Shafique And Another vs State Of U.P.
2022 Latest Caselaw 1576 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 04.04.2022
 
				                           Delivered on 27.04.2022
 
Case :- CRIMINAL APPEAL No. - 2247 of 2007
 
Appellant :- Shafique And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- V.P. Gupta,A.Kumar Srivastava,Irshad Husain,Joveen Singh,Manish Joshi,Msnish Kr. Pandey,Nasira Adil,Syed Imran Ibrahim,V.K.Upadhyay
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Om Prakash-VII,J.

Hon'ble Narendra Kumar Johari,J.

(By Om Prakash-VII, J.)

1. This criminal appeal has been preferred by the accused appellants against the judgement and order dated 19.3.2007 passed by the Additional District Judge / Special Sessions Judge, J.P. Nagar in Session Trial No. 181 of 2003 (State vs. Shafique and another) convicting and sentencing the appellants for the offence punishable under Section 302 IPC to undergo life imprisonment and a fine of Rs. 10,000/- each with default clause.

2. The facts of the case, as unfolded by the informant Javed Alam son of Naseem Ansari in the First Information Report (in short 'F.I.R.'), are that his father was Muezzin of Masjid Ek Minar Qureshi of mohalla Naseem Malik. On 6.2.2003, as usual, he had gone to Masjid and at about 5.15 a.m. as soon as he opened the door of Masjid, Shafique and Anis sons of Shamim Ansari, resident of Mohalla Qureshi, who were standing on the way alongwith country made pistol, fired upon the father of the informant due to which he fell down on the spot and was dead. Shafique and Anis were vagabond type of persons. Since Anis wanted to marry with the sister of informant but due to his vagrancy, father of informant beat him with danda and also denied for marriage. Due to this reason, they killed his father. Informant and his uncle Naim had witnessed the incident. Accused ran away from the spot. There was a stampede in the locality and panic spread in general public.

3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-3) was registered at Police Station concerned on 6.2.2003 at 6.20 a.m. mentioning all the details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time.

4. Investigation of the matter was conducted by Inspector Maniram Rao. He alongwith other police personnel proceeded to the place of incident on the same day and prepared the inquest report (Ext. ka-5). The Investigating Officer also prepared photo lash (Ext. ka-7), challan lash (Ext. Ka-6), sample seal (Ext. ka-10), letter to Chief Medical Officer, for post-mortem (Ext. ka-9), letter to R.I. (Ext. ka-8). The dead body was kept in sealed cover and was dispatched through constable Kartar Singh and Prem Singh alongwith the police papers for post mortem. Site plan (Ext. Ka-13) was also prepared. The Investigating Officer also took the sample of plain earth and bloodstained earth and the four pieces of bat of country made pistol, two piece of iron leaf, two screws, two pieces of empty cartridges from the place of occurrence and also prepared the memo in this regard.

5. Autopsy report (Ext. ka-2) was prepared after conducting the post mortem on 6.2.2003 at 4.00 p.m.

6. As per the post mortem report, the deceased was of 65 years old and was average built, probable time of death was about 12 hours. On external examination, rigor mortis was present on both upper and lower limb. Right eye was open and left was closed.

7. On examination of the dead body of the deceased, following ante-mortem injuries were found:

"(1) LW 3 cm x 3 cm perforating through scull cavity (cranium) over right temporal region of head. Tattooing and blackening present loss of skin in area (wound of Entry).

(2). LW 2 cm in diameter over right angle of mouth, tattooing and blackening (wound of entry).

(3). LW 3 cm x 1 ½ cm perforating into throat (pharynx) no blackening, no tattooing (wound of entry).

(4). Perforating wound 1.5 cm x 1.0 cm over right side abdomen 7 cm from umbilicus right side and 20 cm below right nipple. With blackening and tattooing (wound of entry).

(5). Perforating wound 1.0 cm x 1.0 cm right side on lower back 1.0 cm from mid-line right side and 23 cm from INF angle of right scapula, no blackening no tattooing (wound of exit).

(6). LW 3.0 cm x 1.0 cm over occipital scalp deep. Bleeding from both nostrils, ears and mouth. Rest NAD."

