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Allahabad High Court · body

2019 DIGILAW 20 (ALL)

MUSTAQ v. STATE OF U. P.

2019-01-03

BALA KRISHNA NARAYANA, GHANDIKOTA SRI DEVI

body2019
JUDGMENT 1. The instant criminal appeal has been preferred by Mustaq, accused-appellant, against the judgment and order dated 03.09.1986, passed by III-Additional Sessions Judge, Allahabad, in S.T. No.172 of 1983 (State of UP vs. Mushtaq Ahmad) under Sections 302 and 307 IPC, Police Station Shahganj, District Allahabad, by which he has been convicted and sentenced to undergo life imprisonment for the offence under Section 302 IPC and to pay Rs. 1000/- as fine to the State Government, seven years rigorous imprisonment and fine of Rs. 5000/- for the offence under Section 307 IPC and in default of payment of fine to undergo one year's additional rigorous imprisonment. 2. Brief facts of the case are that on the basis of an oral complaint made by Kalim Ullah, P.W.1, on 20/21.12.1982 at about 4:30 a.m., a case under Sections 302, 307 and 324 was registered at Police Station Shahganj, District Allahabad, against the appellant, which was scribed by Head Constable, Bharat Upadhyay, P.W.7. 3. In the written complaint, it was stated that the appellant was closely related to Kalim Ullah @ Iqbal Ahmed, the informant (P.W.1). The grand-father of the accused-appellant and the informant were real brothers. The residence of the appellant and the informant was in the same place. In a family partition, which had taken place about 18 years back, the house was divided into two parts and a partition wall was raised. The families of the informant as well as accused were carrying on bakery business. The business of the informant was flourishing while that of the accused was suffering huge losses, therefore, the appellant had become inimical towards him. On account of that, some dispute had taken place between the appellant and Wasi Ullah @ Mehtab Ahmed (PW2), brother of the informant. On the fateful night of 20/21.12.1982, the deceased Smt. Kaniz Fatima along with her daughters, namely, Km. Anjum Arah, Km. Husna Arah and Km. Roshan Arah were sleeping in a room on the second floor of the house. The informant and his brother Wasi Ullah, P.W.2 as also Gulzar Ahmed were sleeping in the same house in a room on the first floor of the house. At about 3:45 a.m., it is alleged that the accused-appellant scaled over the partition wall and entered into the house of the informant. The informant and his brother Wasi Ullah, P.W.2 as also Gulzar Ahmed were sleeping in the same house in a room on the first floor of the house. At about 3:45 a.m., it is alleged that the accused-appellant scaled over the partition wall and entered into the house of the informant. Smt. Kaniz Fatima, the deceased, was awakened and when she objected the accused-appellant, attacked her with a dagger. When Km. Anjum Ara came to the rescue of her mother, she was also attacked by the appellant. In the meantime, on the hue and cry raised by the deceased and her daughters, the informant and his brothers were also awakened and they rushed up to the second floor and on reaching there, they saw the appellant was attacking the deceased with a dagger and had inflicted one injury on her arm in their presence and thereafter she had fallen down. When the informant tried to stop the appellant, he was also attacked by the appellant and in the process received injuries on his chest and arm. Although, Kalim Ullah, informant, caught hold of the accused-appellant but still the appellant managed to inflict injuries on the other brother of the informant Gulzar Ahmed @ Munna also, however, his brother did not let the appellant go free. The appellant also bit the nose of the informant with his teeth. Wasi Ullah (PW2), the third brother of the informant also received some injuries while holding the appellant. In the scuffle, the appellant also apart from the chest and arm received injuries on his arm and his eye-brows. The appellant, however, could not escape from the clutches of the informant and his brothers. The dagger, which he had used in the incident, was snatched from him by the informant and his brothers. Smt. Kaniz Fatima died on the spot. Kalim Ullah, the informant and his brother Wasi Ullah, P.W.2 brought the appellant to the police station and the blood-stained dagger was taken into custody by the police officials. The case against the appellant was registered. Fard of taking possession of the blood-stained dagger (Ex.Ka3), fard for taking blood-stained clothes of the complainant and his brother and fard for taking blood stained clothes of the appellant Mustaq Ahmed, were prepared at the police station by Head Constable Bharat Upadhyaya. Thereafter, the injured Km. The case against the appellant was registered. Fard of taking possession of the blood-stained dagger (Ex.Ka3), fard for taking blood-stained clothes of the complainant and his brother and fard for taking blood stained clothes of the appellant Mustaq Ahmed, were prepared at the police station by Head