Allahabad High Court
Jeesan And Others vs State Of U.P. on 21 November, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
COUR NO. 35 A.F.R./Reserved
Criminal Appeal No. 4458 of 2003
1. Jeesan
2. Rihan
3. Ishar ........ ......... ....... Appellants
Versus
State of U. P. ....... ........ ....... Respondent
Connected with
Criminal Appeal No. 4460 of 2003
Avan ........ ........ ........ Appellant
Versus
State of U. P. ....... ...... ........ Respondent
Counsel for the appellant: Sri Rajeev Gupta, Sri Dileep Kumar
Counsel for the respondent : Sri Syed Ali Murtaza, A.G.A.
Counsel for the Complainant: Sri Satish Trivedi, Senior Advocate assisted by Sri Imran Ullah, Manish
Tiwari and A.K.Awasthi.
Hon. Rakesh Tiwari, J.
Hon. Anil Kumar Sharma, J.
( By Justice Anil Kumar Sharma) Both these appeals arise out of the common judgment and order dated 10.9.2003 passed by Additional Sessions Judge (Fast Track Court No.4), Budaun in S.T. No.486 of 2000, under sections 147, 148, 307/149 and 307/149 IPC (Crime No.351 of 1999 ) and in S.T. No.487 of 2000, under Section 25 Arms Act (State Vs. Jeesan, Avan and Ishrar ), whereby the appellants have been convicted and sentenced as under :
Sl. No. Name of accused Under Section Imprisonment Fine Default addl. imprisonment 1 All appellants 147 IPC 1 year R.I.
-
-
2All appellants 148 IPC 1½ years' R.I.
-
-
3All appellants 307/149 IPC 7-years' R.I. Rs.3000/-
Three months 4 All appellants 302/149 IPC Life imprisonment Rs.6000/-
Six months 5 Jeesan 25 Arms Act 2-years' RI.
-
-
6Avan 25 Arms Act 2-years' R.I.
-
-
7Ishar 25 Arms Act 2-years' R.I.
-
-
The sentences awarded to each of the appellants were to run concurrently. Both these appeals have been heard together and are being disposed of by this judgment.
3. The facts germane to the appeals are that on 15.12.1999 at about 7.30 a.m. Smt. Shahida Begun, wife of Gulam Rasool, resident of Hamupur Chamarpura, P.S. Sahswan, district Budaun submitted a written report scribed by Hasmat Hussain in P.S. Sahaswan wherein she stated that there was old enmity on account of the election of Pradhan between her family and the family of Jeesan and others. Yesterday, in their village there was scuffle between the Faqirs and her husband Gulam Rasool settled their dispute which was not liked by Jeesan and others and they have threatened her husband. On 15.12.1999 at about 7.30 a.m., her husband while going towards the Faqirs reached near the culvert, accused Jeesan, Rihan and Avan sons of Viqar and Afzal s/o Zulfiqar having guns in their hands and Ishar son of Abrar alias Raja armed with country made pistol surrounded him and started hurling abuses. On hearing the commotion the complainant, her brother in law Rijwan and her son Javid reached at the spot and then Jeesan exhorted his companions to kill them. All the accused persons in furtherance of their common intention to kill opened fire from their respective weapons and beat them with butts of weapons, whereby her husband, brother-in-law and son were badly injured and fell down. The complainant also suffered injuires on her eye. This incident was witnessed by Haseeb son of Ghasi Khan, resident of Village Bazpur, Fazle son of Tahir Ali and Sunavvar son of Musabbir Ali, Kallu son of Riyazi, resident of Village Chamarpura, Tasavvar son of Evaz, resident of Village Baazpur and others who arrived at the scene of occurrence, challenged them. The accused, giving life threat left the scene of occurrence. The complainant along with her injured husband, brother-in-law Rijwan and son Javid reached the police station Sahaswan and submitted the written report.
4. On the basis of this report Case Crime No. 351 of 1999, under sections 147,148, 149, 307 and 506 IPC was registered at Police Station Sahaswan, district Budaun, investigation whereof was entrusted to SI Ram Baran Singh. The injured were sent for medical examination to Public Health Centre, Sahaswan, but due to critical condition of the injured, they were taken to District Hospital Budaun. However, injured Gulam Rasool succumbed to the injuires on way to the hospital. Dr. D.V. Shakya examined injured persons in District Hospital, Budaun on 15.12.1999 from 9.50 a.m. onwards. The doctor has noted in the report Ext. Ka-5 that Gulam Rasool was brought dead in emergency OPD at 9.30 a.m. of 15.12.1999 and his dead body had been kept in the mortury. Dr. D.V. Shakya found the following injuries on the person of other injured:
Javid- at 9.50 a.m.
(i) A fire arm wound of entry of size 2.5 x 2 cm. x on left side neck 5 cm. below left ear, margins inverted, blackening present at margins, fresh bleeding present ;
(ii) A fire arm wound of exit of size 7 x 6 cm. x communicating to injury no.1. Left side face extending from angle of mouth to left side chin, margins everted, mendible left side exposed, profuse bleeding present;
(iii)Fire arm would of entry of size 4 x 2 cm. x muscle deep palmer aspect left hand at base of left thumb;
(iv)Fire arm wound of entry of size 4 x 1.5 cm. x bone deep on palmer aspect of left ring finger. Wound placed parallel to finger.
