JUDGMENT M. Chaudhary, J.
1. This Government appeal has been filed on behalf of the State from the judgment and order dated 2nd of April, 1997 passed by VII Additional Sessions Judge, Kanpur Nagar in Sessions Trial No. 1098 of 1995 State v. Guddu @ Furkan acquitting the accused of the charge levelled against him under Section 302 IPC.
2. Brief facts giving rise to this appeal are that at 7:15 p.m. on 5th of March, 1995 Rashid Ali, brother of injured Mumtaz Husain lodged an FIR at police station Bekanganj situate at a distance 2 1/2 Furlongs from Penchbagh alleging that Sajid Husain, father of the victim was in occupation of house No. 94/106, Penchbagh as tenant of one Mahavir Prasad. Guddu @ Furkan residing in Roti wali gali within the limit of police station Moolganj wanted to get the said house vacated forcibly. On 26th of March, 1994 the accused taking some ruffians came to the house of Sajid Husain and threatened him to vacate the accommodation in his occupation; and Mumtaz Husain lodged the FIR of that incident at police station Bekanganj. On 26th of November, 1994 the accused hurled handgranade at his son Rashid Ali and an FIR of that occurrence was also lodged by Mumtaz Husain at the police station. That case was pending in the court of Session and Mumtaz Husain was an eye witness of that occurrence. In the evening of 5th of March, 1995 Rashid Ali and his father Sajid Husain were sitting at their dental clinic. Mumtaz Husain, younger brother of Rashid Ali aged about 15-16 years was drawing water from the hand pump situate across the road in front of the clinic. In the meanwhile Guddu @ Furkan came from the side of Penchbagh hurling abuses and as he reached near the hand pump he fired at Mumtaz Husain with countrymade pistol. Sustaining firearm injury Mumtaz Husain fell down and on hearing the sound of shot fired Sajid Husain, Rashid Ali and few others rushed to the scene of occurrence and Guddu, the assailant fled away threatening them. Immediately the injured was rushed to Ursala Hospital for treatment by his father Sajid Ali and brother Liyakat Husain. The police registered a crime against the accused under Section 307 IPC and made entry regarding registration of the crime in GD (Exts Ka 11 & Ka 12). Station Officer Brijvir Singh who took up investigation of the crime in his hand went to the scene of occurrence, inspected the site and prepared its site plan map (Ext Ka 3). He also recorded statements of the witnesses.
3. Since condition of injured Mumtaz Husain was serious he was referred to LLR Hospital, Kanpur where he was admitted at 7:40 p.m. the same evening but he succumbed to the injuries sustained by him in the said incident the same night at 9:30 p.m. On receiving information on telephone on 6th March, 1995 at 10:00 a.m. from police station Swaroop Nagar regarding death of Mumtaz Husain in LLR Hospital last evening the police altered the crime under Section 302 IPC vide GD entry No. 24 (Ext. Ka l0). Then Station Officer Brijvir Singh went to LLR Hospital and drew inquest proceedings on the dead body of Mumtaz Husain. He prepared the inquest report (Ext Ka 4) and other necessary papers ( Ext Ka 5 to Ka 8) and handed over the dead body in a sealed cover alongwith necessary papers to Constables Jahan Singh and Sunil Kumar for its post mortem. He also recorded statement of Sajid Husain, father of the deceased.
4. Autopsy conducted on the dead body by Dr. N.K. Jaiswal, Radiologist, Ursala Hospital on 6th of March, 1995 at 2:10 p.m. revealed below noted ante mortem injuries on the dead body:
1. Firearm wound of entry 1 cm x 1cm x cavity deep on left lower chest 13 cm below left nipple and 12 cm from umbilicus with margins inverted . Blackening collar present round the wound .
2. Firearm wound of exit on right side chest lower part lateral ( upper abdomen) 8 cm above right iliac crest and 20 cm below auxiliary fold with margins everted.
