Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Bala Krishna Narayana,J.)
1. Heard Sri V.P. Srivastava, Senior Advocate assisted by Sri Sanjeev Mishra, learned counsel for the appellant, Sri Saghir Ahmad, Sri J.K. Upadhya, learned AGA for the State and Smt. Manju Thakur and Km. Meena, brief holders.
2. These two criminal appeals namely criminal appeal nos. 2155 of 2000 and 2088 of 2000 have been preferred by the appellants Shamsul Islam @ Afroz and Khalil against the judgment and order dated 27.7.2000 passed by Court of Additional District and Sessions Judge, Aligarh in ST No. 245/1999 (State Vs. Khalil) arising out of case crime no. 40/1998 at Police Station Gangiri, Sub-District Atrauli, District Aligarh by which the appellants have been convicted under Sections 302 and 302/34 IPC respectively and sentenced to imprisonment for life and a fine of Rs. 10,000/- each.
3. Since both the appeals arise out of the same judgment and order and are related to the same occurrence, both connected with each other by previous order of this Court, hence both the appeals are being decided by a common judgment.
4. Briefly stated the facts of the case are that on the basis of written report Ex. Ka3 lodged by PW1 Raiyan Sherwani at Police Station Gangiri, Sub District Atrauli, District Aligarh on 5.4.1998, case crime no. 40/1998 was registered against the appellants Shamsul [email protected] and Khalil under Section 302 IPC Chek FIR Ex. Ka1 was prepared by PW3 Bharat Singh who made the relevant GD entry vide rapat no. 26 at 11:30 AM on the same day, true carbon copy of the GD entry was brought on record as Ex. Ka.
5. The prosecution case as spelt out in the FIR and as testified later by the two witnesses of fact, PW1 Raiyan Sherwani and PW2 Mohd. Yaseen Khan is that the complainant Raiyan Sherwani along with his brother-in-law (Bahnoi) Gayas Uddin Khan (deceased), his nephew Husain Ahmad Khan (son of the deceased) and his cousin brother Mohd. Yaseen Khan had gone to inspect their ancestral agricultural fields and groves in Village Bilauna by a Tata Sumo bearing registration no. DL 6 CA 6697 belonging to Mohd. Yaseen Khan PW2 on 5.4.1998. As soon as they got down from their vehicle after parking the same in front of the drawing room of his brother-in-law's house, at about 10 AM they saw that Khalil who had climbed up to their joint neem tree, was cutting it's branches and he, on being enquired by deceased Gayas Uddin Khan in an intimidating tone about the name of the person with whose permission he was cutting their joint neem tree, caught hold of the deceased from behind by rolling his arms around his waste and retorted that he would soon know the name of the person who was getting the tree cut and thereafter he started pushing the deceased towards the house of Shamsul [email protected] (appellant) and as soon as they reached the door of his house the accused Shamsul [email protected] son of Islam Ullah Khan who was already present inside the room, on seeing Gayas Uddin Khan announced that he was getting the neem tree cut and he challenged the deceased, who according to him had helped his enemy Rahmat Ullah Khan by getting him implicated in a fabricated case under Section 452, to stop him from cutting the tree and after saying the aforesaid words he shot Gayas Uddin Khan from his illicit single barrel gun which caused a fire arm wound on the right side of his neck and as soon as the shot was fired accused Khalil released him from his grip and thereafter Gayas Uddin Khan fell on the floor with blood oozing out from his wound and died on the spot. Leaving behind the dead body on the spot he went to the police station for lodging the FIR.
