Mohd Nurulla vs State Of U.P.
2014 Latest Caselaw 1572 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 

 
			CRIMINAL APPEAL No. - 3980 of 2008
 

 
Appellant :- Mohd Nurulla
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.P. Mishra,A.K. Awasthi,A.K.Awasthi,A.P. Singh,Abhay Raj Singh,Akshaya Kumar,Apul Misra,Arun Kumar Pandey,D.K.Singh,Deo Dayal,Dilip Kumar Singh,Dinesh Pratap Singh,Firoz Haider,Manish Tiwary,N.I. Zafri,P.N.Mishra,Ratnesh Kumar Tewari,S.M.H.Zaidi,S.P.Srivastava
 
Counsel for Respondent :- Govt. Advocate,S.T.Ali
 

 
Hon'ble V.K. Shukla,J.

Hon'ble Om Prakash-VII,J.

(Delivered by Om Prakash-VII, J.)

This criminal appeal has been preferred by the accused/ appellant - Mohd. Nurulla against the judgement and order dated 6.6.2008 passed by the Additional District & Sessions Judge, Court No. 11, Varanasi in Session Trial No. 191/2006 (State vs. Mohd. Nurulla and others) convicting and sentencing the appellant for the offences punishable under Section 302 I.P.C. for life imprisonment alongwith a fine of Rs. 10,000/-, and in default of payment of fine, six months' additional imprisonment.

The trial court has also decided Session Trial No. 192 of 2006 (State vs. Manish Pandey) in crime no. 176 / 2005 under Section 3/25 Arms Act and Session Trial No. 193 of 2006 (State vs. Manoj Kumar Singh Chauhan) in crime no. 182/ 2005 under Section 3/25 Arms Act. As the accused of these cases have been acquitted, the present appeal has been preferred by the appellant - Mohd. Nurulla only against the impugned judgement and order, as mentioned above.

The facts of the case are that one Abdullah (cousin brother of deceased Sharif Ahmad) moved a written report (Exbt. Ka-1) at the Police Station Chetganj, Varanasi on 6.7.2005 mentioning therein that a registered agreement to sale dated 31.5.2004 was entered into between the appellant (Mohd. Nurulla) and the deceased (Sharif Ahmad) regarding the plot no. 99/2, House No. J 15/65 D-3 , Mohalla Alaipura, Police Station Jaitpura measuring about two and half biswa and at the time of execution of agreement to sale, Rupees Four Lakhs had been paid by the deceased. The deceased was also in possession over the plot in question and was doing building material business. With ill intention, Mohd. Nurulla was threatening to the deceased to return the disputed plot. The accused/ appellant was not willing to execute the sale deed in favour of the deceased, therefore, the deceased had filed a Civil Suit on 30.5.2005 before the Civil Court, Varanasi against the accused / appellant. The informant, Mufis Ahmad and Javed Ahmad all had gone to the chamber of Advocate Divya Prakash Srivastava at his residence at C-10/39, Ziyapura, Chetganj, Varanasi in connection with said Civil Suit. After discussing the matter with the Advocate, as soon as all of them came out of the chamber of the Advocate, accused/ appellant opened two fires on Sharif Ahmad at about 10.15 p.m. with intention to kill him, resultantly, Sharif Ahmad received injuries and he fell down and when they moved ahead alarming, accused/ appellant ran away waivering the fire arm in the lane of Ziyapur Masjid. They have recognized the accused/appellant in Electric light. The deceased was immediately taken on tempo to Singh Nursing Home, Maldahiya where the Doctor referred him to B.H.U.. At B.H.U. Hospital, the doctor attending the deceased declared him dead. Keeping the dead body in mortuary, the informant had gone to lodge the First Information Report (in short 'FIR')

