Hakimuddin @ Hakim vs State
2011 Latest Caselaw 1668 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
RESERVED
 

 

 
CRIMINAL JAIL APPEAL NO 5456 OF 2007
 

 
Hakimuddin alias Hakim..........v............State of U.P.
 

 
Hon F.I.Rebello, CJ
 
Hon Imtiyaz Murtaza J
 

 

 
(Delivered by Hon Imtiyaz Murtaza J)
 

 

 
	Present Appeal has been preferred by the appellant from Jail assailing the judgment and order dated 9.10.2006 rendered in ST No 46 of 2002 whereby the appellant has been convicted for offences under section 302 IPC and sentenced to suffer imprisonment for life attended with sentence of fine of Rs 2000/- with default stipulation to suffer imprisonment for one year. The appellant was also  convicted under section 386 IPC and sentenced to suffer seven years RI studded with a fine of Rs 500/- followed by default stipulation of undergoing one year imprisonment. The appellant was further convicted for offences under section 25 (1) (1-A) of the Arms Act and sentenced to suffer imprisonment for five years and a fine of Rs 1500/- with default stipulation of one year RI. All the sentences were directed to run concurrently.
 

 
	The FIR was lodged in this case by the person called Noor Mohd alias Gabbar at police station Delhi Gate Meerut on 27.10.2001 at 4.20 pm. He claimed to be employee of the deceased. As a sequel to the written report submitted at the police station by the complainant, the case was registered at case crime No 504 of 2001 under section 386/302/307 Arms Act followed by registration of case at case crime no 505 of 2001 under section 25 Arms Act on 27.10,2001 at 4 pm. The report, it would appear from the record, was scribed by one Sandeep Mohan Goyal.
 

 
	Shorn of unnecessary details, the facts of the case are that on 27.10.2001 at 2.45 pm, when the complainant was present at the shop of which proprietor was Surendra Bhatia (deceased), the appellant who was a notorious criminal of the area, came brandishing country made pistol and demanded protection money from the deceased. The deceased Surendra Mohan refused to comply with the demand upon which the appellant pointed pistol on the face near nose and fired the shot. Receiving shot, the deceased slumped down on the ground. It is further alleged that the people of the nearby area started running helter skelter. Thereafter, the appellant walked away from the scene of occurrence flourishing pistol. In the meantime, two police constables happened to be nearby who upon hearing the shot rushed to the scene and chased the assaillant. The assaillant in his bid to escape, took about turn towards the shop where he was encircled and was arrested on the spot. After the occurrence, the deceased who was then breathing, was rushed to hospital on a rickshaw but he succumbed to injuries in the P.L.Sharma hospital.
 

 
	The inquest was conducted on the body of the deceased and the papers were prepared and the body was sent for post mortem examination.
 

 
	The investigation of the case was taken over by SI Rajesh Kumar Dwivedi who recorded statements of the witnesses and prepared recovery memos, collected stained and simple earth from the occurrence. He also prepared site plan. After completing investigation, the investigating officer submitted charge sheet in the Court on 5.9.2003.
 

 
	The prosecution in its bid to prop up its case examined in all nine witnesses out of whom PW 1 Noor Mohd, PW 2 Sandeep Mohan Goyal, PW 3 Anil Kumar Bhatia PW 4 Rajesh Bhatia, PW 5 Vinod Bhatiya have been examined  as ocular witnesses of the occurrence. PW 1 Noor Mohd, PW 2 Sandeep Mohan Goyal and PW 4  Rajesh Bhatiya were declared as having been gained over.
 

 
	The appellant was unrepresented in the court below and therefore, he was given assistance of Amicus Curiae. The case of defence was one of denial. The accused claimed to be innocent. He denied that any recovery was made or he was arrested from the spot. He also stated that the witnesses were deposing falsely against him.
 

 
	The Sessions Judge relying upon the prosecution evidence, recorded verdict of conviction against the  appellant as aforesaid and hence this appeal.
 

 
	Since appellant was unrepresented in this Court, Sri Ravindra Sharma was appointed Amicus curiae in this case who was heard accordingly. Sri Sharma very ably argued the case at prolix length. We have also heard Sri K.N.Bajpai Additional Government Advocate.
 

