Judgment Reserved On 07.07.2018 Judgment Delivered On 31.07.2018
Case :- JAIL APPEAL No. - 2213 of 2011
Appellant :- Wahid Respondent :- State
Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A.
Hon'ble Om Prakash- VII,J. Hon'ble Ifaqat Ali Khan,J.
(Delivered by Hon'ble Ifaqat Ali Khan, J.)
1. This jail appeal is filed by the appellant Wahid through Senior Superintendent District Jail Saharanpur against the judgment and order dated 09.02.2010 passed by Additional Sessions Judge, Court Room No. 2 Saharanpur in Session Trial No. 414 of 2005 (State vs. Wahid) whereby accused Wahid was convicted for the offence under section 302 IPC and sentenced to undergo rigorous imprisonment for life and also with the fine of Rs. 50,000/- In default of payment of fine he was also directed to under go the simple imprisonment of two years.
2. The facts giving rise to this appeal are that the complainant Mohd. Iqbal moved the written complaint at the police station Kutubsher, Saharanpur with the facts that he was the resident of Dholikhal Saharanpur and his son Wahid was mentally weak. In the morning of 17.04.2005 Wahid had quarrel with his wife Shahina Parveen in his house, Shahina Parveen sustained injuries. Looking to the serious conditions of Shahina Parveen complainant along with Nasir brought Shahina Parveen to the hospital and during treatment at 01:30 pm she expired. On the basis of written complaint FIR was lodged and the case was registered at the police Station Kutubsher, Saharanpur and entry in the GD was made accordingly. Inquest report was prepared at 03:50 pm and on the same date at 05:00 pm the postmortem report was prepared concluding the postmortem of the dead body of deceased. At about 10:30 pm accused Wahid was arrested and his blood stained T-shirt was taken in to the possession by Investigating Officer in the presence of two public witnesses namely Afak and Riyasat. Recovery memo of the T-shirt was prepared in the presence of public witnesses namely Riyasat and Afak who have also put their signatures. Accused Wahid also put his thumb impression on this memo. On the same date at about 11:30 on the pointing of the accused Wahid blood stained knife the weapon used in the crime was recovered near the grave of his mother in the grave yard of Kutubsher. Knife had been kept in the southern side of the grave beneath a brick. Recovery memo prepared at the spot was signed by Investigating Officer and the public witnesses Riyasat and Afak, accused Wahid also put his thumb impression on it. During punchayatnama T-shirt, kurta, dupatta, salwar, bra, piece of glass bangles, ring and nose pin of the deceased were also taken in to possession by the I.O and the chhuri (knife) T-shirt, kurta, salawar, dupatta, bra, pieces of glass bangles, ring and nose pin were sent to the forensic lab Agra. In the report of forensic lab, human blood was found on knife (churi), T-shirt of the accused, kurta, salwar, dupatta, bra and the broken glass bangles of the deceased.
3. Investigating Officer prepared the site plan and recorded the statements of the witnesses. After completion of the investigation I.O. Submitted the charge-sheet against accused Wahid for the offence under section 302 I.P.C.
4. Charge under section 302 IPC was framed against the accused / appellant Wahid by the trial court to which accused denied and claimed his trial. Statements of PW-1 Iqbal and PW-2 Mohd. Riyasat, PW-3 Shahina, PW-4 Tariq and another PW4 Dr. S. Garg, PW-5 Keshwanand Nainwal, PW-6 constable Sunil Kumar, PW-7 Girish Chandra Sharma, PW-8 Sarvar, PW-9 Mansoor, PW-10 Matloob were recorded. Perusal of the record shows that the witness Iqbal @ Kallu and Dr. S. Garg both are marked as PW-4 and this fact is made clear by the trial court in its judgment that the Iqbal @ Kallu is PW-4 and Dr. S. Garg who is marked as PW-4 is PW-5 and consequently the next number were allotted to other witnesses. Thus in total 11 witnesses were examined by the prosecution, out of them PW-1 Iqbal is the complainant and the witness of fact as well as he is the father of the accused. PW-2 Mohd. Riyasat is the scribe of the written complaint. PW-3 Shahina and PW-4 Tariq are the witnesses of fact. PW-5 Dr. S. Garg has done autopsy on the body of deceased Shahina Parveen and has proved, the postmortem report as well as the six injuries found on the body of deceased Shahina Parveen. PW-6 Keshwanand Nainwal is the constable clerk who has proved the G.D. Of registering the case as well as the G.D. Of the arrest of the accused Wahid. PW-7 Sunil Kumar carried the sealed dead body of deceased Shahina Parveen to mortuary for the postmortem. PW-8 S.H.O. Girish Chandra Sharma is the I.O of this case who has proved the site plan exhibit 6, recovery memo of T-shirt of accused Exhibit-7, recovery memo of Chhuri (knife) Exhibit-8 and charge-sheet Exhibit 10. This witness has also proved the Exhibit 11, 12, 13, 14 and 15. PW-9 Sarvar, PW-10 Mansoor and PW-11 Mathloob are the witnesses of inquest report.