6. As soon as the FIR of the aforesaid incident was registered, the police swung into action and Sub-Inspector LC Rai reached the place of the incident and after conducting the inquest of the dead body of the deceased he prepared the inquest report Ex. Ka2 and other related documents, police form-33 Ex. Ka9, challan lash Ex. Ka10, photo lash Ex. Ka11, letter addressed to CMO and RI Ex. Ka12 and Ex. Ka13 and specimen of seal Ex. Ka14 and after sealing the cadaver of the deceased dispatched the same to District Hospital Aligarh for conducting post mortem. He also collected blood stained soil, pieces of stone and bricks etc., from the place of occurrence and prepared the recovery memo Ex. Ka7. On the same day after inspecting the place of incident the Investigating Officer prepared the site plan of the incident Ex. Ka6. The post mortem of the dead body of the deceased was conducted on the night of the incident itself pursuant to the permission granted by the District Magistrate on the application moved before him in this regard by the deceased's son Kaisar Hayat Ex. C1 and on the recommendation of the local MLA.
7. The post mortem of the dead body of the deceased was conducted on 5.4.1998 at 10:50 PM by PW4 Dr. A K Gupta who prepared the post mortem report of the deceased Ex. Ka5.
8. After completing the investigation of this case PW5 Vinod Kumar Patel, Investigating Officer of this case submitted charge sheet Ex. Ka8 against both the accused before the CJM, Aligarh. The blood stained clothes of the deceased which were taken into custody by the Medical Officer who had conducted the post mortem and the blood stained soil, pieces of stone and bricks which were collected by the Investigating Officer from the place of incident were sent to the forensic lab for chemical examination. According to the report of the forensic lab dated 16.4.19999 the blood found on the deceased's clothes and the pieces of bricks belonged to group B.
9. Record of the case shows that during the pendency of investigation of case crime no. 40/1998, on the application of the accused moved by him before the Statement Government with the prayer to transfer the investigation of case crime no. 40/1998 from the local police to any other independent agency, an order was passed by the administration on April 1998 transferring the investigation of the case from local police to the CBCID. However before the aforesaid order could be communicated to the Investigating Officer of the case Vinod Kumar Patel PW5 he had already delivered the charge sheet Ex. Ka8 to the Circle Officer on 21.4.1998 and who had on 25.4.1998 endorsed it to be filed before the competent Court by the concerned SPO. After submission of charge sheet CJM, Aligarh took cognizance on the same on 2.5.1998. It appears that an application was moved by the accused invoking the inherent powers of the High Court vested in it under Section 482 of the Cr.P.C., with a prayer to quash the charge sheet filed against them which was rejected by this Court. Thereafter it appears that the appellant Shamsul I[email protected] moved an application before the CJM with the prayer for staying further proceedings of the case pursuant to the cognizance order on the ground that the investigation of the case had been transferred by the State to CBCID. The said application was rejected by the CJM. The aforesaid order was challenged by the accused Shamsul [email protected] before this Court by means of an application under Section 482 Cr.P.C., in which an order was passed by this Court on 22.7.1998 staying further proceedings of the case till the submission of police report under Section 173(2) Cr.P.C., by the CBCID. After completing the investigation CW1 Suraj Singh Yadav, Investigating Officer of the CBCID submitted his report before the concerned Court on 28.12.1998 along with his conclusion that on the basis of analysis of evidence collected during investigation commission of offence by the accused Shamsul [email protected] and Khalil under Section 302 IPC was fully proved. The intention of the accused behind moving the application before the State Government for getting the matter investigated by the CBCID was to get the proceedings of the Session Trial stayed so that he may utilize the intervening period for influencing the witnesses and destroying the evidence available against them.
After committal of the case to the Court of Session by the concerned CJM, the same was registered as ST No. 245/1999 and made over to the Court of Additional District and Sessions Judge, Aligarh for trial.
10. Charge was framed against the accused under Section 302/34 IPC, the acused pleaded not guilty and claimed trial.
11. The prosecution in order to prove its case against the accused examined PW1 Raiyan Sherwani and PW2 Mohd. Yaseen Khan as eye witnesses, PW3 Constable Clerk Bharat Singh who proved the chek FIR Ex. Ka4 and the GD entry Ex. Ka5, PW4 Dr. A K Gupta who conducted the post mortem report of the deceased and proved his post mortem report Ex. Ka5 and also the application given by deceased's son Kaisar Hayat Ex. C1. PW5 Vinod Kumar Patel, Investigating Officer of the case who disclosed in his evidence the various steps taken by him during the investigation and CW1 Suraj Singh Yadav, Inspector CBCID who had investigated the case for the CBCID, as formal witnesses.
