Nafis And Another. vs State Of U.P.
2014 Latest Caselaw 6919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 07 					Reserved on  2.9.2014
 
                                                                                     Delivered on 24.9.2014
 
Case :- CRIMINAL APPEAL No. - 247 of 2000
 
Appellant :- Nafis And Another.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arun Singh,Devendra Singh,Nagendra Mohan,R. Murtaza,S.P. Pandey,Salil Mohan,U.C. Yadav
 
Counsel for Respondent :- Govt Advocate,D. Singh,Kamal Singh,Salil Mohan
 
                                    AND
 
Case :- CRIMINAL APPEAL No. - 231 of 2000
 
Appellant :- Tafail And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arun Sinha,Nagendra Mohan,R. Murtaza
 
Counsel for Respondent :- Govt Advocate,D.Singh,K.Singh
 
Hon'ble Ravindra Singh,J
 
Hon'ble Vishnu Chandra Gupta,J.

Since both these appeals are arising out of same judgment, they are being decided by a common judgment.

These criminal appeals under section 374 Code of Criminal procedure (for short "Cr.P.C.") have been preferred by the accused-appellants against the judgement and order dated 22.2.2000 passed by Sessions Judge, Unnao in Sessions Trial No. 353 of 1999 , whereby the appellants have been convicted under section 394 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000 and in default thereof to undergo a sentence of two years rigorous imprisonment and further convicted under section 302 read with section 34 IPC and sentenced to undergo imprisonment for life with fine of Rs. 5,000 and in default thereof to undergo a rigorous imprisonment of two years.

Brief facts for deciding these appeals are that one Radhey Lal has given a written report (Ext. Ka-1) on 6.11.1998 to the Station Officer of police station Kotwali, District Unnao alleging therein that his cousin Dindayal (deceased) on 5.11.1998 at about 1.00 p.m. had gone from his house to Unnnao for purchase of manure. When he did not come back till the evening, his family members were developed anxiety. In the morning of 06.11.1998, he along with Mahesh and Khushi Ram reached Unnao for search of deceased. During search, they came to know that one dead body is lying in the mustard crop near Bone Mill. They went there and saw the dead body which was of Dindayal having gunshot injury on his head. Informant Radhey Lal leaving Mahesh and Khushi Ram and other persons of village-Kashim Nagar near the dead body went, to lodge an FIR at police station Kotwali, District Unnao. On the basis of written report, the FIR was lodged against unknown persons at case crime no. 1201 of 1996 under section 302 IPC, at police station Kotwali, District Unnao on 6.11.1998 (Ext. Ka-3).

The Investigating Officer (PW 7), Ram Narayan Singh came to know on 09.06.1999 through an informer that appellant Nafis and his associates committed the murder of Dindayal, who was having Rs. 21,000/- with him for the purpose of purchasing manure. He recorded the statement of accused appellant Nafis on 10.6.1999, who was arrested by the police in another case. He confessed about the murder of Dindayal. Nafis was in jail in connection with another case. The Investigating Officer went to jail. On the basis of confessional statement made by the accused appellant Nafis, the Investigating Officer met Miswauddin, the eye witness of this case. He narrated the prosecution story to him by saying that on 05.11.1998, he and Dindayal (deceased) were coming to Unnao from village Nawai at about 11:30 a.m. and reached Unnao at about 1:00 p.m, where his real brother was living. They alighted from the bus near the petrol pump over bridge. They went near IBP petrol pump on foot. On the way, Dindayal requested to accompany him for purchasing the manure because he was having Rs. 21,000/- with him and was fearing from picking of pocket. This witness accompanied Dindayal. As soon as they reached near IBP Crossing in the front of Baba Machinery Store, accused appellants Tufail, Nafis sons of Khalil, Gundan (Nausad Ali) and Sheru sons of Yunus Khan of village Jhalottar met them. The accused appellants asked to deceased (Dindayal) as to where he was going. Dindayal told them that he was going to purchase the manure for the purpose of sowing crops. Dindayal also told them that he has to pay some money to the dealer which is due. All the four accused told him that they are also going to Kesarganj. They would manage the manure on concessional rate to Dindayal because they have acquaintance with shopkeeper. He and Dindayal believed the accused appellants and accompanied them. When they reached Kesarganj, he and Dindayal asked the accused appellants where the shopkeeper lives and where is the shop. The accused appellants said that the shopkeeper lives in Ram Nagar and his shop also exists there. Thereafter, they proceeded towards Ram Nagar. When they crossed Ram Nagar, he and Dindayal developed suspicion. When they tried to return back, the accused appellants stopped them with the help of illegal arms and took them to the mustard crop field, which is situated near Ram Nagar. On the corner of the mustard field a tube-well was installed and water tank was also built. He and accused appellants sat on the water tank and the deceased was sitting on the earth inside the mustard crop. Accused appellant Tufail started talking with Dindayal. Accused appellant Nafis called another accused appellant Naushad alias Gundan and exchanged some talks which could not be heard by him. Thereafter, these two accused appellants came near Dindayal and pushed Dindayal with their feet from his backside. They asked to Dindayal to hand over which he was having with him, but he asked that he has nothing. Upon this, accused appellant Nafis asked the other accused appellants to make search of Dindayal. On search, they found the money kept by Dindayal. They took away the money and thereafter accused appellant Nafis fired shot at Dindayal with country made 315 bore half gun, which hit at his head. Dindayal fell down and succumbed to fire shot injury on the spot. Thereafter, the accused appellants wanted to kill him. He begged for his life by saying that he is also a Muslim and neighbour of the accused. Any how they left him on the condition that he would not tell this occurrence to anybody and would not live in Village Jhalottar. Due to fear of the accused appellants, this witness left his house for about six months. Thereafter he came back and started living in his village. After seven months, the I.O. of this case met him. He took him in confidence and promised that nothing would happen to him and then he told the whole occurrence to the I.O. of this case.

