Umar Tauhid vs State Of U.P.
2018 Latest Caselaw 663 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                       Reserved                                                                                                                                                                                   										
 
Case :- JAIL APPEAL No. - 1500 of 2013
 
                                          AFR  
 
Appellant :- Umar Tauhid
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Jayant Banerji,J.

(Delivered By Hon'ble Arvind Kumar Mishra-I, J.)

By way of instant jail appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 22.01.2013 passed by the Special Judge (SC/ST Act)/Additional Sessions Judge, Ghaziabad, in Session Trial No.1039 of 2010 State of U.P. Vs. Umar Tauhid, arising out of Case Crime No.342 of 2010, under Section 302 IPC, Police Station- Loni, District- Ghaziabad, whereby the appellant has been sentenced to life imprisonment coupled with fine Rs.10,000/-, in default of payment of fine, additional two years imprisonment.

Heard Sri Dharmendra Dhar Dubey, learned amicus curiae for the appellant, Sri R.K. Singh assisted by Km. Meena, learned AGA for the State and perused the record of this appeal.

The facts relevant as discernible from record appear to be that the first informant Farhad, wife of the deceased Samar Tauhid resident of Sudhir Enclave, near Government School, Rampark, Police Station Loni, District Ghaziabad, lodged the written report - Ext. Ka-1 - at the aforesaid police station on 20.02.2010 at 4:50 p.m. against the accused-appellant with the allegations that she was inside her home along with her husband around 4:00 p.m. on 20.02.2010 when her brother-in-law (Dever) Umar Tauhid son of Mohd. Farookh Azam came to her home and with intention to kill assaulted her husband with knife by repeated blows due to which her husband died on the spot.

Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No.342 of 2010 under Section 302 IPC, Police Station Loni, District Ghaziabad on 20.02.2010 at 4:50 p.m. Check FIR is Ext. Ka-13. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial no.44 on 20.02.2010 at 4:50 p.m. at aforesaid case crime number at Police Station Loni under aforesaid section of I.P.C. against accused-appellant. Copy of general diary is Ext. Ka-14.

The investigation ensued, the same was taken over by Ashok Kumar Rana PW-4 who arrived on the spot, after noting contents of the check FIR and other relevant papers got prepared inquest report of the deceased Samar Tauhid. The Investigating Officer concurred with the opinion of inquest witnesses that the dead body be sent for post mortem examination in order to ascertain real cause of death. Thereafter, relevant papers were prepared and the body of the deceased was sent to mortuary at Ghaziabad for conduction of post mortem examination. Post mortem examination was conducted by Dr. Sunita Kamboj PW-3 on 21.02.2010 at 2.00 p.m. wherein following ante mortem injuries were noted by the doctor:

1. Incised wound (left) mastoid region bone deep 03 x 01/2 cm (stabbing).

2. Incised wound left side ankle of jaw 03 x 1/2 cm bone deep (stabbing).

3. Incised wound muscle deep 01 cm x 025 cm right base mid of neck (stabbing).

4. Incised wound (stabbing) cavity deep 05 cm x 025 cm at the level of 6-7 rib front and 03 cm from mid of sternum left side chest.

5. Punctured intestine out from the stabbed wound left iliac fossae 03 x 025 cm.

In the opinion of doctor, duration between time of death and post mortem examination was noted about one day and cause of death was described due to shock and haemorrhage as a result of ante mortem injuries. Dr. Sunita Kamboj PW-3 has proved post mortem examination report as Ext. Ka-3.

In the meanwhile, the investigation was in progress. The Investigating Officer recorded statement of various prosecution witnesses. On the tip off information, the Investigating Officer arrested the accused-appellant on 21.02.2010 at Rampark bus stand around 3:00 p.m. and recovered one knife at his pointing out and prepared memo of arrest and recovery Ext. Ka-4.

The Investigating Officer also prepared site plan Ext. Ka-5. Thereafter, Ashok Kumar Rana, Investigating Officer was transferred. However, in his examination in chief, he has also proved certain relevant papers pertaining to the investigation of this case - say - inquest report Ext. -2, site plan pertaining to the arrest of the accused and recovery of knife Ext. Ka-7 and the relevant papers - say - letter to CMO, photo of the dead body, specimen seal, police form no.13 as Ext. Ka-8 to Ext. Ka-12. The Investigating Officer has also proved check FIR Ext. Ka-13 and relevant general diary of date 20.02.2010, G.D. No.44 at 4:50 p.m. Ext. Ka-14 and charge sheet Ext. Ka-6.

