Allahabad High Court
Mohammad Israr vs State Of U.P. on 1 December, 2017
Author: Prashant Kumar
Bench: Prashant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved A.F.R.
CRIMINAL APPEAL No. - 703 of 2005
Mohammad Israr
son of Mohd. Kamal
resident of Sohabatiyabagh,
Rajabazar, P.S. Chowk, Lucknow.
......... Appellant
Versus.
The State of U.P. ...... Respondent.
Counsel for Appellant :- B.P.Srivastava,Jyotindra Misra,Kapil Misra,Rajesh Kumar,Rakesh Kumar Upadhyaya,V.K.Shahi
Counsel for Respondent :- Govt.Advocate,Nagendra Mohan
AND
CRIMINAL APPEAL No. - 556 of 2005
1. Mohd. Laik Ahmad Siddique S/o Mohd. Kamal
R/o Sohbatiya Bagh, Raja Bazar P.S. Chowk,
Lucknow.
2. Mohd. Tufail,
S/o Ayyub Khan ,
resident of Village Ahmedpur Khera,
P.S. Itaunja, District Lucknow.
3. Mohd. Rafique alias Guddu
S/o Mohad. Kamal
R/o Sohbatiya Bagh Raja Bazar, P.S. Chowk,
Lucknow.
4. Mohd. Mufeed,
S/o Mohad. Kamal
R/o Sohbatiya Bagh Raja Bazar, P.S. Chowk,
Lucknow.
............ Appellants
Versus
State of U.P. ............... Respondent.
Counsel for Appellant :- B.P.Srivastava,Jyotindra Misra,Nagendra Mohan,Rakesh Kumar Upadhyaya,Vivek Shrotria
Counsel for Respondent :- Govt.Advocate,Rajesh Kumar,V.K. Shahi,Vijay Vikram
Hon'ble Prashant Kumar,J.
Hon'ble Anil Kumar Srivastava-II,J.
(Delivered by Hon'ble Anil Kumar Srivastava-II, J)
1. Heard Sri Jyotindra Misra learned senior Advocate, assisted by Sri Vivek Shrotria learned counsel for the appellants, Sri Nagendra Mohan learned counsel for the complainant and Sri Umesh Verma learned AGA for the State.
2. Instant appeals have arisen against the judgment and order dated 8.4.2005 passed by learned Additional Sessions Judge, Court No.1, Lucknow in Session Trial No. 20 of 2002, Session Trial No.20A of 2002, Session Trial No.21 of 2002 and Session Trial No.22 of 2002 arising out of case crime no.128 of 2000, case crime no.132 of 2000 and case crime no.133 of 2000 respectively whereby the learned trial court has convicted and sentenced the accused-appellants as under :-
1. Mohd. Laeeq Ahmed Siddique
2. Mohd. Israr:-
(i) under section 148 IPC sentenced to two years rigorous imprisonment,
(ii) under section 302/149 IPC sentenced for life imprisonment and a fine of Rs.500/-with default stipulation of imprisonment for one month.
(iii) under Section 307/149 IPC sentenced to five years rigorous imprisonment and fine of Rs.500/- with default stipulation of imprisonment for one month.
(iv) under Section 3/25 Arms Act sentenced to three years rigorous imprisonment and fine of Rs.500/- with default stipulation of imprisonment for one month.
3. Mohd. Rafique @ Guddu
4. Mohd. Tufail:-
(i) under Section 148 IPC sentenced to two years rigorous imprisonment,
(ii) under Section 302/149 IPC sentenced to imprisonment for life and fine of Rs.500/- with default stipulation of one month imprisonment.
(iii) under Section 307 IPC sentenced to 10 years rigorous imprisonment and fine of Rs.500/-with default stipulation of imprisonment for one month.
5. Mohd. Mufeed:-
(i) under Section 148 IPC sentenced to two years rigorous imprisonment,
(ii) under Section 302/149 IPC sentenced for life imprisonment and fine of Rs.500/- with default stipulation of imprisonment for one month.
(iii) under Section 307/149 IPC sentenced to five years rigorous imprisonment and fine of Rs.500/-with default stipulation of imprisonment for one month.
