Mubarak And Others. vs State Of U.P. & Others.
2021 Latest Caselaw 3256 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 04.02.2021
 
Delivered on 10.03.2021
 
Court No. - 11
 

 
Case :- CRIMINAL APPEAL No. - 452 of 1990
 

 
Appellant :- Mubarak And Others.
 
Respondent :- State Of U.P. & Others.
 
Counsel for Appellant :- V.Bhatia,Anand Dubey,Kailash Chandra
 
Counsel for Respondent :- G.A.,I.B.Singh,Maneesh Kumar Singh,N.K.Singh,Navita Sharma
 

 
Hon'ble Rajan Roy,J.

Hon'ble Saurabh Lavania,J.

(As per Hon'ble Saurabh Lavania,J.)

Heard and perused the records.

This appeal arises out of a judgment and order dated 30.07.1990 passed by Sessions Judge, Sultanpur in Sessions Trial No.77 of 1989 (State v. Mubarak and another), thereby convicting both the appellants under Section 302 read with Section 34 IPC and sentencing them to undergo rigorous imprisonment for life.

As per prosecution story on 21.12.1988 at about 5:30 P.M. Waris Ali (deceased) was returning on his cycle from Gauriganj market where he had gone to get his quilt filled with cotton. Noor Mohammad and Iqbal Bahadur, who had also gone to Gauriganj market to purchase 'Suful', were also returning from the market on their cycle. Waris Ali (deceased) was ahead of them. When all the three persons reached the turn on the road to Taleband-Ka-Purwa, both the accused namely Mubarak and Farooq, who were hiding behind Babool bushes, suddenly attacked Waris Ali with Lohband and caused injuries to him. On being challenged by Noor Mohammad and Iqbal Bahadur, the accused/assailants ran away. Witness Iqbal Bahadur reached the house of Waris Ali and informed his wife Smt. Mehrun Nisha about the incident, who rushed to the scene of occurrence, weeping and shouting. Other villagers Sher Mohammad, Lala, Shafiq, Gaya Ram and Rajendra, on hearing the shouts of Smt. Mehrun Nisha, arranged a cot and rushed to the scene of occurrence. When the above named persons reached the scene of occurrence, they found Waris Ali lying badly injured and unconscious on the southern side of the road and his cycle was lying with the newly filled quilt on its carrier on northern side of the road. Noor Mohammad was present at the scene of crime. A Doli was prepared using the cot and the injured was laid on it, thereafter, the villagers brought the injured on Purab Gaon road. One Ram Sajiven was sent in search of a tractor, so that the injured may be taken to Hospital at the earliest. Before Ram Sajiven could come with tractor, at about 7 P.M., a truck reached the spot and thereafter the Doli with the injured was placed on it. The villagers and Smt. Mehrun Nisha also boarded the truck and reached the Primary Health Centre (PHC), Gauriganj at about 7.15 P.M. The Doctor at PHC treated Waris Ali and told the informant that his condition was critical. He referred him to District Hospital, Sultanpur but before he could be taken to Sultanpur he vomited blood and died at about 7:30 P.M. F.I.R. was lodged on the information given by wife of deceased namely Mehrun Nisha on 21.12.1988 at 7.45 P.M.

It is said that the accused, who were friends, had murdered Waris Ali on account of the latter siding with uncle of accused Mubarak in a dispute/litigation, against Mubarak.

The inquest started on 21.12.1998 at 21.30 hours and was concluded on 22.12.1998 at 10.15 A.M. The inquest report is Exhibit No. Ka-14.

Exhibit No. Ka-2 is the extract of OPD Register dated 21.12.1988 of PHC, Gauriganj, wherein it has been mentioned that the injured Waris Ali was brought to hospital at 7.15 P.M. Exhibit No. Ka-3 is the medicolegal report by which the police was informed and the injured was referred to District Hospital, Sultanpur for further treatment.

Exhibit No. Ka-12 is the site plan.

Exhibit No. Ka-22 is the forensic report.

Exhibit No. Ka-8 is the Post Mortem Report.

Exhibit No. Ka-13 is the recovery memo of blood stained earth and plain earth.

The investigation was conducted by Sri Shiv Lakhan Singh, who after completing the investigation submitted the charge sheet on 14.02.1989.

On 13.03.1989, the Chief Judicial Magistrate, Sultanpur committed the case for trial before the Sessions Court.

The charge was framed by Sessions Judge, Sultanpur in Sessions Trial No. 77/1989 on 08.06.1989 under Section- 302 read with Section- 34 IPC. As the accused denied the charges, they were put to trial.