12. The accused in their statements recorded under Section 313 Cr.P.C., denied the prosecution case and alleged false implication. The accused also examined Madan Singh as DW1 and also filed 17 documents for proving previous enmity between the complainant and the accused which have been dealt with in detail by the tiral Court in the judgment impugned in these two appeals and which need not be reproduced.
13. Learned Additional Court District and Session Judge, Aligarh to whom the ST No. 245/1999 was made over by the Learned Sessions Judge after the matter was committed to him for trial of the accused by the CJM, after considering the respective submissions of the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted both the appellants under Section 302/34 IPC and sentenced them to imprisonment for life.
14. We have heard Sri V.P. Srivastava, Senior Advocate assisted by Sri Sanjeev Mishra, learned counsel for the appellant, Sri Saghir Ahmad, Sri J.K. Upadhya, learned AGA for the State and Smt. Manju Thakur and Km. Meena, brief holders and have scanned the entire record of the lower Court.
The impugned judgment and order has been castigated by Sri V.P. Srivastava, learned Senior counsel appearing for the appellant, inter-alia on the grounds, that the prosecution has totally failed to prove by any cogent evidence that the occurrence had taken place in the manner as spelt out in the FIR hence the appellants' conviction cannot be sustained. It was proved from the evidence of DW1 Madan Singh to the hilt that PW1 complainant Raiyan Sherwani, PW2 Mohd. Yaseen Khan armed with country made pistols and deceased Gayas Uddin Khan armed with a double barrel gun had barged into the house of the appellant Shamsul [email protected] on 5.4.1998 at about 10:00 AM and on reaching the door of his house deceased Gayas Uddin Khan had exhorted his companions to round up the appellant and kill him as he was all alone because he had set his house fire, on which PW1 Raiyan Sherwani ran inside the house of Shamsul [email protected] and fired at appellant Shamsul [email protected] from his country made pistol but the shot missed him and hit the wall of the room and when the appellant Shamsul [email protected] tried to run away Raiyan Sherwani again fired at him but accidentally the second shot hit Gayas Uddin Khan who was standing near the door of the room and he fell down and died on the spot. PW1 Raiyan Sherwani lifted the double barrel gun of the deceased and ran away from the place of incident, but the evidence of DW1 Madan Singh was illegally rejected by the trial Court. Both the eye witnesses examined on behalf of the prosecution were inimical towards the appellant Shmsul [email protected] and highly interested in seeing him convicted and hence their testimony could not have been relied upon by the trial Court for convicting the appellants. The voluminous documentary evidence adduced by the defence for establishing previous enmity between the appellant Shamsul [email protected] and complainant PW1 Raiyan Sherwani has been illegally ignored by the trial Court. Even if the prosecution case as spelt out in the FIR and the facts testified by the two eye witnesses before the trial Court are taken as gospel truth, commission of offence by the appellant Shamsul [email protected], if any, disclosed therefrom does not travel beyond Section 304 Part I/34 IPC, further the possibility of true genesis of the incident being suppressed cannot be ruled out and in view of the above conviction of the appellants recorded under Section 302/34 IPC is liable to be scored out and converted to one under Section 304 Part I/34 IPC and sentence of life imprisonment awarded to them modified accordingly.
