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2024 DIGILAW 1034 (ALL)

Mazeed v. State of U. P.

2024-04-10

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : By the Court.-The present appeal has been preferred by the accused appellants Mazeed, Abdul Hameed and Abdul Rasheed challenging the judgment and order of conviction and sentence dated 7.12.2018, passed by the Third Additional Sessions Judge, Chitrakoot in Session Trial No. 21 of 2017 (State v. Mazeed and others) arising out of Case Crime No. 560 of 2016, Police Station Rajapur, District Chitrakoot, whereby the accused appellants have been convicted and sentenced to life imprisonment under Section 302/34 IPC with fine of Rs. 15,000/-, in default whereof they are to further undergo one month additional imprisonment; under Section 452 IPC for seven years rigorous imprisonment with fine of Rs. 1,000/-, in default whereof they are to further undergo ten days additional imprisonment. All the sentences are to run concurrently. 2. The prosecution case proceeds on a written report of the first informant (PW-1), scribed by Dharamraj Singh (Ex.Ka.1), dated 10.12.2016, as per which, on the previous night i.e. 9.12.2016 at around 08.00 p.m. the informant's brother Anyaveer Singh @ Veeru (deceased) aged about 23 years had came to his house near the road to sleep after having his meal. The informant also came later at about 09.30 p.m. to sleep in the same house. On coming to this house he found that shutter of house was raised by 2 feet and some noise was coming from inside. The informant entered the house and saw that accused appellants were strangulating the deceased by a rope. On seeing the informant, the accused appellants pushed him and fled through the shutter. Apart from informant the incident was seen by Anita Singh (PW-2) wife of Rajendra Singh @ Pappu Singh, who was standing on the roof of her house situated nearby and identified the accused. The informant came to his brother and found him dead. The electric bulb was lit outside the houses of Rajendra Singh and informant. There was a dispute going on with regard to a kiosk put by the accused in front of informant's house. The informant out of fear did not report the incident in the night and reported it in the morning. 3. On the basis of written report (Ex.Ka.1) First Information Report (Ex.Ka.5) was lodged at 08.30 a.m. on 10.12.2016 as Case Crime No. 560 of 2016 under Sections 302, 452 IPC, Police Station Rajapur, District Chitrakoot. The informant out of fear did not report the incident in the night and reported it in the morning. 3. On the basis of written report (Ex.Ka.1) First Information Report (Ex.Ka.5) was lodged at 08.30 a.m. on 10.12.2016 as Case Crime No. 560 of 2016 under Sections 302, 452 IPC, Police Station Rajapur, District Chitrakoot. Thereafter, the police arrived at the spot and inquest was conducted at about 10.45 a.m. on 10.12.2016. As per the inquest (Ex.Ka.10), information about the incident was furnished by informant (PW-1) and the cause of death apparently was strangulation. A nylon rope as well as axe and stick was also found on the spot (vide Ex.Ka.8). PW-1 is also an inquest witness. In order to ascertain the cause of death the inquest witnesses opined that the postmortem of deceased be conducted. Consequently, the dead body was sealed and sent to mortuary for postmortem. The postmortem (Ex.Ka.4) was conducted at 03.00 p.m. on the same day. The Autopsy Surgeon determined the cause of death as asphyxia as a result of strangulation. Following ante-mortem injuries were found on the deceased : ''(i) A ligature mark present in Neck, circular in shape. No gap. Size Neck circumference 35 cm. Ligature mark 32x2cm. U/L tissue congested and ecchymossed. (ii) Abrasion on the chin size 2x1cm. (iii) Abrasion on the right side of the chest size 3x1cm just below right clavicle. (iv) Abrasion on the right side of the forehead size 2x1cm just above right eyebrow. (v) Abrasion on the right eyelid size 2x1cm.'' 4. The Investigating Officer thereafter arrested the accused appellants and after recording the statement of witnesses, including PW-1 and PW-2, under Section 161 Cr.P.C., concluded the investigation and submitted charge-sheet against the accused appellants. The Magistrate took cognizance on the charge-sheet and committed the case to the Court of Sessions where it got registered as Session Trial No21 of 2017. Charges were framed against the accused appellants under Sections 302/34, 452 IPC vide order dated 13.4.2017, who denied the accusations made against them and demanded trial. 