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2022 DIGILAW 313 (UTT)

Muntaz @ Lala v. State of Uttarakhand

2022-09-21

ALOK KUMAR VERMA, SANJAYA KUMAR MISHRA

body2022
JUDGMENT : Sanjaya Kumar Mishra, J. By filing this bunch of appeals, the appellants take exception to their conviction under Sections 147, 148, 302, 307/149 of the Indian Penal Code, 1860 and under Section 25(1b)(a) with respect to appellant Muntaz @ Lala. They have been sentenced to undergo a rigorous imprisonment for the offences under Sections 307/149 and under Section 25 (1)(b) (a) for various length of period. Highest conviction that has been awarded to each of the appellants is under section 302 read with 149 of the IPC and they have been sentenced to undergo imprisonment for life and to pay Rs.5,000/-, each, in default, a general default sentence has been awarded for undergoing imprisonment for six months. 2. Sans unnecessary details, the case of the prosecution is that on 15.04.2006 at about 10:00 PM Gulfam, the deceased was returning from the house of his maternal uncle Abdul Malik. When he was at Mohalla Sainipura, Haridwar, in front of the Mosque, the appellants were concealing themselves and on seeing Gulfam they open fire at the deceased. As a result of which he sustained severe injuries and died at the spot. The occurrence was witnessed by the informant, who happens to be his brother, and thereafter he lodged a report before the Manglaur police station, in the District of Haridwar. As a result of such FIR, Crime Case No. 133 of 2006 was registered by the S.H.O and the investigation of the case was taken up. In course of investigation the Investigating Officer examined the complainant; recorded his statement; he also recorded the statements of other eye witnesses, held inquest on the dead body of the deceased; and for the post mortem examination, made seizure and injuries apparent on the dead body of the deceased, as well as, the blood stains are inspected on the spot. He sent these materials for chemical and serological examinations to the State Forensic Science Laboratory (SFSL), Dehradun. He in course of the investigation arrested the persons and on the pointing of Sahzad, one weapon of offence, being a country made pistol, was recovered, which is also been produced before the learned trial judge. 3. Upon completion of investigation the Investigating Officer has submitted charge sheet against the appellant. In order to prove its case the prosecution has examined, in total, ten witnesses. 3. Upon completion of investigation the Investigating Officer has submitted charge sheet against the appellant. In order to prove its case the prosecution has examined, in total, ten witnesses. PW1 Ahsan S/o Surfin Ahmadin the informant of the case - he is also an eyewitness of the occurrence. PW7 Matloob S/o Mohd. Umar, the resident of Mohalla Sainipur, Manglaur is also an eyewitness, but he is not related to the deceased or the informant in any way. PW2 Arshida @ Neha w/o the deceased Gulfam, PW3 Rafik S/o Abdul Karim, father of the deceased and PW8 Nazneen D/o the deceased, a child witness aged about 13 years at the time of the examination are the eyewitnesses of the occurrence. PW4 Dr. Akhilesh Aggarwal has conducted the post-mortem examination of the dead body of the deceased. Rest of the witnesses are formal or official witnesses. PW10 Shri Jaswant Singh, is the Investigating Officer. 4. The defense in this case took the plea of simple denial and false accusation in their statements recorded under Section 313 of the Code. However, the appellant Sahzad has also taken the plea of alibi and has examined DW1 Imran to prove that he was not present in Sainipur Mohalla and has gone to Jaipur, Rajasthan for observing Jamaat. 5. The learned trial Judge taking into consideration the evidences of four eye witnesses and the medical evidence and also the attending circumstances came to the conclusion that the prosecution has proved its case beyond all reasonable doubts and, therefore, proceeded to convict them as stated above. 6. In course of hearing, learned counsels for the appellants, Mr. B.D. Pande and Mrs. Neetu Singh would submit that the prosecution case should be viewed with suspicion on the ground that though it is the very case of the prosecution that all the six persons fired at the deceased as a result of which he sustained number of injuries, only one weapon of offence, being a country made pistol, was recovered from Mumtaz, and no weapon of offence were recovered from any other appellants. They would also submit before this Court that the evidences of these eye-witnesses cannot be considered to be establishing the prosecution case as PW1, PW2, PW3 and PW8 are related to the deceased and, therefore, partisan witnesses. They would also submit before this Court that the evidences of these eye-witnesses cannot be considered to be establishing the prosecution case as PW1, PW2, PW3 and PW8 are related to the deceased and, therefore, partisan witnesses. As far as the injured witnesses are concerned, the prosecution has not established that they sustained injuries as the medical examination reports of these persons i.e. PW1, PW2, PW3 and PW8, have not been exhibited/proved by the prosecution. However it is brought to our notice that an application filed by the complainant, is pending before us for exhibiting those documents. 