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2017 DIGILAW 797 (ALL)

RAIS AHMAD @ BABU v. STATE OF U. P.

2017-03-21

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : (Delivered by Hon'ble Bala Krishna Narayana, J.) 1. Heard Sri K.D. Tripathi, learned counsel for the appellants, Sri J.K. Upadhyay, Sri Saghir Ahmad, A.N. Mulla, learned AGAs and Smt. Manju Thakur, State Law Officer. 2. This criminal appeal has been preferred by the appellants against the judgment and order dated 15.2.1990 passed by 10th Additional Session Judge, Kanpur Nagar by which Raees Ahmad @ Babu A1 has been convicted under Section 302 IPC while Saleem @ Munna A2 has been convicted under Section 302/34 IPC and both the appellants have been sentenced to imprisonment for life. 3. Briefly stated the facts of this case are that PW1 Abdul Wahab lodged a written report Ext. Ka1 on 16.6.1988 at about 10:00am at P.S. Anwarganj alleging therein that on 16.6.1988 at about 8:30am he was going with his son Naushad to his shop at Chamra Mandi from his house and as soon as they reached near Ashfaqullah Park, appellants emerged from the eastern lane. Raees Ahmad @ Babu A1 who was armed with a country made pistol on the exhortation of accused-appellant Saleem @ Munna A2 to shoot the Naushad, fired at his son Naushad from his country made pistol who collapsed on the ground after receiving firearm injury on the left side of his chest. Upon hearing cries for help of PW1 complainant Abdul Wahab, his real brother Sajjad Ali and other persons arrived on the spot. In the meantime, accused-appellants fled towards the Chamra Mandi extending threats. Blood oozing from the gunshot wound received by his son Naushad had spilled all over the place where he had fallen down. PW1 Abdul Wahab hired a rickshaw and took his son to Ursala Hospital where the doctor after examining him declared him dead. Thereafter, the complainant went to the Police Station Anwarganj and gave a written report of the occurrence which was scribed by him in the Operation Theatre of Ursala Hospital. It was also stated in the FIR that at the time of the occurrence, the shops in the area were open, but soon after the occurrence most of the shopkeepers closed their shops and fled away from the place of incident. The written report Ext. It was also stated in the FIR that at the time of the occurrence, the shops in the area were open, but soon after the occurrence most of the shopkeepers closed their shops and fled away from the place of incident. The written report Ext. Ka1 also contained a recital that there was previous enmity between Raees Ahmad @ Babu A1 and the deceased-Naushad emanating from an incident which was followed by Raees Ahmad @ Babu A1 lodging an FIR against the deceased-Naushad under Section 307 IPC. 4. On the basis of the written report Ext. Ka1, case crime no. 160 of 1988, under Section 302 IPC was registered against both the accused-appellants, Chek FIR and relevant G.D. entry were prepared by PW4 Head Constable Subhash Chandra Yadav on the same day at 10:00 am. 5. The investigation of the case was taken over by PW5 S.H.O., P.S. Anwarganj, Kanpur Nagar Vishwanath Singh who visited the crime scene and collected plain and bloodstained earth from the place of incident, sealed the same and prepared its recovery memo Ext. Ka6. He also inspected the place of occurrence and prepared it's site plan Ext. Ka5. He then proceeded to hold the inquest on the cadaver of the deceased which commenced at 1pm on 16.6.1988 and was concluded on the same day at 3pm. The inquest report of the deceased-Naushad which was prepared by PW5 is on record as Ext. Ka7. He also prepared other relevant documents, Ext. Ka8 photo lash, Ext. Ka9 police form no. 13, Ext. Ka10 request addressed to CMO, Ext. Ka11 specimen seal. 6. After completion of inquest, he got the dead body of the deceased sealed and dispatched to the mortuary for conducting post mortem. The post mortem on the dead body of the deceased was performed by PW3 Dr. R. Prasad on 17.6.1988 at about 1:10 pm who had also prepared his post mortem report Ext. Ka2. 7. After completing the investigation of the case, charge sheet Ext. Ka13 was submitted by him against both the accused-appellants under Section 302 IPC before the CMM, Kanpur Nagar. 8. Since the offence enumerated in the charge sheet was triable exclusively by the Court of Sessions, CMM, Kanpur Nagar committed the case for the trial of the accused to the Court of Sessions Judge, Kanpur Nagar where it was registered as S.T. No. 346 of 1988 State Vs. 8. Since the offence enumerated in the charge sheet was triable exclusively by the Court of Sessions, CMM, Kanpur Nagar committed the case for the trial of the accused to the Court of Sessions Judge, Kanpur Nagar where it was registered as S.T. No. 346 of 1988 State Vs. Raees Ahmad @ Babu and another and made over for trial to the Court of 10th Additional Sessions Judge, Kanpur Nagar. The 10th Additional Sessions Judge, Kanpur Nagar on the basis of the material on record and after hearing the accused on the point of charge, framed under Section 302 IPC against Raees Ahmad @ Babu A1 and under Section 302/34 IPC against Saleem @ Munna A2. The accused pleaded not guilty and claimed trial. 