The prosecution produced nine witnesses to prove its case. Smt. Mehrun Nisha (PW-1) is the informant. Iqbal Bahadur (PW-3) and Noor Mohammad (PW-4) are the eye witnesses. Dr. S.K. Pandey is the doctor, who treated the injured at PHC at Gauriganj is PW-2. PW-5 Sri Ram Saran, the village Pradhan has been examined on the issue of motive. Head constable PW-6 Sri Surendra Rai is scribe of the FIR. PW-7 Dr. R.N. Sinha is the Autopsy Surgeon. PW-8 Sri Rampal Dubey is the Head Constable, who prepared the chick FIR. PW-9 Shiv Lakhan Singh is the Investigating Officer.

Statement(s) of Mubarak and Farooq were recorded under Section- 313 Cr.P.C. In the statement(s) under Section- 313 Cr.P.C., the accused denied the allegations levelled against them. Mubarak alleged false implications and as the deceased had killed his uncle Mohd. Zama and was involved in litigation with his brother-in-law therefore he had been implicated out of revenge.

The Trial Court after considering the evidence on record including the statement(s) of accused, passed the judgment of conviction dated 30.07.1990 against the appellants and sentenced them under Section- 302 IPC.

It would be appropriate to mention here that appellant No. 1 Mubarak has expired during pendency of the appeal and vide order dated 22.07.2019 the appeal has been dismissed as abated so far as it relates to appellant/Mubarak. It survives only in respect to Farooq.

Assailing the judgment of conviction dated 30.07.1990, under appeal, learned counsel for the appellant Sri Manish Kumar Singh, in brief, submitted that:

(i) the FIR is antetimed and antedated. (ii) The statement of PW-1, wife of deceased namely Mehrun Nisha, cannot be relied upon for convicting the accused-appellant as she is not an eye witness and she is not a truthful witness as during her examination she specifically said that at the time of lodging of FIR, Noor Mohammad and Iqbal were present at police station. However, PW-4/Noor Mohammad did not support the version of PW-1, rather PW-4 has said that he had not gone with Mehrun Nisha for the purposes of lodging the FIR. In this regard, reliance was placed on paragraph 17 of the testimony of PW-1 and paragraph 28 of the statement of Noor Mohammad/PW-4. In this regard, reliance was also placed on the statement of PW-9/Shiv Lakhan Singh, the relevant paragraph is paragraph 13. (iii) The conviction based on the statement of PW-4 Noor Mohammad is liable to be interfered with by this Court in the instant appeal taking into account the fact that Noor Mohammad PW-4 is an inimical witness, as an FIR was lodged under Section- 498A against Noor Mohammad (by the father-in-law of accused Mubarak). (iv) Noor Mohammad is a professional witness, as also, he is not truthful and reliable witness. (v) The inquest was conducted in two parts. (vi) There is non compliance of Section 157 of Cr.P.C. (vii) Prosecution has concocted the story about use of Lohband by accused, which was not recovered. (viii) The investigation is tainted/defective and on the basis of the same, the accused appellant cannot be convicted. (xi) Statement of Iqbal Bahadur cannot be relied for conviction as he has been declared hostile rather it can be taken into consideration in favour of accused.

In support of his submissions, learned counsel for the appellant has placed reliance on the judgments in the case of; "Rabindra Kumar Dey v. State of Orisa; 1976 SCC (Cri.) 566, Bir Singh and others v. State of U.P.; 1977 SCC (Cri.) 640, Prem Chand (Paniwala) v. Union of India and others; 1981 SCC (Cri.) 239, ShankarLal GyarashiLal Dixit v. State of Maharashtra; 1981 SCC (Cri.) 315, Badruddin Rukonddim Karpude and others v. State of Maharashtra; 1981 SCC (Cri.) 610, Lakshman Prasad v. State of Bihar; 1981 SCC (Cri.) 642, State of Punjab v. Mukhtiar Singh and another; 1975 SCC (Cri.) 625, Lakhanpal v. State of Madhya Pradesh; 1979 SCC (Cri.) 644, State of Haryana v. Inder Singh and others; 2003 SCC (Cri.) 1239, Jandel Singh v. State of Madhya Pradesh.; 2003 SCC (Cri.) 1782, Sohan Lal @ Sohan Singh and others v. State of Punjab; 2004 SCC (Cri.) 226, State of U.P. & another v. Jaggo @ Jagdish and others; 1971 SCC (Cri.) 401, Kailash v. State of U.P.; AIR 1994 SC 470, State of Punjab v. Harbans Singh and another; AIR 2003 SC 2268, State of Punjab v. Pritam Singh and others; 1977 CRI. L. J. 1575, State of Rajasthan v. Bhola Singh and another; AIR 1994 SC 542 & Mahabir Singh and another v. State; 1979 CRI. L. J. 1159."

