Allahabad High Court
Ashfaq And Others vs State Of U.P. on 12 March, 2019
Bench: Pankaj Naqvi, Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On: 24.01.2019
Delivered on: 12.03.2019
CRIMINAL APPEAL No. - 3136 of 2003
Appellant :- Ashfaq And Others
Respondent :- State Of U.P.
Counsel for Appellant :- K.D. Tiwari,Ajay Kumar Pandey,Braham Singh,Jamwant Maurya,Lav Srivastava,Mohd. Yusuf,P.K. Singh,R.K.Khanna,R.K.Singh,Raja Ullah Khan,Rajul Bhargava,S.K. Pandey,Sanjay Singh,Satish Trivedi,Vijay Singh
Counsel for Respondent :- A.G.A.,Rajesh Pathik
Connected with
CRIMINAL APPEAL No. - 2909 of 2003
Appellant :- Masoom
Respondent :- State Of U.P.
Counsel for Appellant :- K.D. Tiwari,Sanjay Singh
Counsel for Respondent :- A.G.A.,,Rajesh Pathik
And
CRIMINAL APPEAL No. - 2771 of 2003
Appellant :- Yusuf
Respondent :- State Of U.P.
Counsel for Appellant :- K.D. Tiwari,S.K.Pandey
Counsel for Respondent :- A.G.A.,D.N. Wali,Rajesh Pathik
Hon'ble Pankaj Naqvi,J.
Hon'ble Umesh Kumar,J.
(Delivered by Hon. Umesh Kumar, J)
1- These three criminal appeals have been filed against the common judgment and order dated 29.05.2003 passed by Additional Sessions Judge, Moradabad in S. T. No. 623 of 2001 (State Vs. Ashfaq and others) convicting and sentencing the appellants to undergo life imprisonment under Sections 302/149 IPC and 7 years R.I. under Sections 307/149, IPC and also to undergo R.I. for 2 years under Section 148 of IPC. All the sentences were ordered to run concurrently.
2- In Criminal Appeal No. 3136 of 2003, the appellants- Ashfaq, Azamuddin and Jamil have died during pendency of appeal and therefore, appeals in respect of them stands abated.
3- The Criminal Appeal No. 2771 of 2003 preferred by appellant- Yusuf stands abated vide order dated 29.03.2017 on his death during pendency of the appeal.
4- Criminal Appeal No. 2909 of 2003 has been preferred by appellant- Masoom Ali.
5- Thus, appeals in respect of appellants Nafees, Ghulam Sabir, Asif @ Kalwa, Aslooq, Zakir, Qayyum and appellant- Masoom Ali survives.
6- In brief, the prosecution story, is that on 21.05.2001 at about 12.30 p.m., the informant Ghulam Hasan gave a written report at the police Station, Bhojpur district, Moradabad alleging therein that one Imtiaz of his village had given 11 bigha land to the Mosque, but the same was not mutated in the name of Mosque. The said land was being cultivated by Azamuddin son of Nazar Uddin who is the sister's son of Imtiaz; the grand father of informant Ahmad Noor is the Mutawalli of the said Mosque who did pairavi in the matter and the land was recorded in the name of Mosque. On account of this, accused Azamuddin became inimical to them, he filed a case at Moradabad; that case was fixed on 21.05.2001 (i.e.date of occurrence); in order to attend the proceedings on 2.1.05.2001, the informant, his father Mubarak Husain, his uncle Mehndi Hasan and Sharafat Husain, cousin brother Ali Husain and Shafi sons of Abdul Wahid were going for pairavi of the said case on foot, ahead of them, accused- Ashfaq, son of Bashir and Nazim son of Chidda were also going; at about 10.00 a.m. when they reached the jungle of Trilokpur at about 1 km from Ramganga river, then from the bush near Damdama nalla(rivulet), the accused persons, Ashfaq son of Mushtaq, his brother Nafees, Azamuddin sons of Nazaruddin, Ghulam Sabir son of Himayat, Asif @ Kalwa son of Ibrahim, armed with country made pistol and the accused Yusuf son of Himayat, Aslam son of Nazaruddin, Jamil son Ibne Ali, all armed with Tabals and accused Qayyum, Masoom Ali, Jabir son of Ghulam Sabir armed with knives in their hands, all of a sudden came out of the bush tried to surround the informant and others accompanying him; in order to save their lives, the informant Ghulam Husain and Ali Hasan returned, but being of old age, Mehndi Hasan, Mubarak Husain, Sharafat Husain and Shafi were surrounded by the accused persons armed with country made pistols started firing; Shafi sustained fire arm injury but manage his escape; Mehndi Hasan, Sharafat Husain after sustaining injuries fell down, whereas Mubarak Husain ran towards