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Judgment
Saroj Bala, J.—These connected criminal appeals are directed against the judgment and order dated 12.10.2004 passed by the Additional District and Sessions Judge/ F.T.C. Sonbhadra in S.T. No. 46 of 2001 whereby convicting and sentencing all the accused- appellants for the offence punishable u/s 302/34 I.P.C. with rigorous imprisonment for life and with fine of Rs. 5000/- each and in default of payment of fine to undergo rigorous imprisonment for a period of two years.
The essential facts leading to these appeals are:
On 29.9.2000 at about 1.30 P.M. the first informant Bhikari (P. W. 1) along with his brother Hanif alias Chhotak (victim) was lying at the platform situated outside the house of victim in village Kusumha P.S, Robertsganj District Sonbhadra. At the same time the appellants came at the platform. The appellants Imtiyaz and Kallu alias Ashif Ali mounted murderous assault on Hanif alias Chhotak by wielding of knives on the exhortation of appellant Gulam Hussain. On hearing the outcries of informant and victim, the witnesses Shamim (P.W.2), Yusuf (P.W.3) and many other villagers reached at the spot and viewed the commission of offence. The motive behind the brutal assault was old enmity. The critically injured Hanif alias Chhotak was taken to district hospital where he was declared brought dead. The first informant got scribed the written report Ext.Ka-1 of the incident by Yusuf (P.W.3) his son. On the basis of written report chick F.I.R. No. 160 of 2000 (Ext.Ka-8) was prepared by H.C. 17 Ganesh Yadav P.W.6). The crime was registered at serial No. 39 of G.D. on 29.9.2000 at 5 P.M. The G.D. entry is Ext.Ka-9. The entry of death memo received from the hospital was made on 29.9.2000 at 2.40 P.M. at serial No. 30 in the general diary maintained at the police station Robertsganj, the carbon copy of which is (Ext Kha-1).
The inquest on the dead body of Hanif alias Chhotak was conducted in the district hospital by S.I. Sridhar Singh (P.W.5) on the basis of information of death memo received at P.S. Robertsganj from district hospital. The inquest memo is Ext.Ka-3. The report to C.M.O., photolash, challanlash and specimen seal Exts. Ka-4 to Ka-7 were prepared during the course of inquest. The scaled bundle containing the dead body along with connected papers was handed over to constable 224 Lal Chand Yadav for transportation to mortuary.
The autopsy on the dead body was conducted on 30.9.2000 at 12.30 P.M. by Dr.R.C. Yadav (P.W.4). According to the postmortem certificate Ext.Ka-2 the following antemortem injuries were found on the person of deceased:
(i) Abrasions 4 cm. X 1/ 2 cm, skin deep just over to right eyebrow.
(ii) I.W. 4 cm. X 2 cm. skin deep on left side of cheek 3 cm. anterior to left angle of mandible.
(iii) I.W. 3 cm. X 2 cm. on left side of neck 2cm. below left angle of mandible.
(iv) I.W. 5 cm. X 2 cm. X skin deep 2 cm. below right angle of mandible.
(v) Abrasion 5 cm. X 3 cm. on the back of left shoulder joint.
(vi) Stab wound 3 cm. X 2 cm. X 25 cm. deep going upward downward puncturing left kidney and left lobe of liver, margins clean cut regular and inverted situated on front of abdomen 7 cm. lat. left to umbilicus,
(vii) Stab wound 3 cm. X 1 cm. X 15 cm. going upward and laterally puncturing spleen situated on left side of back of abdomen 12 cm. above the left iliac crest, margins clean cut regular and inverted.
(viii) I.W. 1 cm. X 1/ 2 cm. X 1/ 2 deep on top of left ring finger, margins clean cut and regular.
(ix) Margins of injury No. 2, 3, and 4 are clean cut and regular.
The cause of death was shock and haemorrhage due to ante-mortem injuries.
The crime was investigated by S.I. Sharda Bux Singh (P.W.7) then posted as S.S.I at P.S. Kotwali Robertsganj, The investigating officer visited the place of offence on 30.9.2000 and prepared the site plan Ext. Ka-10. He collected blood stained pieces of cement and plain cement pieces from the place of offence under the recovery memo Ext. Ka-11. He interrogated the informant and other witnesses. S.I. Sharda Bux Singh having proceeded on leave, the investigation of this case was taken over by S.I. D.P. Singh who interrogated the accused persons and submitted the charge sheet Ext.Ka-12 on 30.10.2000 for the offence u/s 302 I.P.C.