On the basis of the statements mentioned above, I.O. (P.W.-7), Ram Narayan Singh proceeded with the investigation and also recorded the statemnt of Radhey Lal (P.W.2) and some other witnesses including Hori Lal (P.W.4) and submitted the charge-sheet against the accused appellants.

To prove its case, the prosecution examined Miswauddin (P.W.1), eye witness of this case, Radhey Lal (P.W2), the informant, Dr. Dinesh Kumar (P.W.3), conducted the post mortem of the deceased, Hori Lal (P.W.4), witness of circumstantial evidence, Head Moharir Awadh Bihari Singh (P.W.5) proved the chick FIR (Ext. Ka-3), copy of G.D. for registration of the crime (Ext. Ka-4), copy of the G.D. (Ext. Ka-5) by which special report was sent to the higher authorities, Inspector Haribhajan Arya (P.W.6), who initially conducted the investigation and and Inspector Ram Narayan Singh (P.W.7) conducted the investigation of this case.

Dr. Dinesh Kumar (P.W.4) found the following ante mortem injuries on the body of the deceased:-

1. Firearm wound of entry 2 cm x 2 cm x cavity deep over forehead left side 6 cm above eyebrow. Margins inverted.

2. Firearm wound of exist 8 cm x 7 cm x cavity deep over occipital region. Margins inverted. Brain matter coming out on probing. Not opened. Injury no.1 is connected with injury no.2.

The doctor opined that cause of death of was due to shock and haemorrage as a result of ante mortem injuries.

After hearing the parties and perusing the record, the learned trial court convicted and sentenced the appellants as stated above by the impugned judgment and order. Hence these appeals.

Heard the learned Senior Advocate Sri Nageshwar Mohan and the learned AGA.

Learned counsel for the accused appellants submitted that findings recorded by the trial court are perverse. They are against the record of the case. He further submitted that it is no doubt true that conviction and sentence can be based on the basis of sole testimony of an eye witness, if he is wholly reliable. While considering the circumstance of this case, it is evident from the record that first Investigating Officer found during investigation that culprit may be of nearby places, but he could not know who they are for about six months after the alleged incident and till he actually transferred from the place of his posting to another place. The second Investigating Officer, on the basis of informer's information proceeded to record the statement of accused appellant Nafis, who was detained in another case. His statement was said to have been recorded on 10.6.1999 when he was in police custody in police station, but he was not produced before the Magistrate for recording his confessional statement made by him implicating himself with some other accused. Moreover, what statement he has given and on what basis the complicity of other accused came into light, has not been stated by the I.O. He recorded the statement of Miswauddin (PW-1) on 11.7.1999, who did not disclose as to why he proceeded from the village and on what time he reached Unnao. He also did not disclose whether PW-4 met him. He further submitted that reasons of his alleged disappearance from village by the PW-1 came for the first time in his statement recorded in court in the form of examination in chief. The same do not find place in the statement recorded under Section 161 Cr. P. C., therefore, his statement on that score cannot be relied upon. The I.O. of this case did not give any reason for recording the statement of P.W. 1 with delay and the reason which PW-1 stated for delay was not found place either in the oral statement of I.O. given in court or in the statement given by him to the I.O. Therefore, such witness cannot be termed to be the wholly reliable witness, specially when PW-1 has stated that he has no relation with Dindayal (deceased) except to pay the regard to each other as and when they met with each other. Miswauddion (PW-1) and Dindayal (deceased) are not the residents of the same village. Therefore, there was no occasion to P.W.1 to accompany with Dindayal (deceased). The reason which has been shown for accompanying with deceased is also an improvement and does not find place in the statement recorded under Section 161 Cr. P. C. Therefore, his presence appears to be doubtful. It is cooked up story to work out the case.The statement of PW-4 is also full of improvement and contradictions with his previous statement recorded under Section 161 Cr. P.C.

