Hon'ble Syed Aftab Husain Rizvi,J.
Delivered by Hon'ble Syed Aftab Husain Rizvi,J.
1. Heard Sri Noor Mohammad, learned counsel for the appellants no. 2 and 3 and Sri H.M. Singh, learned Senior Advocate for the appellants no. 4 and 5 assisted by Sri Vidyanand Tripathi, Advocate and Sri Ashwani Prakash Tripathi, learned A.G.A. for the State and perused the record.
2. This criminal appeal has been filed against the common judgment and order dated 04.05.2007 passed by the Additional Session Judge, Court No.1, District- Meerut in S.T. Nos. 545 of 2004 (State vs. Mobin @ Nanha, Hasrat, Anees, Kamil, Istakbaal) Case Crime No. 83 of 2004, under Sections 148, 149, 302/149, 307 I.P.C., S.T. No.588 of 2004 (State vs. Mobin @ Nanha) Case Crime No.103 of 2004, under Sections 25 of Arms Act, S.T. No.589 of 2004 (State vs. Kamil) Case Crime No.104 of 2004, under Section 25 of Arms Act, S.T. No.568 of 2004 (State vs. Anees) Case Crime No.91 of 2004, under Sections 25 of Arms Act and S.T. No.669 of 2004 (State vs. Istakbaal) Case Crime No.90 of 2004, under Section 25 of Arms Act, Police Station- Bhawanpur, District- Meerut, convicting the accused-appellants (Mobin @ Nanha, Hasrat, Anees, Kamil, Istakbaal) under Section 147, 148, 307, 302 read with Section 149 I.P.C. and sentencing each of them to undergo one year imprisonment under Section 147 I.P.C. to undergo two years imprisonment, under Section 148 I.P.C. to undergo seven years imprisonment under Section 307 I.P.C. to undergo life imprisonment under Section 302 read with Section 149 I.P.C.. All the sentences to run concurrently.
3. In brief, the prosecution case is that on 19.04.2004 at about 9:20 a.m. Shafayat (informant) his brother Shahadat along with Kamil, Nanhi the sister of Kamil, and Matloob were going to the Court on their date and when they were standing near Madarsa on the Rasta of Naglasahu waiting for the bus to go Meerut, Mobin, Hasrat, Anees, Kamil, and Istakbaal holding pistols in their hands came from behind the Madarsa and started firing on them. To save their lives, they ran here and there. Shahadat the brother of the informant and Kamil ran inside the Madarsa, chasing them all the five accused entered into Madarsa and riddled Shahadat the brother of the informant with bullets. The accused threatened them with death while firing shots and said that today they have taken the revenge of the murder of Nafees. Shahadat died on the spot. Due to firing by the accused the road was blocked and the passersby ran away in the fields to save their lives.
The report of the above incident was registered on 19.04.2004 at 10:30 a.m. on the application of Shafayat as Crime No. 83 of 2004 under Sections 147, 148, 149, 307, 302, 506 I.P.C. and 7 Criminal Law Amendment Act at Police Station- Bhawanpur. The investigation of the case was taken over by S.O. Bhawanpur, C.P. Katheriya. He recorded the statements of the complainant and the eyewitnesses, visited the spot, and prepared the site plan. From the place of occurrence, 4 empty cartridge, 1 bullet, and 1 live cartridge were also taken into possession, and a memo was prepared. He also collected bloodstained and plain soil from the spot and sealed it in separate containers and prepared a memo. The inquest proceeding of the dead body of deceased Shahadat was conducted by S.I. Ram Sevak under the directions of investigating office, related papers were also prepared and the body was sealed and sent for postmortem examination. Investigating Officer further recorded the statements of other witnesses and after completion of the investigation submitted a charge-sheet against all 5 accused Mobin @ Nanha, Hasrat, Anees, Kamil and Istakbaal under Sections 147, 148, 149, 307, 302, 506 I.P.C., and 7 Criminal Law Amendment Act.
During the course of investigation on 04.05.2004, a police party led by S.O. C.P. Katheriya at 7:30 p.m. arrested accused Istakbaal and Anees and recovered one country made pistol from each, alleged to be used in the crime. In the barrel of each country made pistols one live cartridge was also found. A recovery memo was prepared and separate Case Crime No. 90 of 2004 and 91 of 2004 under Section 25 Arms Act were registered against accused Istakbaal and Anees. Further on 24.05.2005, in police custody on interrogation, the accused Mobin and Kamil disclosed the facts of concealing country made pistols used in the crime and at their instance two country made pistols with one empty cartridge in each of its barrel were recovered under the heap of bricks near the tubewell of Sattar. The recovered articles were sealed and a memo was prepared and separate Case Crime No. 103 of 2004 and 104 of 2004 under Section 25 Arms Act were registered against Mobin @ Nanhe and Kamil. The investigation of the aforesaid cases under Section 25 Arms Act were conducted by S.I. Surendra Singh and S.I. R.S. Yadava/ H.C.P. Suresh Gupta respectively who after taking necessary steps and completing all the formalities submitted separate charge sheets against each four accused under Section 25 Arms Act.
