Hon'ble Rajiv Gupta, J.
(Delivered by Hon'ble Rajiv Gupta, J.) Heard Sri Kamal Krishna, learned Senior Counsel assisted by Sri S.P.S. Parmar and Sri R.K. Srivastava, learned counsel for the appellant, learned A.G.A. for the State and perused the material available on record.
Present criminal appeal has been filed by the appellant Jahangir @ Guddu against the judgment and order of conviction dated 31.01.2008 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Bhadohi at Gyanpur in Sessions Trial No. 31 of 1999 arising out of Case Crime No. 281 of 1998 under Section 302 IPC, Police Station Chauri, District Sant Ravidas Nagar, Bhadohi, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/- for the offence under Sections 302 IPC and in case of default in payment of fine, to further undergo imprisonment of one year.
Learned counsel for the appellant contends that there are as many as four accused persons and out of them, one accused (present appellant) Jahangir @ Guddu son of Ashiq Ali had filed Criminal Appeal No. 1194 of 2008 i.e. present appeal challenging the order of conviction against him and remaining three accused, namely, Sabit Ali @ Sadiq son of Hiraman, Ashiq Ali son of Hiraman and Jainul Abdin son of Umar Ali had filed Criminal Appeal No. 801 of 2008, which is connected with the present appeal, whereby the remaining three accused-appellants have been convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/- for the offence under Sections 302/34 IPC and in case of default in payment of fine, to further undergo imprisonment of six months vide judgment and order of conviction dated 31.01.2008 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Bhadohi at Gyanpur in Sessions Trial No. 31 of 1999 arising out of Case Crime No. 281 of 1998 under Section 302 IPC, Police Station Chauri, District Sant Ravidas Nagar, Bhadohi.
Learned counsel for the appellant contends that the F.I.R. of the alleged incident was lodged on 24.11.1998 at Police Station Chauri, District Sant Ravidas Nagar, Bhadohi at 7:15 A.M. by the informant Alauddin son of the deceased i.e. Abdul Haji Khaliq, which is exhibited as Ex. Ka-2. The F.I.R. is said to have been scribed by Waris Ali son of Haji Nazeer Ahmad, who is alleged eye-witness of the present case. Pursuant to lodging of the F.I.R., a case was registered, investigation whereof proceeded, which resulted in filing of charge-sheet against the accused and as the accused pleaded not guilty, they were put to trial and after considering the facts and circumstances and hearing the submission of learned counsel for the parties, the Trial Court returned the verdict of conviction vide impugned judgment and order, which is under challenge in the present appeal.
Learned counsel for the appellant contends that Hiraman had two sons, namely, Sabit Ali, who was assigned the role of catching hold of the deceased and the second son Ashiq Ali, who has been assigned the role of instigation and the present appellant Jahangir @ Guddu, who is son of Ashiq Ali, is said to have assaulted the deceased by a Gadansa, on account of which, the deceased received serious injuries, due to which, he expired and Jainul Abdin, who is also co-accused in the present case, has been assigned the role of catching hold of the deceased.
It is contended that three witnesses of fact were examined, namely, P.W.-1 Allauddin son of the deceased, P.W.-2 Samsuddin and P.W.-3 Waris Ali, who is nephew of the deceased. P.W.-4 Dr. Vidhu Gupta, who conducted the postmortem of the deceased, P.W.-5 Head Moharrir Kanaiya Lal, who registered the F.I.R. at the Police Station, P.W.-6 S.I. R.B. Yadav, Investigating Officer and one defence witness, namely, Nizamuddin were also examined.
It is contended by learned counsel for the appellant that as per the prosecution version, the motive of committing the alleged offence was construction of drainage (Naali), which was being constructed under Jawahar Rozgar Yojna and prior to 15 days of the alleged incident, there was some dispute between the deceased and the accused persons, which was pacified on the intervention of Gram Pradhan and others but on the date of alleged incident i.e. 24.11.1998 at 5.00 A.M., when the deceased along with P.W.-1 and P.W.-2 had gone to answer the call of nature in the graveyard and were sitting side by side to each other, the accused persons came and Sabit Ali and Jainul Abdin caught hold of the deceased and on the instigation of Ashiq Ali, Jahangir @ Guddu assaulted the deceased by a Gadansa, which resulted into death of the deceased.
