Nizam vs State Of U.P.
2021 Latest Caselaw 11206 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 14.9.2021
 
Judgment delivered on 07.10.2021
 
Court No. - 48
 

 
Case :- CRIMINAL APPEAL No. - 2667 of 1988
 
Appellant :- Nizam
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Lal Ji Chaudhary Ac,Lal Ji Chaudhary Ac
 
Counsel for Respondent :- A.G.A
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

Pre: Hon'ble Mr. Justice Syed Aftab Husain Rizvi

1. Heard Sri Lal Ji Chaudhary, learned Amicus Curiae for the appellant, learned A.G.A. for the State and perused the record.

2. This criminal appeal has been filed against the judgment and order dated 16.11.1988 passed by Ist Additional Sessions Judge, Aligarh in Session Trial No. 70 of 1987 and connected Session Trial No. 659 of 1987 convicting and sentencing the appellant to undergo life imprisonment under section 302 IPC.

3. In brief the prosecution case is that complainant Sultan gave an application dated 16.5.1986 at P.S. Harduwaganj alleging therein that on 15.5.1986 at 8:35 P.M. his younger brother Saddiq has gone to fetch bidi from the shop situated beneath the mosque. When he was coming back and reached near the house of Mazhar Husain, then Nizam resident of Jalali, P.S. Harduwaganj who is a bad character and criminal and Saddiq used to desist him from such acts, stabbed Saddiq with knife. On cries of Saddiq complainant, Shakir, Shabbir and other persons came there and Nizam ran away. When Saddiq was taken to hospital he died there. Before his death Saddiq has said that Nizam has inflicted knife blows on him.

On the aforesaid information Case Crime No. 96 of 1986, under section 302 IPC was registered against accused Nizam. Investigation of the case was conducted by S.I. Dal Chand. The inquest proceeding of the dead body was conducted and related papers were also prepared and body was sealed and sent for postmortem examination. The Investigating Officer recorded the statements of complainant and other witnesses, visited the place of occurrence and prepared the site plan. Accused Nizam was arrested by the police station Quarsi, District Aligarh and on his interrogation by the Investigating Officer he disclosed that the knife used in the incident has been concealed by him and at his instance on 19.5.1986 at 8:00 P.M. one knife with blood stains was recovered from the ''Chhappar' in the house of Nanna, the maternal uncle of accused Nizam. Memo was prepared and knife was sealed and sent for forensic examination. Nanna was also implicated as an accused and after completion of investigation separate charge-sheet under section 302 IPC was filed against Nizam and Nanna.

Two session trial nos. 70 of 1987 and 659 of 1987 committed to the court of session were consolidated.

The trial court framed charge under section 302 IPC against accused Nizam and under section 302/34 IPC against accused Nanna.

The prosecution produced 7 witnesses who have proved 9 prosecution papers Ex. Ka-1 to Ex. Ka-9 and one material Exhibit (Knife). Statements of accused under section 313 Cr.P.C. were recorded in which they denied the prosecution case and statements of witnesses. Accused Nizam has also said that witnesses are deposing against him due to enmity. One defence witness Aharpal Singh, Junior Engineer has been produced as D.W. 1. The learned trial court by the impugned judgment has convicted accused Nizam under section 302 IPC and sentenced him to life imprisonment while acquitted accused Nanna from the charge under section 302/34 IPC.

4. The conviction of accused Nizam is under consideration in this appeal.

5. Postmortem of deceased Saddiq has been conducted on 16.5.1986 at 5:00 P.M. by Dr. I.H. Qureshi who has appeared as P.W. 5 and has proved the postmortem report as Ex. Ka-12.

According to postmortem report the age of the deceased was about 45 years. In external examination Average built body, rigor mortis was present in both upper and lower extremities, eyes closed, mouth half open, abdomen slightly distended, no signs of decomposition. Following ante mortem injuries were present on the body of the deceased:

1. Incised wound 1½ cm. X ½ cm x muscle deep on the right side chest, 1 cm. above right nipple.

2. Incised wound 5 cm. X 1½ cm. X chest cavity on the right side lower chest, 11 cm. below right nipple.

3. Incised wound 4 cm. X 1½ cm. X abdomen cavity on the left side upper abdomen, 12 cm. above umbilicus.

4. Incised wound 3½ cm. X 1 cm x abdomen cavity on the left side upper abdomen, 1½ cm. behind injury no. 3.

5. Incised wound 5 cm. X 1½ cm. X muscle deep on the middle of abdomen, 1½ cm. below the umbilicus.

6. Incised wound 3 cm. X 1½ cm. x abdomen cavity on the right side lower abdomen, 3 cm. above right anterior superior iliac spine.

on internal examination peritonium was lacerated. In the cavity of abdomen 1½ pint partially clotted blood mixed with faecal matter was present. Stomach was lacerated at two places. Small intestine was lacerated and gases and fluid were present. Large intestine was lacerated and gases and faecal matter were present. Pancreas was lacerated on upper part. Gall bladder was half full . Bladder was half full of urine.

