Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) Heard Sri Rajarshi Gupta and Sushri Shakshi Kesherwani, learned Advocates holding brief of Sri Dileep Kumar - learned counsel for the appellant, Sri A.N. Mulla and Sri J.K. Upadhyay, learned AGAs for the State and perused the record of this appeal.
By way of instant criminal appeal, challenge has been made to the judgment and order of conviction dated 22.04.1991 passed by IV-Additional Sessions Judge, Bijnor, in Sessions Trial No.394 of 1990 State Vs. Wasim @ Billu, arising out of Case Crime No.261 of 1990, under Section 302 IPC, Police Station Kotwali City, District Bijnor whereby the appellant has been sentenced to life imprisonment under Section 302 IPC.
Terminus a quo - of this case is rooted in the written report (Ext. Ka-1) moved by informant Zamiruddin son of Hasinuddin, resident of Kassaban, Police Station Kotwali City, District Bijnor, against the present appellant with the specific allegations that the accused-appellant came to take fodder at his shop yesterday in the evening at 6:00 p.m., at that point of time informant and his father were present in the shop. The informant's father asked him to make payment for Rs.80/- which were due to him and then only he will give fodder to him. This infuriated the accused-appellant and he extended vituperation on the informant and his father and also threatened them. Several persons say Irshad Ahmad, Mohd. Haneef, and Mohd. Mirdgan pacified informant's father that the accused is a vulgar person, let him say so. Today (04.04.1990), the informant and his father were selling fodder in Gasmandi, it was around 3:30 p.m. when Wasim @ Billu came to the fodder laden-cart (used as shop) and asked the informant's father as to why fodder was not given yesterday and all of sudden he whipped out a knife and said that he will settle the score today and with the intention to kill gave knife blow on the neck of his father, which caused deep cut on his neck and he fell down in pool of blood. The informant along with few others raised alarm, whereupon, several persons pursued Wasim @ Billu then he made his escape good towards jail quarters having blood stained knife in his hand. The informant's father was taken to the hospital where the doctor after examining him declared him dead. The accused-appellant Wasim @ Billu is well known to the informant and he is a notorious person. The dead body of the informant's father was lying in the hospital, therefore, request was made that appropriate action be taken after lodging of the first information report. The written report was scribed by Harsh Kumar Sharma son of Ram Kumar Sharma, Gurudwara Road, Bijnor. This written report is Ext. Ka-1.
Record reflects that contents of this written report (Ext. Ka-1) were taken down in the concerned Check FIR by Constable Chandrakesh Yadav at Case Crime No.261 of 1990 under Section 302 IPC, Police Station Kotwali City, District Bijnor, on 04.04.1990 at 16:25 hours. Check FIR is Ext. Ka-2. Consequently, relevant entries were made in the concerned general diary and case was registered on 04.04.1990 under the aforesaid section of IPC at aforesaid case crime number against the accused-appellant. G.D. entry is Ext. Ka-3.
During course of investigation, inquest of the deceased Hasinuddin was held on 04.04.1990 in Sadar Hospital where body of deceased Hasinuddin was kept. It commenced at 4:55 p.m. and completed at 5:55 p.m. Inquest report is Ext. Ka-7. In the opinion of inquest witnesses and the Investigating Officer, it was thought proper to send dead body for autopsy in order to ascertain real cause of death. In the process, certain relevant papers were prepared in order to send body of the deceased for conduction of autopsy. These relevant papers are; photonash Ext. Ka-8, letter to R.I. Ext. Ka-9, letter to C.M.O. Ext. Ka-10, police form 13-challan dead body Ext. Ka-11. Consequently, autopsy was done on cadaver of deceased Hasinuddin at District Hospital, Bijnor on 05.04.1990 at 12:15 p.m. by Dr. Arun Prakash PW-5 who noticed following ante mortem injuries on the body of deceased:
Incised wound 4 cm x 2 cm x bone deep on left side neck transverse in middle 7 cm below left ear big vessels on left side cut. Muscle cut. Trachea, oesophagus intact.
The cause of death was stated to be shock and haemorrhage due to injury over neck. Duration was stated to be about one day. The doctor (PW-5) has proved this post mortem examination report Ext. Ka-12.
The Investigating Officer, during course of investigation, recorded statement of various witnesses, completed different formalities and prepared site plan of place of occurrence Ext. Ka-4 and took samples of simple and blood stained clay roll from the spot, prepared memo of the same Ext. Ka-5 and and filed charge sheet against the accused-appellant Wasim @ Billu at the aforesaid case crime number under aforesaid section of IPC. Charge sheet is Ext. Ka-6 on record.