 
	Learned counsel for the appellant assailed the finding on the premises that the evidence on record is not adequate and convincing to warrant the conviction. He also challenged the finding submitting that the prosecution has miserably failed to prove its case attended with submission that three of the witnesses which were examined as ocular witnesses did not support the prosecution case. Lastly it is argued that in the facts and circumstances of the case, the sentence imposed on the appellant errs on the side of severity.
 

 
	Per contra, learned AGA has canvased for the correctness of the view taken by the trial judge attended with submission that sufficient evidence was adduced by the prosecution and the Sessions Judge rightly convicted the appellant relying on the prosecution evidence.
 

 
	In order to appreciate the aforesaid rival contentions of learned counsel for the parties, we have to independently scrutinize the oral and documentary evidence brought on record by the prosecution.
 

 
	The quintessence of deposition of PW 1 is that he was an employee at the shop of the deceased. On the day of occurrence, he had gone to his house for taking lunch. When he came back to the shop, he found that deceased had been shot at. He deposed that appellant had not demanded any money from the deceased nor had he fired shot at the deceased in his presence. When he arrived at the shop, the deceased was lying injured and blood was oozing out from the wounds. He also deposed that the victim was immediately rushed to the hospital on a rickshaw where he was declared dead. He also deposed that by the time he arrived at the scene, the assailant who had fired at the deceased had already escaped. He denied that appellant had fired shot at the deceased in his presence. He also denied that he had been won over by the accused. He denied to have given any statement to the investigating officer and when confronted with his statement, he could not explain. This witness was declared as having been gained over and was extensively cross examined.
 

 
	The next witness is PW 2 Sandeep Mohan Goyal. His deposition quintessentially is that he had scribed the report on the dictation of Noor Mohd. He denied any knowledge who had fired at the deceased. He also denied knowledge about arrest of Hakimuddin appellant from the scene of occurrence. He also denied that inquest was conducted in his presence. When he was confronted with his signatures on inquest report, he admitted the same to be his signatures. He denied to have given any statement to the investigating officer and when confronted, he could not explain. He denied that he was deposing falsely on account of fear of reprisal from the accused. On being queried whether the accused was the same person, he denied that the person was known to him. This witness was also declared as having been gained over and was extensively cross examined by the prosecution.
 

 
	PW 3 Anil Kumar Bhatia deposed that when he heard that Surendra Bhatia has been shot at, he rushed from his house on his scooter. He admitted his relationship with the deceased. He also deposed that information was received from Noor Mohd and he was also apprised that the deceased was fired at by the appellant. when he arrived at the scene of occurrence, he saw the police and appellant Hakimuddin who was in police custody. He admitted that inquest was conducted in his presence. He also identified his signatures on inquest report. In cross examination, he reiterated his version that he came at the scene after being informed on phone. He also stated that he signed the papers on being asked. He also stated that the police had not arrested the accused in his presence. He denied the suggestion that he was deposing falsely being close relative of the deceased.
 

 
	PW 4 Rajesh Bhatia deposed that murder was not committed in his presence. He also denied knowledge as to who murdered the deceased. He also deposed that when he arrived at the scene, the deceased had already been taken to hospital. This witness was also declared as having been gained over. In cross examination, he denied to have given any statement to the investigating officer. He also denied to have seen the accused firing at the deceased. He also denied that he had seen the accused in custody of the police when he arrived at the scene of occurrence.
 

 
	PW 5 Vinod Bhatia deposed that at about 3 pm he had gone to meet the deceased on his grocery shop. Before he could reach the shop, he saw that deceased was being threatened who was flourishing pistol at him and was demanding money from him. He also deposed that initially, he became nervous and subsequently, when he rushed towards the shop. the assailant had fired the pistol and the shot hit the neck of the deceased. When the assailant tried to escape all the shop keepers joined hands and gave a chase and ultimately, the assailant was apprehended. He also deposed since he was panicked he rushed back to his house. Subsequently, he came to know that the deceased was taken to hospital on a rickshaw but by that time, the deceased had breathed his last. This witness identified the appellant who had fired at the deceased. He also deposed that appellant was identified by the people present at the scene as Hakimuddin.
 

