Israfeel vs State Of U.P.
2017 Latest Caselaw 420 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
								   (Reserved)
 

 
Case :- CRIMINAL APPEAL No. - 2505 of 2005
 

 
Appellant :- Israfeel
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Nazrul Islam Jafri,Ashutosh Shukla,Kumar Ashutosh Srivastava,Rajesh Yadav
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Satya Narain Agnihotri,J.

(Delivered by Hon,ble Bharat Bhushan J.)

1. Israfeel, sole appellant in this case, has assailed the judgment and order dated 27.5.2005 passed by Additional Sessions Judge, Court No. 5, Deoria in Sessions Trial No. 43 of 1997 (State versus Israfeel) arising out of Case crime no. 229 of 1996 under section 302 Indian Penal Code (in short, IPC) Police Station (in short, P.S.) Kasia, District Padrauna (Kushinagar) whereby appellant was convicted to life imprisonment and a fine of Rs. 10,000/- with default stipulation. Appellant was, however, acquitted under section 5 Explosive Substance Act by the impugned judgment.

2. According to prosecution, the family of complainant Gulab Chand Yadav (PW-1) and deceased Subhash Yadav held a customary house warming party in the evening of 18.5.1996 for their village friends and relatives. They had extended invitation prior to the event but again requested the village friends on the day of incident as well. In fact, they were busy in hosting the dinner as well as simultaneously calling people to attend it. It is said that at about 10:30pm, complainant Gulab Chand Yadav (PW-1) and his younger brother Subhash Yadav (deceased) went to fetch Rama Ashish (PW-2) and Santu Yadav son of Jagdev (PW-3). All of them were coming back to the residence of complainant to partake in the feast.

3. As they reached the residence of one Ram Avtar, appellant Israfeel emerged suddenly and threw three bombs upon Subhash injuring his left hand and back side. Allegation is that two bombs did not detonate while one bomb exploded and injured Subhash Yadav in the aforesaid manner.

4. It is said that accused-appellant Israfeel, who had antagonistic relationship with deceased and his family, ran towards south and tried to reach Mosque, stated to be located at the distance of 130 paces. It is also alleged that as soon as appellant Israfeel ran inside mosque from the stairs, another bomb which he was holding also exploded injuring him. It is stated that his right hand was badly hurt in the incident. This incident was witnessed by complainant Gulab Chand Yadav (PW-1) and two invitees namely, Ram Ashish Yadav (PW-2) and Santu Yadav son of Jagdev (PW-3). Actually claim is that these three persons themselves escaped narrowly. It was said that complainant Gulab Chand Yadav (PW-1) was holding battery torch at the time of incident. Therefore, all the witnesses managed to recognize the assailant.

5. Injured Subhash was taken on tractor to Government Hospital, Kasia where he was referred to Medical College, Gorakhpur. Other family members including father of deceased and their companions took the injured Subhash Yadav to Gorakhpur. However, complainant Gulab Chand wrote a First Information Report (in short, FIR) (Ex. Ka.-1) at Government Hospital, Kasia and lodged it at the Police Station at about 23:55hours i.e. within 85 minutes of incident. Police Station was located at 9km. away from village Parevatar. A chik report (Ex. Ka-4) was carved out. The incident was recorded in the General Diary (in short, G.D.) extract of which is available as Ex. Ka. 5.

6. Meanwhile, deceased Subhash Yadav succumbed to his injuries around 12:30am between the night of 18/19.5.1996 while on his way to district Gorakhpur in a private Jeep No. UP 57-104. The dead body was taken back to Police Station Kasia where a report had already been lodged under section 307 IPC by PW-5 Constable Shiv Shanker Dubey. Information of death of Subhash Yadav was furnished to the Police, therefore, the case under section 307 IPC was amended to one under section 307 IPC by the said Constable. The relevant entries were made in the G.D. extract of which is available as Ex. Ka.-6. This amendment was allegedly done at 1:00pm in the night, according to PW-5 Constable Shiv Shanker Dubey