Sri I.B. Singh, learned Senior Advocate appearing on behalf of the complainant-informant submitted that it is a case of direct evidence, witnesses have supported prosecution story and in cross-examination, nothing could be elicited to impeach the story of prosecution nor the credibility of witnesses of the prosecution has been impeached by the defence, as such, no interference in the judgment under appeal nor any indulgence in favour of the accused appellant is required by this Court. PW-1 is an honest witness and she has supported the version of prosecution and has proved the FIR. The FIR has also been proved by PW-9. The lodging of FIR has also been proved by PW-6 and PW-8. Noor Mohammad has supported the version of FIR and the version of prosecution.

Sri Singh, on the basis of statement(s) of PW-2/Dr. S.K. Pandey and PW-7/Dr. R.N. Sinha as also Exhibit No. Ka-2, further submitted that the injured was brought to Hospital at 7.15 P.M. and he was treated and was also referred to District Hospital, however, he died at 7.30 P.M. and the FIR was lodged at 7.45 P.M. The police was also informed regarding medicolegal case. The FIR is prompt and there is no delay.

Learned AGA, Sri Balram Singh, supporting the judgment of conviction, under appeal, in addition to what has been stated by Sri I.B. Singh, learned Senior Advocate, submitted that the investigation as alleged by the counsel for the appellant is not defective as immediately after receiving the information, the concerned officer started the process of inquest and the inquest of the body of the deceased was not concluded on account of dim light in the premises of the hospital, which has been narrated by the concerned officer in the inquest report as also in his statement before the Court as PW-9. In this regard, reliance has been placed on paragraph 3 of the statement of the Investigating Officer concerned Shiv Lakhan Singh and the inquest report, which is Exhibit No. Ka. 14. It is also submitted that before concluding the inquest on 22.12.1988 at 10.15 A.M., the Investigating Officer went to the spot and prepared the recovery memo Exhibit No. KA-12, which is evident from the statement of Investigating Officer. It is also stated that during cross-examination of PW-9, nothing could be elicited by the defence to impeach his credibility.

Sri Balram Yadav also submitted that as per version of the prosecution, the accused assaulted Waris Ali (deceased) at about 5.30 P.M. on 21.12.1988 and the informant along with villagers reached PHC at about 7.05 P.M. The time spent is reasonable, as, after the incident, Iqbal Bahadur gave information to the informant, as per the prosecution case and on getting the said information, the informant as also other villagers rushed to the spot and thereafter, a Doli was prepared and the injured Waris Ali was put on it and thereafter, the said Doli was brought to Purva Gaon Road and then, the villagers along with Smt. Mehrun Nisha and the injured boarded the Truck at about 7.00 P.M. and reached PHC at about 7.15 P.M., which is approximately 6 Kilometers away from Purva Gaon Road and on reaching PHC, some treatment was provided, however, the injured succumbed to his injuries. Immediately thereafter, the FIR was lodged at about 7.45 PM and inquest was started at about 9.30 PM on the same day i.e. 21.12.1988. It is further stated that in view of the facts and circumstances of the case the submission of the learned counsel for the appellant to the effect that FIR is antetimed/antedated is not sustainable.

On the issue of motive, Sri Balram Singh submitted that the FIR itself contains assertions regarding the motive, which is to the effect that Farooq and Mubarak were friends and Mubarak (accused) was inimical to Waris Ali (deceased) as he was helping the uncle of Mubarak in the property dispute. This fact has been proved by PW-1 and PW-4 (eye witnesses) as also by PW-5-Sri Ram Saran against whom nothing adverse has been stated by the defence such as that he is inimical to the accused or he is a partisan witness. Witnesses, specially Ram Saran, have specifically stated that the accused Mubarak was inimical to Waris Ali (deceased) on account of the fact that he was doing parvi on behalf of Ashiq Gani (uncle of accused Mubarak) in a civil dispute. This statement was given on the basis of the information received by Mubarak, as stated by Sri Ram Saran PW-5 during the cross examination.

Sri Balram Singh further submitted that Iqbal Bahadur appeared in the witness box as PW-3 and he was declared hostile witness, however, the evidence of Iqbal Bahadur can be considered for the purposes of corroboration with regard to the fact that Noor Mohammad and Iqbal Bahadur had gone to Gauriganj Market and were returning therefrom at about 4.30 P.M., which has also been stated by Noor Mohammad/PW-4 (eye witness) in support of story of the prosecution, therefore this part of testimony of PW-3 supports the prosecution case and can be relied accordingly.