In the opinion of the doctor injury no.1 to 4 were caused by discharge of fire-arm weapon. All injuries were fresh in duration, kept under observation and X-ray was advised.
Rizwan at 10.20 a.m.
(i)A lacerated wound of size 1 cm. X 0.5 cm. x muscle deep over left eyebrow;
(ii)A lacerated wound of size 4 x 0.8 cm. x bone deep on left side forehead 1.5 cm. above left eyebrow;
(iii)A lacerated wound of size 6 x 0.5 cm.x bone deep on left side head 8 cm. above from left ear;
(iv)A lacerated wound of size 7 x 0.5 cm. x bone deep left side head 2 cm. above injury no.3;
(v)A contusion of size 4 x 2 cm. on outer aspect of left forearm 3 cm. to elbow joint.
The general condition of the injured was poor. He was unconscious. All the injuries were caused by hard and blunt object. The duration was fresh and the injuries were kept under observation.
Smt. Shahida Begum 1.30 p.m. A contusion of size 7 x 4 cm. on left side forehead and left temporal region just above eyebrow.
The injury was caused by hard and blunt object, it was fresh and simple.
5.The Investigating Officer recorded the statements of the complainant and other witnesses. He also collected plain and blood stained earth from the spot through memo Ext. Ka-23. He inspected the scene of occurrence prepared site plan and recovered two empty cartridges of 12 bore and two empties of 315 bore through memo of Ext. Ka-24.
6.After inquest of the cadaver of deceased Gulam Rasool, his post-mortem examinatin was conducted by Dr. D. S. Misra on 15.12.1999 at 3.50 p.m. He found that the 52-years' old deceased was having good built body. Rigor mortis was present in all the four limbs. The doctor has noted the following ante-mortem injuries on his person:
1. A fire arm wound of entry size 2.5 cm x 1.5 cm 22 cm below the right axilla in right mid axillalry line. Blackening present around the wound. Underneath the injury liver, spleen, stomach, left kidney found badly lacerated. About 1½ litre of fluid blood found in thoracic cacity. A big bullet recovered from lateral aspect of abdomen.
2. A lacerated wound on left side of head size 6 cm x 1 cm x bone deep. 8.2 cm upward from left ear. Underneath the injury bone (occipital) found fractured.
3. An abrasion size 2 cm x 1 cm, 2 cm later to right nipple.
In the opinion of the doctor, the deceased suffered death about 1/4th day before due to shock and haemohrrage as a result of ante-mortem injuries.
7. Another injured Rizwan succumbed to the injuries during treatment in Sheel Hospital, Bareilly on 21.12.1999 at 12.50 a.m. The autopsy of his corpse was conducted by Dr. A. K. Jain on 21.12.1999 at 2.30 p.m. He found that the 45-years' old deceased was having average body. His mouth and both eyes were closed. Blood was coming from both nostrils. Rigor mortis was present in all the limbs. Dr. A. K. Jain PW-8 has narrated the following facts in his deposition from his post-mortem notes Ex.Ka-17:
1- Vkads yxk gqvk ?kko 18 ls-eh- yEck 22 Vkads ekStwn flj ds cka;h vksj v/kZ pUnzkdkj vkdkj dk pksV ds uhps dh nkfguh isjkbZVy cksu esa pkj cuZ gksYl ekStwn Fks o gM~Mh 7 ls-eh- x 5 ls-eh- {ks=Qy esa VwVh gq;h FkhA 2- Vkads yxk gqvk ?kko 5 ls-eh- yEck pkj Vkads ekStwn flj ds cka;h vksj dku ls 8 ls-eh- Åij cka;h vksjA 3- Vkads yxk gqvk ?kko 5 ls-eh- yEck pkj Vkads flj ds cka;h vksj dku ls 8 ls-eh- Åij pksV ds uhps dh gM~Mh esa 6 ls-eh- yEck QzSDpj ekStwn FkkA 4- Vkads yxk gqvk ?kko 3 ls-eh- yEck 2 Vkads ekStwn ekFks ds lkeus cka;h rjQA 5- uhyxw fu'kku 5 ls-eh- x pkjks rjQ cka;h ckag ds ckgj o chp esa pksV ds uhps dh cka;h jsfM;l gM~Mh VwVh ik;h x;hA 6- fNyk gqvk uhyxw fu'kku 2 ls-eh- x 1@2 ls-eh- cka;s ?kqVu ds lkeusA vkarfjd ijh{k.k esa e`rd ds fnekx ds Åij dh nkfgus rjQ dh f>Yyh QVh gqbZ o fnekx ds Åij nksuks rjQ [kwu dk /kDdk ekStwn FkkA isV [kkyh FkkA g`n;] QsQM+s] ftxj] frYyh o xqnZ lkekU; FksA fpfdRld dh jk; esa e`rd dh e`R;q flj ij vkbZ pksVks ds dkj.k o jDr L=ko o lnes ds dkj.k gqbZ FkhA
8. Accused Avan, Jeesan, Ishar were taken on police custody remand under the orders of the Magistrate and at the instance of accused Avan, a country made gun 12 bore, country made rifle 315 bore from Jeesan and accused Avan got recovered a country made pistol 315 bore on 10.1.2000 at 9.45 p.m. Recovery memo was prepared at the spot and its copy was supplied to accused persons. On the basis of the recovery memo separate cases under section 25 Arms Act, were registered against each accused. The investigation in all cases culmuinated into chargesheet against the accused appellants.