4. The learned trial court framed charges against accused Mobin @ Nanhe, Hasrat, Anees, Kamil, and Istakbaal under Sections 148, 302 read with 149 and 307 I.P.C. and separate charges under Section 25 Arms Act against accused Mobin @ Nanhe, Kamil, Anees, and Istakbaal. All accused pleaded not guilty and claimed for trial. The prosecution has examined 11 witnesses who have proved 33 documents Ex.Ka-1 to Ka 33 and 13 material exhibits. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied the prosecution case and have further stated that they are residents of the same village but they are not of the same family and Kamil is not their friend. In the murder of Nafees, Matloob, Shahadat, Kamil, and her sister Nanhi are accused. Regarding F.I.R. it has been said that it has been lodged after the return of S.O. from the spot much later. It has been further stated that all the papers have been fabricated at the police station itself, nothing was recovered from the spot, no empty cartridges were recovered from near the dead body and nothing was recovered from the possession of the accused or at their instance. Witnesses PW-1 to PW-3 are accused in the murder of Nafees and they have deposed due to enmity and have falsely implicated the accused persons to save themselves from the murder case of Nafees. One defence witness Afsar Ali DW-1 has been produced. No documentary evidence has been produced. The learned Trial Court by the impugned common judgment has convicted accused Mobin @ Nanhe, Hasrat, Anees, Kamil, and Istakbaal for offence under Sections 147, 148, 307 read with section 149 and 302 read with section 149 while acquitted accused Mobin @ Nanhe, Kamil, Anees, and Istakbaal from charges under Section 25 Arms Act.
5. No appeal has been preferred against the acquittal of accused Mobin @ Nanhe, Kamil, Anees, and Istakbaal from charges under Section 25 Arms Act. So the point of consideration in this appeal is only the convictions of the accused persons under Sections 147, 148, 307, 302/149 I.P.C.
6. The post-mortem of the deceased Sadahat was conducted on 19.04.2004 at 4:30 p.m. by Dr. J.P. Sharma who has appeared as PW-5 and proved the post-mortem report as Ex.Ka-4.
According to post-mortem, the age of the deceased was about 22 years, average build body. No decomposition. Rigor mortis was present all over the the body. Eyes were closed.
Following ante-mortem injuries were present:-
(i) Lacerated wound of 1 cm x 1.5 cm x scalp deep, left and back of head, 8 cm from left ear.
(ii) Gun shot wound of entry 1.5 cm x 1 cm x bone deep front of neck above sternal notch, trachea and esophagus lacerated.
(iii) Gun shot wound of entry 0.9 cm x 0.9 cm x chest cavity deep on front side of chest, 8 cm from right nipple at about 1:30 O'clock position. Margins inverted, one bullet recovered from chest cavity.
(iv) Gun shot wound of entry 0.9 cm x 0.8 cm x chest cavity deep, on front of left side of chest blackening 4 cm x 4 cm around, margins inverted, 12 cm below the left nipple at about 6 "O" clock position. One bullet recovered from left side of chest from chest wall, left lung lacerated.
(v) Gun shot wound 4 cm x 3 cm x muscle deep on posterior part of right hand just below right wrist, blackening present 3 cm x 2 cm on outer side of wound.
In internal examination both lungs, trachea and esophagus were lacerated, liver and kidney were pale.
Cause of death was shock and hemorrhage as a result of ante-mortem injuries and duration of death was within half day.
Dr. J.P. Sharma, PW-5 in examination-in-chief has also stated that during post-mortem examination three bullets were recovered which were kept in sealed cover and handed over to the police constable. The doctor has further stated that the death of the deceased may occur on 19.04.2004 at 09:30 a.m. and ante-mortem injuries may come from fire arms.
