Reserved on 07.01.2019 Delivered on: 22-01-2019
Case :- CRIMINAL APPEAL No. - 4321 of 2003
Rahees & Others Appellants State Of U.P. Respondent For appellants :- Sri Rishi Kant Rai, holding brief of Sri Sanjeev Kumar Rai, Advocate For Respondent :- Sri Santosh Ratan Pandey, A.G.A
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
(Per Umesh Kumar, J)
1- This appeal has been preferred against the judgment and order dated 06.09.2003 passed by Additional Sessions Judge, Court No.7, Bulandshahar convicting the accused-appellants Rahees, Umaruddin @ Qamaruddin,Jafaruddin and Kallan Khan to undergo life imprisonment under Sections 302 read with section 34 of IPC and under Section 307 read with Section 34 of IPC, to undergo rigorous imprisonment for a period of ten years. Both the sentences are ordered to run concurrently.
2- Briefly stating prosecution story is that on 29.3.2000 at about 8.30 p.m. when informant-Munshi Khan along with his son Mukhtar, Mumtaz and Shabu son of Malkhan were sitting in front of their house, at about 8.40 p.m.,Rahees, Qamaruddin son of Kallan Khan, Jafaruddin son of Ali Sher and Kallan Khan son of Makmool Khan came there. Appellant- Rahees was having Farsa, appellant- Jafaruddin having sariya and appellants Qamruddin and Kallan Khan having lathi in their hands came and shouted that your son Mumtaz had beaten his brother Qamruddin 8-10 days ago. Today, we will see and with an intent to kill started beating all of us . In between Malkhan's wife Nathia came there and she was also beaten by the aforesaid accused-appellants. On hearing the noise, Chunnu son of Jyoti Prasad Sharma, Buddha son of Sohan Lal and other persons of the village arrived there and saw the occurrence. They rescued us from the hands of accused appellants. The appellants-accused persons went away threatening to kill. Mumtaz having grievous head injuries, was directly sent to Bulandshahar. The inoformant and his son Mukhtar, nephew Shabu and Nathia went to the police station and they submitted written tahrir Ex. Ka-1 in the police station. First information report of the occurrence was written at police station on 29.03.2000 at about 9.45 p.m.
3- Injured Mukhtar, Shabu,Munshi Khan and Smt. Nathia were medically examined by Dr. Nepal Singh at CHC, Jahangirabad, Bulandshahar and their injuries reports are Ex.Ka-2 to Ex.Ka-5. The injured Mumtaz was medical examined by Dr. Sudhakar Garg who has proved this injury report ( C-1) as Court witness. Mumtaz was being treated at Bulandshahar and thereafter, he was referred to Safdarjang Hospital, New Delhi for better medical treatment. He was admitted on 01.04.2000 at about 11.50 a.m., but unfortunately during treatment he expired. Dr. Sandeep Jain (PW-4) has prepared death summary which has been exhibited as Ex.Ka-6. The post mortem of deceased-Mumtaz was conducted by (P.W-7) Dr. Alexandar, Head of Forensic Medicine, Safdarjang Hospital, New Delhi and the post mortem report is Ex.Ka-8. P.W.7- Dr. Alexander has narrated about the nature of injuries, duration and cause of death, in detail in his examination, the relevant portion of which is quoted as under;
