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2017 DIGILAW 1765 (ALL)

Rafiq Ahmad @ Munney v. State

2017-07-31

B.AMIT STHALEKAR

body2017
JUDGMENT : 1. This is a jail appeal preferred by Rafeeq Ahmad S/o Laddan. Since, no one has appeared on behalf of the appellant, therefore, this Court appointed Ms Chhaya Gupta as Amicus Curiae to assist the Court. Sri Tarkeshwar Yadav, learned AGA appeared on behalf of the State. 2. The appellant Rafeeq Ahmad S/o Laddan was convicted by the trial court for offence under Section 304 part I I.P.C. and sentenced to ten years rigorous imprisonment with a fine of Rs. 1,000/- with further six months rigorous imprisonment on failure to pay the fine. 3. As per the report of the Incharge CJM, Rampur dated 29.4.2017, the appellant has already completed his sentence and has been released from jail on 9.8.2013. 4. Briefly stated the facts of the case are that on information given by one Umruddin, the police lodged an F.I.R. in police station Camrie. It was disclosed by the informant that he was a resident of Village-Imambada, Kasba and police station Camrie, District-Rampur and his sister Khatoon Begum was married to Rafeeq Ahmad S/o Laddan, the appellant herein about 20 years back. It was alleged that the appellant had fallen into bad company and had become worthless and because of financial burden upon him, he used to harass and beat up his wife-Khatoon Begum. On 24.06.2005, the informant Umruddin's mother Halkuna Hajjan (hereinafter referred to as the ''deceased') was returning from the forest and at about 7.00 pm in the evening when she reached near the house of Kallan along the brick road (kharanja), the appellant hit her on the left side of the head with the handle of a hand pump with intention to kill. The deceased fell down and died on the spot. The informant and Rafeeq Ahmad S/o Kaale, resident of Nai Basti, Noori Masjid, Camrie and one Chuttan along with Mohd. Noor immediately arrived on the spot and witnessed the incident. The accused appellant ran away towards the forest carrying the handle of the hand pump in his hand. The informant and others gave him a chase but he managed to make his escape good. Umruddin, thereafter, left the other persons near the body of his mother and rushed to the police station to lodge a report. 5. During trial the prosecution has examined Umuruddin as P.W.-1. He has supported the FIR version. The informant and others gave him a chase but he managed to make his escape good. Umruddin, thereafter, left the other persons near the body of his mother and rushed to the police station to lodge a report. 5. During trial the prosecution has examined Umuruddin as P.W.-1. He has supported the FIR version. In his cross-examination, Umruddin further stated that his mother Halkuna Hajjan had gone with Abrar to collect cattle fodder but also stated that this fact he had not disclosed to the investigating officer as he was mentally disturbed at that time and he remained disturbed for four-five days. He also stated that on the fateful day, it was the deceased who cut the fodder. She was coming from the east. The road on which the incident occurred runs from east to west. Umruddin was coming along with his mother from the east and was walking five or six steps behind his mother. The accused was coming from the west and was carrying the handle of a hand pump which was about 2-3 ft in length. There were only about six people on the road at that time including the deceased and the accused. His son-in-law Rafeeq Ahmad s/o Kaaley was also coming from the same direction. Chuttan and Mohd. Noor were also coming in the same direction. Suddenly, there was an attack upon his mother and lot of shouting and Umuruddin, Chuttan and Mohd. Noor immediately rushed to the spot but by that time, Halkuna Hajjan had already died. He along with Rafeeq (son of Kaaley), Mohd, Noor and Chuttan tried to feel the pulse of the deceased but there was no pulse and she had died. Hearing the commotion about 50-100 people of the village also rushed to the spot. His family members, namely, brother and brother's wife Aaisa Mohd. Ahmad also came within 15-20 minutes. The deceased was lying on the ground and blood was spread on the Kharanja over an area of about one foot. P.W.-1 further stated that by the time, the police reached there, it had become dark. Lot of people were present. The police remained on the spot for about an hour. Therefore, he came home and the body was sent for post mortem. 6. Rafeeq Ahmad s/o Kaaley was examined as P.W.2 who identified the accused Rafeeq Ahmad in the court. P.W.-1 further stated that by the time, the police reached there, it had become dark. Lot of people were present. The police remained on the spot for about an hour. Therefore, he came home and the body was sent for post mortem. 6. Rafeeq Ahmad s/o Kaaley was examined as P.W.2 who identified the accused Rafeeq Ahmad in the court. He has supported the prosecution case as narrated in the F.I.R. and also corroborated the testimony of P.W. 1. In his cross-examination, PW-2 stated that Umruddin is not his relative. He repeated his earlier statement that the accused had hit the deceased on the head with the handle of the hand pump as a result of which her brain came out and she fell on the ground and died on the spot instantaneously. He also stated that the accused hit her again. When the first blow was inflicted these persons were about four steps behind and the second blow was given after the deceased had already fallen on the ground. The witness further stated that after he and the other persons failed to get the accused and returned to the spot, they found that the victim Halkuna Hajjan was still lying there. Large number of persons had collected. Four police personnel also came at the same time. 7. Dr. D.K. Gupta, ENT Surgeon, District Hospital, Rampur was examined as P.W.-3. He described the injuries as follows:- 'A lacerated wound 8cm x 3cm deep in the head on the left back portion and close to the ear. A part of the brain had spilled out. The left side templer bone and oscipitl bone was splintered. On internal examination it was found that the brain tissues were torn, both lungs were congested and the right portion of the heart was filled with blood, the left was empty.' 8. The investigating officer, Sub-Inspector Leela Dhar Srivastava was examined as P.W.