Vijay Bahadur Singh vs M.P. Pollution Control Board

This criminal appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 17.01.2007 passed by Sessions Judge, Bhopal in Sessions Trial No.5/2006, whereby the learned Judge found appellant guilty for the offences punishable under Sections 302 & 452 of IPC and sentenced him to life imprisonment with fine of Rs.5,000/- and three years rigorous imprisonment with fine of Rs.5,000/- with default stipulation respectively.

Brief facts of the prosecution case are that on 08.09.2005 at 02:30 PM, when deceased Tabussum was at her neighbour Nasiruddin's house with his wife Shahida (P.W.7) in house No.16 situated at Street No.2, Bagh Farhat Afzab, the appellant came there armed with country made pistol (katta) and fired on her, due to which, she sustained gunshot injury in her chest and Jarina (P.W.1), Shanu (P.W.3) & Nasiruddin (P.W.6) have also saw the incident. Nasiruddin (P.W.6) took Tabussum with the aid of neighbours to P.S. Aishbagh, where he lodged the report (Ex.P-7). On that report, police registered Crime No.432/2005 against the appellant for the offences punishable under Sections 307 & 452 of IPC and Sections 25 & 27 of Arms Act. P.N. Tiwari (P.W.8), the then ASI of P.S. Aishbagh, investigated the matter. During investigation, he sent Tabussum for medical examination to Hamidia Hospital. In the hospital, duty doctor S.K. Ahirwar (P.W.5) examined Tabussum and gave MLC report (Ex.P-6) and admitted her in the hospital for further treatment. Thereafter, P.N. Tiwari (P.W.8) went to the spot and prepared the spot map (Ex.P-8) and also collected the blood stained soil and simple soil from the spot and prepared seizure memo (Ex.P-9) and recorded case diary statements of Smt. Jarina (P.W.7), Nasiruddin (P.W.6 ) & Smt. Sahida (P.W.1). Rishi Maurya (P.W.4) recorded the dying declaration of Tabussum (Ex.P/5). Tabussum died during treatment on 09/09/05. On that, P.N. Tiwari (P.W.8) went to Hamidia Hospital on 09.09.2009 and prepared inquest memo of dead body of Tabussum (Ex.P-12) before panch witnesses and sent her dead body to postmortem. Dr. Jayanti Yadav (P.W.2) conducted the postmortem of dead body of Tabussum and gave post mortem report (Ex.P-2) to the effect that Tabussum died due to gunshot injury. The investigation of the crime was also conducted by N.S. Damley (P.W.10), the then S.H.O. P.S. Aishbagh, who recorded the statement of injured Tabussum on 08.09.2005 and on 09.09.2005 arrested the appellant and prepared arrest memo (Ex.P-2). On interrogation, appellant gave the information regarding seizure of country made pistol. On that information, he seized one country made pistol from the dickey of appellant's scooter bearing registration No.MP04-D-2126 in the barrel of that pistol one empty cartridge was also present and he prepared information memo (Ex.P-14) and seizure memo (Ex.P-15). He also recorded the case diary statements of Ayub (Ex.P-16), Smt. Noorjaha (Ex.P-17) and Tabussum (Ex.P-18). He also got the seized country made pistol examined.

Sarabjeet Singh Examined that pistol and gave the report (Ex.P/12) that seized pistol was in serviceable condition. He also sent all seized articles for examination to F.S.L. Sagar. After completion of investigation, police filed charge-sheet against appellant/accused before the Judicial Magistrate First Class, Bhopal, who committed the case to the Court of Sessions. On that charge-sheet, S.T.No.5/2006 was registered. Learned Sessions Judge framed charge against the appellant for the offences punishable under Sections 302 & 452 of IPC and Sections 25 & 27 of Arms Act and tried the case. The appellant/accused abjured his guilt and took the defence that he had falsely been implicated in the case. The prosecution produced as many as 10 witnesses to prove its case, however, after trial learned Sessions Judge acquitted the appellant from the charge under Sections 25 & 27 of Arms Act but found him guilty for the offences punishable under Section 302 & 452 of IPC and sentenced him as aforesaid. Being aggrieved from that judgment, appellant filed this Criminal Appeal.