pksV ua0 1%& CySd vkbZ ysQ~V lkbM] cka;h vkW[k ds pkjks rjQ peM+h ds uhps [kwu tek Fkk] tks dkyk iM+k FkkA pksV ua0 2& QVk gqvk ?kko 7-2 lh-,e- x -4 lh-,e x -4 lh-,e tks flj dh cka;h iSjkbVy gM~Mh ij FkkA [kksiM+h dh lwtu ds uhpsA pksV ua0 3& flj ds nkfguh rjQ dVk gqvk ?kko tks 2-9 lh-,e- x -3 lh-,e- x -3 lh-,e-] uhps dh rjQ tkrs gq,A pksV ua0 4& yky czkmu uhyxw fu'kku 12 lh-,e- x 7 lh-,e- tks lh/kh cktw ds Åijh Hkkx ij ckgjh rjQ FkkA pksV ua0 5& yky czkmu uhyxw fu'kku 4 lh-,e- x 3 lh-,e- tks nkfgus dU/ks ds Åij ihNs dh rjQ FkkA pksV ua0 6& cka;s ?kqVus ij [kjksap 1 lh-,e- x 1-5 lh-,e-] tks ?kqVus ij ckgjh rjQ FkkA
vkUrfjd ijh{k.k
pksV ua0 2 o 3 ds uhps flj esa [kky ds uhps [kwu tek FkkA flj dh ckbZ iSjkbVy o VsEijy gfM~M;ksa esa vUnj dh vksj ?kqlk gqvk QzsDpj FkkA Sub-Dural vkSj Sub-arachnoid Hamemorrahge Brain ds ysQ~V iSjkbVy vkSj VsEiksjy Hkkxksa esa ik;k x;k FkkA iwjs fnekx esa lwtu FkhA fnekx ds Ventricules esa [kwu ik;k x;k FkkA ckfd vUn:uh ijh{k.k ukeZy FkkA isV ds vUnj 50 ,e-,y- v/kipk [kkuk ik;k x;kA esjh jk; esa e`R;q Craniocerebral injuries, tks dqUn o l[r gfFk;kj ;k oLrq ls gqbZ FkhA pk sV u a0 2 dqUn o l[r gfFk;kj l s vkb Z Fkh vkSj lk/kkj.kr;k e`R;q d s fy, Ik;kZIr FkhA pksV ua0 3 ds vykok lHkh pksVsa dqUn vkyk ls vkuk lEHko gSA pksV ua0 3 rst /kkjnkj okys gfFk;kj ;k oLrq ls vkbZ FkhA ------------------------------------
pksV ua0 1 tks ck;h vka[k ds ikl [kky ds uhps [kwu tek Fkk og pksV ua0 2 dk urhtk gks ldrh gSA pksV ua0 2 lfj;k o ykBh ls vkuk lEHko gSA pksV ua0 3 rst /kkj nkj gfFk;kj tSls Qjlk ls vk ldrh gSa pksV ua0 4 ykBh ls vkuk lEHko gSA pksV ua0 5 Hkh ykBh ;k lfj;k ls vkuk lEHko gSA pksV ua0 6 Hkh ykBh ;k lfj;k ls vkuk lEHko gSA pk sV u a0 2 e`R;q d s fy, Ik;kZIr FkhA
4- P.W.8, Sub Inspector, Ramesh Chandra has prepared relevant documents regarding inquest which have been marked as Ex.Ka- 9 to Ex.Ka-13.
5- P.W.9 HCP, S.B. Singh has exhibited check FIR( Ex.Ka-16), GD entry No. 18 ( Ex.Ka-18), site plan (Ex.Ka-19), blood stained and plain earth as Ex.Ka-20.
6- After completiion of investigation, the Investigating Officer Ram Autar Karnwal has submitted charge sheet Ex-Ka-7. The accused named above, were charged under Sections 302/34 and 307/34 of IPC.
7- In support of prosecution version, the prosecution has examined P.W.1, Munshi Khan, P.W.2 Mukhtar, injured eye witnesses, P.W.3 Dr. Nepal Singh,P.W.4 Dr. Sandeep Jain, P.W.5 B.K. Bhardwaj, P.W.6 R.A. Karnwal, P.W.7 Dr. Alexander, C.W.1, Dr. Sudhakar Garg who has proved injury reports of the injured, death summary and referal Form etc. P.W.6 R.A. Karnwal has exhibited the relevant documents. P.W.6 R.A. Karnwal has submitted charge sheet. P.W.7 S.B. Singh has proved chick FIR, GD entry of the present case.
8- Statements of the appellants-accused were recorded under Section 313 Cr.P.C. in which, appellant-Rahees, Kallan Umaruddin @ Qamruddin have denied the prosecution version. Qamruddin in his statement has stated that neither any charge sheet was given to him from the Roadways Workshop nor any quarrel with deceased-Mumtaz took place prior to the incident. Appellant-Jafaruddin in his statement under Section 313 Cr.P.C. has stated that one Chaman son of Kallan Khan complained about theft of papers of the Car to Azharuddin son of Anwar and thereafter, a quarrel between Munshi Khan and Anwar took place and when he came to rescue, he also sustained injuries. To support this assertion, defence has examined DW-1 Dr. Nepal Singh who has proved injury report of accused Jafaruddin son of Ali Sher as Ex.Kha-1. No cross case or any other defence version has been asserted or pleaded.