west to save his life, but the accused persons also fired on him. Thereafter, the accused persons armed with Tabals and knives inflicted serious injuries; the informant and his associates were unarmed/empty handed, they could not save the deceased persons; the informant and others raised alarm upon which the accused persons ran away towards east; all the aforesaid accused persons (appellants) belong to same group and are notorious; the occurrence was seen by informant himself, Ali Hasan, Afaq, Nazim, Shafi and others; after the accused persons ran away, when the informant and others reached at the place of occurrence, they saw Mehndi Hasan, Shafat Husain and Mubarak Husain lying dead; leaving Ashfaq, Ali Hasan and Nazim on the spot, the informant Ghulam Husain along with Shafi went to the police station and lodged the first information report; on the written report scribed by Noor Hasan, case was registered at police station, Bhojpur, District Moradabad at 12.30 p.m. on the same day under Sections 147,148,149, 307 and 302 IPC and GD was executed at Sl.No. 22 on the same date at 12.30 p.m. S.I. Ashok Kumar (P.W-8) conducted the investigation of the case, visited the place of occurrence, on his direction, S.I. Shudan Singh prepared inquest report of deceased-Mehndi Hasan, Shafat Husain and Mubarak Husain and on the pointing of informant, he prepared a site plan (Ex.Ka-37), collected blood stained and plain earth from near the dead bodies, prepared memos Ex.Ka-25 to Ex.Ka-31, collected empty cartridges from near the dead body of Mehndi Hasan and Sharafat Husain, prepared recovery memos Ex.Ka-30 and Ex.Ks-26. He also collected one danda in three broken pieces from near the dead body of Mehndi Hasan containing blood stains, two pairs of plastic shoes were also collected during course of investigation and Fard was prepared as Ex.Ka-29 and Ex.Ka-28 respectively. The investigating Officer-Shudan Singh prepared inquest report at the spot which is Ex.Ka-7, photo lash Ex.Ka-8, letters to CMO and R.I Ex.Ka-9 and Ex.Ka-10 and challan lash Ex.Ka-11.The inquest of Sharafat Husain commenced at 3.00 p.m.(Ex.Ka- 8 to Ex.Ka-12), then inquest of the body of Mehndi Hasan started at 4.15 p.m.( Ex.Ka-13, to Ex.Ka-18)) and inquest of the body of Mubarak Husain was done at 5.30 p.m (Ex.Ka-19) and prepared other police papers (Ex.Ka- 20 to Ex.Ka-24). All the three dead bodies were handed over to Constables 2201 Satyapal and 172 Karan Singh along with other relevant documents for autopsies. Blood stained and plain earth, empty cartridges recovered from the spot, recovery memos are exhibited as Ex.Ka-25 and Ex.Ka-26. From near the dead body of Mehndi Hasan, he collected blood stained and plain earth, two pairs of plastic shoes and broken danda, empty cartridges and prepared recovery memo Ex.Ka- 27 to 30; also collected blood stained and plain earth from near the dead body of Mubarak Husain and recovery memo Ex.Ka-31 was prepared.
7- The post mortem examination of the bodies of deceased persons Sharafat Husain, Mehndi Hasan and Mubarak Husain were conducted by P.W.4/ Dr. S.K. Rastogi and during post mortem examination, he found following injuries on the bodies of the deceased persons;
Mubarak Husain-deceased:
1- Fire arm wound of entry 5 cm x 4 cm over left ear brain cavity deep. Tattoing and blackening present around the wound. Left eye ball completely out on exit.
2- Gun shot wound of entry multiple, .15 cm x .12 cm over left side front of chest, 2 cm below left nipple.
3- Gun shot wound of entry 2 cm x 2 cm x cavity deep Blackening and tattoing are present, 8 cm above chin.
4- Gun shot wound of entry 3 cm x 4 cm x cavity deep with blackening and tattoing, around the would .14 cm on left of abdomen.
5- Gun shot wound of entry over left congrechal region with intestines coming out, .5 cm below the chin.
6- Several gun shot wounds of entry 8 cm x 4 cm in an area, index finger laterally.
Mehandi Hasan-deceased:
1- Multiple incised wound in an area of .20 cm x .15 cm on front face and fore head x brain cavity deep with brain material coming out, both eyes and nose lost.