7. The prosecution has produced three eyewitnesses. Kamil PW-1 in his examination-in-chief supporting the prosecution version has said that accused Anees, Hasrat, Kamil, Istakbaal, Mobin @ Nanhe are of his village and belong to one family while Kamil is their friend. Accused bear enmity with him and deceased Shahadat. Nafees, the son of accused Hasrat was murdered. In that case of murder besides Matloob and Shahadat, he and his sister were also made accused. The incident is of 19.04.2004. They all five, the witness along with his sister Nanhi, Shahadat, Matloob, and Shafayat were waiting for the bus at the culvert (puliya) near Madarsa on Parichitgarh Road to go Meerut on the date of the murder case of Nafees. It was 9:20 a.m. The accused holding pistols in their hands came through the field behind the Madarsa and started firing from the back. They narrowly escaped the firing and ran away to save their lives. Kamil and Shahadat ran inside the Madarsa. The accused entered into the Madarsa to kill them. Shahadat entered into the room of Molwi Sahab. The accused shot him dead at the door of the room while he saved his life by climbing the stairs. The accused waving their pistols abusing and saying that they have taken the revenge of Nafees, ran away. This incident was also seen by Molwi Sahab, the students, Matloob and Shafayat, and others.
8. Shafayat PW-2 is also the informant and brother of the deceased Shahadat. The witness has reiterated the averments made in the F.I.R. and in addition has also said that Shahadat was his real brother. Accused Mobin @ Nanhe, Hasrat, Anees, Kamil, and Istakbaal are of his village. Except Kamil, the rest are of the same family. Kamil is their friend. Nafees son of accused Hasrat was murdered and in that case, his brother Shahadat was named as an accused and because of this the accused bear enmity with Shahadat. The witness has also said that when he returned he saw his brother lying dead. Accused were firing with pistols on his brother and he has seen this from the window of Madarsa which open towards the main road. Kamil saved himself while climbing the stairs. The accused while leaving said that today they have taken revenge of the murder of Nafees. The witness has further said that he got the report of this incident written by Mustafa who wrote it on his dictation, read over to him and then he signed it. The witness has proved it as exhibit Ka 1. The witness has further stated that he gave the report at the police station and got the case registered.
9. Matloob PW-3 in his examination-in-chief has also supported the prosecution case and said that the accused bear enmity with them. They were facing trial for the murder of Nafees son of accused Hasrat, Shahadat, Kamil, Nanhi, and he himself are accused in that case. On the day of incident, the date was fixed in that case for which he, Safayat, Shahadat, Kamil, and Nanhi were going to Meerut. The incident is of 14-15 months earlier and it was 9-9:15 a.m. They were standing near culvert (puliya) waiting for the bus. After some time Mobin, Anees, Istakbaal, Kamil, and Hasrat came from behind the Madarsa and fired shots at them but they escaped it. Kamil and Shahadat ran towards Madarsa, while he, Safayat, and Nanhi ran towards the field. All five accused chasing Shahadat and Kamil entered into Madarsa and fired at Shahadat causing his death on the spot. Kamil saved himself by climbing on the roof. Shahadat was shot at the door of the room of Molwi Sahab. He has seen the occurrence Shafayat and Kamil also saw it. The accused fired shots at them with the intention to kill them.
10. Kamil PW-1 was produced before the trial court on 24.01.2005 and on that date his examination-in-chief was recorded and the opportunity of cross-examination was closed by a detailed order as none appeared for the accused to cross-examine the witness. Later on, on the application of defence, the witness was recalled for cross-examination and his part cross-examination was recorded on 7.11.2005 and further on 17.11.2005, and in both the cross-examination the witness stood by his earlier statement and supported the prosecution case but when on 24.02.2006 the witness appeared again for further cross-examination he retracted from his earlier statement and said that on the day of the incident only three persons proceeded from the village, Matloob and Shahadat were with him. Safayat and Nanhi were not with him. He has further said that when he was standing on the culvert (puliya) the assailants came from behind, their faces were covered with clothes. When shots were fired he ran towards backside. He didn't know in which direction Shahadat and Matloob escaped. He has not seen the shot being fired. He has escaped. The witness has further said that he had seen Shahadat entering into the Madarsa because he and Shahadat both entered into the Madarsa together. He has not seen the accused entering into the Madarsa, he has also not seen anyone firing at Shahadat. He was much ahead of Shahadat and climbing the stairs jumped in the backside. The witness has also disowned his statement recorded under Section 161 Cr.P.C.. As the witness retracted from his earlier statements, on the prayer of the prosecution the witness was declared hostile and the prosecution got opportunity of cross-examination. In this cross-examination, the witness has admitted that on 24.01.2005 he has given the statement that accused Kamil, Istakbaal, Mobin, etc. are of their village and they bear enmity with him and Shahadat. In the murder case of Nafees besides he and his sister Nanhi, Matloob and Shahadat are accused and that trial is still going on against them. It was date in the murder case of Nafees on the day of the incident. He has earlier given the statement that he and Shahadat ran into the Madarsa and the accused followed them inside the Madarsa to kill them. The witness has shown ignorance about his earlier statement that the accused shot dead Shahadat at the door of the room of Molwi Sahab and further that the incident was seen by Molwi Sahab, the students, Matloob, and Shafayat. He has also said that he is not aware of what he has said in his earlier statements and if those statements are true or false? The witness has denied that he has settled the matter with the accused. The witness has admitted that in the murder case of Nafees, Anees, Hasrat and their family members are witnesses against him, but has denied the prosecution suggestion that due to settlement with the accused he has given false statement today. The position of Matloob PW-3 is almost similar. His examination-in-chief and partial cross-examination was recorded on 15.07.2005 but it could not be completed on that date and deferred on oral request of