As regards the appellant Khalil in Criminal Appeal No. 2088 of 2000, Sri V.P. Srivastava, learned Senior Advocate has submitted that he has falsely been implicated in the present case and even if the evidence against him is taken to be true on its face value the same does not prove commission of any offence by him. The allegation made against him that he had caught hold of the deceased from behind, although it has come in the evidence that both appellant Khalil and the deceased were at same height, while the appellant Shamsul [email protected] had shot him, appears to be absurd on the face of the record as he could not have done so without seriously risking his own life. In the absence of any evidence on record that Khalil had pushed the deceased towards the room of the appellant Shamsul [email protected] either with the knowledge that Shamsul [email protected] was sitting inside the room with a gun in his hand and ready to shoot the deceased as soon as he entered the room or with the intention of causing death of the deceased, the conviction of the appellants in the present case under Section 302 IPC by taking Section 34 IPC cannot be sustained. He lastly submitted that in view of the above, the impugned judgment and order cannot be sustained and is liable to be set aside.
15. Per Contra, learned AGA submitted that the deceased was shot by the appellant Shamsul [email protected] in broad day light. The complicity of the appellants in the commission of the murder of the deceased in question stands fully established from the statements of PW1 and PW2 recorded before the trial Court. The motive for committing the murder of the deceased Gayas Uddin Khan by the appellants Shamsul [email protected] was also well established. He submitted that the FIR of the incident was lodged by PW1 promptly alleging therein that the deceased was murdered by the appellants on the threshold of the house of the appellant Shamsul [email protected] on 5.4.1998 at about 10:00 AM. The prosecution case that the deceased had died as a result of the fire arm injury inflicted on him by the appellant Shamsul [email protected] stands further fully corroborated from the medical evidence on record. He lastly submitted that the conviction of the appellants by the trial Court is based upon cogent evidence and the sentence awarded to them is supported by relevant considerations and hence warrants no inteference by this Court. This appeal lacks merits and is liable to be dismissed.
16. The twin questions involved for our consideration in these two criminal appeals inter-alia are that whether the prosecution has been able to prove its case beyond all reasonable doubts against the appellants or not and that even if the prosecution has succeeded in proving it's case against the appellant whether the conviction of the appellants recorded under Section 302/34 IPC keeping in view the evidence on record is liable to be converted to one under Section 304 Part I/34 IPC and sentence from imprisonment for life to imprisonment for a lesser period.
17. We have heard learned counsel for the parties and scanned the entire lower Court record. The incident in this case had taken place on 5.4.1998 at about 10 AM at the door of the house of the appellant Shamsul [email protected] in Village Bilauna.
18. The FIR of the incident was promptly lodged on the same day at Police Station Gangiri, Sub-District Atrauli, District Aligarh at 11:30 AM by PW1 Raiyan Sherwani who claimed himself to be the brother-in-law (Bahnoi) of the deceased Gayas Uddin Khan.
19. The post mortem of the dead body of the deceased was conducted by PW4 Dr. A K Gupta on the same day at about 10 : 50 PM who noted following ante mortem injuries on his dead body :
ANTE MORTEM INJURIES (I) Firearm wound of entry 5 x 3 cms x muscle deep over Rt. side neck 2 cm below mandible. All B V S trachea & Oesophagus found lacerated one wedding piece & (4) pallets recovered from the mark plane sealed & handed over to constable.
(II) Abrasion 3 x 3 cms over back of Lt. Side chest lower part.
(III) Abrasion 4 x 3 cms over front of Lt. Leg upper 1/3rd.
(IV) Abrasion 2 x 2 cms over front of Lt. Leg middle 1/3rd.
(V) Abrasion 2 x 2 cms over dorsum of Rt. Hand.
According to his opinion death of the deceased had occurred due to shock as a result of ante mortem injuries. The time of death was stated by him to be about half a day.
20. PW4 on page 48 of the paper book in his examination-in-chief stated that the injuries found on the dead body of the deceased could have been inflicted on him on 5.4.1998 at about 10 AM. Thus the time of the incident mentioned in the FIR and in the statement of the two prosecution witnesses stands fully corroborated from the medical evidence on record. Even otherwise there is no serious challenge by the learned counsel for the appellant to the time and place of the incident mentioned in the FIR. Infact even the presence of the appellant Shamsul [email protected] at the place of the incident at the time of the occurrence is not denied.