7. The investigation was taken over by the then Station House Officer (in short, S.H.O.) Prem Singh Visht, who recorded the statement of one Sant Raj Yadav son of Asharfi Yadav, the real brother of complainant Gulab Singh Yadav. The cadaver of deceased Subhash was lying at the gate of Police Station. The Investigating Officer (in short, I.O.) also recorded the statement of Gulab Chand Yadav. Meanwhile, Sub Inspector (in short, S.I.) Ram Bahadur Yadav was sent in search of accused-appellant who brought accused-appellant Israfeel to Police Station after getting him arrested. A Chithi Majrubi was prepared and accused-appellant Israfeel was also sent for medical examination at Community Health Center (in short, C.H.C.) Kasia, through Constable Triveni Tiwari. Arrest of accused-appellant Israfeel was also recorded in G.D. extract of which is available as Ex. Ka-17. The medical examination of Israfeel was conducted at 4:30am on 19.5.1996 i.e. on the same day. The following injuries were found on the person of appellant Israfeel as per medical report (Ex. Ka. 19) :-

1. Lacerated wound 10cm.x 10cm.bone deep on right wrist joint, hand of right side is absent. Bleeding on cleaning of wound present. Bone of wrist joint exposed. Kept U.O. Advised x-ray. Bleeding and charring present.

2. Abrasion 2.0cm.x 1.0cm lower part of medial aspect of right thigh 7cm. above of right knee joint. Reddish. Advised x-ray.

3. Lacerated wound 5cm.x2cm.x 1cm on upper & lateral aspect of right leg. 8cm. Below from right knee joint. Clotted blood present. Advised x-ray.

4. Lacerated wound 4 cm.x 2cm.x muscle deep on interior and middle part of right leg. C lotted blood present Advised x-ray.

5. Multiple abrasions in area of 15cm.x 6cm. On interior part of right leg. Just below right knee joint. Reddish. Advised x-ray.

8. Investigation continued. The statements of other witnesses were recorded. The site-plan (Ex.Ka. 14) was prepared; torch of complainant Gulab Chand Yadav was taken into possession (Fard Ex.Ka-2); samples of blood stained earth and simple earth were taken into possession along with residue of exploded bomb (Fard Ex. Ka-15) and blood stained paper and plastic were also taken from mosque where appellant Israfeel was injured because of explosion of his own bomb (Fard Ex.Ka-16). The body of deceased was sent for postmortem to then District Hospital, Deoria. PW-4 Dr. C.P.Singh Gautam conducted postmortem. The postmortem report (Ex. Ka. -3) discloses the following injuries on the person of deceased :-

1. Lacerated wound 22cm x 14cm x bone deep on the dorsal medial aspect of left upper arm extending from left axillary downward in upper arm.

2. Abrasion and tattooing marking 15cm x 8cm. on left lateral aspect of left side chest.

Inquest report (Ex. Ka-7) is also available on record.

9. I.O. completed investigation expeditiously and filed charge-sheet (Ex.Ka-18) against appellant Israfeel on 1.6.1996 under section 302 IPC and Section 5 Explosive Substance Act i.e. almost within 14 days of incident.

10. The trial Judge framed charges against the appellant Israfeel under section 302 IPC and Section 5 Explosive Substance Act on 2.4.1997. Accused-appellant denied the charges and claimed to be tried.

11. In support of its case, the prosecution has adduced evidence of complainant PW-1 Gulab Chand Yadav (complainant and eyewitness), PW-2 Ram Ashish Yadav (eyewitness), PW-3 Santu son of Jagdev (eyewitness), PW-4 Dr. C.P.Singh Gautam (conducted postmortem upon deceased), PW-5 Constable Shiv Shanker Dubey (recorded FIR and made relevant entries in the G.D.) PW-6 S.H.O. Prem Singh Visht (conducted investigation) and PW-7 Dr. P.K.Srivastava (conducted medical examination of appellant Israfeel).

12. The statement of accused-appellant Israfeel under section 313 of Criminal Procedure Code (in short, Cr.P.C.) was recorded twice; first on 2.12.2003 and again additional statement was recorded on 9.3.2005 wherein he denied all the allegations and claimed false implication on account of previous enmity. In fact, he put forth a positive case that deceased Subhash threw bomb upon him injuring the appellant. He also stated that deceased Subhash himself received injuries in the explosion of bomb used by him.

