Allahabad High Court
Chaman And Irshad vs State Of U.P. on 27 September, 2013
Bench: Dharnidhar Jha, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Court No. - 42
Death Reference No.10 of 2010
With
CAPITAL CASE No. - 7409 of 2010
Appellant Chaman And Irshad
Respondent State Of U.P.
Counsel for Appellant From Jail,Manoj Kumar Srivastava
Counsel for Respondent Akhilesh Singh,G.A.
Hon'ble Dharnidhar Jha,J.
Hon'ble Pankaj Naqvi,J.
(Delivered by Hon. Pankaj Naqvi,J)
1. The present Death Reference alongwith connected Capital Appeal arises out of judgment of conviction and sentence dated 23.10.2010 passed by learned Additional Sessions Judge, Court No.1, Hathras in Sessions Trials No.192 and 193, both of 2007, by which Chaman and Irshad were convicted for charge under Section 302/34 I.P.C, and sentenced to death. Accused Chaman, was also convicted for charge under Section 4/25 of the Arms Act and sentenced to three years rigorous imprisonment alongwith fine of Rs.2,000/- and in default was directed to undergo six months additional imprisonment.
2. The reference was made by the Learned Trial Judge for confirming the sentence of death under Section 366 Cr.P.C, in respect of Chaman and Irshad who also challenged their conviction and sentence in the connected Capital Case Appeal No.7409 of 2010.
3. We have heard the death reference and the connected capital appeal preferred by the convicts arising out of the same judgment of conviction and order of sentence, and the same are being disposed of by this common judgment.
4. The prosecution case has its genesis in a written report dated 31.1.2007 lodged by Akhtyar (P.W.2) wherein he alleged that he alongwith Shabbir had taken the fields of one Jawahar Baheriya Chauhan for cultivation on annual premium of Rs.3,000/- for a period of one year in which they had sown Barseem (fodder grass). On the fateful day, i.e, on 31.1.2007 at about 3 P.M. his nephew Hashim son of Mushtaq and Rehan son of Shabbir, both aged 12 years had gone to the fields by their cycle to collect Barseem. It was further alleged that the accused persons, namely, Chaman and Irshad, with whom the informant's family had previous enmity and pending litigations, came around 3.30 P.M. armed with knives, when Hashim and Rehan were cutting Barseem in the aforesaid field. Chaman caught hold of Rehan. Hashim attempted to run away, but was intercepted in the same field of green fodder by acused Irshad. Thereafter, both Chaman and Irshad, with their knives slit the throats of Rehan and Hashim respectively. This incident was witnessed by Nahna (P.W.3) and Aslam (P.W.1) whose yellings, attracted the attention of the persons working in the nearby fields, but the accused persons made good their escape.
5. P.W.6 constable Bhagwan Singh of P.S. Sadabad, Hathras on 31.1.2007 drew up the F.I.R on the basis of the aforesaid written report, under his signature (Exhb Ka-5) lodged by the informant, made relevant entries in the general diary at Entry no.30 at 18:15 hours. After closure of investigation, charge sheet was submitted under sections 302/34 I.P.C and Section 25 of the Arms Act and the accused persons were put on trial.
6. The prosecution in support of the charges examined 11 witnesses. P.W.1 Aslam, an eyewitness, stated that he alongwith Nahna (P.W.3) were cutting Bathua in the potato field of one Rama Shankar and Rehan and Hashim (victims) were cutting Barseem in the nearby fields of Jawahar and Hari Singh. At the spot accused Irshad, Chaman and Arman came armed with one knife. Accused Arman and Chaman caught hold of Rehan and Chaman slit the throat of Rehan (deceased), and Irshad caught hold of Hashim, whereupon he saw Hashim yelling and witnessed that Chaman proceeded towards Hashim and with the same knife he slit Hashim's throat too. On distress calls of P.W.1 Shahnshah and Kalam (both not examined) arrived at the scene but all the three accused fled away.