 
	In cross examination, he stated that his house was situated at a distance of 1/2 Kms from the place of incident. On the day of occurrence, he had gone to see Surendra Bhatia alongwith Anil Bhatia who was the son of his uncle. The shop of Surendra Bhatia was situated in a lane which was visible from front side and he had seen the accused from a distance of about 10-15 paces. He also stated that the accused was demanding money from Surendra by showing pistol. He also identified the accused in the Court. He denied that it was not possible to see the place of incident from the place from where I had seen.. He also stated that when he saw the incident he was about 2-4 paces away and he shouted and ran back to his house where he informed his family members. He also stated that he had panicked and was trembling. He denied that accused was arrested in his presence and he came to know later-on that the accused had been arrested. He also stated that when he went to police station, the accused was lodged in lock-up. He denied that he had not seen the incident and was deposing falsely.
 

 
	PW 6 is Dr R.K.Gupta who at the relevant time was posted as Medical officer at P.L. Medical College Meerut. He deposed that he had conducted post mortem on the dead body and found following ante mortem injuries on his person.
 

 
1.

Gun shot wound of entry 1x2 cm on right side of face 5 cm outer to the right nostril. Whole of the face was Ecchymosed. Gun powder was present all over the face and forehead. The margins of the wound were inverted.

2. Gun shot wound of exit 3x 2 cm x brain cavity deep on the back of head, 11 cm above the left ear. The margins were everted.

On dissection of body, the Doctor found the condition as below.

1. Frontal, temporal parietal and occipital bone on right side were found fractured. Right maxilla bone was also fractured.

2. The brain matter and subdural and extridural membranes were lacerated and haemotoma was present.

3. Anterior, middle and posterior crivial fossa were fractured.

4. Both the lungs were pale. The stomach contained 100 gms of semi digested food. The liver was pale. The gall bladder was half filled. Spleen was also pale. Its weight was 90 gms. Kidney was 220 gms in weight.

He opined that excessive bleeding and shock caused by fire arm injuries were the causative factor of death.

In cross examination, the doctor stated that the injury was possible from a distance of 3 feet and from a close range. He stated that the deceased had received only one entry and exit wound. The entry wound was on right side of nose and exit wound was on left side of head. He also stated that if the shot is fired in a straight direction it would make its exit on back. He also stated that if shot is fired from point blank range it can cause blackening. He also stated that blood had clotted all around the face. He opined that the blood starts clotting after five minutes of its oozing from the wound. No bullet was recovered from the body on its internal examination.

PW 7 is constable Hoshiyar Singh. He deposed that on the day of occurrence Constable Satpal Singh gave a recovery memo upon which he had prepared the Chik report of case crime no 505/2001 under section 25 Arms Act against the accused. He also stated that he had prepared the FIR at 4.20 pm.

In cross examination, he reiterated his version as stated above. He denied that a false case was registered after arresting the accused from the road and that no recovery was made from the accused.

PW 8 is HCP Naresh Pal Singh. He deposed that after receipt of written report, he had prepared the FIR of case crime No 504/2001.

In cross examination, he stated that Noor Mohd alias Gabbar had given written report and at that time he was accompanied with 2-3 persons namely Rajesh Bhatia and Sanay Vinayak. The FIR was lodged at 4 pm. He denied knowledge as to who was the scribe of the FIR. He relayed the information to the SHO who alongwith 3-4 personnel left for the place of incident. He denied the suggestion that a false FIR was registered at the instance of Noor Mohd and family members of the deceased nominating Hakimuddin as accused.

PW9 is Rajesh Kumar Dwivedi SHO. He deposed that the case was registered in his presence at the police station and he commenced investigation the same day. To begin with, he recorded statement of complainant Noor Mohd, and also statement of chik scribe Head Moharrir Naresh Pal Singh and thereafter he arrested the accused and recovered country made pistol and cartridge from his possession. Thereafter he left for P.L.Sharma hospital where he conducted inquest proceeding and also prepared other recovery memos, drew site-plan and photo lash. After completing proceeding he left for place of incident where he collected simple as well as blood stained earth. He also gave details about further proceeding in the case. After completion of investigation, the charge sheet it is deposed, was submitted in court against the accused.