9. After committal of the cases to the Court of Session, charges for the offence punishable under sections 147,148, 302/149 and 307/149 IPC were framed against the accused appellants. Accused Avan, Jeesan and Ishar were further charged under section 25 of the Arms Act separately. All the accused persons abjured their guilt and claimed trial.
10. In support of its case the prosecution has examined complainant Shahida Begum PW-1, injured Javid Saleem PW-2, eye-witness Kallu PW-3, Dr. D. V. Shakya, PW-4, Dr. D. S. Misra PW-5, Constable Santosh Kumar PW-6, SI Jaiveer Singh PW-7, Dr. A.K.Jain PW-8, SI-Ganga Ram Son PW-9, SI- Ram Baran PW-10, Constable Rohan Lal PW-11,SI-Rajveer Sharma PW-12, Inspector M.R. Dugtal PW-13 and Inspector K.C. Pundir, PW-14.
11. In their separate statements under section 313 Cr. P. C. all accused persons have again denied the entire prosecution story and claimed false implication on account of Pradhan election rivalry. Accused Jeesan, Rihan and Avan have stated that on the alleged date of incident they were in Delhi, as their father underwent eye surgery as in-door patient in AIIMS, New Delhi. They have further stated that the police had fabricated recovery of fire arms in their alleged police custody remand. According to accused Jeesan he was Pradhan of village. Rijwan was indulged in running illicit firearm factory and he used to supply weapons to outsider miscreants. The incident took place after 'fazal namaz' with unknown miscreants. In the defence the accused have examined DW-1 Vikar Ali, father of the accused Jeesan, Rihan and Avan and DW-2 Smt. Mukeem Bano mother of accused Ishar.
12. The learned trial court after hearing the counsel for the parties and appreciating the evidence on record has convicted and sentenced the accused appellants as indicated in para-1 of the judgment.
13. We have heard the learned counsel for the appellants, learned counsel appearing for the complainant and the learned AGA for the State at considerable length and have also perused the original record of the case carefully.
14. Learned counsel for the appellants castigating the impugned judgment has urged the following points before us:
i) that the FIR is ante-timed;
ii) that the prosecution has failed to prove motive against the accused appellants to eliminate the deceased;
iii) that only highly interested, inimical and partisan witnesses have been examined and no independent witness has been produced by the prosecution against the accused- appellants;
iv) that the genesis of the prosecution story is highly improbable;
v) that there are material contradictions and discrepancies in the testimonies of PW-1 to PW-3 so they are not reliable witnesses;
vi) that place of incident is not proved;
vii)that the medical evidence adduced in the case is contradictory to the alleged eye witness account of the incident; and
viii)that accused Avan and Rihan reside in Delhi and on the alleged date of incident they along with Jeesan were in Delhi as their father Vikar Ali was admitted in AIIMS, New Delhi for eye surgery.
Per contra learned AGA and the learned counsel for the complainant have argued that it is a broad-day light double murder case; that the FIR was promptly lodged with the police; that the parties are closely related to each other and there was election rivalry between them so motive stands fully proved; that there is evidence of injured witness and eye witnesses against the accused persons who will not screen the real offender and falsely implicate any one in the case; that there are no material contradictions or discrepancies in the testimonies of eye witnesses which stand fully corroborated from medical evidence; that the witnesses have not exaggerated or embellished the prosecution story in any manner.