7. P.W.2 Akhtyar was the informant and not an eye witness to the occurrence. He was allegedly informed about the occurrence by P.W.1- Aslam (eyewitness). He was subsequently informed by Kalam and Shahnshah (both not examined) that they had seen Arman, Irshad and Chamn running away with a knife from the scene of occurrence. He further alleges his previous enmity existing with the accused on account of pending litigations in respect of an occurrence which took place 7-8 years ago, in which father of accused Chaman and Irshad were accused. P.W.3 Nahna stated that he alongwith Aslam (P.W.1) were cutting Bathua in the fields of Jawahar and Hari Singh. Chaman, Arman (case pending before the Juvenile Board) and Irshad came armed with a single knife. Arman caught hold of Rehan and Chaman slit Rehan's throat. Hashim raised an alarm and attempted to run away, but was caught hold of by Irshad and Chaman slits Hashim's throat. On cries for help, Kalam and Shahnshah (both not examined) arrived at the scene, but the accused fled away. P.W.4 Nadeem was a witness to the recovery of ordinary earth and blood stained earth from the spot and is a signatory to the fard (Exbt Ka-2 and Ka-3). P.W.5 was the constable who accompanied the I.O, to the scene of occurrence and in whose presence the inquest on the dead bodies was carried out. He also took the dead bodies alongwith the police papers, and letters for R.I and the C.M.O, for post-mortems examination. P.W.6 was the constable who registered the F.I.R (Exbt Ka 5) on the basis of the written report. P.W.7 was posted as a constable on 1.2.2007 at the police station,who on the basis of a recovery memo registered F.I.R under Section 25 of the Arms Act, against Chaman. P.W.8 Ranvir Singh was the I.O of the case. He visited the scene of occurrence and prepared the site plan (Exhbt Ka 9). He instructed S.I Sripal to carry out the inquest proceedings. He prepared a fard of blood stained earth and ordinary earth and recovered the weapon of offence and the trouser worn by the accused at the time of commission of crime, on the pointing out of the accused, from their houses in the village. He recorded the statements of Shahanshah and Akram, the witnesses to the recovery of the weapon of offence and the trouser ( both not examined) on 2.2.2007 and that of P.W.3, Nanha on 6.2.2007 and P.W.1 Aslam on 12.2.2007. P.W.9 was the Doctor who conducted the autopsies on the dead bodies of the deceased who found incised wounds on the neck of the deceased persons, which was sufficient in the ordinary course of nature to cause their death.
8. The defence alleged false implication and non-participation of the appellants in the occurrence.
9. Shri Manoj Kumar Srivastava, learned counsel for the appellants submits that there are inherent and material contradiction on most crucial aspects of the case in the testimony of P.Ws 1 and 3, the two eye witnesses which renders the very presence of these witnesses at the scene of occurrence extremely doubtful and thus, rendering the prosecution story highly vulnerable. He also submits that unexplained delayed recording of the statements of P.Ws 1 and 3 casts a grave doubt as regards the veracity of the prosecution story and the claim also of the witnesses regarding having seen the occurrence.
10. Per contra Shri Akhilesh Singh, learned Government Advocate submits that it was a case where two young lives aged about 12 years were lost in a most gruesome and diabolical manner, and clinching direct evidence pointed towards the involvement of the accused persons, beyond a reasonable doubt, the sentence of death was appropriately passed treating it to be the rarest of rare cases. He finally submits that lapses if any on the part of investigating agency, would not enure to the benefit of the accused persons.
11. P.W.1 (Aslam) and P.W.3 (Nanha) were the only eye witnesses to the occurrence. P.Ws 1 and 2 are first cousin's on the maternal side. P.W.2 (Akhtyar) is the informant.
12. The F.I.R. alleges only two persons, i.e, the appellants Chaman and Irshad as accused, who were carrying knives and who slit the throats of Rehan and Hashim (both deceased) respectively. This incident is alleged to be witnessed by P.W.1 (Aslam) and P.W.3 (Nanha) who were plucking bathua near the scene of occurrence. However P.W.1, an eyewitness noticed a third accused, i.e, Arman, and alleged that all the three accused possessed only one knife. P.W.1 at page 22 of the paper book in examination in chief stated that Arman and Chaman caught hold of Rehan and Chaman slit the throat of Rehan. He further stated at the same page that Irshad had caught hold of Hashim, and that it was only upon the yelling's of Hashim, P.W.1 saw that Chaman had reached near Hashim and slit the throat of Hashim too. Only upon shouts of P.W.1, Shahanshah and Kalam (both not examined) arrived at the scene, but till then the accused persons had fled away.