All the sentences were directed to run concurrently. Mohd. Nasir and Mohd. Shamim were acquitted by the learned trial court. State has not preferred any appeal against the acquittal.
3. According to the prosecution, first information report dated 30.8.2000 was lodged by one Naseem Ahmed S/o Mohd. Raza stating that on 30.8.2000 at about 3.00 PM complainant Naseem Ahmed P.W.1 his brothers Shafique Ahmed Advocate alongwith Mohd. Khalique P.W.2, Maqbool Ahmed, Riyaz Ahmed and others persons were coming back from graveyard (Khanjar Wali Takiya) after burying the dead body of Imtiyaz Ali. As soon as they covered a short distance, one Tata Sumo U.P.No.32 Q/4499 was parked on the right side of the road wherein Mohd. Laeeq Siddique,Israr, Mufeed and Guddu sons of Kamal Ahmed and Tufail Ahmed brother in law of Mohd.Laeeq and two unknown persons approached the complainant with firearms. Mohd. Laeeq exhorted to kill all of them. Guddu fired upon the complainant which hit him. At that time several persons were coming from the graveyard. They all started running out of fear. Complainant shouted and asked his brothers to run away from the spot. Accused continuously fired which hit complainant- Naseem Ahmed, his brother Shafiq Ahmed and one outsider Sahamat Ali. All received firearm injuries. Accused ran away from the scene of occurrence. Accused were having enmity with the complainant regarding some property dispute. A written report was lodged at police station Sadatganj, District Lucknow on 30.8.2000 at 4.10 P.M. under Sections 147, 148, 149, 504/307 IPC. After the death of Mohd. Shafiq Ahmed case was altered under Section 302 I.P.C. vide G.D.No.51 at 21.15. dated 30.8.2000. After the death of Shafiq Ahmed inquest proceedings were conducted on 31.8.2000 at mortuary of K.G.M.U, Lucknow. Investigation was handed over to Station House Officer Om Prakash Ojha. Investigating officer recovered a bloodstained cap, one Chappal, plain and bloodstained earth and empty cartridge 315 and 12 bore from the place of incident. Site plan was also prepared.
4. Dead body of Shafique Ahmed was sent for postmortem which was conducted on 31.8.2000 at 11.45 PM wherein following antemortem injuries were found on body of the deceased:
1. Firearm wound of entry on left side of face infront of tragus of ear size 1 cm. X 1 cm. X cavity deep, margins lacerated, ecchymosis irregular. Ring of abrasion present, blackening and tattooing present on whole left side of face.
2. Fire arm wound of entry on left side of skin 4 cm. above the pinna of left ear, size 1 cm. x 1cm. X cavity deep, margins lacerated inverted ring of abrasions present blackening and tattooing present all around the wound.
3. Fire arm wound of exit 1/1/2 cm x 1/1/2 cm. cavity deep on right side of face 3 cms. in front of tragus of right ear, margins lacerated, everted.
4. Fire arm wound of exit on right side of neck 7 cms. below and infront of angle of mandible right margins, lacerated and everted.
5. Fire arm wound of entry on right shoulder blade on upper part of back, 10 cms. below the top of right shoulder, margins inverted, irregular, lacerated and ring of abrasion present around the wound.
5. According to the opinion of the doctor death occurred on 30.8.2000 at 3.00PM due to the antemortem injuires.
6. Injured Naseem Ahmed and Sahamat Ali were medically examined by one Dr. Pritipal Singh who was posted as junior resident in K.G.M.U. who found the following injury on body of injured Naseem Ahmed:
Injury No.1. 1.5.cm length present at the level of angle of mandible about two cm. behind it from which bleeding profusely fresh blood and there was no tattooing or blackening around it but reddish and tenderness were present. There was no major vascular injury to neck structures.
7. Dr. Pritipal Singh also examined injured Sahamat Ali who found following injury on body of the injured :
Injury No.1:- A wound of about one inch diameter present about one inch below subustal margin (right) in middicular line. Right lower margin wound is deep. There is no blackening or tattooing around wound. It was muscle deep.
