 Arms Act, he stated that he had got the first information report of that case registered but he did not investigate that case. He denied the suggestion that the accused-appellant was arrested on same day. On recall, he produced clothes etc. which the deceased had worn at the time of the incident, which were marked material exhibits.
20. PW-6 Rajesh Kumar proved registration of the first information report and denied the suggestion that the first information report was lodged after the post-mortem.
21. PW-7 Sub-Inspector V.P. Singh proved the various stages of investigation of Case Crime No.94 of 2006 under Section 25 of the Arms Act and submission of the charge-sheet in that case. Note : As the appellant has been acquitted of the said charge, we do not propose to notice his testimony.
22. PW-8 Head Constable Jai Prakash sought to prove the recovery of the country made pistol from the appellant in connection with Case crime No.94 of 2006 under Section 25 of the Arms Act. Note : As the appellant has been acquitted of the said charge, we do not propose to notice his testimony.
Analysis
23. Having noticed the entire prosecution evidence and the submissions advanced by the learned counsel for the parties, we notice that the thrust of the submissions of learned counsel for the appellant is on following aspects : (a) that PW-1 was not present with the deceased at the time of occurrence; (b) that even if PW-1 was present with the deceased at the time of the incident, as soon as the deceased alighted from the motorcycle, PW-1 effected his escape and therefore, he cannot be considered an eye-witness of the incident; and (c) the incident did not occur in the manner alleged as from the statement of PW-2 it appears that there were some unknown assailants along with named accused Harvir and that the villagers had also fired at the assailants and in that exchange of fire, the deceased was killed.
24. Before we embark upon to analyse the submissions, it would be useful to notice the key features of the prosecution case on which there appears no serious challenge. These are: (i) the place of the incident i.e. the spot where the incident occurred as depicted in the site plan, which has been duly proved and exhibited and also finds support from oral testimony; (ii) the time of the incident; and (iii) that the deceased suffered a minimum of three gun shot wounds of entry and exit which communicate with each other. In fact, there is no challenge to the autopsy report which also notices that 17 metallic pellets were recovered from the body of the deceased.
25. We have carefully scrutinised the testimony of witnesses of fact. From the testimony of PW-1, we notice that he was with the deceased as a driver of the motorcycle on which the deceased was a pillion rider holding the licensed DBBL gun of the informant on his shoulder. When the accused party spotted them and launched an attack, the deceased jumped off from the motorcycle and ran towards the Basti (places where houses are located). The deceased was chased and fired at by the assailants and when he fell, after running few paces, near Sardar Mewa's Chhhappar, he was surrounded and killed. The site plan of the spot (Ex. Ka-9) prepared by the I. O. discloses spot 'B' on the Khadanja (a path laid by bricks) road where the motorcycle of the deceased, coming from east, stopped and the deceased jumped off the motorcycle to run and escape the assailants, who were coming from the west. This spot B is at a junction where the village Basti Gali (narrow lane) coming from north meets the Khadanja road. As the accused were right in front of the victim party, the deceased ran in that Gali of the village, perhaps to have safety of people around him, but, he was chased by the assailants. The deceased ran towards north west in that Gali where he was cornered and killed at the Chhappar of Sardar Mewa.
26. From the testimony of PW-1, it appears, one shot was fired at the deceased while he was either running or about to run and the remaining two shots were fired when he had reached the Chhappar of the house of Sardar Mewa at the end of that Basti Gali. When we notice the autopsy report, we find that there is an entry wound on the right side of back chest. There is also an entry wound on front side of chest and there is an entry wound on the abdomen. The entry wound of the abdomen is of much larger dimension and appears to be a result of .12 bore weapon whereas the other entry wounds are of lesser dimensions. The Doctor also disclosed that the injuries could have been caused by different weapons. The ocular account narrated by PW-1 also discloses use of three weapons. Learned counsel for the appellant submits that the ocular account is specific in respect of causing two gunshot injuries with DBBL gun on the abdomen region whereas there is single gunshot injury on the abdomen and therefore it appears that the PW-1 had not witnessed the incident.
27. When an incident of the nature as is in the instant case occurs, graphic description of each and every detail with regard to each part of the incident is humanly not possible and therefore what is to be ascertained is whether the incident was actually witnessed or not by the person who seeks to prove its occurrence and whether the ocular account is corroborated with other evidences. In the instant case, we find that there is virtually no suggestion to PW-1 to challenge his presence with his brother at the time of the incident. Even the other two witnesses who were declared hostile have not denied the presence of PW-1 at the spot and have not disputed the spot. The argument that PW-1 made an incorrect statement that the deceased had not consumed any food since the morning therefore, he had not been with the deceased is also liable to be rejected. Because, according to PW-4's opinion, the deceased had consumed some food material 2.30 to 5.00 hours before his death. As the deceased left home with PW-1 at quarter to 3.00 p.m. and he died on or about 3.00 p.m., he may have consumed some thing at home of which PW-1 was not aware of. Thus, on this ground alone, the presence of PW-1 with the deceased at the time of incident cannot be doubted.
