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2016 DIGILAW 3183 (ALL)

SUHEIL v. STATE OF U. P.

2016-09-17

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2016
JUDGMENT : Hon'ble Arvind Kumar Mishra-I, J. 1. This criminal appeal has been preferred by appellant Suheil against the judgment and order of conviction dated 25.08.2004 passed by the Additional Sessions Judge, FTC No.1, Ghazipur, in Sessions Trial No.84 of 2003, State Vs. Suheil, arising out of Case Crime No.487 of 2002 under Sections 302, 506 IPC and Sessions Trial No.85 of 2003 arising out of Case Crime No.616 of 2002 under Section 25 Arms Act, Police Station Bhanwarkol, District Ghazipur whereby the appellant has been sentenced to life imprisonment coupled with fine Rs.5000/- under Section 302 IPC, in default of payment of fine, one year additional rigorous imprisonment, two years rigorous imprisonment coupled with fine Rs.500/- under Section 506(2) IPC, in default of payment of fine, three months' additional rigorous imprisonment and three years rigorous imprisonment coupled with fine Rs.500/- under Section 25 Arms Act, in default, three months' additional rigorous imprisonment. All the sentences were directed to run concurrently. 2. Heard Sri Satyadheer Singh Jadaun, learned counsel for the appellant, Sri Saghir Ahmad assisted by Sri J.K. Upadhyay and Kumari Meena, learned AGAs for the State and perused the record. 3. The facts of this case as unfolded in the first information report appear to be; that the first informant, Smt. Maimun Nisha wife of Harun Hussain, resident of village Dehari, Police Station Rajpur, District Baxar, State of Bihar, lodged a written report with Police Station Bhanwarkol, District Ghazipur on 24.10.2002 at 06:15 a.m. regarding the occurrence which took place in the night intervening 23/24.10.2002 to the effect that her father-in-law Majid son of Aziz arranged marriage of his relative namely Zubair resident of Machchati, Police Station Bhanwarkol, District Ghazipur with the daughter of Gafoor, resident of Chakiya, Police Station Genhara, District Ghazipur. 4. The accused-appellant Suheil was opposing this marriage arrangement and one month prior to the occurrence, he had threatened that in case they (informant's side) came to solemnize marriage they should also bring shroud with them. Since father-in-law of the first informant was interested in solemnization of marriage, therefore, he in order to participate in the marriage ceremony arrived on the spot on 23.10.2002. Since father-in-law of the first informant was interested in solemnization of marriage, therefore, he in order to participate in the marriage ceremony arrived on the spot on 23.10.2002. In the intervening night of 23/24.10.2002 after taking dinner, the first informant's father-in-law Majid along with first informant's sons namely Ali Akbar and Ali Sarver, both aged about 9 and 6 years, respectively were sleeping on the Takhat (wooden cot) in the hut, whereas, the other relatives were sleeping on Takhat (wooden cots) beside them. It was around mid-night when some noise was heard by the first informant on which she woke up and saw the accused-appellant Suheil son of Noorjahan in the illuminated light of lantern and moonlit night, passing by side of her father-in-law's bed/Takhat, having Tamancha (country-made pistol) in his hand. The first informant intercepted him whereupon he threatened her. Thereafter, the first informant and other persons arrived on the spot i.e. near the first informant's father-in-law Majid then they saw Majid dead on Takhat (wooden cot). The report was lodged for taking appropriate action. This written report is Ext. Ka-1 on the record. 5. Contents of written report were taken down in Check FIR at Case Crime No.487 of 2002 under Sections 302, 506 IPC, Police Station Bhanwarkol, District Ghazipur on 24.10.2002 at 06:15 a.m. Check FIR is Ext. Ka-5. 6. Entries so made led to registration of case against the accused-appellant under Sections 302, 506 IPC at Police Station Bhanwarkol, District Ghazipur, in the relevant general diary which is Ext. Ka-6 on record. 7. Thereafter investigation of the case ensued. Investigation was taken over by the Investigating Officer Dhananjay Mishra PW-8. He in order to complete investigation proceeded to the spot where he collected blood stained and simple soil, blood stained wood of Takhat (wooden cot), besides taking the other things like Kathari (small thin mattress), pillow and empty cartridge from the spot and prepared memo of the same, which is Ext. Ka-8. The Investigating Officer also prepared recovery memo of lantern and handed over the same to Noorjehan son of Buddha in custody which is Ext. Ka-9 on record. 