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2019 DIGILAW 208 (ALL)

Israruddin Khan v. State of U. P.

2019-01-25

PANKAJ NAQVI, RAJENDRA KUMAR

body2019
JUDGMENT : Rajendra Kumar, J. This criminal appeal is preferred against the judgment and order dated 4/5.10.2002, passed by the Sessions Judge, Mau in S.T. No.167/2001 (Case Crime No.163 of 2001), convicting the appellant under Section 302 IPC for life imprisonment. The prosecution case lies in a narrow compass. Ms. Shagufta, sister of P.W.-1/informant was married to the appellant - accused of the same village. On account of a marital discord, accused divorced his wife. But he took back his wife prior to 2 months of occurrence on the pretext that the divorce was under parental pressure, he had not desired the same. On the fateful morning, i.e., 22.3.2001 when P.W.-1 woke up on his terrace, he saw smoke billowing from the house of the accused around 7 AM wherein he also saw the accused on his terrace. P.W.-1 rushed to inform his parents, sister and one Niyamtulla (P.W.-3), went to the house of the accused to forcibly break open the door to find that the accused was setting the dead body of his wife on fire. 2. On above allegations, a written report (Ext. Ka-1) was scribed by Shashi Kumar Rai at the dictation of P.W.-1 which became the basis for registering an FIR (Ext. Ka13), as Case Crime No.163/2001 under Section 302/201 IPC against the appellant at 9.30 AM on 22.3.2001 at the P.S concerned at a distance of 9 kms. 3. The trial court charged the accused under Section 302/201 IPC which he denied and claimed false implication. 4. The trial court after analyzing the evidence, was of the view that burnt and unburnt body parts of the deceased were recovered from the house of accused corroborated with the inquest and the autopsy compatible with the oral account, established that it was the accused who committed the murder of his wife and burnt her dead body, convicted the appellant as above. 5. We have heard Sri Ambrish Kumar, the learned Amicus and Sri A.N. Mulla, the learned A.G.A. 6. The learned Amicus submitted that the motive is week, P.W.'s 1 and 4 are closely related and interested witnesses, their testimony suffers from inherent contradictions on material aspect, FIR is ante-timed as discernible from the testimony of P.W.-1, there is no eye-witness, judgment of trial court is presumptuous, liable to be set aside. 7. The learned Amicus submitted that the motive is week, P.W.'s 1 and 4 are closely related and interested witnesses, their testimony suffers from inherent contradictions on material aspect, FIR is ante-timed as discernible from the testimony of P.W.-1, there is no eye-witness, judgment of trial court is presumptuous, liable to be set aside. 7. Per contra, the learned A.G.A submitted that the occurrence took place inside the house of the accused, who failed to explain the circumstances leading to the homicidal death of his wife, appeal is bereft of merit, liable to be dismissed. 8. P.W.-1 is the brother of the victim, whose house is in the same village and the vicinity as that of accused-appellant. P.W.-1 alleged a marital discord between her sister (victim) and the accused - appellant (husband) as the latter had divorced his wife but had taken her back prior to two months of occurrence, on the pretext that divorce was under parental pressure, he never desired it. P.W.-1 at 7 AM on the fateful morning, noticed smoke billowing from the house (two-floor-house) of the accused who too was on his terrace. The distance between the two houses is 100 yards. P.W.-1 went along with others to the terrace of the said house, where he did not speak to anyone. He came down, went straight to his house. The Gram Pradhan intimated the police telephonically which arrived within half an hour, i.e., at 10.30 AM to remain at the house of accused for almost 2 - 2 1/2 hrs. The police took P.W.-1 to the P.S wherein he reached at around 3.30 PM, remained there for almost half an hour followed by others, thereafter, report came to be lodged. The above circumstances give an impression that the time of lodging of the FIR, at 9.30 AM is doubtful. The Apex Court in Anand Mohan vs. State of Bihar, (2012) 7 SCC 225 has held that merely because timing of the FIR and of the occurrence is under doubt, is not sufficient to disbelieve the prosecution case in its entirety, as its implications will have to be examined in the light of surrounding evidence with circumspection. 9. The Apex Court in Anand Mohan vs. State of Bihar, (2012) 7 SCC 225 has held that merely because timing of the FIR and of the occurrence is under doubt, is not sufficient to disbelieve the prosecution case in its entirety, as its implications will have to be examined in the light of surrounding evidence with circumspection. 