On internal examination 10th rib on left side was found fractured. Abdominal membranes, peritoneum, stomach and lever were found lacerated. Abdominal cavity contained 1 1/2 litres of blood. Stomach contained semi-digested food with blood clots 6 oz. The doctor opined that the death was caused due to shock and haemorrhage (syncope) as a result of ante mortem injury.
5. After completing investigation the police submitted chargesheet against the accused.
6. After framing of the charge against the accused the prosecution examined Sajid Husain (PW 1) and Rashid Ali (PW 2) as eye witnesses of the occurrence. PW 3 Dr. N.K. Jaiswal, Radiologist, Ursala Hospital who conducted autopsy on the dead body on 6th March, 1995 at 2:10 p.m. has proved the post mortem report (Ext Ka 2). PW 5 constable Krishan Avtar who made GD entry regarding registration of crime on 5th of March, 1995 and altered the crime under Section 302 IPC on 6th March, 1995 at 10:00 a.m. has proved GD entries (Ext ka 12 & ka 10). PW 4 Station Office Brijvir Singh who investigated the crime and after completing investigation submitted chargesheet against the accused as absconder has proved the police papers.
7. A perusal of the record goes to show that since the accused was absconding proceedings under Section 82 & 83 of the Code of Criminal Procedure had to be resorted to procure his presence. Subsequently the accused surrendered in the court of Magistrate concerned on 13th of May, 1995.
8. The accused denied the alleged occurrence altogether stating that he was implicated in the case falsely on account of enmity. He did not adduce any evidence in his defence.
9. On an appraisal of evidence and other material on the record the learned Additional Sessions Judge disbelieved the prosecution case and evidence observing that the FIR was ante-timed as it was lodged after the death of Mumtaz Husain next day after consultation and confabulation, and the accused was named therein as the assailant on account of enmity. He held the accused not guilty of the charge levelled against him resulting in his acquittal.
10. Feeling dissatisfied by the impugned judgment and order the State preferred this appeal assailing acquittal of the accused respondent.
11. We have heard learned AGA for the State appellant and Sri Sanjai Kumar learned counsel for the accused respondent and gone through the record.
12. Learned AGA for the State appellant vehemently argued that since the impugned judgment is perverse and unreasonable as it is based on faulty appreciation of evidence and convincing evidence and material have been unjustifiably eliminated, evidence has to be reappreciated for the purpose of ascertaining if the accused really committed the offence or not. On the other hand, learned counsel for the accused respondent argued that since learned trial judge has given cogent and convincing reasons for finding the accused not guilty of the charge levelled against him the judgment of the lower court does not call for any interference therewith.
13. After going through the record we are of the view that findings recorded by the trial judge are manifestly erroneous and contrary to evidence. The finding recorded by the court below is that since according to the prosecution case Mumtaz Husain succumbed to injuries allegedly sustained by him in LLR Hospital at about 9:30 p.m. and at that time the investigating officer was present in the hospital the crime should have been altered under Section 302 IPC the same night but it was altered under Section 302 IPC next morning at 10:00 a.m. on receiving information on telephone from the Hospital next day the FIR is antetimed. He also observed that since the investigating officer did not find any blood at the scene of occurrence it all goes to show that the incident did not take place at the time, place and in the manner alleged by the prosecution.