The local police lodged the FIR at crime No. 136/2005 under Section 302 I.P.C. on the same day at 23.45 p.m. Vide (Exbt. Ka-2). Carbon copy of General Diary entry is (Exbt. Ka-3). The Investigating Officer investigated the spot, took the sample of simple and blood stained earth and prepared fard (Exhbt. Ka-6 and Exbt. ka-7). Inquest report (Exbt. Ka-19) has been prepared at B.H.U. mortuary on 7.7.2005. Other police papers, i.e., form no. 13, photo lash, letter to Chief Medical Officer, letter to S.H.O. Police Station Lanka, Varanasi (Exbt. Ka-20 to 23) were prepared. Post-mortem of the dead boy of the deceased was conducted and report was prepared on 7.7.2005 at 1.30 p.m.. Simple and blood stained earth alongwith clothes recovered from the body of the deceased were sent for chemical examination. Report submitted by the analyst is (Exbt. Ka-24). During course of investigation on 4.9.2005, co-accused Manish Pandey was arrested alongwith a country-made 315 bore Katta, whose description is mentioned in detail in fard recovery (Exbt. Ka-9). Similarly, co-accused Manoj Kumar Singh Chauhan was arrested on 12.9.2005 by the police and a country-made 315 bore tamancha was also recovered from his possession. Details of which is mentioned in fard recovery (Exbt. Ka-10). Details of dead and live cartridges have also been mentioned in Exbt. Ka-9 and 10. Exbt. Ka-9 and 10 have been prepared on the spot at the relevant time and formalities have been completed. On the basis of fard recoveries, FIR against co-accused Manish Pandey at crime no. 176/2005, under Section 3/25 Arms Act on 4.9.2005 and at crime no. 182/2005 under Section 3/25 Arms Act on 12.9.2005 against co-accused Manoj Kumar Singh Chauhan was lodged. The Investigating Officers have also prepared site plan in crime no. 136/2005, 176/2005 and 182/2005, respectively. After completing the investigation, the Investigating Officer submitted charge-sheet in crime no. 136/ 2005, under Section 302 and 120-B, IPC against accused Mohd. Nurulla, Manish Pandey and Manoj Kumar Singh Chauhan. The Chief Judicial Magistrate concerned committed the case for trial before the Sessions Court.

Accused appeared and charge under Sections 302 read with Section 34 IPC was framed against accused Mohd. Nurulla, Manish Pandey, Kishan Verma, Manoj Kumar Singh Chauhan. Charge under Section 120-B IPC was also framed against accused Manish Pandey, Manoj Kumar Singh Chauhan, Kishan Verma, Mohd. Nurulla and Haider Ali. In session trial no. 192/2006 charge under Section 3/25 Arms Act was framed against Manish Pandey and in session trial no. 193/2006 charge under Section 3/25 Arms Act was framed against Manoj Kumar Singh Chauhan.

All the accused persons denied the charges and, claiming themselves innocent, requested for trial.

To substantiate the case, the prosecution has examined PW-1 Abdullah (cousin brother of the deceased), PW-2 Mufis Ahmad (real brother of the deceased), PW-3 Javed Ahmad, (Nephew - Bhanja of the deceased), PW-4 Rajan, PW-5 Mohd. Vasik, PW-6 Divya Prakash Srivastava, Advocate.

The prosecution has also examined PW-7 Dilshad Ahmad, PW-8 Balwant Singh (chik writer), PW-9 Dr. S.K. Tripathi, who had conducted the post-mortem and PW-10 Aftab Ahmad Khan (Investigating Officer), PW-11 Mithilesh Kumar Rai (other Investigating Officer), PW-12 Raghvendra Singh, Sub-Inspector, who has prepared and proved the inquest report and other police papers.

After closing of the evidence, statement of accused/ appellant under Section 313 Cr.P.C. was recorded.

Accused/appellant - Mohd. Nurulla disclosing his age about 32 years at the time of recording of the statement has denied any agreement for sale entered into between him and the deceased. All the facts mentioned in the FIR have been denied. Fact regarding pendency of Civil Suit and intimidation, said to be caused on his part, has also been denied. Statements deposed by PW-1 (Abdullah) were said to be false. Similarly, statement given by PW-2 (Mufis Ahmad) and PW-3 (Javed Ahmad) regarding pendency of Civil Suit and going to the residence of the Advocate Divya Prakash Srivastava were also said to be false. Date, time and place of the incident, stated by the witnesses, have also been denied. Regarding the statements made by PW-6 (Divya Prakash Srivastava, Advocate), PW-8 (Head Constable Balwant Singh), PW-9 (Dr. S.K. Tripathi) and PW-10 (Aftab Ahmad Khan), he (Mohd. Nurulla) showed unawareness. He has specifically stated that the Investigating Officer has submitted the charge-sheet on the basis of false investigation. This appellant has also showed unawareness for the recovery, arrest and submission of charge-sheet against other co-accused, who have been acquitted by the trial court. It has also been stated that the informant has made false statement due to pressure of police and on account of greediness. As per the appellant, the prosecution started on the basis of enmity and due to conspiracy of PW-1 (Abdullah).

