Hon'ble Ifaqat Ali Khan,J.
(Delivered by Hon'ble Ifaqat Ali Khan, J) The present jail appeal has been preferred by the appellant Anees @ Rais against the judgment and order dated 30.4.2011 passed by Additional Sessions Judge, Court No. 8, Aligarh in ST No. 986 of 2005, State Vs. Anees @ Raees in Crime No. 132 of 2005 under section 302 IPC, police station Dehli Gate, district Aligarh by which accused appellant Anees @ Rais has been convicted under section 302 IPC and is sentenced for the life imprisonment with fine of Rs. 5000/- and in default of payment of fine, he will undergo additional imprisonment for six months.
Facts giving rise to this appeal are as under:
Jameel complainant lodged an FIR at police station, Dehli Gate on 26.5.2005 at 22:10 O'Clock with the facts that he is resident of Gosht Wali Gali, Mahfooznagar, police station Dehli Gate, Distrcit Aligarh. His younger brother Munees aged about 20 years was a rikshwa puller and used to reside with the complainant. On 26.5.2005 complainant Jameel, his younger brother and neighbor Rajuddin went to Mohalla Shahganj to purchase a rikshaw from the sister of Rajuddin. After seeing the Rikshaw when these three persons were coming back to their home then they found Anees in mohalla Shahganj standing in front of the house of Barkat. Seeing Munees, Anees said "I have forbidden you so many times not to visit the house of my step mother but you are not stopping to come." On it Munees asked "who are you to check me. I will visit to the residence of your step mother." On it Anees took out a country made pistol and fired at Munees which hit on the right lower abdomen of Munees at about 8:15 pm. Being injured Munees fell down in the lane. Anees threatened the complainant and his accompanied persons and ran away. Complainant took his brother to Malkhan Singh hospital, Aligarh for treatment where the doctors declared Munees to be brought dead. The dead body of Munees is lying in the hospital and he had come to lodge the report.
On the basis of FIR, case was registered at the police station Dehli Gate and its entry was made in GD and the investigation was handed over to the Sub-Inspector Vinod Kumar Payal. Inquest report was prepared by Sub-Inspector Pratap Singh under the instruction of Vinod Kumar Payal. Investigation Officer Vinod Kumar Payal prepared the site plan and took blood stained soil and plain soil. On the pointing of accused Anees, on 18.7.2005, Sub-Inspector Vinod Kumar Payal recovered the weapon used in murder i.e. country made pistol and empty cartridge.
Dr. M.K. Jain carried out the postmortem of the body of deceased Munees. After recording statement of witness, Investigation Officer (PW-4) Vinod Kumar Payal submitted charge sheet under section 302 IPC against accused appellant Anees.
The case was committed by the Magistrate to the Court of Sessions for trial as the offence was triable by the court of Session.
Charge under section 302 IPC was framed against the accused Anees which he denied and demanded trial.
Prosecution has examined four witnesses to prove his case. PW-1 Jameel, PW-2 Rajudeen, PW-3 Dr. M.K. Jain and PW-4, Sub-Inspector Vinod Kumar Payal.
PW-1 Jameel is the complainant as well the eye witness of the occurrence. He in his statement has supported the prosecution version and stated that near about 2 years ago at about 8:15 pm when he alongwith Munees and Rajudeen were coming back after seeing riskshaw then they saw that Anees was standing in front of his house. Anees said to Munees that you will not come to my step mother's house but Munees said that I will come. On it Anees fired at Munees on the right lower abdomen of Munees. He took Munees to Malkhan Singh Hospital for treatment where doctor declared him to be brought dead. He got his FIR scribed by Zaheeruddin at his dictation. He put his thumb impression as well as signature on it and presented at police station. He stated that the inquest report was also prepared before him and alongwith other persons, he signed the inquest report also. This witnesses has proved the FIR (Exhibit-1).
PW-2 Rajuddin is adduced by prosecution as the eye witness of the occurrence. But this witness did not support the prosecution version hence he was declared hostile by the court at the request of ADGC.