7. We are of the view that at this belated stage, after expiry of almost 10 years of filing of an appeal against conviction, the application under Section 391 of the Code cannot be entertained and it will do injustice to the appellants. In that view of the matter, we are not inclined to accept the additional evidence at this stage. 8. The learned Deputy Advocate General Mr. Amit Bhatt, would submit that the prosecution case is established beyond reasonable doubt in view of the fact that all the eye witnesses have supported the case of the prosecution and not a single contradiction has been brought out from their mouth in the cross examination to discredit their evidence. He would further submit that only because four of the eye witnesses are related to the deceased, their evidence cannot be thrown out of consideration especially in view of the fact that the eyewitnesses shall not depose falsehood to implicate some innocent person thereby shielding the real culprits. He would further submit that the objective determination of the spot by the investigating agency as well as finding of blood from the spot would also indicate that the investigation of the case was in proper line and there is no reason to throw out the case of the prosecution. It is also submitted by learned counsel for the State that the medical evidence in this case supports the case of the prosecution in the sense that the doctor examined as an expert has categorically found that death of the deceased was due to injuries, which has been caused by fire arms. The learned counsel for the complainant would support the learned Deputy Advocate General and would submit that the appeal should be dismissed. 9. The learned counsel for the complainant would support the learned Deputy Advocate General and would submit that the appeal should be dismissed. 9. In a case where the major offence is culpable homicide amounting to murder, the first factor that should be taken into consideration is that whether the prosecution has established that the death of the deceased was homicide in nature or not? In this case the dead body of the deceased was put to post-mortem examination and there was no dispute regarding the identity of the deceased before the doctor conducting the post-mortem examination. Dr. Akhilesh Aggarwal examined as PW4 have stated on oath that on 16.06.2004 he was the senior doctor of HMG District Hospital, Haridwar. On that day he conducted post-mortem examination on the dead body of the deceased at 12.30 PM. The dead body was identified by the CP Baldev Singh and Sushil Kumar. In course of post-mortem examination he found the following injuries: - pksV la[;k 01& QVk gqvk ?kko ftldh eki 52 lsaVhehVj x 4-6 lsaVhehVj efLr"d dh xqgk rd xgjk tks psgjs ds ck;ha vksj ck;sa uFkqus ls 0-5 lsaVhehVj ckgj rFkk uhps rFkk ck;sa dku ls 6 lsaVhehVj lkeus dh vksj esUMhcqy rFkk nksuska nk;ha o ck;ha eSfDly cksu VwVh gqbZ Fkh ?kko ds pkjksa vksj dkykiu FkkA pksV la[;k 02& QVk gqvk ?kko ftldh eki 3-6 lsaVhehVj x 3-2 lsaVhehVj x isV dh xqgk rd xgjk tks ihB ij ck;ha vksj dh Iliac crest 13 lsaVhehVj mij Fkk rFkk chp dh ykbZu ls 7 lsaVhehVj nwjh ij Fkk rFkk ?kko ds pkjksa vksj dkykiu FkkA pksV la[;k 03& vusd QVs gq, ?kko o dqy la[;k 07 ftudh eki 4 lsaVhehVj x 4 lsaVhehVj Ropk xgjk tks ck;sa gkFk rFkk ck;ha chp dh vaxqyh o ck;ha Index Finger ds ihNs dh vksj 9 lsaVhehVj x 7 lsaVhehVj ds {ks= esa FksA ?kko ds pkjksa vksj dkykiu FkkA pksV la[;k 04& vusd f?kls gq, ?kko 23 lsaVhehVj x 16 lsaVhehVj ds {ks= esa tks isV o lhus dh ck;ha ckgjh Hkkx ij FksA ck;ha Iliac crest ls 7 lsaVhehVj mij Fks dqy la[;k 6 Fkh rFkk v.Mkdkj esa Fks rFkk mudh eki 0-5 lsaVhehVj x 04 lsaVhehVj ¼lcls cM+s½ ls ysdj 0-4 lsaVhehVj 0-3 lsaVhehVj ij Fks rFkk dkykiu FkkA 10. The post-mortem report prepared, which has been exhibited as Exhibit ka 3 (Annexure-3) shows that during the post-mortem examination he has found the four vital injuries. Though these witnesses stated that post mortem was carried out on 16.06.2004, in fact the post mortem examination report was itself drawn on 16.04.2006. It appears that due to typographical error, such discrepancy is crept into the deposition and, therefore, it cannot be given much weightage too, especially when the defense has not cross-examined this particular aspect of the case. 11. Thus, it is clear that the deceased has sustained four injuries which according to the doctor could have been caused by fire arm. Thus, it is also clear that the deceased died because of coma and shock resulting from excessive bleeding and hypovolemic shock because of the fire arm injuries. He has further stated in his cross-examination before the court that he found 75 pellets from the dead body of the deceased. Thus, it is clear from the evidence led by the prosecution that the death of the deceased was definitely homicidal and has been caused by the fire arms. 12. Since, the learned counsel appearing for the appellants would submit that the eye witnesses PW1, 2, 3 and 8 being related witnesses their evidence should not be given much weightage too, we examined the evidence of PW7, at the outset. He happens to be a resident of the said mohalla where the occurrence took place. PW7 has stated on oath that on 15.04.2006 night at about 10.00 PM when he came out of the masjid situated in their mohalla after reading Namaz he found the deceased Gulfam and his wife Arshida and two children along with Nazneen were returning from their maternal uncle’s house and were proceeding to their own house. The moment they reach in front of Sainipur Masjid, the appellants, who are standing there prior to that namely Niyaz, Muntaz @ Lala, Shakib, Rashid