Statements under Section 313 Cr.P.C. of the other co-accused Manoj Kumar Singh Chauhan, Manish Pandey, Kishan Verma, who have been acquitted, have also been recorded.

Additional statement under Section 313 Cr.P.C. has also been recorded in which also the appellant has stated that PW-12 (Sub-Inspector Raghvendra Singh) has made a false statement before the court and the present case started due to enmity. He is unaware about the chemical examination report.

After recording the statement of accused persons, they were called upon to adduce the evidence in their defence.

Defence has examined DW-1 Smt. Saltanat Bano (wife of the deceased), DW-2 - Rahul Pandey and DW-3 - Haji Abdul Samad Ansari.

The details of post-mortem report are as under:-

The dead body of the deceased was brought to the mortuary by constable 740 Hashmat Ali Khan, constable 1434 Satyanarain Yadav and post-mortem on the body of the deceased was conducted on 7.7.2005 at about 1.30 p.m. at B.H.U.. As per the doctor conducting the post-mortem, the deceased was about 35 years old and the death had been caused about 2/3 days prior. Clothes found on the body of the deceased were taken into custody and keeping them in sealed cover were handed over to the police personnels who had brought the dead body for autopsy. Rigor mortis was present all over the body of the deceased. Eyes and mouth were closed. Symptom of oozing of blood from the nose and mouth were also found. Following ante-mortem injuries were also noted by the doctor conducting the post-mortem:

1. Entry wound of fire-arm 2 cm to 1-1/2 cm on the left side of forehead. 6 cm outer to the left eye and 4 cm. Above to the left year. This injury was found brain deep. Brain matter and clotted blood coming out were also found.

2. Exit wound of fire-arm 4 cm. X 2 cm. On the right side of forehead 8 cm. Above the right ear into 4-1/2 cm. above the right eye front. Brain matter, broken part of the scalp were found coming out. Both the injury nos. 1 and 2 were connected to each other.

3. Entry wound of fire-arm 1-1/2 cm. X 1 cm. into muscle deep on the outer-side of the left arm just 21 cm. above the elbow. Tattooing and blackening was present in the area of 12 cm. X 10 cm. and brown colour gun powder was also present on the injury.

On opening of the chest, 2-½ litre clotted and liquid blood was found. Left lung was also punctured on the upper side. One bullet towards right side at the meeting point of the right collar bone was also found. There was an injury in the fourth rib and this injury was connected with the injury no.3 in the dimension of left to right.

Frontal bone of left to right scalp were also found broken. Brain and membrane were found damaged. 40 millilitre mucous was found present in the intestine and in the small intestine. There was also food material.

Doctor conducting the post-mortem kept in sealed cover the bullet recovered from dead-body of the deceased and handed over it to the police personnels, who had brought the deceased to the mortuary for submitting the same to the Senior Superintendent of Police, Varanasi. As per the doctor, who conducted the post mortem, the deceased died due to coma as a result of ante-mortem injuries. The post-mortem report has been prepared as Exbt. Ka-4 by the doctor.

After hearing the learned counsel for the prosecution and defence, the trial court has found that the prosecution has fully succeeded in bringing home the charge against the accused/appellant beyond reasonable doubt and the accused / appellant has been convicted and sentenced, hence this appeal.

We have heard Shri Manish Tiwari, learned counsel for the appellant, Shri S.T. Ali, learned counsel for the complainant and Shri Vimlendu Tripathi, learned AGA for the State, and have gone through the entire record.

