(Judgment reserved on 3.5.2019) (Judgement delivered on 30.5.2019)
Court No. - 53
Case :- CRIMINAL APPEAL No. - 3564 of 2005 Appellant :- Noor Hasan Alias Noora And Another Respondent :- State Of U.P.
Counsel for Appellant :- R.P. Tiwari,Anoop Ghosh,Araf Khan,Sachin Kanaujiya,Santosh Singh,Tapan Ghosh Counsel for Respondent :- Govt. Advocate
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
(Delivered by Hon.Pankaj Naqvi,J.)
This criminal appeal is preferred against the judgment and order dated 23.7.2005 by the Additional Sessions Judge, Court No.10, Ghaziabad in S.T. Nos.875 and 876 both of 1999 (Case Crime No..98 of 1999) convicting the appellants for life under Section 302/34 IPC with fine of Rs.10,000/- each and a default sentence of 6 months each.
The prosecution case in brief is that on the intervening night of 23/24.4.1999 while sons of P.W- 3, the informant i.e, Nisar (victim) aged 20 years and Akhtar (P.W,5) were sleeping on the terrace and P.W-3 along with his wife (P.W-4) were sleeping in the courtyard, at about 1.15 AM, both the sons shouted “maar diya”. P.W-3 and 4 on hearing the cries went to the terrace to see the victim slained with knife injuries in a torch light attributable to accused Noor Hassan @ Noora and Shaukin but the accused managed good their escape along with two unknown. Motive alleged was that a week prior to the occurrence accused had picked up a quarrel with the victim over harvesting of the wheat crop and had extended life threats. The victim with the help of his family members and neighbours was taken to the hospital but died en route.
On above allegations a written report (Ex Ka-2) was scribed which became the basis for registering an FIR (Ex Ka-5) as Case Crime no.98/99 under section 302 IPC on 24.4.1999 at 3.30 A.M, at the police station concerned at a distance of 6 kms.
P.W-10 is the I.O, in whose presence above case was registered on 24.4.1999. He on the same date obtained the statement of the informant and that of other witnesses. He carried out all the investigation formalities including preparing the site plan (Ex Ka- 10) at the instruction of P.W-3, prepared memo of the torch ( Ex Ka-3) and sent the body for autopsy. He arrested accused Noor Hasan @ Noora on 24.4.1999 and at his pointing out recovered the offensive knife in presence of P.W-1, 2, and 6, from public place. On the basis of this recovery an F.I.R as Case Crime No.100/99 under section 25/4 Arms Act was registered on 27.4.1999 against Noor Hassan @ Noora. After completion of investigation two charge sheets (Ex.Ka-13 and 9) under section 302 IPC and 25/4 Arms Act were submitted by P.Ws 10 and 9 respectively.
To establish its case, prosecution examined P.W- 1, witness to the recovery of knife, who turned hostile, P.W-3, the informant (father of victim), P.W-4 (mother of victim) and P.W-5, a child witness (brother of victim) all eye-witnesses, rest are formal.
The defence claimed false implication in view of previous enmity but did not lead any evidence.
The trial Court relying upon P.W-5, the child witness, was of the view that occurrence stood established but the recovery doubtful, convicted the accused-appellants as above while acquitting accused Noor Hasan @ Noora of charges under section 25/4 of the Arms Act.
No government appeal against the acquittal under section 25/4 Arms Act has been brought to our notice.
We have heard Shri L.R.Khan, learned counsel assisted by Shri Araf Khan for appellant no.2, Shri Sachin Kannaujia, learned counsel for appellant no.1 and Shri A.N.Mulla, the learned A.G.A for the State.
Learned counsel for the appellants canvassed the following contentions:-
I) The prosecution altered the motive suggesting that its a case of false implication.
II) Lodging of the F.I.R, is under suspect as P.W-3, the informant was unable to disclose the name of the scribe.
III) Prosecution version suffers from major contradictions in between P.W-3,4 and 5 rendering prosecution case vlunerable.