2- Gun shot wound of entry 4 cm x 4 cm x brain cavity deep over right ear, blackening and tattoing and charring present.
3- Wound of exist 6 cm x 4 cm on the back of left ear.
4- Multiple incised wound in an area of 2.5 cm x 1.5 cm x abdominal cavity deep with intestines coming out at right side of upper abdomen, 10 cm below right nipple.
5- Gun shot wounds of entry 4 cm x 3 cm over left side thigh with blackening and charring present, 1`5 cm below right iliac chest.
6- Wounds of exist 6 cm x 5 cm over back of thigh, 10 cm above back of left knee, margins everted.
Sharafat Husain-deceased:
1- Multiple incised wound in an area of .15 cm x 10 cm x brain deep over front of face.
2- Incised wound 7 cm x 2 cm x chest cavity deep over left side of chest, 8 cm below left muscle, margins clear cut.
3- Incised wound 4 cm x 1 cm x abd. cavity deep at umblicus. Margins clear cut.
4- Incised wound 5 cm x 2 cm x muscle deep at right upper arm, 7 cm below right shoulder.
5- Incised wound 4 cm x 1 cm muscle deep at right upper arm, 7 cm below injury no.4.
6- Incised wound 8 cm x 1 cm x muscle deep x right side of chest, .20 cm below axilla.
7- Incised wound 4 cm x 2 cm x abd. Cavity deep over left side of abdomen, .12 cm below left axilla.
8- Injured Shafiq Ahmed was medically examined by P.W.7/ Dr. Rakesh Kumar on 21.5.2001 at about 9.00 p.m. and during medical examination, he found following injuries on his body;
1- Abrasion 1 cm x ½ cm above the left thumb towards inner side.
2- Contusion 2 cm x 2 cm behind left hand, 2 cm below .
3- Liner abrasion 2 cm x 1 cm towards elbow joint.
4- Complaint of pain on the left side below the chest.
9- After completing investigation, the Investigating Officer submitted charge sheet against all the accused persons under Sections 148,149,307 and 302 IPC.
10- Charges against the accused persons were framed under Sections 148, 307/149 and 302/149 IPC. The accused denied their guilt and claimed trial.
11- In support of prosecution case, the prosecution examined P.W.1 Ghulam Hasan, P.W.2 Ali Hasan, C.W.2 Shafiq as eye witnesses. P.W.3 Bhagwan Singh prepared check FIR and G.D. entry of the case. P.W.4 Dr. R.K. Rastogi conducted the post mortem examinations. P.W.7 Dr. Rakesh Kumar prepared the injury report of injured Shafiq. C.W.1 Noor Hasan, scribe of the FIR and P.W.5 Shudan Singh prepared inquest of the deceased. P.W.6 and P.W.8 are the Investigating Officers of the case.
12- Statements under Section 313 Cr. P.C. were recorded. The accused persons denied the occurrence and stated that they have been implicated due to enmity and the witnesses have given false evidence on account of enmity.
13- The accused-Ashfaq has stated that on the date of occurrence, he was in the Court of District Judge for attending the date fixed in the case and remained there in the Court from 10.00 a.m. to 4.00 p.m. He is a patient of Tuberculosis and is still under treatment.
14- In defence, D.W.1 Balram Singh, Lekhpal has been examined.
15- The accused-appellants have filed certified copies of order dated 30.5.1988 passed in Case No. 291 of 1975 under Section 34 of L. R. Act, ( Ameer Chand Vs. Imdad Husain and others), extract of khatauni from 1395 Fasli to 1412 Fasli and also the copy of agreement to sale executed by Rashidan in favour of Naqshe Ali on 24.8.1985.
16- We have heard Sri Satish Trivedi, learned Senior Counsel assisted by Sri Ajay Kumar Pandey for the appellants, Sri Rajesh Pathik, learned Counsel for the informant and Sri A.N. Mulla, learned AGA on behalf of State.
17- Submissions of learned Counsel for the appellants are that the prosecution version is supported only by interested and inimical witnesses; fair investigation has not been conducted by the Investigating Officer of the case; there are major contradiction in oral and ocular testimonies available on record; the injuries of injured Shafiq could never be caused by fire arm and his presence on the spot is doubtful; and that the trial court has not considered the plea of alibi taken in respect of accused-Ashfaq.