8. During investigation on 9.9.2000 at 8.35. AM investigating officer recovered the country made pistol 315 bore on the pointing out of accused Laeeq Siddique. On the same date and place, one 315 bore country made pistol was also recovered from the pointing out of accused Israr. Separate Case Crime No.132 of 2000 and Case Crime No.133 of 2000 were registered against the accused persons. Site plan was prepared. Sanction for prosecution of the accused Mohd. Israr, Mohd. Laeeq Ahmad Siddique under Section 25 Arms Act was obtained from the District Magistrate. The recovered articles were sent to the forensic science laboratory. After investigation charge-sheet was submitted against the accused persons.
9. Accused- appellants Mohd. Laeeq Siddique, Mohd. Israr, Mohd. Naseer and Mohd. Mufeed, Mohd. Shamim were charged under Sections 148, 307 read with section 149 I.P.C., 302 read with section 149 I.P.C. Accused- Mohd. Tufail was charged under Section 148, 307 read with Section 149 I.P.C, Section 302 read with Section 149 I.P.C. while accused Mohd. Rafique ailas Guddu was charged under Section 148, 307 read with Section 149 IPC and Section 302 read with Section 149 who denied the charges and claimed for trial.
10. In order to prove its case prosecution has produced P.W.1, Naseem Ahmed complainant and injured, P.W.2, Mohd. Khalique scribe of the written report, P.W.3, S.I. Chandra Bali Singh who accompanied the investigating officer at the place of incident, P.W.4, S.I. M.P. Pal who has recovered abandoned Tata Sumo, P.W.5, O.P. Ojha investigating officer, P.W.6 Dr. M.L.Yadav who had conducted the postmortem of dead body of the deceased, P.W.7, S.I. Raj Kumar Yadav, who prepared the inquest report, P.W.8, constable Sri Jokhmani Yadav formal witness, P.W.9, Dr. Pritipal Singh who has conducted the medical examination of injured Naseem Ahmed and Sahamat Ali, P.W.10, S.I. Shiv Balak investigating officer of the case under Section 25 Arms Act.
11. Accused have denied the allegations in their statement under Section 313 Cr.P.C. No evidence was lead in defence.
12. After appreciating the evidence on record, learned trial court has recorded a finding of conviction against the accused-appellants.
13. Learned counsel for the accused-appellants submits that the prosecution has failed to prove the charges against the accused beyond reasonable doubt. It is further submitted that the inquest proceedings were conducted by the police of police station Chowk, while, the case relates to P.S. Sadatganj. It shows that in fact deceased died somewhere else and false case has been slapped upon the accused-appellants. It is further submitted that FIR is ante timed. Nature and manner of assault could not be proved by the prosecution. P.W.9 Dr. Pritipal Singh has not given any details regarding duration and nature of injury of injured Naseem Ahmed and Sahamat Ali. No recovery was made under section 27 Evidence Act. P.W.1 Naseem Ahmed and P.W.2 Mohd. Khalique were not present at the spot. Their testimony cannot be relied upon.
14. It is further submitted that prosecution sanction under Section 25 Arms Act is bad in law as the District Magistrate has accorded sanction mechanically without applying his mind.
15. Per contra, learned AGA and learned counsel for the complainant submit that the prosecution has successfully, proved the charges against the accused. Statement of P.W.1 Nassem Ahmed is wholly reliable who was accompanying the deceased and also received injuries in the incident. It is further submitted that P.W.1 Naseem Ahmed and P.W.2 Mohd. Khalique have categorically given the minute details of the incident. Inquest report has a limited purpose. Mortuary is located within the precinct of P.S. Chowk Hence, proceedings were conducted by the Police Station Chowk. FIR was lodged promptly wherein all the accused persons are named.
16. Incident took place in broad day light at 3.00 PM while the first information report was lodged at 4.10 PM on the same day. Deceased as well as injured were coming back from the graveyard after burying the dead body of one Imtiyaz Ali while the named accused persons namely, Mohd. Laeeq Siddiqi, Israr, Mufeed, Guddu and Tufail Ahmed alongwith two unknown persons were present in Tata Sumo. On the exhortation of Mohd. Laeeq, Guddu fired upon the complainant namely, Mohd. Naseem Ahmed which hit him. When complainant shouted then the accused persons fired shots upon Safique Ahmed brother of the injured. One fire also hit Sahamat Ali. Mohd. Khalique is the scribe of written report.
