Allahabad High Court

Aflatoon vs State Of U.P. on 18 August, 2017

Bench: Bharat Bhushan, Kaushal Jayendra Thaker




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 31.7.2017
 
Delivered on 18.8.2017
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 2108 of 2003
 
Appellant :- Aflatoon
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.N. Srivastava,Anil Raghav,Arvind Kumar Srivastavaa/,C,F.N.Dubey,N.K. Srivastava,P.K. Srivastava
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

(Per Hon'ble Dr. Kaushal Jayendra Thaker,J.)

1. Heard Sri Arvind Kumar Srivastava, learned counsel for the appellant and Shri Rajeev Sharma, learned A.G.A. for State.

2. This appeal challenges the judgment and order dated 25.4.2003 in Sessions Trial No. 506 of 2001 passed by the Sessions Judge, Meerut convicting accused-appellant Aflatoon under Sections 302 I.P.C and Section 25 of the Arms Act and sentencing him to undergo life imprisonment and fine of Rs. 5,000/- and in default, one year further imprisonment under Section 302 and six months imprisonment under Section 25 of the Arms Act. The present appellant was convicted and he is in jail since 2001 i.e. the date of arrest.

3. The brief facts are that appellant Aflatoon who lives in the neighbourhood of the complainant Babu (P.W.1), used to tease the ladies of the complainant's family. On 11.5.2001, appellant Aflatoon came to the house of complainant and started teasing the ladies of the complainant's family and on being objected by the deceased Iliyas son of the complainant, an altercation took place between appellant Aflatoon and deceased. Appellant Aflatoon returned back and soon after at about 5.30 p.m., came again with Shaqeel to the house of the complainant. Exchange of abuses took place once again and accused Shaqeel caught hold of Iliyas and appellant inflicted knife blows upon Iliyas. The occurrence was seen by Shamsher, Iqbal and Jameer also. Both the accused escaped after hue and cry were raised. Thereafter, the complainant took the deceased with the help of neighbours to the Medical College, Meerut where he was declared dead. Complainant Babu, thereafter, dictated his written report to one Tasleem who submitted the written report to Police Station, Lisari Gate, Meerut on that basis case was registered and investigation was carried out, inquest report was prepared, formalities for postmortem examination was caused and autopsy was conducted. After investigation charge sheet against the accused person in respect of murder was submitted to the Court of competent jurisdiction. The Competent Court committed the case to the Court of Sessions as the offences were triable by the Court of Sessions.

4. The accused were summoned from jail as both were not enlarged on bail. The co-accused was acquitted by the Sessions Court and the State has not preferred any appeal against the acquittal. The present appellant was convicted and he is in jail since 2001 i.e. the date of arrest. On the accused pleading not guilty, they were tried and the prosecution led its evidence by examining about 10 witnesses which are as follows:

Deposition of Babu

4.5.2002

31.5.2002

PW1

Deposition of Shamsher

4.5.2002

31.5.2002

PW2

Deposition of S.I. R.C. Sharma

31.10.2002

PW3

Deposition of Dr. Rajkuamr

31.10.2002

PW4

Deposition of Constable Madanpal Singh

31.10.2002

PW5

Deposition of Constable Sharwan Kumar

31.10.2002

PW6

Deposition of Afsana

7.11.2002

PW7

Deposition of Mohd. Iqbal

7.11.2002

PW8

Deposition of S.O. Gajendra Singh

8.11.2002

PW9

Deposition of S.I. N.P. Dwivedi

7.1.2003

PW10

5. In support of their ocular version following documents were filed:

F.I.R.

Ex.Ka.8

Written Report

Ex. Ka.1

Recovery Memo of Knife

Ex. Ka. 12

Recovery Memo of Blood stain earth

Ex.ka.14

Postmortem Report

Ex.ka. 7

Site Plan

Ex.ka.13

6. On the witnesses being examined and the prosecution having concluded its evidence. The accused were put question under Section 313 Cr.P.C. but except pleading that they did not know anything and/or they have been falsely implicated, no material was placed nor any witness was examined as defence witness.

7. It is submitted by learned counsel for appellant that the evidence of prosecution witnesses No.1, 2, 7 and 8 who are witnesses of facts are not corroborating each other, the submission of the learned counsel is that there is variance in their version and in the F.I.R. they were not named to be present. It is submitted that PW 2 and PW 7 could not have seen the incident as the place of occurrence they mentioned in their version is different from the place of occurrence mentioned in the F.I.R. Deceased Iliyas took his business in a place which is about 300 ft. away from the residence and, therefore, occurrence could not have been seen. The postmortem report would suggest that they would have been scuffled and site plan of the place of occurrence is also not showing the correct place of occurrence and, therefore, the accused should be acquitted.