Learned counsel for the appellant submitted that learned trial court without properly appreciating the prosecution evidence wrongly found the appellant guilty for the offences. From the statements of so-called eye witnesses Jarina (P.W.1), Shanu (P.W.3), Nasiruddin (P.W.6) & Sahida (P.W.7) it clearly appeared that they did not see the appellant firing on deceased Tabussum. Although police also produced dying declaration of Tabussum (Ex.P/5). But that dying declaration is also doubtful as prosecution did not produce the doctor who certified that Tabussum was fit to give statement at the time of giving that dying declaration. On the contrary P.N. Tiwari (P.W.4) clearly deposed in his statement that when Tabussum was brought to Police Station Aishbagh, she was not even in the condition to speak. Even Tabussum in her dying declaration had deposed that she was not feeling well which shows that she was not fit to give dying declaration when she gave it . Even in the dying declaration Tabussum did not state the name of the assailant. In the dying declaration it is mentioned that her husband had fired on her but appellant was not Tabussum's husband at the time of incident because he had already given divorce to Tabussum before the incident as clearly proved from the statement of Mohammad Athar (DW-1). Likewise persecution also failed to prove the seizure of so-called country made pistol (Katta) from the dickey of scooter and that the appellant was the owner of that scooter. There is no evidence on record that so called country made pistol was used in committing the offence.

Prosecution also failed to prove any motive of the appellant to kill his divorced wife. Learned Trial Court without appreciating these facts wrongly found the appellant guilty for the offences. Hence, counsel prayed that the impugned judgment be set aside and the accused be acquitted from the said offences.

On the other hand, learned counsel for the respondent/State has vehemently opposed the submissions of the counsel for the appellant and fully supported the judgment of the Trial Court and submitted that from the prosecution evidence the guilt of the appellant is clearly proved. Learned trial Court did not commit any mistake in holding the appellant guilty for the offences punishable under Sections 302 & 452 of IPC and prayed for rejection of appeal.

Point of determination in this appeal is whether the conviction and sentence awarded by the trial court to the appellant under Sections 302 & 452 of IPC are liable to be set aside for the reasons stated in the memo of appeal and raised during arguments.

On the point that Tabussum died on 08.09.2005 and her death was homicidal which amounts to murder, Dr. S.K. Ahirwar (P.W.5) deposed that on 08.09.2005, he was posted as C.M.O., Hamidia Hospital on the emergency duty. At 2:50 PM, Constable No.2263, Sardar Singh Gurgar, P.S.

Aishbagh brought Tabussum in the hospital. He examined her and found that Tabussum sustained one gunshot injury in her chest. His statement is also corroborated from the report (Ex.P-6), which was given by him. Dr. Jayanti Yadav (P.W.2) deposed that on 09.09.2005, she was posted as Assistant Professor in Forensic Medical Department. On that date at about 11:45 AM, Constable No.1963, Devi Singh, P.S. Aishbagh brought the dead body of

Smt. Tabussum, wife of Ubed for autopsy. On that, she started postmortem of dead body Smt. Tabussum at 11:50 AM and found that the dead body was of an average built female aged about 21 years. Her body was covered with black and yellow bed-sheet and a black dupatta. She was wearing orange and grey color kurta which was torn from midline. Blood stains and blackening was also present on that kurta. She was also wearing one yellow colour salwar which was also torn and blood stains were also present. Her eyes was closed. Blood was oozing out from both the nostrils and mouth.