17. P.W.1, Mohd. Naseem Ahmed and P.W.2, Mohd. Khalique are cousin brothers. It is submitted that both the witnesses are interested witnesses, as P.W.1, Naseem Ahmed is the real brother of the deceased while P.W.2, Mohd. Khalique is cousin brother.
18. On the point of related witness, reference may be made to the pronouncement of Hon'ble the Apex court in the case of Sheesh Ram and others Vs. State of Rajasthan reported in (2014) 3 SCC 689 wherein Hon'ble the Apex Court in paragraph no. 10 has observed as under:-
"10. It is submitted that all these witnesses are related and therefore their evidence cannot be relied upon. Assuming they are related to each other and, hence, interested witnesses, it is well settled that the evidence of interested witnesses is not always suspect. It has to be scrutinised with caution and can be accepted if it is found reliable."
19. Hon'ble the Apex Court in the case of Gopal Singh Vs. State of U.P. reported in (1978) 3 SCC 327 has observed in paragraph no. 11 as under:-
"11. True, they were interested witnesses, related to the deceased. Far from undermining the circumstances of the case, it guaranteed the truth of their testimony. Being relations, they would be the least disposed to falsely implicate the appellant, or substitute him in place of the real culprit. In short, the murder charges had been proved to the hilt against the appellant."
20. Now we have to scrutinize the statement of P.W.1, Naseem Ahmed and P.W.2, Mohd Khalique. P.W.1, Naseem Ahmed was accompanying the deceased while they were coming back from the graveyard. Statement of P.W.1 is very natural wherein he has stated that he was coming back from the graveyard after burying the dead body of Imtiyaz Ali. This fact is not disputed that the dead body of Mohd. Imtiyaz Ali was buried on the date of incident. P.W.1, Naseem Ahmed also stated that there was enmity regarding property between the deceased and accused. It is a case of direct evidence.
21. It has been held by Hon'ble Apex Court in Sunil Kundu & Another versus State of Jharkhand (2013) 4 SCC 422 that:-
"enmity is a double edged weapon but possibility of false involvement because of deep rooted enmity also cannot be ruled out."
22. It has further been held by the Hon'ble Apex Court that in a case of direct evidence motive loses its importance. On this point reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Darbara Singh Vs. State of Punjab reported in 2012 (10) SCC 476, Sanjeev Vs. State of Haryana reported in 2015 4 SCC 387 and Birendra Das and another Vs. State of Assam reported in 2013 12 SCC 236. In the case of Darbara Singh (supra), Hon'ble the Apex Court has observed in paragraph no. 15 and 16 as under:-
"15. So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance. In the instant case, firstly, there is nothing on record to reveal the identity of the person who was convicted for rape, there is also nothing to reveal the status of his relationship with the Appellant and further, there is nothing on record to determine the identity of this girl or her relationship to the co-accused Kashmir Singh. More so, the conviction took place 20 years prior to the incident. No independent witness has been examined to prove the factum that the Appellant was not on talking terms with Kashmir Singh. In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstances, can motive take the place of the direct evidence available as proof, and in a case like this, proof of motive is not relevant at all.
16. Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a fact-situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused. ........................."
23. In the backdrop of the above legal propositions now it is to be seen as to whether the prosecution has been able to successfully prove the charges against the accused ? Whether the testimony of P.W.1 Naseem Ahmed is believable or not?