13. Analysing the aforesaid evidence what we find is that qua F.I.R. which names only Chaman and Irshad as accused persons, P.W.1 named a third accused, Arman. The F.I.R. alleges possession of two knives whereas P.W.1 speaks about one knife possessed by all three accused persons. Further from the testimony of P.W.1 at page 22 it appears that he was not a witness to the slitting of Rehan at the hands of Chaman as the said witness was not stating as to how and in what manner the overt act was committed by accused Chaman in respect of deceased Rehan. P.W.1 simply stated that Chaman slit Rehan's throat. P.W.1 was no doubt stating that when Irshad caught hold of Hashim, Hashim yelled and that it was only upon the yelling of Hashim, that P.W.1 saw that Chaman had reached near Hashim, and had slit Hashim's throat with the same knife. If P.W.1 was a witness to the slitting of Rehan then in all probability before slitting of Rehan was carried out, either Hashim who was close by to Rehan would have yelled or Rehan himself would have yelled, fearing danger to his life or during the process of assault, which would have attracted the attention of P.W.1, but P.W.1 was not stating as to how and under what circumstances he saw the slitting of Rehan. Yet another material variation on a crucial aspect of the case qua F.I.R. was that P.W.1 at page 22 of the paper book was stating that it was Chaman who was responsible for both the deaths, whereas as per the F.I.R, it was Chaman who slit Rehan's throat and Irshad slit Hashim's throat.
14. A perusal of the evidence in cross examination of P.W.1 as may appear at page 25 of the paper book would further reveal that P.W.1 Aslam does not appear to be an eye witness to the occurrence as Shahnshah and Kalam (both not examined) are alleged to have stated to him that the throat of Hashim (deceased) was also slit by Chaman. However, the smartness of this witness is indicated by the subsequent line of statement wherein he stated that he was not labouring under any erroneous impression that Hashim's (deceased)throat was slit by Irshad. However he again faulters in the subsequent line when he states that both he and P.W.3 thought that Hashim's throat was slit by Irshad. He further states that there was a rumour in the village as to who slit whose throat? Finally at page 26 of the paper book P.W.1 was stating that it was Shahanshah and Kalam (both not examined) who stated that it was Chaman who slit Hashim's throat. P.W.1 was also stating at page 26 of the paper book that it was Shahanshah and Kalam (both not examined) who witnessed the occurrence from a very close distance. Thus from the above line of evidence, that Shahanshah and Kalam were stating as to who had slit the throats of the deceased and that there was a rumour or confusion in the village regarding it creates a doubt in the claim of P.Ws 1 and 3 being witnesses to the occurrence.
15. What we find from the statement of P.W.1 at page 25 and 26 of the paper book is that this witness was oscillating from one version to another and does not fix the identify of the assailants with certainty and firmness. If this was the credibility of a witness who claims himself to be an eyewitness then it would be highly unsafe for the court to act upon such a testimony where the witness is not able to maintain even a substantial consistent stand as regards the most crucial aspect of the case as to who slit whose throat. P.W.1 may be a rustic witness and the witness has a tendency to embellish and improve his case to enhance the veracity of the prosecution story. But where the witness is so ambivalent that he was blowing hot and cold in the same breath as regards identity of the assailants, the said variations cannot be brushed aside as being minor and insignificant.
16. P.W.3 when confronted with his previous statement under Section 161 Cr.P.C, wherein he is alleged to have stated that he came to know through Shahnshah and Kalam (both not examined) that Hashim's throat was also slit by Chaman and that Arman too had slit Rehan's throat, the said statements were denied by P.W.3 as having never been said. We are not satisfied with the quality and credibility of the evidence of P.W.3 as being a witness to the occurrence and the same makes his (P.W.3) presence extremely doubtful at the scene of occurrence.
In view of the aforesaid discussion regarding quality of evidence of P.W.1 and P.W.3 we are of the view that they cannot be considered as reliable and credible witnesses who may have witnessed the occurrence and that it would be absolutely unsafe to rely upon their testimony to convict the accused persons.
