Reserved
In Chamber
Case :- CRIMINAL APPEAL No. - 940 of 2007 Appellant :- Asif Respondent :- State Of U.P.
Counsel for Appellant :- M.J. Akhtar,A.J. Akhtar,R.K.Khanna Counsel for Respondent :- Govt. Advocate
Hon'ble Bachchoo Lal, J. Hon'ble Suresh Kumar Gupta, J.
1. By this criminal appeal, under section 374 (2) Cr.P.C. the appellant- accused, Asif, challenged the impugned judgment and order dated 06.01.2007 passed by Special Judge, Badaun in S.T. No. 931 of 2006 (State Versus Asif) the appellant who face alleged commission of offences under Section 302 of I.P.C. and was sentenced to imprisonment of life and to pay a fine of Rs. 5000/- in default two month imprisonment.
2. The prosecution version unfolded by complainant-Pappu. On 3rd May, 2005, the deceased-Mukkaram accompanied with complainant-Pappu went to village Bhavanipur Khalli which was his in-laws home. When complainant Pappu and Mukarram with Mukkadis were going to meet Pradhan Akram in the meanwhile at 8:30 pm, accused Bitton, Asif and Musahid catching hold the Mukkaram and forcibly take away and abusing. Complainant intervened and asked them why they are dragging him then accused told him that Mukkaram has taken their country-made pistol. During altercation, several villagers gathered at the baithak of Pradhan-Akram. Then Pradhan-Akram asked what is the matter. Then accused told him that Mukkaram is in possession of his country-made pistol but the deceased-Mukkarram denied the allegation inflicted upon him. Complainant-Pappu, deceased-Mukkaram along with accused as well as Pradahan-Akram gathered at the roof of Pradhan’s house for compromise between deceased-Mukarram and accused-Asif. During the altercation on the pretext of returning the country-made pistol to appellant-Asif, at 9.00 pm, appellant-Asif shot Mukkaram. Due to gunshot injury, Mukkaram died on the spot at the roof of Pradhan-Akaram's house and appellant-accused-Asif left his country-made pistol at the roof of Pradhan-Akram. Dead body of deceased was lying at the roof of Pradhan’s house.
3. F.I.R of this case was lodged by complainant at 11 P.M. at Police Station- Sahaswan, District Budaun and the distance between the place of incident and Police Station is about 10 Kilometers. On the basis of written report Exhibit KA-1 an F.I.R Exhibit KA-14 was lodged against the appellant-accused alongwith Betton and Musahir under Sections 302 I.P.C. After lodging the F.I.R., police rushed to the spot and panchnama was prepared by police and dead body was sealed on the spot and send for autopsy. Police had also recov- ered country made pistol and empty cartridge from the spot and prepared re- covery memo Exhibit KA-10 and also prepared recovery memo of blood stains and plain earth Exhibit KA-9. Police had also taken custody of lantern and supurdiginama Exhibit KA-11.
4. Autopsy of dead body was conducted by PW-3, R.C Sharma. During examination of dead body following anti-mortem injuries were found on the dead body of deceased:-
(I) Fire arm wounds of entry 1.0 cm X 1.0 cm on left side back of chest 12.0 cm from the midline just below scapula margin inverted blackening in an area 3.5 X 2.5 cm present.
(II)Fire arm wounds of exit 1.5 cm X 1.5 cm on left side front of chest 6.0 cm from nipple the injury is communicating to the injury No. 1.
5. In view of the above the Doctor opined that the cause of death is hemor- rhage & shock as a result of anti-mortem injury.
6. After completion of investigation on 29.06.2005 charge-sheet was placed against the accused Asif, Bitton and Musahir before the Chief Judicial Magistrate. But Mushir and Bitton absconded afterward than file of Asif was separated and case committed to Sessions on 09.10.2006 and charge was framed by the trial court against the accused on 09.10.2006 under Section 302 of I.P.C. In order to prove his case prosecution has examined PW-1, Pappu (eye-witness), PW-2, Shaukat Ali, PW-3, Dr. R.C. Sharma, PW-4, Mukkadis, PW-5, S.I. Satya Narayan Singh, PW-6 S.I. Hari Ram Nirala.
7. Prosecution also relied on the documentary evidence of the following doc- uments.
8. Written report of Complainant Exhibit KA-1, Post Mortem Report Exhibit KA-2, Panchayatnama Exhibit KA-3, Photo Nash Exhibit KA-4, sealed Mohar Exhibit KA-5, challan dead body Exhibit KA-6, letter R.I. Exhibit KA-7, letter to C.M.O. Exhibit KA-8, recovery memo of blood stained earth and plain earth Exhibit KA-9, recovery memo of country-made pistol and empty cartridge Exhibit KA-10, recovery memo and supurdiginama of lantern Exhibit KA-11, charge-sheet Exhibit KA-13, report of Forensic Science and Laboratory Exhibit KA-16 & KA-17 respectively.
