Firoj vs State Of U.P.
2021 Latest Caselaw 11146 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                               
 
                                           				 A.F.R.                       
 
 							Reserved on :-  07.09.2021 					                         Delivered on :- 28.09.2021
 
Court No. - 76
 

 
Case :- JAIL APPEAL No. - 147 of 2021
 

 
Appellant :- Firoz
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail,Amicus Curiae,Deepesh Kumar Ojha,Seema Pandey
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ajai Tyagi,J.

This criminal appeal has been filed by the appellant against the judgment and order of Additional Sessions Judge, Court No. 8, Bulandshahr passed on 17.10.20219 in Session Trial No. 257 of 2018 (State of U.P. Vs. Firoz) arising out of Case Crime No. 519 of 2017, under Section 302 I.P.C., Police Station- Aurangabad, District- Bulandshahr by which learned trial court convicted and sentenced the appellant for seven years rigorous imprisonment and Rs. 3000/- fine (Three months rigorous imprisonment in default of fine) under Section 304 Part (2) I.P.C.

2. The brief facts of the case are that the complainant Munna submitted written report at Police Station- Aurangabad, District- Bulandshahr on 03.10.2017 stating that on that day at about 3:00 p.m. his wife Akbari and his son Firoz were in the house. Firoz was asking money from his mother Akbari then Akbari said that she had no money for his ''Awaragardi'. On refusal Firoz started ''Maar-peet' with his mother Akbari due to which Akbari died. Her dead body is lying in the house.

3. On the basis of above report the Case Crime No. 519 of 2017 was registered at Police Station- Aurangabad, District- Bulandshahr under Section 302 I.P.C. After investigation, Investigating Officer submitted charge sheet under Section 302 I.P.C. Learned trial court framed charge under Section 302 I.P.C. against the appellant Firoz and he was put on trial. After trial learned trial court found offence under Section 304 Part (2) I.P.C. proved and appellant was convicted and sentenced under Section 304 Part (2) I.P.C. for seven year. Hence this appeal.

4. Heard Shri Deepesh Kumar Ojah learned Amicus Curiae for appellant and Shri Arun Kumar Singh learned A.G.A. for State and perused the record.

5. Learned counsel for appellant made submission that appellant has been falsely implicated in this case. All the witnesses in this case are hostile. It is further argued that PW-1 Munna was examined by trial court, he has turned hostile and did not support the prosecution case. During his cross examination, he has denied from this statement recorded by Investigating Officer under Section 161 Cr.P.C. It is also further argued that PW-1 Munna has also the informant of this case but he has said in his statement that he put his thumb impression on plain paper and one Khalid wrote the report on that paper because he is illiterate. No other witness of fact has been produced by prosecution. In this way there is no evidence against the appellant and trial court wrongly convicted him.

6. Learned counsel for appellant also said that it has come in the evidence of PW-1 Munna that his wife was cutting vegetables by sitting under the handle of hand-pump. When she rose up, the handle hit on her head and she got fatal injury. It is also argued that Dr. K.K. Singh conducted the postmortem of deceased Akbari and prepared postmortem report. He has examined as PW-7. He has also given opinion in his cross examination that injury sustained by the deceased could be the result of hit the head by hard and blunt object such as the handle of hand-pump. With this argument learned counsel prayed for allowing the appeal and acquittal of appellant.

7. No other argument was advanced by appellant.

8. Learned A.G.A. submitted that PW-1 Munna is informant of this case, in his examination-in-chief he has proved the F.I.R. and in cross examination he has turned hostile out of love and affection of his son. It is further submitted that it is not worth believing that any lady will cut vegetables by sitting under the handle of hand-pump. She could sit near hand-pump but it was not natural to sit under the handle of hand-pump. It is the story fabricated by PW-1 to save his son. Learned A.G.A. further argued that appellant remained absconded for so many months after the occurrence. His conduct also shows that he is guilty of the offence and learned trial court has rightly convicted the appellant. Hence appeal be dismissed.

