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2013 DIGILAW 1271 (ALL)

IQBAL AHMAD v. STATE OF U. P.

2013-04-30

BHARAT BHUSHAN, DHARNIDHAR JHA

body2013
Bharat Bhushan, J. There were two appeals arising out of the same Judgment of conviction dated 12.5.1982 passed by the learned III Additional Sessions Judge, Moradabad in Sessions Trial No. 81 of 1980 by which he had held two accused persons, namely, the present appellant Iqbal Ahmad and his co-convict Inder Kumar, guilty of committing offence under Section 302 /34 I.P.C. and directed each of them to suffer rigorous imprisonment for life. Criminal appeal filed by Inder Kumar bearing no. 1282 of 1982 abated on account of his death. Informant of the case P.W. 1, namely, Rajeshwar Saran admittedly was not an eye witness to the occurrence. He stated that he was informed by P.W. 3 while he was in the market place that his brother Sarveshwar Saran, who was an advocate as appears from the evidence, was sitting at his Public- Distribution-System ( PDS)shop. It was stated that the deceased appellant Inder Kumar and this appellant Iqbal Ahmad on 11.11.197 at about 12.45 p.m. came searching for the informant Rajeshwar Saran. The two entered inside the shop. The deceased took ill of their entry into the shop and asked them to be out of the place which ensued into some altercation between the deceased Sarveshwar Saran on the one hand and the two accused persons on the other. During that course, it is alleged, deceased appellant Inder Kumar instigated this appellant to stab the deceased as something has gone into his head upon which this appellant Iqbal Ahmad is said to have pulled out a knife and to have stabbed the deceased in his chest. The informant stated that having received the information, he rushed back to his shop to find that his brother was being examined by Dr. P.C. Rai ( P.W. 4) who advised him to rush his brother to the hospital and, accordingly, injured Sarveshwar Saran was taken to the hospital where he died. As per the written report ( Ex. Ka-1) the prelude to the incident was a minor incident dated 10.11.1979 at about 5.30 p.m. when the two accused came to the Public Distribution System shop of the informant and asked him to supply kerosene to them. The informant stated that because the two were not attached to his shop, he cannot supply the commodity to them. Ka-1) the prelude to the incident was a minor incident dated 10.11.1979 at about 5.30 p.m. when the two accused came to the Public Distribution System shop of the informant and asked him to supply kerosene to them. The informant stated that because the two were not attached to his shop, he cannot supply the commodity to them. The two accused abused the informant and stated that it was as per their will that they had got kerosene from wherever they wanted. Subsequently, they had come in a planned way to settle their grudge. The written report ( Ex.Ka-1) was presented before P.W. 5-Bhagwati Prasad Pathak, who was the Head Moharrir posted in Police Station Mugalpura, on the basis of which P.W. 5 drew up the F.I.R. ( Ex. Ka-2), made entries in that behalf in the General Diary and also prepared the copy of the special report to dispatch it to different authorities. P.W. 10-S.I. Bhup Singh, posted as officer-in-charge of the police station, took up the investigation and came to the place of occurrence and inspected the same and recorded the statements of witnesses. He prepared the site plan ( Ex. Ka-12) copy of which is available to us as the part of the paper book. He collected the injury report ( Ex. Ka-1) which was issued by C.W. 1-Dr. K.K. Nimboriya who had first attended on the deceased when he was brought to the emergency ward of District Hospital, Moradabad and had stitched the wound which was a stab wound measuring 4cm x 1½ cm x depth not probed on the left side of the chest, 7 cm above the left nipple at 11 O'clock position. He also collected the post mortem report ( Ex. Ka-4) which was prepared by P.W. 6-Dr. M.C. Tripathi who had held Post Mortem Examination on the dead body of the deceased Sarveshwar Saran on 11.11.1979. P.W. 10 could not complete investigation rather it was completed by P.W. 9-S.I. Mahendra Nath Gupta who submitted charge sheet and sent the two accused persons up for trial. The defence of the accused was of complete innocence as also of non-participation and also of false implication. The prosecution examined as many as ten witnesses in support of the charges and the court also summoned and examined on its own C.W. 1 Dr. K.K. Nimboriya who, we have already noted, first attended on the injured deceased. The defence of the accused was of complete innocence as also of non-participation and also of false implication. The prosecution examined as many as ten witnesses in support of the charges and the court also summoned and examined on its own C.W. 1 Dr. K.K. Nimboriya who, we have already noted, first attended on the injured deceased. Single defence witness Banarsi Lal was examined but his evidence was on the alibi of the deceased convict Inder Kumar and we are not concerned with that part of the evidence. After considering the evidence, the learned Trial Judge passed the impugned Judgment. Initially, no one was appearing in support of the appeal as a result of which we were forced to request Sri Arun Kumar Srivastava, Amicus Curiae and we have heard him. Sri R.K. Khanna also appeared for appellant Iqbal Ahmad and he addressed us on the merit of the appeal of Iqbal Ahmad. We may point out that by an order passed by the Court on 18.4.2013, we had accepted the report submitted by the learned Additional Sessions Judge, Moradabad as per the direction of this Court contained in its order dated 21.3.2012, reporting that appellant Iqbal