5. Statement of accused under 313 Cr.P.C. was recorded. Appellant has admitted that police has taken his T-shirt into possession during investigation and also stated that his elder brother was keeping his wife Shahina (deceased) as kept and due to this reason appellant was falsely implicated in this case.
6. Learned trial court after hearing the parties and perusal of record vide impugned judgment and order convicted and sentenced the accused/appellant Wahid as above hence this appeal.
7. We have heard learned amicus curie Sri Pradeep Kumar Mishra for the accused-appellant and Sri Ram Ratan Singh, learned A.G.A., at length and also gone through the entire record.
8. Learned amicus curie argued his case on three grounds, firstly he submitted that all the witnesses of fact are hostile, therefore, learned trial court committed error in convicting and sentencing the accused- appellant. Perusal of the record shows that prosecution has examined PW-1 Iqbal, PW-3 Shahina and PW-4 Tariq as the witnesses of fact and PW-2 is examined as scriber. PW-1 in his statement has stated that no quarrel or beating took place place between Wahid and deceased Shahina Parveen on the day of occurrence and at that time he was not present at his house. Deceased Shahina Parveen was not taken by him in the hospital as injured, this witness was declared hostile. In his cross examination he also stated that he did not produce the written complaint in the police station nor he got the written complaint written by Mohd. Riyasat but on the second and third page of the statement this witness has admitted that after the occurrence he went to the police station Kutubsher along with Mohd. Riyasat and on the dictation of police personnel Mohd. Riyasat prepared the written complaint and the police personnel got his thumb impression marked on it. Thus in his statement at one stage this witness is saying that written complaint does not have his thumb impression but at the another place he is admitting that written complaint have his thumb impression. Contradiction in the statement of this witness on this point makes it clear that he is concealing the real facts and most important fact is that PW-1 Iqbal is the father of accused-appellant Wahid. In the written complaint he has specifically mentioned that the appellant Wahid beated his wife Shahina Parveen, she sustained serious injuries. This witness has admitted that deceased was admitted in the hospital where she died. By no stretch of imagination it can be inferred that appellant's father will lodged a false complaint against his son about the murder of his daughter-in-law by his son. It shows that PW-1 has made false statement to save his son. Version of the written complaint is correct and true as to some extent as discussed herein above this witness has admitted the occurrence.
9. PW-2 Riyasat has said that complaint report was prepared by him at the dictation of police personnel which bears the thumb impression of the complainant Iqbal but Iqbal did not put his thumb impression on the complaint before him. It is pertinent to mention here that if Iqbal had not put the thumb impression on the complaint in the presence of this witness then how can he say that Iqbal put his thumb impression on the written complaint. This fact shows that Iqbal had put his thumb impression on the written complaint in the presence of PW-2 Riyasat and this witness gave a false statement to save the accused Wahid. So far as the statement of PW-2 Riyasat that he wrote the written complaint on the dictation of the police personnel is concerned, in this regard it is important to note that PW-2 Riyasat has admitted in his statement that he never made any complaint to the higher police officer in this regard. PW-2 Riyasat has also admitted that if the police personnel will ask him to write that he has committed the offence then he will not write it. This fact again shows that this complaint is not written on the dictation of the police personnel but is written by PW-2 Riyasat on the dictation of PW-1 Iqbal and PW-1 Iqbal has put his thumb impression on it and presented the same at the police station concerned.
10. PW-4 Tariq has not supported the prosecution version in his examination-in-chief and he was declared hostile. This witness in his statement under section 161 Cr.P.C., has admitted that in his presence accused Wahid caused injuries to his wife Shahina Parveen but in the court this witness has resiled from his statement given to the I.O under section 161 Cr.P.C. Resile of this witness from the statement given under section 161 Cr.P.C., is natural because he is a real brother of accused Wahid and it is obvious that he may give false statement in the court to save his real brother. Although no corroboration is made to the prosecution case from the statement of PW-4 but prosecution case does not become doubtful on the basis of statement of PW-4.
