Iqbal vs State
2019 Latest Caselaw 4922 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR  
 
   Reserved on : 10.01.2019
 
Delivered on : 23.05.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 2356 of 2010
 

 
Appellant :- Iqbal
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Md. Imran Khan,P.S.Pundir,Rakesh Ojha
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. This Jail Appeal has been filed by accused-appellant-Iqbal through Superintendent of Jail Meerut against common judgement and order dated 19.03.2010 passed by Additional Sessions Judge, Court No. 14, Meerut, in Sessions Trial No. 1000 of 2006 (State v. Iqbal) under Section 302 IPC, Police Station, Jani, District Meerut and Sessions Trial No. 296 of 2007 (State v. Iqbal), under Section 25 Arms Act, Police Station Jani, District Meerut, convicting accused-appellant-Iqbal and sentencing him to undergo life imprisonment under Section 302 IPC and fine of Rs. 10,000/- but acquitted accused-appellant under Section 25 Arms Act in Sessions Trial No. 296 of 2007 (State v. Iqbal), Police Station, Jani, District Meerut.

2. Factual matrix of case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.

3. A written report, Ex.Ka-1, dated 20.05.2006 was presented in Police Station Jani, District Meerut by Informant PW-1, Fakeera, alleging that on 20.05.2006 at about 6:00 a.m., his real brother / victim-Sabir was returning after attending natural call (latrine). When accused-Iqbal met victim, near canal, and told him that he always hinders his work and opened fire of Tamancha on the victim with intention to kill. Hearing the noise of fire, PW-1 and Raheesuddin and Jameel rushed to spot, whereupon, accused ran away waving the Tamancha, from the spot. Victim was taken to Subharti Hospital with the help of villagers. Incident was witnessed by PW-1, Raheesuddin and Jameel, who were going to natural call.

4. On receipt of written report Ex.Ka-1, Chik Report Ex.Ka-2 was prepared by constable concerned, who registered the case under Section 307 IPC as Case Crime No. 141 of 2006. An entry of case was made in General Diary on 20.05.2006 at 8:45 a.m., a copy of which is Ex.Ka-3 on record.

5. Victim was medically examined by Dr. Ishwar Prasad, who prepared medico-legal report. Doctor found two injuries, which read as under :-

i. Lacerated wound 1.5 cm x 1.0 cm on back in mid line over spine, 25 cm below C7 vertibral spinus process, surrounded by multiple pin head size, skin deep punctured wounds with tatooing within radious of 20 cm, age within 6 hours, lacerated wound supposed to be entry wound of fire arm, paraplegia present, grievous in nature, advise x-ray, dorsolumber spine AP and lateral view, x-ray chest PA view, NCCT abdomen, USG whole abdomen, opinion about cause (type of weapon) is reserved for the concerned specialist to comment, depth of this lacerated wound could not be measured.

ii. Lacerated wound 1 cm x 1 cm on lower part of sternum, depth could not be measured, 3 cm above tip of Ziphisternum, age within six hours, opinion about the type of weapon and nature of injury is reserved for the concerned specialist for comment. Opinion about the exit wound is reserved for concerned specialist.

6. Immediately after registration of case, investigation was undertaken by PW-7, Sri Dambar Singh, who took copies of written report and Chik FIR and proceeded to place of occurrence, prepared site plan Ex.Ka-9, collected bloodstained and sample earth, prepared memo thereof Ex.Ka-10, recorded statement of victim-Sabir in the Subharti hospital and recorded statement of witnesses, traced accused. On 30.06.2006 on receiving information of death of Sabir, he proceeded with other Police officials to Hospital held inquest report over the dead body of Sabir, prepared inquest report Ex. Ka-13, and other necessary papers relating thereto. Dead body was sent for postmortem.

7. Autopsy over the dead body of deceased-Sabir was conducted by Dr. N. Naithani, Medical Officer, District Hospital, Meerut on 30.06.2008 and prepared postmortem report Ex.Ka-25, expressing his opinion that death of victim was due septicemia. Postmortem was proved by PW-11, J.P. Gupta, as a secondary evidence. Doctor found following ante-mortem injuries :-

" i. Bedsore injury in the area of 18 cm x 15 cm, muscle deep to bone deep. Injury in mid back region. Surgical dressing over the wound, shows evidence of pus.

ii. Sore injury in the area of 3-1/2 cm x 4-1/2 cm; muscle deep injury on right side backward region.

iii. Sore 1 cm x 3 cm on left side of buttock.

iv. Healed wound in area of 2-1/2 cm x 1-/12 cm on the back in proximity of T11, T12 thoresic vertebra (spinal region)"

8. PW-5, Sarnam Singh, took investigation from PW-7, traced accused and submitted charge-sheet Ex.Ka-5 against accused as absconder. On 19.11.2006, SI Kartar Singh arrested accused and took him to Police Station. On pointing out of accused, recovered one Tamancha, 315 bore, and one live cartridge from the house of his sister. Prepared recovery memo, Ex. Ka-6.