5. The prosecution in order to prove its case has exhibited various documentary evidence, noticed above. In addition to the exhibited documentary evidence, the prosecution has also produced the oral testimony of witnesses of fact i.e. informant Ankit Singh as PW-1 and Anita Singh as PW-2. 6. 5. The prosecution in order to prove its case has exhibited various documentary evidence, noticed above. In addition to the exhibited documentary evidence, the prosecution has also produced the oral testimony of witnesses of fact i.e. informant Ankit Singh as PW-1 and Anita Singh as PW-2. 6. PW-1 is the brother of deceased and it is on his information that the written report (Ex.Ka.1) was scribed by Dharamraj Singh. PW-1 has supported the prosecution case, according to which, the accused appellants strangulated the deceased to death. In his examination-in-chief, PW-1 has stated that he apprehended the accused Abdul Hameed at the spot while two other accused fled from the open shutter. He has further stated that there was a dispute of kiosk put up by the accused appellants in front of house of the informant. Admittedly, there is no evidence on record that Abdul Hameed was apprehended on the spot and the witness has been confronted with it. PW-1, however, has stated that he apprehended the accused Abdul Hameed and this fact was disclosed to the scribe, but the scribe has not mentioned it in the written report. PW-1 has also stated that the deceased had vomited prior to his death which was also disclosed to the scribe but this too is not mentioned in the written report. PW-1 has further averred that a rope and axe was recovered from the apprehended accused, which was handed over to the police on the same day, but this fact was also omitted in the written report. PW-1 has also alleged that when he came to know that the fact about apprehending of accused Abdul Hameed as well as recovery of rope and axe was not mentioned in the FIR he sent a letter to the DIG on 1.5.2017. Receipt of dispatch of this letter was also produced. PW-1 has been cross-examined in which he has stated that though he had written a report himself but the same was not given to the police. Later the report was got scribed by Dharamraj Singh on the next morning and was given to the police. He has explained that on account of mental stress due to death of his brother he could not give the report written by himself. Later the report was got scribed by Dharamraj Singh on the next morning and was given to the police. He has explained that on account of mental stress due to death of his brother he could not give the report written by himself. It is also stated that the factum of death was reported to the police at 9.30 p.m. in the night itself whereafter the police arrived at the spot on 10.30 p.m.. PW-1 has further stated that apprehended accused Abdul Hameed was also taken by the police. Various other persons also arrived at the spot. Police left, leaving two constables at the spot in the night. In his further cross-examination, PW-1 has stated that he is intermediate. He came to police station on the bike of his uncle Rajendra Singh, whose wife is Anita Singh (PW-2). He has denied the suggestion that on the advise of his counsel he had sent letter dated 1.5.2017 to the DIG. So far as the recovery of axe and rope is concerned he has stated that his signature as well as the signature of his father were obtained by the police on blank pages. PW-1 has also explained that he has two houses; one of which is within the Abadi area in the village while other house is situated at a distance on the main road. He has also explained the family composition of the accused persons and their age etc. House of his uncle Rajendra Singh is three storied and is situated on the west of the place of incident. There is distance of about eight feet between the shop of PW-1 and Rajendra Singh. PW-1 has also stated that on seeing the incident he raised an alarm and various other persons from nearby locality had came. He also stated that he had seen the incident in the light of electric bulb and that he had to run few paces to apprehend the accused Hameed. PW-1 has denied the suggestion that the deceased was a drunkard and had enimical relations with others on account of his cantankerous nature. 7. The other witnesses of fact is PW-2 Anita Singh. In her examination-in-chief she has stated that she was walking on the roof of her house and saw three persons entering the house where dead body was later found. She later heard some noise coming from the house. 