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2022 DIGILAW 99 (UTT)

Yaseen v. State of Uttaranchal

2022-05-09

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. The challenge in this appeal is made to the Judgment and Order dated 06.09.2005, passed in Sessions Trial No. 199 of 2002, State vs. Yaseen, passed by the court of Additional Sessions Judge/FTC Kashipur, District Udham Singh Nagar. 2. By the impugned order the appellant has been convicted and sentenced as hereunder: (i) Under Section 304 IPC sentenced to 10 years rigorous imprisonment with a fine of Rs. 2,000/-. In default of payment of fine, to undergo further six months rigorous imprisonment. (ii) Under Section 323 IPC sentenced to one year rigorous imprisonment. (iii) Under Section 452 IPC sentenced to one year rigorous imprisonment with a fine of Rs. 500/- and in default of payment of fine, to undergo further two months rigorous imprisonment. 3. According to the prosecution case, on 06.03.2002 at 08:00 in the evening, the appellant entered into the house of the informant and hit him on his head with lathi, due to which, the informant sustained injuries. The wife of the informant came for his rescue, she was also attacked on her head. She fell down. She was taken to hospital but, at about 10:00 in the night, she succumbed to the injuries. A report of the incident was lodged on 07.03.2002 at 07:15 AM. A case was registered and investigation proceeded. The inquest of deceased was conducted on 07.03.2002. According to the witnesses of the inquest, the death of deceased took place due to injuries, which she sustained in the attack. Postmortem of the deceased was also conducted on 07.03.2002 at 04:30 PM. According to the doctor, the cause of death was coma as a result of antemortem head injuries. The Investigating Officer (for short “IO”) visited the place of incident. He took into custody the clothes worn by the informant at the time of incident. He prepared site plan. He also took into custody the blood stained soil and plain soil from the place of incident. It is also the case of the prosecution that at the instance of the appellant, the weapon of the offence a lathi, which was also taken into custody by the IO on 07.03.2002. IO also prepared the site plan of the place of occurrence. After investigation, charge-sheet under Sections 304, 452, 323 IPC was submitted against the appellant. On 01.11.2002, charge under Sections 323, 304, 452 IPC has been submitted. 4. IO also prepared the site plan of the place of occurrence. After investigation, charge-sheet under Sections 304, 452, 323 IPC was submitted against the appellant. On 01.11.2002, charge under Sections 323, 304, 452 IPC has been submitted. 4. In order to prove its case, the prosecution examined 07 witnesses namely, PW-1 Shaukat Hussain, PW-2 Saleem Ahmed, PW-3 Abdul Hameed alias Haneef, PW-4 Jumma Hussain, PW-5 SI Suresh Chandra Joshi, PW-6 Dr. Mukesh Gupta and PW-7 Dr. J.K. Goyal. 5. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short “the Code”). The appellant did not adduce any evidence in his defence. Having considered, by the impugned judgment and order, the appellant has been convicted and sentenced as stated hereinbefore. Aggrieved by it, the appellant is in appeal. 6. Heard learned counsel for the parties and perused the record. 7. Learned counsel for the appellant would submit that the prosecution has not been able to prove its case beyond reasonable doubt. The appellant ought to have been acquitted of the charge. The court below has been committed an error in convicting and sentencing the appellant. 8. Learned counsel raised the following points in his submission: (i) The lathi which was allegedly recovered at the instance of the appellant has never been produced before the court below. Therefore, recovery of danda as alleged by the prosecution cannot be read against the appellant. (ii) The FIR is much delayed. If the incident took place at 08:00 in the evening of 06.03.2002, why the FIR was lodged next morning at 07:15 AM? There is no reason, which may explain this delay. It also doubts the prosecution case. (iii) The FIR in the instant case was lodged by PW-2, Saleem Ahmed, who is an Advocate. It doubts the prosecution case. (iv) The incident took place at 08:00 in the evening. It was dark outside. There was no source of light. The IO or the site plan or the FIR does not indicate any source of light at the time of occurrence. It also creates doubt in the prosecution case. (v) According to the FIR, the appellant entered into the house of the informant due to quarrel between the children but, the informant, PW-3, Abdul Hameed alias Haneef had stated that the fight between the children has been taken place a month prior to the date of incident. It also creates doubt in the prosecution case. (v) According to the FIR, the appellant entered into the house of the informant due to quarrel between the children but, the informant, PW-3, Abdul Hameed alias Haneef had stated that the fight between the children has been taken place a month prior to the date of incident. (vi) The clothes, which were taken into custody by the IO has not been produced in the court. (vii) PW-3, Abdul Hameed alias Haneef is the interested witness. PW-1, Shaukat Hussain and PW-4, Jumma Hussain, who have been shown as independent witnesses in the FIR, have not supported the prosecution case. 9. At the end, learned counsel for the appellant would submit that the appellant has already undergone 3 years imprisonment. The dispute took place long ago. Therefore, the sentence may be reduced, which the appellant has already undergone. 