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2001 DIGILAW 941 (PAT)

Md. Kalim @ Kalimuddin v. State Of Bihar

2001-10-04

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment R.N.Prasad and B.N.P.Singh JJ. 1. The sole appellant has preferred this appeal against the judgment and order dated 2.8.1995/5.8.1995 passed by the 3rd Additional District and Sessions Judge, Nalanda at Bihashariff in Sessions Trial No. 359/72 of 1994 whereby the appellant has been convicted for the offence under Sec. 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted for the offence under Sec. 27 of the Arms Act. However, no separate sentence has been awarded. 2. The prosecution case is that Salauddin took his deceased son. Aslam to the police station on 3.4.1994 and gave his fardbeyan that there was marriage of the daughter of Ibrahim Mian. At about 6.30 p.m. Rarat came. His son Aslam went to see the Rarat. He was standing at his door. Sohrab gave order to Md. Kalim, the appellant, to shoot Aslam on which Kalim Mian took out pistol from his waist and fired causing injury on the back of Aslam. He fell down and died. One Babloo was also standing there. He also sustained injury. The motive of the occurrence was old enmity. Akhtar and many other persons witnessed the occurrence. 3. On the aforesaid fardbeyan, a formal first information report was drawn, Investigation was taken up and on completion of investigation charge sheet was submitted in the Court. The Court took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellant, as indicated above. 4. The defence of the appellant was that he was innocent and had falsely been implicated in the case. 5. The prosecution in support of its case examined seven witnesses out of whom PW 2 and PW 7 claimed to be eye witnesses to the occurrence. PW 4 is informant and he also claimed to be an eye witness to the occurrence. PW 1 was declared hostile. PW 3 is a doctor, who held postmortem over the dead body. PW 5 recorded fardbeyan and prepared inquest report. PW 6 is investigating officer. 6. The eye-witness. PW 2, is mother of the deceased. PW 4 is father of the deceased. PW 7 is Bhabhi of the deceased. Learned counsel for the appellant, Mr. Lala Kailash Bihari, pointed out that the eyewitnesses are relations of the deceased and are interested witnesses and as such their evidence should not be accepted. 6. The eye-witness. PW 2, is mother of the deceased. PW 4 is father of the deceased. PW 7 is Bhabhi of the deceased. Learned counsel for the appellant, Mr. Lala Kailash Bihari, pointed out that the eyewitnesses are relations of the deceased and are interested witnesses and as such their evidence should not be accepted. In this regard it would not be out of place to mention herein that the evidence of the interested witness is not required to be thrown out outright rather evidence of such witness is required to be scrutinised with care and caution. Keeping in mind the aforesaid well settled rule of law we proceed to examine the evidence of the witnesses. 7. PW 4 is informant of the case. His evidence is that on the day of occurrence there was marriage of the daughter of Ibraim Mian. The Barat party was near the Mazar. His son was near the Mazar, Sohrab and Kalim came out from the house of Ibrahim Mian. Shorab ordered to shoot Aslam on which the appellant. Md. Kalim, took out pistol from the waist and fired which hit on the right side of his back. Babloo @ Dabloo was standing there. He also sustained injury. His son fell down and died. The accused persons thereafter ran away. There was light at the place of occurrence. He took his son to the police station where his fardbeyan was recorded. The occurrence was witnessed by many persons. However, the witnesses, namely, Babloo @ Dabloo, Mansoor Mian and Shamima Khatoon, have been gained over and as such they are not ready to depose in this case. In cross examination the witness testified his evidence in examination-in-chief and stated that further statement was recorded. On the order of Sohrab, the appellant fired causing injury on the back. The witness gave details of the place of occurrence and stated that there were houses of many persons near the place of occurrence. In cross examination the witness also stated that light was available at the time of occurrence. His son Aslam first came out from the house and after about five minutes firing was made from a distance of 3 ft. Blood oozed out from the injury and fell on the ground. Blood also fell on the clothe of the deceased. The deceased was taken on rickshaw and blood had also fallen on the rickshaw. His son Aslam first came out from the house and after about five minutes firing was made from a distance of 3 ft. Blood oozed out from the injury and fell on the ground. Blood also fell on the clothe of the deceased. The deceased was taken on rickshaw and blood had also fallen on the rickshaw. He reached the police station at about 7 p.m. He had shown the place of occurrence and the place where blood had fallen to the police. 8. PW 2 is mother of the deceased. She corroborated the evidence of the informant. She in her evidence stated that she had gone to the house of Ibrahim at the relevant time to see Barat. Barat was near the Mazar. Her son Aslam was also near the Mazar, Sohrab and the appellant, Kalim, came out from the house of Ibrahim, Sohrab ordered on which the appellant, Kalim, fired causing injury on the back of Aslam. He fell down and died on the spot. Babloo @ Dabloo also sustained injury. After firing people were running hither and thither. In cross-examination the witness stated that her statement was recorded next day of the occurrence by the police. She reached the police station at about 7-8 p.m. Her husband also had gone to the police station. Mazar was south to the house of Ibraim. Near the place of occurrence there were houses of several persons. Light was available at the time of occurrence. She found hole on the clothe of the deceased. Blood had fallen on the clothe of the deceased. She called her husband, who had gone to latrine. The investigating officer had also found blood stained earth. 