9. After recording the statements of witnesses, appellant-accused-Asif was examined under Section 313 Cr.P.C. In his statement appellant-accused-Asif said that he was falsely roped in this case due to enmity and he is innocent. After appreciation of evidence, trial court convicted appellant-accused-Asif under Section 302 I.P.C. for rigorous life imprisonment and also imposed Rs. 5000/- as fine and default making payment thereof shall further undergo two year additional imprisonment.
10. I have heard learned counsel of appellant as well as learned counsel on behalf of respondent and peruse the record.
11. Learned counsel of appellant-accused (M.J. Akhtar) contended that judgment and order is contrary to the evidence on record. The prosecution has completely failed to prove his case beyond reasonable doubt. There is no cogent and clinching evidence to implicate the appellant-accused. It is also argued that trial court has convicted and sentenced the appellant on presumption that deceased- Mukkaram, might have murdered in other manner not as alleged by the prosecution. It is also contended that prosecution withhold the deposition of Pradhan-Akaram because occurrence has taken place on the roof of villlage Pradhan-Akaram. The house of Pradhan-Akaram is situated in village Bhavanipur, Khalli and he was the material witness in this case. Learned trial court erred to believe upon the evidence of PW-1 because presence of PW-1 is doubtful at the place of occurrence. It is also contended by learned counsel for the appellant that evidence of PW-1 suffers with several contradiction and PW-2 & PW-4 became hostile but learned trial court convicted the appellant-accused without any substantive piece of evidence. So the sentence and conviction is not sustainable and is liable to be set aside. It is also argued by learned counsel for the appellant-accused that F.I.R is anti-time because the inquest report does not bear the signature of PW-1, Pappu & PW- 2, Shakir Ali. It shows that at the time of conducting inquest report, F.I.R was not in existence. After completion of inquest report, F.I.R was lodged with consultation and due deliberation so no confidence repose on prosecution version. It is also submitted by learned counsel for appellant-accused that at the place of occurrence, appellant-accused-Asif as well as complainant- Pappu and deceased-Mukarram, was sat on tripal and after receiving the gun shot injury, huge blood oozed out from the body of deceased and blood was also lying on tripal, but at the place of incidence, police did not found any tripal on the floor, therefore it casts a shadow of doubt where the incident had taken place. It is also argued by learned counsel for the appellant-accused that de- ceased-Mukkaram was shot dead somewhere and dead body brought from an- other place and placed on the roof of Pradhan-Akram’s house. It is also stated by learned counsel for appellant- accused that if the prosecution story is accept- ed word by word then case against appellant-accused-Asif under Section 302 I.P.C. is not made out. This incident occurs on grave and sudden provocation, hence offence made out under Section 304(2) I.P.C and not under Section 302 I.P.C. It is also argued by learned counsel that prosecution had failed to establish any motive behind this incident, so prosecution story is doubtful and accused is liable to be acquitted against the charges leveled upon him under Section 302 I.P.C. Learned counsel for the appellant place reliance on the following judgments :-
1- Lachman singh vs. State of Haryana 2006 (10) SCC 524
2- Jagtar singh vs. State of Punjab A.I.R 1983 SC 463
3- Abani K. Debnath & Anr. Vs. State of Tripura A.I.R 2006 SCC 518
12. Per Contra, learned A.G.A. contended that this is the case of direct evidence and presence of complainant is fully established with cogent and reliable evidence. At the place of occurrence country-made pistol is also recovered, which strengthen the prosecution version. Oral evidence of the prosecution witnesses is fully corroborated with medical evidence. It is also contended by learned counsel that conviction can be based on the single testimony of witnesses. It is also contended there are minor contradictions in the testimonies of PWs are bound to be there and in fact they go to support the truthfulness of the witnesses, contradiction is natural because the witness are examined in the court after a considerable amount of time. It is neither unnatu- ral or unexpected that there can be some minor variations in the statement of prosecution witnesses. It is also contended that at the time of occurrence, source of light of lantern which strengthen the prosecution case. A.G.A relied on the following judgment :
1- State of Uttar Pradesh vs. Satveer and Others 2015 (9) SCC 44
2- Vinod Kumar vs. State of Haryana 2015 (3) SCC 138
13. The Power of an appellate court are as wide as of trial court and appellate court can review whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused. But, where two views are possible on the same evidence and the findings recorded by trial court are not perverse, appellate court shouldn’t interfere with finding of the lower court. The appellate court can re appreciate the entire evidence on record. The appellate court should normally give due weight to the decision of the trial court. The appellate court should keep in mind that the trial court had distinct advantage of watching demeanor of the witnesses. In MajJal vs. State of Haryana (2013) 6 SCC 798 (3 judges bench), it was held that where the first appeal preferred against the judgment of conviction of accused for offences un- der Section 302 I.P.C. read with section 149 I.P.C, was dismissed by the High Court without proper analysis of evidence almost in a summary way. It was been held by the Hon’ble Supreme Court that it was the mandatory duty of the first appellate court to make proper analysis of evidence and to consider other the trial court assessment of evidence and its opinion regarding conviction reserved to be confirmed because the personal liberty of the accused is curtail because of conviction.
