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2017 DIGILAW 1873 (ALL)

IDRIS v. STATE OF U. P.

2017-08-11

RAJESH DAYAL KHARE, RAVINDRA NATH KAKKAR

body2017
JUDGMENT : Hon'ble Rajesh Dayal Khare, J. Hon'ble Ravindra Nath Kakkar, J. 1. The present appeal has been preferred against the Judgment of conviction and order of sentence dated 21.08.1984 passed by IIIrd Additional Sessions Judge, Moradabad in Sessions Trial No. 156 of 1983, whereby appellants, who are four in numbers have been sentenced to undergo life imprisonment for the offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. 2. Learned counsel for the appellants has contended that in this interregnum, the appellant nos. 2 and 3 namely, Nanhey and Munawwar, respectively have expired and therefore, the appeal stands abated against them vide order of this Court dated 28.02.2017. Thus the present appeal is being argued on behalf of appellant nos. 1 and 4 namely, Idris son of Faiyyaz and Farooq son of Munawar Turk only. 3. The main and relevant facts which emerges from the prosecution story are as follow:- Date and time of incident alleged to be of 08.01.1983 at 12:00 Noon. Report has been lodged on the same day at about 15:30 A.M. Distance from the place of occurrence to police station is said to be 14 kilometers. The complainant/ first informant of the case is Kallan son of Sri Chuttan, who is father of the deceased. The named accused in the F.I.R., are Idrish son of Faiyyaz, Nanhe son of Faiyyaz, Munawwar son of Bhuri, Farooq son of Munawwar Turk. Weapons of the assault are alleged to be Chaku and Churri. Place of occurrence is said to be Merh of agricultural field of Nazakat Khargi Jatav. Witnesses named in the F.I.R. are Chhote son of Kallan, Akhtar son of Asgar, Amir Hussain son of Sri Bhulu. 4. The motive and immediate cause of incident as alleged in the prosecution version, is that prior to four days of the alleged incident, younger son of the first informant namely, Zulfiquar and Sukha, who is younger brother of the accused Idrish had some altercation with each other and during the said incident, his elder son namely, Nazakat (hereinafter to be referred to as the deceased) had intervened and separated them and in that process, he also slapped Sukkha. It is further alleged that on account of the aforesaid reason, Idrish, Nanhe and their family members Munawwar and Farooq of village Kher Khata, District Moradabad came to the house of the deceased armed with lathi, in order to take revenge from the deceased, who had slapped Sukkha but due to intervention of the villagers, no mishap took place on that day and deceased was saved but the accused left the place saying that the matter will be settled later on. After four days of the aforesaid incident, the first informant and his deceased son, who were returning home after irrigating their wheat field from canal water and at that time deceased was walking a little ahead from the first informant and at about 12 Noon, when deceased was walking on the mud path (Merh) and reached the field of Khargi Jatav, four accused persons who were hiding themselves in the sugarcane field came out, armed with knives and dagger (Chaku and Churi) and it is averred that Idrish and Nanhey armed with Churi and two other armed with knives, they caught hold of the deceased and repeatedly stabbed him. When the first informant on seeing the incident, who was walking a little behind the deceased raised hue and cry whereupon Chhote son of Kallan, Akhtar son of Asgar, Amir Hussain son of Sri Bholu working in their nearby field, who all belongs to the same village, rushed to the place of incident. Thereafter, the accused persons ran away towards the west and further the first informant reached the place of occurrence and found that the deceased had expired. Thereafter, F.I.R., regarding the aforesaid offence was registered on 08.01.1983 at 3:30 P.M. by the first informant at Police Station Bharatpur, District Moradabad and the matter was entrusted for investigation, after investigation charge sheet was filed by the investigating officer in the concerned Court and the accused persons pleaded not guilty, therefore they were put to trial. 5. It transpires from the record that written report has been scribed by Buddha son of Bholu of the same village on the said date and time of incident and on the basis of the written report, F.I.R. was registered at about 3:30 P.M. at Police Station Bharatpur. 6. 5. It transpires from the record that written report has been scribed by Buddha son of Bholu of the same village on the said date and time of incident and on the basis of the written report, F.I.R. was registered at about 3:30 P.M. at Police Station Bharatpur. 