IV) Neither any statement of P.W-5 under section 164 Cr.P.C, was recorded nor any TIP conducted.
V) P.W-5 under section 161 Cr.P.C admitted himself to be a hearsay witness and was not naming Shaukin, as he happens to be the (brother in law) of co- accused Noor Hasan @ Noora, he has been falsely implicated.
VI) P.W-3 and 4 could not claim to be eye-witnesses as the occurrence took place on the terrace while they were sleeping in the courtyard.
VII) It is highly improbable that P.W-5 a child witness would not sleep with his parents but would sleep with his elder brother (victim) on the terrace when it is not accessible by stairs.
VIII) Once the trial court held the recovery of knife at the pointing out of accused Noor Hasan @ Noora to be doubtful and with no recovery of the incriminating weapon used by accused Shaukin, possibility of false implication cannot be ruled out rendering the conviction/sentence vulnerable in law.
Learned A.G.A, opposed the submission on the ground that P.W-5, a child witness, firmly established the occurrence, identified both the appellants in the court, thus absence of TIP is of no consequence and absence of recovery of a weapon from the appellant Shaukin would not impact the basic prosecution case.
P.W.-3 is the father of the victim, an informant who was sleeping with his wife (P.W-4) in the courtyard while his two sons i.e, the victim and P.W-5 were sleeping on the terrace. Both P.W-3 and 4 admit that there are no stairs in their house to reach upto the terrace, P.W-3 also does not dispute that he must have taken at least 10 minutes to climb upto the terrace with a torch. They admit that at the time of occurrence (1.15 A.M) it was pitch dark. P.W-3 and 4 woke up upon hearing the cries of their sons. The terrace is 10 feet high from the ground. All the houses in the area are adjoining each-other so that one can easily cross from one terrace to another. We after analysising the evidence of P.W-3 and 4 are of the view that considering the topography of the houses i.e, terrace is at 10 feet high not accessible by any stairs, P.W-3 and 4 woke up at 1.15 A.M (pitch dark) upon hearing cries, they must have taken 10- 30 minutes to climb up to the terrace (10 feet high) as both P.W-3 and 4 are indicating the time span of 10 to 30 minutes. The assailants after inflicting knife injuries on the sleeping victim who would be in no position to offer any resistance, soon fled jumping from the rear side of the terrace which was an open space leaving no opportunity to P.W-3 and 4 to witness either the occurrence or the identity of assailants.
P.W-5, a child witness aged about 11 on the date of his testimony recorded after 5 years of the occurrence. The trial judge after ascertaining his capacity to depose permitted to record his testimony. He stated that while the deceased brother was sleeping on the cot on the terrace, he himself was sleeping on the floor of the terrace and claims to have witness the assault on his brother by 4 assailants. He also claims to have identified 2 out of 4 assailants i.e, accused Noor Hassan @ Noora who inflicted knife injuries on the victim and accused Shaukin who gave a fist blow to him (P.W.5). P.W-5 shouted for his parents. Presence of P.W,5 is challenged on the ground that considering the topography of the house which has no stairs to reach the terrace, it was highly unlikely that he was sleeping on the terrace. The statement of P.W-5 was recorded on the day of occurrence itself. During cross-examination he could not be shattered either to his presence or as a witness to the nature of assault and the identity of the assailants. We do not find him to be a hearsay witness as contended by learned counsel for the appellants that in his statement under section 161 Cr.P.C P.W-5 admitted that he was a hearsay witness and he did not disclose the name of accused Shaukin as if it were so, P.W-5 and the IO (P.W 10) ought to have been confronted with his previous statement but that was not done, leads to an inevitable inference that there was no contradiction with his previous statement. Against the above background non- examination of this witness under section 164 Cr.P.C is at the most an investigation of flaw. Presence of P.W.5 is also challenged on the ground that no T.I.P, was conducted. It is well settled that absence of T.I.P, cannot bring the prosecution under suspect if the witness identified the accused in the court. Reference may be made to a recent decision of the Apex Court in Raju Majhi vs. State of Bihar 2018 SCC Online SC 778.