In the opinion of doctor the death was due to shock and haemorrhage as a result of ante mortem injuries and duration of death was about one day. Dr. I.H. Qureshi has also said in his examination in chief that the injuries of the deceased may come on 15.5.1986 at 8:35 P.M. with knife and these injuries were sufficient to cause death.

6. To prove its case the prosecution has produced 7 witnesses out of which 3 are public witnesses. Saira (P.W. 1) is the daughter of deceased. In her examination-in-chief she has said that incident is of 1 year and 20 days earlier. It was 8:30 P.M. she with her mother was sitting on the roof of her house at Jalali. At that time she was unmarried. The shrieks of her father were heard from street beneath. She and her mother peeped down from the roof and saw that Nizam was stabbing his father. Two other persons were keeping him down and a third one was standing. She did not recognize any of these three. She and her mother came down. Accused Nizam said accosting her father that he was in habit of making complaint against him to the police. Her father has also told her and her mother that Nizam has stabbed him with knife and three persons were also with him. Shakir, Sultan and Shabbir also reached there. Her father died on the spot.

7. Nanhi (P.W. 2) is the wife of the deceased. In her examination-in-chief she has said that incident is of one year and one month earlier. It was 8:30 P.M. she was on the roof of her house with her daughters Saira and Aisha. She heard cries from the street then she peeped from the roof and came down from the roof where she saw Nizam holding a knife in his hand. Three persons were also with him. Her husband was lying injured on the ground. Nizam was saying that he was informant of the police and used to complain against him. She has also saw Nizam stabbing her husband with knife. There was light of the electric bulb in the street due to Ramzan. At the time of occurrence her brother-in-laws (Dewar) Shakir and (Jeth) Shabbir and Sultan also came there. Her dewar and Jeth carried her husband to the hospital but he died on the way.

8. Sultan (P.W. 3) is the complainant and brother of the deceased. In his examination-in-chief he has said that his brother Saddiq was murdered more than a year ago. He got the report of this incident scribed by Om Niwas, who wrote it on his dictation and after hearing it he put his thumb impression on it and submitted it at police station Harduwaganj. Witness has proved the report as Ex. Ka-1. In his cross-examination the witness has also given the eye witness account of the incident and has said that he himself has seen the accused stabbing Saddiq with knife and thereafter he ran away.

9. S.I. Dal Chand (P.W. 4) is the Investigating Officer. The witness has stated that he reached at the place of occurrence on 15.5.1986 at 9:00 P.M. He has received the information at police outpost. The dead body of the deceased was near bus stand Jalali. The relatives of the deceased have carried him to the hospital and were returning from there because of his death. He has further stated that he got the copy of chik report on 16.5.1986, conducted the inquest proceedings of the dead body and prepared the related papers, sealed the dead body and sent it for postmortem examination. Recorded the statements of other witnesses. This witness has further stated that on 19.5.1986 he got the information that accused Nizam has been arrested by police station quarsi then he proceeded for police station quarsi and recorded the statement of accused Nizam and at his instance recovered the knife which was blood stained and used in the murder of Saddiq from the Chhappar of co-accused Nanna. He prepared the memo and also prepared the site plan of the said place of recovery. After completing the investigation submitted the charge-sheet.

10. Head constable Liyaqat Ali (P.W. 6) is the formal witness who has prepared the chik and G.D. and has proved the documents. Constable Sukhram Singh (P.W. 7) is also a formal witness who has stated that the dead body was handed over to him by S.I. Dal Chand and he carried it for postmortem examination.