18- On the other hand, supporting the impugned judgment, it has been argued by learned A.G.A. that the prosecution has established its case beyond a reasonable doubt; the prosecution witnesses are wholly reliable and trustworthy; the conviction of accused-appellants is in accordance with law and there is no infirmity in the same.
19- For convenience, following is the chart showing the exhibits which have been exhibited in the case;
Sl.
Exhibit Nos.
Items
Proved by
Ex.Ka-1
Written report
P.W.1-Ghulam Husain
Ex.Ka-2
FIR
P.W.3-Bhagwan Singh
Ex.Ka-3
GDReport No.22 dt.21.5.2001
P.W.3-Bhagwan Singh
Ex.Ka-4
Post Mortem Report-Mubarak Ali
P.W.4- Dr. S.K. Rastogi
Ex.Ka-5
Post Mortem Report-Mehandi Hasan
P.W.4- Dr. S.K. Rastogi
Ex.Ka-6
Post Mortem Report-Sharafat Husain
P.W.4- Dr. S.K. Rastogi
Ex.Ka-7
Inquest- Sharafat Husain
P.W.5-Shudan Singh
Ex.Ka-8
Photo-naash
P.W.5-Shudan Singh
Ex.Ka-9
Letter to C.M.O.
P.W.5-Shudan Singh
Ex.Ka-10
Letter to R.I.
P.W.5-Shudan Singh
Ex.Ka-11
Challan naash
P.W.5-Shudan Singh
Ex.Ka-12
Seal
P.W.5-Shudan Singh
Ex.Ka-13
Inquest- Mehandi Hasan
P.W.5-Shudan Singh
Ex.Ka-14
Photo-naash- Mehdi Hasan
P.W.5-Shudan Singh
Ex.Ka-15
Letter to C.M.O.
P.W.5-Shudan Singh
Ex.Ka-16
Letter to R.I.
P.W.5-Shudan Singh
Ex.Ka-17
Challan-nash
P.W.5-Shudan Singh
Ex.Ka-18
Seal
P.W.5-Shudan Singh
Ex.Ka-19
Inquest- Mubarak Ali
P.W.5-Shudan Singh
Ex.Ka-20
Photo-naash
P.W.5-Shudan Singh
Ex.Ka-21
Letter to C.M.O.
P.W.5-Shudan Singh
Ex.Ka-22
Letter to R.I.
P.W.5-Shudan Singh
Ex.Ka-23
Challan-naash
P.W.5-Shudan Singh
Ex.Ka-24
Seal
P.W.5-Shudan Singh
Ex.Ka-25
Recovery Memo, blood stained, plain earth-Sharafat Husain (Material Ex.1,2)
P.W.5-Shudan Singh
Ex.Ka-26
Recovery Memo, empty cartridge
P.W.5-Shudan Singh
Ex.Ka-27
Recovery Memo, blood stained, plain earth- Mehandi Hasan (Material Ex.3, 4)
P.W.5-Shudan Singh
Ex.Ka-28
Recovery Memo, Two pair shoes (Material Ex.8, 9)
P.W.5-Shudan Singh
Ex.Ka-29
Recovery Memo, blood stained danda (3 broken pieces) (Material Ex.7)
P.W.5-Shudan Singh
Ex.Ka-30
Recovery Memo, empty cartridges
P.W.5-Shudan Singh
Ex.Ka-31
Recovery Memo, blood stained, plain earth- Mubarak Ali (Material Ex.5, 6)
P.W.5-Shudan Singh
Ex.Ka-32
Charge Sheet No.68/2001
P.W.6- Vinod Kumar Sharma (S.H.O/ I.O.)
Ex.Ka-33
Attachment Order dated 7.7.2001 - Yusuf
P.W.6- Vinod Kumar Sharma (S.H.O/ I.O.)
Ex.Ka-34
Attachment Order- Qayyum
P.W.6- Vinod Kumar Sharma (S.H.O/ I.O.)
Ex.Ka-35
Attachment Order- Masoom
P.W.6- Vinod Kumar Sharma (S.H.O/ I.O.)
Ex.Ka-36
Injury Report
P.W.7- Dr. Rakesh Kumar
Ex.Ka-37
Site plan- 302 I.P.C.
P.W.8- Ashok Kumar (I.O.)