defence counsel. His further cross-examination was recorded on 20.03.2006 in which he retracted from his earlier statement and said that he has not seen the accused Mobin alias Nanhe, Hasrat, Anees, Kamil, and Istakbaal firing at Shahadat. He has also said that on the day of the incident 3 persons, he himself, Shahadat, and Kamil proceeded from the village and Shafayat was not with them. When assiliants were firing their faces were covered with clothes and he couldn't identify them, the accused persons present in the court were not involved in the firing or killing. He has also said that the statement which he gave on 15.07.2005 was given under the pressure and intimidation of the police. This witness has also disowned his statement under Section 161 Cr.P.C. and further said that seeing the weapons he ran away from the spot and has not seen anyone entering into the Madarsa. As the witness has not supported the prosecution version, the prosecution got him declared hostile. In cross-examination, by the prosecution, the witness has admitted that Nafees, the son of accused Hasrat was murdered and the case of that murder is still pending against him, Shahadat (deceased), Nanhi, and Kamil and on the day of the incident, the date was fixed in that murder case. Regarding his previous statement, he has said that he has given the earlier statement under the fear of police. The police have threatened him in the village. He has further said that he has not made any complaint in court about police intimidation because the policemen have said that if he made any complaint in court he will be falsely implicated in other case. He has further said that he has not made any complaint in this respect to any police officer or court or any other authority. He has further said that his earlier statement is not true while today's statement is true and the whole earlier statement was under police duress, and now the fear of the police has faded and he has come to depose true facts. The witness has denied that any settlement has taken place. He has shown ignorance about the fact that Dafadar, Anees, and Hasrat, etc. are witnesses in the murder case of Nafees. The witness has denied the suggestion that he has retracted from his earlier statement under the pressure of the accused.
11. The prosecution case stands fully corroborated with the oral testimony of PW-2 Shafayat. It also got corroboration from the examination-in-chief and partial cross-examination of both eye witnesses Kamil PW-1 and Matloob PW-3. The medical evidence also corroborates the aforesaid oral evidence. According to medical evidence, deceased Shahadat has suffered four fire arm injuries. Three of them are on the chest and neck while one is on the right hand. He has also suffered one lacerated wound on left side on his head. 3 bullets were also recovered from the body of the deceased, during the post-mortem examination. Dr. J.P. Sharma PW-5 has corroborated that death of the deceased has occurred due to ante-mortem fire arm injuries and death may have occurred on 19.04.2004 at 09:30 a.m.. So date and time, manner of assault and weapons used, got full corroboration from the medical evidence on record.
12. It is also pertinent to mention that the oral statement of Kamil PW-1 started on 24.01.2005 and finally concluded on 24.02.2006, in a span of one year. In between his partial cross-examination were recorded on 07.11.2005 and 17.11.2005 and till then he stood by his statement supporting the prosecution version. Likewise, the examination of Matloob PW-3 started on 15.07.2005 and on this date his examination-in-chief and partial cross- examination was recorded in which he fully supported the prosecution version, thereafter his cross-examination was recorded on 20.03.2006 more than 8 months after in which he turned hostile. The order sheet also reveals that just from starting of recording statement of prosecution witnesses the defence tried its best to keep the case lingering and frequent adjournments were moved by the defence when witnesses appeared in the Court for recording their statements and because of this, such a long period have elapsed between commencig of recording of statement and its completion. It also appears that defence was trying to won over the witnesses and ultimately succeeded. Defence has produced one witness namely Afsar Ali as DW-1. This witness has admitted the facts of enmity between the parties and village party bandi and has also said that a Panchayat of 8 villages was held with regard to murder of Shahadat and Nafees and he was present in it. In this Panchayat, the case of Nafees and Shahadat were settled and it was decided that both the parties will get their cases dismissed. Shafayat was also present in Panchayat and accepted the decision of Panchayat and on this basis the murder case of Nafees was decided from the Court. This witness in his cross-examination has admitted that the case of Nafees's murder was proceeding against Nanhi, Shahadat, Matloob and Kamil. On the date of murder they were going on their date. He further said that it is true that after Panchayat, Matloob and Kamil withdrawn from the evidence. He has further said that he knows that Hazi Julfkar of the village has suffered gun shot injuries in which Mobin and Kamil are accused, that case was also settled and Hazi Julfkar gave statement in it. The witness has shown ignorance about the fact that the accused have settled their matter with Matloob and Kamil and because of this these witnesses have turned hostile. Witness has not specifically contradicted the aforesaid suggestion of the prosecution. So from the evidence on record, it is clear that the statement of cross-examination of Kamil PW-1 recorded on 24.02.2006 and Matloob PW-3 recorded on 20.03.2006 are a result of settlement of the matter between the parties. It is also clear from the evidence on record that witness Kamil PW-1 and Matloob PW-3 are the accused in the murder case of Nafees who is blood relation of accused persons, so they have struck a deal with the accused and under the said deal they have turned hostile just to save themselves from the conviction in the case of Nafees's murder. In these circumstances, it is fully established that the portion of their statement in cross-examination in which they turned hostile are not true and it has been made under the influence/pressure and deal with the accused and not from their own free will. The previous statement of both the witnesses are true and out of their free will. The portion of the cross-examination in which these witnesses have turned hostile can be separated from remaining statements and liable to be discarded. The previous statements are trustworthy and can be safely relied upon.
