Gazuddin & Others vs State
2014 Latest Caselaw 7115 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									A.F.R.
 
									RESERVED
 
Case :- CRIMINAL APPEAL No. - 718 of 1993
 
Appellant :- Gazuddin & Others
 
Respondent :- State
 
Counsel for Appellant :- P.K. Tripathi
 
Counsel for Respondent :- A.G.A. Basharat Ali Khan, Hari Krishan Mishra
 
Hon'ble Arun Tandon,J.

Hon'ble Akhtar Husain Khan,J.

(Delivered by Hon'ble Akhtar Husain Khan,J)

Present appeal has been filed by accused appellants Gazuddin, Kalua and Shera under Section 374(2) Cr.P.C. against judgement and order dated 22.4.1993 passed by learned IX Additional Sessions Judge, Ghaziabad in S.T. No.148 of 1991 (State Vs. Gazuddin and others), under Section 302/34 and 323 I.P.C., Police Station Sahibabad, District Ghaziabad, whereby learned IX Additional Sessions Judge, Ghaziabad has convicted accused appellants Gazuddin, Kalua and Shera for offence punishable under section 302 read with section 34 I.P.C. and sentenced each of them thereunder to imprisonment for life. Learned IX Additional Sessions Judge, Ghaziabad has further convicted accused appellant Gazuddin for offence punishable under section 323 I.P.C. and sentenced him thereunder to rigorous imprisonment for six months. Learned IX Additional Sessions Judge, Ghaziabad has directed that both sentences of accused appellant Gazuddin shall run concurrently.

Accused appellants Gazuddin and Kalua are reported dead. Appeal abated in respect of accused appellants Gazuddin and Kalua.

Shri P.K. Tripathi learned counsel appeared for the accused appellants and Shri Basharat Ali Khan, learned A.G.A. assisted by Shri Hari Krishan Mishra appeared for State respondent.

We have heard the parties and perused the record.

According to the first information report Exhibit Ka.12 in brief prosecution case is that accused Kalua borrowed Rs.500/- from Jumma brother of complainant Ahmad Saed and lost the same in gambling. On the date of occurrence i.e. 11.2.1991 at about 6.45 P.M. Jumma demanded back his money from accused Kalua that caused accused Kalua aggravated. He began to abuse Jumma and refused to pay back money. Jumma brother of complainant Ahmad Saed forbade abusing whereupon altercation took place between them. Having heard the noise Shamim son of Abdul Hamid, Yaseen son of Kalla Mehar and Mohd. Sharif son of Sahab Uddin as well as several other persons of locality came to the place of occurrence and tried to pacify them. In the meantime accused Shera brother of accused Kalua and accused Gazuddin father of accused Kalua came there and exhortation. Thereafter accused Gazuddin assaulted Jumma with danda and accused Kalua and Shera having drawn knives from their phet (waist) assaulted him with knifes. Mother Sahida and sister Jumiya of complainant came to rescue Jumma. They also suffered injuries by the blows of danda given by accused Gazuddin. After having received injuries Jumma fell down. When witnesses and persons of locality challenged the aforesaid accused ranaway. Thereafter with aid of residents of his mohalla complainant Ahmad Saed carried injured Jumma by horse cart to Tej Bahadur Hospital, Delhi where doctor declared Jumma dead. Thereafter they were returning back with dead body of Jumma. In the way they felt Jumma to be alive. Thereafter they carried him with the same horse cart to Mohan Nagar Hospital. There also doctor confirmed that Jumma is dead. Then leaving dead body of Jumma in Mohan Nagar Hospital complainant Ahmad Saed went to Police Station Sahibabad, and presented written report Exhibit Ka.12 whereupon Crime No.61 of 1991, under sections 302/323 I.P.C. was registered in Police Station Sahibabad, District Ghaziabad against accused appellants Gazuddin, Kalua and Shera on 12.2.1991 at 00.20 A.M. Investigation was started by police and inquest report of deceased Jumma was prepared by police. Thereafter dead-body of deceased Jumma was sent for postmortem in sealed cover after having completed necessary formalities. Later on investigation was completed by police in accordance with law.

