Faiyaj vs State Of U.P.
2014 Latest Caselaw 2194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 Reserved
 
Court No. - 36
 
Case :- CRIMINAL APPEAL No. - 1705 of 2004
 
Appellant :- Faiyaj
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.K. Khanna
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mohd. Tahir,J.

(Delivered by Hon'ble Mohd. Tahir,J.)

This criminal appeal has been preferred against the judgment and order dated 24.3.2014 passed by Sri Hriday Sagar, the then Additional Sessions Judge/Fast Track Court No.1, Moradabad in ST No.948 of 2000, State vs. Faiyaz, under Section 302 IPC, P.S. Chandausi, District Moradabad, whereby the accused appellant Faiyaz was convicted under Section 302 IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- and in default of payment of fine, he was directed to undergo further imprisonment for one year.

2. The prosecution case, in brief, is that one Saleem lodged a written report in P.S. Chandausi of District Moradabad on 26.4.2000 at 4.05 p.m. to the effect that his Janta Band Shop is in front of S.M. College. On 26.4.2000 at 3.30 p.m. he was going to the shop of Prakash Band for the payment of the Barat. On the way, he was talking with one Yusuf. The accused appellant Faiyaz having Chhuri in his hands came there and he assaulted him with Chhuri to kill him. He cried for help. Whereupon, witnesses Yusuf and Irshad and many other persons rushed to the spot who saw the incident with their own eyes and saved him. The deceased sustained serious injuries. The written report is Ext.Ka.1.

3. On the basis of the above written report, Head Moharrir Sri Bhagwan Singh prepared the Chick FIR which is Ext.Ka.2 and made an entry in the G.D. regarding the registration of the case under Section 307 IPC at Crime No.173/2000.

4. The investigation of the case was entrusted to S.I. Sri K.P. Singh who recorded the statement of Head Moharrir Bhagwan Singh and also recorded the statement of injured Saleem. Thereafter, injured Saleem was referred to C.H.C. Hospital, Chandausi where he was given first medical aid and thereafter he was referred to District Hospital, Moradabad. When he was on the way to District Hospital, he succumbed to the injuries sustained by him. His dead body was taken back to C.H.C. Hospital and the Police Station concerned was informed about his death. On the information of his death, this case was converted to Section 302 IPC from 307 IPC.

5. The Investigating Officer with other police personnels reached C.H.C. Hospital, Chandausi and prepared the inquest report of the dead body of the deceased and other relevant papers viz. Photo nash, chalan lash etc. After sealing the dead body the same was sent for post mortem examination through constables Devendra and Ramesh Chandra.

6. The post mortem examination on the dead body of the deceased was conducted on 27.4.2000 at 3.00 p.m. by Dr. K. Kumar who found the following ante mortem injuries on the dead body of the deceased:

(I)I.W. 4 cm x 2 cm x scalp deep on the top of head left side 5 cm above the ear pinna, left side parietal bone fractured.

(II)Multiple abraded contusion in area 20 cm x 10 cm on both sides of chest.

(III)I.W. 1 cm x .5 cm x scalp deep on the top of left skull region.

(IV)I.W. 5.5 cm x 3.5 cm x abdominal cavity deep on upper part of abdomen, left side 12.5 cm above from umbilicus present at 10'o clock position, on explanation left side liver and left side stomach both punctured.

(V)I.W. 4.5 cm x 2.5 cm x muscle deep, left side posterior auxiliary line above illiacrest left side 20 cm above.

According to the autopsy surgeon and the post mortem report (Ext.Ka.11), the death of the deceased occurred ¾ days prior to the post mortem examination and the cause of death was shock and haemorrhage due to ante mortem injuries.

7. After completing the investigation the Investigating Officer submitted charge sheet under Section 307, 302 IPC against the accused appellant in the court of CJM, Moradabad. The charge sheet is Ext.Ka.12. This case was committed to the court of sessions by CJM Moradabad vide his order dated 8.2.2000.

8. The trial court framed charge under Section 302 IPC against the accused appellant. The accused appellant denied the charge and claimed to be tried.