7. The other witnesses of fact is PW-2 Anita Singh. In her examination-in-chief she has stated that she was walking on the roof of her house and saw three persons entering the house where dead body was later found. She later heard some noise coming from the house. After sometime PW-1 arrived at the spot and at around 9.30 p.m. alarm was raised that the deceased was done to death. PW-2 claims to have identified the accused present in Court as being the persons who entered the house of deceased. She has also stated that PW-1 has informed her that the deceased was done to death by these accused persons. In the cross-examination PW-2 has, however, stated as under : PW-2 has been confronted with reference to her previous statement disclosed to the police under Section 161 Cr.P.C. where she had not disclosed that she was walking on the roof. 8. PW-3 (Dr. Rajesh Singh) is the Autopsy Surgeon, who has conducted postmortem of the deceased. He proved the postmortem report. In his opinion he has stated that 2cm wide rope was used for strangulating the deceased and ligature mark was found complete around the neck. It is also stated that no traces of vomiting was found on the clothes of deceased. 9. PW-4 (Chintamani Mishra) is Head Constable, who has proved the G.D. entry and other police documents. 10. PW-5 (Hawaldar Singh) is the Investigating Officer, who in his cross-examination has stated that incident occurred on 9.12.2016 at 09.30 p.m. but PW-1 has registered case at 08.30 a.m. in the next morning. After registering the case on 10.12.2016 at 08.30 a.m. the police arrived at the spot and before it, no information about the incident was given by the PW-1 or by any other person and no police personnel had gone at the spot. He has denied the fact that the incident was reported in the night by PW-1 or the accused Hameed was handed over to the police. 11. The accused appellants have been confronted with the above incriminating materials produced by the prosecution during trial for recording his statement under Section 313 Cr.P.C. The accused appellants have stated that they have been falsely implicated in the present case while they are innocent. 12. The defence has also produced Haribaran as DW-1, who was posted as Executive Engineer in the concerned Electricity Distribution Division, Chitrakoot. 12. The defence has also produced Haribaran as DW-1, who was posted as Executive Engineer in the concerned Electricity Distribution Division, Chitrakoot. This witness has categorically stated, on the basis of original register produced that there was no electricity in the concerned area on 9.12.2016 from 08.40 p.m. to 10.50 p.m. due to shutdown of main supply. This witness apparently has not been cross-examined. 13. It is on the basis of such evidence led during trial by the prosecution and upon consideration of the explanation furnished by the accused appellant under Section 313 Cr.P.C. that the Court below has come to the conclusion that the prosecution has established its case beyond reasonable doubt against the accused appellants and found them to be guilty of committing the offence. Ultimately, the Court below has convicted and sentenced the accused appellants vide impugned judgment and order. Thus aggrieved, the accused appellants are before this Court in the present appeal. 14. Shri Vijay Bahadur Singh, learned Senior Counsel, assisted by Shri Adarsh Singh and Prakash Singh, Advocates for the appellants submits that this is a case in which accused appellants have been falsely implicated and that the statement of prosecution witnesses are wholly unreliable. With reference to the testimony of PW-1, learned Senior Counsel states that there are inherent contradictions in the version of PW-1, which itself renders his testimony unreliable. It is further stated that the version of PW-1 that the incident was reported in the night itself has been controverted by the Investigating Officer himself. It is also stated that there are various improvements which have been made from time to time in the version of PW-1, which completely diminishes his creditworthiness. It is argued that though PW-2 has stated that she saw the accused appellants entering the house but in her cross-examination she has admitted that such facts were disclosed to her by PW-1. It is also pointed out that it was extreme winter when the incident occurred and the version that PW-2 was walking on the roof at around 09.30 p.m. otherwise seems improbable. It is also urged that there was no source of light and the version that the accused Hameed was apprehended on the spot has not found support from the evidence on record. It is also urged that there was no source of light and the version that the accused Hameed was apprehended on the spot has not found support from the evidence on record. It is submitted that neither any recovery has been made from the accused appellants nor any other material has been placed to justify their implication. Contention is that the accused appellants are languishing in jail for about eight years without any evidence on record against them. 15. Learned A.G.A. for the State, on the other hand, submits that the Court below has rightly convicted the accused appellants relying upon the testimony of witnesses and that no interference is required in the impugned judgment. 