In cross examination, the witness stated that a history sheet had been opened at the police station against the accused before his posting at the police station Delhi Gate. He also stated that during his tenure, the accused had committed two more crimes. At the relevant time, he further stated, he was present at the police station and that distance of outpost Beilly Bazar was about one Km from the police station. He also stated that he received information about the crime at 4 pm by the complainant. He also stated that when he arrived at the scene, out of various person, he could recall the names of only two persons namely Saleem Ahmad and Mohd Naseem. He also stated that statements of Anil and Vinod Bhatia were recorded a number of times during investigation but statement of Sunil Bahtia was recorded only once at the police station that too on 30.11.2001. He also stated that the FIR was not scribed in his presence and a written report was submitted. He also stated that the site plan was drawn on the pointing out of the complainant. He denied the suggestion that a false case was set up and accused has been falsely nominated in the case.

To begin with the learned counsel for the appellant canvassed that no independent witness has been cited or examined to prop up the prosecution case. He also canvassed that the witnesses namely PW 1 Noor Mohd alias Gabbar, PW 2 Sandeep Mohan Goyal, PW 3 Anil Kumar Bhati and PW 4 Rajesh Bhatia did not countenance the prosecution case and that the Sessions Judge has recorded verdict of conviction against the appellant on the solitary testimony of PW 5 Vinod Bhatia, who happened to be the son of uncle of the deceased. Lastly, he canvassed that the conviction against the appellant cannot be recorded merely on the solitary testimony of PW 4 Rajesh Bhatia.

The first question that crops up for consideration before us is whether the testimony of the witnesses who are related to the deceased, deserves to be given credence or not. It is well enunciated in law that merely because the witness or witnesses are related to the deceased furnishes no foundation to reject his/their testimony and by this reckoning, the argument that the witnesses on account of their kinship with the deceased and therefore, they fall in the category of partisan witnesses, is not loaded with any substance. In a catena of decisions, the substance of what has been held is that close relationship with the victim is not a ground for disbelieving a witness. Ordinarily a close relative intends not to screen the real offender. Close relationship with the victim far from being a foundation for criticism of the evidence is often a sure guarantee of truth. In other decisions it has been observed by the Apex Court that a close relative of a victim is not an interested witness and his evidence is not only reliable but preferred to other evidence. It has also been held by the Apex Court that the fact that a witness is a relation of the victim is not ground for rejecting the evidence but his evidence has to be construed very carefully. What is required is that it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the close relation and if it is found that the evidence on record of such witness is worth credence, the same would not be discarded merely on the ground that the witness is a close relation. In substance it is well settled that the evidence of a witness cannot be discarded merely on the ground that he is a related witness or the sole witness or both if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality.

In connection with this submission, we may advert to the decision of the Apex Court in Dalip Singh v State of Punjab (AIR 1953 SC 364) wherein the Apex Court expressed surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Likewise in the case of Ravi v State (2004) 11 SCC 266, the Apex Court observed that "it is settled by a catena of cases by this Court that the evidence of eye witnesses cannot be rejected merely because they are related." It is also worthy of mention here that it is very difficult for independent witnesses to come forward and depose against the appellant who according to the facts on record, has been described to be a hard core criminal having to his discredit a long list of criminal cases.

The next submission which we take up for consideration is the Sessions Judge should not have recorded conviction against the appellant which is hinged on solitary testimony of PW 5 Vinod Bhatia.

We have given our anxious consideration to the submission and weighed up the materials on record. There is no denying of the fact that except PW 5 Vnod Bhatia, all other eye witnesses did not lend support to the prosecution case but at the same time, it would transpire that the Sessions Judge based his finding of conviction relying on other credible circumstances. To be specific, the Sessions Judge reckoned with the fact that the appellant was arrested from near the place of occurrence alongwith a country made pistol and according to the ballistic expert report, the cartridge recovered from the place of occurrence had been fired from the pistol recovered from the possession of the appellant.

Coming to the submission of the learned counsel that the Sessions Judge has erroneously given credence to the solitary testimony of PW 5 for arriving at the finding of conviction against the appellant, we are of the view that the submission is insubstantial inasmuch as it is well settled that it is the quality of the evidence not the quantity of the evidence which is required to be judged by the court to place credence on the statement. In this connection we may advert to the decision of the Apex Court in Yakub Ismailbhai Patel v State of Gujarat (2004) 12 SCC 229 at page 242.

"45. The legal position in respect of the testimony of a solitary eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the rule of caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eyewitness inspires confidence then conviction can be based solely upon it.''