9. The prosecution in order to prove its case examined 8 witnesses in all in the trial court. The general feature of evidence of these witnesses, in nutshell, is as follows:-

PW-1 Mohd. Yusuf is an eye witness of the occurrence in question. He is also said to have carried the injured Saleem to the police station concerned.

PW-2 Naushad is the real brother of the deceased. He had deposed as regards the motive aspect of the matter.

PW-3 Nazar Mohammad is the scribe of the FIR.

PW-4 S.I. Kunwar Pal Singh is the first investigating officer of the case who proved the investigation which was done by him and also proved the Chick FIR (Ext. Ka.2), G.D. regarding registration of the case (Ext.Ka.3) to be in the handwriting of Head Moharrir Bhagwan Singh. He further proved the site plan of the spot (Ext.Ka.4). He also proved the inquest report, photo nash, report to CMO, report to R.I., sample of seal and chalan lash which are Ext.Ka.5 to Ext.Ka.10. He further proved the statement of injured Saleem recorded under Section 161 Cr.P.C. which is Ext. Ka.13.

PW-5 Dr. K. Kumar, who is the autopsy surgeon, proved the most mortem report of the deceased, which is Ext.Ka.11.

PW-6 is the Inspector Sri Krishna Shukla, who took the investigation in his hand after the conversion of the case into Section 302 IPC. He has proved the charge sheet (Ext.Ka.12) which has been submitted against the accused appellant.

PW-7 is the Head Constable Bhagwan Singh who proved the Chick FIR and GD regarding the registration of the case to be in his own handwriting and has further proved the fact that injured Saleem told him that accused Faiyaz caused injuries to him with Chhuri with the intention to kill him.

PW-8 Constable Daya Ram was the then constable clerk in Police Station Chandausi. On the day the FIR of this case was lodged, he has stated in his statement that injured Saleem told Head Moharrir Bhagwan Singh as well as S.I. K.K. Singh that accused Faiyaz had caused injuries to him with chhuri with the intention to kill him.

10. PW-1 Mohd. Yusuf is said to be the eye witness of the incident in question. He has stated in his examination-in-chief that on 26.4.2000 at about 3.30 p.m. deceased Saleem came to his shop and he was talking with him on the road. He was talking to bring the payment of the Barat of Maichela. At that time, accused appellant Faiyaz having Chhuri in his hands came there and assaulted Saleem with the intention to kill him. On the shrieks of deceased Saleem, he himself, one Irshad and so many other persons came on the spot who tried to rescue the deceased Saleem. Deceased Saleem rushed towards the transformer. The accused chased him. Saleem fell down near transformer. Accused Faiyaz fled away from the spot through the street of company garden. He has further stated that he himself, Nazar Mohammad and Mohd. Lucky and other persons lifted Saleem from the spot and brought him to the police station. In the police station deceased Saleem got the report written by one Nazar Mohammad and made it over in the police station. This witness has proved the thumb impression of the deceased on the written report and has further stated that in the police station Head Moharrir asked the deceased Saleem as to who caused injuries to him. On his query, deceased Saleem told him that accused Faiyaz had caused injuries to him with Chhuri with the intention to kill him. This witness has been subjected to lengthy and searching cross-examination by the defence. So, we need not repeat the same to avoid unnecessary lengthy and burdensome judgment.

11. The other witnesses are either the witnesses on the point of motive or they are the formal witnesses, so the relevant portion of their statement would be referred to hereinafter while discussing and scrutinizing the veracity of their evidence.

12. The accused appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution version and has further stated that he has been falsely implicated in this case due to enmity. He has further stated that the brother of the deceased, namely, Taj Ahmad is a lawyer and with his collusion the Investigating Officer recorded the statement of the injured and that all the witnesses have given false statement against him and false papers have been fabricated against him.

13. From the side of the accused appellant, no evidence was adduced in defence in the trial court.

14. The trial court after hearing the arguments of the defence counsel as well as the State counsel and perusing the evidence on record, convicted and sentenced the accused appellant as mentioned hereinbefore in the beginning of the judgment. Hence, this appeal.

15. We have heard Sri Raj Kumar Khanna, learned counsel for the appellant and Sri Rajeev Sharma, learned A.G.A. for the State of U.P. and perused the entire evidence on record.