11. PW-3 Shahina is the real sister of accused Wahid though she is declared as hostile but there are so many facts in her statement which support the prosecution case. PW-3 Sahina has admitted that her husband has expired therefore she resides in the house of his father Mohd. Iqbal. She has specifically stated that at the time of occurrence she was residing in the house of his father. Again she has stated that on the day of occurrence Shahina Parveen and accused Wahid were quarreling, Wahid and his wife Shahina were residing in the separate room, she also said that the quarrel did not took place before her but again she has stated that she had gone there to see the quarrel between Wahid and Shahina. In her cross examination she has stated that she saw Shahina Parveen in the injured position in the room where Wahind and Shahina Parveen only used to reside. She also stated that Wahid was telling that Shahina Parveen was obstinating to go her maternal home, Wahid insisted and due to this reason quarrel took place between Wahid and Shahina Parveen. Deceased Shahina Parveen was taken to hospital in injured condition where she expired. From the statement of PW-3 Shahina who is the real sister of accused-appellant it is very much clear that Wahid and Shahina Parveen (deceased) used to reside in separate room. Quarrel took place between them and this witness saw the quarreling and just after the quarrel she saw Shahina Parveen (deceased) in the injured condition and thus the statement of PW-3 Shahina supports the prosecution version. At this stage two facts are most relevant, first at the time of occurrence only Wahid and his wife Shahina Parveen was present in the room. Deceased sustained injuries in the room at the time of occurrence. But no explanation from the side of defence has been given that how Shahina Parveen got six injuries on her body. Three injuries are incised wound, two are stabbed wound and one is stitched wound. Second point which is very relevant that the accused in his statement under section 313 has admitted that his shirt was taken by police which was sent to the forensic lab Agra and the human blood was found on it. Apart from this T-shirt, kurta, Salwar, dupatta, bra, pieces of glass bangles, ring and nose pin of the deceased were also taken into possession by I.O., I.O. has also recovered the Chhuri (knife) on the pointing out of accused which was used in the crime. All above mentioned articles were sent to the forensic lab Agra and as per report of forensic lab human blood were found on Chhuri (knife), T-shirt, kurta, salwar, dupatta, bra, pieces of glass bangles, ring and nose pin of the deceased.
12. In the postmortem report it is mentioned that one stitched wound, two stabbed wound and three inside wound were found on the body of deceased Shahina Parveen and in the opinion of doctor she died due to shock and hemorrhage as a result of antimortem injuries. This fact proves that Shahina Parveen died due to injuries caused by Wahid and in this regard we concur with the findings of the learned trial court that the Shahina Parveen died due to injuries caused by Wahid.
13. Learned amicus curie advanced his next argument that the Wahid was not mentally fit but an insane person and in this regard he was sent from jail to Varanasi for the treatment, therefore, if any offence is committed by Wahid that is committed in the stage of mental insanity. We disagree with this argument of learned amicus curiae because there is no evidence on the record to established that accused Wahid was not mentally fit at the time of occurrence. Accused has to prove that at the time of occurrence he was not in a position to think what he was doing, then and then only plea of insanity can be accepted. Finding recorded by the trial court on point of plea of insanity is based on correct appreciation of evidence, hence no need to interfere with the finding of trial court on this point. It is also pertinent to mention here that there is vast difference between medical insanity and legal insanity.
14. Learned amicus curiae also advanced his next argument that quarrel between Wahid and Sahina Parvin took place all of a sudden and in the heat of passion, Wahid committed this offence in the heat of passion and at the most offence committed by appellant will cover under section 304 IPC.
15. As far as plea taken by the appellant regarding commission of offence under section 304 IPC is concerned, if the facts and evidence available on record are compared with the provisions of Section 299 and 300 IPC it emerged that quarrel took place initially between the husband and wife. Nothing is on record to show that injuries found on the body of deceased were caused with the intention to cause the death of deceased. Although deceased died on the same day during treatment but it is apparent that appellant inflicted injuries upon the deceased only in heat of passion. We agree with this argument of learned amicus curiae because there is no evidence on the record to show the relations of the Wahid and Shahina Parveen were strained before the quarrel. Intention of the accused-appellant to kill the deceased is absolutely lacking in the matter. Prosecution case is squarely covered under section 304 IPC (culpable homicide not amounting to murder).
16. Thus for the reasons discussed herein above, conviction and sentence of the accused appellant for the offence under section 302 IPC is not sustainalbe and is liable to be alter and modified.
17. At this juncture learned amicus curiae argued that appellant is in jail in this matter since 2005, he has served out about 13 years sentence thus appellant be released in this matter on the ground of imprisonment already under gone. Although learned AGA has refuted this submission yet keeping in view the nature of offence and evidence when the appellant is in jail from the date of arrest and he has served out nearly 13 years imprisonment then we are of the considered view that if the appellant is punished for the offence under section 304 IPC and is awarded sentence for the imprisonment already undergone, the purpose of imposing adequate and proper sentence would serve. It will also serve the conscience of the society and also will meet the end of justice.
18. Thus the appeal is partly allowed. Conviction of the accused- appellant Wahid under section 302 IPC imposed as above is altered and modified into the offence under section 304 IPC and he is sentenced for the offence under section 304 IPC for the period already undergone. Accused be released forthwith if not wanted in any other case.
19. Let the lower Court record be sent back forthwith along with a copy of the judgment of this appeal for compliance.
20. Amicus curiae Sri Pradeep Kumar Mishra shall be paid an amount of Rs. 10,000/- for assisting this Court in disposing of this appeal.
Order Date :- 31.7.2018 Swati