16. We have heard learned counsel for the parties and have perused the materials brought on record, including the original records of the Court below. 17. The evidence on record would clearly go to show that the incident was reported to police on 10.12.2016 at about 08.30 in the morning. The information furnished to the police is based upon the written report given by PW-1 and scribed by Dharamraj Singh, who has not been produced in evidence. PW-1 has admitted that he is intermediate pass and had written a report in his own hand writing but the same was not given. PW-1 has then stated that the written report scribed by Dharamraj Singh does not contain correct disclosure made by him to the scribe. According to PW-1, one of the accused Hameed was apprehended by him at the spot, which fact does not find mentioned in the written report. It is one of the circumstances which would have a bearing on the credibility of the testimony of PW-1. PW-1 has also stated that the fact that deceased had vomited prior to his death had been disclosed to the scribe but the same was not mentioned in the written report. This aspect of the matter has been contradicted by the Investigating Officer PW-5, who found no traces of any vomiting etc. at the spot. The version of PW-1 that the deceased had vomited also does not find support from the testimony of PW-3 i.e. Autopsy Surgeon, inasmuch as the clothes which were worn by the deceased had no smell of vomiting etc. at the spot. The version of PW-1 that the deceased had vomited also does not find support from the testimony of PW-3 i.e. Autopsy Surgeon, inasmuch as the clothes which were worn by the deceased had no smell of vomiting etc. The testimony of PW-1 that he had informed the police in the night itself whereafter the police arrived at the spot is also contradicted by the evidence on record. As per the evidence on record, neither the incident was reported in the night nor there are any documents to show that the police arrived at the spot in the night. The Investigating Officer, PW-5, in his testimony has categorically stated that information with regard to incident was received only in the next morning on 10.12.2016 and thereafter the police arrived at the spot. We, therefore, find that the version of PW-1 is not supported by any cogent evidence on record, rather it is contradicted on material aspects by the version of other prosecution witnesses. None production of scribe Dharamraj Singh, in evidence, also assumes significance in the facts of the present case. PW-1 alleges that he had disclosed all information to scribe but the same was not mentioned in the written report. The fact that scribe is withheld in evidence renders this part of the testimony of the PW-1 wholly unreliable. His version otherwise does not find corroboration from the evidence available on record. 18. It is for the first time on 1.5.2017 that PW-1 had sent a registered letter disclosing material improvements in his previous version to the police. We have perused the original statement of witnesses under Section 161 Cr.P.C. wherein there is no mention of facts which PW-1 alleges to have disclosed to the scribe and were not mentioned in the written report/FIR. No cogent reason is disclosed for this failure on part of the prosecution. 19. PW-1 has stated that shutter of the house was raised upto 2 feet and when he entered he saw that the accused appellants were strangulating the deceased but it is admitted to him that there was no bulb lit inside the house. The only source of light to identify the accused appellants is the bulb, which was lit outside the house. The only source of light to identify the accused appellants is the bulb, which was lit outside the house. On this aspect of the matter, we find that the testimony of DW-1 that there was a total shutdown of electricity in the locality for almost two hours i.e. from 08.40 p.m. to 10.50 p.m., has not been contradicted by the prosecution. We further find that, though trial Court has observed that existence of inverter cannot be ruled out but we find ourselves in disagreement with such conclusion of the Court of sessions for the simple reason that it was for the prosecution to prove its own case by producing relevant evidence. There is nothing on record to show that there existed any inverter. In the absence of any evidence having been placed regarding existence of inverter on record, it was not open for the trial Court to infer that sufficient light existed at the spot on account of inverter. This finding of the Court of sessions is thus based on no evidence on record. 