11. Saira (P.W. 1) and Nanhi (P.W. 2) have given the eye witness account of the incident. They have said that they were on the roof of their house and on hearing noise and shrieks from the way (Rasta) they peeped down and saw accused Nizam stabbing Saddiq with a knife. They came down, then they heard Nizam saying that he (deceased) used to complain to the police. They have further said that they saw Nizam stabbing Saddiq with knife. Shakir, Shabbir and Sultan also came there. In the site plan Ex. Ka-8 the place of occurrence has been shown with sign X ''A' in the Rasta in front of Baithak of the house of Mazhar Husain. The house of the deceased is in its west after the house of Chandrapal. The distance between the place of occurrence and the house of deceased is not shown in the site plan but the Investigating Officer S.I. Dal Chand (P.W. 4) in his cross-examination has said that distance between house of deceased and X ''A' is 6 paces. So the place of occurrence is near the house of deceased and the witnesses have said that on shrieks they peeped down from their roof and saw the accused Nizam stabbing Saddiq. Witnesses have further said that they came down in the Gali and saw the accused stabbing Saddiq. As the place of occurrence is near the house of witnesses their presence and seeing of occurrence is natural and probable. It has also come in the evidence that incident is of Ramzan and after Iftar and Maghrib prayer the witnesses have come on the roof of the house. The incident is of the month of mid May the summer season, so it is also probable that after Iftar and offering prayer the witnesses may have come on their roof to relax. Although these witnesses are the daughter and wife of the deceased and hence related and interested witnesses but considering the aforesaid facts it does not matter because their presence at the place of occurrence is natural and probable. It has also come in the evidence that in the east of the house of the deceased Rasta is slightly deviated so there may be a possibility that place of occurrence may not be visible from the roof of the house of the deceased but this fact has been categorically ruled out by the Investigating Officer S.I. Dal Chand (P.W. 4) in his cross-examination. The defence has put a specific question on this point and the witness in answer of that question has said that he himself has peeped down from the roof of the house of the deceased Saddiq and verified that place of occurrence was visible from there. So the oral statements of P.W. 1 Saira and P.W. 2 Nanhi also got corroboration from the aforesaid statement of Investigating Officer. The name of Saira and Nanhi are not mentioned in the FIR as witnesses but this fact has also been explained by the complainant Sultan (P.W. 3) in his cross-examination. He has said that he has written name of Shakir and Shabbir as witnesses in the report. He has also seen the wife of deceased at the place of occurrence. The daughter of deceased was also present there. He has not written the name of ladies in the report because he does not want that female members of the family should go in the court. So the explanation of absence of the names of witnesses Saira and Nanhi in the FIR as given by the complainant Sultan (P.W. 3) is also sufficient and this fact also does not affect the reliability of these witnesses. Sultan (P.W. 3) in his cross-examination has said that he himself has seen the occurrence. He has specifically said that he has seen Nizam stabbing his brother Saddiq with knife. In the FIR it is mentioned that on the shrieks of Saddiq he, Shakir and Shabbir reached there and seen the accused Nizam running away. In the FIR it is alleged that on hearing the shrieks of his brother when he, Shakir and Shabbir and others reached there Nizam ran away from there. So from the allegation of the FIR it appears that witness Sultan (P.W. 3) saw Nizam running away from the place of occurrence. He may have not seen the incident but he reached at the place of occurrence at the very moment and saw his brother in injured condition and Nizam running away from there.

12. Learned counsel for the appellant contended that the incident is of 8.30 P.M. Witnesses Saira (P.W. 1) and Nanhi (P.W. 2) have said that they have seen the occurrence in the light of electric bulb fitted on a pole in the Rasta while in the FIR there is no description of light of electric bulb. Contrary to it in the FIR it is mentioned that complainant and his companion saw Nizam running away in the light of torch. So the prosecution evidence is contradictory and there are major discrepancies regarding source of light. Learned counsel further contended that the defence has produced the evidence that at the time of occurrence there was shut down of electricity in Jalali town as the work of changing of transformer was in progress. So there was no source of light at the place of occurrence. The incident is of darkness so witnesses have no opportunity to see or identify the accused and identification of the accused is doubtful.

Learned A.G.A. submitted that in the FIR complainant Sultan has mentioned that he has seen the accused Nizam running away in the light of torch while other witnesses have said that an electric bulb was on in the Rasta and they have seen the occurrence in the light of electric bulb. There is no contradiction between the two statements. Further Investigating Officer has also shown the place where the electric bulb was on by sign X ''B'. He further contended that the documents produced by Aharpal Singh (D.W. 1) have so many discrepancies which the witness has admitted in his cross-examination, so no reliance can be placed on this evidence.