14. First appellate courts concurrence with the trial courts view could be acceptable only if it is supported by a reason. Judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.
15. In the light of the decision rendered by the Apex Court in R. Shaji Vs. State of Kerala, AIR 2013 SC 651, it would be relevant for us to not only refer to the testimony of witnesses but to also give our finding on the aspect where guilt is proved to the hilt or not. In that decision, the Apex Court held that in the matter of appreciation of evidences, it is not the number of witnesses but the quality of their evidence, which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time honored principle that 4evidence must be weighed and not cogent, credible and trustworthy, or otherwise.
16. This Court is mindful of the fact that in trial for the offence of murder, where the witnesses are close relatives of victim, it is necessary to examine the evidence given by such witness very carefully and scrutinize the infirmities in that evidence before deciding to act upon them. However, relationship is not a factor to affect the credibility of a witness. A father in law of deceased will normally not rope innocent person and let the real culprit go unpunished this aspect has to be also borne in mind while analyzing the evidences of PW-1. It is trite law in criminal jurisprudence that version of an eye witness cannot be discarded merely on the ground that such witness happened to be a relative of the deceased. Where the presence of eye witness is proved to be natural and the statement given by such witness is nothing, but truthful disclosure of actual facts leading to occurrence, then such statement cannot be brushed aside. In his cross-examination, PW-1 has categorically denied the suggestion that he could not have noticed the incident in question.
17. One of the argument of the learned counsel is that, complainant of this case is related to the deceased and thus no credibility can be given to his state- ment. While appreciating the evidence of any witness claiming to have seen the incident, the Court should consider and look for the following factor appearing in the entire testimonies of the witnesses:
1 - Presence of the witness on the spot,
2 - Witness having seen the incident,
3 - Credibility of the witness
18. Now the question arises whether the witness present on the spot or not. Perusal of statement of PW-1, it was crystal clear that he was accompanying with deceased and firstly he went to his in-laws house and when they were going from in-laws house to Pradhan, Akrams' house in between the deceased has met with accused and asked to return the country-made pistol which you have taken from me. But the deceased had denied for the same. Presence of the witness is fully established with appreciation of evidence. Submission of accused counsel that if PW-1 was present on the spot then he should rescue the deceased but he never tried. Hence, presence of PW-1 at the spot is also doubtful. But this submission is not acceptable where eye-witness did not come to rescue of deceased then such reaction conduct behavior of the witnesses cannot be ground to discord the evidence when they are unarmed and accused were armed with deadly weapon. Natural testimony of PW-1 and prompt F.I.R shows that witness having seen the incident. Then question regarding credibility of the witness and it has been held by the Hon’ble Supreme Court that oral testimony of the witness can be classified in three categories:-
1- Wholly Reliable,
2 - Wholly Unreliable.
3 - Neither Wholly Reliable nor Wholly Unreliable.
19. In case of wholly reliable testimony of a single witness, the conviction can be found without corroboration. This principle applies with greater vigor in case the nature of offence is such that it is committed in seclusion (like rape). In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option except to acquit the accused. Now the question arises whether the testimony of PW-1 is wholly reliable or wholly unreliable or partly reliable. Learned counsel for accused argued that evidence of PW-1 is not reliable because PW-1 deposes in his testimony that after lodging the report, he came back to the place of occurrence by tractor and police personnel rush to the spot by Jeep. PW-1 also stated that dead body was lying with pool of blood at tripal and police personnel takes possession of tripal in his presence. On contrary PW-5 in his statement stated that PW-1 returned with his Jeep and the dead body was lying on the floor of terrace. Dead-body was not lying on the tripal, so there is a contradiction between the statement of PW-1 & PW-5, hence the evidence of PW-1, is not reliable. In our concerned view, there are no material discrepancies or contradictions in the testimony of witness and his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishments. When witnesses are examined in the Court after a considerable lapse of time, it is neither a natural nor unexpected that there can be some minor variations in the statements of prosecution witnesses.