Coming to the next submission of the learned counsel that the name of PW 5 Vinod Bhatia is not mentioned in the FIR as ocular witness, and that his testimony cannot be relied upon, it would suffice to say that the evidence of a person whose name did not find mention in the FIR as a witness does not perforce becomes a suspect. It is settled by catena of decision that non mention of a name of witness is not fraught with the consequences of affecting the prosecution case. There can be no hard and fast rule that the names of all witnesses, more particularly, eye witnesses should invariably be mentioned in the FIR. In State of M.P v Man Singh 2003 (10) SCC 414 the Apex Court observed that mere non mention of the name of eye witness does not render the prosecution version fragile. The observation of the Apex Court is quoted below.

"One of the circumstances highlighted by the High Court to discredit the evidence of P.W. 8 is non mention of his name in the F.I.R. As stated by this court in Chuttar Lal Vs. State of Rajasthan 2003) 6 SCC 397 - Evidence of the person whose name did not figure in the F.I.R. is a witness does not perforce become suspect. There can be no hard and fast rule that the names of all the witnesses, more particularly eye witnesses, should be indicated in the F.I.R. as was observed by this court in Shree Bhagwan Vs. State of Rajasthan (2001) 6 SCC 296 mere non mention of the name of eye witness does not render the prosecution version fragile."

The next submission advanced across the bar is that only PW 5

Vinod Bhatia has supported the prosecution case and that his testimony should not have been believed by the Sessions Judge for convicting the appellant. We have again scrutinized the record and it would transpire that the Sessions Judge has not based conviction solely on the testimony of PW 5 but he has relied upon other allied circumstances such as that the appellant was arrested on the spot and that the country made pistol was recovered from his possession and cartridge recovered from the place of occurrence was fired from the said pistol. It must be noted here that the prosecution has fully proved the arrest of the appellant from the place of occurrence. Besides, it has been consistently deposed that the appellant was arrested after being chased for some distance.

The last submission revolves round the admissibility of testimony of PW 5 Vinod Bhatia on the ground that the appellant was not previously known to the aforesaid witness and the prosecution should have conducted identification proceeding and that the no identification parade was conducted in this case. It is worthy of mention here that identification parade is a part of the investigation and is very advantageous in a case where the accused persons are not known beforehand to the witnesses. It is used only to shore up the evidence recorded in the court. By this reckoning, it is not a substantive piece of evidence. It may be noted here that actual evidence is what is given by the witnesses in the Court. The purpose underlying test identification parade is to assure that the investigation is proceeding in the right direction and it enables the witnesses to satisfy themselves that the accused whom they suspected is really one who was seen by them at the time of commission of offence.

In connection with the above submission, we feel called to refer to the decision of the Apex Court in Mulla v State of U.P (2010) 3 SCC 508. Para 41 being relevant is excerpted below.

"The evidence of test identification is admissible under Section 9 of the Evidence Act, 1872. The identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in court. There is no provision in CrPC entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court."

Coming to the facts of the present case, it may be noticed that the accused was arrested on the spot and recovery of a pistol was made from his possession. The appellant was correctly identified in court. Besides, there is nothing on record to warrant the belief that the appellant was falsely implicated in the case. By this reckoning, we are of the view that the test identification parade was immaterial in this case.

The upshot of above discussion is that the Sessions Judge has rightly recorded verdict of conviction against the appellant. Substantially the salient features which appeal to us in concurring with the view of the Sessions Judge are that the occurrence took place in broad day light; the place of occurrence has been proved by the witnesses and blood recovered from the place of occurrence was found to be human blood; the empty cartridge recovered was also found to be tallying with the weapon i.e pistol recovered from the possession of the appellant. We are also of the view that in the facts and circumstances, the Sessions Judge has rightly relied upon the testimony of P.W. 5 Vinod Bhatia who has withstood the gruelling test of cross examination. We have very carefully gone through his testimony and we find it fully credit worthy. In our considered view, his testimony fully inspires confidence.

As a result of foregoing discussion, the appeal fails and is dismissed. The judgment and order passed by learned Sessions Judge is affirmed. The appellant is already incarcerated in jail after conviction. He shall serve out the sentences inflicted on him by the judgment and order of the Sessions Judge dated 9.10.2006 in ST No 46 of 2002.

The office shall proceed accordingly in the light of the judgment of this Court. The lower court record shall be sent back to the court below accordingly.

MH

May 13, 2011