It is contended that the motive, which has been assigned as per the prosecution version, is the dispute, which arose between the parties with regard to construction of drainage under the Jawahar Rozgar Yojna, which matter was also pacified.
Learned counsel for the appellant has drawn the attention of this Court to the deposition of D.W.-1 Nizamuddin, who was Gram Pradhan at the time of alleged incident and he had stated before the Court that there was no hindrance or obstruction caused by the appellants for the construction of drainage and reference in this regard has been drawn to page no.53 of the paper book. It is argued that once the matter was pacified, there was no motive for the appellant to have committed the alleged offence.
Learned counsel for the appellant further contends that the weapon of assault i.e. Gadansa is said to have been recovered at the pointing out of Ashiq Ali from his house, which had blood stains and it was chemically examined by the expert and the expert report of Forensic Science Laboratory dated 19.7.1999 is also on record, which is Ex. Ka-19.
It is argued that perusal of the said report would go to show that the blood, which was found on the clothes as well as on the weapon of assault was disintegrated and therefore, it cannot be said with certainty that it was a human blood.
Learned counsel for the appellant contends that the reason for false implication of the appellant in the present case is pendency of Civil Suit No.104 of 1969 between Hariman, father of the appellant and the deceased Abdul Khaliq in the Court of Munsif, Gyanpur and reference in this regard has also been drawn to para no.10 at page no.64 of the paper book.
Learned counsel for the appellant has next drawn the attention of this Court to the statement of P.W.-1 at page no.15 of the paper book and has submitted that the said witness has clearly stated that the drainage, which was being constructed, was underground and he has further stated that on the date and time of alleged incident, he found that his father was already assaulted and died, for which, a report was lodged at the concerned Police Station at about 7:00-7:15 A.M.
Learned counsel for the appellant further contends that the aforesaid witness had further gone to state at page no.23 of the paper book that after commission of the alleged offence, the said witness remained at his house for about 3:00-3:30 hours and has argued that if the incident is said to have taken place at 5.00 A.M. and the said witness remained at his house for 3:00-3:30 hours, then the First Information Report could not have been lodged at 7:15 A.M. and therefore, it is contended that the F.I.R. is ante-timed.
Learned counsel for the appellant also contends that the said witness clearly stated in his statement that brick kiln was situated nearby the place of occurrence and other people also came at the place of occurrence on the alarm being raised by the witnesses, who were present at the time of alleged incident but none of them have been examined by the prosecution and it is only interested witnesses, who were related to the deceased and have been examined, therefore, their testimony cannot be relied upon.
Learned counsel for the appellant had drawn the attention of this Court to the site plan at page no.88 of the paper book and has argued that as per the site plan, the said witnesses were sitting around the deceased at place "B", "C" and "D" and none of them had seen the alleged incident, therefore, their presence at the place of occurrence is highly doubtful and reference has also been drawn to the statement of P.W.-2 at page no.30 of the paper book. It is contended that cross examination of the said witness clearly goes to show that no one had seen the alleged incident.
Learned counsel for the appellant has further drawn the attention of this Court to page no.38 of the paper book, which is statement of P.W.-3 and has argued that the said witness has clearly stated that when he reached the place of occurrence, he found that Abdul Khaliq was lying on the ground and at that time, there was nobody near him and he did not see anybody assaulting the deceased.
It is, thus, argued that the aforesaid statement of P.W.-3 clearly clouds the presence of P.W.-1 and P.W.-2 at the place and time of alleged incident, therefore, it is argued that none of the three witnesses were either present or had seen the alleged offence and the appellant has been falsely implicated in the present case on account of pendency of Civil Suit, which is the cause of animosity between the parties.
Learned counsel for the appellant has further contended that the said witness has stated that the deceased was easing himself at the time of alleged incident and reference has been drawn to the statement of Doctor at page no.43 of the paper book, wherein Doctor had stated that the large intestine of the deceased was found filled with faecal matter, therefore, the medical evidence does not corroborate with the prosecution story and the appellant has been falsely implicated in the present case.