24. P.W.1, Naseem Ahmed is also an injured who was medically examined on 30.8.2000 by P.W.9, Dr. Pritipal Singh. According to Dr. Pritipal Singh one wound was found at the level of angle of mandible wherein local, redness and tenderness was present. Dr. Singh has stated that as per the statement of injured, it was a gun shot injury. These injuries could have been caused by firearm. Time of examination could also not been stated by the doctor. P.W.1, Naseem Ahmed has specifically stated that he received the injuries on 30.8.2000 at 3.00 P.M. by a gun shot fired by Mohd. Rafique @ Guddu. After receiving the injury he fell down. It is true that Dr. Pritipal Singh, P.W.9 has not recorded any opinion about the nature and duration of the injury but this itself could not be the sole ground to reject the testimony of P.W.1 Naseem Ahmed. It has been held by the Apex Court in a recent judgment that if there is a variation or discrepancies in the medical evidence as well as ocular evidence and if ocular evidence is wholly reliable and trustworthy then ocular evidence would prevail over the medical evidence.
25. In Rangnath Shamrao Dhas and others vs. State of Maharashtra (2009) 4 Supreme Court Cases 33; Hon'ble Apex Court has placed reliance in Solanki Chimanbhai Ukabhai v. State of Gujarat (1983)2 SCC 174 wherein it was held in para 13 that:
"13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
26. Any default or negligence by the doctor could not be a ground to discard the prosecution case. In Kamaljit Singh v. State of Punjab (2003)12 SCC 155, the Court, while dealing with the discrepancies between ocular and medical evidence held: (SCC p.159, para 8) "8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out."
27. Where the eyewitness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.
"34. ........ The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by [examining] the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert's opinion is accepted, it is not the opinion of the medical officer but [that] of the Court."
(See Madam Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204 pp. 221-22 para 34.)
28. It is true that P.W.9 Dr. Pritipal Singh has not recorded his opinion about nature, duration of the injuries which he should have done. Although, it is true that at the time of examination by him he was a junior resident in the KGMU but this itself could not be a ground to overlook and over throw the negligence committed by him. The medical officer is expected to perform the medico legal examination or the postmortem examination, as the case may be, strictly in accordance with the settled principles. He cannot take the advantage of his ignorance or little knowledge about the settled principles. Dr. Pritipal Singh has nowhere stated that he had inadvertently not mentioned it in the report. Dr. Pritipal has conducted the medico legal examination in a most careless manner, which is not expected from a medical officer.
29. P.W.1 Naseem Ahmed has specifically stated that he was accompanying his brother at the time of incident. Firstly the fire shot by accused Mohd Rafique @ Guddu hit him. He fell down but immediately stood up and shouted and warned his brother Safique to run away. In the meantime, Tufail Ahmed fired a shot which did not hit him, rather hit Sahamat Ali. Thereafter, the accused persons fired upon the deceased Safique Ahmed. P.W.6 Dr. M.L.Yadav, who had conducted the post mortem examination of the deceased, Safique Ahmed, found three wounds of entry of firearm while two wounds of exit were found on body of Safique Ahmed. The injuries found on body of the deceased corelate with the statement of P.W.1 Naseem Ahmed. Incident took place after 15 to 20 steps from the graveyard. P.W.1 Naseem Ahmed was conscious, even after sustaining the injury. He was admitted to the medical college. He dictated the first information report to P.W.2 Mohd. Khalique and put his signatures on the report.
30. Statement of P.W. 1 is wholly trustworthy reliable whose presence at the place of incident is established. It is also established that he received injury by firearm which was shot by Mohd. Rafique @ Guddu.
31. An argument is placed by the learned counsel for the accused-appellant that the inquest proceedings of the deceased were conducted by the police of Police Station Chowk while the incident relates to Sadatganj. Inquest proceedings were conducted in the mortuary on 31.8.2000 at 10.00AM. It is further submitted that there is no explanation, when the information of death was received at 6.15 P.M. on 30.8.2000 then why the inquest proceedings were conducted on 31.8.2000 ? P.W.7, S.I. Raj Kumar Yadav has conducted the inquest proceedings, who was posted as outpost in charge Medical College, P.S. Chowk, Lucknow, who received the death memo of deceased at 6.15 pm. On the basis of the death memo he conducted the inquest proceedings on 31.8.2000. No explanation was sought from the witness as to why he has conducted the inquest proceedings while, the case relates to P.S. Sadatgang. This witness himself has stated that he received the death memo from the mortuary at 6.15 p.m. on 30.8.2000. Then why he conducted the inquest proceedings on the next day at 1.00 A.M ?