Ex.Ka-38
Recovery Memo of Tabal from Jamil (Material Ex.10)
P.W.8- Ashok Kumar
Ex.Ka-39
Recovery Memo of Tamancha from Arif (Material Ex.11)
P.W.8- Ashok Kumar
Ex.Ka-40
Confessional statement of Ashfaq
P.W.8- Ashok Kumar
Ex.Ka-41
Confessional statement of Nafees
P.W.8- Ashok Kumar
Ex.Ka-42
Recovery Memo of Tamancha- Ashfaq (Material Ex.12)
P.W.8- Ashok Kumar
Ex.Ka-43
Recovery Memo of Tamancha- Nafees (Material Ex.13)
P.W.8- Ashok Kumar
Ex.Ka-44
Confessional statement of accused- Azamuddin, Aslooq, Gulam Sabir, Jabir
P.W.8- Ashok Kumar
Ex.Ka-45
Recovery memo of Tamancha- 315 bore (Material Ex.14)
P.W.8- Ashok Kumar
Ex.Ka-46
Recovery memo of Tabal from Aslam (Material Ex.15)
P.W.8- Ashok Kumar
Ex.Ka-47
Recovery memo of blood stained knife from Jabir (Material Ex.16)
P.W.8- Ashok Kumar
Ex.Ka-48
Search memo of Jhund
P.W.8- Ashok Kumar
Ex.Ka-49
Site plan- on pointing of Ashfaq, Nafees
P.W.8- Ashok Kumar
Ex.Ka-50
Site plan- on pointing of Arif @ Kalua
P.W.8- Ashok Kumar
Ex.Ka-51
Site plan- on pointing of Aslooq, Jabir
P.W.8- Ashok Kumar
Ex.Ka-52
Site plan- on pointing of Sabir and Azmuddin
P.W.8- Ashok Kumar
Ex.Ka-53
Site plan, recovery of Tabal on pointing of Jamil
P.W.8- Ashok Kumar
Ex.Ka-54
Report of Forensic Laboratory
P.W.8- Ashok Kumar
20- The accused-appellants have also filed following documents as per list 58/C, before the trial Court;
I) Copy of order dated 30.5.1988 passed in Case no. 291/75, under section 34 L.R.Act(Amir Vs. Imdad Husain & others).
II) Extracts of Khatauni-1395 F to 1400 Fasli, 1407 Fasli to 1412 Fasli, 1401 Fasli to 1406 Fasli.
III) Certified copy of agreement to sale by Rashidan in favour of Naqbe Ali dated 24.8.1985.
21- It is a triple murder case in the day light at about 10.00 a.m., one Km. away from Ramganga river (on way from village Shahpur to Moradabad) in the forest of Trilokpur.
22- P.W.1 Ghulam Husain, P.W.2 Ali Hasan are the eye witnesses, whereas C.W.2 Shafiq is an injured eye witness. P.W.1 Ghulam Husain narrated that one Imtiaz a settler executed a Waqf/ Mosque of 11 bigha of his land, but it could not be mutated in the name of Mosque. The land was being cultivated by nephew of Imtiaz namely Azamuddin, but due to effective pairavi of the case by Mutawalli-Ahmad Noor (grand father of witness P.W.1), land was mutated in the name of Mosque. After mutation, a case was instituted by Azamuddin in Tehsil Moradabad. On account of this, the accused persons turned inimical to us. On the date of occurrence, P.W.1 along with other, uncle Mehndi Hasan, father Mubarak, Sharafat Husain, C.W.2 Shafiq along with Nazim and Ashfaq were going to Tehsil. His grand father being ill on the said date, did not went. At about 10.00 a.m., when they reached near forest of Trilokpur, adjacent to Damdama nalla(rivulet), accused persons Ashfaq, Nafees, Ghulam Sabir, Azamuddin and Arif armed with country made pistols, accused Yusuf, Ashfaq , Jamil armed with Tabals, accused Qayyum, Jabir and Masoom armed with knives surrounded them and started firing. C.W.2 Shafiq escaped from the place, but received pellet injuries. Mehndi Hasan, Sharafat Husain and Mubarak Husain ran towards west in the field, then Mehndi Hasan and Mubarak Husain were hit by fire arm shots and Sharafat Husain fell down, received injuries inflicted by Tabals and knives. After receiving fire arm injuries, Mehndi Hasan also fell down and the persons having tabals and knives inflicted injuries. Mubarak Husain attempted to run away but fell down 100-150 steps away towards west he too received fire arm injuries. PW-1 and PW-2 hide themselves in a jhund (bushes) from where they saw the occurrence. Nazim and Ashfaq saw from a distance on the road. All the accused persons after committing murder of Mehndi Hasan, Sharaft Husain and Mubarak Husain ran away towards east. When the witnesses and other persons came near Mubarak Husain, Sharafat Husain and Mubarak Husain, they found them dead. All the accused persons are residents of the same village whom the witnesses knew very well. Leaving Ali Hasan, Ashfaq and Nazim near place of occurrence, witnesses along with Shafiq (CW-2) went to the police station, Bhojpur, dictated a tahrir to his relative Noor Hasan, gave written report ( Ex.Ka-1) which is proved by him. In cross examination, he admitted that accused,deceased and witnesses belong to the same village Shahpur 12 km. away from the place of incident. He stated that the accused were closely related to each other and they belong