Reserved on 22.10.2018 Delivered on 31.10.2018 Case :- CRIMINAL APPEAL No. - 3055 of 1982 Appellant :- Imami Respondent :- State Counsel for Appellant :- Lalji S Srivastava,K P Shukla,N.K. Mishra Counsel for Respondent :- A.G.A.
Hon'ble Aniruddha Singh,J.
1. Heard Ms.Shilpa Ahuja, Advocate, holding brief of Sri N.K.Mishra, learned counsel for the appellant and learned A.G.A for the State.
2. This criminal appeal has been preferred by appellant Imami against order dated 03.12.1982 passed by IInd Additional Session Judge, Hamirpur in Session Trial No.105 of 1981, P.S.Rathi, District Hamirpur, convicting appellant Imami under section 307 I.P.C. and sentencing him to five years rigorous imprisonment.
3. According to prosecution case on 17th April, 1980 at about 6 in the morning Mariyan a resident of Raath was going to ease himself towards the southern side from his house to Jugiyana. His son Habboo was also following him. When Mariyan reached near the Lime-shop of Munnu son. of Buddhu, the accused Imami, who had come to live with his maternal uncles Munna Phakkar and Habib in Raath for the last about three months prior to the incident, upbraided and threatened Mariyan and opened fire from his country made pistol. Mariyan dropped on the ground having been injured by the pistol shot. The accused escaped with his pistol. The incident was witnessed by Mittho, Kallu, Gauva, Habboo and others. Habboo made arrangements to take his father to hospital, Raath and got him admitted there for treatment and medical examination. Dr.A.K.Srivastava, Medical Officer, Incharge Male Hospital, Raath, medically examined the injured Mariyan about about 9 a.m. on the same day and found that there were five gun shot wound on right side chest, each 1 c.m. X 1 c.m.x cavity deep in an area of 9 c.m. X 7 c.m. and 13 c.m. Above right nipple. The doctor found fresh bleeding and opined that the injuries were caused by some firearm. Mariyan was given the necessary treatment.
4. After getting his father admitted in hospital, Habboo, it appears went to the police station Raath with a written report, Ex.Ka-2 which he laid there at 7 A.M. on 17.4.1980. On its basis a chik report Ex.Ka-4 was prepared and a case was registered against the accused under section 307 I.P.C. in general diary at serial No.10 (Ex.Ka-5) by Constable Zahir Hussain, P.W.3. The responsibility to investigate the case was shouldered by Sri Ram Ashish Singh, S.I. In whose presence the report was laid. He recorded the statements of the informer and other persons, prepared the site plan Ex.Ka 6 and after completing all the necessary formalities submitted the chargesheet Ex.Ka-7 against the accused on 7th June, 1980. The committal proceedings were taken by Sri Hira Lal Munsif-Magistrate, who by his order dated 27th April, 1981 committed the accused to face trial before the Court of Session. This is how the accused came to be tried before the Session Court.
5. Charge under Section 307 I.P.C was framed against accused. He denied the facts and stated that he has been falsely implicated. According to him, a false charge has been foisted against him due to enmity. At the trial, the prosecution examined Mariyan, the injured, (P.W.1), his son Habboo, the informer (P.W.2), Clerk Constable Zahir Hussain (P.W.3), Sri Ram Ashish Singh, Investigating Officer (P.W.4) and Dr.A.K.Srivastava, Medical Officer (P.W.5). Except for Mariyan and Habboo, the remaining three witnesses are of formal nature. The accused reiterated his denial on being examined after the close of the prosecution evidence and in defence no evidence was produced. After hearing both the parties, impugned order was passed in this appeal.
6. Learned counsel for the appellant submitted that independent witnesses Mittho and Gauva have not been examined. The enmity between the parties is admitted. The accused is the Mamu of the injured Mariyan. There is major contradictions on the statement of facts. It is not possible that five gun shot fire hit the injured. The story is unnatural.
7. Mariyan P.W-1 is the injured witness. He has stated in his statement that he know Imami on or before one and half year back, at 6.30 a.m. he was gone for natural calamities. Behind fifteen steps back his son is coming and accused Imami came there and abused him and when he restrained he shot fire on his chest. He rushed to the hospital and medically examined. Therefore, he completely corroborated the prosecution case. From the place of occurrence blood was also shown in his kurta and baniyan.
8. Evidence of injured witness is very material in criminal cases and evidence of the injured witness cannot be discarded in routine manner in the case of Jarnail Singh vs. State of Punjab, 2009 (6) Supreme Court 526, the Court has held that deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene of incident established in the case and it is proved that he suffered the injuries during the said incident.