In the FIR it has been alleged that Nizam was seen in the light of torch while fleeing. It also appears from the perusal of original Tahreer that this particular line is an addition after completion of the whole contents which makes it doubtful. So torch as source of light is not reliable. The witnesses Saira (P.W. 1) and Nanhi (P.W. 2) in their statements have stated that they have seen the occurrence in the light of electric bulb which was fitted on a wooden pole on the Rasta. The Investigating Officer in site plan Ex. Ka-8 has also shown this with sign X ''B' and its height is mentioned as 15 fit. In the site plan the distance between place of occurrence and the electric bulb is not shown but S.I. Dal Chand (P.W. 4) in his cross-examination has told this distance 8-9 paces. So it is established that near the place of occurrence there was an electric pole fitted with an electric bulb. Now the question comes whether the electricity supply was continued or disrupted at the time of occurrence.

The defence has produced Aharpal Singh, Junior Engineer (D.W. 1) who has said in his examination-in-chief that on 15.5.1986 he was posted as Junior Engineer in sub-station Akrabad and has brought the log sheet register of 15.5.1986 which is maintained by Sub-Station Officer Harpal Singh. He has further stated that there were two feeders of sub-station. From one feeder electricity was supplied to Gopi while from the other it was supplied to Akrabad and electricity supply to Jalali was from Akrabad feeder. The witness has further stated that according to entry of Log-sheet register on 15.5.1986 both the feeders were shut down at 18:10 because transformer of sub-station was being changed and Mr. Om Prakash of E.C.E. Company has come for this work. Both the feeders were again started at 21:30 after change of transformer. He was present at that time because he was incharge. Om Prakash the representative of E.C.E. Company signed it after restoration of electricity. The witness has filed the copy of log sheet register and has proved it as Ex. Kha-2. From the examination-in-chief of this witness coupled with the documents produced by him it appears that there was shut down of Akrabad feeder from 18:10 to 21:30 and there was no electricity in Jalali town at 8.35 P.M. This witness in his cross-examination has admitted that there are certain discrepancies in the log sheet register produced by him. He has also specifically said that there was supply of 3 phase light on that day from Akrabad and Gopi feeders till 9:30 P.M. and two phase supply was restored at 22 O'clock. The above statement of cross-examination contradicts his statement of examination-in-chief that there was no electricity supply from Akrabad feeder from 6.10 to 9.30 P.M. So the evidence produced by the defence that at the time of occurrence there was no electricity supply is not reliable.

Even if it is presumed that there was no electricity supply at the time of occurrence, it is clear from the evidence that accused and witnesses were well known to one another. It is not necessary that a person could be identified only by his face. A person can be identified through his appearance, gestures and voice also. It is also clear from the evidence that Saira (P.W. 1) and Nanhi (P.W. 2) had the opportunity to see the accused from proximity. They have also heard his voice as he uttered some words while stabbing the accused. So they have full opportunity to see and identify the accused even if there was no light. Further it is not a case of one or two stabbing and incident has not occurred in a moment. 6 incised wounds have been found on the body of the deceased in the postmortem report. It establishes that deceased was repeatedly stabbed by the accused and it is not a case of hit and run. The accused remained on the spot for sometime and also made some statements so there was ample opportunity for witnesses to see and identify him. It is also pertinent to mention that although FIR has been lodged on the application of the complainant on 16.5.1986 at 2:10 but the perusal of the record reveals that prior to it an oral information was given by the complainant Sultan that his brother Saddiq has been stabbed with knife by Nizam and seriously injured and has been taken to district hospital on a cot. This oral information was entered in G.D. No. 16 at 21 O'clock on 15.5.1986. A copy of the said G.D. is on record. It clearly establishes that the information of the incident was promptly given at the police station just within half an hour of the incident by Sultan, brother of the deceased and in this information the name of the accused Nizam has been mentioned as culprit. So the involvement of the accused was certain from the very beginning. Considering the entire facts and evidence on the point it is quite clear that there is no doubt about the identification of the accused and hence, source of light does not matter.

13. Learned counsel for the appellant further contended that there are major contradictions between the statements of P.W. 1 Saira and P.W. 2 Nanhi. Saira (P.W. 1) in her cross-examination has said that she fell down on the dead body of her father and her clothes were stained with blood. She has shown her clothes to the sub-inspector. Clothes of her mother were also blood stained. Her mother has also broken her bangles at the dead body of her father, while Nanhi (P.W. 2) in her cross-examination has said that she has not fell down on the body of her husband. No broken bangles have been found by the Investigating Officer at the place of occurrence. Further Saira (P.W. 1) in her statement has stated that her father died on the spot while Nanhi (P.W. 2) has stated that her husband died on the way to the hospital. Learned counsel also contended that it has also come in the evidence that incident has occurred in front of Baithak of Mazhar Husain while people remain in Baithak of Mazhar Husain till 11:00 P.M. but no other independent/public person has been made a witness nor examined. On these grounds learned counsel submitted that statements of Saira (P.W. 1) and Nanhi (P.W. 2) who are related and interested witnesses can not be relied on.