Constable Bharat Upadhyaya. Thereafter, the injured Km. Anjum Arah and Gulzar were also called from their residence and all the injured including the accused-appellant were sent to Moti Lal Nehru Hospital, Allahabad, for examination of their injuries. Their injuries were examined by Dr. Sunil Varma, P.W.9, who prepared their injury reports. Sub-Inspector Ram Singh Tiwari, P.W.8, the then SHO, Shahganj, Allahabad started the investigation. He reached the place of occurrence and conducted inquest over the dead-body of Kaniz Fatima and prepared the inquest report. He got the dead body sealed and sent for postmortem examination. He also recorded the statements of witnesses. He inspected a 60 wt. electric bulb, which had lit the place of occurrence and handed it over into the supurdagi of Kalim Ullah and prepared supurdagi memo (Ex.Ka21). The Investigating Officer prepared the recovery memo of blood-stained and plain pieces of cement (Ex.Ka19). He, after completing the investigation, submitted charge sheet against the accused-appellant. 4. The postmortem examination of the deceased Kaniz Fatima was done by Dr. Ramesh Chandra, PW5, who found as many as 7 ante mortem incised wounds on the deceased's body as a result of which, the upper lobe of left lung and spleen had been cut. In the opinion of PW5, the death was caused on account of shock and hemorrhage resulting from the injuries sustained before her death. 5. The prosecution, so as to bring home the charges, has examined the following witnesses who are nine in number : 1 Kalim Ullah (informant) 24.8.1983 PW1 2 Washi Ullah (injured) 24.8.1983 PW2 3 Km. Anjum Arah (injured) 24.8.1983 PW3 4 Nankoo Singh 29.8.1985 PW4 5 Dr. Ramesh Chandra 20.9.1985 PW5 6 Ramagya Chaubey 9.10.1985 PW6 7 H.C. Bharat Upadhyay 4.2.1986 PW7 8 S.I. Ram Singh Tiwari 14.5.1986 PW8 9 Dr. Sunil Verma 5.6.1986 PW9 6. Anjum Arah (injured) 24.8.1983 PW3 4 Nankoo Singh 29.8.1985 PW4 5 Dr. Ramesh Chandra 20.9.1985 PW5 6 Ramagya Chaubey 9.10.1985 PW6 7 H.C. Bharat Upadhyay 4.2.1986 PW7 8 S.I. Ram Singh Tiwari 14.5.1986 PW8 9 Dr. Sunil Verma 5.6.1986 PW9 6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence: 1 F.I.R. 21.12.1982 Ex.Ka-1 2 Recovery of memo of dagger 21.12.1982 Ex.Ka.2 3 Recovery memo of blood-stained cloth 21.12.1982 Ex.Ka.3 4 Recovery memo of blood-stained cloth 21.12.1982 Ex.Ka.4 5 Recovery memo & Supurdginama of Bulb 21.12.1982 Ex.Ka.5 6 Recovery memo of cloth 21.12.1982 Ex.Ka.10 7 Recovery memo of blood-stained and Plain Piece of Cement 21.12.1982 Ex.Ka.19 8 Injury Report of Mushtaq Ahmad 21.12.1982 Ex.Ka.22 9 Injury Report of Washi Ullah 21.12.1982 Ex.Ka.23 10 Injury Report of Iqbal Ahmad 21.12.1982 Ex.Ka.24 11 Injury Report of Anjum Arah 21.12.1982 Ex.Ka.25 12 Inquiry Report of Gulzar 21.12.1982 Ex.Ka.26 13 Post Mortem Report 21.12.1982 Ex.Ka.6 14 Report of Chemical Examiner Ex.Ka.27 15 Report of Chemical Examiner & Serologist 26.8.1983 Ex.Ka.28 16 Inquest Report Ex.Ka.12 17 Charge-sheet 'Mool' 8.3.1983 Ex.Ka21 18 Site Plan with Index 21.12.1982 Ex.Ka20 7. On the witnesses being examined and the prosecution having concluded its evidence, the accused-appellant was put questions under Section 313 Cr.P.C. but except pleading that he did not know anything and/or he has been falsely implicated, no material was placed by the accused. He took the plea that he was falsely implicated in the present case by the informant Kalim Ullah, who is his cousin brother, with mala fide intention of grabbing the appellant's share in the ancestral property as he was the sole heir to his father's property. The accused-appellant stated in his defence that the authors of the incident were two strangers. After having heard the noise, he was awakened and reached the eastern terrace of the informant's house, where he saw two unknown persons with daggers in their hands fighting with the informant, Kalim Ullah and his brothers, he intervened to rescue the informant's mother and his family members. He also stated that when the real assailants escaped from the place of occurrence and the accused-appellant was falsely implicated on account of enmity with the family of informant by concocting an absolutely false story. 8. He filed written statement as Paper No. 17A. He also stated that when the real assailants escaped from the place of occurrence and the accused-appellant was falsely implicated on account of enmity with the family of informant by concocting an absolutely false story. 8. He filed written statement as Paper No. 17A. However, he did not adduce any evidence in support of his defence. 9. The learned III-Additional Sessions Judge, after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record both oral and documentary proceeded to convict the accused-appellant under Sections 302 and 307 I.P.C. and awarded the aforesaid sentences to him. 10. Hence, this appeal. 