16. Learned counsel for the accused appellant has submitted that the FIR in this case is ante-timed and the same was not in existence at the time of preparation of the inquest report of the dead body of the deceased because the eye witness Mohd. Yusuf (PW-1) is also the witness of inquest proceedings but the witnesses of Panchayatnama have not expressed in their opinion recorded in Panchayatnama (inquest report) that it is the accused appellant Faiyaz who assaulted the deceased with Chhuri.

17. We do not agree with the contention of the learned counsel for the appellant because the purpose of the inquest report is confined to the ascertainment of the apparent cause of death and it need not mention therein as to who assaulted the deceased and who were the witnesses of the assault. The provision for holding of inquest is contained in section 174 Cr.P.C. and the heading of section is, 'Police to enquire and report on suicide etc." Sub-sections (1) and (2) thereof read as under:-

"174. Police to enquire and report on suicide, etc.-(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report to the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the sub-divisional Magistrate."

The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under section 174 Cr.P.C. is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by some animal. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of inquest proceedings under Section 174 Cr.P.C. In this reference, the ruling of the Hon'ble Supreme Court given in the case of Podda Narayana vs. State of A.P., AIR 1975 SC 1252 may be referred to. In that case, the Hon'ble Supreme Court has held that the proceedings under Section 174 Cr.P.C. have a very limited scope. The object of the proceedings is merely to ascertain as to whether a person has died under suspicious circumstances or an unnatural death and if so, what is the apparent cause of death. So, the absence of the name of the accused in the inquest report or in the opinion of Panches cannot lead to an inference that the FIR was not in existence at the time of holding the inquest proceedings. It is also pertinent to mention in this reference that in the enclosures annexed to the inquest report the copy of Chick FIR and the copy of GD regarding the registration of the case are very well mentioned which clearly shows that the FIR was in existence at the time the inquest report was prepared.

18. Learned counsel for the appellant has further submitted that in the FIR the motive of the crime in question has not been mentioned and later on false motive of the crime has been attributed to the accused appellant.

19. We find no substance in this contention also because it is a case of direct evidence and it is well settled law that in the case of direct evidence, motive pales into insignificance and the absence thereof is of no consequence. The FIR is not an encyclopedia in which all the details should be mentioned. It is the matter of the investigation as to how and why a particular crime has been committed. The Investigating Officer has recorded the statement of the brother of the deceased, namely, Naushad. During the course of the investigation, Naushad has been examined in the trial court as PW-2. From his statement it has been very well established that accused appellant Faiyaz had grudge against deceased Saleem on account of transaction of money much before the incident in question and prior to the incident in question also the accused at several times had committed marpeet with the deceased and extended threat to kill him. So, non-mentioning of the motive in the FIR, in the facts and circumstances of the matter, is of no help to the accused appellant and on that basis it cannot be inferred that the accused appellant has not committed the murder of the deceased.

20. Learned counsel for the appellant has also submitted that the FIR of this case allegedly got written by one Nazar Mohammad at the dictation of deceased Saleem, cannot be used as dying declaration against the accused appellant because the deceased was not in a position to speak in view of the number, nature and seat of the injuries on his body.

21. We find no force in this contention also because from the post mortem report of the deceased it is clear that the deceased had sustained no injury on his throat and that there is no legal evidence on record to show that his speaking power got diminished or damaged due to the injuries. This very fact further finds support from the statement of Head Moharrir Bhagwan Singh and the statement of the Investigating Officer S.I. Kunwar Pal Singh who categorically stated in their statement on oath that deceased Saleem told them that accused appellant Faiyaz caused injuries to him with Chhuri with the intention to kill him.