Sri Balram Singh, learned AGA also stated that the doctor, who treated Waris Ali (deceased), was examined as PW-2 (Dr. S.K. Pandey) and he proved Exhibit No. Ka-2 and Ka-3, which mentions the time at which injured was brought to hospital as also the fact that the police was informed it being a medicolegal case. Dr. R.N. Sinha appeared in the witness box as PW-7 and proved Exhibit No. Ka-8, which is the post mortem report. As per PW-7, death could have occurred on 21.12.1988 at 7.30 P.M. on account of Ante Mortem Injuries. In this view of the matter also the prosecution has proved its case beyond doubt.

On the issue of recovery of Lohband(s), Sri Balram Singh submitted that the case of the prosecution would not fall if the Lohband(s) by which accused assaulted Waris Ali (deceased) had not been recovered. It is also stated that the case of the prosecution would also not fall if the investigation is defective in certain aspects.

As regards the plea raised by the learned counsel for the appellant, which is to the effect that FIR is antetimed and antedated, we have considered the material available on record and we find therefrom that the same is unsustainable in the facts of the present case. The reason for this conclusion is that the incident took place at about 5.30 P.M. on 21.12.1988 and on coming to know about the same, informant along with villagers reached the place of scene/occurrence where they found Waris Ali injured and unconscious. Thereafter, a Doli was prepared and injured Waris Ali was put on the same and the said Doli was brought to Purva Gaon Road. The villagers along with Smt. Mehrun Nisha and injured boarded the Truck at about 7.00 P.M. and reached PHC at about 7.15 P.M., which is approximately 6 Kilometers away from Purva Gaon Road, and on reaching PHC, some treatment was provided, however, the injured Waris Ali succumbed at 7.30 P.M. Immediately thereafter, the FIR was lodged at about 7.45 PM and inquest was started at about 9.30 PM on the same day i.e. 21.12.1988. Thus, in these circumstances, it cannot be said that the F.I.R. was ante-timed.

P.W. 1 Mehrun Nisha has stated that both the accused were friends. They were residents of two different Purwas of the same village. There was a dispute between accused Mubarak and his uncle Ashiq relating to property. Her husband, the deceased Waris, used to do parivi in the said case on behalf of Ashiq Gani, the uncle of accused Mubarak. The latter had warned the deceased of dire consequences if he did not refrain from doing such parivi. Such threat was given 10-15 days prior to the incident firstly at the door of the Pradhan, secondly in the agricultural field. Her husband had told her about the threat extended by the accused Mubarak. She has vividly narrated the events that took place on 21.12.1988 when she was informed about the incident which took place with her husband. She has stated that her daughter had told her that Mubarak and Farooq had come to their house asking for her father Waris whereupon she had told them that he had gone to Gauriganj. Within half an hour of reaching her house Iqbal Bahadur came and informed about killing of her husband and that Noor Mohd. was near the body of her husband. This statement is corroborated by testimony of PW- 4 Noor Mohd., the eye witness. She went to the scene of crime, crying and weeping. Iqbal Bahadur also went with her alongwith other villagers who had taken a cot, rope etc. with them. When she reached the site she found her husband lying on the southern edge of the Road and he was unconscious because of the injury. Blood was oozing from his wounds. The cycle was lying towards the north with the Quilt, newly filled, tied to it. She met Noor Mohd. at the site who told her about the incident. Thereafter, she has narrated as to how her husband was taken to the Gauriganj hospital, where he was treated etc. and has supported the recitals of the F.I.R. and the prosecution case. She has stated that she had orally informed the Police at the Police Station about the incident and the Constable had written down what she had stated. She proved that the report was as per her statement. She identified her signature on the report.

In her cross-examination she has not budged from the narrations of events except on certain points such as when she has stated that her daughter had informed her only about Mubarak, that he had come to the house asking for her father, Waris. This is not such a discrepancy as to discredit her testimony in its entirety. These are minor deviations. She has at one place denied having stated before the Police about the deceased doing parivis on behalf of Ashiq Gani but in the later part of cross-examination she has denied the suggestions that her husband did not do parivis on behalf of Ashiq Gani, thus reiterating her stand in the examination-in-chief. Much emphasis was laid on behalf of appellant on her statement that Noor Mohd. and Iqbal had also gone with her to the Police Station which is not supported by testimony of P.W.-4 and is belied by P.W.-3. As regards P.W.-3, he has been declared hostile. We are of the opinion that at best this is a minor and insignificant discrepancy which does not materially prejudice the prosecution case, especially as, her testimony regarding going to the scene of crime, giving of the information of the incident to police, lodging of F.I.R., treatment of deceased at PHC, Gauriganj is corroborated by other ocular evidence and other Medical documents in this regard. We must not forget that she is an illiterate and rustic villager and we cannot expect flawless narration of events with mathematical precision. In this context, we would like to quote the pronouncement of Hon'ble Apex Court's judgment in the case of State of U.P. Versus Krishna Master reported in (2010) 12 SCC 324 with regard to appreciation of testimony of a rustic witness. In paragraph nos.15 and 17 of the said judgment Hon'ble Apex Court has observed as under:-

"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case."