11. Learned counsel for the accused-appellant has submitted that the learned trial court patently erred in convicting and sentencing the appellant on the basis of highly unreliable testimony of the four eye-witnesses produced during the trial, who were daughters and sons of the deceased and interested in ensuring the conviction of the appellant so that they may be able to grab his share in his ancestral house, which was partitioned about 18 years before. It has been further submitted that the forensic as well as medical evidence on record does not support the prosecution version that the dagger, which was recovered from the possession of the appellant was used by him in committing the crime in question. He lastly submitted that such being the state of evidence neither recorded the conviction of the appellant nor the sentences awarded to him can be sustained. 12. Per contra, learned A.G.A. Appearing for the State has submitted that there is no law that the evidence of relatives cannot be made the basis of conviction. The issue whether a conviction can be based on the evidence of relatives or other interested witnesses is no longer res integra and stands settled by a catena of decisions of Supreme Court. It is settled law that interested witnesses are not necessarily unreliable witness but the evidence of interested witnesses is to be scrutinized with care but cannot be rejected merely on the ground of being evidence of partisan witness. If on a perusal of their evidence, the Court is satisfied that the evidence is creditworthy, there is no bar in the Court relying on the said evidence. If on a perusal of their evidence, the Court is satisfied that the evidence is creditworthy, there is no bar in the Court relying on the said evidence. As far as the submission made by learned counsel for the appellant that the prosecution has failed to prove to connect the dagger with the crime in question by leading any reliable evidence, with which the appellant was caught at the crime-scene, is wholly misconceived. From the report of the forensic expert, it is proved that blood-stain was found on the dagger and as far as medical evidence is concerned, Dr. Sunil Verma, PW9 in his cross-examination has categorically deposed that the injuries found on the body of the deceased and the other injured could be caused by the said dagger in case the tip of its blade was not bent. He has further submitted that the prosecution case stands fully proved from the testimony of all the three witnesses produced during the trial. He also submitted that since the appellant has not disputed either the time or place of the occurrence and has also admitted his presence as well as that of the witnesses and the deceased at the place of occurrence and his version of occurrence having been disbelieved by the trial court, no fault can be found with the conviction of the appellant recorded by the court-below. This appeal lacks merit and is liable to be dismissed. 13. We have heard Shri Anil Srivastava, Advocate, assisted by Shri Sayed Ashraf Ali Warsi, learned counsel for the appellant and learned A.G.A. for the State-respondent and perused the lower court record. 14. The short point involved in this case is whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts or not. Record shows that the incident had taken place on 21.12.1982 at about 3:45 a.m. in the house of Kalim Ullah, informant (PW1) situated in Shahganj, District Allahabad, in which dagger injuries were inflicted by the accused-appellant upon Smt. Kaniz Fatima (deceased), the informant-Kalim Ulla (PW1), Washi Ullah (PW2), Km. Anjum Arah (PW3) and the appellant had also received injuries in the incident. The appellant was apprehended on the spot with the crime-weapon and taken to the police station where the dagger was taken into custody by the police officials and its recovery memo was also prepared. Anjum Arah (PW3) and the appellant had also received injuries in the incident. The appellant was apprehended on the spot with the crime-weapon and taken to the police station where the dagger was taken into custody by the police officials and its recovery memo was also prepared. As a result of dagger injuries inflicted upon Smt. Kaniz Fatima, she died on the spot. The accused-appellant has admitted his presence as well as that of the deceased and the other witnesses at the place and time of the occurrence. His only plea is that he was not the author of the injuries received by the deceased as also the other injured. According to him, two unknown persons had forcibly entered into the house of the first informant in the intervening night of 20/21.12.1982 at about 3:45 a.m. Upon hearing the hue and cry of Smt. Kaniz Fatima (deceased) and her three daughters, he had scaled over the partition wall and entered into the portion of the informant's house with the intention of saving the deceased and her daughters. On reaching there, he found that two unknown persons were fighting with the informant and his other family members in order to save the informant and his family members, he intervened and also received injuries in the incident, in which the deceased, the informant, his brother-Washi Ullah (PW2) and Gulzar had also received injuries. However, when they failed to apprehend