to the same group. Further in cross examination, he stated that village Pradhan election was contested by accused- Azamuddin, Ashfaq and Ali Hasan and in the said election, Ali Hasan succeeded, due to which, accused persons turned inimical. He further deposed that distance from his village Shahpur to place of occurrence is about 12 Km., whereas, Moradabad is about 14-16 km away from his village. There is another road option from Moradabad, but that is longer, but they always prefer to travel Moradabad by crossing Ramganga directly, although Bus, Truck and Tempo run on that route, but they travel by road passing through the forest and Damdama Nalla (rivulet) on the way. Damdama Nalla (rivulet) merges in Dhela river 3 km prior to the place of occurrence. In cross examination, he stated specifically about the place of occurrence narrating that there are bushes near Damdama Nalla(rivulet) and jhunds at a distance of 150-200 meters away from the place of occurrence. Her further stated that when the accused persons came out from jhunds, deceased were 50 steps away from them. When Mehndi Hasan and Sharafat Husain fell down after receiving injuries, then he came back and from some distance, saw the entire occurrence. He was around 50 steps as and the accused came out from the jhunds. He also stated that the accused did not fire just after coming from jhunds, but they fired when they reached near the deceased. The accused surrounded them and fired from a short distance. In the post mortem report P.W.4 found tattoing, blackening in the injuries of Mubarak Husain and during post mortem, 49 small metallic pellets, 3 waddings, 3 bob cock of plastic and 2 waddings were recovered from the body of deceased-Mubarak Husain. Post mortem report of deceased- Mehndi Hasan also denotes blackening and charring which clearly shows that firing was made from a close range, as narrated by eye witness-Ghulam Husain (P.W.1) during cross examination.
23- From lengthy cross examination of (P.W.-1) Ghulam Husain, nothing adverse to the prosecution version has come out. Though minor discrepancies are there, but it is well settled that minor discrepancies guarantees that witnesses are not tutored and they are telling truth before the Court. (P.W.1) is reliable, trustworthy, though he is son of deceased-Mubarak Husain, but that makes no difference, as he is natural witness.
24- We find no substance in the argument of defence that (P.W.1) Ghulam Husain , being interested witness, is not reliable.
25- Ali Hasan (P.W.2), is the son of deceased- Mehndi Hasan who was present at the place of occurrence fully supported the prosecution version. He stated that accused persons surrounded Mubarak Husain, fired on him and killed him on the spot. He stated that accused killed Mehndi Hasan by firing and inflicted Tabals and knife injuries on the Sharafat Husain, the entire incident few steps away from the place of occurrence. He stated that when the accused left the place of occurrence, all three, (i.e. he, Shafiq injured and P.W.1 Ghulam Husain) went near the injured and found that Sharafat Husain, Mubarak Husain and Mehndi Hasan were lying dead. P.W.-2/ Nazim and Ashfaq stayed near the dead bodies and Ghulam Husain (P.W.-1) and Shafiq (C.W.-2) went to the police station for lodging first information report. In cross examination, he stated that witness- Shafiq was won over by the accused persons on account of relationship that he will not support the prosecution case. He specifically denied the suggestion of defence that witness-Shafiq did not want to give false evidence, hence the prosecution was not willing to produce him as a witness. He stated that he was at the place of occurrence by 6.00 p.m. and up to that time, all proceedings were completed and then they went to Moradabad with the dead bodies. He pointed out the place from where he saw the occurrence to the I.O. also. He further narrated that accused persons did not commit the offence soon after coming out from jhunds, but they reached up to pathway about 30-40 steps towards west and then committed the offence. The accused persons surrounded deceased persons from eastern side and not from all four sides. He stated that none of them touched the bodies of the deceased. The witness narrated the prosecution version, assigned specific roles to accused persons and mode and manner of occurence. In totality, evidence of Ali Hasan (P.W.2) is reliable and supporting the prosecution case.