Shahzad Mustaq and two others, standing thereon armed with country made pistol, declared that they should kill Gulfam and then fired at him. Mustaq @ Lala, the appellant Shakib Muntaz hit Rafiq, Shahzad fired at Nazneen and Sonia. He saw the entire incident because of the street light. This witness has been cross-examined at length. Mustaq @ Lala, the appellant Shakib Muntaz hit Rafiq, Shahzad fired at Nazneen and Sonia. He saw the entire incident because of the street light. This witness has been cross-examined at length. In cross-examination he has stated that he has come to the court to depose against the accused persons and he could not say if the deceased was related to the appellants; but he further stated that he is not related to the deceased but he knew the deceased. Though cross-examined at length nothing substantial has been brought out from the mouth of this witness and no contradiction has been pointed out by the defense with respect to his earlier statement recorded under Section 161 of the Code of Criminal Procedure. Thus, it is clear that the independent witness PW7 has categorically implicated all the appellants in the incident of shooting of the deceased by them. 13. As far as other eye witnesses are concerned i.e. PW1, PW2, PW3 and PW8, it is not necessary to discuss their evidence in detail as the learned counsel appearing for all the appellants do not dispute that they have implicated the appellant in the commission of the crime, but they stated that they should not be believed in view of the fact that they are related to the deceased and are, therefore, partisan witness. 14. It is settled principle of law that a witness cannot be disbelieved only on the ground that he is related to the deceased. In fact, being a relation witness makes the witness all the more important as it is not expected that a relation will shield the real culprit and implicate some innocent person in the commission of crime. It is also trite law laid down by the Hon’ble Supreme Court that in case there is an allegation that they may be implicating the appellants by deposing false-hood then their evidence should be carefully assessed and appreciated. However, in this case as it is admitted by both the learned counsel appearing for the appellants as well as the learned Deputy Advocate General that all these witnesses have implicated the appellants in the commission of the crime and there is no contradiction in their statement either with respect to the previous statement i.e. FIR or the statement recorded under Section 161 of the Code of Criminal Procedure. There is no need to reiterate the evidences of these witnesses in the judgment. We rely upon certain judgments of the Hon’ble Supreme Court, wherein, the Hon’ble Supreme Court has laid down the principle that should be applicable to cases where the eye witnesses are relation of the deceased. 15. In the case of Ashok Kumar Chaudhary vs. State of Bihar reported in (2008) 12 SC 173 in paragraph-7 the Hon’ble Supreme Court has held that in so far as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled that though the court has to scrutinize such evidence with greater care and caution but such evidences cannot be discarded on the sole ground of their interest in prosecution. The relationship per se does not affect the credibility of a witness. Merely because, the Hon’ble Supreme Court further held that, a witness happens to be victim of the crime, he/she cannot be characterized as an “interested” witness. It is trite that the term “interested” postulates that the person concerned has some direct and indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive. 16. In the case of Karan Singh and Others vs. State of Madhya Pradesh reported in (2003) 12 SCC 587 the Hon’ble Supreme Court has further held that the evidence of injured witness has greater evidentiary value, unless compelling reasons exists, their statement are not to be discarded lightly. 17. Applying these principles to the case in hand, this court is of the opinion that it is admitted by the learned counsel appearing for the appellants that all the eye witnesses have implicated the appellants in the commission of crime. In fact, they have contributed specific role to each of the appellants. The learned counsel do not dispute that these witnesses have implicated the appellants and they have also admitted in course of their arguments that though these witnesses have been cross-examined at length, not a single contradiction has been brought out by the defense in their favour. 18. In fact, they have contributed specific role to each of the appellants. The learned counsel do not dispute that these witnesses have implicated the appellants and they have also admitted in course of their arguments that though these witnesses have been cross-examined at length, not a single contradiction has been brought out by the defense in their favour. 18. In that view of the matter, we are of the opinion that the evidences of these witnesses, which is also supported by the narration of independent eye witness PW7 Matloob and the medical evidence, there is hardly a scope of interference in this case. 19. The learned counsel appearing for the appellants, Mr. B.D. Pande and Mrs. Neetu Singh, would however very emphatically argued that since the Investigating Officer could not recover any of the weapons from the other appellants except the appellant Muntaz, who has also been convicted for the offence under Section 25(1)(b), the case of the prosecution should be disbelieved. 