9. Learned counsel for the appellant argued that the conduct of P.W.-1 in going to the house of the accused along with others and then returning to his house, without speaking to anyone is not only suspicious but also unbecoming of a prudent person. 10. The Apex Court in Tehseen Poonawala vs. Union of India in Writ Petition (Civil) No.19/2018, decided on 19.4.2018, held that: "To attribute motives to his colleagues who were with him and took immediate steps to shift him to a hospital nearby is absurd, if not motivated. In hindsight, it is easy to criticise actions which are taken by human beings when faced with an emergency. It is easy for an observer sitting in an arm-chair at a distant point in time to assert that wisdom lay in an alternate course of action. That can never be the test for judging human behaviour." 11. We in the light of above legal position, are of the view that no abnormality could be attached to the aforesaid behaviour of P.W-1. 12. The inquest (Ex. Ka-2) of the deceased (burnt body) was conducted in the house of the accused which is in consonance with the oral account and reflected in the site plan (Exts. Ka-10 & 11). 13. The accused under Section 313 Cr.P.C and in particular to Question no.2, which is as under iz'u ua0 2& vfHk;kstu lk{; gS fd fnukad 21@22&3&2001 dh jkr djhc 2 cts cgn xzke Qrsgiqj rky ujtk Fkkuk dksikxat tuin eÅ cgn xzke Qrsgiqj fLFkr vius edku esa viuh iRuh lqxqQ~rk dh e`R;q dkfjr dj mlds 'ko dks tyk;k] blds ckjs esa vkidks D;k dguk gS \ mRrj& xyr gSA gives no explanation whatsoever, rather a bare denial to the presence of the burnt body in his house. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of a person, the burden to prove that fact is on that person. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of a person, the burden to prove that fact is on that person. How and under what circumstance the burnt body of the victim was found inside the house of the accused is for him to explain, which he miserably failed? 14. P.W.-3 is an independent witness of the same village as that of accused, a witness to the inquest (Ext. Ka-2) prepared at the scene who stated that the inquest was conducted at the house of accused at about 10-11 AM on the fateful day. He also stated that the I.O sealed the burnt body part from the house of accused. 15. P.W.-4 is the younger sister of the deceased. She too supported the prosecution case. Learned counsel for the appellant submitted that there is material contradiction between testimony of P.W-4 (sister of victim) and P.W.-1 (brother of the victim). There appears to be some contradiction as to who accompanied P.W.-1 to terrace of the house of accused. P.W.-1 alleged that he went along with P.W.-4 and other co-villagers whereas P.W.-4 alleged that apart from her only P.W.-1 was present. This is not a material contradiction as presence of P.W-1 and 4 is established in the house of the accused. P.W.-4 further alleged that P.W.-1 (informant) had not visited the P.S on the day of occurrence unlike the contra stand taken by P.W.-1. We have already dealt above that merely because FIR is under suspect, that by itself could not be a ground to disbelieve the prosecution story as all the incriminating circumstances will have to be considered in totality. 16. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shot comings are to be ignored. Reference may be made to a recent decision of the Apex Court (3 judges) in Criminal Appeal No.56/2018 (Smt. Shamim vs. State of NCT of Delhi), decided on 19.9.2018). 17. P.W.-5 is the medico who conducted the autopsy (Ext. Ka-3) of the deceased on 23.3.2001 at about 4 PM. Reference may be made to a recent decision of the Apex Court (3 judges) in Criminal Appeal No.56/2018 (Smt. Shamim vs. State of NCT of Delhi), decided on 19.9.2018). 17. P.W.-5 is the medico who conducted the autopsy (Ext. Ka-3) of the deceased on 23.3.2001 at about 4 PM. He made external examination of the burnt body and found the following parts of human body visible: 1. Left side forehead and upper eyelid. 2. Right hand palm and dorsal aspect along with all five fingers. 3. Right femur bone 2/3rd. 4. Occipetal bone visible. 5. Vertibral column charred and attached with trunk from cervical to sacrum 6. Remaining part of the body is badly charred so could not be identified. 18. The doctor stated that the body was very badly burnt and was not in a position to opine the cause of the death. The medico was not subjected to any cross-examination on the circumstances leading to the death of the victim. He admitted that list of enclosures which accompanied the dead body of the victim included a copy of check FIR and the inquest. 