Learned counsel for the appellant has drawn the attention of this Court to the judgment of Hon'ble Apex Court rendered in the case of Padam Singh Vs. State of U.P. reported in 2000(1) SCC 621, Rama and others Vs. State of Rajasthan reported in 2002 (4) SCC 571, Majjal Vs. State of Haryana reported in 2013 (6) SCC 798 and Kamlesh Prasad and another Vs. State of Gujarat reported in 2014 Cr.L.J. 443 and has contended that the Apex Court has laid down that while exercising the appellate jurisdiction, the High Court is expected to critically appraise the evidence afresh on its merits and draw inference independently without there being influenced by the finding of conviction recorded by the Trial Judge bearing in mind the basic tenets of criminal jurisprudence that the accused is innocent unless proved to be guilty by direct and cogent evidence.
It is contended by learned counsel for the appellant that the Hon'ble Apex Court in the case of State of U.P. Vs. Jagdev reported in 2003 Cr.L.J. 844 has observed that only on the ground of interested or related witnesses, their evidence which otherwise appears to be reliable cannot be discarded and at frequent times, eye-witnesses happen to be family members or close associates because unless crime is committed near a public crowded place, strangers are not likely to be present at the time of occurrence, thus, the ratio as laid down by the said judgment of the Apex Court is that the relationship cannot be a factor, which affects the credibility of a witness and only thing, which is to be considered, is that their testimony is to be considered with caution.
It is next contended that since there is no independent witness in the present case and all the witnesses, who have been examined, are interested witnesses, therefore, their testimony cannot be relied upon and the order of conviction, which has been returned by the Trial Judge, is clearly unsustainable in law.
On the other hand, learned A.G.A. for the State has contended that for the alleged offence prompt F.I.R. was lodged, in which, specific role has been assigned to all the accused persons and has further contended that statements of the witnesses of fact was recorded after 5-6 years of the alleged incident, therefore, minor contradictions are bound to take place in their statements, which cannot be given much significance.
He further contends that brick kiln was situated at a short distance from the place of occurrence, therefore, the contention that there was no independent witness as there were quite few people on the brick kiln does not hold ground.
It is next contended that the weapon of assault was also recovered at the pointing out of Ashiq Ali and blood, which was found on the weapon, was human blood and reference in this regard has also been made to clause-IV of the report of the Forensic Science Laboratory, which is Ex. Ka-19.
It is next contended by learned A.G.A. for the State that this is a case of direct evidence and therefore, motive may not be of much significance. It is thus argued that the order of conviction, which has been returned by the Trial Judge, is perfect, just and legal and warrants no interference by this Court in exercise of powers conferred under appellate jurisdiction.
We have heard the submissions made by learned counsel for the appellant as well as learned AGA for the State and perused the entire lower court record.
Before we proceed further, it would be useful to reproduce the testimonies of the witnesses in brief adduced during the course of trial.
PW-1, who is the first informant and eye-witness of the present case, in his examination-in-chief, has stated that prior to the present incident, underground construction of drainage under the Jawahar Raozgar Yojna was being made. It is further stated that 15 days prior to the said incident, there was some dispute between the deceased and the accused persons over the construction of the underground drainage. On the intervention of Gram Pradhan, the said dispute was pacified and the drainage was constructed, however, on account of said fact, the accused persons started bearing deep animosity against his father.
It is further stated that on 24.11.1998 at about 5:00 AM, he along with Shumsuddin, his father Haji Abdul Khaliq and Waris Ali had gone to answer the call of nature near the graveyard and when they were sitting side by side to each other, the accused persons came there and on the instigation of Ashiq Ali, Sabit Ali and Jainul caught hold of his father Abdul Khaliq and Jahangir dealt a blow by a Gadansa upon his father, resulting into his death and his dead body was brought at the door of the informant.
The incident is said to have been witnessed in the torch light and thereafter, the accused persons are said to have made their escape good.
The said witness has been subjected to lengthy cross-examination but from the careful perusal of the testimony of the said witness, it is evident that the defence has not been able to elicit any material contradiction or discrepancy in his statement. To be precise, PW-1 in his cross-examination has clearly stated that he along with his father and the other witnesses had gone to answer the call of nature in the morning, when the incident in question is said to have taken place. He is a true and a natural witness, who has given the complete details regarding the manner, in which, the incident is said to have been committed by the accused persons. Even in the site plan, he has been shown to be present at point "B", which is hardly at a distance of 12 paces from point "A", where his father is said to have been assaulted by the accused persons and done to death.