32. Although, a vague explanation was given by the P.W.7 S.I. Raj Kumar Yadav that the inquest proceedings were not conducted in the night of 30.8.2000, because the death memo was received after the sun set and inquest proceedings could not be conducted in the night without permission of the District Magistrate, although, there is no such regulation in the police manual. Hence, it might be treated as a mistake on part of S.I Raj Kumar Yadav but it could not be treated as a mistake which overthrows the prosecution version.
33. Learned counsel for the appellant submits that P.W.2 Mohd. Khalique is the chance witness whose presence at the spot is highly doubtful. P.W.2 Mohd. Khalique is cousin brother of the deceased, who had also gone to the graveyard in the burial procession of Imtiyaz Ali. He is also an eye witness who has stated that the first fire was shot by Guddu on Naseem Ahmed. The second shot was fired by Tufail Ahmed which did not hit Naseem rather hit an unknown person. Thereafter, there was a hue and cry at the spot. Then Mohd. Laeeq, Guddu, Israr, Mufeed and Tufail fired shot at Mohd. Safique Ahmed. It is specifically stated that the distance between his Village Tigwa and Lucknow is about 35 kilometers. It is further explained by him that he came to Lucknow to visit Shafique but since Mohd. Shafique was going in the burial procession, hence, he also joined him. It could not be said that he is a chance witness. His presence at the spot is very natural.
34. Hon'ble Apex Court in the case of Vikram Singh and others V. State of Punjab reported in (2010) 3 SCC 56 has cited paragraph 3 of its earlier pronouncement in the case of Rana Pratap and Others V. State of Haryana reported in 1983 (3) SCC 327 which reads as under:-
"There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."
35. Reference may also be made to the pronouncement of Hon'ble Apex Court in the case of Thangaiya V. State of Tamil Nadu reported in (2005) 9 SCC 650 wherein Hon'ble the Apex Court has observed in para 8 as under:-
"Coming to the plea of the accused that PW-3 was 'chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as 'chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."
36. Death is unavoiable and in every religion its a common belief that if there is a procession of a dead body everybody can join it or one who could not join it assemble at his place for a moment and then proceed. Further, there is nothing unnatural that P.W.2 Mohd. Khalique came to Lucknow to meet his cousin brother Mohd. Safique who was in the procession. Khalique also joined him. Hence, P.W.2 Khalique could not be said to be a chance witness. P.W.2 Khalique has stated that he had seen accused also in the graveyard. When they were coming back. The first fire hit Naseem. The other fire shot by Tufail hit one unknown person who was subsequently identified as Sahamat Ali. Thereafter, accused shot at Mohd. Safique. They were taken to the hospital. He did not accompany Mohd. Safique. He had to search Naseem. Then he went to the medical college. Naseem Ahmed met him there. Mohd. Safique was unconscious. First information report was written on the dictation of Naseem Ahmed who was conscious and put his signatures on the report. P.W. 2 Khalique noted his name as scribe. Statement of P.W.2 Khalique is wholly reliable. His presence at the place of occurrence is also established.
37. An argument is made that two country made pistols 315 bore were recovered on the pointing out of the accused Laeeq and Israr who have also been convicted under Section 3/25 Arms Act. It is submitted that the prosecution sanction is not in accordance with law. The District Magistrate has not applied his mind rather sanction was given mechanically.
38. We have gone through the sanction and the statement of P.W.10 S.I. Shiv Balak investigating officer who had obtained the sanction and proved it. In the sanction order dated 9.10.2000 details of recovered arms are not mentioned. Rather, it is mentioned that "cjken eky dks [kqyokdj ns[kk x;k". It is expected that the District Magistrate should have mentioned the details of the recovered arms to show that the sanction was not granted mechanically. Rather, it was granted after application of mind, which is a mandatory provision. In the absence of legal sanction, conviction of accused Israr and Mohd Laeeq under Section 3/25 Arms Act could not be sustained.