13. Learned counsel for the appellants contended that out of three eye witnesses produced by the prosecution Kamil PW-1 and Matloob PW-3 have turned hostile. There remains sole testimony of Shafayat PW-2 who is real brother of the deceased so related and interested witness. His presence at the time of occurrence is doubtful as there is no good reason to accompany the deceased who was going to Meerut to attend the court. He has stated that he was also going to Meerut to fetch Khal Chunni which is highly improbable because these materials are available in the local market and even in the village itself, so it cannot be believed that a person will go to Meerut for the same purpose. Learned counsel for the appellants also contended that from the evidence on record pre-existing enmity between the complainant and accused are established and that may be the motive for false implication. In such a situation the sole testimony of Shafayat PW-2 who is also inimical cannot be relied. He has further contended that Shafayat PW-2 in his statement has stated that he has seen the accused firing at his brother inside the Madarsa from the window which open towards the road but there is no such window and this statement of the witness is wholly untrue and cannot be believed.
Learned A.G.A. submitted that the oral statement of Shafayat PW-2 is consistent. Kamil PW-1 and Matloob PW-3 have turned hostile at a later stage under the influence of accused. Pre-existing enmity proves the motive of the incident. It is specific in the F.I.R. as well as in the oral statement that after the execution of the incident the accused said that today they have taken revenge of the murder of Nafees. So testimony of Shafayat cannot be disbelieved merely because he is real brother of deceased or inimical.
The arguments of learned counsel for the appellants are misconceived and have no force. It is not a case based on evidence of a solitary witness. As discussed above, the oral testimony of Kamil PW-1 and Matloob PW-3 cannot be wholly discarded on the ground that they turned hostile at a later stage. It is settled law that the testimony of the hostile witnesses need not to be discarded in toto and that portion of the testimony which supports the prosecution case can be taken for consideration.
In Koli Lakhmanbhai Chanabhai Vs. State of Gujarat (1999) 8 SCC 624 Hon'ble Supreme Court has held that the testimony of a hostile witness is useful to the extent to which its supports the prosecution case.
In Bhagwan Singh (1976) 1 SCC 389 the Hon'ble Apex Court has held that when witness declared hostile and cross-examined with the permission of the Court, his evidence remains admissible and there is no legal bar to have a conviction upon his testimony, if corroborated by other reliable evidence.
In the case of Syed Akbar Vs. State of Karnataka reported in AIR 1979 SC 1848 the Hon'ble Supreme Court has expressed the view that if some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable.
Applying the aforesaid preposition of law on the facts, it is clear that the previous statement of Kamil PW-1 and Matloob PW-3 (examination-in-chief and partial examination) is consistent. There is no major discrepancy or contradiction in it and it fully corroborates the medical evidence and F.I.R. version. So this part of statement of the two witnesses is reliable and statement of PW-2 Shafayat got corroboration from the aforesaid oral testimony. Both these witnesses have said that at the time of occurrence Shafayat (complainant) was accompanying them and Shafayat PW-2 has also affirmed this in his cross-examination. His presence on the spot cannot be doubted merely on the ground that purpose of his going to Meerut seems improbable.