15. The alleged incident took place on 15.12.1999 at about 7.30 a.m. in village Chamarpura which is situated at a distance of 4 Kilometers from P.S. Sahaswan where the complainant PW-1 submitted her written report at about 8.35 a.m. On the basis of this report H.C. Santosh Kumar PW-6 prepared check report and registered the case at crime no. 351/99 u/s 147, 148, 307, 506 IPC in the General Diary vide report no. 14 at 8.35 a.m. There were four injured including the complainant till the case was registered at the police station and they all reached the police station along with four others, as per G.D. Copy report Ex. Ka-8. All the injured were sent for medical examination along with Constable Kishori Singh to PHC, Sahswan, but on account of critical condition of three injured, they were taken to District Hospital, Budaun. However, injured Ghulam Rasool succumbed to the injuries near Lal Pur and the doctor in Budaun Hospital has noted that he had been brought dead at about 9.30 a.m. The complainant has proved her written report Ex. Ka-1 stating that after the incident she dictated the report to Hashmat in the village and went with her injured husband Ghulam Rasool, son Wasim, Javid, brother-in-law Rizwan, Jaman and Tanvir in Tata Sumo to police station and submitted report. She has further stated that copy of the FIR was given to her by the Munshiji and then they proceeded to Budaun in the same vehicle as doctor in Sahaswan was not in a position to control the injured. Injured Javid and Rizwan were medically examined by Dr. D. B. Shakya PW-5 in District Hospital, Budaun at 9.50 A.M. and 10.20 A.M. respectively. HC Santosh Kumar PW-6 has proved the check report and copy of GD report no. 14 dated 15.12.1999 at 8.35 a.m. as Ex.Ka-7 and Ka-8 respectively. He has also proved the chitthi majroobi in cross-examination. No doubt crime no. and sections of IPC have not been noted on these documents, but it does not make any difference. A mere vague suggestion had been given in his cross-examination that the GD was stopped, which had been denied by him. The external checks available on record fortify the time of registration of case at the time given in the check report. From these facts, we find that the crime has been promptly reported to the police. The importance of prompt FIR in criminal trial is well known as it rules out the possibilities of deliberations and concoctions in the making of prosecution story and such report can safely be taken into consideration during trial.
16. The salient feature of this case is that both the parties are closely related to each other. The complainant has stated in the opening sentences of her examination-in-chief that accused Jeesan, Avan and Rihan are real brothers and sons of her real elder brother Vikar Ali. Another named accused Afzal (who had died during trial) is also real brother of the complainant and accused-appellant Ishar is his son. However, the evidence on record shows that at the time of incident accused Jeesan was Pradhan of the village and before him deceased Gulam Rasool had been Pradhan for several years. The claimant has noted in her written report that there was enmity with the accused on account of Pradhan election. A day before the incident there was some dispute between the Faqirs of the village, which was pacified by deceased Gulam Rasool, but this action of the deceased was not liked by Jeesan and others and they had threatened him. In spite of close relationship between the parties on account of Pradhan election their relations became sore is not a new phenomenon in our country side. Although the election took place about five years ago, but the act of deceased Gulam Rasool in pacifying the dispute between the Faqirs added fuel to the fire in the heart of Jeesan who might have thought that being Pradhan of the village it was his prerogative to lead the village people. The argument of learned counsel for the appellants that if there was any thing in the mind of accused on account of Pradhan election, they could have settled their scores much earlier, is too feeble to accept. It has come in cross-examination of PW-1 that the enmity was with regard to forthcoming election. Her husband had won earlier three elections and in the last election Jeesan was elected Pradhan of the village. She had also stated that after election a scuffle took place between her husband and Jeesan and others in wrestling and case was prosecuted. Javid PW-2 has also corroborated the election rivalry between the parties. He has been cross-examined on this point, wherein he has stated that earlier elections were not held between his father and accused Jeesan. The learned trial Court has held that motive noted by the complainant in her prompt report had been proved. We do not find any perversity in these findings. Further the instant case is based on direct evidence of injured witnesses and eye-witness Kallu PW-3, so motive takes a back seat and has become insignificant. Ultimately the conviction or acquittal of accused-appellants would depend upon the truthfulness of eye witness account of the incident coupled with the medical evidence.
17. The homicidal death of both the deceased namely Gulam Rasool and Rizwan on account of injuries sustained by them is not disputed to the defence, however they have questioned the time and place of incident (with slight variance). Their contention, as per deposition of Smt. Mukim Bano DW-2, (wife of Abrar and mother of accused-appellant Ishar)the real sister-in-law of PW-1 is that the instant incident took place after 5 a.m. in front of baithak of Jeesan in which 6-7 shots were fired and Gulam Rasool, Rizwan and Javid sustained injuries. She has further corroborated PW-1 that at the time of incident it was month of Ramzan. Calendar for the years-1999 and 2000 also fortifies this fact as on 9th of January, 2000 it was Id-ul-Fitr. PW-1 has stated that in the preceding night she along with her family members was at the house of her brother-in-law Rizwan and they have taken Sahri in the morning of 15.12.1999 at his house. It has come in evidence that a day before the incident there was some dispute between the Faqirs of the village, which was settled by deceased Gulam Rasool which was not liked by accused Jeesan and he had threatened him. In the early morning of 15.12.1999 again deceased Gulam Rasool received information that there was still some tension between the Faqirs and at the time of incident he was going to meet them from the house of his brother Rizwan when he was intercepted by armed 5-accused persons named in the FIR.