PW-3 Dr. M.K. Jain (Radiologist) has carried out the postmortem of deceased Munees. In his statement he has stated that on 27.5.2005 at 3:30 pm he carried out the postmortem of Munees and found the following injuries:
(a) Fire arm injury wound of 2.5 cm x 2.5 cm right iliac region of lower abdomen with blackening in 6.00 cm x 4.00 cm area 5 cm above. Pubic symphysis intestine loops are coming out. In the stomach 4 ounce semi digested food was found and there was semi digested food and gases in the small intestine and faecal matter and gas were found in the large intestine. The time of death was near about 18 hours before postmortem and the death was caused due to ante mortem injury as result of haemorrhagic shock. This witness proved the postmortem report.
He took out the tickly and pallets from the body of the deceased PW-4, Sub-Inspector Vinod Kumar Payal prepared the site plan and took the blood stain soil and plain soil in his possession. He also proved the recovery of weapon from Anees at his pointing and prepared charge sheet. This witness proved the inquest report and papers related to it. He also proved the recovery memo of taking the blood stain soil and plan soil in his possession. He proved the recovery of the weapon from accused. He also proved site plan and the charge sheet.
Statement of accused Anees was recorded under section 313 Cr.P.C. He denied the incident and said that he has been falsely implicated in this case due to enmity.
No evidence was adduced from the side of the accused in his defense.
On the basis of this evidence, learned trial court convicted the accused Anees under section 302-IPC and sentenced him with imprisonment of life alongwith fine of Rs. 5000/- and it was also provided that in default of payment of fine, he will undergo the additional imprisonment of six months.
Being aggrieved by this judgment and order dated 30.4.2011, this appeal is preferred on the following grounds.
(I) Accused appellant has not committed any offence. Impugned judgment and order dated 30.4.2011 is passed against facts and evidence and on the concocted story. No independent witness is adduced by the prosecution.
(II) In the FIR, PW-1 Jameel has said that on 26.5.2005 when they were coming back from the house of the sister of Rajuddin then they found accused Anees standing in front of the house of Barkat whereas in his statement as PW-1 he has stated that they found accused Anees standing in front of his house.
(III) PW-2 Rajuddin has not supported the version of the prosecution and there are contradiction between the statement of PW-1 and PW-2 and the lower court has convicted the accused on sole testimony of PW-1 Jameel. Hence the judgment and order dated 30.4.2011 is liable to be set aside.
Heard Sri Sitaram Sharma, learned Amicus Curiae for the appellant and Sri Arun Kumar Singh, learned AGA.
Learned Amicus Curiae has argued that in the FIR, it is mentioned by the complainant that when the complainant, his brother Munees and his neighbor Rajuddin were coming back to their home then they met Anees standing in front of his house, but complainant as PW-1 in his statement has said that when he alongwith his brother Munees and Rajuddin were coming back then they saw that Anees was standing in front of his house and this contradiction creates the doubt regarding the place of occurrence. We do not agree with this argument of learned Amicus Curiae on the ground that in FIR it is specifically mentioned that when these abovenamed three persons were coming back to their house then they met Anees in Mohalla Shahganj. The house of Barket is also situated in Mohlla Shahganj as shown in the site plan. In the recovery memo of the country made pistol, the address of accused Anees is also mentioned as resident of Mohalla Shahganj, Shahjamal. In the statement recorded under section 313 Cr.P.C the accused has also stated his address as resident of Shahjamal, mohalla Shahganj is situated within the locality of Shahjamal. In the charge sheet also the address of accused Anees is mentioned as resident of Shahganj, Shahjamal. The most important fact is that PW-1-complainant Jameel in his statement has specifically stated that he told to Darogaji that the house of Anees is nearby to the place of occurrence. The defense counsel has not cross examined this witness on this point that the house of Anees is not situated nearby to place of occurrence. Counsel for the accused has not even given this suggestion to PW-1 Jameel that it is wrong that the house of accused Anees is situated near the place of occurrence. Hence it is proved from the above evidence that house of the accused Anees is also situated near the place of occurrence in mohalla Shahganj. Hence there is no contrafiction regarding the place of occurrence in FIR and in the statement of PW-1.