22. On this point, the counsel for the appellant has challenged the testimony of Head Moharrir Bhagwan Singh on the ground that he had mentioned in the GD (Ext.Ka.3) that the deceased was not in a position to speak when he was brought to the police station. This very discrepancy is of no help to the defence because Head Moharrir Bhagwan Singh was not confronted by the defence with the aforesaid GD in cross-examination as per provisions of Section 145 of Evidence Act. In this regard, the statement of Head Moharrir Bhagwan Singh and S.I. Kunwar Pal Singh finds corroboration from the statement of PW-8 constable Daya Ram who had stated that before him deceased Saleem told the aforesaid Head Moharrir and S.I. Kunwar Pal Singh that the accused appellant Faiyaz had caused injury to him with chhuri with the intention to kill him. So, from the evidence on record it is fully established that the deceased was in position to speak and on his dictation the FIR was written by the scribe and he told Head Moharrir Bhagwan Singh and Investigating Officer S.I. Kunwar Pal Singh that the accused appellant had caused injury to him with Chhuri with the intention to kill him. The FIR written on the dictation of the deceased clearly relates to the cause of death of the deceased and the deceased died about half an hour after lodging the FIR. So, the FIR clearly falls in the category of dying declaration of the deceased.

23. Learned counsel for the appellant has assailed the testimony of PW-1 Mohd. Yusuf on the ground that his statement is not compatible with the medical evidence on record because according to the statement of this witness deceased Saleem kept on running and accused appellant Faiyaz kept on assaulting him from behind but no injury on the back of the deceased was found in the post mortem examination report and secondly, injury no. 2 of the deceased is the contusion which can be caused by some hard and blunt object but according to this witness, all the injuries to the deceased were caused by the blows of Chhuri which is a sharp edged weapon. So, the presence of this witness is not established on the spot at the time of incident in question and he had not seen the occurrence.

24. In our opinion, the aforesaid discrepancies as pointed out by the appellant's counsel are very trivial in nature because from the statement of PW-1 Mohd. Yusuf it cannot be said that the deceased had sustained some injury on his back also. So far as injury no.2 is concerned, it is multiple abraded contusion and there is the statement of this witness of PW-1 Mohd. Yusuf that the accused chased the deceased and the accused fell near the transformer. So due to scuffling and falling this injury may be caused. Hence, from these discrepancies it cannot be inferred that PW-1 Mohd. Yusuf had not seen the occurrence in question.

25. The counsel for the appellant has further submitted that no blood was found by the Investigating Officer on the spot as is evident from the site plan (Ext.Ka.4). So the occurrence did not happen at the place as alleged by the prosecution. This contention is also bereft of any merit because the incident took place on the road and the blood, if any, which might have trickled on the spot, would not remain in existence due to the vehicles traffic and the passengers passing there. It is also pertinent to mention here that just after the occurrence in question the deceased was lifted from the spot and taken to the hospital by rickshaw, the blood, if any, might be soaked in the clothes of the deceased. It is also notable that according to the post mortem examination report, 2 liters of blood were found in the abdominal cavity of the deceased. So the flow of blood of abdominal injury was towards inside the abdomen. Due to that reason also, the blood might not be fallen down on the spot. So, under these circumstances, non-finding of the blood on the spot does not in any way adversely affect the merit of the prosecution case.

26. For the foregoing reasons and discussions, we are of the opinion that there is clear and convincing evidence of eye witness Mohd. Yusuf (PW-1) that it is the accused appellant who caused injuries to the deceased with Chhuri with the intention to kill him, as a result of which the deceased succumbed to the injuries while on the way to District Hospital. The testimony of this witness is corroborated by the FIR which was promptly lodged just after about half an hour of the occurrence in question and further the testimony of this witness finds support from the medical evidence, according to which the deceased died due to the injuries sustained by him. Further the prosecution case is corroborated by the dying declaration of the deceased which he made in the FIR lodged by him and before the Head Moharrir and the Investigating Officer concerned. So, from the evidence on record, the prosecution case is proved beyond reasonable doubt and the trial court has rightly held that the prosecution has succeeded in proving its case against the accused appellant beyond reasonable doubt. So, we find no reason for interference with the order of conviction and sentence passed against the accused appellant.

27. In the result, we dismiss the appeal and affirm the order of conviction and sentence passed against the accused appellant by the lower court.

28. Office is directed to return the lower court record expeditiously along with a copy of this judgment for information and for intimation to the accused appellant through the Superintendent of the jail concerned.

Order Date :-30-5-2014

SP