20. It is well settled principle of law that defect in investigation by itself is not a ground for acquittal. The Hon’ble Supreme Court in several cases has held that it is a guiding principle that investigation is not the sole area judicial scrutiny in a criminal trial, the conclusion of the court in criminal cases cannot be allowed to depend solely on the probity of the investigation. The Hon’ble Supreme Court further held in several cases that it is settled that even if the investigation is illegal and suspicious, the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to a level the Investigating Officer ruling the roost. The court must have predominance and pre-eminence over the action in criminal trial taken by the Investigating Officers. Criminal justice should not be made a casualty for the wrongs committed by the Investigating Officer in the case. 21. In other words, if the court is convinced that the testimonies of the witnesses to the occurrence are true, the court is free to act on it albeit the Investigation Officer’s suspicious role in the case. Criminal justice should not be made a casualty for the wrongs committed by the Investigating Officer in the case. 21. In other words, if the court is convinced that the testimonies of the witnesses to the occurrence are true, the court is free to act on it albeit the Investigation Officer’s suspicious role in the case. In this connection we take into consideration the reported case of Karnel Singh vs. State of Madhya Pradesh, (1995) 5 SCC 518 ; State of Karnataka vs. K. Yarappa Reddy, (1999) 8 SCC 715 ; C. Muniappan and Others vs. State of Tamilnadu, (2010) 9 SCC 567 , and Arvind Kumar vs. State of Rajasthan, 2021 SCC Online SC 1099. 22. In the case of Arvind Kumar vs. State of Rajasthan (Supra) the Hon’ble Supreme Court held that there are subtle difference between defective investigation, and one brought forth by a calculated and deliberated action or inaction. A defective investigation per se would not ensure to the benefit of the accused, unless it goes into the root of the very case of the prosecution being fundamental in nature. While dealing with a defective investigation, a court of law is expected to shift the evidence available and find out the truth on the principle that every case involves a journey towards the truth. There shall not be any pedantic approach either by the prosecution or by the court as a case involves an element of law rather than morality. 23. In this case the learned counsel for the appellants would not challenge the Investigating Officer to be calculated and deliberately biased one; rather they state that the Investigating Officer did not take any concrete step for recovery of the weapons from all the appellants barring the appellant Muntaz. 24. We are of the opinion that though such argument has been advanced by the learned counsel at this appellate stage, there is no pointed cross-examination regarding this aspect of the case and there is no suggestion to the Investigating Officer that he deliberately, with a malafide intent, carried out the investigation only to implicate the appellants. 25. On the other hand, such non-seizure of weapon of offence would be damaging the case of the prosecution than implicating the appellant in the case of murder of the deceased. 25. On the other hand, such non-seizure of weapon of offence would be damaging the case of the prosecution than implicating the appellant in the case of murder of the deceased. Thus, it is clear that the learned counsel for the appellants could not demolish the conviction recorded by the learned Trial Judge in this case. 26. The criminal trial and appreciation of evidence in a criminal trial depends on the robust common sense and trained intuition of the Trial Judge. The Trial Judge have the opportunity of observing the demeanour of the witnesses as he had recorded the statement in Court in presence of the appellants represented by their counsels. A conclusion on appreciation of evidence by the Trial Judge should not be lightly interfered by the Appellate Court. 27. In that view of the matter, we are of the opinion that the learned Trial Judge had a very clear and practical view of the evidences available against the appellant and has come to a proper conclusion, except requiring on one court, no interference of this Court. The only point that has been raised with substance is that the injury reports with respect of PW2, PW3 and PW8 have not been admitted to evidence by examining the doctor. 28. However, an application has also been filed in this appeal under Section 391 of the Code. We have already rejected the application in preceding paragraph. Taking into consideration the peculiarity of the case, this lacuna leads us to the conclusion that the appellant should be acquitted for the offences under Section 307/149 only as the injuries has not been proved on the prosecution. 29. In that view of the matter, the appeal is allowed in part. The conviction under Sections 307/149 of all the appellants are hereby set-aside. The appellants are acquitted for the offences under Section 307/149 of the Penal Code. Consequently, the sentence on that count is also set-aside. 30. However, the conviction and sentence of all the appellants under Sections 147, 148, 302/149 of the Indian Penal Code and conviction and sentence of Muntaz under the aforesaid section and Section 25(1)(b) (a) are hereby confirmed. Appeals are accordingly allowed in part. Trial court records be sent back.