9. Prosecution case is that Munna, the informant, lodged first information report at police station stating that his son Firoz was asking money from his mother (wife of informant). On her refusal, Firoz started ''Maar-peet' with her due to which she sustained fatal injuries and died. This written report was submitted by Munna which is Exhibit KA-1. During investigation it was found that deceased Akbari was hit by ''Danda' which was recovered by Investigating Officer on the pointing out of Firoz from his house and recovery memo Exhibit KA-11 was prepared.

10. Prosecution produced informant Munna as PW-1 who is said to be only eye witness of the occurrence. In his examination-in-chief PW-1 Munna supported the prosecution version and exactly repeated the contents of first information report. He has proved the contents of first information report in his statement and admitted his thumb impression on that. His cross examination could not be recorded on the same day and it was deferred. Cross examination of PW-1 was recorded nearly after 17 days in which PW-1 turned hostile. In his cross examination he has said that at the time of said occurrence he was out of home and accused did not ask money from his mother in his presence nor he committed any ''Maar-peet' with his mother. PW-1 has further said that at the time of occurrence his wife Akbari was cutting vegetables by sitting under the handle of hand-pump when she rose up handle of hand-pump hit on her head. On making cross examination by Additional District Government counsel, PW-1 said that Investigating Officer did not record his statement under Section 161 Cr.P.C. PW-1 has also stated that appellant was falsely implicated by scribe of F.I.R. Mohd. Khalid and other villagers due to any enmity.

11. There is no other eye witness in this case. Other witness as PW-2, PW-3 and PW-4 are witnesses of inquest report, rest of the witnesses are formal witnesses.

12. Learned counsel for appellant has mainly put his argument on the basis of hostility of informant PW-1 Munna. Learned trial court has very carefully and cautiously scrutinized the evidence of PW-1 because if witness has turned hostile, his testimony cannot be brushed side. It is settled law that the testimony of hostile witness cannot be rejected in toto only on the basis of hostility but it may be accepted as far as it supports the case of prosecution or defence. In Krishna Chand Vs. State of Delhi reported in A.I.R. 2016 Supreme Court 298, the Hon'ble Supreme Court has stated that the mere fact that witness is turned hostile by the party calling him and allowed to be cross examined does not make him unreliable witness so as to exclude his evidence from consideration altogether.

13. In Krishna Mochi Vs. State of Bihar reported in (2002) 6 SCC 81, It was held that it is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons.

14. Hon'ble Apex Court has held in State of U.P. Vs. Ramesh Mishra and another reported in A.I.R.1996 SC 2766 that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistence with the case of the prosecution or defence may be accepted.

15. Hence it is settled law regarding the evidenciary value of a hostile witness that reliance can be placed on the evidence of hostile witness, if court finds that it is not completely shaken. It is rule of caution that evidence of hostile witness should be closely scrutinized and it can be acted upon if some corroboration is also found because the courts cannot shut their eyes to the reality. Court shall not stand as a mute spectator if a witness becomes hostile and every effort should be made to bring home the truth.

16. Learned trial court, after careful scrutiny of the evidence of PW-1, has reached the conclusion that his testimony cannot be set aside as a whole. PW-1 Munna has fully supported the case of prosecution in his examination-in-chief. Although PW-1 Munna has denied his presence at the place of occurrence in his cross examination and has also stated that he did not see the occurrence but it has to be kept in mind that appellant is son of PW-1 and love and affection with the same can be a reason to become hostile along-with any other reason but after being declared hostile even in cross examination by Government Advocate, PW-1 Munna has admitted that appellant Firoz was asking money from his mother and he was desperate in asking for money.

17. As far as first information report is concerned, although in his cross examination PW-1 has stated that the scribe of F.I.R. Khalid got his thumb impression on a blank paper and he does not know what he had written on it later on. But this statement of PW-1 cannot be believed because in his examination-in-chief he has specifically stated that he had lodged first information report at Police Station- Aurangabad regarding the occurrence. Moreover as per examination-in-chief, written report paper no 4A/3 was shown to the informant PW-1 and it was read over to him. Then he said that it is the same written report which he had submitted in police station. He has also admitted his thumb impression on it. Moreover PW-1 has further said that this report was written by Abdul Rashid on his dictation. In this way PW-1 has legally proved the submission of written report at police station and its contents also. Hence despite PW-1 being turned hostile, his testimony still supports the prosecution case.