18. Learned counsel for the appellants has vehemently argued that the witnesses of fact examined by the prosecution in the case are highly interested, partisan and inimical witnesses and no independent witness has been produced by the prosecution, so no reliance should be placed on the testimonies of such witnesses. Contra learned AGA and the learned counsel for the complainant have contended that evidence of eye witness or injured witness cannot be thrown away only on the ground of their relationship with the deceased. The presence of injured witness at the spot at the time of incident cannot be doubted and close scrutiny of their deposition fully supports the prosecution story, argued the State counsel. PW-1 and PW-2 are mother and son and both of them are closely related with the two deceased. Kallu PW-3 is also distant relative of the complainant. It is a settled legal proposition that evidence of closely related witnesses is required to be carefully scrutinized and appreciated before resting of conclusion to convict the accused in a given case. In case, the evidence has a ring of truth, is cogent, credible and trustworthy it can be relied upon. (Vide: Himanshu Vs. State (NCT of Delhi) (2011) 2 SCC 36; and Ranjit Singh & Ors. v. State of Madhya Pradesh, (2011) 4 SCC 336). The Apex Court in the case of State of U. P. Vs. Anil Singh, AIR 1988 SC 1998, made weighty observations with regard to appreciation of evidence and the duties expected of a Judge presiding over a criminal trial. it observed as under :
"In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
In view of this legal proposition, the arguments advanced on behalf of the accused-appellants have no legs to stand. However, close scrutiny with care and caution of deposition of these witnesses is required.
19. PW-1 and PW-2 both are injured witnesses. Question had been raised about the injuries allegedly sustained by PW-1 on the premise that her medical examination was not conducted when the other two injured, namely Javid and Rizwan were examined by the doctor in Budaun hospital on 15.12.1999 at 9.50 a.m. onwards. No doubt PW-1 has sustained only one simple injury on her eye. Counsel for the appellants has contended that injury might have been sustained by her after her husband Gulam Rasool died as in bereavement she may had hit her face with the wall or pucca floor. This argument too has no force. The factum of injury having been sustained by the complainant finds place in her written report Ex. Ka-1 and when this report was prepared her husband was alive, who died few minutes before reaching the injured in Budaun hospital. She must have suffered great shock on the demise of her husband and that too at the hands of her own brothers and their sons. Further at that time other injured Javid and Rizwan were also serious and both of them were shifted to Bareilly and thereafter she was medically examined. This is what PW-1 has stated in her cross-examination. Therefore, the defence cannot get any advantage of some what delayed medical examination of PW-1.
20. Now as regards appreciation of evidence of injured eye witness, the under-noted legal principles enunciated by the Courts are required to be kept in mind:-
"(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
Further complainant PW-1 is a rustic illiterate lady who had thumb-marked her written report and the deposition recorded before the trial Court. She had lost her husband and brother-in-law in the incident and her young son was seriously injured apart from herself, so we cannot expect that she would be able withstood the test of lengthy and gruelling cross-examination at the hands of the defence counsel and would give the minutes details of the incident in which five accused persons have assaulted the deceased and three injured with different weapons including the complainant. The Apex Court in the cases of Dimple Gupta (minor) vs. Rahiv Gupta, AIR 2008 SC 239, State of Punjab vs. Hakam Singh, (2005) 7 SCC 408, State of H.P. vs. Shreekant Shekari, (2004) 8 SCC 153 and State of Rajasthan vs. Kheraj Ram, (2003) 8 SCC 224, has inter-alia observed that it is impossible for an illiterate villager or rustic lady to state with precision the chain of events as such witnesses do not have sense of accuracy of time etc. Expecting hyper technical calculation regarding dates and time of events from illiterate/rustic/ villager witnesses is an insult to justice-oriented judicial system and detached from the realities of life.
21. In the case of Munshi Prasad And Ors. vs State Of Bihar AIR 2001 SC 3031, the Apex Court regarding appreciation of evidence of eye witnesses by appellate Court has observed:
"Incidentally, be it noted that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the Appellate Court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra note, as well, on perusal of the evidence on record."
22. Considering the testimonies of PW-1 and PW-2 on the touchstone of above propositions of law we find that they have consistently supported the prosecution story about actual assault by the accused persons on them and both the deceased. The incident had taken place in the month of Ramzan when muslim people observe 'fast' (Roza). They take light food before sunrise, which is called 'sahari' and their fast ends in the evening by 'Roza Aftar'. The whole month of Ramzan is considered to be very pious and people not only observe Roza but Holy Quran is recited by the people with gay and gaiety. The case of the prosecution is that on the day of incident the complainant and her family members have taken 'sahari' at the house of Rizwan, real brother of Gulam Rasool in the same village. There is nothing unnatural in it. Statement of PW-1 was recorded in the trial Court on 8.11.2000, 8.1.2001, and 7.4.2001 and it runs in hand-written 40-pages. It has come in cross-examination that she is totally illiterate and does not even know directions and time according to clock. She had been subjected to long, tiring and grilling cross-examination on behalf of accused persons. Effort was made to confuse the witness with regard to manner of assault, spot position and distances, but barring few minor and natural discrepancies, she had replied the questions clearly without any ambiguity. She had explained the injuries sustained by the two deceased and injured including herself. According to her, the investigating officer did not prepare site-plan at her instance. She had verified the spot position about situation of houses of Jeesan and her brother-in-law Rizwan. According to her there were three culverts near the place of incident, but the investigating officer has not shown any of them. The learned trial Court has dealt with this aspect elaborately in its lengthy judgment, and there appears to be no need to reiterate the same, as we do not find any perversity in the findings recorded by the learned trial Judge. The hard reality of life is that the persons who has lost kith and kin in horrific incident like the present one, is likely to suffer great shock and therefore, law would not expect him/her to mention minutest details either in his/her FIR or statement under Section 161 Cr.P.C. She had stated that after sustaining injuries her husband Gulam Rasool, brother-in-law Rizwan and son Javid almost became unconscious and that's why they were not interrogated by the investigating officer. SI Ram Baran Singh PW-10 has also testified this fact by saying that except Smt. Shahida Begum no injured was in a position to give any statement.