6. In support of the case, prosecution has examined eight witnesses in this case in which P.W.1 Kallan is the father of the deceased and the first informant of the case, P.W.2 Kallan son of Noor Mohammad, who is the cousin of the deceased and P.W.3 Amir Hussain son of Bholu, who is also cousin of the deceased and are said to be eye-witnesses of the incident. P.W.4 Dr. P.K.Shrotiya had conducted the post mortem examination, his testimony relates with medical evidence. P.W.5 Tekpal Singh, and P.W.6 Munawwar son of Hasmat Ali are witnesses of the Panchayatnama, P.W.7 Rakesh Sharma, the then Station House Officer of Police Station Bharatpur is Investigating Officer of the case and P.W.8 Yashpal Singh Sub-Inspector of Police Station Bharatpur, who has prepared Panchnama and other relevant documents on the spot. 7. Perusal of the Lower Court record and paper book reveals that P.W.1 Kallan, who is the father of the deceased narrated the eye-version account of the incident and proved the written report Exhibit Ka1 pursuant to which F.I.R. was registered at concerned Police Station. P.W.2 Kallan son of Noor Mohammad and P.W.3 Amir Hussain son of Bholu also came forward to support the prosecution version. In this way, P.W.1 to P.W.3 are fact witnesses of the case. 8. P.W.4 Dr. P.K. Shrotriya, who had conducted the post mortem examination of the corpus of the deceased found six ante-mortem injuries on the dead body in which, injury nos. 1, 3, 4, 5 and 6 are lacerated wound and injury no.2 is abrasion, P.W.4 in his examination had stated that the death of the deceased was caused due to shock and haemorrhage. 9. P.W.5 Constable Tek Pal Singh, had brought the dead body to hospital with relevant police papers for conducting the post mortem examination. 10. P.W.6 Munawwar is witness of Panchayatnama Exhibit Ka4, who has also proved the clothes of deceased, which is exhibit 1 to 5. 11. P.W.7 Station House Officer, Rakesh Kumar Sharma is investigating officer, who has proved the chik F.I.R. exhibit Ka 5, its entry in the Rapat no. 10. P.W.6 Munawwar is witness of Panchayatnama Exhibit Ka4, who has also proved the clothes of deceased, which is exhibit 1 to 5. 11. P.W.7 Station House Officer, Rakesh Kumar Sharma is investigating officer, who has proved the chik F.I.R. exhibit Ka 5, its entry in the Rapat no. 23, which is exhibit Ka 6, Panchayatnama exhibit Ka 4, Photo Laash Ex. Ka 7, Chitthi R.I. exhibit Ka 10, Namona Mohar Ex. 11, letter of C.M.O. exhibit Ka 9, site plan exhibit Ka 12, recovery memo of blood stained earth exhibit Ka 13 and the material exhibit 6 and 7 and further stated that after completing the investigation, he had submitted the charge sheet which is exhibit Ka 14 available on record. 12. P.W.8 Sub-Inspector Yash Pal Singh has stated in his examination that on the instruction of S.O. Rakesh Kumar Sharma, he visited to the spot along with him and on his instructions he prepared the panchayatnama and relevant documents in his own hand-writing which are exhibit Ka 4, Ka7, Ka8, Ka9, Ka10, Ka11. 13. After closure of the prosecution evidence, statement of the accused persons were recorded under Section 313 Cr.P.C. They denied all the incriminating evidence adduced by the prosecution and claimed that they have been falsely implicated in this case due to enmity. 14. Heard learned counsel for the appellants, Ms. Kumari Meena and Sri S.N. Singh, learned A.G.A. for the State. 15. Learned counsel for the appellants has mainly argued on three points i.e. firstly that the medical evidence as set out is in contradiction with the eye-version account. Secondly all the witnesses in the present case are family members of the first informant (father of the deceased) and they are related and partisan witnesses and thirdly, the appellants have been implicated on account of old animosity already existing between them, besides that there is material contradictions and in-consistencies in the statement of witnesses which casts cloud of doubts and suspicion in prosecution story. He has further contended that out of eight witnesses examined by the prosecution in this case, P.W.1 Kallan is the father of the deceased and is the first informant of the case, P.W.2 Kallan son of Noor Mohammad is the cousin of the deceased, P.W.3 Ameer Hasan son of Bholu is also cousin of the deceased. He has further contended that out of eight witnesses examined by the prosecution in this case, P.W.1 Kallan is the father of the deceased and is the first informant of the case, P.W.2 Kallan son of Noor Mohammad is the cousin of the deceased, P.W.3 Ameer Hasan son of Bholu is also cousin of the deceased. They all are said to be eye-witness of the incident whose testimony is required to be scrutinised with care and caution, their testimony totality belies the medical evidence tendered in this case. 16. Challenging the time and place of occurrence, learned counsel contends that in