8. It is further submitted that whether the deceased was stabbed at home or at the place of his business i.e. Khokha is not mentioned. The prosecution has failed to examine the material witnesses who were shown to be present. The scribe was also not proved. There are several contradictions and the incident could not have been seen. PW 2 was not at all present at the place of occurrence. The genesis of the incident whether it was at Khokha or at the residence is also not proved by the prosecution. The alternative submission is that this was not the case where accused intentionally wanted to murder the deceased. Had that been done so, the weapon would have been the lethal weapon which would not the case in hand. The inquest shows only one major stabbed injury.

9. The learned A.G.A. submitted that stabbing was in front of the house. There was no question for the father to falsely implicate the accused. The learned Trial Court has discussed the evidence at length. The learned Trial Judge, according to the learned A.G.A. based his judgment on the testimony of the eye-witnesses. The fact that the accused-appellant had taken out the weapon used in crime from the place which was not known to others, was also a factor for punishing the accused-appellant even under the Arms Act for which learned A.G.A. relied on the findings of para 14 of the judgment impugned in this appeal which reads as follows:

"14. P.W.9 Gajender Singh has stated that on 14.05.2001 he was Station Officer, Police Station Lisari Gate. On that date he was informed by Incharge Police out post Pilkhori that accused Aflatoon of case crime No. 221 of 2001 under Section 302 of I.P.C. was arrested. He alongwith other constables went to the outpost Pilokhori. Aflatoon was taken out of lockup. Then he and Sub Inspector took Aflatoon to the place where Aflatoon intended to get the from scheme no. 10 of Awas Vikas near a Ganda Nala from bush. He proved the recovery of the knife Under Section 27 of the Indian Evidence Act. He proved the knife (Ext.1) which was recovered on the pointing of accused Aflatoon. He proved the recovery memo which is Ext. Ka 12. I find no discrepancy in the statement of P.W.9 Gajendra Singh and therefore, reliance own be placed on his testimony."

10. In light of the decision rendered by the Apex Court in R. Shaji v. State of Kerala, AIR 2013 SC 651, it would be relevant for us to not only refer to testimony of witnesses but to also give our findings on the aspect whether guilt is proved to the hilt or not. In the said decision, the Apex Court held that in matter of appreciation of evidence of witnesses, it is not the number of witnesses but, the quality of their evidence, which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.

11. This Court is mindful of the fact that in trial for the offence of murder, where the witness is a close relative of victim, it is necessary to examine the evidence given by such witness very carefully and scrutinize the infirmities in that evidence before deciding to act upon it. However, relationship is not a factor to affect the credibility of a witness. It is trite law in criminal jurisprudence that version of an eyewitness cannot be discarded merely on the ground that such witness happened to be a relative of the deceased. Where the presence of eyewitness is proved to be natural and the statement given by such witness is nothing but, truthful disclosure of actual facts leading to occurrence, then such statement could not be discarded.

12. In the final analysis, the evidence of the witness who were present and who have testified will be more important if the evidence is qualitative in nature. We have to see the quality of evidence and not the quantity. In this case it is an admitted position of fact that on the basis the circumstances and subsequent facts, independent source of information, except the police official, other persons present refused to testify and none was available.

13. PW-1 Babu, the father of deceased-Iliyas has stated that Aflatoon used to tease the ladies of his family. Deceased-Iliyas several times checked him and directed him not to repeat such type of tease but Aflatoon did not stop and the obstructions raised by the deceased-Iliyas got the accused-appellant annoyed and thereby he inflicted knife injuries on the deceased. In addition to this while considering the evidence led before the Trial Court and as led before us we find that accused Aflatoon and Shaqeel were real brothers. The PW-1 is the father of the deceased. He has identified the accused-appellant who was the real assailant. The motive has also been shown that he had the motive to enter into the quarrel with the deceased. It is PW-7 who has corroborated the version of PW-1 and PW-2 that deceased was inflicted with knife placed by the appellant herein. Going through the record if the incident occurred in front of the Khokha or at the house, it is a minor contradiction or minor discrepancy as that cannot shake the version of eye-witnesses and has been properly and minutely appreciated by the Trial Court and by us.

14. From the evidence, it is very clear that the appellant had a grudge against the family of the deceased, thus, the evidence of eye-witnesses and also PW-5 and PW-6 goes to show that the prosecution had brought home the charges framed against the accused-appellant beyond reasonable doubt. The investigation is also proved by PW-10.