Learned counsel for the appellant has assailed the impugned judgement and order dated 6.6.2008 on the ground that the FIR is ante-timed and manipulation/ fabrication / cutting has been made therein. PW-1 (Abdullah) was not present on the spot and he is not an eye-witness. The other fact witnesses, said to be present on the spot, have clearly stated that PW-1 (Abdullah) was not present on the spot. PW-1 (Abdullah) is an interested witness. Other witnesses have not named the appellant in their statements. Thus, there remains only solitary statement of PW-1 (Abdullah), which also suffers from inherent contradiction on material point. Date, time and place of the occurrence have also not been established by the prosecution beyond reasonable doubt. The witnesses, said to have gone at the residence of Divya Prakash Srivastava, Advocate, were not aware about the fact that for what purposes they had gone there. PW-6 Divya Prakash Srivastava, Advocate has also not named the accused appellant and even the defence witness (wife of the deceased) has not named the accused appellant in committing the offence. The appellant was not present on the spot, rather he was present at the shop of DW-2 (Rahul Pandey) at the time of the said incident. Motive has also not been established as there was no Civil Suit pending before any court. The prosecution has also not established the source of light in which accused has been recognized by the witnesses. The fact witnesses examined by the prosecution have not supported the prosecution case. There is major contradiction on material point as to use of rickshaw and motorcycle. The site plan prepared by the Investigating Officer also does not tally with the prosecution evidence. Medical evidence is also not in support of the oral evidence. Blood stained cloths were not taken into possession by the Investigating Officer. The manner of the incident is also not established from the evidence of the prosecution. The trial court has not correctly appreciated the evidence of prosecution witnesses and has reached on a wrong conclusion.

Making the aforesaid submissions, learned counsel for the appellant prays that the present appeal be allowed and the impugned judgement and order be set-aside and the appellant may be acquitted from the charges levelled against him.

On the other hand, learned counsel for the complainant and the learned AGA have submitted that the statements of defence witnesses are not credible and trial court has rightly discarded the same. The prosecution has established beyond reasonable doubt the date, time, place and the manner of the incident. Medical evidence fully supports the prosecution case. Two firearm injuries have been found on the body of the deceased. PW-1 (Abdullah) alongwith other witnesses and the deceased was present at the residence of PW-6 Divya Prakash Srivastava, Advocate. Both, PW-2 Mufis Ahmad and PW-3 Javed Ahmad, have supported the prosecution case that the deceased alongwith these two witnesses had gone to the residence of PW-6 at the time mentioned in the FIR and when they were coming out from the residence of PW-6, the present incident took place. Although these witnesses have not named the accused/ appellant before the trial court yet they have consistently and clearly stated the date, time and place of the incident and this fact can be taken into consideration to corroborate / support the statement of other witnesses irrespective of this fact that the prosecution has declared them hostile. Plea of alibi has also not been believed by the trial court as no cogent and reliable evidence has been adduced by the appellant in this respect. DW-1 (Smt. Saltanat Bano) is not an eye-witness. Similarly, DW-3 (Haji Abdul Samad Ansari) is also not an eye-witness, and, therefore, their statements regarding occurrence of the incident are not material. FIR has been lodged by the PW-1 (Abdullah) just after returning from the B.H.U.. Only on the basis of cutting in the time of chik, it cannot be said that PW-1(Abdullah) is not an eye-witness, especially when the other fact witnesses, who have been declared hostile, have stated before the Investigating Officer the presence of PW-1 (Abdullah) on the spot at the time of the incident. He (Abdullah) cannot be put in the category of untrustworthy witness on the ground of interestedness. Minor contradictions shown by the learned counsel for the appellant do not affect the veracity of the statement of PW-1 (Abdullah). If there is laches on the part of the Investigating Officer, the statement of eye account witnesses shall not be brushed aside. The prosecution witnesses and the deceased were known to each other, therefore, statement of PW-1 (Abdullah) regarding identification of the appellant on the spot has rightly been believed by the trial court.

Thus, referring to the medical report and also the statement made by the witnesses regarding source of light on the spot at the time of the incident and making further submissions that the prosecution has established the motive, date, time and place of the occurrence, it is submitted that the prosecution has fully succeeded to prove the guilt of the accused/appellant beyond shadow of reasonable doubt and the findings of the trial court are based on evidence available on record and it has rightly believed the prosecution case and has rightly convicted the accused/appellant. Learned AGA has placed reliance on the following decisions:

1. Radha Mohan Singh vs. State of U.P., AIR 2006 SC 951.

2. Khujji alias Surendra Tiwari vs. Sate of U.P., 1991 Crl. L.J. 2653.

3. State of Rajasthan vs. Babu Mena, JT 2013 (2) SC 617.

4. Kartik Malhar vs. State of Bihar, 1996 Crl. L.J. 889.

5. Veer Singh vs. State of U.P., 2013 (15) SCALE 162.

6. Gulam Sarbar vs. State of Bihar, 2013 (12) SCALE 504.

7. State of U.P. vs. Shoe Lal and others, AIR 2009 SC 1912.

8. Nathuni Yadav vs. State of Bihar, 1998 (9) SCC 238.

9. Bharosi vs. State of M.P., 2002 AIR (SC) 3299.

10. Sunil Kundu and others vs. State of Jharkand, 2013 Crl. L.J. 2339 SC.

11. Sucha Singh vs. State of Punjab, AIR 2003 SC 3617.

12. State of Punjab vs. Jagir Singh, Baljit Singh and Karam Singh, AIR 1973 (SC) 2407.

We have considered the submissions made by the learned counsel for the parties and have carefully gone through the case laws cited above.