fact, neither the first informant nor the other aforesaid persons, who were said to have reached the place of occurrence on the alarm raised by the first informant, were present at the place of occurrence as it is very strange as to why the first informant did not rush to save his son when he was being assaulted by the accused persons with sharp edged deadly weapons. Even those person, who are said to have rushed on hearing the hue and cry did not attempt to save the life of victim and further not to apprehend assailants, their presence also become doubtful on account of the fact, that they were working in their agriculture field and whose fields were near the place of incident when they heard the hue and cry. To substantiate the aforesaid averments, it is stated that Kallan P.W.2 allegedly rushed to the place of occurrence after hearing the hue and cry, though he was working in his field situated on the other side of the canal and it would take considerable time to reach the place of occurrence from the field after crossing the canal, therefore his presence as shown at the place of occurrence is highly improbable and doubtful. Learned counsel further argued that on the day when the incident took place, it was a market day and the main road as well as side road was frequented by the buyers and sellers, who were going and coming from and to the market but no independent witness of the alleged incident has been examined by the prosecution except the family members of the first informant, who are interested witnesses and therefore it is argued on behalf of the appellants that the deceased was murdered somewhere else by some other persons and his body was thrown at the said place of alleged occurrence in which the appellants have been falsely implicated on account of old animosity. It is further argued that the presence of the cousins of the first informant/deceased at the place of occurrence, on raising hue and cry and no other independent witnesses, also indicates to the fact, that the said witnesses were not present at the place of occurrence, therefore, their testimony/ statement cannot be relied upon, as their presence at the place of spot is highly doubtful. 17. Reference has been drawn to the statement of the P.W.1 Kallan son of Sri Chuttan, who is stated to be eye-witness, who had deposed that at the time of the alleged incident, the deceased was walking slightly ahead of the said witness/ first informant who was the father of the deceased and he had seen the incident, who further stated that Nanhe, Idris carrying Churra and Munawwar and Farooq carrying knives assaulted the deceased and on raising alarm, Akhtar, Ameer Hasan, who were working in their respective fields rushed to the place of occurrence. In the same statement, he had stated subsequently that Kallan son of Noori was walking behind the said witness at the time of alleged incident, therefore there is a material contradiction in his statement. It has further been stated by the said witness that at the place and time of alleged incident, his maternal cousin namely, Buddha was also present and who scribed the F.I.R. and it is highly improbable that Buddha would be carrying paper and pen in his pocket at the relevant point of time. 18. Learned counsel for the appellants has also contended that P.W.2 in his statement has stated that the accused persons had stabbed the deceased which resulted in his death. 18. Learned counsel for the appellants has also contended that P.W.2 in his statement has stated that the accused persons had stabbed the deceased which resulted in his death. Reference has been drawn to the statement of P.W.4, Doctor, who had conducted the post mortem examination of the deceased, wherein six injuries were shown on the person of the deceased, out of which five injuries were lacerated wound and one injury was abrasion but in his statement P.W.4 was confronted with the inquest report, which also mentions about the injury in the stomach of the deceased wherefrom intestine was coming out. P.W.4 had stated that he was not sure as to whether he had mentioned the same or not. Further in his cross-examination, he had stated that the deceased did not sustain any injury by sharp edged weapon and he did not see any injury from which the intestine was coming out from the stomach of the deceased. It is thus contended that there is a material contradiction in the post mortem examination and the inquest report. 