It is also well settled that testimony of a solitary witness can form the basis of conviction provided he is wholly reliable which would not require any corroboration. Reliance is placed to a decision of the Apex Court in Chacko @ Aniyan Kunju and Ors. vs. State of Kerala (2004)12 SCC 269.
7. Coming to the question whether on the basis of a solitary evidence conviction can be maintained. A bare reference of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act') would suffice. The provision, clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained.
We in the light of above legal position find P.W-5 to be wholly reliable both as to nature of occurrence and the identify of the assailants.
P.W-8 is the medico who on 24.4.1999 conducted the autopsy (Ex Ka-7) of the victim at 4 P.M. The autopsy indicates following ante-mortem injuries:-
1- dVk ?kko 2 lseh x 1 lseh isV dh xqgk rd isV esa Åij dh vksj ck;h vksj ukfHk ls 5 lseh Åij 1 cts ds LFkku ij frjNk FkkA
2- dVk ?kko 2 lseh x 1 lseh isV dh xqgk rd xgjk ck;s byk;d dkslsy ih;wfod flax Qkjfll ls 8 lseh Åij ck;s frjNk FkkA 2 x 2
3- dVk ?kko 2 1 1 les h ek¡l ifs 'k;ks rd xgjk ck;h vxz ckgq rd van:uh fiNys fgLls rd ekStwn Fkk frjNk FkkA 2
4- dVk ?kko 2 x 1 lseh ekal is'kh rd xgjk ck;h tk¡?k ds ckgjh fgLls esa chp ls frjNk FkkA 2
5- 2 dVs ?kko 2 lseh x 1 lseh ekal isf'k;ksa rd xgjk ck;h tka?k ds ihNys fgLls es chp esa frjNs FksA All injuries were incised wounds attributable to the use of a knife and same according to P.W-8 appears to have been caused on 24.4.1999 at about 1.15 A.M, and the mere fact that the witness is unable to fix the duration of injuries is not of much consequence. Thus the medical evidence is consistent with the case of prosecution as to the nature of weapon (sharp weapon-knife) and the time of death.
The F.I.R alleged that a week prior to the occurrence, the accused Noor Hasan @ Noora had picked up a quarrel with the victim over harvesting of wheat crop who had then threatened for dire consequences, whereas P.W-3 in his evidence stated that his children picked up a quarrel with the accused, the alleged alteration is not so different so as to cast doubt on the prosecution story as it can be safely said that the parties were at loggers head, basis is immaterial, it is a case of direct evidence where P.W- 5, a child witness established the occurrence and the identity of named assailants. Once direct evidence is convincing, mere alteration in motive is not of much consequence. P.W-3/the informant proved the FIR (Ex Ka-5) written at his dictates, same would not come under suspect merely because he was unable to disclose the name of its scribe.
Recovery is part of investigation. The trial court disbelieved the recovery of incriminating weapon as PW-1, an independent witness did not support the same coupled with the fact that P.W-9 (an S.I.) apart from being a witness to the recovery also happens to be the I.O of the case registered under the Arms Act which in the considered opinion of this court also renders the alleged recovery at the pointing out of accused Noor Hasan @ Noora from a public place vulnerable in law. Once occurrence has been established by cogent evidence, merely on the basis of doubtful recovery which is post occurrence, would not impact the prosecution case in its entirety.
We in the ultimate analysis find that prosecution has established its case beyond a reasonable doubt, appeal is bereft of merit and is liable to be dismissed.
The appeal is dismissed. Appellant no.1/Noor Hasan @ Noora is in jail. Appellant no.2/Shaukin is on bail, his bail bonds stand cancelled. He shall be taken into custody forthwith.
Office to communicate a copy of this order to the Sessions Judge concerned forthwith for immediate compliance. Compliance report be submitted to this Court within 4 weeks.
Order Date :- 30.5.2019 RS
(Umesh Kumar, J) (Pankaj Naqvi,J)