9. On the basis of recovery memo, chick FIR Ex.Ka-19 was registered as Case Crime No.327 of 2006 under Section 25 Arms Act, by PW-8, Sompal Singh and entry was made by him in General Diary, copy whereof is Ex.Ka-20. Case under Section 25 Arms Act, came to be investigated by PW-10, SI Karan Singh, who visited spot, prepared site plan Ex.Ka-22 and after completing all formalities of investigation, submitted charge-sheet against accused under Section 25, Arms Act.

10. Offence under Section 302 IPC being triable by Court of Sessions and offence under Section 25 Arms Act being connected with Section 302 IPC, both cases were committed to Sessions Court, wherefrom, transferred to Additional Sessions Judge, Court No.3, Meerut, who framed charges against accused-appellant under Section 302 IPC and under Sectin 25 Arms Act on 22.05.2007 respectively, which read as under :

"vkjksi

eS vkj0 ,l0 ;kno vij ftyk ,oa l= U;k;k/kh'k dksVZ la0 3] esjB vki bdcky dks fuEu vkjksi ls vkjksfir djrk gwa %&

;g fd fnukad 20-5-06 dks le; djhc 6 cts lqcg LFkku xzke Hkksgyk dk taxy ds ugj ds ikl Fkkuk tkuh ftyk esjB es vkius dV~Vk lVkdj ds lkfcj iq= gehn dks xksyh ekj nh ftlls mldh e`R;q gks x;hA bl izdkj vkius gR;k dk vijk/k fd;k gS tks Hkk0 n0 la0 dh /kkjk & 302 ds vURkxZr nUMuh; vijk/k gS bl U;k;ky; ds izlaKku esa gSA

,rn}kjk vkidks funsZf'kr fd;k tkrk gS fd vkidk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA

I, RS Yadav, Additional District and Sessions Judge, Court No. 3, Meerut, charge you, Iqbal, with the following: -

That on 19.11.2006 at around 3 p.m. within the limits of the village Jari Kala under the Jani Police Station, the accused Iqbal pointed out to, and helped the police recover, a country made pistol of 313 bore and a live cartridge of 313 bore wrapped in white polythene kept at Taand (loft) constructed in the south-west corner of his sister's house; whereby he shot Shabir s/o Hamid dead 6 months ago, thereby committing an offence punishable u/s 25 Arms Act, which is in the cognisance of this court.

It is hereby directed that you be tried by this court for the aforesaid offence.

(English Translation by Court)

vkjksi

eS vkj0 ,l0 ;kno vij ftyk ,oa l= U;k;k/kh'k dksVZ la0 3] esjB vki bdcky dks fuEu vkjksi ls vkjksfir djrk gwa %&

;g fd fnukad 19-11-06 dks le; djhc 3 cts fnu LFkku xzke tkjh dyka vUrxZr Fkkuk tkuh esa vfHk;qDr dh fu'kkunsgh ij] vfHk;qDr bdcky viuh cgu ds ?kj esa vk;k vkSj edku ds nf{k.kh & if'peh dksus es cus VkaM ls lQsn iksysFkhu es ,d reUpk 313 cksj o ,d ftUnk dkjrwl 313 cksj iqfyl dks cjken djk;k ftlls mlus 'kkfcj iq= gehn ds 6 ekg igys xksyh ekjh Fkh ftlls mldh e`R;q gks x;h FkhA bl izdkj bl dk;Z }kjk vkius ,d ,slk vijk/k fd;k tks /kkjk & 25 vk;q/k vf/kfu;e ds vUrxZr nUMuh; vijk/k gS vkSj bl U;k;ky; ds izlaKku es gSA

,rr~ }kjk vkidks funsZf'kr fd;k tkrk gS fd vkidk fopkj.k mDr vijk/k ds fy;s bl U;k;ky; }kjk fd;k tk;sxkA

I, R.S. Yadav, Addl District and Sessions Judge, Court No 3, Meerut charge you, Iqbal, as under:

That on 20.5.06 at around 6 am at Village Bhohla, near forest canal, P.S. Jani, Distt Meerut, you shot at Sabir s/o Hamid with your country-made pistol from a close range, causing his death. Thus, you have committed an offence punishable u/s 302 IPC which is in the cognizance of this court.