Learned Amicus Curiae advanced his next argument that complainant-PW-1 Jameel in his statement has said that the the night in which incident took place was dark and there was no electric poll near the place of occurrence. Hence there was no occasion for the witness to recognize the accused Anees. We disagree with this argument of the Amicus Curiae on two grounds. Firstly, that the statement of a witness must not to be read in a piece meal but it is to be read as a whole. PW-1 Jameel has stated that there was no electric poll near the place of occurrence, but the light was present there. In the site plan, Investigating Officer has shown that a bulb was lighting on a bamboo in the house of Abdul Sattar which is adjacent to the house of Barket Ali where the incident took place. On internal page -12 of the judgment, the trial court has held that Rajuddin in his statement under Section 161 Cr.P.C, has admitted that at the time of incident there was electric supply and bulb was lighting in the court yard of Rajuddin from where light was spreading in the lane. In this regard, it is also important to note that this incident had taken place in Mohalola Shahganj of Aligarh city. Perusal of the site plan shows that there are continuous houses on both the sides of the road near the place of incident. The incident had taken place at 8:15 pm. At that time light was on in each and every house. Generally people fixes the bulbs and tubelights on the main door of the house and lights from the windows and doors of the houses was also coming on the road. So it cannot be said that there was no sufficient light to recognize the accused Anees on the spot. Secondly, accused Anees is well known to the deceased Munees and the complainant - PW-1 Jameel. As per prosecution there had been verbal altercation between Anees and Munees. Anees asked Munees not to visit the house of his step mother which Munees had refused. In the site plan, it is mentioned that Anees had fired on Munees with the distance of 2 and ½ steps. As per medical report also the blackening is found around the fire arm wound of Munees. When the accused Anees was so close to deceased Munees, and the complainant Jameel then even in the dim light Jameel had full opportunity to identify and recognize Anees specially that too when they are already known to each other.
Learned Amicus Curiae further argued that in the inquest report where the time of starting the proceeding of inquest report is mentioned, there is overwriting on the date which was formerly written as 27.5.2005 and later overwritten as 26.5.2005. This fact makes the inquest report doubtful. We disagree with this argument of Amicus Curiae because at the place where the date and time of completing the inquest proceeding is mentioned, the time of completion of inquest report is also mentioned as 27.5.2005 at 9:30 am. If we presume the argument of Amicus Curiae true then how it is possible that the proceeding of inquest report was initiated on 27.5.2005 at 23:30 O'clock and it ended on 27.3.2005 at 9:30 am. Under such circumstances, it is clear that in the column of starting of inquest proceeding 27.5.2005 was written by mistake which was corrected by overwriting as 26.5.2005. Learned Amicus curiae also argued that the FIR is ante-dated and it is recorded after the completion of inquest report. We again disagree with this argument of Amicus Curiae because in the inquest report it is mentioned that the copy of chick and FIR is annexed with the inquest report. If the FIR and chick would have been written after the inquest report then how the copies of FIR and chick would have been annexed with the inquest report.
Learned Amicus Curiae raised his next argument that in the post mortem report semi digested food is found in the stomach of deceased Munees and PW-3 Dr. M.K.Jain in his statement has stated that deceased Munees would have taken food three hours before his death. Whereas PW-1 Jameel in his statement has said that till the occurrence his brother Munees has not taken any meal. This facts shows that medical evidence does not support the ocular evidence of PW-1 Jameel. This argument of Amicus Curiae is not tenable on two grounds. Firstly, that incident took place at 8:15 pm. It was near about dinner time. PW-1 Jameel has said that "?kVuk gksus rd esjs HkkbZ us [kkuk ugha [kk;k FkkA Here the word [kkuk means meal i.e. dinner. Nowhere in his statement PW-1 Jameel has said that his brother Munees had not eaten anything since 3 or 4 hours before the incident. It is very much possible that 3 hours before the incident, deceased Munees would have taken some light food or refreshment which was not in the knowledge of PW-1 and this light food was not taken by Munees in the presence of PW-1 Jameel.
Learned Amicus Curiae argued that PW-1 Jameel in his statement has said that after the incident, his statement was not recorded by I.O. Whereas PW-4 Sub-Inspector Vinod Kumar Payal who is Investigating Officer has stated that on 26.5.2005 he recorded the statement of PW-1 Jameel. It shows contradiction between the statement of PW-1 Jameel and PW-4 S.I. Vinod Kumar Payal. In our opinion, this contradiction is not much relevant because where the PW-1 says that after the incident his statement was not recorded by the I.O. This inference from the statement of PW-1 Jameel can be drawn that he mean to say that after 26.5.2005, i.e. the date of incident, his statement was not recorded by the Investigating Officer because the statement was recorded by I.O on the date of incident itself. Defense counsel has also not cross examined PW-1 Jameel on this point to clarify that when the statement of PW-1 was recorded by I.O, or whether it was recorded or not. If PW-1 would have said that his statement was never recorded by I.O., then it would have been relevant.