Clotted Blood was also present over chest and face. Rigor mortis was present all over the body. Hypostasis was fixed on back. She found following external injuries on her body:-

(i) Firearm entry wound was present over chest in midline at the level of nipple, 134 cm above the heel. Wound is 0.9 x 0.5 cm vertical in size. Tattooing present all around. Tattooing is 4.5 cm vide along upper margin of the wound and 5.2 cm along lower margin. The tattooing is more spread and dispersed in longer area in right lower margin. (ii) The wound has a slicing margin on left side and flapping margin on right side. The wound is oval in shape. (iii) The wound has entered the thoracic cavity by piercing the sternum nearly at mid at the level of 5 th rib. Sternum was fractured transversely at this level. Underneath partly clotted Blood present in mediastinum between both lungs and in both thoracic cavity of about 2.5 liters. Bullet recovered from right lumbar region within posterior abdominal muscles at level of L3 vertebra, 117 cm above heel, 14 cm right to midline. The bullet after entering the thoracic cavity has pierced the apex of heart through and through and then piercing the diaphragm on right posterior aspect lodged in right posterior abdominal muscle. She further deposed in his opinion that Tabussum died due to shock and haemorrhage which was caused due to firearm injury sustained by her in her chest and her death was homicidal in nature. Duration of death was within 24 hours from the time of postmortem. His statement is also supported from post mortem report( ExP-3).

Dr. S.K. Ahirwar (P.W.5) and Dr. Jayanti Yadav (P.W.2) are the independent witnesses and there is no infirmity in their statements in this regard. So there is no reason to disbelieve their statements. From their statement, it is clearly proved that on 08/09/05 Tabussum sustained gunshot injury on her chest and died on 09.09.2005 during treatment due to the injuries sustained and that her death was homicidal which amounts to murder.

As regards the fact whether appellant murdered Tabussum, Rishi Mourya (P.W.4) who recorded the Dying Declaration of deceased Tabussum (Ex.P/5) at Hamidia Hospital Bhopal, deposed that on 28.01.2004 after obtaining the certificate from duty doctor that Tabussum was fit for giving statement, he recorded Tabussum's statement in which she stated that her husband Ubed (appellant) doubted her character and at about 1-2 PM when she was sitting at Babbu's house, he fired at her and at that time Babbu and her husband were also present. Her Dying Declaration is also corroborated from medical evidence and the statement of Jarina (P.W.1) who deposed that On the date of incident, on hearing the noise of a gunshot, she went out from her house and saw that one person was coming out from the house of Nasiruddin armed with gun. Thereafter, when she went inside Nasiruddin's house and saw that Tabussum was lying there in injured state. She had sustained gun shot wound in her chest. Some people took Tabussum to P.S.

Aishbagh. During treatment Tabussum died. Tabussum also told her that appellant fired on her.

In this regard prosecution story also gets strengthened by the statement of Nasiruddin (P.W.6), who clearly deposed that deceased Tabussum was his neighbour. On the date of incident at about 2-2.30 PM when he returned from the work to his house Tabussum was sitting there and talking to his wife. Appellant came there and entered inside his house armed with country made pistol (katta). He further deposed that when appellant came out of his house after firing at Tabussum, he was standing outside his house and appellant told him to run away or he would shoot him too. When, he went inside his house he saw that Tabussum had fallen on the ground and had injury on her chest and his wife Sahida and other neighbours also came

there. He took Tabussum to P.S. Aishbagh by auto and lodged the report (Ex.P-7) which was also proved by P.N. Tiwari (P.W.8) the then Station House Officer, P.S. Aishbagh.

His statement is also corroborated by the statement of his wife Sahida (P.W.7), who also deposed that on the date of incident at around 2-2:30 PM Tabussum was sitting with her in her house when appellant Ubed-husband of Tabussum came there and enquired to her about Tabussum, she told him that Tabussum was sitting there and he fired on Tabussum and asked her to to run away otherwise he would shoot her too.

On the point that whether appellant had gone to Nasiruddin's house in search of Tabussum on the date of incident prosecution story is also corroborated from the statement of Shanu (P.W.3) who deposed that Tabussum was his sister. On the date of incident, Tabussum had gone to Nasiruddin's house. At 12 PM, appellant came and inquired about Tabussum to him on which he told him that Tabussum had gone to Nasiruddin's house so appellant went to Nasiruddin's house.