After having completed investigation, police submitted charge sheet against accused appellants Gazuddin, Kalua and Shera under sections 302/323 I.P.C. whereupon concerned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the Court of Session for trial. Thereafter Session Trial No.148 of 1991 (State Vs. Gazuddin and others), under sections 302/323 I.P.C., Police Station Sahibabad, District Ghaziabad was registered in Session Court of Ghaziabad. Later on said session trial was transferred to the court of IX Additional Sessions Judge, Ghaziabad, who framed charge against accused appellants Gazuddin, Kalua and Shera for offence punishable under section 302 read with section 34 I.P.C. He further framed charge for offence punishable under section 323 I.P.C. against accused Gazuddin only.

All accused pleaded not guilty and claimed to be tried.

Prosecution examined P.W.1 Saedan, P.W.2 Jumia, P.W.3 Dr. S.N. Sharma, P.W.4 complainant Ahmad Saed, P.W.5 Head Constable Om Prakash, P.W.6 Dr. Devendra Kumar and P.W.7 S.I. Suresh Pal Singh Yadav and closed his evidence.

After prosecution evidence, statements of all accused were recorded under Section 313 Cr.P.C. All the accused stated that they have been falsely implicated due to animosity.

No evidence was adduced on behalf of accused in defence.

Learned IX Additional Sessions Judge, Ghaziabad heard arguments of both parties and passed impugned judgement and order dated 22.4.1993 whereby he has convicted and sentenced all accused appellants as mentioned above.

Learned counsel for accused appellants contended that accused appellants are innocent and have been falsely implicated due to animosity.

Learned counsel for accused appellant contended that F.I.R. is delayed and whole version of prosecution is false and concocted.

Learned counsel for accused appellant further contended that out of 7 witnesses examined by prosecution P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed are witnesses of fact of occurrence and they belonged to same family and are related to deceased. They are inimical also with accused appellants.

Learned counsel for accused appellant contended that statements of P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed are self contradictory and it is apparent from their statements itself that they have not seen occurrence.

Learned counsel for accused appellant contended that injuries of P.W.1 Saedan and P.W.2 Jumia are false and fabricated.

Learned counsel for accused appellant contended that no source of light has been proved by prosecution and in darkness it is difficult to identify assailants.

Learned counsel for accused appellant contended that evidence on record is not sufficient to convict accused appellant. Conviction recorded by trial court is against evidence and law.

Learned counsel for accused appellant prayed that appeal should be allowed and all accused appellant should be acquitted.

Learned A.G.A. contended that evidence on record is sufficient to hold accused appellant Shera guilty for offence punishable under section 302/34 I.P.C.

Learned A.G.A. further contended that sentence awarded by trial court is not excessive.

Learned A.G.A. contended that there is no sufficient ground to justify interference in the impugned judgement and order passed by trial court.

Learned A.G.A. prayed that appeal has no merit and it should be dismissed.

We have considered the submissions made by the parties.

Out of above seven witnesses examined by prosecution before trial court P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed are the witnesses of fact and occurrence. They have supported version of F.I.R. in their statements on oath.

P.W.4 complainant Ahmad Saed has proved F.I.R. Exhibit Ka.12 also in his statement.

P.W.3 Dr. S.N. Sharma has stated on oath that on 12.2.1991 he was posted as Medical Officer in District Hospital,Ghaziabad. He has stated on that day he conducted post-mortem of deceased Jumma son of Fakira resident of Shahid Nagar, Police Station Sahibabad. The dead body was brought by Constable 77 Mehndi Hasan and Constable 103 Sripal Singh.

P.W.3 Dr. S.N. Sharma has proved post mortem report of deceased Jumma Exhibit Ka.1. He has proved his signature on inquest report, specimen seal, letter to R.I., letter of police station, letter of R.I. and Photo Nash. Trial court has marked Exhibits Ka.2 to 11 on the said signatures.

P.W.5 Head Constable Om Prakash has stated on oath that on 12.2.1991 he was posted as Head Moharrir in Police Station Sahibabad. He has stated that on that day at 00.20 A.M. complainant Ahmad Saed came in police station and presented written report. On the basis of which he had written chick F.I.R. No.48 and registered Crime No.61 of 1991, under sections 302 and 323 I.P.C. He has proved said chick F.I.R. Exhibit Ka.13 and copy of G.D. relating to registration of crime Exhibit Ka.15 in his statement.

P.W.5 Head Constable Om Prakash has further stated in his statement that in G.D. dated 12.2.1991 rapart no.25 has been written by S.I. S.P. Singh Yadav at 10.15 A.M. regarding arrest of accused Gazuddin. He has proved said G.D. Exhibit Ka.16 also.