-4. He has stated that statement of Rohtash Kumar was recorded under Section 161 Cr.P.C., thereafter spot inspection was conducted and panchayatnama prepared. Samples of plain earth as well as blood stained earth was also recovered in the presence of witnesses Refeeq Ahmad S/o Kaaley and Shabbir and duly sealed. The map of the crime site was also prepared. He also stated that the accused was arrested on the triangular crossing (intersection of three roads) at Camrie at about 2.00 a.m. in the morning. The map of the crime site was also prepared. He also stated that the accused was arrested on the triangular crossing (intersection of three roads) at Camrie at about 2.00 a.m. in the morning. He was holding the handle of the hand pump in his right hand which was recovered from him and duly sealed. This handle was identified by the witness in the court as being the same hand pump's handle which he had recovered from the accused. 9. The learned Amicus Curiae sought to submit that Umruddin son of the deceased Halkuna Hajjan has in his testimony stated that the accused was coming from the west and was carrying the handle of a hand pump which was about 2-3 ft in length. His son-in-law Rafeeq Ahmad S/o Kaale was also coming from the same direction and was walking about 5-6 steps behind the accused when the accused suddenly attacked his mother-in-law, the deceased Halkuna Hajjan. He has stated that he was walking about 4-5 steps behind his mother but this fact has not been stated by him when he lodged the FIR and therefore, the statement of Umruddin is not reliable. 10. In my opinion, merely because these details were not mentioned in the FIR does not render the statement of Umruddin given in court unreliable or unworthy of notice. The bare factual outline of the entire incident as narrated by Umruddin was that his mother was returning from the fields and when she reached the Kharanja road near the house of Shabbir, the accused struck her a blow on the left side of her head near the ears with the handle of a hand pump as a result of which the victim's skull was cracked and she fell and died on the spot. He has also stated that he and Rafeeq Ahmad S/o Kaale and Chuttan Ahmad, Ahmad Nabi and Mohd. Noor immediately reached the spot. These people chased the accused but he managed to run away into the nearby jungle. In this view of the matter it cannot be said that there is any inconsistency in the contents of the FIR and the testimony of Umruddin in the court which is so stark as to render the testimony wholly unreliable. 11. These people chased the accused but he managed to run away into the nearby jungle. In this view of the matter it cannot be said that there is any inconsistency in the contents of the FIR and the testimony of Umruddin in the court which is so stark as to render the testimony wholly unreliable. 11. The learned Amicus Curiae further submitted that the accused was the husband of Umruddin's sister and that he used to ill treat his wife and therefore, for these reasons Umruddin was inimical towards the accused and he has falsely implicated the accused in the incident. 12. In my opinion, this submission has absolutely no force because the incident was similarly narrated by the other witness Rafeeq Ahmad S/o Kaale who was the son-in-law of Umruddin and he was walking about 5-6 steps behind, the accused. He was also an eye witness of the incident and has corroborated the testimony of Umruddin, P.W. 1. Merely because Chutton, Mohd Nabi and Mohd. Noor were not examined or produced as witnesses, in my opinion, it would not have any effect upon the case so long as there was no discrepancy in the testimony of Umruddin and Rafeeq Ahmad s/o Kaale and the findings recorded by the trial court can still be sustained on the statement of Umruddin and Rafeeq Ahmad S/o Kaale. 13. The learned Amicus Curiae further drew the attention of the Court to the evidence of the accused particularly his reply to question no. 9 where he stated that he had arrived in the village only one or two days before the incident and it was then that the police had arrested him. He also stated that his mother-in-law (the deceased) used to constantly nag him and accuse him of ill treating her daughter and often his wife would go away to her mother's place and whenever he went to bring her back she raised a hue and cry and collected the entire mohalla and used to harass him. 14. From the evidence on record, in my opinion this submission of learned Amicus Curiae cannot be accepted. The accused was arrested by the police at about 2.00 a.m. in the morning near the triangular crossing, Camrie. 14. From the evidence on record, in my opinion this submission of learned Amicus Curiae cannot be accepted. The accused was arrested by the police at about 2.00 a.m. in the morning near the triangular crossing, Camrie. The P.W.-4 SI Leela Dhar Srivastava in his testimony has clearly stated that he along with Constable Ranjeet Singh arrested the accused from the triangular crossing, Camrie with the hand pump's handle in his hand. In any case, the contention of the accused that he had come only 1 or 2 days earlier in the village and it was then that the police arrested him does not bear any logic as at that time the incident itself had not occurred and Halkuna Hajjan, the deceased was still alive. 15. For reasons aforesaid and in view of the unmitigated testimony of Umruddin and Rafeeq Ahmad S/o Kaale and other material evidence on record, I do not find any good ground for interference with the judgment and findings recorded by the trial court. The conviction and sentence of the appellant awarded by the trial court is affirmed. 16. The jail appeal lacks merit and is accordingly dismissed. 17. It is noted that the appellant has already completed his term of sentence and has also been released, as per the office report dated 9.5.2017. 18. Before concluding, this Court must put on record its appreciation of the efforts put in by Ms. Chhaya Gupta, learned Amicus Curiae in providing valuable assistance to the Court. It is, therefore, directed that a sum of Rs. 10,000/- be paid to Ms Chhaya Gupta, learned Amicus Curiae towards fees. 19. The above amount shall be paid to Ms. Chhaya Gupta, learned Amicus Curiae by the Registry of this Court within 15 days.