20. Now the question arises that conviction of accused can be based on the sole witness, in criminal trial quality of the evidence and not the quantity of the evidence. Under Section 134 of Indian Evidence Act, it is provided that no particular number of witnesses are required to prove any fact plurality of witness in a criminal trial is not a legislative intent. If the testimony of sole witness is found reliable on the touchstone of credibility, accused can be convicted on the basis of such sole testimony. It is also contended that no independent witness examined by the prosecution. Pradhan, Akram, was only the independent witness because the incident took place on the roof of Pradhan, Akram,. Non-examination of the independent witness belies the prosecution case. In our considered view, if the witnesses examined in the Court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not to be proved through other witness, though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of the testimony available on record, however natural, trustworthy and convincing it may be. It is a settled law that non examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on statement of a sole witness, even if, he is relative of deceased. Non-examination of independent witness would not be fatal to the case of prosecution.
21. It is contended by learned counsel of accused that PW-2 Shaukat Ali, and PW-4, Mukkadis, turned hostile, so the prosecution case is disbelieved. It is a settled law that evidence of hostile witnesses cannot be rejected in toto. If the prosecution witness turns hostile, the court may rely upon so much of his testimony, which support the case of prosecution as is corroborated by other evidence. PW-2, Shaukat Ali, in his examination-in-chief fully supported the prosecution version and his statement is fully corroborated with the statement of PW-1. But during cross-examination, which was held after nine days of the examination-in-chief, witness turned hostile.
22. In trial Court observation “it seems that witness is changing his statement due to certain changes in circumstances, in between his previous statement dated 20.11.2006 and todays' statement 29.11.2006”. So in the present case, it is wrong to say that statement of PW-2 does not support the prosecution case.
23. Learned counsel for the appellant argued that in this case there is no motive and prosecution has also failed to prove the motive behind this incident. In our considered opinion, motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witness even if there any doubts raised in this regard. If the eye witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused.
24. It is argued by the learned counsel that the F.I.R was anti time because in inquest report signatures of PW-1 & PW-2 was not present so F.I.R was lodged after preparation of inquest report. In perusing the record although PW-1 complainant-Pappu & PW-2 Shaukat Alis' signatures was not present in inquest report, but in inquest report exhibit KA-3 bears the crime no. as well as Section 302 of I.P.C , it means that at the time of inquest report F.I.R was in existence. On the basis of lacking of signature of PW1 it could not be said that PW-1 & PW-2 was not present on the spot at the time of preparation of inquest report. In the above mentioned case F.I.R was prompt, ocular, evidence of PW- 1 & PW-2 is fully corroborated with the medical evidence as well as evidence of investigating officers, which strengthen the prosecution version. Recovery of weapon of assault, country-made pistol and empty cartridge also corroborated the version of F.I.R. as well as statement of PW-1.
25. Now the important question raised by the appellant counsel that this incident took place in spur of moment, there is no pre-mediation of the mind to commit the murder of Mukkaram. On this point learned counsel is relying upon the judgment of Hon'ble Supreme Court of India - Jagtar Singh vs State of Punjab(A.I.R 1983 SCC 463) & Lachman Singh vs. State of Haryana (A.I.R 2006 10 SCC 524)
26. A sudden quarrel on a spur of moment arose out of a trivial reason on a chance meeting between the accused and the victim. The accused caused a sin- gle blow by knife in chest of victim resulting in his death. On these facts it was held that intention to cause death or causing particular injury could not be im- puted to the accused. There was no proof of pre-mediation or malice. There- fore, merely knowledge on the part of the accused that he was likely to cause injury which was likely to cause death could be inferred. Fact of this case akin to the fact of this case.
27. In the case in hand, there is no pre-mediation and this incident is happened due to sudden quarrel and spur of moment, due to grave and sudden provoca- tion. 4th Exception of Section 300 I.P.C can be evoke if death is caused a)- without premeditation b)- in sudden fight c)- without the offender having taken undue advantage or acted in a cruel and unusual manner d)- the fight must have been with the person killed.
28. Analyzing the evidence in the background set out the inevitable conclusion is that the conviction has to altered from section 302 I.P.C. to section 304 (part 1) I.P.C., custodial sentence of 10 year with fine of Rs. 5000/- with default condition of two months imprisonment would meet the ends of justice.
29. The appeal is partly allowed in the above term.
Order Date :-22.01.2019 Vibha Singh