23. Learned counsel for the appellants raising doubt about the genesis of the incident has submitted that according to prosecution story all the accused were having fire-arms, then why they would use the butts of their weapons to assault the deceased and injured. We have already seen that the written report of the incident was promptly lodged by PW-1 with the police and the manner of incident vividly finds place therein. There was no time with the complainant to concoct the false story of assault. The injured were examined at District Hospital, Budaun on chitthi majroobi sent by the police, so it is not a case where FIR came into existence after medical examination of injured as in that event the defence could have argued that the FIR has been prepared matching the incident with the medical reports of the deceased. Further it was not a case of distant firing, so if the deceased Rizwan was assaulted by butts of fire-arms it is not unnatural. In their statements all the three eye witnesses namely PW-1 to PW-3 have explained the manner of incident. All the four injured persons including the two deceased have in all sustained four fire-arm wounds of entry, three by injured Javid and one by deceased Gulam Rasool. Blackening was found on one gun shot wound of each of them. On two entry wounds of fire arm found on the person of Javid no blackening was found, it means that these injuries were caused to him from more than three feet. This is because he was unarmed and must have run in order to save himself. All these witnesses have stated that in all 5-7 shots were fired during the incident. It is not necessary that each shot fired by the accused would have caused injuries to the injured, who were not armed with any weapon. PW-1 has stated in her deposition that at the time of incident her husband was going towards the Faqirs and he was intercepted by the accused near the culvert. She, Rizwan and Javid also reached there. After sustaining fire arm injury Gulam Rasool fell down and thereafter he was hit with the butt. Rizwan ran to save himself, but he was chased by the accused persons. She has further stated that on hearing commotion she also reached near the culvert and raised alarm. Accused Afzal assaulted her with butt. She has categorically stated that Rizwan was assault in the last. This witness could not state as to whose fire had caused injuries to her husband and son. It is not unnatural or improbable. When five persons having fire-arms are engaged in the melee then no one could say as to whose shot had injured whom? Thus, the genesis of the prosecution story is not at all doubtful and the testimony of PW-1 fully corroborates the medical evidence on record.
24. Javid PW-2 has stated that on 15.12.1999 at about 6-6.30 a.m. his father came to know that there was likelihood of dispute between the Faqirs, so he was going towards them from the mosque. This witness also is almost an illiterate witness and has admitted in cross-examination that he has studied up to II and III standard. He has stated in cross-examination that first of all the accused persons have fired shots towards his father and then they opened fire towards him. According to him hearing verbal exchange of hot words he along with mother and Rizwan have reached near the culvert situated near the house of Maqsood Ali. He has stated that Rizwan was assaulted with the butts in front of the baithak of Jeesan, but he was not beaten by the accused with butts. The statement of Javid PW-2 finds full corroboration from medical evidence and there is no material discrepancy or inconsistency.
25. Kallu PW-3 has stated that at the time of incident he was returning home after namaz from the mosque. He saw Gulam Rasool going towards the Faqirs and accused Jeesan started abusing him. Javid, Rizwan and Shahida also reached there and then all the accused opened fires injuring Gulam Rasool and Javid. Rizwan was assaulted with butts. This witness has also been subjected to grilling cross-examination about the manner of incident and effort was made to confuse him, but nothing adverse could be elicited, which may create doubt about the veracity of his testimony. He has also corroborated the prosecution story on all material particulars. No doubt he has not stated about the injury of PW-1, but it does not make any difference because she had suffered only one simple injury on her left side fore head and left temporal region just above eye brow and considering the number of assailants and the injured, it is quite possible that this witness could not see as to who has caused the sole injury to Smt. Shahida PW-1. The statement of this witness is cogent, clear and reliable.