13. Appellant was afforded opportunity to adduce evidence in defence but of no avail. The trial Judge concluded that there was sufficient evidence against the appellant under section 302 IPC. However, he was convinced that offence under section 5 of Explosive Substance Act was not made out, therefore, accused-appellant Israfeel was convicted and sentenced under section 302 IPC, as aforesaid, by the impugned judgment and order dated 27.5.2005. However, accused-appellant was acquitted under section 5 Explosive Substance Act by the same judgment. This judgment is under challenge before his Court.

14. Heard Sri Nazrul Islam Jafri, learned counsel for the appellant and Sri Rajeev Sharma, learned Additional Government Advocate for the State.

15. Learned counsel for the appellant has stated that there is no independent evidence against the appellant; and that FIR was ante-timed. The claim is that appellant himself was attacked by deceased Subhash Chand Yadav and that Subhash Chand Yadav sustained injuries in explosive substance used by the deceased himself. The argument is that there are several discrepancies in the testimony of all the witnesses adversely affecting the credibility of eyewitnesses. Learned counsel has also submitted that witnesses were not present on the spot that is why their testimonies contain so many contradictions and discrepancies. He has further argued that there was no motive for appellant to commit the crime as he was already in possession of disputed land. He has further submitted that finding of the trial Judge that some residue of bomb was found in the mosque is perverse which is not supported by any evidence on record. The argument was also made that appellant was not given opportunity to give explanation under section 313 Cr.P.C.

16. Per contra, Sri Rajeev Sharma, learned A.G.A. has disputed the arguments. He has argued that FIR was lodged promptly. Considering the urgency, witnesses tried to save the life of deceased first. Their failure to save the life of deceased is altogether a different matter. He has further argued that there was no opportunity for the complainant to fabricate the allegations as well as to manipulate the facts. He has also argued that both the parties have admitted existence of antagonistic relationship between the parties, therefore, motive is apparent; and that medical evidence is consistent with the ocular evidence. He has denied that appellant was not given opportunity to explain the circumstances under section 313 Cr.P.C.

17. Learned counsel for the appellant has claimed that although FIR was ante-timed yet it has been shown to have been recorded at 23:55hours i.e. within 85 minutes at Police Station despite the fact that Police Station was almost 9 km. away from the place of occurrence. Learned counsel for the appellant has drawn the attention of this Court towards the statement of PW-1 Gulab Chand Yadav who during the course of examination has admitted that he met Station House Officer for the first time at 6:00am in the morning on 19.5.1996. PW-1 Gulab Chand Yadav, the complainant in this case, wrote the FIR at District Hospital, Kasia. Counsel for the appellant has argued that Chitthi Majrubi whereby accused-appellant was sent for medical examination did not contain crime number and details of offence and thereby indicating that FIR was not in existence till the arrest of the accused-appellant, as according to prosecution injured accused-appellant was arrested in the same night at about 12:20am (Ex.Ka.6). Submission is that failure to record details of the case into Chitthi Majrubi indicates that no details were available to the prosecution during the arrest of accused-appellant Israfeel. We are not impressed by this argument for the simple reason that first of all, stated Chhithi Majrubi has not been formally proved by either prosecution or defence. This is a non-exhibited document, therefore, can not be taken into consideration but PW-6 Prem Singh Visht has himself admitted that Chhithi Majrobi was indeed prepared and it did not contain crime number of the case and details of offences so we can accept that Chhithi Majrobi did not contain the aforesaid details but still we can not lend any countenance to the argument that FIR was ante-timed.