The Hon'ble Apex Court in the case of State of Punjab Vs. Hakim Singh reported in 2005 (7) SCC 408 has observed as under:-

"We fail to understand the manner in which the testimony of this witness has been appreciated by the High Court. Sometimes while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate testimony from our rational angle."

The Hon'ble Apex Court in the case of State of Uttar Pradesh Vs. Krishna Master and others (supra) has held in paragraph no. 23 and 24 as under:-

"23. ........................ A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime.

24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness."

Discrepancies which do not go to the root of the matter and do not shake the basic version of the witnesses cannot be attached undue importance. What has to be seen is whether the version presented in Court was substantially similar to what was stated during investigation. Further, if a witness remains firm and reiterates material particulars before the Court which were narrated during investigation then on account of the some contradiction or discrepancy the evidence of a witness cannot be discarded nor he/she can be considered as non reliable/doubtful witness. We find the testimony of PW-1 to be reliable and truthful. She has supported the prosecution story.

P.W.-4 is the eye witness to the incident. He has stated that he alongwith Iqbal Bahadur had left for Gauriganj market at about 2:00 P.M. They had reached Gauriganj market at about 3:00 P.M. They had purchased goods from the market. They started for their home from Gauriganj at about 4:30 P.M. Waris Ali, the deceased met them on their way back near "Adda" (Bus Station). He was returning from the market after getting his quilt filled with cotton. He was on bicycle. All three started for their home from Bus Station, Gauriganj. They moved on the 'Kacchi Road' from Purab village for going to their home. Waris Ali was ahead, then was Iqbal Bahadur and he (P.W.-4) was behind him. They crossed the drain (Nali) near Rati Pal's agricultural field on account of which the Kacchi road had been cut (for the Nali), one by one, and then they again moved forwarded on their Bicycle. When Waris Ali turned West from the road and had gone about 20-25 steps, the accused Mubarak and Farooq pounced upon him from the Babool bushes towards North of the road. They were carrying Lathis with iron on them. They beat Waris Ali with lathis. Waris Ali got injured and fell down from the cycle. The accused struck two blows with their lathis even after he had fallen, and ran away. He (P.W.-4) and Iqbal Bahadur challenged them and shouted. Injured Waris Ali also challenged them, once. He went and saw Waris Ali. He was bleeding from the nose and mouth. His clothes were blood stained. Blood was also there on the ground. He was unconscious. Waris' right leg had got entangled in the frame of the cycle while his left leg was pressed under the cycle. He (P.W.-4) picked up the cycle and kept it on the Northern side of the Road. He (P.W. 4) sent Iqbal to the deceased's house. After sometime, wife of Waris Ali and others reached the site. Thereafter, he (P.W.-4) has narrated the events which was took place till Waris died at PHC, Gauriganj and this narration corroborates the version of the FIR as also the testimony of P.W.-1. He has truthfully stated that wife of Waris ali, Sher Mohammad and Lala had gone to Gauriganj Police Station. He has not stated about himself and Iqbal Bahadur going to Police Station. He has however stated about his presence and that of Iqbal Bahadur with others till PHC, Gauriganj. He has also stated that police came to the Hospital and recorded their statement. They went to the scene of crime alognwith the Police. He and a constable remained at the site of crime, the whole night. Next day at dawn, the Sub Inspector reached the site. He (P.W.-4) showed the site to him. In cross-examination, he has reiterated the incident of killing of Waris. He has truthfully stated that he did not accompany Mehrun Nisha to the Police Station and remained in the hospital. He has truthfully stated that the cycle was called for from the home of Waris Ali and not from seen of crime and has thus supported the testimony of P.W.-1 in this regard. His statement that Waris Ali's cycle was given to Ram Sajiven to get a tractor was verified from his statement in this regard under Section- 161 Cr.P.C. on being confronted and was found to be true. There is nothing in his cross-examination which could discredit him as a witness. His testimony is truthful, consistent and natural. In his statement, he has also supported the prosecution story as narrated in the FIR.