17. Coming to the delayed examination of the witness under Section 161 Cr.P.C. the Apex Court in the case in Balakrushna Swain v. State of Orissa, A.I.R. 1971 S.C.804 has held that unjustified and unexplained long delay on the part of the I.O, in recording of the statement of a witness during investigation would render evidence of such a witness unreliable. Similar view was taken by the Apex Court again in Kali Ram vs. State of H.P., A.I.R. 1973 S.C. 2773, wherein the Apex Court observed in paragraph 15 as under:-
15. We may first deal with the deposition of Parma Nand (PW 14). The deposition consists of three parts. The first part relates to the stay of the accused with Parma Nand at his shop in village Paliara on September 28 and 29, 1968 when some fish and liquor are stated to have been taken by the accused and Parma Nand. This part of the deposition relates to an innocuous circumstance and hardly connects the accused with the crime. The second part of the deposition is to the effect that the accused on the evening of September 29, 1968 told Parma Nand that he had to go to the house of Dhianu and that Parma Nand showed at the instance of the accused the way which leads to the house of Dhianu at a distance of three or four miles from the shop of Parma Nand. We find it difficult to accept this part of the deposition of Parma Nand. Parma Nand admits that he came to know of the murder of Dhianu and Nanti about four days after those persons were found to have been murder ed. It would therefore, follow that Parma Nand came to know of the murder of Dhianu and Nanti on or about October 4, 1968. Had the accused left for the house of Dhianu deceased on the evening of September 29, and had Parma Nand PW come to know that Dhianu and Nanti were murdered in their house, this fact must have aroused the suspicion of Parma Nand regarding the complicity of the accused. Parma Nand, however, kept quiet in the matter and did not talk of it. The statement of Parma Nand was recorded by the police on December 11, 1968. If a witness professes to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness keeps silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, is bound to lose most of its value. No cogent reason has been shown to us as to why Parma Nand kept quiet for over two months after coming to know of the murder of Dhianu and Nanti about the fact that the accused had left for the house of the deceased shortly before the murder. We are, therefore, not prepared to place any reliance upon the second part of the deposition of Parma Nand. The third part of the deposition of Parma Nand PW pertains to the shout of the accused from outside the shop of Parma Nand at about mid-night hour on the night of occurrence. This part of the deposition has not been accepted by the trial court and the High Court and we find no valid reason to take a different view.(emphasis supplied) Applying the aforesaid legal position on the facts of the present case we find from the testimony of P.W.1 that he admits that a day after the occurrence the Investigating Officer (I.O.) visited the village and made requisite inquiries about the case but not from him. He also admits that his house and that of the informant P.W.2 are situated very close by. If P.W.1 was an eyewitness to the occurrence and had informed the informant about it by giving details of the manner of occurrence which led P.W.2, Akhtyar to file a report. P.W.2, the informant also stated, as may appear from his evidence at page-31 of the paper book that he reported the case as per information given to him by P.Ws 1, and 3. The written report also recites that P.Ws 1 and 3 were there at the scene of occurrence and had seen it. If this was so there was no reason why the Investigating Officer should not know that the two P.Ws 1 and 3 are the only eye-witnesses the recording of whose evidence could be of paramount importance as regards the investigation of the case. But he did not record the statements of P.Ws 1 and 3 immediately. P.W.8 S.I, Ramveer Singh, the I.O. Of the case has stated in his evidence that he recorded the statement of Nanha (P.W.3) on 6.2.2007 and that of P.W.1 Aslam on 12.2.2007 as appears from his deposition at page 48 of the paper book. P.W.1 appears aware of the visits by P.W.8 of his village in connection with investigation of the case. P.W.1 has stated that the police had reached the place of occurrence on the very day of the occurrence and he was very much present there (page 29 of the paper book). He further stated that the police remained there for quite a long time and he was also there for equally long period and returned house by 10-12 in night. P.W.1 also deposed that he did not go out of the village after the occurrence and very much remained there and that P.W.8, the I.O., had arrived at the village on the very next day of occurrence also, but did not question him and that before P.W.8 had recorded the statement of P.W.1, he had come into the village many times. He also stated that he visited Akhtayar many times after the occurrence at his house. Thus, in the light of these categorical evidence of P.W.1 and P.W.8 also, we do not have any explanation as to why the statements of P.W.1 and P.W.3 were not being recorded promptly. Was it the case that the two witnesses were not ready either to tell the lies or was it that they were not the eye-witnesses? The delayed examination of the two witnesses creates a serious doubt regarding their trustworthiness.