On the basis of the aforesaid statement of facts, learned counsel for the appellants submitted that the judgment and order of conviction and sentence passed by the trial court can not be allowed to sustain all the appeals are liable to be allowed.

Per contra, learned A.G.A. has submitted that why PW-1 gave evidence against the accused persons is not coming forth. He is an independent witness. His testimony cannot be discarded. He is an Advocate by profession, therefore, much value should be attached to his statement. The absence from the village is established from his evidence. His statement cannot be disbelieved only for the reason that he has not stated about his absence after the alleged incident to the I.O.

So far as the statement of Hori Lal (P.W-4) is concerned, he is a natural witness and gave very cogent evidence of last seen against the accused persons. Therefore, the evidence of PW-1 and PW-4 coupled with medical evidence is sufficient to sustain the conviction and sentence awarded by the trial Court against the accused appellants.

The Apex Court in Hari Singh M. Vasava Vs. State of Gujarat 2002 (3) SCC 475 has held that the conduct of eye witness, no doubt in appreciating of his evidence plays an important role, but adverse inference cannot be drawn, if he has not been cross examined on such a particular issue and opportunity has not been given to explain his conduct.

The Hon'ble Supreme Court in 1998 (36) ACC 777 (SC), State of U.P. Vs. Sikander Ali has held about the delay of 24 days in examination of the witnesses by I.O. is not sufficient to drop his evidence. This omission of I.O. can not prevent the Court to accept his evidence, if otherwise found trustworthy.

In another Judgment, the Hon'ble Supreme Court in State of Rajasthan Vs. Teja Singh and others 2001 (3) SCC 147 has ruled that though witness was available in village, but his statement was recorded after five days of the crime, for which explanation given by the I.O. is not at all satisfactory. In such circumstances, suspecting the evidence of such witness by the High Court was found justified.

It is well recognized principles of appreciating the evidence that out of three categories of the witnesses; namely, "wholly reliable", "partly reliable" and "wholly unreliable", the conviction cannot be sustained on the sole testimony of partly reliable witness, but the conviction can be sustained in the case of former category i.e. in the case of sole reliable witness. To judge the veracity of the witness several factors including probability of his presence, his conduct at the time of incident and thereafter, the manner in which he replied before the Court has to be seen. The material omissions and contradictions made by a witness in the light of his previous statement are also played important role to appreciate the evidence of such witnesses.

In this case the sole evidence of PW-1 coupled with the statement of PW-4 was found sufficient to hold the accused persons guilty by the trial Court. Therefore, the evidence of both witnesses requires scrutiny independently. It is also worth notice that scrutiny of their evidence should be minute as the offence alleged to have been committed is heinous and serious one.

In the light of the above, we are going to assess the evidence of both prosecution witnesses.

P.W.1 is not named in the F.I.R. His name came into light when one of the accused is said to have been made confessional statement in respect of the murder of Dindayal when he was arrested in connection with case under Section 307 I.P.C on 9.6.1999 , nearly about seven months. What statement he has given; has neither been brought on record nor he has been produced before the learned Magistrate for recording his confessional statement under Section 164 Cr. P.C. Moreover nothing has been brought on record to show that he was produced before the Magistrate and he retracted to his earlier statement made before the police in police custody. In absence of it, how the other accused persons came into light is not established on record. It appears that the I.O. of this case after recording the statement of co-accused Nafis in police custody proceeded to record the statement of PW-1 on 11.07.1999 i.e. after more than one month from the date of recording the statement of co-accused Nafis by I.O.