the real assailants, who somehow managed to escape from the place of occurrence, the informant Kalim Ullah falsely implicated the appellant in the present case. 15. On the perusal of the evidence on record, we find that Kalim Ullah (PW1) in his examination-in-chief has fully supported the prosecution case as narrated by him in the FIR. The other prosecution witnesses of fact have fully corroborated the evidence of Kalim Ullah (PW1) on all material points relating to the incident, namely, the time, place and manner of assault as well as identity of perpetrator of the crime. Although, the witnesses of fact examined by the prosecution have been subjected to long drawn cross-examination by the defence counsel but he failed to elicit anything out of them, which may even remotely persuade us to treat their evidence as untrustworthy or unreliable. Although, the witnesses of fact examined by the prosecution have been subjected to long drawn cross-examination by the defence counsel but he failed to elicit anything out of them, which may even remotely persuade us to treat their evidence as untrustworthy or unreliable. Suggestions given to them by the defence counsel that the author of the injuries received by the deceased and other injured as also the accused-appellant was not the appellant but the two strangers, who had forcibly managed to enter in the house of Kalim Ullah, P.W.1, were denied by him. It is further noteworthy that the appellant failed to lead any oral or documentary evidence for establishing his defence. The next ground on which the appellant has challenged his conviction is that the dagger by which according to the prosecution version the appellant had inflicted injuries on the deceased as well as the other injured and with which he was apprehended on the spot and taken to the police station where the dagger was deposited and its recovery memo was prepared and which was produced during the trial as material Ex.ka1 could not be connected by the prosecution with the commission of the crime by leading any cogent evidence is concerned, the same is also without any merit. The report of the chemical examiner dated 26.8.1983, which has been brought on record as Ex.ka28 clearly shows that blood was found on the deceased, which had disintegrated. As far as the plea of the defence that the injuries found on the body of the deceased and other injured persons could not have been caused by the dagger, which was recovered from the possession of the appellant on the spot, which finds full support from the medical evidence on record is concerned, the same is also without any force. It would be useful to have a glance at the cross-examination of Dr. Ramesh Chandra, PW5, who had conducted the postmortem of Kaniz Fatima, the deceased and prepared her injury report and also at the cross-examination of Dr. Sunil Verma, PW9, who had examined the injuries of Kalim Ullah, Washi Ulla, Km. It would be useful to have a glance at the cross-examination of Dr. Ramesh Chandra, PW5, who had conducted the postmortem of Kaniz Fatima, the deceased and prepared her injury report and also at the cross-examination of Dr. Sunil Verma, PW9, who had examined the injuries of Kalim Ullah, Washi Ulla, Km. Anjum Ara and Gulzar Ahmad, in which they have deposed in unison that the injuries could not be caused by the dagger material (Ex.ka1) if the tip of its blade was not bent but if the tip of the blade of the dagger was not bent then the injuries found on the body of the deceased and the injured could be caused by the dagger (Ex.ka1). 16. Upon perusal of the evidence of Dr. Ramesh Chandra (PW5) and Dr. Sunil Verma (PW9), we cannot draw an absolute inference that the injuries inflicted on the body of the deceased and those sustained by injured could not have been caused by the dagger recovered from the possession of the accused-appellant. 17. The evidence on record shows that a scuffle had taken place between the injured and the appellant and the possibility of tip of the blade of the dagger being bent upon being struck against a hard surface or object during the scuffle between the parties and bending the tip of its blade in the process cannot be ruled out. 18. Now coming to the last ground of challenge to the impugned judgment and order by learned counsel for the appellant that the learned trial judge erred in relying upon the testimony of Kalim Ullah (PW1), Washi Ullah (PW2) and Km. Anjum Arah (PW3) for the purpose of holding the appellant guilty as they were closely related to the deceased is concerned, the same does not hold any good ground. 19. In this regard in Hemraj and others Vs. State of Haryana, (2005) 52 AllCriC 258, the Hon'ble Apex Court has held that merely non examination of independent witness by itself may not give rise to adverse inference against prosecution. 