10. On the other hand, learned State counsel would submit that the delay in lodging the FIR has reasonably been explained. PW-3, Abdul Hameed alias Haneef took his wife to hospital, where she died in the night and next morning the FIR has been lodged. It is argued that the FIR is not delayed. PW-3, Abdul Hameed alias Haneef is not a witness alone, he is injured also in the incident. Medical evidence supports the prosecution case. The appellant was neighbour of the informant. As a witness, PW-3, Abdul Hameed alias Haneef has stated that there were electricity light at the time of incident. Hence, there is no question of non-disclosure of source of light. 11. Learned State counsel would submit that there is no reason to make any interference in this appeal and it deserves to be dismissed. 12. PW-1 is Shaukat Hussain. He is named as a witness in the FIR. He did not support the prosecution witness. He has been declared hostile. It may be noted at this stage that this witness has proved the inquest report as Ex. A1. According to him, it was read over to him thereafter, he had signed it. The inquest report Ex. A1 records that the deceased died due to injuries, which she sustained in an attack. The question is, if PW-1 did not see anything, how could he sign on the inquest report, which records that the deceased died due to the injuries which she sustained? The inquest report Ex. A1 records that the deceased died due to injuries, which she sustained in an attack. The question is, if PW-1 did not see anything, how could he sign on the inquest report, which records that the deceased died due to the injuries which she sustained? It somehow reflects, as if PW-1, Shaukat Hussain is concealing something. The Court leaves it at it. 13. PW-2, Saleem Ahmed has written the FIR as told to him by PW-3, Abdul Hameed alias Haneef. It is true that PW-2, Saleem Ahmed has deposed his profession as an Advocate but, it in no manner, creates doubt with regard to the credibility of the FIR, which this witness has written at the instance of PW-3, Abdul Hameed alias Haneef. 14. PW-3, Abdul Hameed alias Haneef is the informant. According to him, on 06.03.2002, there was a quarrel between the children. Due to this reason, at about 08:00 in the evening, the appellant, according to this witness entered into his house and attacked him on his head. When the wife of this witness, Ms. Samima came for his rescue, she was also attacked on her head, due to which, Ms. Samima fell down and became unconscious. According to PW-3, Abdul Hameed alias Haneef due to alarm raised by this witness, Zumma Hussain and Shaukat reached at the place of incident. This witness took his wife to Jaspur Hospital. The doctor referred her to a hospital in Kashipur. Ms. Samima was taken in a hospital at Kashipur but, she succumbed to the injuries in the night. Thereafter, PW-3, Abdul Hameed alias Haneef, lodged the FIR. He also gave his clothes which he had worn at the time of incident to the IO. 15. PW-4, Jumma Hussain is another witness named in the FIR. He has also not supported the prosecution case. He has been declared hostile. 16. PW-5, SI Suresh Chandra Joshi conducted investigation. He took into custody the blood stained clothes, blood stained soil and plain soil, prepared recovery memo, prepared site plan and submitted the charge-sheet. 17. PW-6, Dr. Mukesh Gupta examined PW-3, Abdul Hameed alias Haneef on 07.03.2002 at 10:05 AM and found the following injuries on his person: “1. One red-brown colour lacerated wound of 3 x 0.5 cm present on the head, which was present 11 cm above the left ear on the head. 2. 17. PW-6, Dr. Mukesh Gupta examined PW-3, Abdul Hameed alias Haneef on 07.03.2002 at 10:05 AM and found the following injuries on his person: “1. One red-brown colour lacerated wound of 3 x 0.5 cm present on the head, which was present 11 cm above the left ear on the head. 2. One abrasion on the upper index finger of left hand in the size of 0.5 x 0.5 cm. 3. One lacerated wound having redness, measuring 2 cm x 0.5 was present at the joint of right knee.” 18. According to PW-6, Dr. Mukesh Gupta, the injuries could have been caused by hard object. 19. PW-7, Dr. J.K. Goyal conducted postmortem of the deceased on 07.03.2002. He found the following injuries on the person of the deceased: “a lacerated wound of 6 cm x 2.5 cm x brain deep, present on the left side of head, it was present 3 cm side from the centre line; parietal bone below the wound was fractured and brain was also lacerated. In the internal examination, left side parietal bone was fractured; below injury no. 1 on the left side, brain was lacerated.” 20. According to this witness, the cause of death is coma as a result of ante mortem head injuries. 