18. It is pertinent to point-out that virtually every important step was taken in the same night. The incident occurred at 10:30pm on 18.5.1996. Admittedly the FIR was recorded under section 307 IPC. This fact has not been disputed. Even otherwise, this fact has been proved by trustworthy testimony of PW-5 Constable Shiv Shanker Dubey. His testimony says that FIR was recorded in Case crime no. 229 of 1996 under section 307 IPC and it was subsequently converted into under section 302 IPC in the same night at about 1:00am on 19.5.1996. Entries in General Diary (Ex. ka-5 and 6) also disclose the same fact. The prosecution story is that injured Subhash Yadav was taken on a tractor to Government Hospital, Kasia where he was referred to Medical College, Gorakhpur. Injured was, thereafter, sent to Gorakhpur and he died on his way to Gorakhpur. The dead body of deceased was immediately brought back to Kasia and case was converted into under section 302 IPC at about 1:00am in the same night.

19. If FIR was not in existence till the death of deceased then there was no occasion for the complainant to file FIR under section 307 IPC. It is pertinent to point out that complainant himself went to Kasia District Hospital along with injured and his family members. Doctor at Kasia District Hospital referred the injured to the Medical College, Gorakhpur. The complainant Gulab Chand Yadav stayed back and other family members took the injured Subhash Yadav towards Gorakhpur. The injured died soon after on his way to Gorakhpur and brought back to Kasia.

20. PW-1 Gulab Chand has testified that he wrote FIR in the hospital at Kasia and thereafter got it lodged at Police Station Kasia. Till this time, the complainant Gulab Chand Yadav was not aware of death of injured Subhash Yadav. Therefore, he did not mention any fact about the death of Subhash Yadav. The FIR refers the earlier fact i.e. the incident in which Subhash Yadav sustained injuries and fact that Subhash Yadav had been sent to Medical College, Gorakhpur. We do not believe that this Gulab Chand Yadav was so intelligent, brilliant and well versed in the ways of court proceedings that he cleverly first wrote the FIR under section 307 IPC and then got it converted into under section 302 IPC in order to obviate the present argument of ante-timing of FIR.

21. We believe that FIR under section 307 IPC was indeed recorded at the given time in routine manner and subsequently, it was converted into under section 302 IPC on receiving the information of death of injured Subhash Yadav. As far as following statement of PW-1 Gulab Chand Yadav that he met Sub-Inspector at 6:00am in the morning is concerned, it merely means that he also met Sub-Inspector at about 6:00am in the morning. The relevant portion of the testimony of PW-1 Gulab Chand Yadav is reproduced below :-

"fjiksVZ fy[kkus ds yxHkx [email protected] ?kaVk ckn eSa Fkkuk fQj x;kA igyh ckj esjh njksxk th ls HksaV lqcg 6 cts gq;hA eSa lqcg rd Fkkus ij cSBk jgkA**

22. A bare perusal of the aforesaid lines would reveal that PW-1 Gulab Chand Yadav is merely referring two facts. He went to Police Station again after half an hour of recording of FIR and that he met Sub-Inspector at 6:00am in the morning. He has not specified particular officer he met at 6:00am in the morning. Counsel for the appellant assumes that PW-1 met Prem Singh Visht after 6:00am in the morning and that would indicate that FIR was lodged after meeting the Sub-Inspector. That is not correct for the simple reason that PW-6 Prem Singh Visht himself has admitted that case was registered in his absence. Even PW-5 Shiv Shanker Dubey has said that "Darogaji" came as soon as report had been lodged.

23. We are finding it very difficult to appreciate the argument of learned counsel for the appellant for the simple reason that neither PW-5 Shiv Shanker Dubey nor PW-1 Gulab Chand Yadav was asked about specific person who came during recording of FIR or whom Gulab Chand Yadav met after 6:00am in the morning. "Darogaji" is not a person. It is a position held by particular person. There can be several "Darogaas" at the same time on the Police Station. The record itself reveals that at least two Sub-Inspectors, namely, PW-6 S.I. Prem Singh Visht and S.I. Ram Barai Yadav were active at the the concerned Police Station in that night. The record reveals that accused-appellant was arrested by Ram Barai Yadav in the same night while the case was being investigated by PW-6 Prem Singh Visht. Therefore, it was incumbent upon the counsel for the defence to seek specific information from the witnesses regarding identity of the person involved instead of using the lame reference of "Darogaji".