19. In this regard in Hemraj and others Vs. State of Haryana, (2005) 52 AllCriC 258, the Hon'ble Apex Court has held that merely non examination of independent witness by itself may not give rise to adverse inference against prosecution. It is only when the evidence of alleged eye witness raises serious doubt on the point of the presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance and for reaching to this conclusion the Hon'ble Apex Court has relied upon a case law reported in Takhaji Hiraji v. Thakore Kubersing Chamansing and others, (2001) 6 SCC 145 , in which the Hon'ble Apex Court has held as under :- ".............if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinize the worth of the evidence adduced. The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein." 20. In Thoti Manohar vs. State of A.P., (2012) 7 SCC 723 , it has recently been observed by Hon'ble Supreme Court that in case the occurrence partly takes place inside the house and partly outside it, the family members and the close relatives are bound to be the natural witnesses. They cannot be said to be chance witnesses but they are most natural witnesses. They cannot be said to be chance witnesses but they are most natural witnesses. Further it has also been observed that the minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. 21. Apart from this, learned A.G.A. has further relied upon the case law of Shanmugam and another Vs. State, (2013) 12 SCC 765 , wherein the Hon'ble Apex Court has held in paragraphs 12 and 13 as under :- "12. As observed by this Court in Raju case, (2012) 12 SCC 701 : AIR 2013 SC 983 ] , far more important than categorisation of witnesses is the question of appreciation of their evidence. The essence of any such appreciation is to determine whether the deposition of the witness to the incident is truthful hence acceptable. While doing so, the court can assume that a related witness would not ordinarily shield the real offender to falsely implicate an innocent person. In cases where the witness was inimically disposed towards the accused, the courts have no doubt at times noticed a tendency to implicate an innocent person also, but before the court can reject the deposition of such a witness the accused must lay a foundation for the argument that his false implication springs from such enmity. The mere fact that the witness was related to the accused does not provide that foundation. It may on the contrary be a circumstance for the court to believe that the version of the witness is truthful on the simple logic that such a witness would not screen the real culprit to falsely implicate an innocent. Suffice it to say that the process of evaluation of evidence of witnesses whether they are partisan or interested (assuming there is a difference between the two) is to be undertaken in the facts of each case having regard to ordinary human conduct, prejudices and predilections. 22. The approach, which the court ought to adopt in such matters has been examined by this Court in several cases, reference to which is unnecessary except a few that should suffice. In Dalip Singh v. State of Punjab, (1953) AIR SC 364 : 1953 Cri LJ 1465 : 1954 SCR 145 ] this Court observed (AIR p. 366, para 26) : "26. In Dalip Singh v. State of Punjab, (1953) AIR SC 364 : 1953 Cri LJ 1465 : 1954 SCR 145 ] this Court observed (AIR p. 366, para 26) : "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 23. It is also a settled principle of law as held in the case of Shanmugam (Supra) that close relatives will not spare real culprit and will implicate any innocent and outside person. The accused-appellant is cousin of Kalim Ullah, the first informant and there is no occasion for the witness PW 1, PW 2 and PW 3 to implicate him falsely in the said case. So, to our view merely because independent witnesses have not been produced, entire prosecution story cannot be thrown away and the trial court has rightly recorded the finding regarding complicity of the appellant in the crime and concluded that the prosecution has succeeded to prove the guilt of appellant beyond the shadow of all reasonable doubts. 24. So, to our view merely because independent witnesses have not been produced, entire prosecution story cannot be thrown away and the trial court has rightly recorded the finding regarding complicity of the appellant in the crime and concluded that the prosecution has succeeded to prove the guilt of appellant beyond the shadow of all reasonable doubts. 24. In view of above discussion, in our opinion, there is nothing on record to show that appellant has been falsely implicated in this case due to any enmity and hence the learned trial court has rightly taken a pragmatic view of the matter and after discussing the entire material on record has rightly held that the prosecution has succeeded to prove the guilt of accused-appellant beyond the shadow of reasonable doubt. 25. We, accordingly, concur with the findings recorded by the trial court and we are of the view that this appeal has got no force and is liable to be dismissed. Accordingly, the appeal is hereby dismissed. 26. Since, Mushtaq Ahmad, the accused-appellant, is in jail, it would be proper that copy of this judgment be served upon the appellant in jail for further course of action.