21. It is true that the lathi, which was taken into custody by the IO has never been produced before the court below. The recovery memo is Ex. A6, as proved by the witness. According to it, the lathi was 4 Feet, 6 Inch in length and there was blood on it. It is also true that the blood stained clothes, which the IO took into custody were also not placed before the court below and both these articles, the clothes and the lathi were never sent for forensic examination. These are lapses in the prosecution as well as in the investigation. The moment when the recovery memo was proved by PW-5, SI Suresh Chandra Joshi, the IO, the clothes as well as the lathi could have been produced before the court. In fact, the court would have also questioned the witnesses under Section 165 of the Indian Evidence Act, 1872, as to where those articles are? And, why they were not sent for forensic examination? IO has also not done it. In fact, the court would have also questioned the witnesses under Section 165 of the Indian Evidence Act, 1872, as to where those articles are? And, why they were not sent for forensic examination? IO has also not done it. But, all these errors in the investigation or lapses in the prosecution per se does not create any doubt in the prosecution case. They do not go into the root of the case. 22. In the matters of non-production of the weapon of offence, learned counsel for the appellant would submit that it is fatal for the prosecution. He has placed reliance on the principle of law as laid down by the Hon’ble Supreme Court in the case of Niranjan Panja vs. State of West Bengal, (2010) 6 SCC 525 . He would rely Para 14 of it, in which, the Hon’ble Supreme Court observed “the High Court has accepted the evidence on the recovery of the so-called weapon. We fail to follow as to how the said discovery could at all be relied upon in the absence of the weapon being produced before the court.” 23. It is a criminal trial. There may not be two identical cases. The observation which has been made by the Hon’ble Supreme Court in the case of Niranjan Panja (supra), was based on circumstantial evidence, mostly on the last seen theory. The dead body of the deceased was found with multiple injuries and the prosecution had revealed that they had recovered the weapon of offence, which was not produced before the court below. Under such circumstances, that observation had been made. The present case is not based on the circumstantial evidence. It is based not only on the direct evidence of any witness but, it is also based on the evidence of an injured witness. 24. Therefore, as stated, non production of the articles recovered by the IO during investigation and non-examination of them by the Forensic Science Laboratory does not create any doubt in the prosecution case. 25. It is true that the FIR is not prompt in this case. The incident took place on 06.03.2002 at 08:00 PM and the FIR was lodged next morning at 07:15 AM. The FIR itself records that after the incident PW-3, Abdul Hameed alias Haneef took his wife to Government Hospital Jaspur. 25. It is true that the FIR is not prompt in this case. The incident took place on 06.03.2002 at 08:00 PM and the FIR was lodged next morning at 07:15 AM. The FIR itself records that after the incident PW-3, Abdul Hameed alias Haneef took his wife to Government Hospital Jaspur. She was referred to Kashipur and in Kashipur Hospital, his wife died in the night. The inquest report is on record. It also by the records that the dead-body was in the Government Hospital Kashipur. As a witness PW-3, Abdul Hameed alias Haneef has proved the FIR, he has categorically stated that after the incident, first he took his wife to the Jaspur Government Hospital but, the doctors referred her to Kashipur. Thereafter, he took her to Government Hospital Kashipur, where she died in the night. Next morning report is lodged. A person whose wife is unconscious is not expected to first go to the Police Station leaving his wife in unconscious stage. Even common course of natural event would suggest that first the injured would be provided medical aid. That is what PW-3, Abdul Hameed alias Haneef has done and has stated before the court. Although, there is delay in lodging of the FIR but, delay has been sufficiently explained. It does not create any doubt in the credibility of the statement of the PW-3, Abdul Hameed alias Haneef. 26. It is true that the incident took place 08:00 in the late evening. It is also true that in the FIR, source of light, as such has not been revealed. It is also true that in the site plan Ex. A4, which has been proved by PW-5 Suresh Chandra Joshi, the IO, the source of light has not been shown. But, it is also equally true that the FIR records that the appellant is the neighbour of PW-3, Abdul Hameed alias Haneef, the informant. In his statement, PW-3, Abdul Hameed alias Haneef has revealed that though the incident took place at 08:00 in the night when it was dark but, in the next sentence he has stated that at the place of incident, there was electricity light. Merely because, it has not been recorded in the FIR, it cannot be said that there was no occasion for PW-3, Abdul Hameed alias Haneef to identify the appellant. Merely because, it has not been recorded in the FIR, it cannot