8. Record further reflects that during course of investigation, on 10.12.2002 Tamancha (country-made pistol) allegedly used in commission of offence by the accused-appellant was recovered at his pointing out. Recovery memo of the same was prepared by the Investigating Officer which is Ext. Ka-18. 9. Ka-9 on record. 8. Record further reflects that during course of investigation, on 10.12.2002 Tamancha (country-made pistol) allegedly used in commission of offence by the accused-appellant was recovered at his pointing out. Recovery memo of the same was prepared by the Investigating Officer which is Ext. Ka-18. 9. Thereafter, inquest report of the deceased Majid was prepared by the Investigating Officer. Inquest report reveals that process commenced at 8:00 a.m. and ended at 10:00 a.m. on 24.10.2002. Inquest report is Ext. Ka-10. In the opinion of-inquest witnesses-it was thought proper to send the dead body for post mortem examination so that cause of death could be ascertained properly. Therefore, relevant papers with regard thereto were prepared. In this context, relevant papers are Exts. Ka-11, 12, 13, 14 and 16, respectively and the dead body of the deceased Majid was sent for post mortem examination. 10. The post mortem examination on the cadaver of deceased Majid was conducted by Dr. V.J.P. Sinha, PW-6 in the mortuary at Ghazipur on 24.10.2002 at 5:00 p.m. wherein following ante mortem injuries were noted: 1. Gunshot wound of entry left side of chest (lacerated wound) oval shape 1.5 cm x 1 cm x 10 cm cavity deep, collar latuel to nipple left abrasion present around injury, underlying bone fractured. Margins inverted. 2. Gunshot wound of exit on right side of chest (lacerated wound), 4.5 cm x 3 cm. Margins everted, 6 cm latuel to right nipple, underlying bone fractured. Cause of death was opined to be shock and haemorrhage as a result of anti mortem gunshot injuries. Duration was stated to be half a day. This post mortem examination report is Ext. Ka-4. 11. Record further reflects that during course of investigation, Investigating Officer, Dhananjay Mishra PW-8 prepared site plan which is Ext. Ka-22. After completing investigation, Investigating Officer Dhananjay Mishra PW-8 filed charge sheet against the accused-appellant at Case Crime No.487 of 2002 under Sections 302, 506 IPC. Charge sheet is Ext. Ka-17. 12. Record further reveals that Dhananjay Mishra, PW-8, Investigating Officer of this case also lodged first information report regarding recovery of 'Tamancha' (country-made pistol) made at the pointing out of the accused-appellant on 10.12.2002 and a case was registered at Case Crime No.616 of 2002 under Section 25 Arms Act, Police Station Bhanwarkol, District Ghazipur. This FIR is Ext. Ka-2. 12. Record further reveals that Dhananjay Mishra, PW-8, Investigating Officer of this case also lodged first information report regarding recovery of 'Tamancha' (country-made pistol) made at the pointing out of the accused-appellant on 10.12.2002 and a case was registered at Case Crime No.616 of 2002 under Section 25 Arms Act, Police Station Bhanwarkol, District Ghazipur. This FIR is Ext. Ka-2. The case under aforesaid Section of Arms Act was investigated into by the Investigating Officer-Virendra Singh- PW-9 who recorded statement of various prosecution witnesses and also proved relevant papers as well as site plan regarding recovery of Tamancha (country-made pistol) which is Ext. Ka-19 on record. He submitted charge sheet (under Section 3/25 Arms Act) against the accused-appellant which is Ext. Ka-21. 13. Thereafter the case of the appellant was committed to the court of Sessions from where it was made over for trial to the learned Additional Sessions Judge, FTC No.1, Ghazipur, who heard the appellant on point of charge and after recording his satisfaction regarding prima facie case for framing charge under Section 302, 506 IPC and 25 Arms Act, framed charge under the aforesaid sections of IPC and Arms Act respectively. Charges were read over and explained to the appellant who abjured charges and opted for trial. 