In the present matter, the prosecution has examined as fact witness PW-1 (Abdullah), PW-2 (Mufis Ahmad), PW-3 (Javed Ahmad), PW-4 (Rajan), PW-5 (Mohd. Vasiq) PW-6 (Divya Prakash Srivastava). The offence is said to have been committed on 6.7.2005 at about 10.15 p.m. just in front of the residence of PW-6 Divya Prakash Srivastava. The deceased is said to have gone at the residence of Divya Prakash Srivastava, Advocate alongwith other witnesses in connection with his civil litigation. The prosecution case is also that an agreement to sale for purchasing the land in dispute had been entered into between the deceased and the appellant. As per the prosecution story, the deceased had also paid certain amount in lieu thereof but the appellant (Mohd. Nurulla) was not executing the sale-deed in his favour despite the fact that possession over the disputed land was given to the deceased. PW-1 (Abdullah) is the first informant and as per this witness, he alongwith deceased and PW-2 (Mufis Ahmad) and PW-3 (Javed Ahmad) had gone to the residence of PW-6 and when they were coming out of the residence of PW-6, just in front of his house, this incident took place. This fact stated by the PW-1 (Abdullah) has been supported by PW-2 (Mufis Ahmad) and PW-3 (Javed Ahmad) in their statements before the Court. PW-2 (Mufis Ahmad), PW-3 (Javed Ahmad), PW-4 (Rajan) and PW-5 (Mohd. Vasiq) and also PW-6 (Divya Prakash Srivastava) have been declared hostile by the prosecution when they did not name the appellant before the Court for committing the offence, which resulted into death of the deceased. The doctor, who conducted the post-mortem, has found three injuries out of which two are entry wound and one is exit wound. Injury nos. 1 and 2 are connected with each other. Blackening and tattooing has also been found on injury no.3. The case of the prosecution is that the assailant opened two fires from a narrow distance of few feet from the deceased. PW-9 Dr. S.K. Tripathi has opined that the deceased died due to coma as a result of ante-mortem injuries found on the dead body of the deceased. Time of death is 2/3 days prior to the time of post-mortem. Rigor mortis was present all over the body of the deceased. DW-1 (Smt. Saltanat Bano - wife of the deceased) has stated before the court that there was no enmity or dispute between the deceased and the accused/ appellant in respect of the land in question, although this witness is not an eye-witness and was not present on the spot. DW-2 (Rahul Pandey),who is the owner of a medicine shop, has stated that at the time of incident, the accused/ appellant was present at his shop. Statement of DW-3 (Haji Abdul Samad Ansari) has no concern with the present matter because he is not an eye-witness and his deposition before the trial court is on the basis of his own imagination and are his personal views.

The trial court has acquitted the co-accused Manish Pandey, Manoj Kumar Singh Chauhan and the present appellant for the offence under Section 120-B IPC and co-accused Manish Pandey, Manoj Kumar Singh Chauhan, Kishan Verma for the offence under Section 302 IPC read with Section 34 IPC. Co-accused Manoj Kumar Singh Chauhan and Manish Pandey have also been acquitted for the offence under the Arms Act. The appellant has been convicted and sentenced for the offence under Section 302 IPC on the finding that there was dispute between the deceased and the accused/ appellant (Mohd. Nurulla) regarding execution of sale-deed in respect of land described in agreement to sale. Statement of DW-1 (Smt. Saltanat Bano) is not believable. Thus, the trial court has concluded that motive has been established. Apart to this, the present matter rests on the basis of eye-account witness. PW-1 (Abdullah) is an eye account witness. Not only the date, time and place of the incident have been established by PW-1 (Abdullah) but also the same has been established by the statements of PW-2 (Mufis Ahmad) and PW-3 (Javed Ahmad). Relying on the statement of PW-1 (Abdullah), the accused/ appellant has been found guilty of committing the present offence and the other co-accused have been acquitted, therefore, we are of the view, that there is no necessity to discuss about the involvement of those accused at this stage, as appeal, if any, preferred on behalf of the State is not before us. Medical evidence has also been found in support of the oral evidence. Contradictions, inconsistency occurred in the statement of PW-1 (Abdullah) have not been found material.