On the point whether the appellant fired on Tabussum the prosecution story is also supported from the circumstantial evidence collected by N.S.

Damle (P.W.10) during investigation who deposed that on 09.09.2005 he arrested the appellant and prepared arrest memo (Ex.P-13). Thereafter, he interrogated the appellant and seized one country made pistol on the information of the appellant from the trunk of his scooter bearing registration No.MP-04-D-2126 and prepared information memo (Ex.P-14), seizure memo (Ex.P-15) and also seized that scooter and Saranjeet Singh (P.W.9) who examined that pistol, deposed that on 21.10.2005, he was posted as Assistant Sub-Inspector at Police Line Nehru Nagar, Bhopal. On that day, he examined country made pistol (katta) and found that the firearm was 315 bore country made pistol which was in serviceable condition and gave report (Ex.P-12).

Learned counsel for the appellant submitted that prosecution did not produce the Doctor who endorsed certification on Dying Declaration of deceased Tabussum (Ex.P/5) to that effect that she was in a fit state at the time of giving Dying Declaration. On the contrary, in the Dying Declaration (Ex.P/5), it is mentioned that Tabussum herself stated in reply to a question that she was not conscious which shows that at the time of giving Dying Declaration Tabussum was not in a fit state. Even otherwise, in the Dying Declaration (Ex.P/5), Tabussum did not mention the name of assailant, who fired on her. It is only stated that her husband fired on her, while appellant had already given divorce to Tabussum before the incident as proved from the statement of Mohd. Athar (D.W.1) and the consent divorce document (Ex.D/2). Even in the Dying Declaration, Tabussum stated that at the time of incident, she was in the house of Babbu, while according to prosecution story, the appellant fired at Tabussum in the house of Nasiruddin (P.W.6), so the whole prosecution story becomes doubtful. Learned trial court committed mistake in believing the Dying Declaration (Ex.P/5). Likewise so called eye witness Jarina (P.W.1) clearly admitted in her statement that she did not see the person who fired at Tabussum and she also deposed that she did not know the appellant so from her statement, it is not proved that the appellant fired on Tabussum in the incident. Other eye witness, Shanu (P.W.3) also stated that he did not know who murdered Tabussum and he clearly denied that appellant fired at Tabussum and also denied having given case diary statement (Ex.P/4) to that effect. Nasiruddin (P.W.6) also did not depose that he saw the appellant firing on Tabussum. On the contrary, he only deposed that he saw the appellant, when appellant came out from his house, which shows that this witness had also not seen the appellant firing at Tabussum. Sahida (P.W.7) also admitted in her cross-examination that she did not give case diary statement (Ex.D/2) to the police to the effect that appellant fired on Tabussum with intent to kill her, which clearly shows that this witness also did not saw the appellant firing on Tabussum. But his arguments have no force.

Although, prosecution did not produce the doctor who endorsed the certificate regarding fitness of Tabussum to give Dying Declaration (Ex.P/5). But Rishi Maurya (P.W.4) who is independent witness clearly deposed that he recorded the Dying Declaration (Ex.P/5) of Tabussum after certification of doctor. There is no reason to disbelieve his statement.