14. Consequently, the prosecution was asked to adduce its testimony, whereupon the prosecution produced in all nine witnesses. Brief reference of whom is as hereunder: Maimun Nisha PW-1 is the first informant while Ali Akbar PW-2, claims himself to have witnessed the incident and they were present on the spot at the time of occurrence. Similarly, Sakelu PW-3 has also claimed himself to be an eyewitness of occurrence. Apart from above witnesses of fact, formal witnesses namely; Mahendra Yadav PW-4 who had sent dead body of Majid for post mortem examination to the mortuary proved the aforesaid fact, Ajay Kumar Singh PW-5 who had made relevant entries in the concerned Check FIR in Case Crime No.616 of 2002 under Section 25 Arms Act and general diary and has proved the same as Exhibit Ka-3. Dr. V.J.P. Sinha PW-6 who had conducted post mortem examination on dead body of the deceased Majid on 24.10.2002 proved the post mortem examination report Ext. Ka-4, Constable R.S. Yadav PW-7 proved Check FIR and relevant G.D. entry concerning Case Crime No.487 of 2002. Dr. V.J.P. Sinha PW-6 who had conducted post mortem examination on dead body of the deceased Majid on 24.10.2002 proved the post mortem examination report Ext. Ka-4, Constable R.S. Yadav PW-7 proved Check FIR and relevant G.D. entry concerning Case Crime No.487 of 2002. Dhananjay Mishra PW-8, the Investigating Officer disclosed various steps taken by him in completing investigation and proved the charge sheet filed by him against the accused-appellant, and Virendra Singh PW-9 the Investigating Officer pertaining to the case registered under Section 25 Arms Act at Case Crime No.616 of 2002 in the evidence detailed various steps which he took in completing the investigation and filing charge sheet against the accused-appellant for offence under Case Crime No.616 of 2002 as Ext. Ka-21. 15. Thereafter, evidence for the prosecution was closed and statement of the appellant was recorded under Section 313 Cr.P.C. wherein he has termed his implication in this case false and has stated that he has been roped in, in this case on account of enmity. The defence did not lead any evidence, whatsoever. 16. Learned trial court after hearing both the sides on merit and considering the material on record passed the aforesaid judgment and order of conviction. Consequently, this appeal. 17. Learned counsel for the appellant submitted that the presence of PW-1 and PW-3 at the place of incident is not proved and hence the conviction of the appellant on the basis of the sole testimony of the child witness PW-2 Ali Akbar cannot be sustained. He further submitted that a perusal of the facts stated by PW-2 in his evidence itself it transpires that he is tutored, that apart there are irreconcilable contradictions on material points in his testimony, he cannot be termed as reliable witness and his testimony was liable to be thrown out rather than being made basis for the appellant's conviction. He also submitted that the incident having taken place in the midnight and the prosecution having failed to prove by any cogent evidence existence of any source of light at the place of incident which would have enabled PW-2 to witness the incident and identify the accused, no reliance can be placed on the testimony of PW-2. Motive suggested by the prosecution for the appellant to commit the murder of the deceased Majeed has also not been established. 18. Motive suggested by the prosecution for the appellant to commit the murder of the deceased Majeed has also not been established. 18. It is also submitted that in view of irreconcilable inconsistencies in the medical evidence vis-a-vis the ocular testimony, it cannot be said that the incident had taken place in the manner as spelt out in the FIR and in the testimony of PW-2. 19. He next submitted that such being the state of evidence of the prosecution, the conviction of the appellant recorded by the trial court and the sentence awarded to him cannot be sustained. 20. Per contra Sri Saghir Ahmad, learned AGA submitted that even if, it is assumed for the sake of the argument that PW-1 and PW-3 had not witnessed the incident, the presence of the PW-2 at the place of the incident at the time of the occurrence cannot be doubted even for a moment. The prosecution case stands fully proved from the unimpeachable testimony of the child witness PW-2, who was found by the learned trial court to be competent to depose after examining him at some length. The contradictions/inconsistencies in his testimonies, if any, are natural and not material or of such nature so as to effect the core of the prosecution story rendering it unreliable. He next submitted that since the conviction of the appellant recorded by the trial court is based upon cogent evidence and the sentence awarded to him is supported by relevant considerations, the impugned judgment and order require no interference by this Court. 21. We have heard learned counsel for the parties and have very carefully scanned the entire lower court record. 