There is no rule of law that testimony of a interested or related witness should be discarded out rightly. What is required is cautious scrutiny of the oral testimony of such a witness. This part of oral testimony of Shafayat PW-2 that he seen the accused firing at Shahadat inside the Madarsa from the window, opening towards the road is not worth to believe and it appears that the witnesses just in over zealousness to support that he has also seen the accused firing shots at Shahadat inside the Madarsa has made the aforesaid statement. It appears that he may not have an opportunity of watching the aforesaid incident as he himself has ran towards the fields to save his life but rest of his oral testimony is consistent and there is no major discrepancy which makes him unreliable.
Previous enmity is a double edged weapon. It may be a motive for committing the crime and also for the false implication but considering the entire facts and evidence in this case the previous enmity appears to be motive behind the incident. The incident has occurred in day light and in public place seen by many persons. Deceased was chased and killed inside the Madarsa from where empty cartridges, bullets etc. have been recovered. There is eye-witness account of the incident. So it is improbable that real assailants of such daylight incident should be spared and on account of previous enmity the accused have been falsely implicated. The oral testimony of Shafayat PW-2 is consistent and reliable. It further got support from the examination-in-chief and partial cross-examination of other two witnesses Kamil PW-1 and Matloob PW-3 and their presence at the place of occurrence is fully established. The eye-witness account of Kamil PW-1 in particular is about whole incident and it implicates the accused and fully proves that accused shot dead the deceased Shahadat inside the Madarsa. Even if the presence of Shafayat PW-2 at the time of occurrence is not believed and his oral testimony is discarded even then there is sufficient evidence on record to prove the prosecution case that the accused have shot dead the deceased Shahadat.
14. Learned counsel for the appellants further contended that it has come in the evidence that accused persons fired shots while chasing. In this situation the injuries should have come from back side but in the post-mortem examination of the deceased all the injuries found on the body are on the front side hence ocular testimony do not match with the medical evidence. Learned counsel for the appellants further contented that it has also come in the evidence that during the course of incident Shafayat, Matbool and Nanhi ran in one direction towards the road in the north while Shahadat and Kamil ran towards the Madarsa and entered into it. The accused persons chased Shahadat and Kamil into Madarsa and Kamil to save his life climb the stairs and jumped in the back side while Shahadat was fired and killed near the room of Molwi Sahab, so Shafayat and Matloob have no opportunity to watch the shooting incident which has occurred inside the Madarsa and Kamil was also not in a position to watch the same and there is no eye witness account of the real incident of shooting.
Learned A.G.A. submitted that accused started firing when all the five (deceased and witnesses) were standing at the Puliya. Shahadat and Kamil ran towards Madarsa and entered into it. Accused chased Shahadat and Kamil and shot Shahadat at the door of the room of Nazim and pumped several bullets on him. At this time Kamil was with Shahadat inside the Madarsa so he has opportunity to watch the incident. He further contended that Shafayat PW-2 and Matloob PW-3 have witnessed the occurrence which has occurred out side the Madarsa. So all the witnesses are eye-witness of the incident.
From the site plan Ex.Ka-13 and evidence on record, it is clear that at the time of occurrence Shahadat, witness Kamil, Shafayat, Matloob and Nanhi sister of Kamil were standing at Puliya waiting for the bus. Accused persons came from behind the Madarsa through open field and started firing. Three of them namely, Shafayat, Matloob and Nanhi ran in one direction towards the road in the north while Shahadat and Kamil ran in the west towards the gate of Madarsa and entered into it. All the accused entered into Madarsa chasing Shahadat and Kamil. Kamil ran towards the stairs while Shahadat ran towards the room of the Molwi Sahab. Accused fired several shots on Shahadat and he fell down at the door of the room while Kamil saved himself climbing the stairs. The site plan also shows that the stairs are adjacent to the room of Molwi Sahab. So Kamil was very much present near the place of actual shooting and he has full opportunity to watch the incident that has occurred inside the Madarsa. Further the whole incident has occurred in one sequence and transaction without any time gap and all the three witnesses have seen it and they are all in the category of eye witnesses. Even if Shafayat PW-2 and Matloob PW-3 are not presumed to be eye-witnesses of the incident which has occurred inside the Madarsa, their oral testimony is relevant under Section 6 of the Evidence Act being res gestae. With regard to the argument that prosecution case is that accused chased and fired shots from behind but all the injuries on the body of Shahadat in on the front part, it is worth while to mention that according to post-mortem report Shahadat has suffered five injuries. Four injuries are of fire arm. Injury no.5 is on the posterior part of the right hand which may have been caused from behind while he was running. Further, the location of the injuries depends upon the position of the deceased when shots were fired at him. Kamil PW-1 who was with Shahadat inside the Madarsa was himself running to save his own life, so threadbare description of the incident is not expected from him and it can only be guessed. Shahadat ran towards the room of Molwi Sahab, so it may be probable that on reaching at the door of the room he may have turned to shut the door but accused got him and pumped bullets on him before he can shut the door. It may also be probable that finding himself cornered he may have turned and in that position the bullets were fired at him, so the probability that shots were fired at him from front cannot be ruled out and on this ground it cannot be said that there is any contradiction between oral evidence and medical evidence.