Proceeding of the case was committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of Additional Sessions Judge, Court No.6, Ghaziabad, who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the appellant, accordingly, framed charge under Section 302 IPC. Charge was read over and explained to the appellant who abjured charge and opted for trial.

In turn the prosecution was required to adduce its testimony. The prosecution produced in all five prosecution witnesses. A brief reference of whom entails hereinbelow.

Farhad PW-1 is the wife of the deceased Samar Tauhid, she has lodged the report and she is eyewitness of the occurrence. Shiv Kumar PW-2 is witness of inquest of the deceased. Dr. Sunita Kamboj PW-3 conducted autopsy on the cadaver of the deceased Samar Tauhid, she has proved post mortem examination report Ext. Ka-3. Ashok Kumar Rana PW-4 is the Investigating Officer, he has proved various steps taken during course of the investigation.

Except as above, no other testimony was produced by the prosecution. Consequently, evidence for the prosecution was closed and the statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he gave various reasons for false implication and stated that he has been falsely implicated in this case.

No evidence, whatsoever, was led by the defence.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 302 IPC and sentenced him to life imprisonment coupled with fine Rs.10,000/-, in default of payment of fine, additional two years imprisonment.

Consequently, this appeal.

It has been contended by learned amicus curiae that no offence, whatsoever, was committed by the appellant and there is no eyewitness of fact of the occurrence. Fact is that the wife of the deceased was herself having illicit relationship with some another person and in order to cover up her illegal and immoral act, she in collusion with her lover deceitfully murdered her own husband and as a measure of scapegoat has involved the accused-appellant in this case, whereas, the accused-appellant had no motive to commit the crime.

It has been added next that here motive assumes relevance though eye-account testimony has been claimed to be available in this case. There was no reason to kill the deceased and there is no proof that at the point of occurrence, the accused-appellant was under influence of alcohol. The testimony of the prosecution witness of fact as well as the Investigating Officer does not inspire confidence. Nothing incriminating was recovered from the possession of the accused-appellant. The arrest of the accused-appellant effectuated by the Investigating Officer was not supported by any independent witness/source.

Learned trial Judge failed to take stock of the aforesaid factual and legal aspects of this case which were very much apparent to it and erroneously recorded conviction against the accused-appellants, which finding is not based on material on record. The prosecution has failed to prove its case beyond all reasonable doubt.

Per contra, it has been submitted in reply by the learned Additional Government Advocate that in this case, testimony on record is sufficient to establish charge and it is flawless and transparent and it inspires confidence. The trial court has acted on the wholesomeness of the testimony on record and has rightly recorded conviction against the appellant and has passed appropriate sentence.

Also considered the above rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal specifically relates to fact whether the prosecution has been able to prove charge under Section 302 IPC beyond reasonable doubt against the accused-appellant and has sentenced condignly ?

Before we advert to the merits of the case, it would be relevant to take note of the written report whereby it is reflected that the incident is stated to have taken place on 20.02.2010 around 4:00 p.m. and at that point of time, both the deceased and his wife Farhat PW-1 were inside their home when the accused-appellant arrived at the house, he was possessing a knife and with intention to kill gave repeated knife blows to the husband of the informant due to which he died on the spot.

If this piece of content of the report is taken to be absolutely correct then testimony forthcoming from Farhad PW-1 given before the trial court is in utter contrast to the factual aspect. If it so happened that the accused-appellant arrived on the spot and gave repeated knife blows which resulted into death of the deceased Samar Tauhid then, to stretch the situation to the extent that in the meanwhile the accused-appellant asked the deceased Samar Tauhid to accompany him to the house of their sister Sabana where the accused-appellant gave repeated knife blows to him (Samar Tauhid) due to which he died on the spot is altogether a twisted factual aspect, for the reason that the place of occurrence (as described in the written report) stood changed right from one given in the written report Ext. Ka-1 to that of another place outside the room of the informant and the deceased at place 'X' in the site plan as emerging in the testimony of PW-1. This way, the place of occurrence stood changed. Certainly, the description of change of place of occurrence from the one described in the first information report to the actual place 'X' shown in the site plan.