9- Learned Counsel for the appellant has argued that motive of the occurrence has not been proved by the prosecution. The independent witnesses mentioned in the FIR have not been examined. The injured Shabu and Nathia also have not been examined. The accused- appellants were not armed with deadly weapons, hence offence under Section 302 of IPC is not made out. The prosecution version is contrary to the medical evidence. The injuries of accused-appellant Jafaruddin has not been explained by the prosecution. The genesis and origin of the incident has not been established and the sentence is too severe.
10- On the other hand, learned AGA denying the submission of learned Counsel for the appellant has argued that in the incident, one young man namely Mumtaz has lost his life and several other injured persons have received simple and grievous injuries in the incident. The prosecution has examined two injured eye witnesses. All the witnesses mentioned in the FIR need not to be examined. The oral testimony is strongly corroborated and proved by the medical evidence. The mode and manner of quarrel has been established by the proseuction witnesses. Hence, conviction of the accused- appellants is justified and need no interference.
11- We have heard Sri Rishi Kumar, holding brief of Sri Sanjeev Kumar Rai, learned counsel for the appellants and Sri Santosh Ratan Pandey, learned AGA on behalf of State and have gone through the record.
12- In the case in hand, the accused-appellants, informant and injured belong to same village, besides being members of same family.
P.W.1 Munshi Khan, an injured eye witness has stated in his statement that on 29.3.2000, he along with his son Mukhtar, Mumtaz and Shabu son of Malkhan were sitting in front of their house, at about 8.40 p.m.,Rahees, Qamaruddin son of Kallan Khan, Jafaruddin son of Ali Sher and Kallan Khan son of Makmool Khan came there. Appellant- Rahees was having Farsa, appellant-Jafaruddin having sariya and appellants Qamruddin and Kallan Khan having lathi in their hands came and shouted that your son Mumtaz had beaten his brother Qamruddin 8-10 days ago. Today, we will see and with an intent to kill started beating all of us . In between Malkhan's wife Nathia came there and she was also beaten by the aforesaid accused-appellants. On hearing the noise, Chunnu son of Jyoti Prasad Sharma, Buddha son of Sohan Lal and other persons of the village arrived there and saw the occurrence. They rescued us from the hands of accused appellants. The appellants-accused persons went away threatening to kill. He has exhibited tahrir vide Ex.Ka-1. He has deposed that at the time of occurrence, a lantern was burning and there was sufficient light to see the occurrence. In the incident, Mumtaz-deceased, Mukhtar, Shabu, Nathia and he sustained injuries. Mumtaz-deceased was serious, and he therefore, was directly sent to Bulandshahar to get medical treatment, whereas, other injured witnesses were mdically examined at CHC, Jahangirabad. About the motive of occurrence, he has narrated that deceased-Mumtaz and accused-Umaruddin @ Qamruddin were working in the Road ways workshop at Bulandshahar. About 8-10 days prior to the incident, a quarrel between Mumtaz on one side and accused-appellant Umaruddin@ Qamruddin and Jafaruddin took place at Bulandshahar, due to which, the present occurrence has taken place. This assertion of motive has also been proved by the P.W.2-Mukhtar Khan, an injured eye witness in his testimony. The testimony of injured eye witness is entitled to great weight, because the presence of such witness at the time and place of occurrence cannot be doubted. It is not likely that he would spare the real assailants and implicate an innocent person. Very cogent and convicing grounds would be required to discard the evidence of such witness. The statement of both injured eye witnesses strengthen the relations and long standing enmity, also admitted by the appellants- accused in their statements under Section 313 Cr.P.C. It is established principle of law that the motive of the occurrence has no meaning when there are direct and ocular witnesses of the incident.
13- In the cross examination of P.W.1, Munshi Khan, nothing has been pointed out which falsify the prosecution version, specially when his statement is supported by the statement of P.W.2, injured eye witness also. It has been held in the case of Subedar Tiwari Vs. State of U.P. AIR 1989 SC 733 that the evidence regarding existence of motive operates in the mind of the assassin, is very often not within the reach of others. A crime may take place even without premeditation or preplanning in the context of a particular situation on the spur of moment. The Apex Court in the case of Shivji Genu Mohite Vs. State of Maharashtra AIR 1973 SC 55 has held that even if motive is not established, the evidence of eye witnesses is not rendered untrustworthy.