21. Learned counsel for the appellant in this appeal has confined his challenge essentially to the manner of assault as described in the FIR, the identity of the persons nominated as accused for murder of Gayas Uddin Khan and the credibility of the two eye-witnesses who have been examined on behalf of prosecution to prove the guilt of the appellants for demonstrating that the prosecution has failed to prove its case beyond all reasonable doubts.
22. As far as the manner in which the incident had taken place is concerned, PW1 Raiyan Sherwani has fully supported the prosecution case in his examination in chief recorded before the trial Court. PW2 Mohd. Yaseen Khan has fully corroborated PW1 on almost all material particulars pertaining to the arrival of the deceased along with his son and complainant in Mohd. Yaseen Khan's Tata Sumo at his ancestral house in Village Bilauna for the purpose of inspecting his ancestral agricultural fields and groves in Village Bilauna at about 10 AM on 5.4.1998 and on the point of the complicity of the accused Shamsul [email protected] and Khalil (appellant in criminal appeal no. 2088 of 2000) in committing the murder of the deceased. Both PW1 and PW2 were subjected to a gruelling cross examination by the defence counsel but they failed to elicit anything from them which could even remotely create a doubt with regard to the veracity of the facts deposed by them in their evidence. Through out their cross examination both the eye witnesses stuck to the description of the incident as described by PW1 in the FIR and in their examinations in chief.
However the role which has been assigned by the two eye-witnesses to the appellant Khalil that he had caught hold of the deceased from behind while the appellant Shamsul [email protected] had shot him, thereby seriously risking his own life cannot appeal to a person of a prudent mind and the evidence of PW1 and PW2 on the aforesaid point does not inspire confidence despite their remaining intact during the cross-examination.
23. Now the question which arises next is whether the evidence of PW1 and PW2 is liable to be discarded on the ground of their being close relatives of the deceased and inimical towards the appellant Shamsul [email protected] due to previous enmity between them as canvassed by the learned counsel for the appellant.
24. The issue whether evidence of a witness related to the deceased is liable to be discarded merely because of his relationship with the deceased is no longer res integra and stands settled in view of the series of the judgments of the Apex Court.
35. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo 2003 Crl LJ 844 (SC), observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.
36. In Mst. Dalbir Kaur v. State of Punjab 1976 Cr LJ 418(SC) following observations were made:
Interested witness:- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon.
(i)The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or the some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is very natural witness cannot be regarded as an interested witness.
40. Hon'ble Supreme Court in Waman and others v. State of Maharashtra 2011 Crl. LJ 4827 has observed in paragraph No. 9 which reads as follows :
"In Balraje @ Trimbak v. State of Maharashtra 2010 (70) ACC 12 (SC) = 2010 (90) AIC 32. this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears appears to be clear, cogent and credible, there is no reason to discard the same."
41. It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. V. Naresh and others 2011 (75) ACC 215 (SC) = 2011 (106) AIC 76 (SC).
Thus what follows from the reading of the aforesaid judgments is that mere fact that the witnesses are related to the deceased was inimical towards the accused cannot be a ground to discard their evidence and the Court is required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused carefully and weighed pragmatically, the same pragmatically if the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.
25. In the instant case, no doubt the defence has brought on record documentary evidence for establishing that the witnesses were inimically disposed towards the appellant Shamsul [email protected] but at the same time after a very cautious and careful scrutiny of their evidence we do not find any reason to doubt their testimony vis-a-vis appellant Shamsul [email protected] The time of the incident and the manner of assault by appellant Shamsul Islam on the deceased mentioned in the FIR are fully supported by both the prosecution witnesses in their evidence tendered during the trial which stands further fully corroborated from the medical evidence on record. As far as the identity of the accused is concerned both the eye-witnesses of the incident PW1 Raiyan Sherwani and PW2 Mohd. Yaseen Khan have stated in unison that the deceased Gayas Uddin Khan was shot dead by appellant Shamsul [email protected] from his country made pistol after he had been pushed to the door of his house by appellant Khalil.