19. P.W.-6 is the Investigating Officer who was posted on 22.3.2001 as the SHO of the P.S concerned. He stated that the FIR was registered in his presence at 9.30 AM. He after entering the contents of the FIR in the case diary, made inquiries from P.W.-1 (informant). He then proceeded along with the informant and the relevant form of the inquest to the scene to conduct the inquest (Ext. Ka-2) and record the statements of the inquest witnesses. He got prepared police papers under the signatures of S.I. Ramanand which were authenticated by him. The body was dispatched along with constables Sher Pal and Ram Chandra Yadav for autopsy. He prepared the site plan (Ext. Ka-10 & 11) and arrested the accused -appellant inside his house and at his pointing out, recovered the offensive weapon (Daav) from his house beneath the table. A memo of the offensive weapon (Ext. Ka-8) was prepared. He picked up incriminating materials, such as, washed but blood-stained vest of the accused (Ext. Ka-9). He prepared the site plan (Ext. Ka-10) of the spot where accused murdered his wife (victim) at the pointing out of the accused. The charge sheet was filed by S.I Namwar Singh with whose handwriting P.W.-6 was familiar. Ka-8) was prepared. He picked up incriminating materials, such as, washed but blood-stained vest of the accused (Ext. Ka-9). He prepared the site plan (Ext. Ka-10) of the spot where accused murdered his wife (victim) at the pointing out of the accused. The charge sheet was filed by S.I Namwar Singh with whose handwriting P.W.-6 was familiar. P.W.-6 remained firm during cross-examination with regard to the time of lodging the FIR at 9.30 AM, also corroborated with his departure from the police station at 9.30 AM, duly entered in the G.D (Report no.22). He collected burnt body parts of the victim from the house of accused, thereafter, the ones which were not completely burnt separately. He admitted that while carrying out the above exercise, crowd had gathered as a result of which he could not record the time of arrest of accused from his house. P.W.-6 was also summoned as C.W.-1 who maintained the same stand as regards the arrest of the accused and recovery of the offensive weapon (dao) beneath the table in the house of the accused. 20. We after evaluating the evidence of P.W.-6, do not find any dichotomy so as to give rise to some doubt as regards time and the place of the occurrence, coupled with the arrest of the accused and the recovery of the offensive weapon from the house of accused. Thus, once the place of occurrence is sufficiently established, suspicious circumstances, if any, relating to lodging of the FIR, will have to be ignored, in view of the decision of the Apex Court in Anand Mohan (supra). 21. The defence raised an alibi through D.W.-1 alleging that the accused was a contractor along with him for the last 5 months and was living with him for the last 15 days. D.W.-1 received a telephonic call at 7 AM on 22.3.2001, intimating the death of the wife of the accused, thereafter, he informed accused who went to his house. 22. We are of the view that P.W.-1 and 4 firmly established the presence of accused inside his house, corroborated with his arrest from the house by P.W.-6. Secondly, it could not be a case where an outsider burnt the body of victim as there was no sign of forcible entry whereas according to P.W.-1 it was he who broke open the door. Secondly, it could not be a case where an outsider burnt the body of victim as there was no sign of forcible entry whereas according to P.W.-1 it was he who broke open the door. Moreover, if an outsider had murdered the victim inside the house then why would he burn the body, the defence failed to offer any explanation? Thus, we do not find D.W.-1 a reliable witness who is a nephew of the accused and are of the view that the prosecution story is wholly credible. 23. The prosecution has successfully established its the case beyond a shadow of doubt, appeal is bereft of merit, liable to be dismissed. 24. The appeal is dismissed. The appellant is reported to be in jail. However, in the event the appellant approaches the competent authority under Section 433 of the Code, same shall be considered as expeditiously as possible. 25. Office is directed to forthwith communicate this order to the Sessions Judge concerned so as to enable it to communicate the same to the Jail Superintendent for apprising the appellant. 26. Compliance report be submitted to this Court within a month. 27. The Court records appreciation for services rendered by Mr. Ambrish Kumar, the learned Amicus and directs the Registrar General to tender him Rs.15,000/- (Rs. Fifteen thousand only).