19. Learned counsel or the appellant has also drawn the attention of this Court to the statement of Rakesh Kumar Sharma P.W.7, the then Station House Office, Police Station Bharatpur, District Moradabad wherein he had stated that the deceased had received cut injuries in the stomach from which intestine was coming out which has also been stated in the Panchnama. Therefore, there is material contradiction in the medical evidence and panchnama of the deceased. It is thus argued on behalf of the appellant that as per statement of Doctor P.W.4, injuries caused by knives and dagger would be sharp edged injuries but there is no such injuries on the person of the deceased, whereas, as per statement of the alleged eye-witnesses, deceased was assaulted by knives and dagger (Chaku and Churri), therefore there is material contradiction with the inquest report/ panchnama as is apparent from the statement of P.W.4 who had conducted the post mortem and the statement of the alleged eye-witnesses. 20. Ms. Meena, learned A.G.A. has submitted that P.W.1 and P.W.2 are eye-witnesses of the alleged incident and their testimony is consistent to the effect that four accused persons suddenly emerged from the sugarcane field where they were hiding and assaulted the deceased with knife and dagger on account of which injuries sustained by deceased, he expired. 20. Ms. Meena, learned A.G.A. has submitted that P.W.1 and P.W.2 are eye-witnesses of the alleged incident and their testimony is consistent to the effect that four accused persons suddenly emerged from the sugarcane field where they were hiding and assaulted the deceased with knife and dagger on account of which injuries sustained by deceased, he expired. It has also been argued that all the eye-witnesses had seen the incident and their testimony is also in consonance with the medical evidence available on record. She has further argued that it is not necessary that cut/punctured wound or sharp cut wound be caused even if a person is repeatedly stabbed and it depends on the way of assault and therefore she has argued that the injuries as indicated in the medical report as well as in the inquest report can also be caused by knife injuries and in that process lacerated injuries can also be caused. It is further argued that it appears that the medical/post mortem report was done in mechanical manner and it appears that the post mortem was done by someone else and the Doctor was only noting down the same, therefore, there appears to be some contradiction in the medical/post mortem report and the inquest report. She has further stated that it is very clear from the inquest report that the deceased had some injuries also from where the intestine was coming out and as such discrepancy would not be of much importance as per settled principle of law. Reliance has been placed upon the Judgment of Hon'ble Apex Court rendered in the matter of Sadhu Saran Singh vs. State of U.P. and Others, 2016 (1) ACR 1106 and has argued that as per aforesaid Judgment primacy has to be given to the ocular evidence particularly in case of minor discrepancy. She has relied upon para 21 (iii) of the aforesaid Judgment which is quoted below:- 21. (iii) We are of the view that the High Court for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. She has relied upon para 21 (iii) of the aforesaid Judgment which is quoted below:- 21. (iii) We are of the view that the High Court for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. When the doctor (PW7) in his examination-in-chief had categorically stated that the incident could have occurred at 8.00 a.m. Which corroborated the case of the informant, there was no reason to disbelieve this fact to hold that the incident occurred between 2.00 to 4.00 a.m. Merely basing on a vague statement made by the Doctor in the cross-examination. Also we believe that merely for the reason that no blunt injuries were present on the deceased the whole evidence of P.W.1 cannot be discarded as primacy has to be given to the ocular evidence partiularly in the case of minor discrepancies. This Court in Darbara Singh vs. State of Punjab, MANU/SC/0737/2012 : (2010) 10 SCC 476, wherein this Court has held: ..... So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between the medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-a-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true to all, that the ocular evidence is liable to be disbelieved. 22. Learned A.G.A. has further contended that merely the fact that there was no independent witness of the alleged incident would not falsifies the prosecution case on the ground that the witnesses, who have been named are relatives of the first informant and thus interested witnesses. It has further been argued that there was motive to commit the alleged offence by the accused persons as they wanted to take revenge for slapping Sukkha and the entire evidence available on record are in consonance in totallity to prove that the offence has been committed by the accused persons in the same manner as has been stated by the prosecution version. Learned A.G.A. has thus contended that the impugned Judgment and order is perfectly legal, just and proper, therefore warrants no interference by this Court under the Appellate Jurisdiction. 