24. It is pertinent to point out that appellant Israfeel was arrested in the same night. The information of his arrest was recorded in the G.D. of the Police Station. In fact, this injured accused-appellant was immediately sent for medical examination. Apparently, after lobbing explosive device on deceased Subhash, appellant Israfeel ran towards the mosque which was merely 130 paces away (PW-6) and it is said that while entering into the mosque, another explosive device which appellant was holding in his hand exploded injuring his hand seriously.

25. The injuries sustained by Israfeel have already been delineated in the earlier part of the judgment. These injuries have been proved by PW-7 Dr. P.K.Srivastava. This medical report (Ex.Ka-19) and testimony of PW-7 Dr. P.K.Srivastava disclose that Israfeel was examined in the night at about 4:30am on 19.5.1996 i.e. within six hours of the incident. The injuries sustained by Israfeel were serious and could not have been manufactured. This injury report indicates that Constable Triveni Tiwari took the injured for medical examination. This document coupled with G.D. entry of his arrest at 12:20am in the same night (Ex. Ka.6) clearly establishes the fact that prior to the arrest of appellant Israfeel, the FIR had indeed been recorded. It was done even prior to the death of Subhash.

26. It is pertinent to point out that S.I. Ram Barhai had already reached the place of occurrence prior to 12:20am. Arrest of appellant was incorporated in G.D. at about 4:20am. All the documents prepared in the wake of FIR, namely, Fard of possession of torch and gas lantern (Ex.Ka-2), Fard of samples of blood soaked earth, samples of earth and residue of exploded bomb (Ex. Ka.-15), Fard of samples of blood stained paper and plastic (Ex.Ka-16) and inquest report ()Ex.Ka.-7) etc. reflect Case crime no. 229 of 1996 along with details of offence. We have absolutely no doubt that FIR was recorded at indicated time by the Police. In fact, police in this case acted very fast. There was absolutely no time to manipulate or fabricate any kind of evidence.

27. We have carefully perused evidence of eyewitnesses, namely, PW-1 Gulab Chand Yadav, PW-2 Ram Ashish Yadav, PW-3 Santu son of Jagdev. All these witnesses have delineated the prosecution story in proper manner. The evidence of all these witnesses is natural, satisfactory, credible and in accordance with normal human conduct. We believe that lantern was burning at the time of incident. PW-2 Gulab Chand Yadav has also asserted that he was holding battery torch at the time of incident.

28. It is pertinent to point-out that complainant and his family were hosting a dinner party for their friends and relative of village, therefore, availability of sufficient light nearby can not be doubted. The fact that Gulab Chand Yadav and deceased Subhash had gone to fetch invitees at about 10:00pm in the night would indicate that they must have taken torches for their own benefits. In any case, lack of light can not be pleaded for the simple reason that accused-appellant Israfeel got himself seriously injured in the incident. The injuries sustained by Israfeel indicate and establish his presence in the mosque which was barely 130 paces away from the place of occurrence. The recovery of blood stained paper and plastic from the precinct of mosque also lend support to the prosecution story.

29. Learned counsel for the appellant has submitted that PW-1 Gulab Chand Yadav has said that he met "Darogaji" at 6:00am in the morning while Investigating Officer PW-6 Prem Singh Visht says that he met complainant Gulab Chand Yadav between 2:00-3:00am in the same night on 19.5.1996. Then he further stated that he did not meet Gulab Chand Yadav at 6:00am. Submission is that this is major contradiction creates doubt about the presence of Gulab Chand Yadav on the spot.

30. First of all, we can not treat it as a serious contradiction for the reason that PW-1 Gulab Chand Yadav was not asked to identify "Darogaji" with whom he met at 6:00am in the morning. At least two Sub-Inspectors were active in the same night at the Police Station. It is possible that PW-1 Gulab Chand Yadav met Ram Barhai Yadav who arrested Israfeel in the same night or some other Sub-Inspector at 6:00am in the morning while PW-6 Prem Chand Visht met complainant between 2:00-3:00am. In absence of any identifiable Sub-Inspector, it can not be treated as serious contradiction.