First of all, we are proceeding to examine the evidence on record regarding the ante-timed FIR and cutting therein, which has been given more emphasis by the learned counsel for the appellant.

It has been contended by the learned counsel for the appellant that as per the prosecution story, the deceased had first taken to Singh Nursing Home, which is 2-3 kilometre from the place of occurrence, and from there, the deceased was referred to B.H.U. Hospital where he was declared dead. In the facts and circumstances, it is impossible that the FIR could have been lodged at 23.45 hours i.e. within a period of one and half hour from the time of occurrence.

As per the prosecution story, PW-1 (Abdullah), who is informant, was present on the spot from the very beginning. This witness in his examination-in-chief has stated that:

"...........?kVuk dh fjiksVZ ch0,p0;w0 ls okil vkus ds ckn yxHkx Ms<+ ?kaVs ckn Fkkuk psrxat esa ntZ djk;k...........A"

This witness has also admitted that the distance from the place of incident to Singh Nursing Home is about 2-3 kilometre and from the Singh Nursing Home to B.H.U. Hospital is about 7-8 kilometre. He, in his cross-examination, has also stated that as and when they reached at Singh Nursing Home alongwith the deceased, immediately within five minutes local police had also reached there and they proceeded for B.H.U. Hospital on the police vehicle. It has also been stated that when they reached at B.H.U. Hospital, the doctor declared the deceased dead. Then he prepared the FIR and went to the police station Chetganj. If the statement of this witness in examination-in-chief on this point is compared with the statement made in cross-examination, then it emerges that FIR was lodged after one and half hours of the incident. The word used by a witness shall be read in the same way as has been stated. Inference shall be drawn on that point keeping in view the whole statement made by the witness. In the present matter, the FIR is said to have been lodged at 23.45 hours and the offence is said to have been committed at 22.15 hours, thus keeping into account this fact that the incident is said to have occurred in the late night and at that time the roads were clear, the FIR can be lodged at the time mentioned in the chik. Hence, the finding of the trial court that the FIR is not ante-timed is correct. As far as cutting in the column of time of lodging the FIR is concerned, PW-8 - Head Constable Balwant Singh, who has prepared the chik, has denied any cutting in the same and even if it is accepted that there was cutting in the chik, then also it cannot be held that the FIR was not in existence at that time. Thus, the argument advanced by the learned counsel for the appellant in this respect is not acceptable.

In the present matter, PW-2 (Mufis Ahmad), PW-3 (Javed Ahmad), PW-4 (Rajan), PW-5 (Mohd. Vasiq) and PW-6 (Divya Prakash Srivastava) have been declared hostile by the prosecution. Regarding reliability of the statement of the hostile witnesses examined in this case, we would like to refer relevant portion of paragraph 7 of the judgement and order in the case of Radha Mohan Singh (supra), which is as under:

"7.................It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof................."