In the case of Maqsoodan vs. State of U.P. (1983) 1 SCC 218, the Apex Court has held that presence of the injured witnesses at the time and place of the occurrence cannot be doubted as they had received injuries during the course of incident and they should normally be not disbelieved in routine manner.
9. The statement of injured was corroborated by the injury report of injured Mariyan and has also been corroborated by the exhibited documents and evidence produced by the prosecution before the trial court.
10. Learned counsel for the appellant submitted that Mithoo, Gauva and Kallu witnesses have not been examined, hence, the case against appellant is not proved beyond reasonable doubt and he is liable to be acquitted. I found no force in the argument because according to Section 134 of the Evidence Act number of witnesses is not required for the proof of fact. P.W.-1 Mariyan injured has specifically stated that gun shot injury was caused by appellant who is Mamu of the injured and close relative. Question arises why Mariyan deposed wrong statement against his close relative. No sufficient explanation has been given by the appellant on this issue.
11. Learned counsel for the appellant further submitted that there is enmity between Mariyan and appellant, hence, he falsely implicated. The plea of enmity is double edged weapon and inference may also be drawn that due to that enmity appellant shot fire on the body of injured which is the prosecution case, only on the ground of enmity when the offence levelled against the appellant is proved beyond reasonable doubt, appellant cannot be acquitted.
12. Learned counsel for the appellant further submitted that there is contradictions in the statement of Mariyan (P.W.1), the informer (P.W.2) and son of injured Mariyan Habboo, are liable to be acquitted very much on this ground. From the perusal of record, this Court finds there is no force on the argument raised by the appellant because no material contradictions between the statement of the prosecution witnesses P.W.1 and P.W.2.
13. On the point of fact Mariyan injured has clearly stated that appellant has shot fired on Mariyan and he received five gun shot injuries on the right side of the chest 3 c.m. above of the right nipple.
14. Learned counsel for the appellant has further submitted that no independent witness has been produced, hence, appellant is liable to be acquitted but this Court found no force on the argument raised by the learned counsel for the appellant, as stated above number of witnesses are not required to proof the facts under Section 134 of the Evidence Act.
It is also pertinent to mention here that at present due to fear of enmity in future nobody is come before the Court to adduce the evidence in favour of prosecution. At present it is a general trend of the society and the Court cannot ignore this fact also.
15. Learned counsel for the appellant has further submitted that injured was unable to give statement to tehsildar at the time of incident, hence, the accused is liable to be acquitted but this Court found no force on the argument of the learned counsel for the appellant because from the perusal of evidence it is very clear from the statement of the witnesses that injured Mariyan was not in a position to give statement at that time due to injuries received on his body, if injured was not in a position to give statement, then how tehsildar can record the statement.
16. Learned AGA on the contrary supported the judgments of court below and contended that the order and judgment of the courts below is legal, just and proper, hence, no ground for interference is made out and view taken by the courts below is plausible view.
17. Learned counsel for the appellant further submitted that blood was not found at the place of occurrence, hence, incident has not been proved and the appellant is liable to be acquitted but this Court finds no force in the argument raised by the learned counsel for the appellant because immediately injured was sent to the hospital, hence, it was not necessary blood was dropped at the place of occurrence. However, if blood was dropped at the place of occurrence and it was not recovered by the investigating officer then it is defective investigation in the part of investigating officers and any irregularity or deficiency in investigation by investigating officer need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent as it was held by the Hon'ble Apex Court in the cases of :-
(1) Acharaparambath Pradeepan vs. State of Kerala, 2007(57) ACC 293 (SC)
(2) State of Punjab vs. Hakam Singh, (2005) 7 SCC 408.
18. In the above backdrop and the law laid down by the Apex Court, this Court finds no illegality, impropriety, material irregularity or jurisdictional error or any other point in the impugned judgment and order, hence, no interference is called for
19. The appeal is, accordingly, dismissed.
20. Interim order, if any, shall stands vacated.
21. Appellant Imami, is on bail. His bail bonds and sureties are cancelled. Appellant is directed to surrender before the court below within 30 days from today where he shall be sent to jail to serve out the remaining sentence. In case, the revisionist shall not surrender before the court below within the time stipulated by this Court, Chief Judicial Magistrate, Hamirpur, is directed to issue coercive process for procuring the arrest of the appellant and sent him to jail.
22. Copy of this order alongwith record of lower Court be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court within three months which shall be kept on record.
Order Date :- October 31, 2018 SKD