Thereafter, the case was committed to the court of Sessions from where it was made over for hearing and disposal to the aforesaid court of IV-Additional Sessions Judge, Bijnor, who after hearing the prosecution and accused-appellant on the point of charge was satisfied with prima facie case and framed charge against the accused-appellant under Section 302 IPC. Charge was readover and explained in Hindi to the accused-appellant who abjured charge and opted for trial.
The prosecution was asked to adduce its testimony whereupon the prosecution produced in all five witnesses. A brief sketch of the same requires mention at this stage as ut infra:-
Zamiruddin PW-1 is informant and eyewitness of the incident and has proved written report Ext. Ka-1. Mohd. Sarwar PW-2 is eyewitness of the incident and has described the incident that it took place in his presence. Constable Ram Dhani PW-3 has participated in inquest process/examination and testified that inquest report was prepared by S.I. Vijendra Singh and dead body was given in custody of this witness and Constable Shiv Sagar Dubey who took the dead body to the mortuary. He has stated that he kept the dead body in his safe custody and did not allow anyone to have access to it. Bharat Singh Yadav PW-4 is the Investigating Officer. He has testified to facts that this case was registered against the accused-appellant in his presence at the police station and has proved Check FIR Ext. Ka-2 and relevant entry made in the concerned general diary wherein the case was registered against the accused-appellant as Ext. Ka-3. This witness has detailed various steps which he took in completing investigation and in the process, he prepared site plan Ext.-Ka-4 and took simple and blood stained clay roll from the spot and prepared memo of the same as Ext. Ka-5 besides recording statement of various prosecution witnesses. Thereafter, investigation was transferred to another S.I. Lila Khan who submitted charge sheet. This witness (PW-4) claims himself to be acquainted with the handwriting of aforesaid subsequent Investigating Officer, he has proved charge sheet Ext. Ka-6. He has also proved the process undertaken for holding inquest and sending the body for post mortem examination and the relevant papers prepared such as Exts. Ka-7, 8, 9, 10 and 11. Dr. Arun Prakash PW-5 conducted post mortem examination on the cadaver of the deceased Hasinuddin on 05.04.1990 at 12:15 in the mortuary at Bijnor and has proved post mortem examination report Ext. Ka-12.
Thereafter evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he denied his involvement and claimed to have been roped in, in this case on account of enmity. No evidence, whatsoever, has been adduced on behalf of the defence.
As a sequel to it, the case was posted for extending arguments pros and cons by the parties and after vetting the case on merits, the learned trial court returned finding of conviction against the accused-appellant and convicted him under Section 302 IPC - ut supra.
Consequently, this appeal.
It has been vigorously contended on behalf of the appellant that this is a case where no offence has been committed and no evidence of any sort, exits for imputing penal criminality on the appellant that he has committed crime in question. There is no motive assigned for committing such act. In this way, the prosecution has not been able to prove satisfactorily motive for committing the crime. In absence of establishing fact of motive for committing the crime, it would be out of reference and out of context for the appellant to indulge in such ghastly crime. It appears that the incident was committed by someone else at some secluded place but the appellant who is an ordinary person of the same locality was easily available, therefore, he was made a prey to and implicated in this case just for working out the case at convenience in collusion with the police in order to extract money from the appellant.
Vociferously claim has been made by learned counsel for the appellant that assuming it to be that any crime was committed by the appellant even then it is a case covered under caption sudden provocation and will not fall within the purview of Section 302 IPC, but will be covered under Section 304 IPC. There is no such specific intention on the part of the appellant to kill the deceased. Yet again, assuming it to be that some grudge was being entertained against the deceased by the appellant but that story does not sound well to reason that for such a paltry amount Rs.80/-, a person will ever indulge in perpetrating the crime. The trial court without appraising the evidence from that angle in judicious manner has straightaway out of whims and personal convictions recorded erroneous finding of conviction and imposed sentenced which is not sustainable in the eye of law.