15. Learned counsel for the appellants also contended that Nanhi was an important witness but she has not been examined by the prosecution. It is further contended that it has came in the evidence that at the time of occurrence students, teachers and Molwi Sahab were also present in the Madarsa but none of them has been made a witness nor examined in the Court. Learned counsel for the appellant cited the case of Deny Bora Vs. State of Assam (2014) 14 SCC 22 and referred para 9 which is as follows:-
"The question that arises for consideration is whether the prosecution has been able to establish the involvement of the appellant in the crime in question. As is manifest, neither the wife nor the daughter of the deceased has been examined. Submission of Mr. Goswami is that they are natural witnesses and no explanation has been given for their non- examination and hence, adverse inference against the prosecution deserves to be drawn. He has drawn inspiration from the authority in Surinder Kumar v. State of Haryana1 wherein it has been held, though in a different context, that a failure on the part of the prosecution in non-examining the two children, aged about six and four years respectively, when both of them were present at the site of the crime, amounted to failure on the part of the prosecution. In this context, reference to the decision in State of H.P. v. Gian Chand2 would be profitable. The Court while dealing with non-examination of material witnesses has expressed that:-
"14 ... Non-examination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record, howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court leveled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution."
The three-Judge Bench further proceeded to observe that the court is required first to assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted and acted upon though there may be other witnesses available who could also have been examined but were not examined."
In this respect, it is sufficient to say that the quality of evidence and not quantity which matters. The prosecution is not under any obligation to multiply the evidence. So non production of Nanhi or any other person said to be present at the time of occurrence by the prosecution does not adversely affect the prosecution case. In the ruling cited by learned counsel for the appellants, the Hon'ble Supreme Court has also laid down that the Court is required first to assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted and acted upon though there may be other witnesses available who could also have been examined but were not examined. .
16. Learned counsel for the appellants also contended that according to prosecution five persons armed with pistols fired indiscriminately upon the deceased and his companions right from the culvert (Puliya) through the road and also inside the Madarsa but only four injuries of fire arm have been found on the body of the deceased and the Doctor in his cross-examination has said that the injuries no.2 and 3 may be from the same weapon. No bullet, empty cartridge or any mark or sign has been found near the Puliya or on the road or inside the Madarsa except at the door of the room of Molwi Sahab. This fact also doubts the prosecution story about manner of assault and makes the statement of witnesss in this respect unreliable. Learned counsel for the appellants placed reliance on the judgment in the case of Jalpat Rai and others Vs State of Haryana (2011) 14 SCC 208 and referred para 41 and 45 of the aforesaid citation which reads as follows:
"41. PW-1, PW-4 and PW-8 are not only much interested in the prosecution case but they are inimically disposed towards the accused party as well. The deep rooted enmity and serious disputes between PW-1 on the one hand and A-1 and his sons on the other and their unflinching interest in the prosecution case necessitate that the evidence of PW-1, PW-4 and PW-8 is considered with care and caution. To find out intrinsic worth of these witnesses, it is appropriate to test their trustworthiness and credibility in light of the collateral and surrounding circumstances as well as the probabilities and in conjunction with all other facts brought out on record.
45. If the evidence of PW-1, PW-4 and PW-8 is to be believed then there was indiscriminate firing by the accused party at the complainant party. PW-1 has said so in so many words. Four members of the accused party - A-1, A-2, A-3 and A-4 - were armed with firearms. According to these witnesses, all of them fired shots from the firearms they were carrying. The first shot was fired by A-2 from the pistol he was carrying (although in the FIR it is recorded that A-2 was armed with revolver but this inconsistency is not very material). That shot did not hit anyone. A-2 then again fired shot that hit Chand. A-4 fired a shot with pistol that hit Sunil. A-3 and A-1 fired shots from their guns and A-2 and A-4 also fired shots from the pistols causing injuries to Pawan and PW-4. However, at the place of occurrence, only three empties were found. Had the firing taken place in the manner deposed by PW-1, PW-4 and PW-8, obviously there should have been more empties at the place of occurrence."
Learned A.G.A. submitted that four empty cartridge, one live cartridge and one bullet have been recovered from the place of occurrence inside the Madarsa. Investigating Officer has taken it in possession and also prepared a memo which is Ex.Ka- 14, so there is no discrepancy in the evidence in this respect.
