Allahabad High Court
Athar vs State Of U.P. on 10 May, 2019
Bench: Pritinker Diwaker, Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No.7
Criminal Appeal No. 2275 of 2006
Athar ......... Appellant
Vs
State of U.P. .......... Respondent
For appellant : Sri N.I. Jafri, Amicus Curiae
For Respondent : Sri Amit Sinha, AGA
Hon'ble Pritinker Diwaker, J.
Hon'ble Ali Zamin, J.
Per: Pritinker Diwaker, J
(10.05.2019)
1. This appeal arises out of impugned judgement and order dated 06.04.2006 passed by the Additional Sessions Judge, Court No.2, Rampur in Sessions Trial No. 267 of 2004, convicting the appellant under Section 302 of IPC and sentencing him to undergo rigorous imprisonment for life with a fine of Rs. 10,000/-, in default of payment of fine, to undergo one year rigorous imprisonment.
2. As per prosecution case, on 18.2.2004 at about 9:00 am, accused-appellant borrowed the bicycle of deceased Irfan and at about 3:15 pm when Irfan demanded back his bicycle, appellant got annoyed with him and caused two firearm injuries on his head and chin, resulting his instantaneous death. Incident has been witnessed by Imran (PW-1), brother of the deceased and Jafar Khan (PW-2) maternal uncle of the deceased. On 18.2.2004, at 4:15 pm, on the basis of written report Ex.Ka.1 lodged by PW-1, FIR Ex.Ka.13 was registered against the appellant under Section 302 of IPC.
3. Inquest on the dead body of the deceased was conducted vide Ex.Ka.4 on 18.4.2004 and the body was sent for post-mortem, which was conducted vide Ex.Ka.2 on 19.2.2004 by Dr. Rajkumar (PW-3).
4. As per post-mortem report, following injuries were noticed on the body of the deceased:
"(1) Gunshot wound of entry size 3.5 cm x 3.5 cm x brain cavity deep on left side top of head, 8 cm above from left eyebrow. Blackening and tattooing present, margins inverted underneath frontal bone fractured, Brain matter exposed.
(2) Gunshot wound of entry size 6 cm x 4 cm x oral cavity deep over chin and mouth, blackening and tattooing present margins inverted. underneath mandible fractured in pieces, buccal cavity and soft tissues badly lacerated one Tikli and Sixteen pallets recovered from wound and oral cavity."
One Tikli and sixteen pallets were found from the head and face of the deceased. According to autopsy surgeon, cause of death of the deceased was coma, as a result of ante-mortem gunshot injury.
5. A country made pistol was recovered at the instance of the appellant and empty cartridges were also seized from the place of occurrence.
6. While framing charge, the trial Judge has framed charge against the appellant under Section 302 of IPC.
7. So as to hold appellant guilty, prosecution has examined four witnesses. Statement of accused-appellant under Section 313 of Cr.P.C. was recorded in which he pleaded his innocence and false implications.
8. By the impugned judgment, the trial Judge has convicted the appellant under Section 302 of IPC and sentenced him as mentioned in paragraph no. 1 of this judgment.
9. Learned counsel for the appellant submits:
(i) that Imran (PW-1) and Jafar Khan (PW-2), two eye witnesses, are not reliable and they, being interested witnesses, have falsely implicated the appellant.
(ii) that even taking the prosecution case as it is, at best, offence under Section 304 Part-I or Part-II of IPC is made out because there was no intention on the part of the accused to commit the murder.
(iii) that appellant is in jail since 22.2.2004 and, therefore, after converting his conviction into lesser offence, his sentence may be reduced for the period already undergone by him.
(iv) in support of his contention, learned counsel has placed reliance on the judgments of the Apex Court in Manjeet Singh vs. State of Himachal Pradesh1 and Rampal Singh vs. State of Uttar Pradesh2
10. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:
(i) that conviction of appellant is in accordance with law and there is no infirmity in the same.
(ii) that there is no reason for this Court to disbelieve the statement of two eye witnesses, i.e. Imran (PW-1) and Jafar Khan (PW-2).
(iii) that a very prompt FIR was lodged by Imran (PW-1) and that itself is good enough to establish that PW-1 was an eyewitness to the incident.
11. We have heard learned counsel for the parties and perused the record.
12. Imran (PW-1) is a brother of the deceased and the informant, while supporting the prosecution case, has stated that on 18.2.2004 at about 9:00 am, accused appellant had taken the bicycle of his brother Irfan and when at about 3:15 pm, his brother demanded back his bicycle from the appellant, appellant started quarrelling with him, got annoyed and caused two firearm injuries to him, resulting his instantaneous death. He states that the incident has also been witnesses by his maternal uncle Jafar Khan (PW-2). In cross-examination, this witness remained firm and nothing could be elicited from him.
