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Judgment
This appeal has been preferred against the
judgment and order of conviction dated 26.06.2012 and order of
sentence dated 03.07.2012, passed by the learned Additional
Sessions Judge (Fast Track Court No.1) Siwan, in Sessions Trial
No.354 of 1998, whereby both the appellants were awarded life
imprisonment and were also slapped with a fine of Rs.5000/- each
and, in default of payment of fine, they were further sentenced to
simple imprisonment for three months under Section 302 / 34 of the
Indian Penal Code. Appellant No.2-Zakir Mian was further
sentenced to undergo simple imprisonment for five years and was
slapped with a fine of Rs.2000/- and, in default of payment of fine,
he was further ordered to undergo simple imprisonment for two
months under Section 27 of the Arms Act. Appellant no.2 was
further sentenced to simple imprisonment for five years under
Section 4 of the Explosive Substance Act. Both the sentences
were directed to run concurrently.
The factual matrix of the case is that
informant, Najboon Nisa (P.W.3), wife of Md. Hanif gave her
fardbeyan before the Officer-in-Charge of Hussainganj Police
Station on 21.10.1997 at 8:15 PM at her house with the allegation
in succinct that on 21.10.1997 at about 6 PM when her husband
returned from Siwan after marketing and purchase for marriage of
her daughter and they all were in house and were seeing the
articles, in the meantime, appellant no.1-Shakir Mian and
appellant no.2-Zakir Mian along with two unknown miscreants
approached her husband and took him with them. On misgiving,
she along with her elder son followed them and started hearing the
interaction amongst them hiding in the bush of Moonj standing on
the road side. Meanwhile, appellant no.1-Shakir Mian gave order
to kill the husband of the informant. On this, appellant no.1-Zakir
Mian gunned down her husband by resorting two firing on him
and also hurled a bomb. Thereafter, her husband fell down and
was taken to hospital but he died. The informant witnessed Zakir
Mian and Shakir Mian armed with country made pistol in the
torch light flashed by him. She also witnessed two more persons
to whom she could not identify. Her husband was writhing lying
on the ground. The bone of contention is said to be animosity due
to performance of second marriage by her husband with the sister
of Zakir Mian.
The case was investigated. During course of
investigation, the police recorded the further statement of the
informant and statement of witnesses and inspected the place of
occurrence. On conclusion of investigation, the police submitted
the chargesheet under Section 302 / 34 of the Indian Penal, Section
27 of the Arms Act and Section 3/4/5 of the Explosive Substance
Act against the appellant. The learned Magistrate took cognizance
of the offence under Section 302 / 34 of the Indian Penal, Section
27 of the Arms Act and Section 3/4/5 of the Explosive Substance
Act and committed the case to the Court of Sessions for its trial.
The trial Court framed charge under Section
302 / 34 of the Indian Penal Code, Section 27 of Arms Act and
Section 4 of the Explosive Substance Act. Charges were read
over and explained to the appellants to which they pleaded not
guilty and claimed to be tried.
During course of trial, the prosecution has
examined altogether 11 witnesses, namely, P.W.1-Rustam Ali,
P.W.2-Asghar Ali, P.W.3-Narsingh Chaudhary, P.W.4-
Imamuddin, P.W.5-Anna Khatoon, P.W.6-Asma Khatoon, P.W.7-
Khalik Anwar @ Pappu, P.W.8-Tabasoom Khatoon, P.W.9-
Nagboon Nisa (informant), P.W.10-Dr. Uma Shankar Pandey and
P.W.11-Anirudh Singh. Out of the aforesaid witnesses, P.Ws.1, 2,
3, 4, 5 and 6 turned hostile, while P.W.11 is a formal witness who
has proved the formal F.I.R. The prosecution has also filed and
proved the documents in support of its case.
The statements of the accused persons were
recorded under Section 313 of the Cr.P.C. The case of the defence
is complete denial of the occurrence. The defence did not produce
either any ocular or documentary evidence in support of its case.
After hearing the parties and perusing the
record, the learned lower Court convicted the appellants under
Section 302 / 34 of the Indian Penal, Section 27 of the Arms Act
and Section 4 of the Explosive Substance Act vide its judgment
and order of conviction dated 26.06.2012 and sentenced him vide
order dated 03.07.2012 as mentioned in the earlier paragraph.
The point for consideration in this case is, as
to whether the prosecution has been able to bring home the
charges levelled against the appellants beyond all reasonable
doubt or not.