Ahmad was juvenile on 11.11.1979 and, accordingly, we also recorded the same finding in the light of the report received by the Court. As per the provisions of Section 20 of the Juvenile Justice ( Care and Protection of Children) Act, 2000, even if a person has been held to be a juvenile on inquiry after he had been convicted and had preferred an appeal which is pending before any court on the day when the abovenoted Act came into force, the appellate court has to consider the merit of the appeal and if it comes to the conclusion that the Judgment of conviction was meritorious, then in stead of passing the order of sentence, the appellate court has to refer the matter back to the Juvenile Justice Board for passing an appropriate order in the light of Section 15 read with section 16 of the said Act. The court had already noted the above provisions contained in Section 20 of the said Act in its order dated 18.4.2013 and this is the reason that we had to embark upon the hearing of the appeal of appellant Iqbal Ahmad so as to examining the vires of the Judgment of conviction. The court had already noted the above provisions contained in Section 20 of the said Act in its order dated 18.4.2013 and this is the reason that we had to embark upon the hearing of the appeal of appellant Iqbal Ahmad so as to examining the vires of the Judgment of conviction. It was contended by Sri Khanna and also the Amicus Curiae that it was a case of solitary evidence of P.W. 3-Sandeep Gupta as admittedly P.W. 1-the informant was not an eye witness to the occurrence and there are infirmities in his evidence which rendered it unsafe to act. It was contended that there was no convincing reason given by P.W. 3 as to how he could be acquainted with the present appellant or the present appellant could be fully known to him. Submission was that some of the other infirmities were that the deceased was not stating either to P.W. 1-the informant or P.W. 4-Dr. P.C. Rai as to who had stabbed him and as such it was a case of mistaken identity. The learned A.G.A.,Sri A.K. Singh, was submitting that it may be that the case was based only on the evidence of P.W. 3 but the evidence of P.W. 1 was equally admissible under Section 6 of the Evidence act as there was no time lag between the incident and the details thereof being conveyed by P.W. 3 to P.W. 1. Otherwise also, his evidence could have been admissible under Section 60 of the Evidence Act as of a witness had stated that he heard it from P.W. 3 and P.W. 3 has stated that he had narrated the incident to P.W. 1. Submission also was that circumstances of the case and some of the facts which went unchallenged during the trial also lend support to the prosecution charge that Sarveshwar Saran, the deceased was stabbed. It was only a question of fixing identity of his assailant. P.W.3-Sandeep Gupta is the real brother of the deceased and of the informant. He had given an eye witness account of the incident by stating that he was stating that the deceased was at the shop when the two accused came and inquired about the informant. It was only a question of fixing identity of his assailant. P.W.3-Sandeep Gupta is the real brother of the deceased and of the informant. He had given an eye witness account of the incident by stating that he was stating that the deceased was at the shop when the two accused came and inquired about the informant. The deceased took ill of the manner the two accused had entered into the shop and ordered them out which ensued into an altercation during which course this appellant Iqbal Ahmad stabbed into the chest of the deceased at the instigation of Inder Kumar the deceased convict. We find that some of the features of the evidence of P.W. 3 indicates and there is nothing on record to indicate that he should be motivated to give evidence in support of the charges rather what we found, during the course of the hearing, was that he was a person who did not have any axe to grind against the two accused persons. The two accused persons had earlier appeared one day prior to the incident and, as appears from the evidence of P.W. 3, he had stated that they used to come to shop off and on with similar request or purpose. P.W.3 had further stated the place of residence of the two accused persons and had not faultered on any fact except that a single line in his evidence was put to him as a statement which had not been made by him during the whole course of investigation and that line, in our opinion, was merely an omission. The line, which was put to P.W. 3, was that he had not stated that this appellant had pulled out the knife from the "pocket of his pant". The witness was honest and he stated that the words "pocket of a pant" had not been stated by him earlier while deposing in court. The whole evidence of P.W. 3 remains untainted, unblemished and without any improvisation which could render him a witness of trust with utter confidence of the Court. It is not in dispute that P.W. 1 was in the market place when P.W.3 rushed to him and informed him as to how Sarveshwar Saran, who was sitting at the shop in absence of P.W. 1, had been stabbed. It is not in dispute that P.W. 1 was in the market place when P.W.3 rushed to him and informed him as to how Sarveshwar Saran, who was sitting at the shop in absence of P.W. 1, had been stabbed. The incident had taken place at 12.45 p.m. and, as may appear from the evidence of C.W. 1 Dr. K.K. Nimboriya, the man had died under 45 minutes of the incident. This space of time we have noted only to point out that in between the period P.W. 3 had informed P.W. 1. Thus, we could safely hold that the communication about the manner of occurrence or the story of the occurrence to P.W. 1 by P.W. 3 was in the shortest time