Prosecution case is that on the date of incident, deceased, PW-1 (Abdullah), PW-2 (Mufis Ahmad) and PW-3 (Javed Ahmad) had gone to house of PW-6 (Divya Prakash Srivastava) and when they were coming out from his house, the present incident took place in front of his house. PW-1 (Abdullah) has stated the same story before the court as has been mentioned in the FIR but PW-2 (Mufis Ahmad), PW-3 (Javed Ahmad) and PW-6 (Divya Prakash Srivastava) have denied the presence of PW-1 (Abdullah) at the time of the incident and they have also not named the accused/appellant for committing the present offence. However, from a perusal of the statements of PW-2 (Mufis Ahmad), PW-3 (Javed Ahmad) and PW-6 (Divya Prakash Srivastava), it is evident that the deceased alongwith Mufis Ahmad and Javed Ahmad had gone to the house of PW-6 (Divya Prakash Srivastava) but PW-1 (Abdullah) was not accompanying them. PW-1 (Abdullah), who has lodged the FIR, has stated that he alongwith PW-2 (Mufis Ahmad), PW-3 (Javed Ahmad) and the deceased had gone to house of PW-6 (Divya Prakash Srivastava). Since, PW-2 (Mufis Ahmad), PW-3 (Javed Ahmad) and PW-6 (Divya Prakash Srivastava) have been declared hostile on this point by the prosecution, therefore, on the basis of the statement made by them it cannot be held that PW-1 (Abdullah) was not present on the spot alongwith them. Statement of DW-1 (Smt. Saltanant Bano - wife of the deceased) is also not material on this point because she is not an eye-witness. Statement of DW-2 (Rahul Pandey) is also not supported with any evidence to presume that at the time of the incident, the accused/appellant was present on his (Rahul Pandey) shop. Since PW-1 (Abdullah) has categorically and consistently, from the time of lodging the FIR till deposition before the court, has stated that he was accompanying the deceased alongwith other witnesses at the house of Divya Prakash Srivastava, Advocate for discussion regarding Civil litigation, thus his presence is very much established on the spot at the time of the incident. If anything about the knowledge of the Civil litigation has not been disclosed by the hostile witnesses and the local police and the Investigating Officer have not taken the blood stained cloth of PW-1 (Abdullah) into possession, then also the presence of PW-1 (Abdullah) on the spot is not doubted. During the course of cross-examination regarding standing/ moving position of the witnesses on the spot, some inconsistent and contradictory statements have been given by PW-1 (Abdullah) but in the facts and circumstances of the case and looking to the manner in which the incident occurred, the presence of PW-1 (Abdullah) on the spot at the time of the incident cannot be doubted. It is not possible for any person to remember/ recollect pace to pace/ minute to minute details of movement of any person.

From a perusal of statement of PW-1 (Abdullah), it is evident that the defence in the cross-examination has put a suggestion before this witness that prosecution side had also called the accused at the residence of PW-6 (Divya Prakash Srivastava) to reconcile the matter. Although it was mere a suggestion and if this suggestion is not taken in favour of the prosecution, then also the presence of PW-1 (Abdullah) on the spot at the time of incident is established. P.W.-2 (Mufis Ahmad), PW-3 (Javed Ahmad) and PW-6 (Divya Prakash Srivastava) have stated in their statements that at the time of the occurrence deceased and these two witnesses had gone to the house of PW-6 (Divya Prakash Srivastava) in connection with Civil litigation, this fact has also been stated by PW-1 (Abdullah). These hostile witnesses have supported the prosecution case in regard to occurrence and only on the points of recognition of the appellant for committing the offence and presence of PW-1 (Abdullah) they have not supported the prosecution case. Thus, on the basis of settled legal position, the facts deposited by these hostile witnesses, which are in support of prosecution version, can be taken in favour of prosecution case.

So far as the source of light on the spot is concerned, the accused/ appellant and the persons belonging to prosecution side were well-known to each other, therefore, there would have been no difficulty in recognizing the accused/ appellant on the spot. Although PW-2 (Mufis Ahmad), PW-3 (Javed Ahmad) and PW-6 (Divya Prakash Srivastava) have not named the accused/ appellant for committing the present offence before the court yet the statement of PW-1 (Abdullah) on this score cannot be disbelieved. The prosecution has clearly, from the very beginning, has taken stand that there was source of Electric light. PW-1 (Abdullah) has also stated before the court the same fact. Even if the hostile witnesses have stated otherwise, then also statement of PW-1 (Abdullah) cannot be brushed aside on this point especially when the defence has not been able to adduce any evidence to establish that there was no Electric light on the spot at the time of the incident. It is pertinent to mention here that the offence is said to have been committed in city area near the residence of an Advocate and the deceased and other witnesses had gone to discuss the matter there, then it is possible that there would have been some light.

Thus, the discrepancies pointed out by the learned counsel for the appellant in the statements of PW-1 (Abdullah), Investigating Officer (Aftad Ahmad Khan) and other witnesses are not having much force because presence of PW-1 (Abdullah) on the spot at the time of the incident is very much established by the prosecution evidence. Apart to this, it is well settled proposition of law that any inconsistency or discrepancy occurred in the investigation or laches on the part of the Investigating Officer does not affect the veracity of statement of reliable prosecution witnesses until and unless such discrepancies are of such nature that the entire prosecution story is collapsed.

Latin maxim 'falsus in uno, falsus in ominibus' is not applicable in India. If anything stated by a witness on any unimportant point appears to be not true, then also the clear and consistent statement made by him on material points cannot be thrown out.