14. We have given our anxious consideration to the evidence adduced by the prosecution and we are of the opinion that the findings recorded by the trial court are based on faulty appreciation of evidence resulting in miscarriage of justice. PW 1 Sajid Husain, father of the deceased and PW 2 Rashid Ali, brother of the deceased and the first informant both have consistently deposed that at about 6:30 p.m. they were sitting at their dental clinic and Mumtaz Husain was drawing water from the hand pump; that accused Guddu @ Furkan came from the side of Penchbagh hurling abuses and whipped out the countrymade pistol and fired at Mumtaj Husain hitting him at his abdomen and ran away towards Penchbagh and immediately both of them rushed there and Rashid Ali took his injured brother on his shoulder; that in the meanwhile his brother Liyakat reached the scene of occurrence from his house on the first floor situate just opposite the dental clinic and Sajid Husain took a rickshaw and that then Sajid Husain and Liyakat took injured Mumtaz Husain to Ursala Hospital. PW 2 Rashid Ali further deposed that immediately he scribed report of the incident in his hand and went to the police station Bekanganj situate at a distance of some 2 1/2 furlongs therefrom and handed over written report of the occurrence to the police there ( Ext ka 1) where check report was prepared on the basis of the written report handed over to the police by the HM and entry regarding registration of the crime made in the GD ( Ext ka 11 & ka 12). Both these witnesses were subjected to searching and gruelling cross-examination but nothing tangible to discredit the testimony of any of the witnesses could be brought on the record. No doubt these witnesses are close relatives of the victim being father and brother of the deceased but on that score alone their sworn testimony can not be thrown over board. Close relatives of the victim would be the last persons to screen the real culprit and falsely implicate innocent person; and hence the mere fact of near relationship far from being the foundation of criticism of the evidence is often a sure guarantee of truth. Further medical evidence has lent support to the sworn testimony of the two eye witnesses. Medical evidence leaves no room for doubt as to the factum of the occurrence as alleged by the prosecution and weapon used in the assault also receives corroboration from it. It is true that the investigating officer did not find any blood at the scene of occurrence but it has come in evidence that since Rashid Ali who was sitting at the dental clinic situate just across the road and he immediately rushed and took his injured brother at his shoulder much blood would not have fallen on the ground because the blood oozed from the wound was first soaked by the clothes put on by the injured and when his brother Rashid Ali took him at his shoulder his clothes got bloodstained. Besides, a perusal of the postmortem report goes to show that on internal examination abdominal membranes, peritoneum, stomach and lever were found lacerated and abdominal cavity contained 1 1/2 litres of blood. In the circumstances if the blood oozed from the injury would have fallen down at the scene of occurrence near the hand pump it would have been very meagre in quantity and might have disappeared with the water drawn from the hand pump. Shorn of few contradictions or discrepancies which are of trivial and insignificant nature and immaterial, the evidence of both eye witnesses is consistent with medical evidence and stands corroborated by FIR of the occurrence lodged promptly by Rashid Ali, brother of the injured.
15. Learned counsel for the appellant kid much emphasis upon the fact that PW 2 Rashid Ali stated that the shot fired hit Mumtaz Husain on right side of his abdomen whereas the medical evidence goes to show that he received firearm wound of entry on left side of his chest. In our opinion there is no real inconsistency between the medical evidence and the ocular testimony of Rashid Ali as autopsy conducted on the dead body revealed firearm wound of entry I cm x 1 cm x cavity deep on left lower chest 13 cm below the left nipple and 12 cm from umbilicus with margins inverted having the communicating exit wound on right side lower part lateral upper abdomen. On reaching near the hand pump accused Guddu @ Furkan fired at Mumtaz Husain with countrymade pistol and ran away and thus the incident would have taken hardly a minute or so and seeing the incident Rashid Ali who rushed crossing the road for his care must have got confounded and shocked and immediately he took his injured brother on his shoulder and at that moment he might not have observed and perceived with perfect exactitude as to on which side the shot hit his brother. The fact remains that the injured received fatal firearm injury at his abdomen as medical evidence also reveals that his abdominal membranes, peritoneum, stomach and lever were found lacerated and abdominal cavity contained 1 1/2 litres blood.