The committal proceedings were conducted by the C.J.M. who vide order dated 15.2.2001 committed the accused persons to the court of sessions judge for standing trial for the offence punishable u/s 302 I.P.C.
The accused appellants were charged by the Sessions Judge Sonbhadra for : the offence punishable u/s 302/34 I.P.C. to which they pleaded not guilty and claimed to be tried.
The prosecution in order to bring home the charge examined Bhikhari (P.W.1), Shamim (P.W.2), Yusuf (P.W.3) as witnesses of fact. Dr. R.C. Yadav P.W.4) was examined to prove the postmortem certificate. S.I. Sridhar Singh (P.W. 5 conducted the inquest on the dead body. H.C. Ganesh Yadav (P.W.6) proved the chick F.I.R. and G.D. entry of registration of crime. S.I. Sharda Bux Singh (P.W.7) was investigating officer of this case.
The accused-appellants denied the prosecution accusations in toto and stated that the witnesses have falsely deposed against them. The accused-appellants Imtiyaz and Kallu alias Ashif Ali stated that they were offering ''namaz'' in the mosque at the relevant date and time of incident. The accused appellants did not examine any witness in defence.
After taking into consideration the submissions raised on behalf of the parties and appraisal of evidence the trial judge found the testimony of eye, Witness Bhikhari (P.W.1), Shamim (P.W.2) and Yusuf (P.W.3) reliable and recorded the finding of conviction and awarded punishment of rigorous imprisonment for life to all the accused- appellants.
We have heard Sri V.M. Zaidi, learned Counsel for the appellants, Shri R.K. Singh, learned A.G.A. and have gone through the original record summoned for the disposal of appeal.
The learned Counsel for the appellants has challenged the impugned judgement and order on the grounds namely:
(i) The so-called eyewitnesses were not present at the spot;
(ii) the First Information Report is delayed and delay was deliberate;
(iii) the First Information Report was not in existence at the time of inquest;
(iv) inter se criminal litigation between the deceased and eye witness Yusuf(P.W.3);
(v) discrepancy us to which of the two eye witnesses namely Shamim and Yusuf reached first at the spot making their presence doubtful;
(vi) the witnesses Shamim and Yusuf (P.W.2 and P.W.3) being at a long distance from the place of offence their presence at the time of commission of offence was improbable;
(vii) the offence having been committed at the time of offering of Friday ''Namaz'' in the Mosque, the presence of eye witnesses is doubtful; and
(viii) informant and eye witnesses are not Panch witnesses to the inquest on the dead body.
In order to appreciate the submissions raised on behalf of both the parties we have scrutinised the evidence on record. The witness Bhikhari (P.W.1) deposed that on 29.9.2000 at about 1.30 P.M. he along with Hanif alias Chhotak was lying at the platform. He got up on hearing the voice of exhortation of accused Gulam Hussain and saw accused Kallu alias Ashif Ali and Imtiyaz amounting assault at Hanif alias Chhotak by wielding of knives. He raised an alarm which attracted the witnesses Shamim and Yusuf and many other villagers to the spot. According to him the accused persons had old enmity with Hanif alias Chhotak. He along with villagers took the victim to Government Hospital where he was declared brought dead. He proved the written report Ext. Ka-1. He admitted in his cross-examination that his son Yusuf along with Gulam Hussain, Hafij and Muslim was an accused in a case under Sections 323, 325 and 504 I.P.C. which was registered on the basis of complaint made by deceased Hanif alias Chhotak. He stated that incident took place on Friday. He admitted that he as well as his son Yusuf offer ''Namaz'' on Friday but on the date of incident he had not gone to the Mosque. According to him his house is situated at a distance of about 15-20 ''Latha'' from the place of incident. He gave out that he went to Robertsganj police station 5 or 10 minutes after the doctor made declaration of death of his brother and stayed at the police station for about ten minutes and thereafter again reached the hospital. He could not disclose as to how much time after his reaching the hospital the inquest was conducted. According to him he was outside.