18. During the course of arguments we found from perusal of the First Information Report (Exbt Ka5) that the same was registered on 31.1.2007. However, what we further found was that a special report in respect of the said incident was received by the Chief Judicial Magistrate on 12.2.2007 as was evident from an endorsement made in the F.I.R itself. But no date was put by the Circle Officer under his signature on it so as to indicate as to when the special report in compliance of Section 157 Cr.P.C was despatched by him to the Magistrate concerned.
19. A perusal of Section 157 Cr.P.C would indicate that upon an information received or otherwise, if the Officer In-charge of a police station has reasons to suspect the commission of an offence which he is empowered to investigate under Section 156 Cr.P.C., he shall forthwith send a report of the same to the nearest Magistrate. Further, Section 158 Cr.P.C empowers the State Government to send the report to the Magistrate through such superior officer of the police as the State Government may, by general or special order, appoints in this behalf. Such superior officer is also empowered to give such instructions to the Officer Incharge of the police station as he thinks fit and after recording such instructions on special report, transmit the same without delay to the Magistrate. Section 157 Cr.P.C. has a salutary purpose as it prevents ante timed F.I.R's and enables the Magistrate to exercise his control over investigation of heinous offences.
20. The Apex Court in the case of Moti Lal and another Vs. State of Rajasthan 2009 (7) SCC 454 and that of State of U.P. vs. Gokaran 1984 (Supple) SCC 482 has no doubt held in paragraph 13 thereof that a delay in sending a special report to the Magistrate would itself not result in an acquittal, when it is found from the evidence on record that the F.I.R was promptly recorded and investigation commenced timely. But on the facts of the present case we find that the F.I.R was registered on the basis of the written report dated 31.1.2007 itself and the investigation had promptly begun. However we come across a large number of cases, where we find that provisions of Section 157 Cr.P.C which directs ensuring despatch forthwith of the special report to the Magistrate concerned is being flouted with impunity. This is despite the fact that the Apex Court in Ishwar Singh vs. State A.I.R. 1976 S.C.2423 had observed that extra ordinary delay in sending the F.I.R is a circumstance which provides a legitimate basis for suspecting that the F.I.R was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. Further the Apex Court in the case of Shivlal vs. State of Chhattisgarh 2011 (9) S.C.C 561 highlighted the importance of the compliance of Section 157 Cr.P.C and held that not every delay would lead to an inference that the F.I.R was not lodged at the stated time or was ante timed. Relevant paragraph 18 of the said judgment is quoted hereunder:-
18. This Court in Bhajan Singh vs. State of Haryana has elaborately dealt with the issue of sending the copy of the FIR to the Ilaqa Magistrate with delay and after placing reliance upon a large number of judgments including Shiv Ram vs. State of U.P. and Arun Kumar Sharma vs. State of Bihar came to the conclusion that CrPC provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante-timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159 CrPC, if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control the investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has bee ante-timed or ante-dated or the investigation is not fair and forthright. In a given case, there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to the Ilaqa Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case.
Thus cases where FIR was not promptly registered and investigation timely commenced, despatch of such report may play a crucial role in determining the fate of the case. As stated above Section 157 Cr.P.C casts a duty on the Station Officer of the police station concerned to despatch special report to the Magistrate concerned so that the latter could exercise his control in respect of the investigation of the case, and pass appropriate directions. We find that more often than not the reports are not being despatched timely by the officers concerned. No doubt a default in investigational lapse would not enure to the advantage of the accused, yet the officers of the State who are enjoined under law to forthwith despatch the special report, cannot shirk and abdicate their responsibilities in the despatch forthwith of the report. We, accordingly, direct the Director General of Police, U.P. to instruct the subordinate officers to ensure compliance, both in letter and spirit of the provisions of Section 157 Cr.P.C and that any lapse on that part would be construed as a serious dereliction of duty and a misconduct on the part of the erring official.
21. Considering the quality of evidence on record, we are of the considered view that the prosecution could not establish the commission of the alleged offence beyond the shadow of doubt and thus, in our opinion the accused are entitled to acquittal.
22. The Appeal is allowed and the conviction and sentence passed against the appellants is set aside. The appellants are acquitted of the charges under which they have been convicted. Accordingly, Reference No.10 of 2010 stands rejected. As appellants Chaman and Irshad are presently in custody they shall be released forthwith, if not wanted in any other case.
Order Date :- September 27, 2013
RS
(Pankaj Naqvi,J) (Dharnidhar Jha,J)