Although in answer to question, "What happened thereafter" Tabussum stated that "she is not conscious". But from the reading of whole dying declaration (Ex./P5), it clearly appears that the answer was given by the Tabussum in the Context that what happened soon after the incident. So only on that answer it can not be inferred that at the time of giving the dying declaration (Ex./P5) Tabussum was not fit to give statement. Zarina (PW/1) also deposed that soon after the incident when she reached on the spot Tabussum told her that appellant had fired on her. Appellant did not challenge her statement on that point in his cross examination. Although Mohammad Athar (D.W.1) deposed that appellant gave divorce to Tabussum on 14.07.2004. He also produced talaknama (Ex./D-2) in support of his statement. But in her Dying Declaration she clearly stated that her husband's name was Ubed (appellant) and her husband fired at her. So from the dying declaration (Ex.P/5) of Tabussum it is clear that she gave the statement calling appellant (Ubed) as her husband. From the statement of Nasiruddin (P.W.6) and Sahida (P.W.7) also it is proved that appellant is the person who had fired on Tabussum. So statement of Mohammad Athar (D.W.1) has no significance. Likewise Tabussum stated in her Dying Declaration that the incident occurred at the house of Babbu but from the statement of Nasiruddin (P.W.6) Sahida (P.W.7) and Jarina (P.W.1), it is clear that incident occurred at the house of Nasiruddin/Sahida. Appellant also not challenged the statements of above mentioned witnesses in their cross-examination on that point. From their statement it also appears that Sahida (P.W.7) is Babbu none else.

Although, Nasiruddin (P.W.6) did not depose that he saw the appellant firing at Tabussum but he clearly stated that appellant entered his house with country made pistol and came out after firing on Tabussum from his house, at that time, he was standing at the door of his house and thereafter, when he went inside the house he saw that Tabussum sustained gunshot injury on her chest, which clearly shows that appellant fired on Tabussum. Although Sahida (P.W.7) in her cross-examination stated that she did not give the statement to the police that appellant fired on Tabussum with the intent to kill her but in this regard her statement is to be considered as a whole not in piecemeal. She clearly stated in her examination-in-chief that She was washing the clothes at the time of the incident. Tabussum was sitting near her. The accused came and asked her where Tabussum was and, she told him that Tabussum was sitting there on which the accused shot Tabussum which clearly shows that she saw the appellant firing at Tabussum. So there is no question to disbelieve the prosecution story that appellant fired on Tabussum.

Regarding seizure of country made pistol from the trunk of scooter bearing registration No.MP-04-D-2126 on the information of appellant, there is no contradiction in the statement of N.S. Damle (P.W.10), so his statement cannot be discarded only on the ground that prosecution did not produce independent witnesses of information memo (Ex.P-14) and seizure memo (Ex.P-15). As the ownership of scooter is concerned, the appellant himself in his examination under Section 313 of CrPC in reply to question No.41 clearly admitted that the said scooter was his. Although prosecution also not produce that seized country made pistol during evidence but from the statement of Sharanjit Singh (PW/9) who had examined that seized country made pistol it is proved that the seized pistol was 315 bore country made pistol, and was in a serviceable condition.

Even otherwise, for the sake of argument if it is assumed that seizure of country made pistol is not proved then too the whole prosecution story cannot be discarded on that ground. The seizure of country made pistol from the possession of the appellant is only a corroborating piece of evidence where prosecution story is proved from the direct evidence that there is no effect of not proving the seizure of weapon. From the Dying Declaration of Tabussum which is also corroborated by the statement of eyewitness of incident Nasiruddin (P.W.6) and Sahida (P.W.7), and the other prosecution evidence, it is clearly proved that appellant fired at Tabussum. In Dying Declaration, Tabussum also stated that appellant doubted her character, which also proves the motive behind murder by the appellant.

Thus, from the evidence on record it is clearly proved that on 08.09.2005 Ubed fired on deceased Tabussum by country made pistol (katta) with an intention to kill her due to which she died. In the considered opinion of this court, learned trial court did not commit any mistake in finding appellant guilty for the offences punishable under section 302 & 452 of IPC.

So conviction of the appellant Ubed under Sections 302 & 452 of IPC is hereby upheld.

The sentence for life imprisonment and fine of Rs.5,000/- and three years rigorous imprisonment with fine of Rs.5,000/- with default stipulation is also adequate and this Court does not find any reason to interfere with the judgment. Hence, appeal filed by the appellant/accused stands dismissed.

The appellant, who is in the custody, shall serve the remaining part of the sentence, in accordance with law. Both jail sentences shall run concurrently.

The period already undergone shall be set off from the period of substantive jail sentence.

Accordingly, the appeal stands dismissed.