It is hereby directed that you be tried by this court.

(English Translation by Court)

11. Accused-appellant pleaded not guilty and claimed to be tried.

12. Sessions Trial ultimately came to be heard and decided by Additional Sessions Judge, Court No. 14, Meerut.

13. In order to substantiate its case, prosecution has examined total eleven witnesses, out of whom, Informant PW-1 Fakeera, PW-2 Jameel, PW-3 Raheesuddin are witnesses of fact, whereas PW-4 Akhtar Khan, PW-5 Sarnam Singh, PW-6 Dr. Prashant Kumar Gupta, PW-7 Damber Singh, PW 8 Sompal Singh, PW-9 Amit Kumar, PW-10 Karan Singh and PW-11 J.P. Gupta are formal witnesses.

14. On closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded by Court explaining entire evidence and other incriminating circumstances. Accused denied prosecution case in toto and said that he has been falsely implicated in this case and witnesses are giving false evidence. In response of question No. 26, he responded that he is innocent; informant and his family members wanted to garb his land and therefore, he was implicated in this case. Accused-appellant did not adduce any documentary or oral evidence in support of his defence.

15. Trial Court after hearing counsel for parties and appreciating entire evidence on record has found accused-appellant guilty and convicted, as stated above.

16. We have heard Sri N.I. Jafri, learned Amicus Curiae appearing for appellant, Sri Rishi Chadha, learned A.G.A. for State and have gone through the entire record.

17. Learned Amicus Curiae appearing for appellant has challenged conviction of accused-appellant, advancing his submissions in the following manner :

i. Incident allegedly took place at 6:00 a.m. on 20.05.2006 but report was lodged by informant PW-1 (brother of deceased) at 8:05 a.m. without explaining delay in lodging FIR.

ii. There is no sufficient motive to accused to commit murder of deceased Sabir. There is no other evidence. PW-3, independent and eye witness, turned hostile and did not support prosecution case.

iii. PW-1 and PW-2 are brothers of deceased, relation witness. No independent witness has come forward to support prosecution case. Even PW-1 and 2, from their evidence, do not appear to be eye-witness. Their presence on the spot is not natural.

iv. As per post mortem report, death of Sabir might be occurred due to septicemia.

v. There are several contradictions in the statement of PW-1 and PW-2, rendering prosecution case doubtful.

18. Per contra learned AGA opposed submissions by submitting that PW-1 to 3 are witnesses of fact, death of deceased Sabir was found due to septicemia on account of ante-mortem fire arm injury. He further submitted that Trial Court was right in convicting accused-appellant for commission of murder of Sabir.

19. Although, time, date, place and manner of injuries found on the person of victim have not been disputed or challenged by accused-appellant but what is argued is that accused-appellant is not responsible for present crime. From evidence of PW-1 and PW-2 and injury report Ex. Ka-21, time, date and place of incident stand established.

20. Thus the only question remains for consideration is "whether accused-appellant committed offence by opening fire on the victim and Trial Court has rightly convicted him or not?"

21. We now proceed to consider rival submissions on merits.

22. Before adverting to rival contention, we would like to apposite briefly the evidence of prosecution, PW-1 deposed that at about 6:00 a.m. on 20.05.2006, victim-Sabir was coming to house from the field after attending natural call (latrine). When he reached near canal, accused-appellant-Iqbal met him and told that he used to cause interference in his work, opened fire on him by Tamancha, who fell down on the earth. Incident was witnessed by him, Raheesudding and Jameel of the same village, who were going to latrine at that time. On hearing the sound of fire, many persons of village came there. Accused-appellant ran away from spot towards east waving Tamancha. They chased accused-appellant but could not catch him. Victim was taken in injured condition to Subharti Hospital with the help of villagers, where he underwent on operation. Victim succumbed to injuries after forty days.

23. PW-2 Jameel, real brother of deceased, deposed that at about 6:00 a.m. on 20.05.2006, victim-Sabir was coming to house after daily call and reached near Canal, accused met him and opened fire with Tamancha on him and when whereupon Sabir sustained serious fire arm injuries. Incident was witnessed by him and Fakeera and Raheesuddin, who were going to latrine. Accused-appellant ran away from spot waving Tamancha towards east in the forest. They chased him but could not be successful to catch him. Victim was taken, in injured condition, to Subharti Hospital, where he succumbed to injuries during treatment.