It has been submitted by learned counsel for
the appellants that all the material witnesses, being P.Ws.1 to 6
turned hostile, while P.Ws.7, 8 and 9, being the son, daughter and
wife of the deceased respectively are highly interested and
partisan witnesses. Moreover, their testimonies are full of
contradictions inter se intra se and also with prosecution case and
cannot be relied upon for conviction of the appellants. Medical
evidence also does not corroborate the prosecution case and the
ocular testimony of the aforesaid witnesses. The I.O. of the case
has also not been examined by the prosecution and for the want of
examination of I.O., the place of occurrence does not stand
established and the contradiction between the statement of the
aforesaid witnesses given before the Court and that before the I.O.
under Section 161 Cr.P.C. also does not stands corroborated
causing great prejudice to the appellants. Admittedly, there was
animosity between the appellants and the deceased and the
appellants have been falsely implicated in this case due to spite
and grudge. It has been further submitted by learned counsel for
the appellants that the source of witnessing the occurrence by the
informant, P.W.9 and his son, P.W.7 has also not been established
by the prosecution as the torch under which flash light they had
allegedly witnessed the occurrence was neither produced before
the police nor seized by it.
On the other hand, learned A.P.P. for the
State advocating the correctness and validity of the impugned
judgment and order of conviction and sentence passed by the
learned Court below, has submitted that the impugned judgment
and order of conviction and sentence has been passed correctly &
rightly appreciating the evidence on record and the facts of this
case and the same is liable to be upheld and this criminal appeal
has no force and substance and is liable to be dismissed.
From perusal of records, it transpires that
Khalik Anwar @ Pappu (P.W.7) happens to be the son of the
deceased, Tabasoom Khatoon (P.W.8) happens to be the daughter
of the deceased and Nazboon Nisa (P.W.9), informant happens to
be the wife of the deceased. Thus, these three witnesses are
highly interested witnesses of the case. But it is the settled
principle of law that testimony of the interested and partisan
witnesses could not be discarded out-rightly, rather it should be
scanned and scrutinized with great care and caution and, if after
scanning his testimony is found reliable, trustworthy and inspire
the confidence of the Court then the conviction can be made even
on the basis of testimony of the interested witnesses.
As per the prosecution case as stated in the
fardbeyan, there were four accused persons, i.e. the appellants and
two unknown miscreants involved in the occurrence but in quite
contradiction to the aforesaid case Nazboon Nisa (P.W.9),
informant in paragraph-3 of her examination-in-chief, has stated
that there was none with the appellants at the time of occurrence.
Tabasoom Khatoon (P.W.8) has also stated in paragraph-3 of her
examination-in-chief that she had seen the appellants escaping
from the place of occurrence. As per the prosecution case and
account of P.Ws.7, 8 & 9 when the appellants took the deceased
with them on road P.Ws.7 & 9 had followed them and had
witnessed the occurrence hiding themselves behind the Moonj
bush standing adjacent to the road, but in quite contradiction to the
aforesaid prosecution case and the statement of the witnesses,
informant (P.W.9) has stated in paragraph-13 of her cross-
examination that when she arrived at the place of occurrence
around 100 villagers were present there. They were loading her
husband on the jeep which means that P.W.9 was not present in
the vicinity of the place of occurrence at the time of occurrence
and witnessed the occurrence, rather she had arrived there after the
congregation of the villagers following the occurrence. The said
statement of the informant also rules out the presence of her son
Khalik Anwar @ Pappu (P.W.7) in the vicinity of the place of
occurrence and witnessing the occurrence by him, as per the
prosecution case and statement of P.W.7 he was present there with
P.W.9 at the time of occurrence. The aforesaid aspect of the case
also goes to suggest that both these witnesses i.e. P.Ws.7 & 9 are
not eye witnesses of the occurrence and they were not present in
the vicinity of the place of occurrence at the time of occurrence.
From perusal of the testimony of Tabasoom
Khatoon (P.W.8), it appears that she also does not happen to be
eye-witness of the occurrence as in paragraphs-2 & 3 of her
examination-in-chief she has stated that she had arrived at the
place of occurrence listening the screaming of her mother and
brother and sound of gun firing & explosion of bomb and
witnessed her father injured, which means that she had not seen
the appellant no.2-Zakir Mian assaulting the deceased by means of
fire arm & bomb on the order of appellant no.1-Shakir Mian.