22. The sole question which arise for our consideration in this appeal is whether the prosecution have been able to prove its case beyond all reasonable doubt against the appellant or not. 23. Before we proceed further in this case, it would be appropriate to take note of contents of the first information report, perusal whereof, reflects that the incident allegedly took place in the intervening night of 23/24.10.2002 and the appellant after midnight arrived on the spot where the deceased Majid, father-in-law of the first informant was sleeping on Takhat (wooden cot) along with Ali Akbar and Ali Sarvar, who are sons of the first informant. We gather from first information report that as soon as offence was committed, the accused-appellant was sighted by the first informant, her son Ali Akbar and few other relatives who have been examined in this case and whose testimony is to be scrutinized on this point specifically as to whether they have in fact seen the occurrence as claimed by them or not? 24. We have before us post mortem examination report of the deceased Majid which also confirms death of the deceased Majid in the intervening night of 23/24.10.2002 when the occurrence allegedly took place. We have already taken note of ante mortem injuries found on the deceased Majid on conduction of post mortem examination by Dr. V.J.P. Sinha PW-6. 25. Before we enter into factual merit of this case, we find it appropriate to evaluate testimony regarding actual occurrence and it being witnessed by the so-called eye witnesses. The prosecution in order to prove its case against the appellant Suheil has examined PW-1 Maimun Nisha (complainant), PW-2- Ali Akbar and PW-3 Sakelu as eye witness of the occurrence. and from the facts stated by PW-2 Ali Akbar stated in his testimony on page 29 of the paper book, the presence of PW-1 and PW-3 at the place of the incident at the time of occurrence is completely ruled out and the evidence of PW-1 and PW-3 on the point of assault by the appellant on the deceased does not inspire any confidence and is liable to be discarded. 26. In this regard it will be useful to reproduce the relevant extract of the testimony of PW-3 on page- 29 of the paper book ^^ekW o cqvk ds igqapus ds igys gh lqgSy Hkkx x, FksA ekW o cqvk VSªDVj ij tc yk'k yknh tk jgh Fkh rc igqphA fdlh vkSjr us esjh ekW dks crk;k Fkk fd lqgSy us ethn dks ekj fn;kA tc esjs nknk dks ekj fn;k rc ebZ jksus yxkA ‡ cts rd eSa jks jgk Fkk rc rd vkneh ugha vk;s FksA lqgSy dks eSa igys ls tkurk FkkA^^ 27. Upon careful scrutiny of testimony of witnesses of fact, we are convinced that testimony of PW-1 and PW-3 on the face of it appears to be improving on the point that they also have seen the occurrence although it is proved from the testimony of PW-2 that they were not present at the time and place of occurrence. 28. In this context, learned counsel for the appellant has vociferously claimed that testimony of PW-2 is partisan. In fact, he has not seen occurrence as claimed by him. The testimony so forthcoming is contradictory to medical evidence on record. Although Ali Akbar PW-2 was sleeping beside the deceased Majid but he has not seen the occurrence. He appears to be improving all the time due to tutoring. He was not competent witness still the trial court asked him particular questions in his examination-in-chief. The cross examination of PW-2 virtually exposes vulnerability of this witness while he was neither competent nor was he reliable witness. 29. The evidence of PW-1 and PW-3 having been ruled out from consideration in view of their presence on the crime scene at the time of occurrence having been rendered doubtful, we are now left with the evidence of child witness PW-2 Ali Akbar on the point of assault by the appellant on the deceased. 30. In so far as testimony of Ali Akbar PW-2 who is child witness aged about 9 years is concerned, his testimony is quite relevant, for the reason that he was sleeping beside the deceased Majid on the same Takhat (wooden cot) at the time of the incident and he claims to have seen the occurrence when he woke up by on hearing the sound of gun shot fired by the accused-appellant. Now we have to analyze testimony of eye witness PW-2 vis-a-vis attendant circumstances whether testimony as forthcoming from PW-2 is reliable or not? 31. It has been contended by the learned counsel for the appellant that the evidence of PW-2 Ali Akbar is wholly inadmissible on the ground that he being a minor is not competent to depose. The issue whether an accused can be convicted on the basis of