In his cross-examination, he has further stated that when he reached the place of the incident, his father had already died, however he has further clarified that as soon as his father had received injuries, he had reached near him.
From the careful perusal of the site plan, it is evident that there is absolutely no obstruction in between point "A" and point "B", where the father of PW-1 was done to death and where the said witness is said to have been shown to be present and easing, as such, there cannot be any doubt about the presence of the said witness at the time and place of incident. He, in his cross-examination, has further stated that after the incident, about 30-40 persons have collected at the scene of the incident and with the help of said persons, he had brought the dead body of his father on a cot at his house and had then gone to the Police Station to lodge the FIR. On his information, the Police had reached the place of the incident and had recorded his statement. He has further categorically stated in the cross-examination that the accused Jahangir immediately after causing the injury to his father had run away towards North and the accused persons followed him. He had further categorically stated that he had seen the accused persons running away.
PW-1 in his cross-examination has further stated that Ashiq Ali had instigated the other accused persons, on which, Sabit Ali and Jainul held his father by his waist and at the relevant time, Sabit Ali was facing South, whereas Jainul was facing towards North. He has further stated that when his father was assaulted by Jahangir, Ashiq Ali was present at a distance of 5-6 paces and as soon as, Sabit Ali and Jainul left his father, he fell down on the ground.
It is further stated that only one blow of Gadansa was given to his father. The said witness had categorically denied the factum that at the time and place of the incident, he was not present and had not witnessed the incident and on the basis of tutoring, he has narrated the incident.
PW-2, in his statement, has also corroborated the prosecution story and has stated that the incident had taken place at 5:00 AM in the morning and about 15 days prior to the said incident, there was some dispute regarding the construction of a drainage between the deceased and the accused persons and the matter was pacified on the intervention of the Panchayat, however, the accused persons started bearing animosity against Abdul Khaliq and the accused Ashiq Ali had threatened to kill him.
It is further stated that on the date of the incident, i.e. 24.11.1998, he along with Alauddin, Waris Ali and Abdul Khalik had gone to answer the call of the nature near the Nala, as soon as they sat for easing, the accused persons, namely, Ashiq Ali, Sabit Ali, Jainul and Jahangir reached at the place of the incident and on the instigation of Ashiq Ali, Jainul and Sabit Ali caught hold the deceased and Jahangir, who was holding a Gadansa in his hand, assaulted Abdul Khaliq on his head, who died instantaneously and thereafter, they had brought the dead body of the deceased at the door of his house. He has further stated that apart from him, Alauddin and Waris Ali, number of persons have collected at the place of the incident. They tried to apprehend the accused but they ran away.
The said witness has also been subjected to extensive cross-examination, however, the defence has not been able to elicit any material contradiction or discrepancy in his statement. He has categorically stated that at the time of the incident, he was present at the place of the incident and his presence has also been categorically mentioned in the site plan at point "D", which is at a distance of about 15 paces from the place, where the deceased Abdul Khaliq is said to have been assaulted and there is absolutely no obstruction in between the two points and the incident is clearly visible. He, in his cross-examination, has categorically stated to have reached near the deceased immediately after the incident and has clearly stated that when he reached near Abdul Khaliq, then other two witnesses Waris Ali and Alauddin had also reached near him. The dead body of Abdul Khaliq was thereafter brought at his house. He has further categorically stated that when he reached near Abdul Khaliq, he was lying on the ground and the assailants were running towards the North. He has further categorically stated that number of persons, who were working nearby the brick kiln, had also reached near the place of the incident.
He has further categorically stated that at the time of assault by a Gadansa, Sabit Ali was holding Abdul Khaliq by his waist and was facing towards South, whereas Jainul was holding him by his chest and was facing towards North and Abdul Khaliq fell down at the place, where he was assaulted. The said witness has categorically denied that the accused persons had never restrained the construction of a Nali and Abdul Khaliq was not threatened for life on account of this fact. He has also denied that Ashiq Ali has not instigated the other accused persons to kill Abdul Khaliq and Sabit Ali and Jainul caught hold the deceased and Jahangir had assaulted with the Gadansa. He has further denied the factum that he was not present at the scene of the incident. He has further categorically denied not to have seen the incident and adducing his evidence only on account of being the cousin of the first informant.