9. The prosecution, in order to prove its case examined as many as five witnesses of whom PW1 complainant Abdul Wahab and PW2 Sajjad Ali were examined as witnesses of fact while PW3 Dr. R. Prasad, PW4 Head Constable Subhash Chandra Yadav and PW5 I.O. Vishwanath Singh were produced as formal witnesses. 10. Both the accused-appellants in their examination under Section 313 Cr.P.C., denied the prosecution case and alleged false implication. Saleem @ Munna A2 in his examination under Section 313 Cr.P.C., further stated that he was falsely implicated in this case on account of previous enmity between his brother Raees Ahmad @ Babu A1 and the complainant's family. The accused did not examine any witness in defence. 11. Learned 10th Additional Sessions Judge, Kanpur Nagar after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record, both oral as well as documentary, convicted both the accused-appellants under the aforesaid offences sentenced them to imprisonment for life. 12. Hence this appeal. 13. It has been submitted by the learned counsel for the appellants that the presence of both the eye-witnesses at the place of occurrence at the time of incident is highly unnatural and doubtful. It is proved from the testimony of PW1 and PW2 itself that they had arrived at the place of incident after hearing the sound of the gunshot and none of them had either witnessed the incident or seen the accused. It is proved from the testimony of PW1 and PW2 itself that they had arrived at the place of incident after hearing the sound of the gunshot and none of them had either witnessed the incident or seen the accused. In fact after the dead body of the deceased-Naushad was recovered, the FIR was lodged after due deliberations, consultations and on the advice of the police falsely implicating the appellants due to previous enmity between the families of the complainant and the deceased-Naushad. It has further been submitted that the role of Saleem @ Munna A2 is clearly distinguishable from that of Raees Ahmad @ Babu A1 as admittedly he was neither inimical towards the deceased nor he had any motive to exhort Raees Ahmad @ Babu A1 to kill Naushad nor he was carrying any arm at the time of occurrence. There is no evidence on record showing that A2 had in any manner facilitated the commission of crime which suggests that he had been falsely implicated by PW1 as accused along with Raeesd Ahmad @ Babu A1 in his over zeal to vindicate his sons' death. The appellants' conviction recorded by the trial on the basis of the uncorroborated testimony of the solitary witness PW1, as the presence of PW2 Sajjad Ali at the place of incident is highly doubtful, is perse-illegal and cannot be maintained. It has next been submitted by the learned counsel for the appellants that the presence of blackening around the firearm wound, found on the dead body of the deceased suggests that he was shot from a very close range and it was not possible for Raees Ahmad @ Babu A1 to have shot Naushad from a close range if his father was accompanying him. The ocular version does not find any corroboration from the medical evidence on record. He has also submitted that the FIR in this case is ante-timed. Hence the impugned judgment and order by which the accused-appellants have been convicted and sentenced to imprisonment for life under Section 302 IPC cannot be sustained and is liable to be set aside. 14. Per contra Sri Akhilesh Singh, learned Government Advocate appearing for the State has submitted that it is fully proved from the evidence of PW1 and PW2 that the deceased had been shot dead by Raees Ahmad @ Babu A1 on the exhortation of Saleem @ Munna A2. 14. Per contra Sri Akhilesh Singh, learned Government Advocate appearing for the State has submitted that it is fully proved from the evidence of PW1 and PW2 that the deceased had been shot dead by Raees Ahmad @ Babu A1 on the exhortation of Saleem @ Munna A2. The medical evidence on record fully corroborates the prosecution story as spelt out in the FIR and later testified by the prosecution witnesses of fact produced during the trial. The recorded conviction of the appellants is based upon cogent and reliable evidence and the sentence of imprisonment for life awarded to the accused-appellants is supported by relevant considerations. The impugned judgment and order warrants no interference by this Court. This appeal lacks merit and is liable to be dismissed. 