26. In view of the above discussion, we find that there is no inconsistency in eye witness account of the incident with medical evidence rather they corroborate each other. There is no infirmity with regard to place of incident, although on careful scrutiny of evidence of eye witnesses we find that the investigating officer has not shown all important details of the spot. The learned trial Court has elaborately discussed this part of the prosecution story in detail and we do not find any illegality in the findings of the trial Judge, where he has criticized the conduct of the investigating officer in preparing site plan. The trial Court has rightly observed that in investigating the case the investigating officer has tried to help the accused persons, one of whom namely Jeesan was present Pradhan of the village. In this connection we may usefully refer to very emotional observations of the Full Bench of this Court in the case of Gopal and others vs. State of U.P. 1999 (39) ACC 92 (FB), wherein it has been held that weakness of investigation is no ground to reject the direct testimony of the prosecution witnesses. It was observed:
"At the very outset, we want to say that it is very easy to find fault with anything. Even accurate computers are prone to commit faults and mistakes. Not only this, human mind cannot be read. Sometimes it works in the direction that it becomes adamant to help one party and tries its level best to spoil the case. It is well known, at least by the police officers, who investigate the case, also know that they should take prompt action and should immediately record the statement of the witnesses. They should not make cuttings and over-writings etc. in the police papers so as to create suspicion about the sanctity of the papers. They should fairly prepare the inquest report and police papers and should write the case diary with accuracy and correctly. These propositions of law and facts cannot be doubted. But if the police officers deliberately sleep over the matter, try to spoil the case and do not record the evidence of the witnesses immediately, the poor dead persons who have been killed cannot come out to say why you are spoiling the case. The bereaved family and the witnesses have only to remain silent spectators to what the police officers do. If they intervene, a judicial notice of the fact can be taken that they are humiliated, even beaten and implicated in false cases. Fear of police atrocities keeps them mum. They are also ignorant of the fact that what shall be the effect of delay and discrepancy. Therefore, also, they have nothing to intervene with the investigation. In our view, investigation of the case, if faulty, even mischievous or collusive should not be a ground to reject the ocular testimony of the informant who lodged the F.I.R. promptly. If the FIR is recorded soon or is recorded after four or five hours, why should the prosecution or the persons who have died 'suffer'. Each and every case has to be decided on its intrinsic evidence. If the eye-witnesses are believable the mere weakness of the investigation should not be a ground to reject their testimonies."
Not only this Court, but the Apex Court time and again has cautioned that lapses or negligence on the part of investigating officer are not fatal, if the prosecution case stands proved from other reliable and cogent evidence. In the case of Ambika Prasad and another vs. State (Delhi Administration) 2000 (40) ACC 462 (SC), Hon'ble Apex Court has held that negligence of investigating officer should not result in acquittal of the accused, when prosecution case is otherwise established. In Ram Bali vs State of U.P. AIR 2004 SC 2329, the Hon'ble Apex Court has observed as under:
"14. As was observed in Ram Bihari Yadav v. State of Bihar and others (1998 (4) SCC 517) if primacy is given to such designed or negligent investigation, to the omission or lapses or perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice. This view was reiterated in Amar Singh v. Balwinder Singh and others (2003 (2) SCC 518). As noted in Amar Singh's case (supra) it would have been certainly better if fire-arms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of eye-witnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect credibility of the prosecution version."
27. Accused Avan, Jeesan, Ishar were taken on police custody remand under the orders of the Magistrate and at the instance of accused Avan, a country made gun 12 bore, country made rifle 315 bore from Jeesan and accused Avan got recovered a country made pistol 315 bore on 10.1.2000 at 9.45 p.m. in presence of public witness Musarrat. Recovery memo was prepared at the spot and its copy was supplied to accused persons. On the basis of the recovery memo separate cases under section 25 Arms Act, were registered against each accused. This recovery has been proved through the statement of SI Ganga Ram Son PW-9, who has proved the disclosure statements of accused as recorded in the case diary as also the manner of recovery of fire-arms at the instance of accused Avan, Ishar and Jeesan. This recovery is admissible u/s 27 Evidence Act. Separate cases u/s 25 Arms were also registered against these accused and their investigation ended in charge-sheet. The investigation of these cases had been proved by SI Ram Baran Singh PW-10. The learned trial Court after appreciation of evidence in respect of these cases has found the aforesaid accused guilty for the offence punishable u/s 25 Arms Act. We have perused the findings recorded by the learned trial Judge and find that there is no illegality or perversity therein.
28.The fire-arms recovered at the instance of aforesaid accused persons and another accused Afzal (who has since been died) were sent to Forensic Science Laboratory along with the empties recovered from the spot. The FSL has found in its report that cartridge EC-1 was fired from SBBL gun got recovered by accused Avan, EC-2 was fired from SBBL gun recovered at the instance of accused Afzal while EC-3 was fired from the country made pistol, which was handed over by accused Ishar. This report further fortifies the participation of the accused persons in the crime.