24. Both the witnesses deposed that, accused-appellant was not a man of good character. He usually used to comment females, whereupon victim objected him. On this count, he had a grudge with victim and shot him with intention to kill. Both the witnesses withstood lengthy cross-examination but no major contradiction could be brought through the same, which may dent prosecution case or veracity of their statements. From the statement of PW-1 and 2, complicity of accused-appellant in the commission of present offence stands proved.

25. So far as the ground of being related witnesses are concerned, we are not impressed with arguments advanced by learned Counsel for appellant for the reasons that PW-1 and 2 are natural witnesses. It is settled law that evidence of relation witness cannot be thrown out merely for the reasons that they are relatives of deceased.

26. Evidently, PW-1 and PW-2 are real brothers of deceased. They established that accused-appellant opened fire on victim on the fateful day, in which Sabir was seriously injured, thereafter, he succumbed to injuries.

27. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :-

"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. 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.

(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."

28. It is settled law that merely because witnesses are closely relative to deceased, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person that too his own real son. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence.

29. In so far as discrepancies, variations and contradictions in the prosecution case are concerned, we have analysed entire evidence in consonance with the submissions raised by learned counsel's and find that the same do not go to the root of case.

30. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.

31. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019, Supreme Court has observed that the Court will have to evaluate evidence before it, keeping in mind the rustic nature of depositions of villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.

32. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacuna are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of Supreme Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.

33. So far as motive is concerned, it is well settled, where direct evidence is worthy and clean, can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved.

34. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court held as under :-

"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."

35. In the present case, it is fully established that deceased-Sabir was seriously injured due to fire arm shot caused by accused near Canal. Medical evidence shows that death of victim was due to septicemia as alleged by prosecution, therefore, there cannot be any hesitation to come to conclusion that fatal injury caused to victim by fire arm shot hit by accused-appellant.

36. The next issue is, "whether the incident occurred due to premeditated act or accused opened fire on victim with intention to take his life?"

37. Oral evidence of PW-1 and PW-2 as well as other circumstances also point towards the complicity of the appellant in commission of crime. The nature of the injuries suffered by deceased are attributable to fire arm injuries by appellant. We, therefore, find that Trial Court has justly analyzed evidence to record finding about complicity of appellant in commission of crime.

38. Noteably the evidence on record plainly establishes that accused opened fire on victim causing him serious injury. Controversy in this appeal boils down to nature of offence and sentence to be awarded in that behalf. As aforesaid, evidence on record is that appellant caused fire arm injury to deceased on the fateful day. Further that victim succumbed after forty days of incident due to septicemia. There is no evidence that injuries inflicted by appellant were with an intention to cause murder of victim or injury inflicted to deceased was sufficient in ordinary course of nature to cause his death. On the other hand, evidence does not clearly indicate that appellant caused injuries to victim with any premeditation.

39. Taking into account, events as unfolded, there is serious doubt whether appellant had intention to cause death to victim. The incident happened without any premeditation and appellant inflicted fire arm injuries to victim who succumbed to injuries later on.

40. Taking overall view of the matter, in our view, facts of this case would justify invocation of exception 4 to Section 300 of IPC. There was no premeditation and act done by appellant appears to be without appellant taken any undue advantage or acts in a cruel manner. Nature of injuries caused by appellant, it is a well established, cannot be a decisive factor.

41. In Surain Singh v. State of Punjab, (2017) 5 SCC 796, Court has restated the settled legal position about the purport of exception 4 to Section 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a Kripan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC.

42. Keeping in view, the nature of injuries noticed in Ex. Ka-21, by doctor, it is difficult to accept that accused-appellant intended to cause death of victim or that injuries were so dangerous that they would in all probability cause death.

43. Accordingly, we partly allowed this Appeal filed by accused-appellant-Iqbal and modify impugned judgment of Court below. Accused-appellant is held guilty for offence under Section 304 IPC in place of 302 IPC.

44. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

45. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

46. Hence, applying principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, accused-appellant is convicted and sentenced under Section 304 IPC to undergo rigorous imprisonment for period of fourteen years with fine of Rs. 5,000/-. In default to pay fine, he shall undergo further imprisonment for two months. He shall be entitled to set of under Section 428 Cr.P.C.

47. Lower Court record along with the copy of this judgment be sent immediately to Court and Jail Superintendent concerned for necessary compliance and to apprise the accused forthwith. Compliance report be also submitted to this Court.

48. Before parting we provide that Sri N.I. Jafri, learned Amicus Curiae for appellant who shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to him without any delay and, in any case, within one month from the date of receipt of copy of this judgement.

Order Date :- 23.05.2019

Akram