P.W.6 Dr. Devendra Kumar has stated in his statement on oath that on 12.2.1991 at 9.45 A.M. he conducted medical examination of Smt. Jumia P.W.2 and Smt. Saedan P.W.1. In his statement on oath he has proved injuries of Smt. Jumia P.W.2 and Smt. Saedan P.W.1 as well as their injury reports Exhibit Ka.18 and Exhibit Ka.17 respectively.

P.W.7 S.I. Suresh Pal Singh Yadav has stated in his statement that in the month of February, 1991 he was posted as S.I. in Police Station Sahibabad, District Gahziabad. He has stated that crime relating to present appeal was registered in Police Station Sahibabad in his presence and investigation was handed over to him. He has stated that he went to place of occurrence and recorded statements of complainant P.W.4 Ahmad Saed and P.W.1 Saedan and P.W.2 Jumia as well as that of witness Shamim. He has further stated that he made inspection of place of occurrence at the pointing of complainant Ahmad Saed. He has proved site plan of place of occurrence Exhibit Ka.19 in his statement.

P.W.7 S.I. Suresh Pal Singh Yadav has further stated in his statement that he came to hospital Mohan Nagar and prepared inquest report of deceased Jumma thereon.

P.W.7 S.I. Suresh Pal Singh Yadav has further stated in his statement that after having completed investigation he submitted charge sheet Exhibit Ka.20.

All accused stated in their statements under section 313 Cr.P.C. that they have been falsely implicated.

Accused Gazuddin has stated in his statement that father of complainant Ahmad Saed had levelled charge of murder of his real brother Tunni against him in year 1947 in which he was acquitted. He has stated that complainant Ahmad Saed has falsely implicated and has given false evidence due to old animosity. Accused Kalua and Shera have also stated the same fact in their statements under section 313 Cr.P.C. as has been stated above by accused Gazuddin.

We have examined evidence adduced by prosecution in the light of contentions made by the parties.

According to the F.I.R. Exhibit Ka.12 occurrence took place on 11.2.1991 at 6.45 P.M. while F.I.R. Exhibit Ka.12 has been presented by P.W.4 complainant Ahmad Saed in Police Station Sahibabad on 12.2.1991 at 00.20 A.M. whereupon Crime No.61 of 1991, under sections 302 and 323 I.P.C. was registered in Police Station Sahibabad at the same time as it is apparent from chick F.I.R. Exhibit Ka.14 as well as G.D. relating to registration of crime Exhibit Ka.13. Thus it is apparent that F.I.R. has been lodged after 5.35 hours of occurrence. The reason of delay in lodging F.I.R. has been mentioned in F.I.R. Exhibit Ka.12. According to F.I.R. Exhibit Ka.12 after occurrence P.W. 1 complainant Ahmad Saed carried his injured brother Jumma by horse cart to Tej Bahadur Hospital, Delhi where doctor declared him head. Thereafter he was coming back to his house but in the way he felt that Jumma is alive. Then he went to Mohan Nagar, Hospital where doctor confirmed death of Jumma. Then after leaving the dead body of Jumma in Mohan Nagar, hospital complainant Ahmad Saed went to Police Station Sahibabad and presented report Exhibit Ka.12. This version of F.I.R. has been supported by P.W.4 complainant Ahmad Saed in his statement on oath.

In cross examination of P.W.4 complainant Ahmad Saed has shown his inability to tell the name of police station lying in the way to Tej Bahadur Hospital, Delhi. But it does not lead to infer that he has not gone to Tej Bahadur Hospital with his injured brother Jumma. It is apparent from statement of P.W.7 Surendra Pal Singh Yadav that dead body of Jumma was in Hospital Mohan Nagar where he had gone to prepare inquest report.

In view of above, we find that reason assigned by complainant P.W.4 Ahmad Saed for delay in lodging F.I.R. is genuine and satisfactory. Besides this F.I.R. Exhibit Ka.12 has been lodged at 00.20 A.M. on the same night of occurrence within 5.35 hours of occurrence. Therefore F.I.R. may not be treated delayed and delay of few hours may not adversely affect credibility of F.I.R.

Admittedly P.W.1 Saedan is the mother, P.W.2 Jumia is the sister and P.W.4 complainant Ahmad Saed is the brother of deceased Jumma but Hon'ble Apex Court has consistently held that testimony of witnesses may not be discarded merely on the ground of relationship. For reference following pronouncements of Hon'ble Apex Court may be cited.