31. In any case, we believe that it is a minor discrepancy. PW-1 Gulab Chand Yadav was obviously in a happy mood few hours prior to the incident because of feast at his home. Suddenly his real brother was attacked with bombs. His brother sustained serious injuries and subsequently died on account of those injuries. It is pertinent to point out that PW-1 Gulab Chand Yadav himself escaped narrowly. Prosecution story says that PW-1 Gulab Chand Yadav, PW-2 Ram Ashish and PW-3 Santu son of Jagdev were together with deceased Subhash Chand at this dare devil attack. The explosive devices do not differentiate between the persons. All of them Gulab Chand Yadav (PW-1), PW-2 Ram Ashish and Santu son of Jagdev (PW-3) might have died in the same incident. Therefore, their mental condition at this narrow escape and death of their brother Subhash must have created a mental agony and sense of fear at the same time.

32. We believe that minor discrepancies in the testimonies of witnesses merely indicate that they have not been tutored. The discrepancies per se do not erode the credibility of such witnesses. All the witnesses have disclosed time, place and manner of incident in the similar and trustworthy manner. The presence of these witnesses is shown in the inquest report as well. Inquest report (Ex. Ka-7) shows signature of PW-1 Gulab Chand Yadav.

33. Learned counsel for the appellant has argued that FIR was allegedly given by PW-1 Gulab Chand Yadav while G.D. (Ex.Ka.-5) indicates that FIR was handed over by another brother of Gulab Chand Yadav, complainant. Learned counsel for the appellant has submitted that this contradiction is detrimental to the prosecution case and indicates fabrication. We do not agree with this argument of learned counsel for the appellant. Prosecution evidence discloses that PW-1 Gulab Chand Yadav and other family members took the deceased first to the Government Hospital,Kasia where the injured was referred to Medical College, Gorakhpur. The family members of injured got divided. Some people took the injured towards Medical College, Gorakhpur while some persons remained at Kasia. Complainant Gulab Chand Yadav went with those persons who remained at Kasia. His testimony indicates that he wrote FIR at Hospital and then got it recorded. We have carefully scanned testimony of PW-1 Gulab Chand Yadav. He has no where said that he personally handed FIR to Police Station. The relevant lines of his testimony are reproduced below :

"esjs HkkbZ dks ?kj ds o xkao ds yksx xksj[kiqj esfMdy dkyst ys x;sA eSa ogha vLirky esa cSBdj ?kVuk dh lwpuk fy[khA tks dkxt la0 5d gS] 'kkfey fefly gSA bl ij izn'kZ d&1 Mkyk x;kA eSa fjiksVZ fy[kkus ds ckn xksj[kiqj pyk fd tc eS gsfreiqj igqapk rks esjs HkkbZ dh yk'k ysdj yksx vk jgs FksA esjk HkkbZ ej pqdk FkkA ge yksx vius HkkbZ dh yk'k dks Fkkus dh xsV ij j[k fn;sA**

34. The aforesaid lines indicate that report was indeed written by PW-1 Gulab Chand Yadav but the aforesaid testimony does not indicate that the report was also handed over to the Police by PW-1 Gulab Chand Yadav himself. The prosecution evidence shows that injured Subhash was brought to Police Station Kasia. A large number of family members were present including Santu son of Asharfi and brother of complainant which is indicated by Inquest report (Ex.Ka.-7) as well in which he acted as one of the Panch witnesses. Therefore, it is possible that FIR written by PW-1 Gulab Chand Yadav was handed over inside the Police Station by Santu Yadav son of Asharfi, real brother of complainant. There is no discrepancy in the prosecution evidence in this regard.

35. Learned counsel for the appellant has submitted that statements of PW-2 Ram Ashish Yadav, PW-3 Santu Yadav son of Jagdev were recorded on third day of incident which create doubt about presence of these witnesses. We do not believe that this argument deserves any answer. But, we would like to dispose off this argument as well. Gruesome incident occurred in which family member Subhas Yadav died. Complainant Gulab Chand Yadav, PW-2 Ashish Yadav and PW-3 Santu Yadav son of Jagdev themselves escaped narrowly. The testimony of PW-4 Dr. C.P.Singh Gautam reveals that autopsy was conducted at 4:30am on 19.5.1996. Family needed some time to mourn and arrange funeral of deceased Subhash. In such a scenario the recording of statements on third day of event can not be treated as delayed.