15. PW-4 Dr. Raj Kumar deposed that the injuries could be caused by knife. He proved the injury report and said that the injuries could have been caused at 8.30 p.m. on 11.5.2001 and the injuries were sufficient to cause death. The prosecution also says that the accused. The prosecution also says that the accused stabbed Iliyas with knife and Iliyas died of stab injuries. Thus medical evidence corroborates the prosecution case.Injuries pointed out by P.W.4 Dr. Raj Kumar on the body of deceased are as follows:

1. Stab wound 3 cm x 1 cm from of abdomen upper part, 8 cm above umblicus.

2. Linear abrasion 9 cm x 0.5 cm front abdomen upper part, 2 cm from the injury No.1.

3. Linear abrasion 8 cm x 0.5 cm front of left shoulder.

4. Incised wound 3 cm x 1 cm x muscle deep front of right thing, lower part 11 cm above the right knee front.

16. Thus the injuries can be said to be such which would cause the death. At one point, the witness has on a suggestion made by the counsel for the accused showed that he was alive when he was taken to the police station which is evident from the evidence of PW-2 and, therefore, the injuries were in normal course were inflicted to show that cannot be said to be with intention to cause death but there was definitely knowledge that stabbing twice on the abdomen may cause death and, therefore, it cannot be said that they had no knowledge. Therefore, it will be culpable homicide with knowledge that the act is likely to cause death.

17. The accused-appellant was found at the place of occurrence. He is the person who has inflicted the injuries and, therefore, we have no hesitation in holding that he was the person who perpetrated the crime. The prosecution has discharged its burden. The motive is also proved.

18. We are even fortified in our view that the accused was the person who had perpetrated the crime from the observation at paragraph 14, we do not think it appropriate to take a different view then that taken by the learned Trial Judge. We are fortified in our view by the decision of this Court in Criminal Appeal No. 147 of 2003 where in reliance has been placed on the decisions in Pulukuru Kottaya & Ors. vs. Emperor, reported in AIR (34) 1947 Privy Council 67, State Of Maharashtra vs. Bharat Fakira Dhiwar, (2002) 1 SCC 622 and the subsequent decisions of the apex court in R. Shaji vs. State of Kerala, AIR 2013 SC 651, Raja alias Rajinder Vs. State of Haryana JT 2015 (4) SC 57, Soyebbhai Yusufbhai Bharania Vs. State of Gujarat, 2017 (6) JT 381 and the landmark decision in Mukesh and Anr. Vs. State for NCT of Delhi and Others, AIR 2017 SC 2161 and held that the recovery cannot be said to be bad and the trial court has not committed any mistake in considering this as a material piece of evidence pointing towards the guilt of the accused as it is discovery of a fact in consequence of information received from the accused. The recoveries were made separately at the instance of both the accused who took out the place from where they were planted and the places were such which could be known to accused only. Section 27 of the Evidence Act, 1872 also would be a foundation stone and recovery and seizure of crime weapons from the place of offence would be a pointer against the accused. We are fortified in our view by the latest decision of the apex court involving similar facts in Mukesh Vs. State of NCT of Delhi, 2017 AIR SC 2163.

19. In State of Uttar Pradesh v. Mohd. Iqram and another, (2011) 8 SCC 80, the Apex Court has made the following observations in para 26 therein;

"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial Court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."

20. Considering all facts and circumstances of the case, it is evident that prosecution has been able to bring home the guilt of accused-appellant by trustworthy and unimpeachable evidence. Learned trial judge has marshalled the facts and evidence adroitly. Sufficient evidence has been placed to establish the guilt of the appellant.

21. Having held that it was the accused Aflatoon who was present at the time of offence and was author of offence, the question of what offence is committed is the core issue, we have to sift the evidence on the touchstone of principles enunciated by the Apex Court in catena of decisions."

22. This takes us to the issue of whether the offence would be punishable under Section 299 or Section 304 I.P.C.

23. Considering the evidence of these witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

24. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

25. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC.

26. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.

27. In view of the aforementioned discussion, we are of the view that this appeal has to be partly allowed hence, the same is partly allowed. The impugned judgment and order dated 25.4.2003 passed by the trial court is modified.

28. The accused-appellant shall be released from jail immediately if not required in any other case. Default sentence, if the fine is not paid, will also run from the 14th year if the fine has yet not paid. He shall be entitled to all remissions as admissible under law.

29. Let a copy of this judgment alongwith the trial court record be sent to the Court and Jail Authorities concerned and District Magistrate for compliance.

Order Date :- 18.8.2017

DKS