(1) Brahm Swaroop and another Vs. State of U.P. A.I.R. 2011 S.C. 280.

2. Vithal Vs. State of Maharastra (2008) 1 SCC (Crl.) 91

3. Ranjit Singh and others Vs. State of Madhya Pradesh A.I.R. 2011 S.C. 255

In F.I.R. Exhibit Ka.12 P.W.4 complainant Ahmad Saed has specifically mentioned that his mother P.W.1 Saedan and his sister P.W.2 Jumia came to rescue Jumma (now deceased). They also suffered blows of danda used by accused Gazuddin. P.W.4 complainant Ahmad Saed has supported this version of F.I.R. Exhibit Ka.12 in his statement on oath also. P.W.1 Saedan and P.W.2 Jumia have stated that when they tried to rescue Jumma they also suffered blows of danda.

P.W.6 Dr. Devendra Kumar has proved injuries as well as injury reports of P.W.1 Saedan and P.W.2 Jumia Exhibit Ka.17 and Exhibit Ka.18 respectively.

Perusal of injury report of P.W.1 Saedan Exhibit Ka.17 as well as statement of P.W.6 Dr. Devendra Kumar shows that one lacerated wound on right side of her forehead 2 ½ cm x 1 cm. x skin and muscle deep was found. Similarly injury report of P.W.2 Jumia Exhibit Ka.18 as well as statement of P.W.6 Dr. Devendra Kumar shows that one contusion 1 cm x ½ cm was found on left side of her forehead. Medical examination of P.W.1 Saedan and P.W.2 Jumia were conducted on 12.2.1991 at 9.45 A.M. and injuries of both injured were found ½ day old. The injury reports of P.W.1 Saedan and P.W.2 Jumia shows that they had been brought for medical examination by Constable 804 Kali Ram, Police Station Sahibabad. Thus it is apparent that medical examination of both injured has been conducted without delay and injuries found on their body may be caused at the time of occurrence alleged by prosecution. Thus considering version of F.I.R. Exhibit Ka.12 and injury reports of P.W.1 Saedan and P.W.2 Jumia Exhibit Ka.17 and Exhibit Ka.18 respectively as well as statements of P.W.1 Saedan, P.W.2 Jumia, P.W. 4 complainant Ahmad Saed and P.W.6 Dr. Devendra Kumar, we are of the view that prosecution has proved that P.W.1 Saedan and P.W.2 Jumia have suffered injuries in the occurrence alleged by prosecution. Therefore, the presence of these two injured witnesses at the time of occurrence may not be denied.

P.W.4 complainant Ahmad Saed has supported version of F.I.R. Exhibit Ka.12 in his examination in chief, but in cross examination he has stated that he was doing business of scrap at the time of occurrence. He came to his house from his business at 6.45 P.M. At that time there was crowd. He has further sated in cross examination that when he reached to his house dead body of Jumma was lying. Thereafter he carried deadbody of Jumma to Taj Bahadur Hospital, Delhi by horse cart. He has further stated in his cross examination made by defence that when he reached his house P.W.2 Jumia and P.W.2 Saedan were present near deadbody of deceased Jumma and they were injured.

But in the end of his statement P.W.4 complainant Ahmad Saed has stated in reply to suggestion given by defence that it is wrong to say that accused have not murdered his brother and he is stating the names of accused appellants due to enmity. In continuation of this statement he has further stated that accused appellants have assaulted his brother in front of him.

P.W.1 Saedan has also fully supported prosecution version in her examination in chief on oath. She has also stated in cross examination made by defence at page 4 (page 14 of paper book) that after hearing noise she came out house after 10 to 15 minutes. When she reached on spot all accused fled away. Dead body of Jumma was lying there. She has further stated in her cross examination that Mirasiyan has killed Jumma for the sake of money.

P.W.2 Jumia has also fully supported version of prosecution in examination in chief but in cross examination at page 2 ( page 17 of paper book) she has stated that she was cleaning utensils in the house. After having heard noise she reached on spot, Jumma was lying on earth. She has further stated on same page that when Jumma died accused ranaway. When she reached on spot deadbody of Jumma was lying.

Thus description of statements of P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed mentioned above shows that they have fully supported version of F.I.R. Exhibit Ka.12 but in cross examination by defence they have tried to retract from their statements made in examination in chief.