13. Jafar Khan (PW-2) is another eye witnesses and is a maternal uncle of the deceased, while supporting the prosecution case, has stated that on 18.2.2004 at about 9:00 am, accused appellant had taken the bicycle of Irfan and when at about 3:15 pm, Irfan demanded back his bicycle from the appellant, there was some hot-talk between them and then the appellant caused two gunshot injuries to him, resulting his death. In cross-examination, this witness also remained firm.
14. Dr. Rajkumar (PW-3) conducted postmortem on the body of the deceased and found two gunshot injuries as mentioned in paragraph no. 4 of this judgement. One Tikli and sixteen pallets were found from the head and face of the deceased.
15. Vijay Kumar Sharma (PW-4) is an Investigating Officer.
16. Close scrutiny of the evidence, in particular, the statement of two eye witnesses, i.e. Imran (PW-1) and Jafar Khan (PW-2) makes it clear that on 18.2.2004, at about 9:00 am, accused-appellant had borrowed the bicycle of the deceased and when at about 3:15 pm, deceased demanded back his bicycle, accused-appellant caused two firearm injuries on the head and face of the deceased, resulting his instantaneous death. Postmortem of the deceased also supports the prosecution case.
17. We have no reason to doubt the statement of Imran (PW-1) and Jafar Khan (PW-2). They appear to be trustworthy and their statements inspire the confidence of the Court. Their testimony cannot be discarded simply on the ground that they, being the brother and maternal uncle of the deceased, are interested witnesses. Law in this respect is very clear.
It is well settled principle of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai vs. State of Bihar (2001) 7 SCC 318; State of U.P. vs. Jagdeo Singh (2003) 1 SCC 456; Bhagalool Lodh & Anr. vs. State of U.P. (2011) 13 SCC 206; Dahari & Ors. vs. State of U.P. (2012) 10 SCC 256; Raju @ Balachandran & Ors. vs. State of Tamil Nadu (2012) 12 SCC 701; Gangabhavani vs. Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298; Jodhan vs. State of M.P. (2015) 11 SCC 52).
18. The Supreme Court in the matter of Bur Singh and Anr. vs. State of Punjab, (2008) 16 SCC 65 has held that merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Further, the Supreme Court in the matter of Sudhakar vs. State, AIR 2018 SC 1372 and Ganapathi vs. State of Tamil Nadu, AIR 2018 SC 1635 relying in its earlier judgments held as under:
"18. Then, next comes the question 'what is the difference between a related witness and an interested witness?. The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PW 1 and 5 were not only related witness, but also 'interested witness' as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73] : (2008 AIR SCW 6322). As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."
Relationship is not a factor to affect credibility of a witness. There is no proposition in 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. (See- 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).
19. Considering the evidence available on record, complicity of the accused-appellant in commission of offence, has been duly proved by the prosecution.
20. The only question which arises for consideration of this Court is, as to whether the act of the appellant would fall within the definition of murder or it would be culpable homicide not amounting to murder.
Section 300 reads as under:-
"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly. - If it is done 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, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above Exception is subject to the following provisos:-
First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation. - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2. - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3. - Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5. - Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
21. In the case of Lavghanbhai Devjibhai Vasava vs. State of Gujarat3, following parameters have been laid down by the Apex Court as to whether a case would fall under Section 302 of IPC or Section 304 of IPC.
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used;
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation;
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
22. If the above principles are applied in the present case, true it is that there was no premeditation on the part of the appellant to commit murder but the fact remains that he was having firearm with him, there is no evidence that there was any sudden fight or sudden quarrel between the appellant and the deceased and the evidence shows that deceased simply demanded back his bicycle. Yet another aspect which goes against the appellant is that he did not stop after causing only one injury but he caused two gunshot injuries. It is not a case where the appellant had caused injury on non-vital part of the body of deceased but he chose the most vital part of the body, i.e. head and face of the deceased and, therefore, under no stretch of imagination, his case would come within Exception-4 of Section 300 of IPC.
23. The judgments cited by the defence are of no help to him because the facts of the present case are entirely different from those cases which have been cited. In the case of Manjeet Singh (Supra), the facts were entirely different. In the case of Rampal Singh (supra), there was a quarrel between the family members, whereas present is not a such case.
24. Taking cumulative effect of the evidence, we are of the view that the trial court was justified in convicting the appellant under Section 302 of IPC.
25. Appeal has no substance and the same is, accordingly, dismissed. As the accused appellant is in jail, no further order is required in his respect.
26. Sri N.I. Jafri, learned Amicus Curiae shall be paid Rs.10,000/- as his remuneration.
Dated: 10.5.2019
RK/Md Faisal
(Ali Zamin, J) (Pritinker Diwaker, J)