15. We have heard the learned counsel for the parties and scrutinized the lower Court record. The accused-appellants have been convicted for having committed the murder of Naushad son of PW1 Abdul Wahab at about 8:30am on 16.6.1988 in a busy market area. The FIR of the incident was lodged by PW1 Abdul Wahab promptly on the same day at about 10am at P.S. Anwarganj, District Kanpur Nagar. Both the accused are named in the FIR and their respective roles have been clearly defined. The role of causing fatal firearm injury to the deceased has been attributed to A1 while A2 has been assigned the role of exhortation. The post mortem on the cadaver of the deceased was conducted by PW3 Dr. R. Prasad on 17.6.1988 at about 1:10pm who had also prepared his post mortem report Ext. Ka2. 16. The prosecution in order to prove its case, as we have already noted, had examined two witnesses of fact namely PW1 (complainant) Abdul Wahab father of the deceased and PW2 Sajjad Ali, uncle of the deceased. PW1 in his evidence recorded before the Trial Court deposed that there was old enmity between his son Naushad and A1 on account of Raees Ahmad @ Babu A1 having lodged a FIR against his son Naushad in the year 1985 under Section 307 IPC. He further deposed that on 16.6.1988 when he and his son Naushad were going to his shop in Chamariya Mandi and as soon as they reached near Ashfaqullah Park, both the accused-appellants A1 and A2 emerged from a lane in the east. He further deposed that on 16.6.1988 when he and his son Naushad were going to his shop in Chamariya Mandi and as soon as they reached near Ashfaqullah Park, both the accused-appellants A1 and A2 emerged from a lane in the east. Raees Ahmad @ Babu A1 was carrying a country made pistol in his hand. A1 on seeing the deceased and his father, A2 exhorted that it was an an appropriate opportunity to finish Naushad on which A1 fired at the deceased from his firearm. The shot so fired by A1 stuck Naushad on the left side of his chest. On PW1 Abdul Wahab raising cries for help, PW2 and several other persons arrived at the place of incident but the accused escaped towards Chamariya Mandi brandishing the pistol. As a result of the incident panic gripped the locality. The shop keepers closed their shops and ran away. Blood oozing out from the gunshot wound on the chest of his son had spilled on the road. He took his son to Ursala Hospital on a rickshaw where the doctor after examining him declared him dead. 17. We now proceed to examine whether the medical evidence on record corroborates the ocular version or not. 18. PW3 Dr. R. Prasad who had conducted post mortem on the dead body of the deceased and proved the same as Ext. Ka2 had noted following ante-mortem injuries on his dead body : Firearm wound Wound / Entry - 1 cm x 0.5 cm x cavity deep in front of left side chest, 6 cm away from left nipple at 10 o'clock position. Margin of wound inverted and blackening presence around the wound....... Wound of Exit 4 cm x 2 cm on left side back, 7 cm away from inferior angle of left scapula and 0.5 cm away from verbatim colour of left side of bone margin everted. In his opinion deceased had died due to shock and haemorrhage as a result of ante-mortem injuries. He has further deposed on page 58 of the paper book in his examination-in-chief that it was possible that the deceased had died at about 8:30am to 9:00am and the firearm wound found on the dead body of the deceased could be caused if the shot was fired from a distance of about four feet. He has further deposed on page 58 of the paper book in his examination-in-chief that it was possible that the deceased had died at about 8:30am to 9:00am and the firearm wound found on the dead body of the deceased could be caused if the shot was fired from a distance of about four feet. It is relevant to note that the defence had failed to cross-examine PW3 on the aforesaid aspect of the matter. Thus the medical evidence on record fully corroborates the time of death as well as manner of assault as spelt out in the FIR. 19. Although PW2 Sajjad Ali has corroborated PW1 virtually on all material points relating to the occurrence but from the facts deposed by him on page 47 of the paper book, it is fully established that he had arrived at the place of occurrence after the shot had been fired on hearing the screams of his brother and had not seen the occurrence himself. 