PW-3 Waris Ali has also stated in his statement that about 15 days prior to the incident, an underground drainage was being constructed and Ashiq Ali, Jainul, Sabit Ali and Jahangir were not permitting the construction of the said nali, however, the same was constructed on the intervention of the Panchayat but on account of this fact, Ashiq Ali, Sabit Ali, Jainul and Jahangir started bearing animosity against Abdul Khaliq and they have threatened to kill him.
He has further stated that the incident is dated 24.11.1998 at 5:00 AM, when he along with Alauddin, Shamsuddin and Abdul Khalik had gone to answer the call of nature. It is further stated that when they were sitting side by side to each other for easing, the assailants reached there and Ashiq Ali instigated to kill, Sabit Ali and Jainul caught hold of Abdul Khaliq and Jahangir assaulted him by a Gadansa on his head, causing his death. The assailants by extending threats are said to have made their escape good. On the alarm being raised by them, number of persons have reached the place of the incident and thereafter, the dead body of the deceased Abdul Khaliq was brought at the door of the house of Alauddin. The incident is said to have been witnessed in the torch light.
The said witness has also been subjected to extensive cross-examination but the defence has not been able to elicit any material contradiction or discrepancy in his statement except minor contradictions regarding the reaching of other witnesses near the deceased Abdul Khaliq and that he had not seen any accused assaulting the deceased and stating that when he reached at the place of the incident near the deceased Abdul Khaliq, the accused persons have made their escape good. He has categorically denied the fact that he had not accompanied the deceased and the other witnesses, namely, Alauddin and Shamsuddin for easing and has been tutored to make the statement.
The prosecution has then examined PW-4 Dr. Vidhu Gupta, who has conducted an autopsy on the person of the deceased and has noted following ante-mortem injuries on the person of the deceased.
(1). Incised wound 6.5 x 1 cm x bone deep on left temporal region, running anterior posteriorly and 8 cm above left mastoid process.
(2). Abrasion 1½ cm x 1 cm on right middle finger skin deep in between 1st and 2nd phelenged joint. (3). Abrasion 2.5 cm x ½ cm on temporal region about left mastoid process behind pinna.
The prosecution has submitted that the incident has been clinchingly proved by the testimonies and the defence has not been able to rule out their presence at the time of the incident, particularly in the natural manner, in which, they have narrated the incident. Certain contradictions in their statements, which has been pointed out by learned counsel for the appellant, are minor in nature, which are bound to occur keeping in view the fact that the witnesses are rustic witnesses and their testimonies have been recorded after considerable delay of more than three years in case of PW-1 Alauddin and more than seven years in case of PW-2 Shamsuddin.
On the basis of aforesaid evidence, we may now analyze the arguments of learned counsel for the appellants and the learned AGA for the State.
The first and foremost argument of the learned counsel for the appellant is that from the testimony adduced by the three prosecution witnesses, their presence at the time and place of the incident is highly doubtful, we are not in agreement with the said submission of the learned counsel for the appellant, particularly, in view of the natural manner, in which the eye-witnesses have narrated the prosecution story and except minor contradictions in their statements, the defence has not been able to elicit any material contradiction or inconsistencies in their statements, which may rule out their presence.
The next submission of learned counsel for the appellant regarding motive also does not hold good in the facts and circumstances of the present case, particularly in view of the fact that the present case is based on eye-witness account and as per settled law, where the case is based on eye-witness account, the motive pales into in significance.
It is further germane to point out here that the present incident is an outcome of a dispute between the appellants and complainant party on account of construction of an underground drainage, which was opposed by the appellants and only after pacifying the dispute on the intervention of Gram Pradhan, the drainage could be constructed. This construction caused serious rift between the appellants and the complainant party and the accused-appellants started bearing deep animosity against them, particularly with the deceased, who was even threatened for dire consequences and in the backdrop of the said circumstances, the present incident had been committed.
We have no doubt that motive is a double edged weapon which on one hand proposes the accused to commit the crime and on the other hand it works as a catalyst in falsely roping the accused in the case. It is only the perpetrator of the crime, who knows what are the circumstances and cause of action leading to the commission of the crime. Different persons react differently under given circumstances. Murder can be committed even on very trivial issues. It is also difficult to lay hard and fast rule as to how and in what manner a person would react and could go to extent to achieve his motive in the commission of the crime under a particular circumstance. It is also not possible to measure the extent of his feeling, sentiments and reactions, as may be, who under frustration or on mere possibility may take decision to commit crime. It all depends as to how a person reacts in a giving circumstances. The Hon'ble Apex Court in the case of Ranganayaki vs. State (2004) 12 SCC 521 has held as under:
"The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered."