Sri J.K. Upadhyay, learned AGA retorted to aforesaid submission and urged that the prosecution story on the face inspires confidence. The entire episode is coherently stitched in such manner that any possibility of false implication of the appellant in the case, per se, stands ruled out and no worthy argument has been extended on behalf of the appellant as to how and why the real culprit will be spared and in place of him, the appellant will be falsely implicated in this case. The cause shown for false implication hardly sounds well to the reason of an ordinary prudent man and the same cannot be accepted to be worthy explanation for false implication. The testimony of witnesses of fact who were present on the spot and particularly, PW-2 who happens to be an independent witness inspires confidence and corroborates in material particulars testimony of PW-1 and prove the incident in toto.
There is no doubt about participation of the accused in the crime and in the manner and style of commission of the offence. The assertion regarding commission of offence and causing of a single knife blow on the neck of the deceased is very much corroborated by medical testimony, as well. The post mortem examination report Ext. Ka-12 also refers to only one ante mortem injury commensurate with the weapon used in the commission of the crime. Therefore, there is no anomaly in the entire prosecution case and the charge stands proved beyond reasonable doubt. The trial court after adverting to the aforesaid aspects of the case has returned the finding of conviction based on material on record.
We have also considered rival submissions - ut supra - of the parties.
After considering the rival submissions and perusing record of this case, core consideration that crops up for adjudication of this appeal relates to the fact whether involvement of the appellant in commission of the crime has been proved by the prosecution beyond reasonable doubt?
Before we proceed to scrutinize and analysis facts and circumstances of the case, it would be proper to have a glance over contents of the first information report Ext. Ka-2. Bare perusal of the record shows that the first information report was lodged promptly within one hour of the incident at 4:25 p.m. at Police Station Kotwali City, District Bijnor after the incident was committed at 3:30 p.m. on 04.04.1990 in Mohalla Ghasmandi, Civil Lines Bijnor.
In this way, we find that process of lodging of the first information report is prompt. As per contents of the FIR, it has been described that the informant and his father were selling fodder yesterday (A day prior to 04.04.1990) in the evening around 6:00 p.m. when the appellant Wasim @ Billu came for purchasing fodder from them, and informant's father asked him to pay first Rs.80/- which is due to him only then fodder will be given to him whereupon the appellant began to call by names the informant's father and threatened to see him. Thereafter several persons of the locality consoled the victim that the appellant is a vulgar man, let him say so. Today (04.04.1990), the informant along with his father was selling fodder in Ghasmandi, it was around 3:30 p.m., the appellant came to their fodder laden cart and said to the informant's father "Bata Sale Kal Chara Kyon Nahin Diya Tha" and all of a sudden, the appellant whipped out knife and challenged to settle score and with intention to kill, gave knife blow on the neck of informant's father which ruptured his neck. The informant's father fell down in pool of blood. Alarm was raised and the first informant and other persons gave hot chase to the appellant but he made his escape good having blood stained knife in his hand. Thereafter the deceased was taken by the informant and few other persons to the hospital where the doctor after examining him declared him dead.
In the aforesaid factual backdrop of this case, we may scrutinize and evaluate testimony of witnesses of fact vis-a-vis attendant circumstances. Zamiruddin PW-1 is son of the deceased Hasinuddin. He has testified to the fact of incident that one day prior to the incident, the appellant had come to his fodder shop for purchasing fodder which was refused by his father on the ground that the appellant owed Rs.80/- towards payment, therefore, payment was insisted first by his father and only then fodder was to be given to him. This agitated the appellant and he rebuked in anguish informant's father. At that point of time, Irshad Ahmad and Mohd. Haneef were also present who pacified the deceased Hasinuddin. Thereafter, testimony proceeds to describe that the very next day, it was around 3:30 p.m. when both this witness (PW-1) as well as his father were selling fodder, the appellant came there and said to the deceased Hasinuddin as to why fodder was not given yesterday and he will settle the score today and in a flash gave knife blow on the neck of his father with intention to kill which caused deep cut on his neck and his father fell down seeped with blood. The informant (PW-1) and other persons present over there tried to chase and capture the appellant but he ensured his escape good with weapon of assault in his hand.
Now point is whether presence of PW-1 on the spot at the time of occurrence can be termed unnatural then answer is certainly in the negative. His presence on the spot is natural and his testimony on the whole after cumulative analysis appears to be inspiring confidence on point of occurrence. He has been extensively cross-examined by the defence wherein nothing adverse has emerged which may cast any doubt that this witness is not reliable. He has been cross-examined specifically on place of incident and manner and style of incident and post incidental development and on all such specific aspects, he has given vivid and consistent reply to the defence. He has denied suggestion that this report was scribed at the police station.