uncorroborated evidence of a child witness is no longer res-integra and stands supported by Apex Court in its judgment delivered in the case of Dattu Ram Rao Sakhare and others Vs. State of Maharashtra (1997) 5 SCC page 341. The issue whether an accused can be convicted on the basis of uncorroborated evidence of a child witness is no longer res-integra and stands supported by Apex Court in its judgment delivered in the case of Dattu Ram Rao Sakhare and others Vs. State of Maharashtra (1997) 5 SCC page 341. The Apex Court in paragraph 5 of its aforesaid judgment has observed as hereunder:- "5 - The entire prosecution case rested upon the evidence of Sarubai (P.W.2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the evidence Act provided that such witness is able to understand the question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well settled principle we may proceed to consider the evidence of Sarubai (P.W.2)." 32. What follows from the reading of the aforesaid judgment is that, the evidence of a child witness can be considered under Section 118 of the evidence Act provided that child witness is able to understand the question and to give rational answers thereof and further there is no practise that in every case, the evidence of child witness be corroborated before a conviction can be recorded as it's basis but as a rule of prudence it is desirable for the court to have the corroboration of such evidence from other dependable evidence on record. 33. We now proceed to test the evidence of PW-1 on the touch stone of this well settled principle. 34. 33. We now proceed to test the evidence of PW-1 on the touch stone of this well settled principle. 34. Upon perusal of the statement of PW-2, we find that the trial judge has recorded his reasons and found that PW-2 Ali Akbar was a competent witness and his evidence was unblemished. We do not find any reason to take a view different from one taken by the trial court with regard to the competency of PW-2 to depose in view of the fact that the trial court was the best court to ascertain whether the child witness produced before it was a competent to depose after putting several questions to him and observing his demeanor. 35. Learned counsel for the appellant has next submitted that no reliance can be placed on his evidence for the purpose of convicting the appellant in view of the glaring contradictions and inconsistencies in his evidence on several material particulars of the matter. 36. In order to examine the aforesaid aspect of the matter we will have to analyse the entire testimony of PW-2 in order to asses it's wholesome veracity particularly on the fact whether the incident was witnessed by PW-2 Ali Akbar or not. It is true that on page 28 of the paper book PW-2 Ali Akbar has stated in his evidence recorded before the trial court that on the date of the incident he was sleeping with his grand father Majeed and his younger brother and he had recognized the person who had shot his grand father with a gun which was about 1/2 of arm in length as the accused appellant Suheil and on the same page he deposed that he and his younger brother Ali Sarvar woke up on hearing the sound of a gun shot and on waking up he saw that Suheil had shot his grand father by putting his gun against the body of his grand father from a point blank range and then he had threatened him and his brother with dire consequences in case they dared to raise any hue and cry. Thereafter the appellant Suheil had run away from the place of incident. PW-2 has clearly testified that the incident had taken place on about 12.00 p.m. and he had recognized the accused in the light of the lantern. Thereafter the appellant Suheil had run away from the place of incident. PW-2 has clearly testified that the incident had taken place on about 12.00 p.m. and he had recognized the accused in the light of the lantern. Attention has also been invited by learned counsel for the appellant to page 29 of the paper book in which PW-2 in his cross examination had admitted that he had on that date deposed only those facts which were narrated to him by his counsel and submitted that PW-2 is a tutored witness and hence his testimony has no evidentiary value and is liable to be discarded. 