In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant:
"There is no principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust-worthy and reliable and finds corroboration from the medical evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved."
Learned counsel for the appellant has further submitted that the civil disputes were also going on between the appellants and the complainant, however, the said civil dispute dates back to the year 1965, which on the date of the incident had become old and stale and therefore, the said submission of learned counsel for the appellant also does not appeal to us and in view of the cogent and credible evidence laid by the prosecution witnesses, the prosecution story cannot be thrown over board.
Learned counsel for the appellant has then submitted that only interested witnesses has been examined and none of the independent witnesses has come forward to depose in the present case, which makes the prosecution story doubtful.
As far as related and interested witness is concerned, in the case of Dalip Singh and others Vs. State Vs. State of Punjab (AIR 1953 SC 364), it has been laid down as under by the Hon'ble Apex Court :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts."
Observations of the Hon'ble Apex Court in the case of Masalti and others vs. State of U.P., A.I.R. 1965 SC 202, are worth mentioning:-
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
The above decision has been followed in Guli Chand and others vs. State of Rajasthan 1974 (3) SCC 698, in which Vadivelu Thevar vs. State of Madras AIR 1975 SC 614 was also relied upon.
The following observations were made by the Hon'ble Apex Court in Israr vs. State of U.P. [2005(51) ACC 113] in para-12 of the judgment are also important:-
".... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible."
Thus, in view of the discussion made above in the earlier part of the judgment merely on the ground of interestedness, the testimony of the witnesses, which otherwise is incumbent and inspires confidence cannot be brushed aside only on the ground that the witnesses are the family member of the deceased.
Learned counsel for the appellants has further submitted that the PW-4 Dr. Vidhu Gupta, in his deposition at page no.41, has stated that the death of the deceased may have taken place fifteen hours back and the deceased would have taken meal one hour prior to his death.
Learned counsel for the appellants has further submitted that the postmortem was conducted on the person of the deceased on 24.11.1998 at 3:30 PM, as such the time of death would be sometime in the midnight, which makes the time of occurrence doubtful.
Learned counsel for the appellants has further submitted that Dr. Vidhu Gupta, on page no.23 of his deposition, has submitted that large intestine of the deceased loaded with faecal matter, hence the story of easing further makes the time of the incident doubtful, which falsifies the prosecution story.
In this respect, it is relevant to point out hear that judging the time of death from the contents of the stomach may not always be determinative factor. It always requires other corroboration. If the prosecution is able to prove its case beyond reasonable doubt and cumulative evidence of the prosecution including the time of death, has been proved beyond reasonable doubt and the same point towards guilty of the accused, then it may not be appropriate for the Court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased. While discussing various judgments of this Court, Modi in the aforesaid book at page no. 543 has recorded as under :
"... The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of (Masji Tato Rawool Vs. State of Maharashtra, Gopal Singh Vs. State of U.P., Sheo Darshan Vs. State of U.P.). The presence of faecal matter in the intestines is not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about the time of occurrence, it is not open to the court to speculate about the time of occurrence by the presence of faecal matter in the intestines (Sheo Darshan Vs. State of U.P.). The question of time of death of the victim should not be decided only by taking into consideration the state of food in the stomach. That may be a factor which should be considered along with other evidence, but that fact alone cannot be decisive (Ram Prakash Vs. State of U.P.).
Thus, in view of the aforesaid facts and circumstances of the case, we are of the opinion that the aforesaid submissions of learned counsel for the appellants challenging the time of death cannot be sustained and the prosecution, by its occular testimony, has clinchingly proved the place and time of the incident.
Learned counsel for the appellants has next submitted that all the incriminating circumstances have not put to the appellant under Section 313 CrPC and in the absence of which, the conviction cannot be upheld.
So far as Section 313 Cr.P.C. is concerned, undoubtedly, the attention of the accused must specifically be brought to inculpable pieces of evidence to give him an opportunity to offer an explanation, if he chooses to do so. A three-Judge Bench of this Court in Wasim Khan v. State of U.P. and Bhoor Singh v. State of Punjab held that every error or omission in compliance of the provisions of Section 342 of the old CrPC does not necessarily vitiate trial. The accused must show that some prejudice has been caused or was likely to have been caused to him.