14- Much emphasis has been tried to be given by the learned Counsel for the appellant in respect to source of light at the time of occurrence. In this respect, it is enough to take into account the testimonies of two injured eye witnesses viz P.W.1 and P.W.2 who in their statements have specifically deposed about burning of a lantern. Learned Trial Judge while deciding the trial in question has taken note relying on the decision of Apex Court in the case of Shakti Patra Vs. State of West Bengal 1981 Cr.L.J. Page 645, wherein it has been held that whether witnesses have stated the source of light in their statements before the Court, in such a cirumstance, non mentioning the source of light in the first information report or in the statements under section 161 Cr.P.C, is not fatal to the prosecution case and the testimony of such witnesses cannot be discarded.
15- In the case in hand, examination of two injured eye witnesses have fully supported the prosecution version. They have deposed about the mode and manner of quarrel. Their testimony are reliable and unfeded.
16- It has also been argued by learned Counsel for the appellants that indepndent witnesses viz. Chunna and Buddha and other injured witnesses, Shabu and Smt. Nathia have not been examined. In this connection, suffice it to note that the Apex Court taking into account various decisions has held in the case of Munshi Prasad Vs. State of Bihar reported in AIR 2001 SC 3031 that it is the quality of evidence which has to be appreciated and not the quantity. In the present case, two injured eye witnesses have been examined. They are reliable and trustworthy at the touch stone of the cross examination. Their testimony is intact. Mere non examination of independent witnesses never affects the prosecution case. In this case, the prosecution version has been strongly supported by the doctors, injury reports of the injured, death summary and post mortem examination report. It is argued that in the injury report prepared by Dr. Sudhakar Garg, only three injuries on the body of deceased are mentioned, whereas the post mortem report and other reports are contrary to that. In this connection, it is relevant to note that the injury report Ex.C-1, it has been mentioned that the deceased-Mumtaz was very serious, unconscious and he was unable to answer anything and for that reason, he was referred for better medical treatment to Safdarjang Hospital, New Delhi through referal Form- Ex.Ka-15. Dr. Alexander (P.W.7) has explained the injuries of deceased-Mumtaz,wherein, he has specifically mentioned that injury no.2 was sufficient to cause death. He has also stated that injury no.3 is an incised wound which can be caused by sharp edged weapon. The appellant-Rahees was having Farsa and other appellants were armed with sariya and lathi and these weapons are sufficient to cause the said injuries on the body of deceased-Mumtaz.
17- As argued by learned Counsel for the appellants that the injuries of appellant Jafaruddin has not been explained by the prosecution. In this reference, it is relevant to note that in Ex.Ka-1( Dr. Nepal Singh) has stated that injury no.1 and 2 might have been caused by fall and injuries no. 4 and 5 may have been caused by friendly hands. The injuries on the body of appellant-Jafaruddin are simple and superficial in nature. In the case of Hare Krishna Vs. State of Bihar 1988 Cr.L.J. 925, it has been observed that in every case, injuries of accused need not to be explained. In the case of Rajendra Singh vs. State of Bihar (2004) 4 SCC 298, it has been held that non explanation of injuries by the prosecution in all cases would never be tatal for the prosecution. In the present case, the statements of injured eye witnesses P.W.1 and
P.W.2 corroborated by the medical evidence broadly describe the occurrence and involvement of the appellants-accused. The testimonies of injured eye witnesses are flawless, consistent and unvarnished. There is no ground to doubt its veracity.
18- Considering the entire aspects of the matter and looking to the circustances under which the preset offence has been committed, coupled with the reliable testimonies of two injured eye witnesses, the medical evidence proved by the doctors in their statements. Thus, this Court has no reason whatsoever to disbelieve the trustworthiness of the eye witness account.
19- We are of the view that the impugned judgmet and order dated 06.09.2003 passed by the Trial Judge is well disicussed and the trial Court has rightly convicted the appellants . As such, the impugned judgment and order is liable to be upheld and this appeal having no force, is liable to be dismissed.
20- Accordingly, appeal is dismissed and conviction and sentence imposed upon the appellant vide judgment dated 06.09.2003 is affirmed.
21- Copy of this judgment along with Lower Court record be sent back forthwith to the Trial Court concerned for compliance. Compliance report be also communicated to this Court.
Order Date :- 22.01.2019 ( Pankaj Naqvi, J) Shahid (Umesh Kumar, J)