Learned A.G.A. contended that it has come in the evidence that at the time of occurrence no one was present in Baithak of Mazhar Husain. It is also clear from the evidence that the incident is of month of Ramzan and people remain busy in prayers at the relevant time. He further contended that the contradictions or discrepancies in the statements of Saira (P.W. 1) and Nanhi (P.W. 2) are not of such a nature which create doubt about their reliability. Some minor contradictions or discrepancies are natural so only on this ground the oral testimony which is otherwise consistent can not be disbelieved.

It is settled principle of law that oral testimony of a witness can not be outrightly rejected merely on the ground that he is an interested or related witness. What is required is a cautious scrutiny. Some minor contradictions or discrepancies are natural in the statements of witnesses . The contradictions or discrepancies as pointed out by the learned counsel for the appellant only indicate that witness Saira (P.W. 1) has exaggerated some facts but the testimony of the both the witnesses on material points are consistent. If scrutinized as a whole it inspires confidence and it is established from their evidence that first they have seen the occurrence from the roof of their house and thereafter they came down and saw it from beneath. They have seen the accused stabbing Saddiq and they have identified the accused. Their oral testimony also stands corroborated by the medical evidence on record according to which 6 incised wounds have been found on the body of the deceased and his death has occurred due to ante mortem injuries. The doctor has also confirmed the date, time and weapon used in the incident. So the oral statements of the witnesses are reliable and can not be discarded on some minor contradictions or discrepancies.

14. Besides the ocular testimony there is another piece of evidence. All the 3 public witnesses Saira (P.W. 1), Nanhi (P.W. 2) and Sultan (P.W. 3) have said that Saddiq said to them that Nizam has stabbed him with knife. It is also established from the evidence that all these three witnesses have reached at the place of occurrence, so it also appears to be natural and probable that Saddiq in injured condition had told them the name of person who stabbed him. This evidence is relevant Under Section 32 of the Evidence Act and is reliable.

15. Prosecution has also produced the evidence of recovery of the weapon i.e. knife used in the incident. Recovery has been made by the Investigating Officer at the instance of the accused at his pointing out from the Chhappar of co-accused Nanna. The knife was blood stained and was sent for forensic examination. The report of forensic examination is also on record which confirms that the human blood was found on the aforesaid knife. The fact of the recovery has been proved by S.I. Dal Chand (P.W. 3). This evidence further corroborates the prosecution case.

16. Learned counsel for the appellant placed reliance on citation of Hanuman Govind, Nargundkar and another Vs. State of M.P. 1952 0 AIR (SC) 343 in which it has been held that:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. - Circumstantial evidence-Appreciation of-When sufficient for conviction. - Sections 18, 24-Admission of confession to be taken as a whole."

The ruling cited by the learned counsel for the appellant relates to circumstantial evidence while in this case the prosecution case is based on ocular testimony, hence this ruling has no application.

17. The evidence produced by the prosecution is reliable. The ocular testimony stands corroborated with medical evidence. There are also supporting evidence in the form of statement of the deceased about his death and the recovery of knife used in the incident and from prosecution evidence the guilt of the accused stands proved. The learned trial court has fully discussed and properly appreciated the entire evidence on record. The learned trial court has also analysed all the defence arguments and the findings recorded by the trial court are just and proper. There is no illegality or perversity in the findings recorded by the trial court which is liable to be upheld. The criminal appeal is liable to be dismissed.

18. According, this criminal appeal is hereby dismissed.

19. The accused is absconding and is not traceable. Proceedings against his sureties are pending which shall be put to a logical end. The trial court shall issue standing warrants against him and on his arrest he will be lodged in jail to serve out his sentence.

20. The lower court's record along with copy of the judgment be transmitted to the trial court immediately.

21. We appreciate the assistance rendered by Sri Lal Ji Chaudhary, Amicus Curiae. State Government is directed to pay him Rs. 7,000/- as his remuneration.

Dated: 7th October, 2021

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