26. Although an attempt has been made by the appellants' counsel to discredit the prosecution case and making a dent in it by submitting that in fact, PW1 Raiyan Sherwani, PW2 Mohd. Yaseen Khan and deceased Gayas Uddin Khan had forcibly entered into the house of appellant Shamsul [email protected] armed with country made guns and double barrel licensed gun with the intention of committing his murder as a measure of vendetta against Shamsul [email protected] who had burnt the house of the deceased and although PW1 Raiyan Sherwani had fired at the appellant Shamsul [email protected] from his country made gun but the shot missed him and hit the wall of the room. However the second shot fired by him at Shamsul [email protected] hit the deceased Gayas Uddin Khan on the right side of his neck and he fell on the spot and died on the spot and thereafter PW1 Raiyan Sherwani picked up his licensee single barrel gun and escaped from the place of incident.
27. In support of his aforesaid submission, learned counsel for the appellant has invited our attention to the evidence of Madan Singh who was examined as DW1 by the defence during the trial. However upon perusal of the same and the other material brought on record, we are of the view that no veracity can be attached to the facts stated by him in his evidence tendered before the trial Court for the following reasons :
(i) Appellant Shamsul [email protected] in his statement recorded under Section 313 Cr.P.C., had failed to state that the incident had taken place in the manner described by DW1 Madan Singh.
(ii) DW1 Madan Singh had introduced himself as an eye witness of the incident on 10.9.1998 after five days of the occurrence by filing an affidavit before SSP, Aligarh on 10.4.1998 without any explanation for his having kept quiet for five days after the occurrence.
(iii) DW1 in his cross-examination has admitted that he was accused in several criminal cases and was in judicial custody at the time when he was produced before this Court as defence witness.
(iv) He also admitted in his cross-examination that while he was confined to District Jail Bareilly on account of being involved in some criminal cases appellant Shamsul [email protected] had got him bailed out and hence he appears to be an interested witness.
(v) There is no explanation for the failure of the appellant Shamsul [email protected] and DW1 Madan Singh to lodge the FIR of the incident in case the incident had taken place in the manner described by DW1 in his evidence in their presence.
28. Thus in view of the above, we do not have any hesitation in holding that DW1 is a got up witness and no reliance can be place on the facts deposed by him in his testimony tendered before the trial Court. The prosecution in our opinion has fully succeeded in proving that the appellant Shamsul [email protected] had shot the deceased Gayas Uddin Khan with his fire arm and after he had been pushed up to the door of his room by appellant Khalil. However we do not find the evidence of PW1 and PW2 convincing on the point of appellant Khalil having caught hold of the deceased from behind by rolling his arms around his waste, while the appellant Shamsul [email protected] had shot him because he could not have held him in the manner described by the two eye-witnesses without endangering his own life which no prudent man in his senses would dare to do.
29. The next question which arises for our consideration is that whether considering the facts and circumstances of the case and the evidence on record, the conviction of the appellants recorded under Section 302/34 IPC is liable to be scored out and converted to one under Section 304 Part I/34 IPC. Learned counsel for the appellant Shamsul [email protected] has vehemently argued that even if the prosecution story is accepted as it is then it becomes quite clear that there was no intention of the accused to eliminate the deceased or that incident was either pre-planned or pre-meditated, so the conviction of the accused-appellant is not sustainable under Section 302/34 IPC.