Ram Narayan Singh I.O. categorically stated that after recording the statement of co-accused Naifs on 10.6.1999 he proceeded to search the other accused on 12.6.1999 but he did not make any effort to record the statements of PW. 1 and P.W. 4 . It appears from the statement of I.O. that he after recording of the statement of accused appellant Nafis recorded the statement of Miswauddin, Chandrapal and Hori Lal. No explanation has been given by the I.O. as to why he did not record the statements of P.W. 1 and P.W. 4 soon after the statement of accused appellant Nafis. It is also not available in the statement of P.W. 7 that aforesaid P.W. 1 or P.W. 4 were not available on the place where they used to reside. The reason of absence disclosed by P.W. 1 after the incident as narrated in the examination in chief does not find place in the statement recorded under Section 161, Cr.P.C. The I.O. has not stated a single word as to why he did not record his statement forthwith when his presence was disclosed by one of the accused in his confessional statement. The material improvement made by P.W. 1 regarding his absence after the alleged incident creates great suspension about his trustworthiness.

Moreover, P.W. 1 has materially improved his statement in the light of his previous statement under Section 161, Cr.P.C. He neither disclosed the departure from the village nor disclosed at what time he reached Unnao. He stated that accused persons wanted to provide assistance in purchasing of manure by Dindayal (deceased). He also improved his statement on this count accompanying the deceased. He did not give any reason in his previous statement under Section 161, Cr.P.C. in this regard. He also did not disclose the story which he narrated in the examination in chief start from Kesarganj to Ram Nagar and from Ram Nagar to the place of occurrence. The manner in which things happened on spot was also the part of improvement made by him. The omission and contradiction have been established by the defence which have been established from the evidence of P.W. 7. The accused persons and P.W.1 are the resident of the same village. P.W. 7 according to him, is an advocate, who was registered as Advocate in the year 1992, but he practiced only in 1995 and 1996 and thereafter he stated that he practiced till the occurrence of this case. Thereafter he left the profession. According to him, if he gathered courage to speak about the alleged incident to the I.O. why he could not start the practice if he actually wanted to practice as an Advocate. Non committal replies in regard to the questions of enmity and pending litigation in between the families of accused persons and P.W. 1 in consolidation court also made his evidence lack of trustworthiness.

So far as the statement of P.W. 4 is concerned, he categorically stated in his statement recorded in court that he remained present after the incident in the village but he could not disclose the facts to anybody because nobody asked him about the incident, which clearly shows that he was remained throughout present in the village, but the I.O. did not contact him for about one month after disclosure. Therefore, the statement of P.W. 4, especially in the absence of the explanation of I.O. for not recording his statement for about one month after disclosure, also creates suspension in our mind regarding truthfulness and trustworthiness of this witness.

In view of the facts and circumstances narrated hereinabove, the evidence of P.W. 1 cannot be relied upon. His evidence is full of improvement and appears to be precessed witness. He cannot be categorized to be a reliable witness.

So far as statement P.W. 4 is concerned, he told that Dindayal (deceased), P.W. 1 and four accused persons met him at Lucknow bye-pass Tiraha and not near IBP petrol pump. In his previous statement, he categorically stated that I.O. has recorded the statement that he saw the accused persons along with deceased and P.W.1 at about 12:00 noon at Lucknow bye-pass Tiraha. He also made improvement to the effect that when he asked deceased, he replied that deceased was going to purchase the manure along with accused persons. This fact of conversation does not find place in the statement under Section 161, Cr.P.C.

In view of aforesaid facts and circumstances of the case P.W. 4 cannot said to be reliable witness. His statement cannot be relied upon and his testimony cannot be used for the purpose of corroboration too.

In view of the above, we are of the firm opinion that the findings recorded by the trial court regarding trustworthiness of P.W. 1 and P.W. 4 is not sustainable, therefore, their evidence cannot be used for sustaining the conviction and sentence awarded by the trial court against the accused appellants.

The investigation has not been fairly and promptly concluded which caused substantial prejudice to the appellants.

No other point is pressed nor raised by the parties.

Consequently, the appeals are allowed.

The conviction and sentence awarded against the appellants by the impugned judgment and order is set aside. They are acquitted of the charges levelled against them by the trial court. Accused appellants Tufail and Sheru are on bail. Their bail bonds are cancelled. Accused appellants Nafis and Naushad are in jail. They shall be released forthwith if not wanted in any other case. Chief Judicial Magistrate/Sessions Judge, Unnao be informed forthwith alongwith copy of this judgment who shall ensure release.

The office is directed to send the lower court record to the trial court forthwith alongwith copy of this judgment. The Senior Registrar of this Court shall ensure the compliance of this order.

GSY

Dt. 24.09.2014