It is true that no empty cartridge/ bullets or sign of firing has been found outside the Madarsa but it stands proved that four empty cartridge of 315 bore pistol, one live cartridge and one bullet have been taken in possession by the Investigating Officer from inside the Madarsa near the door of the room of Nazim. Apart from it, 3 bullets have also been recovered from the body of the deceased in post-mortem which has been sealed by the doctor. It clearly establishes several rounds of firing at the time of occurrence and there is no discrepancy in prosecution case in this regard.
17. Learned counsel for the appellants contended that according to the prosecution five accused persons armed with pistols opened fire, chased the deceased and his companions and Shahadat died due to gun shot injuries but it is not specific as to which or any of five committed assault and fired. This argument of the learned counsel for the appellants has no legal sanctity. The accused have been charged with Section 149 I.P.C. also and from evidence on record it is clear that all accused in a pre-planed manner and in furtherance of the common object came from behind the Madarsa holding fire arm in their hands and opened fire on deceased and his companions. The deceased and Kamil ran towards the Madarsa and accused persons chased and fired on him inside the Madarsa and he died instantaneously. So all the ingredients of Section 149 I.P.C. are fulfilled. The number of accused persons are five and they made an unlawful assembly armed with pistols and in prosecution of the common object of such assembly they have committed the crime. The principle of Section 149 I.P.C. has been explained at length by the Hon'ble Apex Court in the Case of Lalji AIR 1989 SC 754 as follows:
"Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person fails within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.
Thus, once the Court hold that certain accused persons formed in unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. " (emphasis supplied.) The Constitution Bench of the Hon'ble Supreme Court in the Case of Masalti AIR 1965 SC 202 has held thus:
"What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly ,and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC.
.........The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141."
In State Vs. Krishan Chand (2004) 7 SCC 629 it has been further held by the Hon'ble Supreme Court that:
"It is a well established principle of law that when the conviction is recorded with the aid of Section 149, relevant question to be examined by the court is whether the accused was a member of unlawful assembly and not whether he actually took active part in the crime or not."
So this defence is not available to the accused that it is not established as to which or any of the five accused assaulted or fired. Under Section 149 I.P.C. all accused are equally liable. Further in this case the actual participation of all the accused is also established.
18. The prosecution has also produced the evidence of recovery of one live cartridge and one country made pistol from each accused, Istaqbaal, Anish and one country made pistol and one empty cartridge at the instance of accused Mobin and Kamil, alleged to have be used in the incident. Separate charges under Section 25 Arms Act were also framed against each accused. The learned Trial Court has not believed this evidence and have acquitted all the aforesaid four accused persons from charges under Section 25 Arms Act. The said acquittal has not been challenged and no appeal has been filed against the same, so this evidence is not taken into consideration.
19. PW-4 Leela Singh is the formal witness who has proved the Chik report of Crime No. 83 of 2004 and related G.D. as Ex.Ka-2 and 3 while Ram Singh Yadav PW-7 has prepared the inquest report and related papers and has proved these papers as Ex.Ka-7 to 13. Sub-Inspector C.P. Katheria PW-8 is Investigating Officer of Case No. 83 of 2004 under Section 147, 148, 149, 307, 302, 506 and 7 Criminal Amendment Act. He has proved the site plan, memo of bloodstained and plain soil, memo of bullets, empty cartridge collected from the spot and charge-sheet as Ex.Ka- 13, 14, 15 and 19.
20. From material on record and appreciation of evidence, it is clear that evidence produced by the prosecution is reliable and trustworthy. The eye-witness account of the witnesses can be relied on. Kamil PW-1 and Matloob PW-3 although have turned hostile at a later stage but their previous statements fully corroborates the prosecution version and is true and reliable. It is fully established that the witnesses have turned hostile under a settlement so as to get benefited and to save themselves from incarceration in Nafees's murder case. So the part of the statement in which they have turned hostile is made under a deal and not true and so cannot be believed. It is separable from the earlier statements. The oral evidence is fully corroborated by the medical evidence on record and the guilt of the accused persons is fully proved. The learned Trial Court has properly appreciated the entire evidence on record and findings given by it are just and proper. There is no infirmity or perversity in the findings of the learned Trial Court. The conviction recorded by learned Trial Court is liable to be upheld. Criminal Appeal is liable to be dismissed.
21. The criminal appeal is hereby dismissed.
22. Learned counsel for the appellants informed that appellant no.2 Hasrat while serving sentence after getting remittance has been released from jail on 09.02.2021.
23. Remaining appellants are in jail, they shall serve their sentences.
24. Lower court record along with copy of the judgment be transmitted immediately to the trial Court.
Order Date :- 07.10.2021 Krishna*