20. The other part of the testimony of PW-1 that he had apprehended one of the accused Abdul Hameed is also belied by the evidence on record. In the event accused Abdul Hameed was apprehended by PW-1 and was given in the custody of police, there is no reason why such facts were not mentioned in the police papers or in the FIR. Attempt on part of the PW-1 to suggest that these facts were disclosed to the scribe but the same was not mentioned in the written report, is nothing but an attempt to improve his initial version. Upon overall evaluation of the testimony of PW-1 we find that his version is full of contradictions and does not inspire confidence. 21. Learned Senior Counsel for the accused appellants has placed reliance upon judgments of the Supreme Court in the cases of Vadivelu Thevar and another v. State of Madras, AIR 1957 SC 614 ; Mathura Prashad and another v. State of Madhya Pradesh, 1992 Supp (1) SCC 406 and State of Uttrakhand v. Darshan Singh, (2020) 12 SCC 605 , to contend that the testimony of PW-1 is unreliable. The testimony of a witness can be categorized in three distinct category i.e. (i) wholly reliable, (ii) wholly unreliable and (iii) neither reliable nor wholly unreliable. The testimony of a witness can be categorized in three distinct category i.e. (i) wholly reliable, (ii) wholly unreliable and (iii) neither reliable nor wholly unreliable. In a case where testimony is wholly reliable no further corroboration would be required. If the testimony of a witness falls in the second category then corroboration would be needed. However, when the testimony of a witness is placed in third category is wholly unreliable. Upon overall evaluation of the testimony of PW-1 we find that his testimony would fall in third category, inasmuch as there are material contradictions and improvements have been made. We are, therefore, of the view that testimony of PW-1 could not have been relied upon by the prosecution to bring home the charge against the accused appellants. 22. So far as the testimony of PW-2 is concerned, she has initially stated that she had seen the incident but in her cross-examination this witness has also admitted that her source of information was the disclosure made by PW-1. Once the testimony of PW-1 is found to be unreliable, testimony of PW-2 cannot be placed on a higher pedestal. We also find that the testimony of PW-2 otherwise cannot be relied as she claimed to have seen three accused in the light of bulb lighted outside the house whereas there was a electricity shutdown in the locality between 08.40 p.m. to 10.50 p.m. as per DW-1, who has not been cross-examined. Apart from the testimony of PW-1 and PW-2, not much has been placed by the prosecution to justify the implication of the accused appellants. 23. So far as the plea of enmity of deceased is concerned, it is settled that enmity is a double edged sword which can cut both ways. It can be a ground for committing offence as also for false implication. In the facts of the case, we find the testimony of witnesses i.e. PW-1 and PW-2 are not trustworthy and the motive itself is not sufficient to implicate the accused appellants. 24. The only other evidence produced by the prosecution is the recovery of axe and rope, which admittedly were not recovered at the pointing out of the accused appellants. 25. From the discussions and deliberations held above, we have no hesitation in coming to the conclusion that the prosecution has failed to establish its case against the accused appellants beyond reasonable doubt. 25. From the discussions and deliberations held above, we have no hesitation in coming to the conclusion that the prosecution has failed to establish its case against the accused appellants beyond reasonable doubt. We have also found that the Court below has not evaluated the evidence led during trial, including the testimony of PW-1 and PW-2, in correct perspective and, therefore, the impugned judgment and order of conviction and sentence is liable to be reversed. 26. Consequently, the appeal succeeds and is allowed. The judgment and order of conviction and sentence dated 7.12.2018 is hereby set aside. The appellants are acquitted of the charges levelled against them. Since the appellants are in jail, they shall be released forthwith and shall be set free, unless are wanted in any other case, subject to compliance of Section 437A Cr.P.C. 27. Copy of this judgment shall be communicated to the Chief Judicial Magistrate concerned as also the concerned Superintendent of Jail for necessary compliance.