In the cross-examination, PW-4 has explained his appearance as witness in some legal cases. He has stated that in the case of Smt. Janab v. Momina, he appeared being attesting witness of the Will in favour of Momina, who was his cousin sister. With regard to the case filed by Jumman against Khatuna, PW-4 has specifically stated that he appeared as a witness for Khatuna and he had performed the Nikah. In relation to the case State v. Sher Bahadur, PW-4 has stated that he appeared as a witness in favour of Sher Bahadur as Sher Bahadur was not the culprit and in fact he had watered the field. PW-4 in his cross-examination has also stated that he is not aware about any FIR lodged by father-in-law of Mubarak (accused) namely Mushir Khan. Merely because of this, we cannot treat him as a professional witness or that he was inimical to the accused. He has proved the commission of the crime by the appellants.

P.W.-5, Gram Pradhan, has spoken of knowing the accused as also Ashiq Gani. He has stated about deceased having told him about 8-10 days prior to the incident regarding threat being extended by accused Mubarak on account of which he (PW-5 ) has counseled the deceased not to do parivi of case of Ashiq Gani against Mubarak and to get the matter settled. He had himself not seen deceased doing parivi of the said case.

P.W.-2 is the Doctor who treated the injuries of deceased at PHC, Gauriganj, before his death. He has proved Exhibit Ka-2 and Exhibit Ka-3 i.e. the Injury report and Medicolegal report which bear the date 21.01.1988 and time 07:15 P.M. and support the prosecution story and testimony of P.W.-1 and P.W.-4. He has explained the difference in ink used for making entries at the time of patients being brought to PHC and other entries. He has proved requisite entries in O.P.D. register of 21.12.1988 pertaining to deceased. He had produced the O.P.D. register of the said date.

P.W.-9 is the Investigating Officer. He has proved preparation of chick F.I.R. at 07:45 P.M. on 21.12.1988. He has explained about inquest not being undertaken in the night on account of lack of visibility and electricity at the scene of crime. He has stated about leaving Constable Vijay Pal Singh and witness Noor Mohd. at the scene of crime and going to record statements of witnesses in the night, about recovery of cycle of deceased from his house, preparation of recovery memos, Panchayatnama etc., inspection of scene of crime, preparation of site plan. He has truthfully stated that P.W.-3 and P.W.-4 had not accompanied the informant to the Police Station. As regards his statement that none of the eye-witnesses were present during Panchayatnama and the contrary statement of eye-witnesses-P.W.4, this is a minor and insignificant discrepancy. P.W.-4 is not witness to Panchayatnama. P.W.-9 has explained that inquest could not be undertaken in the night as visibility was low on account of low voltage. He has supported the prosecution story.

The ocular evidence as discussed above is corroborated by medical evidence.

The plea of counsel for the appellant that inquest was prepared in two parts only to create the story of Lohband, which was not even recovered by the Investigating Officer, is also not acceptable. The reason for this is that PW-9, the Investigating Officer, has explained why the inquest could not be completed in the night. After lodging of FIR at about 7.45 P.M., the process of inquest was started at about 9.30 P.M. on the same day i.e. 21.12.1988 and the inquest of the body of the deceased could not be concluded because of dim light on account of low electricity voltage in the Hospital premises. This has been narrated by the concerned officer in the inquest report, which is Exhibit No. Ka-14 as also in his statement before the Court as PW-9 (Investigating Officer concerned namely Shiv Lakhan Singh). Before concluding the inquest on 22.12.1988 at 10.15 A.M., the Investigating Officer went to spot and prepared recovery memo i.e. Exhibit No. Ka-12. We are also not persuaded by this plea in lieu of the ocular evidence available on record proving commission of crime by the accused/appellant.

The post mortem was carried out on 22.12.1988 at 3.00 P.M. by Dr. R.N. Sinha. As per the Post Mortem Report, following ante mortem injuries were detected on the body of the deceased:-

ANTEMORTEM INJURIES

(1) Lacerated wound 3.00cm x 1.00 cm x bone deep on right side of fore-head oblique upwards from outer side of right eye brow under-neath skull bone is fractured.

(2) Lacerated wound 1/2 cm x 1/2 cm x bone deep on right cheek 2 cm below and outer to right eye.

(3) Lacerated wound 5 cm x 1.00 cm x bone deep on right side head 7 cm above the right ear. Underneath skull bone fractured.

(4) Lacerated wound 3.00 x 1.00 x bone deep on the top of head 12 cm above from bridge of nose.

(5) Lacerated wound 1.00 cm x 1/2 cm x muscle deep on right side of lower lip of mouth 1cm medial to right angle of mouth.