At this stage, we may advert to site plan Ext. Ka-5, perusal of the same is reflective of fact that the dead body was found at place marked by word 'X'. This place is house of Sabana, sister of the accused-appellant. If the incident took place just after arrival of the accused-appellant at the house of the informant then how and under what circumstances, the place of occurrence was changed to another spot falling in the adjoining house of Sabana (sister of deceased) and the very spot where the dead body was lying has been marked by word 'X.

As per testimony as emerging in cross examination of Farhad PW-1, the incident was also witnessed by 'Sabana', but in the latter part of her testimony, she has admitted fact that the incident was seen by her alone to the exclusion of others. This way, PW-1 is vacillating and improving on the point of actual occurrence. It means that either this witness (PW-1) was not present on the spot at the time of occurrence or she did not see the occurrence at all.

Not only this but also after the incident took place, the report was got scribed with some person of the locality but the name of that person has not been spelt or remembered at the time of examination of the informant PW-1 then as to who scribed the written report and who handed over the same to the police has also not been clarified. These factual deviation in shape of various facts and circumstances are substantial and material circumstances of the case which have got substantial bearing and nexus with the crime.

Though it is a case of direct testimony, therefore, motive does not assume greater importance in the presence of the eye-account testimony. But here in this case only testimony in the shape of eye-account testimony is that of the wife of the deceased Samar Tauhid. But her testimony is not clinching. She is vacillating and changing version on vital aspects of the case. She changed the spot where the incident took place at two different levels, first in the first information report and secondly in her testimony. Either of the two may be taken to be correct but not both. Therefore, her testimony in the absence of worthy corroboration from independent source cannot be relied upon by us. There is no supporting independent or ocular testimony of the occurrence which may conform to the testimony of PW-1.

A suggestion has been made by the defence that in this case, murder of the deceased has been committed by lover of PW-1, that suggestion gives clue to the effect that the wife may also have motive or if the wife may not have any motive or knowledge that offence is likely to be committed then she in fact did not witness the occurrence because the place and the very spot as to where it was committed varies from description in the first information report and in the testimony of PW-1 before the trial court. Therefore, PW-1 does not appear to be consistent in her version.

Further on page no.19 of the paper-book, a suggestion has been made as to why the accused-appellant was inimical towards her husband then she could not come out with any specific reason which might be treated to be a cause / motive for committing the offence. This way, only testimony in the shape of PW-1 does not inspire confidence. No other witness was produced by the prosecution to substantiate claim regarding actual place of the occurrence which differs dramatically from one described in the first information report to another appearing in the testimony of PW-1. Hence the place of occurrence has been changed and the first information report remains absolutely silent on changed place of occurrence then reasonable doubt creeps into prosecution story and it exposes hollowness of the claim of the prosecution version. It cannot be said that charge under Section 302 IPC is proved beyond reasonable doubt.

Analysis and comprehensive scrutiny of record takes us to conclude that lot of doubts is created regarding the authenticity of the claim of the prosecution version because of inconsistent description of the solitary prosecution witness of fact when applied to and compared with the prevailing facts and circumstances of the case. Consequently, the conviction recorded by the trial Judge is, on the face, erroneous and against material on record and the trial Judge misread into evidence vis-a-vis facts and circumstances of the case which renders the order of conviction and sentence wholly bogus and erroneous and the trial court was not justified under facts and circumstances of the case in recording finding of conviction.

In this case, there is no worthy evidence which may connect the accused with the commission of the crime except the solitary and shaky testimony of the witness (PW-1) of fact but the trial court while taking stock of merit of the case overlooked vital and self evident factual aspects and erroneously recorded finding of conviction and awarded sentence against the appellant under Section 302 IPC which conviction and sentence is not sustainable in the eye of law. We may sum up that the prosecution was not able to prove its case beyond reasonable doubt.

Consequently, the the judgment and order of conviction and sentence dated 22.01.2013 passed by the Special Judge (SC/ST Act)/Additional Sessions Judge, Ghaziabad, in Session Trial No.1039 of 2010 State of U.P. Vs. Umar Tauhid, arising out of Case Crime No.342 of 2010, under Section 302 IPC, Police Station- Loni, District- Ghaziabad, is set aside and the present appeal is allowed.

The appellant is acquitted of charge under Section 302 IPC.

In this case, the appellant is in jail. He shall be set at liberty forthwith, if he is not wanted in connection with any other case. However, the appellant shall ensure compliance of Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Order Date :- 18.05.2018

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