37. It is true that there are minor contradictions in his evidence on the point whether he was awake at the time of the assault or had waken up after the shot had been fired but the evidence of PW-2 on the point of the presence of the appellant at the time of the incident and at the place of occurrence armed with a gun and his running away from the place of occurrence leaving Majeed dead and threatening PW-2 and his younger brother with dire consequences upon noticing that they had woken up and seen him remains unimpeachable and wholly intact. The contradictions in his evidence to which our attention has been invited by to learned counsel for the appellant in our opinion are extremely minor contradictions which do not go to the core of the prosecution case so as to render it unreliable and he cannot be termed as tutored witness merely by picking only a sentence from his testimony by him in his cross examination on page 29 of the paper book that whatever his lawyer had told him he had deposed, in view of the fact that the defense counsel despite subjecting PW-2 to a grueling cross examination could not succeed in eliciting anything from him which may even remotely create a doubt with regard to the veracity of the facts deposed by him in his evidence and upon an over all appraisal his evidence as appears to be unimpeachable and trustworthy. 38. After a thorough analysis and scrutiny of the entire testimony of PW-2, we have no doubt that the incident was witnessed by PW-2 Ali Akbar and the conviction of the appellant can be based on the sole testimony of the child witness PW-2 without insisting on any corroboration. 38. After a thorough analysis and scrutiny of the entire testimony of PW-2, we have no doubt that the incident was witnessed by PW-2 Ali Akbar and the conviction of the appellant can be based on the sole testimony of the child witness PW-2 without insisting on any corroboration. 39. Learned counsel for the appellant has also challenged the veracity of the prosecution case as spelt out in the FIR on the ground of inconsistencies between the ocular testimony and medical evidence on record. It has been submitted by the learned counsel for the appellant by referring to the evidence of PW-6 Dr. B.J.P.Singh who had conducted the post mortem of the dead body of the deceased that the firearm injury found on the dead body of the deceased could have been caused only, if he was sleeping in a particular position. PW-8 Dr. B.J.P. Singh who had conducted the post mortem of the deceased in which his evidence on page 45 of the paper book had stated that " Yadi mritak dahini karvat leta to aur use goli mari jaye to uproktanusar goli ki chot aa sakti hai I Yadi chit leta to uproktanusar chot aane ki sambhavana kam hai.". In our opinion even if we accept the aforesaid contention of the learned counsel for the appellant the prosecution case is not liable to be discarded on the aforesaid ground in view of the fact that the prosecution has not come up with a case that the deceased was sleeping ina particular posture when he was shot. Even otherwise the discrepancy between the ocular testimony and the medical evidence pointed out by the learned counsel for the appellant is not of such a degree or irreconcilable so as to render the entire prosecution case unreliable and incredible. The prosecution has come up with a categorical case that the appellant had shot the deceased Majeed while he was sleeping on a wooden table with his grand sons. According to the post mortem report of the deceased one gun shot wound of entry on the left side of the deceased's chest along with a corresponding gun shot wound of exit on right side of chest were found on his dead body. According to the post mortem report of the deceased one gun shot wound of entry on the left side of the deceased's chest along with a corresponding gun shot wound of exit on right side of chest were found on his dead body. The post mortem report of the deceased in fact corroborates the crux of the prosecution theory that the appellant had shot the deceased with his firearm and in view of the above, the eye witness account of the incident given by PW-2 is not liable to be discarded only on the ground that the prosecution has not been able to prove by any evidence that the deceased was sleeping in the same posture as testified by PW-8 in his evidence when he was shot. 40. Learned counsel for the appellant has further has failed to demonstrate that the appellant's conviction under Section 25 of the Arms Act is vitiated in any manner. 40. In view of the foregoing discussion, we do not find any reason to interfere with the recorded conviction of the appellant under Sections 302, 506(2) IPC and Section 25 of the Arms Act and sentence awarded to him by the trial court vide impugned judgment and order dated 25.08.2016. 41. This appeal lacks merit and is accordingly dismissed. 42. There shall however be no order as to costs.