(6) Multiple abrasions in area of 8 cm x 2 cm on front of left leg just below the left knee joint.

On internal examination of the body, the following was detected on Head and Neck:-

Internal Examination

1. HEAD & NECK

S. N.

1.

Scalp, or Skull

Scalp congested & lacerated under injuries. There is fracture of frontal bone on right side under injury no. 1 & fracture of right parietal bone upto fronto parietal junction underneath injury no. 3.

2.

Membranes

Membranes congested & lacerated under injury no. 1 & 3.

3.

Brain

Congested & clotted blood present inside the cranial cavity.

4.

Base

Middle cranial fossae fractured in continuation with fracture of fronto parietal bone.

5.

Vertebrae

NAD

6.

Spinal Cord

Not exposed.

7.

Additional Remarks.

NIL

The cause of death in the opinion of doctor as mentioned in post mortem report is due to coma, shock and hemorrhage as a result of Antimortem injuries.

PW-7, the Autopsy Surgeon has clearly opined that ante-mortem injury No. 1 to 9 were sufficient in ordinary course to cause death of deceased. Injury No. 1 to 5 could have been caused by blunt object like lathi and injury No. 6 by friction. Such injury (injury No. 6) could have been caused by fall from cycle. This corroborates the testimony of PW-4 as to the blows inflicted by lathis. Most importantly the doctor has thereby mentioned about bleeding from mouth and nose of deceased thereby corroborating the testimony of PW-4 in this regard and reinforcing his truthfulness. He has proved the post mortem report and about the time of death he has stated that it could have occurred at 7.30 P.M. on 21.12.1988 and has thus supported the prosecution story.

Non recovery of weapon, which in the present case is a Lohband, would not be fatal, if other witnesses particularly eye witness have proved the case of the prosecution beyond doubt. It is trite law that if there exists unimpeachable evidence including the evidence of ocular witness corroborated with medical evidence, which proves participation of accused in crime then in that event mere non recovery of weapon does not affect the prosecution case. (vide: Krishna Mochi and others v. State of Bihar; 2002 (6) SCC 81 & Mritunjoy Biswas v. Pranab, (2013) 12 SCC 796 : AIR 2013 SC 3334). In the instant case, the ocular/eye witness- PW-4/Noor Mohammad has proved the case of the prosecution, in our view, beyond doubt, as such, non recovery of Lohband in the instant case by the prosecution would not be fatal. The plea of the learned counsel for the appellant on this count is also unsustainable.

Much emphasis was laid on behalf of the appellant on statement of P.W.-7 that body was received for Post Mortem at 02:00 P.M. but papers were received at 02:00 P.M. to imply ante timing of F.I.R. We have already dealt with this aspect of the matter. The Inquest Report mentions the Case Crime Number. P.W.-9 has denied having prepared the papers after sending body for post mortem. We are not persuaded to hold that FIR was filed for the reasons already given earlier.

As regards P.W.-3 Iqbal Bahadur turning hostile, we find that his examination-in-chief started on 27.10.1989 but could not be completed. It was resumed on 14.12.1989 that is almost one and a half months later. The law enjoins the testimony of a witness to be undertaken on day to day

basis. The Courts have also emphasized about it for obvious reasons, as, long dates or adjournments leave scope for witnesses being won over and/or being coerced/influenced. Moreover, on 13.12.1989 a day prior to resumption of his testimony, an F.I.R. was lodged by wife of deceased (P.W.-1) bearing No.111 (Case Crime Number 192/1989, under Sections- 504, 506 I.P.C. against Iqbal Bahadur (P.W.-3) and others for pressurizing her to desist from doing parivi of the case of her husband, abusing and threatening her with dire consequences. While none of the counsels could apprise us of the status of this case, there is documentary evidence Exhibit Ka-5 on record to show that such an F.I.R. was lodged. Even P.W.-3 has supported the prosecution story and testimony of P.W.-4 to the extent that on 21.12.1988 he alongwith P.W.-4 had gone to Gauriganj Bazar to make purchases for his shop, on bicycle, and was returning to his house at 04:30 P.M. He has also supported the testimony of P.W.-1 and P.W.-4 as to the events which took place after detection of crime and that he and P.W.-4 had also accompanied others with the dead body but he has denied having seen the crime. It would be appropriate to mention here that law is settled that the statement of hostile witness need not be discarded in its entirety. It can be considered in so far as it supports the case of the prosecution as also the defence. In Mrinal Das v. State of Tripura; (2011) 9 SCC 479, the Hon'ble Apex Court held:-

"67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."