16. Further, it has come in evidence that Penchbagh in which the incident took place is not thickly populated area as there are few residential houses and few commercial shops. It has come in evidence that on 5th of March, 1995 it was Sunday and on that account all the shops of general and sundry nature were closed and on hearing the sound of shot fired and hue and cry only 3-4 persons rushed to the scene of occurrence. Since Mumtaz Husain received firearm injury at his abdomen, his father and brothers were anxious to take him to the Hospital at the earliest and without losing any time they rushed him in a rickshaw to Ursala Hospital. It is a matter of common knowledge that generally persons who witness the occurrence remain reluctant in appearing in courts to depose against wrongdoers as they do not want to invite trouble for themselves unless compelled otherwise to appear in courts. Both the eye witnesses have given a truthful and honest account of the occurrence witnessed by them. And once the testimony of these two eye witnesses is believed non-examination of independent witness would not come to demolish or introduce any ripple in the prosecution case.
17. Further, PW 4 SI Brijvir Singh, the investigating officer nowhere deposed in his statement that on 5th of March, 1995 he went to LLR Hospital. He stated only this much in his examination-in-chief that that day after registration of the crime at the police station he alongwith the police force and Rashid Ali, the first informant went to Ursala Hospital but the injured alongwith his father and brothers in a tempo met him on the way going to LLR Hospital and then after talking to the injured for a little while he went to the scene of occurrence, inspected the site and prepared its site plan map and thereafter searched for the accused. He also deposed that next day on receiving information on telephone from LLR Hospital that Mumtaz Husain had succumbed to the injuries last night the crime was altered under Section 302 IPC and that it was thereafter that he went to LLR Hospital for inquest proceedings. He was not given a suggestion even in his cross-examination by the defence counsel that when injured Mumtaz died in the LLR Hospital he was present there and that inspite of having knowledge regarding death of Mumtaz at that very night in the Hospital the crime was not altered under Section 302 IPC that very night at the police station. In view of these facts without cross-examining the investigating officer on the point the argument that in spite of the fact that investigating officer being present in the LLR Hospital at the time of death of injured Mumtaz the crime was not altered under Section 302 IPC the same night and hence it should be presumed that FIR was not in existence at that time is not available to the learned counsel for the accused respondent.
18. Further there is presumption of genuineness of the check report and GD entry regarding registration of the crime (Ext ka 11 and ka 12) prepared by the police officials in the discharge of their official duties though rebuttable. We see no reason to doubt the veracity of the GD entry and the time of lodging FIR mentioned in the check report. Thus the said contentions of the learned counsel for the accused respondent that the FIR is antetimed and since the investigating officer did not find blood at the scene of occurrence the incident did not take place at the time, place and in the manner alleged by the prosecution have got no substance and are repelled.
19. Learned counsel for the accused respondent further argued that the accused had no motive to fire at Mumtaz Husain. It has come in evidence that prior to this incident the accused had hurled hand grenade at Rashid Ali and FIR of that incident was lodged by Mumtaz Husain at the police station and that case was pending in the court of Session and Mumtaz Husain was the eye witness of that incident. That constituted sufficient motive for the said crime by the accused. Otherwise too, motive becomes insignificant in a case of direct evidence like the present one. The said argument advanced by the learned counsel for the accused appellant has got no life and falls to the ground.
20. On a conspectus of the evidence on record with the circumstances attending the case and after giving our anxious consideration to all the relevant aspects thereof we are of the view that the findings recorded by the learned trial judge are based on surmises and conjectures and on faulty appreciation of evidence and the grounds on which the order of acquittal is based are erroneous and therefore it cannot be sustained in law. Since the injuries sustained by the victim were sufficient to cause his death in ordinary course of nature we find that accused Guddu @ Furkan is guilty of the offence punishable under Section 302 IPC.
21. The appeal is allowed and the impugned judgment and order are hereby set aside. Accused Guddu @ Furkan is convicted for the murder of Mumtaz Husain under Section 302 IPC and sentenced to imprisonment for life thereunder. The accused is reportedly in jail. The CMM, Kanpur Nagar shall ensure it so that he serves out the sentence imposed upon him.
22. Office is directed to send certified copy of the judgment alongwith record of the case to the Court concerned immediately to ensure compliance under intimation to this Court within two months from today.