possible and what the record points out is that there was no other influencing element coming in between P.W.s 1 and 3 so as to raise a doubt regarding the admissibility of the statement either under Section 6 or under Section 60 of the Evidence Act. The statement of P.W. 1 that he learnt from P.W. 3 the whole details of the occurrence becomes admissible independently under Section 60 of the Evidence Act because P.W. 1 is corroborated by P.W. 3 when he stated that he had informed P.W. 1 by narrating him the manner of Sarveshwar Saran being stabbed. Besides the above evidence what we find is that P.W. 8-Hari Om who was named in the F.I.R. had not supported as to who was the man who had stabbed the deceased and this was the reason that he was declared hostile, but merely being declared hostile does not downgrade the value of his evidence. His evidence also indicates that Sarveshwar Saran was stabbed as appears from the evidence of P.W.4-Dr. P.C. Rai whose evidence is also devoid of the details regarding the identity of the assailant of the deceased. In addition to the above, there are other documentary evidence like the injury report and the evidence of C.W.1-Dr.K.K. Nimboriya, the inquest report prepared by P.W. 9, the dead body challan forwarding the dead body to the mortuary, clearly indicating that Sarveshwar Saran was definitely stabbed. Thus, the only question which was required to be decided was as to who had stabbed Sarveshwar Saran. We have already noted that P.W. 3 did not have any axe to grind against either of the two accused. Thus, the only question which was required to be decided was as to who had stabbed Sarveshwar Saran. We have already noted that P.W. 3 did not have any axe to grind against either of the two accused. There was not even a suggestion that the witnesses, for any particular reason were nursing any grudge or ill- will towards the appellant and on that account would have come forward to depose falsely. It was the evidence which was coming from P.W. 3-Sandeep Gupta that it was the two accused persons who had acted in the manner as narrated in the prosecution story. It is true that Sri Khanna and the learned Amicus Curiae have both challenged the order of conviction by submitting that it could be a case of mistaken identity but the cross-examination of P.W. 3 in paragraph 3 leaves no manner of doubt that this appellant and the other appellant Inder Kumar ( dead) were quite known to the P.W. 3 and he could not have mistaken them for the real culprits. The other statements on the alleged infirmity as urged by learned counsel for the appellants was that the deceased was not pointing out either to P.W. 1 or P.W. 4 as to who had assaulted him. That omission does not wipe out the effect of the evidence, as regards the support to the prosecution story. The evidence of P.W. 4 itself indicates that the man was badly injured, but he had put his hand to stop the wound from bleeding and had moved on to the neighbouring shop of P.W. 4 to seek some cotton to take care of his wound himself. By reference to the evidence of both C.W. 1 and P.W. 6, it was submitted that in case of such an injury it may not be possible for a person to keep moving or even to stand up. We have experience through the text of medical science that the impulse, which is generated on account of certain incidents in the body of the injured is known to have moved him to greater distance and to committing serious deeds. On an overall evidence of the prosecution, we are of the opinion that the conviction of the appellant Iqbal Ahmad could not be said to be bad. On an overall evidence of the prosecution, we are of the opinion that the conviction of the appellant Iqbal Ahmad could not be said to be bad. The Judgment passed by the learned Trial Judge appears the only result which should have come out on appropriate appreciation of evidence and the same does not suffer from any infirmity. In the result, the criminal appeal filed by appellant Iqbal Ahmad appears of no merit and has to be dismissed. However, we have already referred to the provisions of Section 20 of the Juvenile Justice ( Care and Protection of Children) Act, 2000 and, in that connection, we want to refer further to Section 7-A of the said Act which creates a right into convict Iqbal Ahmad to agitate the issue of juvenility and seek an inquiry as per the provisions of the said Act. Section 20 ordains this Court to scrutinize the order of conviction and if it finds the same correctly passed then it prohibits the court to uphold and affirm the order of sentence rather it makes it imperative for the court to set aside the order of sentence and to direct the Juvenile Justice Board to proceed under Section 15 read with Section 16 of the Act. This is what we do. We direct the Juvenile Justice Board, Moradabad to proceed as we have upheld the conviction of the appellant Iqbal Ahmad in the light of the provisions of Sections 15 and 16 of the Juvenile Justice ( Care and Protection of Children) Act, 2000. Let the entire record of the trial court be transmitted back to the learned District and Sessions Judge, Moradabad who is requested to make it over to the Juvenile Justice Board, Moradabad for proceeding as per the direction contained herein. As soon as the records are received, the Board shall issue a notice to the appellant and the appellant shall appear before it to take an order as per the provisions of Sections 15 and 16 of the Act. The criminal appeal stands disposed of as indicated above. We had appointed Sri Arun Kumar Srivastava,Advocate, as an Amicus Curiae and in appreciation of the assistance rendered by him to us, we direct the Registrar General of the Court to pay him an amount of Rs.4,000/-( four thousand only) towards his fee.