Learned Amicus Curiae has further argued that PW-1 Jameel in his statement has said that after the arrest of the accused, police obtained the thumb impression of accused on some papers. It creats doubt on the investigation by I.O. In our opinion, this argument of Amicus curiae has no force because PW-1 has nowhere said that these thumb impressions of the accused were obtained by the police on the blank proforma or on plain papers. Secondly accused himself has nowhere stated that police got his thumb impression on plain papers or on some blank proforma and they were misused by the police.
Learned Amicus Curiae further argued that on 13.7.2007 the country made pistol which was alleged to be used in the incident was recovered by the police at the pointing of accused Anees, but it was not sent to the ballistic expert for report. It affects the prosecution case adversely. We disagree with this argument of Amicus curiae on the two points. First, if any irregularity is committed by the I.O, for not sending recovered country made pistol to the ballistic export, it will not effect the prosecution case adversely because the Hon'ble Supreme Court in the Case of State of UP Vs. Hari Mohan, ACC 2001 (42) page 91 has held that the accused cannot be acquitted on the basis of faulty investigation. Again in the case of Karnal Singh Vs. State of MP, AIR 1995 SC page 2472, Hon'ble Apex Court has held that where the I.O does not investigate the matter properly to give benefit to the accused, then accused cannot be acquitted on the basis of faulty investigation. Secondly, the incident took place on 26.5.2005 and accused Anees had been arrested on 4.7.2005 i.e. accused was arrested after one month and 9 days of the incident. In this period the accused was having ample opportunity to put the said country made pistol which was never used in the incident at some place and got it recovered by police on his pointing to weaken the prosecution case. In such type of case, in our opinion, the report of ballistic expert is not of much relevance in respect of country made pistol which cannot be identified as the murder weapon. The situation would have been otherwise, if the offence would have been committed by the identified weapon such as numbered weapon or the weapon, would have been recovered on the spot or where the empty cartridge is recovered from the spot, then the report of ballistic expert was relevant.
Learned Amicus Curiae advanced his next argument that in the site plan of recovery of country made weapon the bore of the recovered country made pistol is not mentioned and space for mentioning the bore of the weapon is left vacant which makes the prosecution case doubtful. We disagree with this argument of Amicus Curiae because no doubt in the site plan space for writing the bore is left vacant but at the same time the recovery memo of the country made pistol is prepared wherein the bore of the recovered country made pistol is mentioned as 12 bore.
It is further argued by the Amicus Curiae that in this case two witnesses have been examined to prove the facts namely PW-1 Jameel and PW-2 Rajuddin. PW-2 Rajuddin has not supported the prosecution case. PW-1 Jameel is the brother of the deceased Munees and no independent witness has been examined by the prosecution to prove his case. This argument of Amicus Curiae is not tenable because the testimony of the witness who is related to the deceased or victim can not be discarded on the sole ground that he is relative of the deceased or victim. Hon'ble Supreme Court in the case of Ram Kumar Vs. State of Hariyana, 1999 SCC Crl. Page 1087 has held that where the only statements of brother and father of the deceased were recorded in the court who were in the company of deceased at the time of assault, there non-examination of other witness who came to spot would not be fatal. Supreme Court in the case of Prasad Mohoto Vs. State of Bihar, 1994 SCC Crl. Page 55 has held that where son of the deceased is the witness, he would not let the real assailant escape and substitute him by an innocent person. The testimony of son was believed by Hon'ble Supreme Court.
It was next argued by the Amicus curiae that the trial court has convicted accused Anees on the sole witness of fact namely PW-1 Jameel. PW-2 Rajuddin has not supported the version of prosecution and he has been declared hostile. In this regard, it is to be appreciated that a Division Bench of this court in the the case of Smile and Jivriel and others Vs. State of UP, ACC 1999 (38) page 256 held that entire evidence of hostile witness is not necessary to be discarded. It is court's duty separate grain from chaff. Evidence of hostile witness should be analyzed like any other witness to see if any truth come out. In the case of Koli Lakh man Bhai, Chena Bhai Vs. State of Gujrat, ACC 2000(40) page 111, Honble Supreme Court has held that the evidence of hostile witness can be relied upon to the extent to which it support the prosecution version. Evidence of such witnesses cannot be treated as washed off the record. There is no bar to base conviction upon his testimony if it is corroborated by other reliable evidence. In the case of State of UP Vs. Ramesh Prasad Mishra and others, 1997 JIC page 44, Hon'ble Supreme Court has held that evidence of the hostile witness is not to be discarded as a whole. Close scrutiny is required. Portion consistent with the prosecution or defence can be accepted. In the case of Khujji @ Surendra Tiwari Vs. State of M.P., 1991 Crl LJ 2653, Hon'ble Supreme Court has held that the evidence of hostile witness cannot be treated as effaced or washed off the record all together. Part of the evidence which is otherwise acceptable can be acted upon.