9. Similar is the evidence of PW 7, who is Bhabhi of the deceased. At the relevant time there was marriage of the daughter of Ibrahim Mian Sohrab and appellant came out from the house of Ibrahim, Sohrab ordered to shoot Aslam on which the appellant took out pistol from his waist and fired causing injury on the back of Aslam, the deceased. He fell down and died there. After the occurrence people started running away hither and thither. Her husband came home after firing. She found hole on the clothe of the deceased. The witness, however stated that on the order of Sohrab, the appellant fired. She found blood at the place of occurrence. 10. He fell down and died there. After the occurrence people started running away hither and thither. Her husband came home after firing. She found hole on the clothe of the deceased. The witness, however stated that on the order of Sohrab, the appellant fired. She found blood at the place of occurrence. 10. From the discussion of the oral evidence of the eye-witnesses, it is evident that the evidence of the eyewitnesses is consistent on the material points i.e. with regard to manner of occurrence and place of occurrence, they were cross examined at length but nothing cogent could be elicited to doubt their evidence. 11. PW 3 is a doctor, who held postmortem over the dead body of Aslam on 4.4.1994 at about 6.45 a.m. He found fire arm injury on the person of the deceased. The witness stated that wound was inverted and had black margin on the back of the deceased. He also found wound of exit on the chest. On dissection he found fracture of 4th and 5th ribs. Death occurred due to shock and haemorrhage on the person of the deceased. He also examined Dabloo and found injury on his person i.e. tattooing on the right side of ear, face; forehead and upper part of neck which was caused by fire arm. The injury on the person of the deceased was sufficient to cause death. Time elapsed since death was 12-24 hours. Rigor mortis was fully present in both upper and lower limbs. 12. PW 5 recorded fardbeyan and prepared inquest report. PW 6 is investigating officer. His evidence is that investigation was handed over to him. He visited the place of occurrence. He has given details of the place of occurrence and stated that there were houses of other persons near the place of occurrence. He found blood at the place of occurrence. He prepared injury report of Dabloo. He recorded the statements of the witnesses at the place of occurrence. The statement of Dabloo was also recorded under Sec. 164 Cr. PC. In cross examination the witness stated that blood was not in a position to be seized. He also did not seize blood stained clothe of the deceased. He prepared injury report of Dabloo. He recorded the statements of the witnesses at the place of occurrence. The statement of Dabloo was also recorded under Sec. 164 Cr. PC. In cross examination the witness stated that blood was not in a position to be seized. He also did not seize blood stained clothe of the deceased. However, the witness stated that PW 2 did not say before him that Barat was near the Mazar, similarly, PW 4 did not say before him that Sohrab and Kalim came out from the house of Ibrahim. 13. The evidence of the doctor, PW 3, and the investigating officer, PW 6. also corroborative the evidence of the eye witnesses and the prosecution case as the doctor has found injuries caused by fire arm on the person of the deceased and the investigating officer also found blood at the place of occurrence. Thus, on consideration we find that though the eye witnesses are relations of the deceased yet their evidence is consistent on all material points and their evidence is also worthy of reliance. Therefore, their evidence cannot be discarded only on the ground that they are relations and are interested witnesses. 14. Learned counsel for the appellant, however, pointed out that place of occurrence has not been proved. The submission of the learned counsel for the appellant, in our opinion, has no substance at all as the eye witnesses i.e., PWs 2, 4 and 7 have categorically stated that firing took place near the Mazar. The investigating officer also found blood at the place of occurrence. However, he did not seize blood but merely because blood was not seized consistent evidence of the eyewitnesses cannot be ignored. Thus, it appears to us that prosecution has succeeded in proving place of occurrence. 15. Learned counsel for the appellant further pointed out that there were several persons at the place of occurrence but no independent witness has been examined in support of the prosecution case. In this regard, it would not be out of place to mention herein that we have already stated that on scrutiny of the evidence of the eye witnesses their evidence has been found to be trustworthy. In such a situation, non examination of independent witnesses, in our view, would not be fatal to the prosecution case. Moreover, now-a-days no witness is ready to give evidence in such a case. In such a situation, non examination of independent witnesses, in our view, would not be fatal to the prosecution case. Moreover, now-a-days no witness is ready to give evidence in such a case. The Apex Court has also considered the aforesaid aspect of the matter. In the case of Appabhai and another V/s. State of Gujarat, the Supreme Court has held that; "It is no doubt that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally, insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate. but it is there everywhere whether in village life towns or cities; One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore cannot reject their evidence merely because they have behaved or reacted in an unusual manner." 16. Therefore, on consideration we are of the view that non-examination of independent witness would not affect the prosecution case. 17. Thus, on consideration as discussed above, we find no merit in this appeal. Accordingly, it is dismissed.