Similar view has also been expressed by the Hon'ble Apex Court in the cases of Sathya Narayanan v. State represented by Inspector of Police; (2012) 12 SCC 627, Hardeep Singh v. State of Punjab and others; (2014) 3 SCC 92:(2014) 2 SCC (Cri) 86 & Veer Singh v. State of U.P.; (2014) 2 SCC 455:(2014) 1 SCC (Cri) 846. In view of the aforesaid proposition of law regarding the evidence of hostile witness, we have taken note of the fact that Iqbal Bahadur/PW-3 has specifically stated that he and PW-4/Noor Mohammad went to Gauriganj Market and on the same day they returned therefrom at about 4.30 P.M. This fact has also been stated by PW-4/Noor Mohammad in his statement before the Court, which could not be impeached by the defence during cross-examination. The statement of PW-3/Iqbal Bahadur to this extent supports the case of the prosecution.

It is revealed from the chick FIR dated 21.12.1988 lodged at 19.45 hrs. (7.45 P.M.) on record that the same was sent to the concerned Magistrate as per the provisions of Section- 157 Cr.P.C. on 22.12.1988, which was seen by Chief Judicial Magistrate on 24.12.1988. In this view of the matter, we are of the view that there is no non compliance of Section- 157 Cr.P.C. on the part of police. Even otherwise as we are satisfied that there was no delay in lodging of F.I.R., nor was it ante-timed or ante-dated, even if compliance of Section- 157 Cr.P.C. was delayed, it is not fatal and does not lead us to think that there was prior deliberation and concoction before its lodging. Reference may be made in this regard to the decision of Supreme Court in the case of Balram Singh v. State of Punjab; (2003) 11 SCC 286 where a similar view was taken.

Based on the ocular evidence as corroborated by the medical evidence, it is proved beyond reasonable doubt that the accused/appellant murdered the deceased. Motive on the part of the accused/appellant Mubarak (dead) though not significant in a case of direct evidence is also proved from the testimony of PW-1 and PW-5. Farooq was a friend of Mubarak and also his friend in crime.

We have also read the judgment of conviction, under appeal, dated 30.07.1990, wherein the trial Court after considering the evidence on record particularly the evidence of eye witness-Noor Mohammad/PW-4 has recorded its findings against the accused as under:-

"I carefully examined the evidence of Noor Mohammad. It is consistent from beginning to the end. Even by the cross-examination, the learned defence counsel could not shatter his testimony. Not only this, his testimony finds corroboration of prompt F.I.R., medical evidence and that of Iqbal Bahadur on material particulars of the case. There is a mention in the First Information Report that the deceased was dealt with by the accused persons with Loh-Bandas. Doctor on examination of the deceased found lacerated wounds on the body which correspond with the Loh-Bandas. The witness has stated that the deceased was assaulted by the accused persons with Loh Bandas. Iqbal Bahadur though hostile witness has accepted that he and Noor Mohammad left Gauriganj together and reached the spot at sun set. He has further stated that after the incident they remained till the Investigating officer came to the place of occurrence. With this quality of the evidence I have no hesitation to rely on the testimony of the above witness.

Having examined all aspects of the case, and the evidence adduced by the prosecution, I am of the view that the prosecution has succeeded to establish beyond all reasonable and probable doubts that the accused persons facing the trial, mounted assault on the deceased on 21-12-1988 at about sun-set and intentionally or knowingly caused such bodily injuries which in their ordinary course of nature were sufficient to cause his death and ultimately the injured succumbed to his injuries on the same day at 7.30 PM. in the Primary Health Centre, Gauriganj. I therefore, hold the accused Mubarak and Farooq alias Nanhai guilty of the charge of the offence punishable under section 302 of the IPC read with section 34 of the same Code. They are accordingly convicted under the said section."

We do not find any error in the judgment of the Trial Court.

For the aforesaid reasons, we find no merit in the instant appeal. It is accordingly dismissed. Conviction and sentence of the appellant No. 2-Farroq is hereby confirmed. The appellant No.2-Farroq, who was granted bail by this Court vide order dated 28.08.1990 and thereafter, this Court vide order dated 21.10.2020 issued non-bailable warrant against him as also notice to sureties under Section 446 Cr.P.C. to be executed by the Chief Judicial Magistrate, Sultanpur, which was kept in abeyance by this Court vide order dated 04.02.2021, shall surrender before the trial Court forthwith, failing which he shall be arrested and sent to jail to undergo remaining period of sentence.

The Registry of this Court is directed to communicate this judgment to the Court concerned for necessary action and to send back the lower Court record.

Order Date :- 10.03.2021

Arun/-