29. Now as regards the alibi plea of accused Jeesan, Avan and Rihan, it has been contended on behalf of the appellants that accused Avan and Rihan reside in Delhi and on the alleged date of incident they along with Jeesan were in Delhi as their father Vikar Ali was admitted in AIIMS for his eye surgery. Reliance has been placed on the testimony of Vikar Ali DW-1, who is father of aforesaid accused persons. He has also filed three papers regarding his admission in AIIMS, New Delhi. Photo-copy of discharge slip Ex. Kha-1 has been filed. On this slip the name of patient as Vikar Ali has been noted and his father's name Rahan Ali had been mentioned, while DW-1 is son of Zulfiqar Ali. The original slip has not been filed for reasons best known to the defence. The other paper is an estimate of medicines dated 14.12.1999 which is hand-written but not signed on the printed pad of 'Sight Palace', Opp. Punjab Market (Basement), NDMC Market, Yusuf Sarai, New Delhi. The third document is 'Refund Proforma General Ward' , but it does not bear the signature of issuing person 'Sister-in-charge of the Ward'. The discharge slip being photo-stat copy and not having the correct parentage of Vikar Ali does not support his statement with regard to any treatment or eye surgery. According to this witness he was operated on 15.12.1999 and ere that he was admitted in the hospital on 13.12.1999 by all his sons residing in Delhi namely Rihan, Avan and Ishar. He further stated that he was discharged from the hospital on 16.12.1999. All these three sons took his care during his admission in the hospital and on 15.12.1999 Jeesan also reached there. At other place he states that his Furqan was also present at the time operation. Thus, all the five sons, according to DW-1 were in Delhi on 15.12.1999. He has stated that he underwent surgery for cataract, which is quite simple surgery and does not warrant stay of patient in the hospital after operation even for a single day. Thus, presence of all the five sons of Vikar Ali in Delhi on 15.12.1999 he is highly doubtful. It may be quite possible that only Furqan has attended his father, who has not been named by the complainant in her written report. The most significant feature of this plea of 'alibi' is that it was never taken by any of the accused prior to their statements u/s 313 CrPC. This fact has admitted by DW-1 in the following words:
" eSa o esjh yM+dh bl eqdnesa es vius csVksa dh iSjoh dj jgk gWwA eSa vnkyr ds lkeus vkt igyh ckj vk;k gwW blfy, igyh ckj dg jgk gWw fd esjs yM+ds esjs lkFk vkijs'ku ds oDr fnYyh esa FksA blls igys eSaus ;g ckr dgha fdlh vnkyr esa ugha dgh gSA u ls'ku tt ds ;gkW] u bl U;k;ky; esa] u mPp U;k;ky; esa] u mPpre U;k;ky; esaA ;g ckr eSaus vius fdlh odhy ls vius fdlh yM+ds dh nj[okLr tekur esa ugha fy[kk;h fd vkijs'ku ds oDr esjs yM+ds esjs lkFk fnYyh esa FksA"
The above statement of DW-1 was recorded on 6.8.2003 i.e. more than four years after the incident. It has also come in cross-examination of DW-1 that it takes 5-6 hours to reach Delhi from Sahaswan and the car would cover this distance early, so the distance was not such to make any one impossible to be on the spot at the time of incident. The delayed plea of 'alibi' also creates doubt about its authenticity.
30. The Apex Court in catena of cases has observed that Alibi is not an exception (special or general) envisaged in the IPC or any other law. It is only a rule of evidence recognized in S. 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The Latin word "alibi" means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and had participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the incident took place. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. In such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellants on the spot at the relevant time.
31. In view of the above proposition of law with regard to the plea of 'alibi', the defence evidence adduced in the case does not inspire confidence. It is true that PW-1 has admitted in her cross-examination that accused Rihan and Avan reside in Delhi but she had added their families live mostly in the village. Thus, we find that the learned trial Court has rightly rejected the alibi plea of accused persons Rihan, Avan, Ishar and Jeesan.
32. The prompt lodging of the FIR is proved from the check report and the statement of the complainant under section 161 Cr.P.C., which was recorded immediately after lodging the FIR. The FIR contains all the essential features of the prosecution's case including names of eye witnesses, time and place of incident, names of the victim, motive, name of the accused persons, weapons in their hands and manner of assault. Thus, all these things lend a seal of assurance not only to the presence of eye witnesses at the place of the incident, but also to the participation of the appellants in the crime. Courts attach great importance to the prompt lodging of FIR and prompt interrogation of a witness u/s 161 Cr.P.C. as the same substantially eliminates the chances of embellishment and concoction creeping into the account contained therein.
33. Before parting with the case, we would like to observe that the trial Court has convicted and sentenced the appellants both u/s 147 and 148 IPC, which is absolutely illegal. Both these sections operate in different fields. No doubt formation of unlawful assembly to commit an offence in prosecution of the common object of such assembly is required to be established under both the sections, but a person cannot be held guilty on both counts. If an accused as a member of unlawful assembly is armed with a deadly weapon, then he is liable to be convicted u/s 148 IPC, while the one who did not possess any dangerous weapon would be convicted u/s 147 IPC. In the instant the evidence has proved that all the accused-appellants were having fire-arms, which have also been used by them in the incident, so they would be convicted u/s 148 IPC and not u/s 147 IPC. To this extent the impugned judgment deserves modification.
34. In view of the afore-stated reasons we do not find any merit in the appeals. However, the appellants are acquitted for the offence punishable u/s 147 IPC. Their conviction and sentence on other counts is maintained. The appeals are dismissed.
35. Let certified copy of the judgment be sent to the Court concerned as also to Chief Judicial Magistrate, for compliance, which should be reported within 6-weeks.
...........................Rakesh Tiwari, J .................Anil Kumar Sharma, J November 21, 2012 AK/