Shamim (P.W.2) son-in-law of the deceased stated that on 29.9.2000 at 1.30 P.M. he was present at Tazima mosque. On hearing the outeries of Bhikhari he reached at the spot and saw that accused Gulam Hussain was exhorting to kill Hanif alias Chhotak and on his exhortation accused Imityaz and Kallu alias Ashif Ali armed with knives came at the platform and subjected Hanif alias Chhotak to assault by wielding of knives. He as well as other villagers intervened and accused persons ran away towards the southern direction. The injured Hanif alias Chhotak was taken to the district hospital in a tempo where he was declared brought dead by the doctor. In his cross-examination he gave out that the Mosque of his village is situated at a distance of about one Km. from the house of Hanif alias Chhotak and when he reached at the spot many villagers were present there. He resiled from his previous statement that he was present at the mosque of his village on 29.9.2000. According to him Yusuf reached at the spot after him. He testified that police of Robertsganj came to the spot 15-20 minutes after the death of Hanif alias Chhotak and remained there till the inquest was over. According to him inquest was not conducted in his presence. He stated that he was present at Robertsganj uptill an hour before the postmortem commenced and thereafter he went away to his residence.
Yusuf (P.W.3) testified that he was at his residence and on hearing the screams of his uncle Hanif alias Chhotak and his father Bhikhari hurriedly reached there and saw the accused Gulam Hussain, Imtiyaz, Kallu alias Ashif Ali at the platform. Gulam Hussain exhorted and Imtiyaz and Kallu alias Ashif Ali mounted assault by wielding of knives. He testified that Shamim and other villagers reached the spot on hearing the alarm raised by him. He slated that written report Ext. Ka-1 was scribed by him on the dictation of his lather. He admitted to be an accused in a case u/s 302 I.P.C. for killing Swaraj brother of accused Kallu alias Ashif Ali. He feigned ignorance that he along with accused Gulam, Muslim and Hafiz was being prosecuted by the deceased Hanif alias Chhotak in a case u/s 325 I.P.C. He admitted having secured bail in a case u/s 325 I.P.C. He disclosed that intervening distance between house and place of offence is 10-15 ''Latha''. He admitted that he offers ''namaz'' and stated that Shamim reached at the spot a second after him.
The very presence of the eyewitnesses Bhikhari (P.W.1), Shamim (P.W.2) and Yusuf (P.W.3) having been challenged by the learned Counsel for the appellants, the moot point for consideration is whether their presence was natural and probable on the date, time and place of the incident. The incident took place at the platform of deceased Hanif alias Chhotak on 29.9.2000 at 1.30 P.M. It was Friday. On Friday people of Muslim community offer special ''Namaz'' in the Mosque which commences at 1 P.M. and ends around 1.40 P.M. The witness Bhikari (P.W.1) went to the place of incident at about 1.30 P.M. and laid by the side of Hanif alias Chhotak who was lying there since before. There was no conversation between Hanif alias Chhotak and witness Bhikhari. Bhikhari (P.W.1) separated from his brother 15 or 20 years before the occurrence and had separate residence situated at a distance of about 15-20 ''Latha'' from place of incident. There was no occasion for the witness Bhikhari (P.W. 1) to visit the place of his deceased brother. There was no matter for discussion with the victim nor he had talked to him. He did not make any effort to save his real brother except raising an alarm. He along with his son Yusuf and Shamim and other villagers took the victim to the district hospital by tempo but their names do not find mention in the death memo dated 29.9.2000 sent by the medical officer of district hospital at 2.30 P.M. to Inspector Incharge Kotwali Robertsganj. The testimony of the witness is that the doctor had informed about the death ten minutes after the medical examination and had sent information to the police station through his own man and he himself went to the police station Robertsganj 5 or 10 minutes after declaration of death by the doctor and stayed at the police station for about ten minutes and returned to the hospital from the police station but the First Information Report was not lodged. The distance between the District Hospital and P.S. Kotwali Robertsganj is less than 1/2 km. and it is coverable within 10 or 15 minutes. There is variance on the point as to when he went to the police station for making the report. According to Bhikhari (P.W. 1) he went to the police station 1/1/2 hrs. after the death of his brother whereas Yusuf (P.W.3) gave out that his father went to lodge the report between 4-5 P.M. As a matter of fact the First Information Report was lodged by him on 29.9.2000 at 5 P.M. which is highly belated. The inquest on the dead body was conducted on the basis of death memo received from the district hospital. The first informant Bhikhari, his son Yusuf and Shamim, son-in-law of the deceased are not witnesses to the inquest, which was conducted in the district hospital. It is against the human conduct for near relations to go away leaving the dead body and not to become witness to the inquest memo. There was no reason for their absence at the time of inquest proceedings.