Manner in which all the three witnesses of occurrence namely P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed have deposed shows that they have stated not with feeling of animosity but under influence of accused appellants either due to threat or fear or due to inducement.

In the case of Ranjit Singh and others Vs. State of Madhya Pradesh, A.I.R. 2011 SC 255, Hon'ble Apex Court has placed reliance on its previous judgement rendered in the case of Prem Singh and others Vs. State of Haryana, (2009) 14 SCC 494; (AIR 2009 SC 2573), wherein Hon'ble Apex court has held as under:

"It is now a well settled principle of law that the doctrine "falsus in uno, falsus in omnibus" has no application in India.

In view of above, the law can be summarised to the effect that the aforesaid legal maxim is not applicable in India and the court has to assess to what extent the deposition of a witness can be relied upon. The Court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chaff because they are inextricably mixed up, that the whole evidence of such a witness can be discarded."

In the case of State of U.P. Vs. Krishna Master and others; 2010 Cri. L.J. 3889 (SC) Hon'ble Apex Court has held that "prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof."

In the case of In the case of State of U.P. Vs. Krishna Master and others (supra), Hon'ble Apex Court has further held that "the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole."

In view of principle laid down by Hon'ble Apex Court in above pronouncements it is apparent that statements of witnesses shall be appreciated as a whole and truth shall be separated from falsehood.

Statement of P.W. 3 Dr. S.N. Sharma as well as post mortem report of deceased Jumma Exhibit Ka.1 shows that post-mortem of deceased Jumma was conducted on 12.2.1991 at 2.50 P.M. and time of death was found about 3/4 day which corresponds to the time of alleged occurrence i.e. 11.2.1991 at 6.45 P.M.

Statement of P.W.3 Dr. S.N. Sharma as well as post mortem report of deceased Jumma Exhibit Ka.1 shows that eleven ante mortem injures were found on the deadbody of deceased Jumma, out of which seven injuries were incised wounds, one injury was contusion and three injuries were abrasions. In F.I.R. Exhibit Ka.12 specific mention has been made that accused Gazuddin assaulted with danda and accused Kalua and Shera assaulted with knives. This version of F.I.R. has been supported by P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed in their statements on oath. Ante mortem injuries of incised wound found on the deadbody of deceased Jumma may be caused by sharp edged weapons. knives are also sharp edged weapons. Injuries of contusion and abrasions may be caused by blunt object and lathi is a blunt object. Thus ante mortem injuries found on the deadbody of deceased Jumma corroborates version of F.I.R. as well as statements of P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed.

P.W.3 Dr. S.N. Sharma has stated in cross examination by defence that 150 grams semi digested food was found in stomach of deceased. He has further stated in cross examination at page 4 (page 23 of paper book) that in ordinary course the food is digested within three hours. He has further stated in cross examination that deceased Jumma would have taken food one and half hour before death. Learned counsel for accused appellant has contended that this position of stomach of deceased creates doubt about time of alleged occurrence and it shows that occurrence has taken place in late night.

We have considered the submission made by learned counsel for accused appellant. Merely on the ground of semi digested food found in stomach of deceased Jumma. The time of occurrence alleged in F.I.R. Exhibit Ka.12 and supported by P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed may not be disbelieved because it is not necessary that every one shall take meal at night. Some people used to take meal before sunset. Even in day meal may be taken late in evening due to certain reasons. Therefore, no adverse presumption may be drawn against prosecution on the ground of semi digested food found in stomach of the deceased Jumma.

In view of discussion made above, we are of the view that version of F.I.R. Exhibit Ka.12 as well as statements of P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed are corroborated by statement of P.W.3 Dr. S.N. Sharma as well as post-mortem report Exhibit Ka.1. The version of F.I.R. Exhibit Ka.12 as well as the statements of witnesses P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed are also corroborated by site plan Exhibit Ka.19 as well as statement of P.W.7 I.O. Suresh Pal Singh Yadav.

P.W.7 S.I. Suresh Pal Singh Yadav has stated in cross examination at page 2 (page 33 of paper book) that before inspections of place of occurrence there happened heavy rain due to which the blood flew away in drain. Therefore, no adverse inference may be drawn against prosecution due to non recovery of of blood stain from the place of occurrence.