be said that there was no occasion for PW-3, Abdul Hameed alias Haneef to identify the appellant. It is not the incident somewhere in the open where it was dark. It was not an incident which took place in the deserted or in the forest. The place of incident is the house of PW-3, Abdul Hameed alias Haneef. It is also not the case that the assailant was stranger to the injured or the informant. PW-3, Abdul Hameed alias Haneef has categorically stated that the appellant was his neighbour. Therefore, nondisclosure of source of light in the FIR or in the site plan also does not doubt the prosecution case. PW-3, Abdul Hameed alias Haneef has categorically proved and established that there was source of light and there was immense opportunity for him to identify the appellant, who happened to be his neighbour. 27. It is true that in his cross-examination recorded on 19.11.2003, PW-3, Abdul Hameed alias Haneef has stated that the fight of the children took place one month ago. But, it is also true that in the examination-in-chief in the line 3, PW-3, Abdul Hameed alias Haneef has stated that due to quarrel between the children on the day of incident, the appellant entered into his house. Merely, because at one stage in his cross-examination on 19.11.2003, PW-3, Abdul Hameed alias Haneef has stated that the quarrel between children had taken place one month ago, it cannot be said that the prosecution case is false because of this reason alone. This discrepancy in the statement does not doubt the credibility of PW-3, Abdul Hameed alias Haneef. 28. Learned counsel for the appellant has also drawn attention of the Court to the statements of PW-3, Abdul Hameed alias Haneef recorded on 19.11.2003, when he would say that the quarrel took place in front of the house. It is referred to argue that it belies the prosecution case that the deceased and the informant were attacked inside their house. This argument has less merits for acceptance. It is categorical case of the prosecution that the appellant entered into the house of PW-3, Abdul Hameed alias Haneef and attacked him and his wife, who subsequently died due to the injuries sustained by her. This argument has less merits for acceptance. It is categorical case of the prosecution that the appellant entered into the house of PW-3, Abdul Hameed alias Haneef and attacked him and his wife, who subsequently died due to the injuries sustained by her. On 19.11.2003, when PW-3, Abdul Hameed alias Haneef was cross-examined, he was questioned about the quarrel between the children and in that sequence, in the last but one paragraph, in two lines he submits that the quarrel took place outside the house. Apparently, PW-3, Abdul Hameed alias Haneef has referred to the quarrel between the children and not the attack, which was made on him and on his wife. 29. It is categorical case of the prosecution that the appellant first hit PW-3, Abdul Hameed alias Haneef and when his wife Ms. Samima came to rescue him, she was also hit on her head by the lathi which became fatal to her. PW-6, Dr. Mukesh Gupta has examined PW-3, Abdul Hameed alias Haneef on 07.03.2002, he has noted the injuries that supports the prosecution case. PW-7, Dr. J.K. Goyal has detected injuries on the dead body. It also supports the prosecution case. The medical evidence supports the prosecution case. 30. In view of the foregoing discussion, this Court is of the view that prosecution has, in fact, been able to prove its case beyond reasonable doubt. 31. On behalf of the appellant, it is also argued that the appellant has already been in jail for about 3 years, therefore, he may be sentenced to the period already undergone. 32. Sentence is, one of the most crucial aspects of the Criminal Justice Dispensation System. The best person is the Trial Court Judge, who examines the witnesses, observes an accused and determine the quantum of sentence. 33. PW-1, Shaukat Hussain was cross-examined by the defence. He has stated that after the incident, PW-3, Abdul Hameed alias Haneef had sold his house. He could not reveal, as to where PW-3, Abdul Hameed alias Haneef shifted thereafter. The day, when the FIR was lodged, PW-3, Abdul Hameed alias Haneef was resident of Mohalla Nai Basti Imratpur, Jaspur, Police Station Jaspur, District Udham Singh Nagar. But, when on 19.11.2003, he was examined in the court, his address then was Mansoor Chauraha Seohara, District Bijnor, Uttar Pradesh. 34. The day, when the FIR was lodged, PW-3, Abdul Hameed alias Haneef was resident of Mohalla Nai Basti Imratpur, Jaspur, Police Station Jaspur, District Udham Singh Nagar. But, when on 19.11.2003, he was examined in the court, his address then was Mansoor Chauraha Seohara, District Bijnor, Uttar Pradesh. 34. PW-4, Jumma Hussain has in his cross-examination by the prosecution revealed that after the incident, PW-3, Abdul Hameed alias Haneef had left the Mohalla and staying at Seohara, District Bijnor, Uttar Pradesh, where his children are studying. 35. Having considered the entirety of the fact, this Court is of the view that even the sentence imposed in the instant case does not warrant any interference. Accordingly, the appeal deserves to be dismissed. 36. The appeal is dismissed.