30. Record of this case shows that admittedly the incident had taken place on the door of the house of appellant Shamsul [email protected] There is no evidence on record even remotely indicating that the appellants had any previous knowledge about the visit of the deceased along with PW1 Raiyan Sherwani and PW2 Mohd. Yaseen Khan to Village Bilauna on the date of the incident. Both PW1 and PW1 on page nos. 14 and 30 of the paper book in their cross-examination have categorically admitted that they had chalked out the plan to go to Village Bilauna in the evening of 4.4.1998 in the house of Mohd. Yaseen Khan in the evening of the day preceding the date of the incident. In view of the above factual scenario the moot question which arises is that why Shamsul [email protected] who had no inkling about the impending visit of the deceased along with PW1 and PW2 to village Bilauna on the date of incident would be sitting inside the room of his house at the door whereof the incident had taken place with a gun in his hand and why would Khalil climb up the ancestral/joint neem tree of the party and start cutting the same with the object of provoking the deceased as if he was anticipating the arrival of the deceased and his other relatives as there is no evidence on record showing that the appellants had any previous information about the visit of the deceased and there is no evidence that he had pushed the deceased up to the door of the room of the appellant Shamsul [email protected] with the knowledge that he was going to shoot him. According to the prosecution witnesses of fact PW1 and PW2, deceased along with his relatives had reached Village Bilauna by the Tata Sumo of Mohd. Yaseen Khan PW1 and which was parked in front of the drawing room of deceased at about 10 AM and within minutes of their arrival the occurrence had taken place. On the point of assault both PW1 and PW2 have stated that when the deceased came out from the Tata Sumo he noticed that Khalil was cutting branches of their joint neem tree and who on being enquired from the deceased in an intimidating tone with whose permission he was cutting the neem tree Khalil retorted that he would soon know the name of the person who was getting the tree cut and thereafter he holding the deceased from behind started pushing him towards the house of Shamsul [email protected] (appellant) and as soon as they reached the door of his house the accused Shamsul [email protected] son of Islam Ullah Khan who was already present there on seeing Gayas Uddin Khan announced that he was getting the neem tree cut and he challenged the deceased, who according to him had helped his enemy Rahmat Ullah Khan by getting him implicated in a fabricated case under Section 452, to stop him from cutting the tree and after saying the aforesaid words he shot Gayas Uddin Khan from his illicit single barrel gun which caused a fire arm wound on the right side of his neck. As far as the issue of enimity is concerned it is admitted to both the parties that they were inimical towards each other but from the perusal of the evidence available on record, we are not convinced that the incident was either pre-planned or pre-meditated or the appellant Shamsul [email protected] had shot at the deceased with the intention of causing his death. The record shows that only one shot was fired and the same had hit the right side of the deceased's neck. The incident had taken place within the premises of the house of the appellant Shamsul Islam and admittedly appellant Shamsul [email protected] and PW1, PW2 and the deceased were inimical towards each other. The aforesaid factors are extremely crucial. It is not the case of the prosecution as already noted that the appellant Shamsul [email protected] had any previous knowledge about the visit of the deceased and PW1 and PW2 so that he may have made preparations in advance for committing the murder of deceased. It appears whatever had happened on the spot had occurred in a spur of the moment. From the facts and circumstances of the case it appears that offence in this case was committed without pre-meditation in the heat of passion upon sudden quarrel. The role assigned to the appellant Khalil by the two prosecution witnesses is that of pushing the deceased forcibly from the neem tree to the room of the house of Shamsul [email protected] and holding him till the appellant Shamsul [email protected] had shot him. The evidence of the PW1 and PW2 vis-a-vis the role assigned to the appellant Khalil does not appear to be convincing. Had it been a case of assault made from a knife or a dagger, theory of appellant having caught hold of the deceased and immobilized him while appellant Shamsul [email protected] had assaulted him could be believed. But the evidence of the two prosecution witnesses that Khalil not only pushed the deceased from the neem tree up to the door of the house of the appellant Shamsul [email protected] but also kept him holding from behind till appellant Shamsul [email protected] shot him with his fire arm from a distance of 2 or 3 kadams (5 or 7 feet) does not appear to be credible as nobody in his right senses will hold a person in the manner testified by the two prosecution witnesses in this case while the other shot him without seriously risking his own life. If the evidence of PW1 and PW2 on the point of appellant Khalil holding him from behind while appellant Shamsul [email protected] had shot him is accepted then the appellant Khalil could not have escaped unhurt specially in view of there being evidence of PW1 and PW2 to the effect that both were of same height and should have received fire arm injury from the dispersal of the pellets from the bullet fired by Shamsul [email protected] from his country made gun. Thus we are not inclined to believe the testimony of the two eye-witnesses on the aforesaid aspect of the matter.