39. An argument is placed that in the first information report, there is no assertion that Tufail also fired upon the injured Naseem Ahmed which hit Sahamat Ali. It is settled legal position that first information report is not an encyclopedia.
40. It has been held by Hon'ble Apex Court in Rotash versus State of Rajasthan (2006) 12 SCC 64 that:-
"14.The first information report, as is well known, is not an encyclopaedia of the entire case. It need not contain all the details. We, however, although did not intend to ignore the importance of naming of an accused in the first information report, but herein we have seen that he had been named in the earliest possible opportunity. Even assuming that PW 1 did not name him in the first information report, we do not find any reason to disbelieve the statement of Mooli Devi, PW 6. The question is as to whether a person was implicated by way of an afterthought or not must be judged having regard to the entire factual scenario obtaining in the case."
41. Hence, even if it is not mentioned in the first information report the prosecution case cannot be held to be doubtful by this omission.
42. It is further submitted that injured Sahamat Ali was not produced by the prosecution who was a material witness. In a criminal trial, quality and not the quantity of the evidence is to be taken into consideration.
43. It has been held by the Apex Court in Malkhan Singh and others vs. State of U.P. 1995 Supp. (4) Supreme Court Cases 560 as under:
"............ It is not the law that all the witnesses cited by the prosecution as direct witnesses need be examined. The prosecution must unfold the full narration of the material particulars of its case. It is not the quantity but quality of the evidence that is needed. It is settled law that even the evidence of a single witness, if truthful and found acceptable, would form basis to convict the accused without corroboration which is not a rule but an added assurance. The witness must be reliable to inspire confidence for acceptance of his evidence. It is, therefore, not necessary to examine all the other witnesses unless the prosecution so chooses."
44. In State of Madhya Pradesh vs. Laakhan @ Lakhan (2009) 14 Supreme Court Cases 433 has held para 10:
10. Even the evidence of a solitary witness can be sufficient to record conviction if the same is wholly reliable. No particular number of witnesses is necessary to prove any fact, as statutorily provided in Section 134 of the Evidence Act, 1872 (in short "the Evidence Act"). It is the quality and not the quantity of the evidence that matters. The court cannot take a closed view in such matters.
45. lnjured P.W.1 Naseem Ahmed, P.W.2 Mohd. Khalique eye witness have been produced who have supported the prosecution version. Hence, non-production of Sahamat Ali would not extend any benefit in favour of the accused.
46. The incident took place at 3.00 P.M, while the first information report, was lodged promptly at 4.10 P.M. P.W. 2, Mohd. Khalique is the scribe of the report which was written by him on the dictation of P.W. 1 Naseem Ahmed. P.W.1 Naseem Ahmed is an injured witness who received injuries in the incident which are duly proved by him. Presence of P.W.1 Naseem Ahmed and P.W. 2 Mohd. Khalique at the spot is proved. Their testimony is wholly reliable.
47. Having considered the submissions of learned counsel for the appellants, learned AGA and after going through the evidence on record, we are of the considered view that the learned trial court has appreciated the evidence in accordance with law. Finding of conviction recorded by the learned trial court is based upon the evidence available on record. Appeals lack merit. So far as conviction and sentence under Section 25 Arms Act is concerned, the appeals deserve to be allowed.
48. Accordingly, appeals are partly allowed. Conviction and sentence of accused Mohd. Laeeq Ahmed Siddique and Mohd. Israr under Section 3/25 Arms Act is set aside. Conviction and sentence passed by learned trial court against the appellants Mohd. Laeeq Ahmed Siddique and Mohd. Israr under Section 148, 302/149, 307/149 IPC, Guddu @ Rafique and Mohd. Tufail under Section 302/149, 148 and 307 IPC and Mohd. Mufeed under Section 148, 302/149 and 307/149 IPC are confirmed. They are on bail. Their bail bonds and personal bonds are cancelled and sureties are discharged. They shall surrender forthwith to serve out the sentence as imposed by the Trial Court and confirmed by this Court.
49. Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance. Compliance report be submitted within eight weeks.
[Anil Kumar Srivastava-II,J.] [Prashant Kumar,J.] Order Date :-01.12.2017 Subodh/-