26- Noor Hasan (C.W.1) the scribe of check FIR has proved (Ex.Ka-1 and Ex.Ka-2). He stated that on 21.5.2001, Ghulam Husain was with Shafiq and he told him that his father Mehndi Hasan and Sharafat Husain have been murdered. On the dictates of informant-Ghulam Husain, he scribed tahrir and read over to informant who put thumb impression on (Ex.Ka-1). He admitted this tahrir in his hand writing and his address is also written over it. In cross examination, he admitted that he knew Ghulam Husain since 1982 after his marriage. His village is at a distance of 9 km. from the village of informant. On the said date, he was going to Bhojpur by a cycle. Ghulam Husain met him near chauraha. He was accompanied by one more person namely Shafi. He stated that he also resides at Shahpur and knows Shafi. From the close scrutiny of the statement of this witness, nothing adverse could be elicited that this witness is not a scribe of the FIR.
27- Shafiq (C.W.2), an injured eye witness stated that Mallu and Ali Hasan were behind 8-10 steps, and Ashfaq and Nazim were just ahead of him, Mubarak Husain, Mehndi Hasan and Sharafat Husain. When they were about 1 km from Ramganga, then accused persons Azamuddin, Ashlooq, Ghulam Sabir, Jabir and Asfaq came out from jhunds near Damdama nalla(rivulet) and soon thereafter, started firing on Mehndi Hasan and Mubarak Husain and on himself. He also received fire arm injuries. Mehndi Hasan died on the spot and after receiving injuries, he ran away from the place of occurrence. He stated that he saw 5-6 accused persons who were just a head, but by that time, he could not identify them. They were having country made pistols, Tabals and knives. He could not assign any specific weapon and role of the accused as all of them were in state of fear and shock, ran away from the place of occurrence to save their lives. Although, CW-2 received pellet injury but who had fired at him is not disclosed. He stated to have seen 11 persons who participated in the commission of crime and they are Azamuddin, Ghulam Sabir, Jabir and Ashfaq. He identified remaining accused persons involved in the occurrence in the Court. In cross examination, he stated that while they were on their way, the accused persons came out from jhunds and fired on them in which, he also sustained injuries. Mehndi Hasan fell down after receiving fire arm injury. But what happened to Mubarak Husain and Sharafat Husain, he could not say because he ran away from the place of occurrence. The accused persons did not surround them, but they attacked from eastern side. The witness ran about 2-3 km., came back after 20 minutes. By that time, the police had not reached. The I.O recorded his statement after one and half hour. He denied that he did not receive any pellet injuries. He also denied that at the time of occurrence, he was not at the place of occurrence as also denied the suggestion that he did not witness the occurrence. On the request of prosecution, he was further cross examined by prosecution itself and he admitted that he is afraid of accused Masoom Ali, Qayyum, Yusuf and Nafees, though they are his relatives.
28- In a case where the incident had taken place in the presence of relatives, it is only relatives, who will come forward to depose. Law in respect of the examination of interested witnesses and their deposition in the court is well settled. Relationship is not a factor to affect credibility of a witness. There is no proposition of law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole testimony' of such witness ( Harbans Kaur and another -Vs- State of Haryana, 2005 AIR SCW 2074; Namdeo -Vs- State of Maharashtra, 2007 AIR SCW 1835; Sonelal -Vs- State of M.P., 2008 AIR SCW 7988; and Dharnidhar -Vs- State of Uttar Pradesh and Others & other connected appeals, (2010) 7 SCC 759)." More over, testimony of interested witness cannot be discredited mechanically, but it requires to be carefully weighed (see Bhagwan Jagannath Markad Vs. State of Maharashtra) (2016) SCC 537.
29- Head Constable Bhagwan Singh (P.W 3) is a formal witness. He proved the check F.I.R., G.D. entry (Ex.Ka 2 and Ex.Ka-3).
30- Dr. S.K. Rastogi (P.W.4) conducted post mortem on the bodies of all three deceased, which were exhibited as (Ex.Ka-4 to Ex.Ka-6). He stated that all injuries of deceased persons possibly might have been caused on 21.01.2001 at around 10.00 a.m.
31- Vinod Kumar Sharma (P.W.6), Station House Officer of P.S. Bhojpur, district Moradabad at the time of occurrence proved documents regarding proceedings of attachment of properties of absconding accused persons and other recovery memos.