In F.I.R. Exhibit Ka.12 it has been mentioned that deceased Jumma brother of complainant Ahmad Saed demanded his Rs.500/- from accused Kalua which caused Kalua aggravated and he began to abuse Jumma. Jumma forbade him whereupon altercation took place between them. in the meantime accused Shera and Gazuddin also came there. Thereafter all three accused assaulted Jumma. This version of F.I.R. Exhibit Ka.12 has been fully supported by complainant P.W.1 Ahmad Saed in his statement on oath. Thus immediate cause of occurrence has been proved.

Learned counsel for accused appellant has drawn our attention that P.W.1 Saedan has stated in cross examination that Mirasiyan has killed Jumma. Thus it is apparent from her statement that deceased Jummna has been murdered by Mirasiyan and not by surviving accused appellant and deceased accused appellants.

We have considered this submission of learned counsel for accused appellant.

Defence has not dared to clarify with P.W.1 Saedan as to who are Mirasiyan and defence has also not shown that accused appellants are not Mirasiyan. In her statement P.W.1 Saedan has said that Mirasiyan has killed Jumma for the sake of money and discussion made above shows that immediate cause of occurrence is demanding back of money by Jumma (now deceased) from deceased accused appellant Kalua. The whole statement of P.W.1 Saedan shall be seen and it is apparent from her statement that accused appellants Shera and deceased accused appellants Kalua and Gajuddin have committed murder of Jumma.

In the F.I.R. Exhibit Ka.12 as well as in the statements of P.W.1 Saedan, P.W.2 Jumia and P.W.4 complainant Ahmad Saed no source of light has been mentioned. It has been contended on behalf of accused appellant that time of occurrence is alleged to be 6.45 P.M. in the month of February. Therefore at the time of alleged occurrence there must prevail darkness and in the absence of light it shall be difficult to identify assailants.

We have considered this contention regarding source of light also.

The time of occurrence is alleged 6.45 P.M. and date of occurrence is 11.2.1991. In the month of February, 1991 the sun set shall be at about 6.10 P.M. Therefore, at about 6.45 P.M. complete darkness shall not prevail. Complainant and witnesses as well as accused appellant are residents of same place and are known to each other. Known persons may be identified in darkness also by their movements and voice etc. Therefore even in the absence of source of light accused appellants may be identified by complainant and witnesses.

It is apparent from the statement of accused Gazuddin recorded under section 313 Cr.P.C. that father of P.W.4 Complainant Ahmad Saed had lodged report against accused Gazuddin in year 1947 regarding murder of his brother Tunni and accused Gazuddin was acquitted in said murder case. After lapse of 44 years said enmity may not be reason of false implication. In addition to it if said enmity may be cause of false implication, it may be cause of occurrence also.

In the case of Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, (2010) 13 SCC 657, Hon'ble Apex Court has placed reliance on its previous judgement rendered in the case of State Vs. Saravanan; A.I.R. 2009 SC 152, wherein Hon'ble Apex court has held as under:

"The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons."

Perusal of impugned judgement and order of trial court shows that trial court has gone through entire facts and circumstances of the case as well as evidence on record. Trial court has discussed all relevant points raised by parties and conclusions drawn by trial court are based on judicious analysis of facts and evidence in the light of judicial pronouncements.

In view of discussion made above, we are of the view that learned trial court has rightly placed reliance upon evidence adduced by prosecution to convict accused appellant Shera and conviction recorded by trial court against accused appellant Shera for offence punishable under section 302 read with section 34 I.P.C. is in accordance with law and principles laid down in judicial pronouncements. Therefore, in view of above pronouncements of Hon'ble Apex Court rendered in the case of State Vs. Saravanan; A.I.R. 2009 SC 152 (supra), we are of the view that there is no sufficient ground to disturb the findings as well as conviction recorded by trial court.

Sentence awarded by trial court is not excessive and State has not filed appeal for enhancement of sentence.

In view of conclusion drawn above, we are of the view that the appeal has no merit and is liable to be dismissed.

Appeal is dismissed accordingly.

Surviving accused appellant Shera is on bail. He shall surrender before the trial court for serving sentence within 30 days from the date of judgement of this Court, failing which trial court shall ensure his arrest and shall send him to jail for serving sentence in accordance with law.

Office is directed to send copy of judgement to trial court for securing compliance.

Lower court record shall be returned to the concerned court immediately.

 
Order Date :- 26.9.2014
 
RU
 
         (Hon. Akhtar Husain Khan,J)               (Hon. Arun Tandon,J)