Observing that omission to put any material circumstance to the accused does not ipso facto vitiate the trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him, this Court in Santosh Kumar Singh v. State through CBI, has held as under :-
"... the facts of each case have to be examined but the broad principle is that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him..."
In Paramjeet Singh v. State of Uttarakhand, this Court has held as under :-
"Thus, it is evident from the above that the provisions of Section 313 CrPC make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead, he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of any inadvertent omission on the part of the court to question the accused on an incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court."
The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 CrPC has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313 CrPC, it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313 CrPC. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused.
In the present appeal, learned counsel for the appellants has not been able to point out as to what prejudice has been caused by the prosecution in not putting the incriminating circumstances to the appellant. He has not been able to show that the accused has suffered some disability in relation to the safeguard given to him under Section 313 CrPC nor it has been demonstrated that it has occasioned failure of justice to the accused in the absence of which, we are of the opinion that this arguments of learned counsel for the appellants also do not have much force and in view of the settled principle of law, the trial cannot be vitiated on this ground, particularly, in view of unimpeachable testimony of the eye-witnesses.
Learned counsel for the appellants has then submitted that the recovery of Gadansi at the pointing of the co-accused Ashiq Ali could not be connected with the crime in question. Moreover, as per the forensic report, the blood found on the Gandasi was disintegrated, as such no definite opinion can be given of its use in the crime. Further, Gandasi said to be used in the crime was found different from that which was produced in the court, further makes the recovery doubtful and the appellant Ashiq Ali is therefore liable to be acquitted.
Learned counsel for the appellants has further submitted that the conviction of the appellant Ashiq Ali by the Trial court taking the aid of Section 34 IPC, appears to be unreasonable as there is no evidence to show that there was any prior meeting of mind or prior concert between the appellant Ashiq Ali and co-accused to commit the murder of deceased. The appellant Ashiq Ali had not caused any injury to the deceased and only allegation against him is that he had exhorted the co-accused to assault the deceased and no overt act has been attributed to him.
We find force in the argument of the learned counsel for the appellants and we are of the opinion that in view of the said facts and circumstances, there appears to be some exaggerated version regarding the participation of the appellant Ashiq Ali in the present incident. Hence, we give benefit of doubt to the appellant Ashiq Ali.
In view of the foregoing discussion and that the occular testimony completely corroborated by the medical evidence, we are of the opinion that the prosecution has proved its case beyond all reasonable doubts against the appellant Jahangir and the impugned judgment and order dated 31.01.2008 passed by the Trial Court is well considered and discussed, as such, the impugned judgment passed by the Trial Court is liable to be upheld and the Criminal Appeal No. 1194 of 2008, Jahangir @ Guddu Vs. State of U.P. is liable to be dismissed and is accordingly dismissed.
In Criminal Appeal No. 801 of 2008, the appeal of appellant no. 2 Ashiq Ali is allowed and he is acquitted of all the charges. He is on bail. He need not surrender and his bail bonds and sureties are discharged.
The appeal of the appellant no. 1 Sabit Ali @ Sadiq Ali S/o Hiraman and appellant no. 3 Jainul Abdin S/o Umar Ali is also dismissed. The conviction and sentence imposed upon them vide judgment and order dated 31.01.2008 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Sant Ravidas Nagar (Bhadohi) at Gyanpur in Sessions Trial No. 31 of 1999 arising out of Case Crime No. 281 of 1998 under Section 302 IPC, Police Station Chauri, District Sant Ravidas Nagar (Bhadohi), is hereby upheld. The appellants Sabit Ali @ Sadiq Ali and Jainul Abdin are on bail. Their bail is cancelled. The Chief Judicial Magistrate, Sant Ravidas Nagar (Bhadohi) shall cause the appellants Sabit Ali @ Sadiq Ali and Jainul Abdin to be arrested and lodged in jail to serve out the remaining part of the sentence and their conviction and sentence is confirmed.
Let a certified copy of this judgment and order along with Lower Court record be sent back to the court below for its intimation and necessary compliance.
Judgment be certified and placed on record.
Order Date :- 31.05.2018.