20. The question which next arises for our consideration is that whether in the absence of corroboration by any other witnesses, it would be safe to uphold the conviction of the appellants on the basis of the testimony of sole eye-witness PW1 Abdul Wahab who is not only an interested witness being the father of the deceased but also inimical towards the accused on account of previous enmity between Raees Ahmad @ Babu A1 and the deceased. The law on the aforesaid issue is no longer res-integra and stands settled by a catena of a decisions of the Apex Court. It has been repeatedly held by the Apex Court that merely on account of a witness being interested or a relative of the deceased, his evidence cannot be discarded. The only duty which is cast upon the Court while weighing the evidence of a related or inimical witness is to scrutinize and analyze the evidence of such witness with utmost care and caution. If upon a close scrutiny of his evidence, the Court finds that he has given a true and cogent version of the incident then a conviction can be based on the testimony of a solitary witness without insisting on any corroboration. We have very carefully scanned the statement of PW1 Abdul Wahab. His testimony has remained consistent and clinching on all material points relating to the occurrence. We have very carefully scanned the statement of PW1 Abdul Wahab. His testimony has remained consistent and clinching on all material points relating to the occurrence. He was cross-examined by the defence counsel at a great length. His cross-examination runs into 27 pages, however, we are constrained to observe but the defence has not been able to elicit anything from him which may create a doubt about the veracity of the prosecution case or shake his credibility. A suggestion was put to PW1 on page 45 of the paper book by the defence counsel that he had falsely nominated A1 as an accused which was categorically denied by him. He further deposed on his own accord that he had nominated A2 as an accused because it was on his exhortation that A1 had fired at his son which caused his death and in the process the light of his family was extinguished. It would be relevant to reproduce the aforesaid portion of his testimony here under : ^^Loa; dgk lyhe ds dgus ls esjs ?kj dk fpjkx cq>k gSA** 21. We do not find any reason to doubt the presence of PW1 Abdul Wahab on the ground of presence of blackening around the firearm wound found on the deceased's dead body. 22. Thus, we find PW1 to be a wholly reliable witness and it is fully proved from his evidence that both the accused had participated in the commission of deceased's murder. The prosecution story has been castigated by the learned counsel for the appellants also on the ground that the FIR in this case is ante-timed. However, he has not been able to substantiate the aforesaid challenge from any material or circumstance on record. Record shows that the incident had taken place at 8:30am. The deceased was immediately taken by PW1 Abdul Wahab to the hospital, it has come in the evidence of PW1 that the hospital was at a distance of about 1km from the place of occurrence and after his son was declared dead, PW1 had gone from the hospital to the police station which was also at a distance of about 1 km from the hospital and lodged the FIR at 10am. The promptness with which the FIR was lodged by PW1 in this case rules out the possibility of any deliberations and consultations or police interference having preceded the lodging of the FIR with the object of concocting a false prosecution case implicating the accused. A perusal of the evidence of PW4 Subhash Chandra Yadav who had prepared the Chek FIR and made relevant GD entry Ext. Ka3 and Ext. Ka4 respectively further indicates that he was not cross-examined by the defence counsel during the trial with regard to the correctness of time of registration of FIR mentioned in the Chek FIR and the G.D. In fact his evidence further discloses that after registering the FIR of this case, another FIR was registered by him at the same police station at about 10:50am. 23. Thus, we do not find any merit in the submission of the learned counsel for the appellants that the FIR in this case is ante-timed. 24. Thus upon a wholesome analysis and a critical evaluation of the evidence on record, we find that prosecution has fully succeeded in proving it's case against the accused-appellants beyond all reasonable doubts. The ocular version stands fully corroborated from the medical evidence on record. We do not find that the Trial Judge committed any illegality, infirmity or perversity in convicting the appellants and sentencing them to imprisonment for life. 25. There is no merit in this appeal and the same is accordingly dismissed. 26. There shall be however, no order as to costs. 27. The appellants are on bail. Their bail bonds are cancelled and their sureties discharged. They shall be taken into custody and sent to jail forthwith for serving out the remaining part of their sentence.