36. The testimony of PW-6 Prem Singh Visht reveals that both Santu son of Jagdev (PW-3) and Ram Ashish (PW-2) had gone with cadaver of deceased for postmortem. Sub-Inspector went to the village in the morning while witnesses were probably busy in mourning and in making arrangement for final farewell of deceased. Therefore, we are convinced that PW-6 Prem Singh Visht, I.O. took the statement of witnesses as expeditiously as was reasonable possible. The fact is that accused was arrested in the same night. The substantial part of investigation was conducted by the next day and charge-sheet was filed within 14 days which indicates that no delay was committed at any stage by police personnel.

37. We have carefully perused postmortem report of deceased as well as injury report of appellant Israfeel. We have also scanned the testimony of PW-4 Dr. C.P. Singh Gautam who conducted autopsy and PW-7 Dr. P.K.Srivastava who conducted medical examination of appellant Israfeel and we believe that injuries found on the person of deceased Subhash Yadav and accused-appellant Israfeel are completely consistent with the prosecution story and ocular evidence.

38. We also believe that question of motive in this case becomes secondary for the simple reason that eyewitness account has established the prosecution case without any doubt. However, it is pertinent to point out that rival parties have admitted existence of enmity between them. The FIR itself indicates that existence of cases between the parties. Appellant has specifically asserted existence of enmity pf accused-appellant with PW-1 Gulab Chand, PW-2 Ram Ashish and PW-3 Santu son of Jagdev. Whether this motive was sufficient to commit the crime is in realm of speculation. It depends upon nature of enmity, person and other circumstances. The fact that Israfeel himself became victim of explosive device which he was carrying has established his presence and involvement in the episode beyond reasonable doubt.

39. Learned counsel for the appellant has submitted that statement of accused-appellant under section 313 Cr.P.C. was not properly recorded and that appellant was not given opportunity to explain the incriminating circumstances. Learned counsel for the appellant has relied upon a decision of Apex Court in Shaikh Maqsood versus State of Maharastara (2009) 6 S.C.C. We have carefully examined the aforesaid judgment and we believe that this judgment is not applicable in the case of appellant Israfeel.

40. The statement of appellant Israfeel under section 313 Cr.P.C. was recorded twice. First on 2.12.2003 and then on 9.3.2005. During the course of these statements, all the major incriminating circumstances were put to appellant. He used this opportunity to explain the circumstances. The claim, that presence of witnesses was not put to appellant, is misconceived. The trial Judge has specifically referred to statement of eyewitnesses and its specific contents to the appellant. We believe that there was no necessity of naming all the eyewitnesses separately. In any case, we do not believe that briefness of statement of appellant under section 313 Cr.P.C. in any manner has prejudiced his case.

41. We believe that it is necessary that each circumstance should be put to accused in a simple manner so that he can readily understand and answer the questions. In the present case, appellant Israfeel was afforded opportunity to answer the questions of prosecution in details. In any case, we do not believe that every error or omission in this behalf would necessarily vitiate the trial. If all the relevant and material circumstances have been put to the accused-appellant, may be in brief, then in absence of any specific prejudice, accused-appellant can not claim acquittal.

42. We have carefully examined all the evidence. We find that prosecution has been able to bring home the charges by satisfactory, trustworthy and credible evidence. We believe that judgment by the trial Judge is sound on facts and law and does not warrant any interference. The appeal deserves to be dismissed.

43. Accordingly, the appeal is dismissed. The judgment and order dated 27.5.2005 passed by Additional Sessions Judge, Court No. 5, Deoria in Sessions Trial No. 43 of 1997 (State versus Israfeel) is affirmed. The appellant is said to be in jail. He shall serve out the remaining part of his sentence.

44. Office is directed to certify this judgment to the concerned court within two weeks along with record of this case and the court concerned shall report compliance within a week thereafter.

Order Date :- 11.5.2017

SU.