32- Dr. Rakesh Kumar (P.W.7) examined injured- Shafiq Ahmad and found 4 simple injuries on his body which have already been mentioned herein above. The witness denied to explain that whether injury nos.1 and 3 on the injured, would have been caused by pellets or not, but in cross examination, stated that these injuries cannot be caused by a gun shot.
33- Ashok Kumar (P.W.8), Investigating Officer completed investigation and submitted charge sheet. In the cross examination, he stated to have prepared map on the pointing out and the information furnished by the witnesses. It took around one and half hour to reach the place of occurrence. He depicted 'jhund' near Damdama nalla (rivulet) in the site plan. In these jhunds, one can easily hide himself. He further stated that informant disclosed that he and other witnesses saw the occurrence from place 'M' shown in the site plan (Ex.Ka-3). He admitted that he had not shown distance from place 'H' to 'G', nor distance from 'G' to 'A.B'. He had not explained the area of 'A.B.C' agricultural field. The place of occurrence is denoted as plain area near a nalla (rivulet) and river as uneven. The river is around 3-4 km from place of occurrence. From place 'H', distance of dead bodies was around 150 steps. He stated that informant did not disclosed him that the place (jhund) where, he was standing. Near place 'H', a road runs on one side and on another side, nalla(rivulet) is situated.
34- The argument of learned counsel for the appellants, that fair investigation has not been done as the place from where, (PW.1) and (P.W.2) saw the occurrence has not been shown in the site plan (Ex.Ka-37) creates doubt about the presence of eye witnesses at the same. In this reference, statement of Ali Hasan (P.W.2) is relevant, wherein, he stated that he was present at the spot till 6.00 p.m. He could not state that by that time, the I.O. had prepared the site plan or not. He stated that they all were coming from the descent of nalla (rivulet) and the place, from where they saw the occurrence is not specifically indicated in the site plan (Ex.Ka-37).
35- From scrutiny of the statement of this witness, no inference can be drawn that he did not see the occurrence. Mere irregularity or omission on the part of I.O. on this aspect does not cast cloud over prosecution version, as the Investigating officer is not obliged to anticipate all possible defenses and investigate in that angle. In any event, omission on the part of the I.O. cannot go against the prosecution. Interest of justice demands that such acts or omissions of the I.O. should not be taken in favour of accused or otherwise, it would amount to placing premium upon such omissions (see Rahul Mishra Vs. State of Uttrakhand, AIR 2015 SC 3043 and V.K. Mishra Vs. State of Uttrakhand (2015) 9 SCC 588.
36- The argument of defence that there are some discrepancies in the testimony of C.W.2, has also no substance because, it is settled that If at all, there are minor inconsistencies in the statement of witness (CW-2)-Shafiq, as regards the number of blows inflicted and failure to state who injured whom, would by itself not make the testimony of the witness unreliable. This, on the contrary, speaks that the witness is not tutored and was not narrating parrot like (stereo typed evidence). (see Maqsoodan Vs. State of U.P., (1983) 1 SCC 218.
37- We have gone through the decisions cited by learned Counsel for the appellants and are of the view that the same are not applicable on the facts and circumstances of the present case.
38- By considering the evidence available on record, it is firmly established that all the accused formed an unlawful assembly with deadly weapons and committed the aforesaid offence in furtherance of their common object.
39- Taking into consideration cumulative effect of the evidence, we find that there is ample evidence on record to establish that eye witnesses (P.W.1) Ghulam Husain, (P.W.2) Ali Hasan and injured-Shafiq (C.W.2) witnessed the incident. In spite of the fact that these witnesses have been subjected to intensive and incisive lengthy cross examination, nothing material has been brought on record to discard their testimonies. They remained firm on the point what they saw. It is a brutal triple murder case, in which deceased-Mubarak Ali, Mehndi Hasan received several gun shot injuries and one deceased- Sharafat Husain was inflicted with grievous injuries by Tabals and knives. The prosecution has established its case against the accused-appellants beyond reasonable doubt and thus, the Trial Judge was justified in convicting the appellants.
40- The appeal has no substance and the same is, accordingly, dismissed.
41- Appellants are in jail. Registry is directed to transmit the original record of the Trial Court and the judgment for immediate compliance to the Court concerned so as to ensure that the accused-appellants serve out the remaining sentence, in accordance with law. The Trial Court is obliged to communicate compliance report to this Court forthwith.
(Umesh Kumar, J) ( Pankaj Naqvi, J)
Order Date: 12-03-2019
Shahid