PW-9 (Dr. S.K. Tripathi), who has conducted the post-mortem on the dead body of the deceased has stated that symptoms found on the injuries indicates that fires have been made within a range of one or two feet and the death of the deceased might have caused due to injuries received on 6.7.2005 at 10.00 p.m.. Learned counsel for the appellant has submitted that injuries found on the dead body of the deceased could not be caused in such manner as has been stated by the prosecution witnesses. It has also been submitted that this fact that four persons were coming out together but only one person has received injuries in the said incident indicates that the persons said to be eye witnesses were not present on the spot and they have been planted as eye witness.

If this plea is compared with the evidence available on record, it is evident that PW-1, PW-2 and PW-3 have consistently stated that the deceased was ahead few steps from them. The assailant had caused firearm injury targeting the deceased from a very short distance and in such a situation it cannot be presumed that if the witnesses have not received injuries, they were not present on the spot at the time of the incident. As per the statement of doctor conducting the post-mortem on the dead-body of the deceased, injuries found on the dead-body of the deceased could be caused with the weapon said to be used in the offence.

So far as the submission regarding reliance placed on the testimony of a solitary witness is concerned, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.

Further, it is not in dispute that the conviction may be sustained even on the basis of single testimony. The Hon'ble Supreme Court more than once has held that on the single testimony of a witness, conviction can be sustained safely.

In Chuhar Singh Vs. State of Haryana, (1976) 1 SCC 879 it was held that "what is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt.........."

Similar view has been taken by the Hon'ble Supreme Court in the case of Chacko alias Aniyan Kunju and others Vs. State of Kerala, (2004) 12 SCC 269.

In the present case, the presence of PW-1 (Abdullah) is fully established, he is a wholly reliable witness, his statements on material points are natural and consistent from the very beginning i.e. from lodging of FIR till deposition before the court. Statement made by this witness regarding date, time and place of occurrence is supported with the evidence of hostile witnesses. Medical evidence supports the prosecution case. Motive taken by the prosecution has also been supported by the hostile witnesses. An agreement to sale regarding land in question had been entered into between the deceased and the accused/ appellant. Civil litigation, whether the suit was defective or regular, was also started between them. Statements of DW-1 (Smt. Saltanat Bano - wife of deceased) do not shake the facts established by the prosecution regarding commission of the offence. FIR in the matter was lodged promptly by PW-1 (Abdullah). Motive is an ingredient to commit the offence but where there are ocular or direct evidences, motive does not play vital role. In this case there are eye account witnesses who have fully supported the prosecution case. The ground taken by the appellant that as there was no enmity regarding execution of sale-deed in respect of the land in question,and, therefore, there was no occasion to commit the present offence is not acceptable because sale-deed regarding the land in question had not been executed in favour of the deceased and Civil Suit, whether regular or defective, was filed by the deceased.

It will not be out of place to mention here that as the prosecution case rests on the eye account witnesses, therefore, on the basis of the statement of DW-1 (Smt. Saltanat Bano - wife of deceased), prosecution case cannot be disbelieved.

The accused/ appellant has been charged by the trial court for the offence under Section 302 IPC and also for the offence under Section 120-B IPC. The trial court has acquitted the accused/ appellant for the offence under Section 120-B IPC. When charge under Section 302 IPC was framed against the accused/ appellant, charge framed under Section 120-B IPC is meaningless. The prosecution has been able to establish the involvement of the accused/ appellant (Mohd. Nurulla) for causing death of the deceased (Sharif Ahmad) on the date, time and place mentioned in the FIR. The trial court has rightly held guilty to the appellant for the charge under Section 302 IPC. The trial court has awarded sentence of life imprisonment and also fine of Rs. 10,000/- and in default of payment of fine, six months' additional imprisonment.

Considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, we are of the view that the impugned judgement and order passed by the trial court is well thought and well discussed and the trial court has rightly held that the prosecution has succeeded to prove the guilt of the accused/ appellant beyond reasonable doubt. As such, the impugned judgement and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed.

The appeal is accordingly dismissed.

The conviction and sentence imposed upon the accused/ appellant (Mohd. Nurulla) is hereby confirmed.

If the accused/ appellant (Mohd. Nurulla) is on bail, he is directed to surrender before the Chief Judicial Magistrate concerned to serve out the remaining sentence imposed upon him by the trial court and in case he is in jail, let a copy of this judgement and order be served upon him.

Copy of this judgement alongwith lower court record be sent forthwith to the Sessions Judge, Varanasi for compliance.

Order Date :- 08.05.2014

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