18. PW-1Munna has twisted the manner of occurrence in cross examination and has stated that his wife deceased Akbari was cutting vegetables by sitting under the handle of hand-pump and when she rose up, her head hit the handle of hand-pump and she sustained fatal injuries but this cooked up story cannot be believed at all. Site plan was prepared by Investigating Officer on pointing out of PW-1 which is Exhibit KA-10. According to site plan Exhibit KA-10 occurrence took place in the courtyard of informant's house while hand-pump is shown to be located inside the bathroom so it cannot be believed that a lady will cut vegetable by sitting under the handle of hand-pump that too inside the bathroom.

19. Learned trial court has also opined regarding above version that this was not possible and this was not worth believing also. I am fully convinced with the opinion of learned trial court in this regard.

20. It is also very pertinent to note that occurrence took place at 3:00 p.m. on 03.10.2017 and first information report was lodged at 4:00 p.m. on the same day. It means that F.I.R. was lodged just after one hour of the occurrence. So there was no occasion or time with informant to falsely implicate the appellant. Learned counsel for appellant has argued that Dr. K. K. Singh PW-7 said in his statement that injuries sustained by deceased could be inflicted by hard and blunt object like handle of hand-pump. But the perusal of statement of PW-7 Dr. K. K. Singh shows that he has stated the injury could be sustained by hard and blunt object like handle of hand-pump but it does not mean that if a lady rises up and her head is hit in the handle of hand-pump, then she could sustain fatal injury. The purpose of making above statement by Dr. K. K. Singh was that injury could be sustained if handle of hand-pump is used as hard and blunt object by force. Hence, I find no force in above argument of learned counsel for appellant and learned trial court has rightly appreciated the evidence in this regard that fatal injury to deceased could not be the result of hitting the handle of hand-pump in her head in the way as told by PW-1 in his cross examination.

21. The testimony of PW-1 Munna supports and proves the prosecution version even if he has turned hostile but for seeking corroboration it is important to consider some circumstances which took place in this case. One important circumstance is that presence of appellant at the date, time and place of occurrence is not denied by informant even in his statement. He has also said asking of money by appellant from his mother in his statement. It is another very important circumstance against the appellant that he did not attend the funeral/cremation of his deceased mother. Appellant was arrested after more than four months of the occurrence because he was absconded after the occurrence. So not attending the cremation of his mother and remaining absconded for more than four months after occurrence indicates that he was absconding to avoid his arrest. This circumstance also goes against the appellant.

22. The informant PW-1 has said that scribe of F.I.R. Mhd. Khalid took his thumb impression on a blank paper and later on had written report on it. As discussed above, the informant has fully proved the written report and moreover informant could not establish any enmity between the appellant and Mhd. Khalid due to which Khalid could implicate the appellant falsely. F.I.R. of this case was lodged very promptly. The ''Danda' used in crime was recovered from the house of the appellant on his pointing out. The injury sustained by deceased Akbari was single injury on the right side of her head which was of sized 4cm x 3cm and it was contusion. Such type of injury was possible to be inflicted by ''Danda', recovered from appellant's house.

23. Perusal of judgment of trial court shows that learned trial court has scrutinized the testimony of PW-1 very closely and carefully and I am fully convinced with the conclusion of learned trial court holding appellant guilty. Learned trial court sought very relevant corroboration by circumstantial evidence also in scrutinizing evidence of PW-1. It is correct that deceased sustained only a single blow on her head and weapon used in the crime is ''Danda'. It means appellant gave a single blow of ''Danda' to his mother. Hence it can be opined that appellant had no intention to kill his mother but he had knowledge that by inflicting such injury death could be caused. Hence learned trial court has rightly convicted the appellant for the offence under Section 304 Part (2) of I.P.C. and sentenced him accordingly.

24. Hence, I find no merit in this appeal because learned trial court has rightly appreciated the evidence on record and rightly convicted and sentenced the appellant and appeal is liable to be dismissed.

25. Accordingly, this criminal appeal sans merit and is dismissed.

(Ajai Tyagi, J.)

Order Date :- 28.09.2021

Sharad/-