Though in paragraph-3 of her examination-in-chief, she has stated
that she has witnessed the appellants escaping, but in paragraph-7
of her cross-examination she has candidly stated that there was
stampede in the village by explosion of bomb. She stepped out of
her house amid the said stampede and rushed to the place of
occurrence and when she arrived there, besides her family
members 50 to 60 villagers were present there. They were loading
her injured father on the jeep. The aforesaid statement of P.W.8
rules out witnessing of the occurrence by her.
Thus, on perusal of the aforesaid testimony
of P.Ws.7, 8 & 9 and the prosecution case, it appears that there is
vital contradiction between the prosecution case and statement of
the aforesaid witnesses and in the statement of the witnesses inter
se and also in the statement of witnesses intra se regarding number
of accused persons involved in the occurrence and witnessing of
occurrence and on the basis of aforesaid contradictions, the
testimonies of the aforesaid witnesses does not appear to be
reliable, convincing and worth credence and it does not inspire our
confidence to hold the conviction of the appellants relying upon it.
Informant, P.W.9, in paragraph-3 of her
examination-in-chief, has stated that her husband had died around
at 8 PM. In paragraph-11 of her cross-examination she has further
stated that her husband had died on the way to hospital but as they
were not assured of his death they took him to the hospital. She
has further stated in the said paragraph that she had divulged the
occurrence to the constable and S.I. at the Sadar Hospital, Siwan
and put her thumb impression thereon. P.W.8 in paragraph-9 of
her cross-examination has stated that Sadar Hospital, Siwan is 20
Km. away from her village. She has further stated that her mother
had regressed to the house from the hospital in the night. Which
means it must have taken considerable time in reaching hospital
from village, giving her statement before the police in the hospital
and then regressing to the house from the hospital. But from
perusal of the fardbeyan of the informant, it appears that it was
recorded on the same day at 8:15 PM at her house. So this aspect
of case creates serious doubt about the sanctity of the fardbeyan
and the prosecution case.
As per the prosecution case & the statement of P.Ws.7, 8 & 9, appellant no.2-Zakir Mian resorted
two firing on the deceased. He also assaulted him by means of
bomb. But the doctor, who has conducted the autopsy of the dead
body of the deceased, has opined the injuries found on the person
of the deceased caused by explosive substance, resulting into his
death. Thus, the medical evidence also does not go to corroborate
the prosecution case.
P.W.7 has stated in paragraph-5 of his
examination-in-chief that they witnessed the occurrence in the
torch light flashed by him. In paragraph-19 of his cross-
examination, he has further stated that he did not handover the
said torch to the I.O. The I.O. has also not seized the said torch.
Thus, the source of witnessing the occurrence has also not been
proved by the prosecution.
Informant (P.W.9) has stated in paragraph-
11 of her cross-examination that she had divulged the occurrence
to the constable and S.I. at the Sadar Hospital, Siwan and put her
thumb impression thereon. But, from perusing the fardbeyan of
the informant, it appears that it was recorded at her house.
Further, P.W.8 has stated in paragraph-4 of her examination-in-
chief that she had given statement to the police at 8 PM earlier to
that of her mother (informant). She put her signature on her
statement. Thus, the said statement happens to be earlier to that of the informant given at the Sadar Hospital, Siwan and also at her
house. The aforesaid aspect of the case candidly indicate that the
F.I.R. lodged in the case on the basis of the fardbeyan of the
informant recorded at her house at 8:15 PM does not happen to be
the first information report regarding the occurrence, rather the
first information report of the occurrence is that given by her
daughter (P.W.8) earlier to her but the said first information report
has not been brought on record to the best of knowledge of the
prosecution, which creates serious doubt about the sanctity of the
F.I.R. and the prosecution case.
The I.O. of the case has not been examined
by the prosecution and for the want of examination of I.O. place
of occurrence does not stand established. Moreover, the
contradictions between the statements of the witnesses given
before the Court and that given before the I.O. under Section 161
Cr.P.C. has also not been corroborated by non-examination of the
I.O. causing great prejudice to the defence.
Thus, on perusal of the aforesaid evidence
of the prosecution, it appears that the prosecution has utterly and
miserably failed to substantiate its case and guilt of the appellants
by adducing cogent, convincing, reliable and worth credence
evidence. Hence, the appellants are acquitted from the charges
levelled against them. As the appellant no.1- Sakir Mian is on bail, he is discharged from the liability of his bail bond while
appellant no.2-Zakir Mian is directed to be released forthwith
from the custody, if not wanted in any other case. Accordingly,
this appeal is allowed and impugned judgment and order of
conviction and sentence passed by the learned Lower Court is set
aside.