Similarly, testimony of another eye-witness Mohd. Sarwar PW-2 is quite relevant as this witness is in capacity of an independent witness and he happens to be a customer for purchasing fodder from the same shop where the incident took place. He has testified consistently that the incident took place in his presence and he heard castigating words of the appellant which he spelled on the spot. He has also defined the very manner and style of the occurrence as to how it all happened on the spot. He has been cross-examined by the defence wherein he remained consistent and flawless. Testimony of this witness being testimony of independent witness assumes vital importance and the same is not unnatural instead corroborative of testimony of PW-1 and found to be free from embellishment, tutoring and improvement. No worthy suggestion has been given to this witness as to why he will testify falsely against the appellant. In this way, ocular version of the incident is found to be consistently described and established by these two witnesses (PW-1 PW-2). We find their testimony admissible and reliable on the point of occurrence.
As a measure of caution and while seeking yet another independent corroboration, we may further analyze ocular testimony with medical evidence available on record. We have evidence of Dr. Arun Prakash PW-5 who conducted post mortem examination on the cadaver of the deceased on 05.04.1990 at 12:15 p.m. wherein he noted incised wound in measurement of 4 cm x 2 cm x bone deep on left side neck transverse in middle 7 cm below left ear big vessels on left side cut. Muscle cut. Trachea, oesophagus intact.
Dr. Arun Prakash (PW-5) has specifically stated that injury on the neck was sufficient to cause death of the deceased Hasinuddin and this can be caused on 04.04.1990 at 3:30 p.m. This specific testimony regarding possibility of time causing injury and fatal nature of the injury has not been put to specific challenge. In the last line of his testimony as emerges on page 24 of the paper-book, a suggestion has been given that such sort of injury is possible if the deceased falls on sharp edged article/weapon, but this suggestion in the absence of any whispering circumstance or any attendant circumstance becomes bald and remains confined to suggestio falsi - false suggestion - and cannot be accepted on its face value.
In so far as plea of converting the case from Section 302 IPC to Section 304 IPC is concerned, in that context essential ingredients as contained under Section 300 IPC are reproduced ut infra:
"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
(Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
In this case, we come across injury on neck in varying measurement which is not only sufficient for causing death in ordinary course of nature but also it is imminently dangerous on the face of injury on neck, and in all probability will cause death. This plea that the case should be converted under Section 304 IPC from Section 302 IPC cannot be accepted by us, particularly so looking to the seat of injury and magnitude of injury on neck.
In view of above analysis, it is obvious that ocular version of witnesses not only proves manner and style of the occurrence but it also proves fact that grudge and vengeance entertained by the appellant for not giving fodder to him one day prior to the incident. This aspect alone worked as motivating factor for causing the offence. Therefore, it cannot be said that motive has not been proved and established by the prosecution. Both in the first information report as well as in ocular testimony of witnesses of fact, motivating factor has not only been asserted but also reasonably proved. Likewise, manner and style of causing knife blow on the neck and thus causing injury in the magnitude and measurement on the neck of the deceased as indicated in the post mortem examination report Ext. Ka-12 fully corroborates the occurrence. Here medical testimony finds support from ocular testimony of the two witnesses of fact. Their testimony on the whole, at the cost of repetition, can be rated carrying high probative value, therefore, the occurrence stands proved beyond reasonable doubt and involvement of the appellant in the very commission of the offence with sufficient motive which is also proved. Here we may observe that motive by itself is not an indispensable attribute particularly in cases like the present one where flawless and innocuous eye-witness account of the occurrence is overflowing and found to be free from blemishes.
In this view of the matter, contention raised on behalf of the appellant on absence of motive is not sustainable. It is trite law that evidence has to be weighed and not to be counted and the trial court was justified under facts and circumstances of the case to record conviction against the appellant and it cannot be said that there is any legal impediment in convicting the appellant against whom worthy and unimpeachable testimony has been adduced by the prosecution.
The above analysis on the facts and circumstances of the case on record goes to show that the trial court was justified in recording the finding of conviction thus imposing sentence of life imprisonment by the impugned judgment and order dated 22.04.1991.
Accordingly, we uphold the judgment and finding of conviction dated 22.04.1991 passed by IV-Additional Sessions Judge, Bijnor, in Sessions Trial No.394 of 1990 State Vs. Wasim @ Billu, arising out of Case Crime No.261 of 1990, under Section 302 IPC, Police Station Kotwali City, District Bijnor.