31. Since there is no evidence on record indicating that the occurrence was either pre-meditated or pre-planned it cannot be presumed that appellant Khalil had pushed the deceased upto the door of the house of the appellant Shamsul [email protected] knowing that he was going to shoot him or with the object of facilitating the appellant Shamsul [email protected] to commit the murder of the deceased. In view of the above, the conviction of the appellant Khalil under Section 302/34 IPC cannot be sustained and the commission of offence if any which is disclosed from the evidence available on record against him does not travel beyond Section 352 IPC.
32. Upon a critical analysis of the evidence on record and a thorough marshalling of the facts and circumstances of the case, we find although both the eye-witnesses of the incident have corroborated the prosecution case as spelt out in the FIR in their evidence tendered before the trial Court but at the same time it appears to us that they have not disclosed the true genesis of the occurrence either due to ignorance or purposely. It is true that their evidence on the point of appellant Shamsul [email protected] firing at the deceased appears to be reliable and trustworthy but at the same time material particulars relating to exactly what had happened immediately before the incident which had led to the deceased receiving fire arm injuries from the gun shot fired by appellant Shamsul Islam, we are constrained to observe, have been suppressed by the two eye-witnesses and only partial truth has been disclosed.
33. Thus in view of the foregoing discussion, we are of the view that the conviction of the appellant Shamsul [email protected] recorded under Section 302 IPC by the trial Court and that of appellant Khalil under Section 302/34 IPC cannot be maintained as the offence committed by appellant Shamsul [email protected] falls within fourth exception to Section 300 IPC. The conviction of the appellant Shamsul [email protected] under Section 302 IPC recorded by the trial Court is scored out and converted to one under Section 304 Part I IPC. Whereas the conviction of the appellant Khalil is converted to one under Section 352 IPC.
34. We have been informed by learned counsel for the parties that appellant Shamsul [email protected] is in jail for the last more than 17 years and in view of his conviction under Section 302 IPC having been scored out by us and converted to one under Section 304 Part I IPC, the sentence of imprisonment for life awarded to him by the trial Court is palliated to the period of imprisonment already undergone by him. He shall be released forthwith unless he is wanted in any other case.
35. As far as the appellant Khalil is concerned, his conviction under Section 302/34 IPC as recorded by the trial Court having also been scored out and converted to one under Section 352 IPC, the sentence of imprisonment for life awarded to him is also modified and reduced to three months simple imprisonment and fine of Rs. 500/- and in case of default in the payment of fine he shall be liable to undergo 15 days additional simple imprisonment. The appellant Khalil is on bail. His sureties and bail bonds are discharged. He shall be taken into custody and sent to jail for serving out the remaining part of his modified sentence, if any. Criminal appeal Nos. 2155 of 2000 and 2088 of 2000 stand allowed in part. The impugned judgment and order stands modified to the extent indicated hereinabove.
36. However, keeping in view the provisions of Section 437-A Cr.P.C., appellants are directed to forthwith furnish a personal bond in the sum of Rs. One lakh and two reliable sureties in the like amount before the trial Court, (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the Instant Judgment or for grant of leave, the appellants on receipt of notice thereof shall appear berfore the Hon'ble Supreme Court.
Order Date:- 7.10.2016 SA