In the light of above pronouncements, we see that though PW-2 Rajuddin is declared hostile, but in his statement under section 161 Cr.P.C., he has fully supported the prosecution case and even in his statement as PW-2 in the court, in his examination-in-chief, he has stated that on 26.5.2005, he did not go to the house of his sister Parveen with Munees and Jameel to purchase a rikshaw. I did not see Anees firing on Munees since on the date of incident he had gone to house of his sister, he had not seen the incident. In the examination-in-chief where this witness is saying that he had not seen the incident but in his cross examination he has said that on 26.5.2005 at about 8:15 pm, complainant Jameel was called from his house by giving information. In this case incident took place at 8:15 pm. Analyzing his statement if PW-2 Rajuddin was not on the spot at the time of occurrence and at that time he had gone to the house of his sister. Then how could he know that on 8:15 pm Jameel was called from his house by sending information of the incident. These facts shows that PW-2 Rajudeen had seen the incident but is deliberately giving false statement to save the accused. Here it is also relevant to note that even on the testimony of sole witness, the court can convict the accused if his evidence is trustworthy and reliable and is corroborated by other evidence. Hon'ble Supreme Court in the case of Parveen Vs. State of Haryana, 1997 SCC Crl. Page 63 has held that if the testimony of solitary witness is corroborated by other evidence then conviction can be based upon his testimony. Hon'ble Supreme Court in the case the Marvadi Kishor Parmanand and another Vs. State of Gujrat, 1994, SCC Crl page 1294 has held that on the basis of testimony of solitary witness the court may convict if the evidence is wholly reliable. These rulings applies to the present case because in this case PW-1 Jameel has no enmity with the accused Anees. There is no reason of false implication of accused respondent Anees by complainant PW-1 Jameel. The medical evidence fully corroborates the prosecution case as well as statement of PW-1 Jameel. PW-1 Jameel has specifically stated that Anees opened one fire on Munees which hit him at the right lower abdomen. In the post mortem report also gun shot wound is found on the right side of lower abdomen. Thus statement of PW-1 Jameel is fully corroborated by the medical evidence. It is also worth mentioning that the incident took place on 26.5.2005 at 8:15 pm and the FIR is lodged promptly without any delay within 3 hours at 10:10 pm and in this period also PW-1 Jameel after occurrence first of all took his brother Munees for treatment at Malkhan Singh Hospital and when in the hospital Munees was declared dead then Jameel came to the police station to lodge the FIR and the police station is 3 Km away from the place of incident.
Motive of the incident is also proved in this case. Prosecution case is that Anees asked Munees not to visit the house of his step mother when Munees confronted then Anees fired at him. This motive is proved by the suggestion given by the defense counsel to the witnesses PW-1 Jameel that there was illicit relationship of Munees with the step mother of Anees and the residents of locality used to make complaint, to the complainant regarding it, and therefore, the complainant with the connivance of criminals murdered his brother Munees.
On the basis of above discussion, we come to the conclusion that there is no illegality, irregularity or perversity in the impugned judgment dated 30.4.2011 passed by passed by Additional Sessions Judge, Court No. 8, Aligarh in ST No. 986 of 2005, State Vs. Anees @ Rais and no interference is warranted. Appeal is liable to be dismissed.
In view of above, the appeal is dismissed. The aforesaid impugned judgment and order dated 30.4.11 is affirmed.
Copy of this judgment be certified to the court concerned for necessary compliance. Lower court record be sent back to the court concerned. Case property be destroyed as per the rule after the expiry of time for appeal, in case no appeal is preferred.
Learned Amicus curiae will get Rs. 10,000/- for assisting the court in the present appeal.
Order Date :- 24.8.2018 SKS