Shamim (P.W.2) the real son-in-law of the deceased in his previous Statement disclosed that on 29.9.2000 he was present at the ''mosque'' situated in the village. In his testimony before the court he deposed that he was present at Tazima mosque Chowk. The village mosque is situated at a distance of about one km. from the house of the deceased Hanif alias Chhotak whereas Tazima Chowk Mazar was at a distance of 20 ft. from the place of offence. Obviously he made an improvement in his testimony about his presence at Tazima mosque to probablise his presence at the spot. The deposition of the witness was that about 25 or 30 persons were present at the house of Hanif alias Chhotak (deceased) when he reached there and witness Yusuf reached after him. It is there in his evidence that they came to know about the death of Hanif alias Chhotak in Robertsganj hospital at 2 or 2.15 P.M. and police of police station Robertsganj came to the hospital 15 or 20 minutes alter the death of Hanif alias Chhotak, and remained at the hospital till the completion of the inquest on the dead body, but he is not a witness to the inquest. He gave no reason for his absence at the time of inquest. He attends and offers ''Namaz'' on every Friday. There was no reason for not attending the ''Namaz'' at mosque on the fateful day which was Friday.
Yusuf (P.W.3) son of first informant and real nephew of the deceased admitted that the village Mosque where ''Namaz'' is offered was at a distance of five Latha from the place of offence. The incident took place on Friday. ''Namaz'' of Friday begins at 1 P.M. and ends within twenty minutes. He admitted that after ''Namaz'' there is recital of ''Farz'' for five minutes and of ''Sunnat'' for ten minutes. He admitted that he offers ''Namaz'' on Friday. The total time spent in offering of ''Namaz'' of Friday as disclosed by him comes to 35 minutes. The Friday Namaz having begun at 1 P.M., it would have ended at 1.35 P.M. He gave no reason for not offering ''Namaz'' on the date of incident. He admitted that the declaration about the death of Hanif alias Chhotak was made at about 2.30 P.M. by the doctor. He disclosed that intervening distance of hospital and police station Robertsganj is less than 1/2 km. but between 2.30 P.M. to 4 P.M. none of them went to the police station for making the report. He expressed ignorance as to when the police inspector reached hospital, conducted inquest and sent the dead body for postmortem. If he had accompanied the deceased to the hospital he would have associated in the proceedings of inquest on the dead body. According to him he met the police inspector at about 9 or 10 A.M. on the next day of incident. He being prosecuted by the deceased for causing him grievous hurt he had no sympathy for him. He tried to suppress the fact of his prosecution in a criminal case u/s 325 I.P.C. the first informant and injured of which was deceased for fear that admission about it will create a dent as to the veracity of his testimony. The witness stated to have reached at the spot a second before the witness Shamim.
On reappraisal of the testimony of eye witnesses we have found that Bhikhari (P.W.1) had no occasion to visit his deceased brother at 1.30 P.M. On 29.9.2000 which was Friday after giving up Friday Namaz. The delay of 2/1/2 hrs. in making the First Information report though police station was at a distance of less than 1/2 Km. from the hospital and absence of the witnesses at the time of inquest belies their presence at the spot and hospital. There is contradiction in the testimony of witness Shamim (P.W.2) with regard to the place where he was present at the time of occurrence. According to his previous statement he was present at village Mazar situated at a distance of one km. from the place of offence. The witness improved his testimony to make believe his presence at the spot and disclosed his presence at Tazima Mazar Chowk. The meeting of witness Yusuf (P.W.3) with police inspector for the first time at about 9 A.M.-- 10 A.M. on the next day of incident indicates that the occurrence did not take place within his full view.
Having considered the judgement of the court below and having independently perused the evidence we find that the court below has misdirected itself while coming to the conclusion that the prosecution has proved its case beyond reasonable doubt. In view of the foregoing discussion these appeals have-to be allowed.
Both the criminal appeals are allowed. The judgement and order dated 12.10. 2004 passed in S.T. No. 46 of 2001 is set aside. The appellants Gulam Hussain, Imtiyaz and Kallu are acquitted for the offence punishable u/s 302/34 I.P.C. The accused-appellant Gulam Hussain is on bail. He need not surrender. His bail bonds arc cancelled and sureties are discharged. The appellants Imtiyaz and Kallu are in jail. They shall be released forthwith, if not required in connection with any other case.
Certify the judgement to the lower court within a week. The original record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate Sonbhadra within four weeks from the date of receiving the copy of this order.