23. After hearing the learned counsel for the appellants, Ms. Meena, learned A.G.A. and after perusing the evidence available on record as well as Judgment and order impugned, it is borne out that as per prosecution case, the deceased was assaulted by four accused persons in order to take revenge for slapping Sukkha and that the deceased was repeatedly stabbed by knife and dagger i.e. sharp edged weapon on account of which he succumbed to injuries; P.W.1 father of the deceased was walking behind the deceased and he only rushed when the attack was over, thereafter, it is alleged that the accused persons fled away but there is nothing on record to show that neither the P.W.1 or any other eye witness, who are stated to be present at the time of occurrence made any attempt to save the deceased from assault or attempted to give him medical aid even no attempt had been made to apprehend assailants and therefore, the contention of the learned counsel for the appellants that the deceased may have been murdered somewhere else and his body was thrown at the place of occurrence cannot be brushed off. It is intriguing as to how the father of the deceased as well as other witnesses did not rush to save his son on seeing that the deceased was being stabbing by sharp edged deadly weapons. It is also not disputed that the deceased was attacked by sharp edged weapons but as per anti mortem injuries shown in post mortem report, the deceased sustained six injuries out of which, five injuries were lacerated wound and one injury was abrasion and as per statement of Doctor P.W.4, injuries by knives and dagger would be cut/punctured wound, sharp cut wound but there is nothing on record as to how the deceased sustained lacerated wound by knives and dagger. Perusal of the medical report/post mortem report as well as inquest report would go to show that post mortem report does not mentions as to how the injury was sustained by the deceased in his stomach from which intestine was coming out and even in the statement of P.W.4 Doctor, in his examination-in-chief, had specifically stated that there was no such injuries while the inquest report mentions about such injuries, therefore, it appears that the post mortem was done in a mechanical manner. It is further hard to believe that if the brother of the accused was slapped by the deceased in order to resolve the dispute, the deceased would be eliminated for revenge for such a petty issue and therefore the motive as indicated by learned A.G.A. appears to be rather weak and highly improbable under the facts and circumstances of the case as above stated. 24. To sum up the case, from the appraisal of evidence of prosecution tendered in this case. We are of the view that medical evidence neither found support nor in consonance with the eye-version account, there being material contradiction between the two, medical evidence vis-a-vis ocular version are inconsistent, that the medical evidence completely rules out the possibility of ocular evidence being true, so ocular evidence is neither believable nor acceptable. The motive alleged by the prosecution in the facts and circumstances of the case is found to be very weak and is highly improbable. No independent witness has been brought in this case. The fact witnesses P.W.1 to P.W.3, whose testimony is of relative of deceased and are interested witnesses and after scrutiny with care and caution found to be untrustworthy and is not acceptable as their presence at the place of occurrence is found to be doubtful. Lastly the presence, involvement and complicity in commission of crime by surviving appellants-accused is found to be doubtful. 25. Consequently in view of the aforesaid reasons and discussions, we are of the opinion that the Judgment of conviction and order of sentence is liable to be set aside and the appeal deserves to be allowed. 26. Accordingly, the impugned Judgment of conviction and order of sentence dated 21.08.1984 is set aside. Resultantly the surviving appellants nos. 1 and 4 namely, Idris son of Faiyyaz and Farooq son of Munawwar Turk are hereby acquitted from the charges levelled against them. 27. 26. Accordingly, the impugned Judgment of conviction and order of sentence dated 21.08.1984 is set aside. Resultantly the surviving appellants nos. 1 and 4 namely, Idris son of Faiyyaz and Farooq son of Munawwar Turk are hereby acquitted from the charges levelled against them. 27. The surviving appellants are on bail, their bail bonds and sureties bonds are cancelled. The sureties stands discharged from their liability. 28. Let a certified copy of this Judgment and order be transmitted to the concerned Court/ C.J.M. for necessary compliance.