28. The defence has also not succeeded in proving that the first information report was ante-timed. Though, however, learned counsel for the appellant did argue that as the police had arrived at the spot even before lodging of the first information report therefore, no one had seen the incident and, later, the first information report was lodged on guess-work.
29. The above argument does not appeal to us because PW-1 in his statement had stated that he had offered his motorcycle to Gaus Mohammad to call the police and when the police had arrived within half an hour thereafter, he had gone to lodge the report. This statement is acceptable and believable because it is quite natural that the police takes rounds in an area within its jurisdiction and whenever an incident occurs the police often arrives at the spot even before lodging of the first information report. Under the circumstances, since the report has been lodged within an hour and PW-1 had motorcycle with him, it cannot be said that the first information report was either too prompt to be called ante-timed or too delayed to generate a feeling that the prosecution story is based on guess work. Otherwise also, there is no doubt with regard to the place of the incident and the manner in which the incident occurred because, even according to PW-3 who could not recognise Munawwar, as he was not known to him, Harvir had two other associates who participated with him in the killing of the deceased. Importantly, no suggestion has been given to PW-3 to demonstrate that he knew Munawwar from before and therefore, if Munawwar had been present at the spot, he would have been recognised by him. Importantly, PW-3 deposed that Munawwar was not known to him. Under the circumstances, if PW-3 only knew Harvir (the other co-accused) and could not recognise Munawwar at the spot, particularly, when bullets were raining, his testimony, in our view, cannot be utilised to discredit the testimony of PW-1 with regard to appellant's participation in the crime. Similarly, PW-2's testimony, who was declared hostile, cannot be utilised to discredit PW-1 or to infer that the incident occurred in some other manner because at the very beginning of his deposition he stated that he had not witnessed the murder.
30. In so far as PW-1's testimony being in conflict with medical evidence is concerned, suffice it to say that the medical evidence does not at all discredit the ocular account as there appears an injury of DBBL gun shot on the abdomen of the deceased. Importantly, the dimension of entry wound on the abdomen is much larger and in addition thereto 17 metallic pellets were recovered from the body at the time of autopsy. Interestingly, there was a corresponding exit wound communicating with the entry wound on the abdomen. All of this not only proves that a 12 bore shot was made on the abdomen but also gives rise to a possibility that the 12 bore DBBL weapon may have had two cartridges of different nature, one with pellets and the other without. Thus, it could also be possible that both shots may have gained entry into the body from the same spot, particularly, when the two shots were fired from the same weapon in quick succession from a close distance. It is equally possible that the second shot may have missed the body but not noticed by the witness while he was in a state of panic. Under the circumstances, the discrepancy pointed out by the learned counsel for appellant in the ocular account with the medical evidence is not such that renders the ocular account improbable or contrived.
31. Another submission of the appellant's counsel was that DBBL gun was not forensically examined and that no empty cartridges were recovered from the spot. In this regard it be submitted that it is well settled that lapses in investigation by itself are not sufficient to defeat an otherwise credible and trustworthy ocular account. We find the ocular account rendered by PW-1 trustworthy, natural and acceptable more so because, it finds corroboration from the surrounding circumstances as well as medical evidence.
32. At this stage, we may notice to reject another submission of the learned counsel for the appellant, which is, that, according to the statement of PW-1 (extracted in paragraph 15 above), during cross-examination, he escaped when he spotted the assailants and, therefore, he could not be a witness of the incident. In this regard, we may observe that the statement of a witness is to be appreciated after reading it in its entirety and not by reading a sentence in isolation. Notably, the question in reference to which the statement was made during cross-examination is not noted; and, otherwise also, that statement is immediately followed by PW-1's assertion that he witnessed all the shots fired at the deceased. In our view, therefore, keeping in mind that this is a broad day light murder of which a prompt named first information report was lodged, which is supported by an ocular account that finds corroboration from the medical evidence as well as other surrounding circumstances, the prosecution has succeeded in proving the guilt of the appellant beyond reasonable doubt and therefore, we do not find any merit in this appeal. The appeal is consequently dismissed. The accused-appellant, who is in jail, shall serve out the sentence awarded to him by the trial court.
33. Let a copy of this order be certified and sent along with the record to the trial court for information and compliance.
Order Date :- 8.2.2022.
Rks.