8. In the opinion of the doctor, death was caused due to shock and hemorrhage as a result of ante-mortem injuries.

9. After completion of the investigation, charge-sheet (Ext. ka-14) against the accused appellants was filed. Concerned Magistrate took cognizance and the case being exclusively triable by Sessions Court, was committed to the Court of Sessions.

10. Accused/appellants appeared and charge under Section 302 IPC was framed in the trial court against them. Accused have denied the charges framed against them and claimed their trial.

11. Trial proceeded and on behalf of prosecution, seven witnesses i.e. PW-1 Javed Alam, the informant, PW-2 Smt. Watoolan, PW-3 Wakeela, PW-4 Dr. Manoranjan Kumar, who has conducted the post mortem on the body of deceased and prepared post-mortem report, PW-5 S.I. Mahipal Singh, PW-6 Inspector Maniram Rao, who completed the investigation and filed charge-sheet and PW-7 S.I. Brijendra Singh, were examined.

12. After closure of prosecution evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded in which they denied the allegations and stated that they have been falsely implicated due to enmity regarding distribution of share in the property.

13. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt and convicted and sentenced the accused appellants, hence this appeal.

14. We have heard Shri N.I. Jafri, learned Senior Counsel assisted by Ms. Ambreen Masroor and Shri Mohd. Zubair, learned counsel for the appellants and Shri Prateek Tyagi, learned Amicus Curiae as well as the learned AGA for the State at length and perused the entire record.

15. Castigating the impugned judgment and order, learned Senior Counsel appearing for the appellants has submitted that prosecution has failed to establish the guilt of the accused appellants beyond reasonable doubt. It was further submitted that though informant has disclosed in his statement before the Court that written report was got prepared on his dictation by Mohd. Tahir yet signature of the said person is not on it. FI.R. was not in existence on the date and time mentioned in it. Medical evidence does not support the oral version. Referring to the post mortem report it was also submitted that finding of semi digested food in the intestine of deceased itself reveals that incident took place in the mid night. It was also submitted that injury no.6 said to have been sustained by the deceased, as disclosed in the post mortem report, has not been explained by the prosecution. Thus, on this count also entire prosecution case becomes doubtful. PW-1 was not present on the spot. Independent witness Naim has not been examined. Therefore, statement of PW-1 is not supported with any independent evidence. PW-2 and PW-3 both have admitted that they had not seen the incident. Thus, there remains only the statement of PW-1, which is also full of contradictions on material points. It was next contended that all the fact witnesses examined in the matter are interested and partisan witnesses. Thus, trial court has committed illegality in relying upon the statement of the said fact witnesses. Recovery is false and planted and is not supported with independent evidence. Referring to recovery memo it was also submitted that recovery is from open place accessible to general public. Thus, on this score also it is not believable. It was next contended that if broken pieces of country made pistol were found at the place of occurrence by the Investigating Officer concerned then how recovery of the same was possible on pointing of accused persons. Referring to date of recovery of country made pistol on pointing out of the accused persons it was further submitted that had the recovered country made pistols of 12 bore and 315 bore were used in commission of the present offence, it was not possible to have smell in their barrel (naal) after a gap of about one month. This fact itself shows that recovery is false and planted on the part of the police. Referring to contents of F.I.R. it was further submitted that nothing has been mentioned in it regarding recovery of broken pieces of country made pistol said to have been found at the place of occurrence by the Investigating Officer at the time of spot inspection. Prosecution has made improvement in its evidence during trial. Nothing has been mentioned in the F.I.R. about source of light or loan amounting to Rs. 20,000/- said to have been given on the part of the deceased to the accused persons. Motive suggested by the prosecution is not sufficient to commit the present offence. Deceased, witnesses and accused persons are the family members. It appears improbable and unbelievable that accused appellants would have committed the murder of his uncle. It was further submitted that incident took place in the month of February. It was a foggy night. It was impossible to recognize the accused persons. It was next contended that due to non-examination of witness Naim, an adverse inference will be drawn against the prosecution. There is contradiction in the statement of witnesses regarding time of departing for Namaz by the deceased and witnesses. Thus, referring to entire evidence it was further submitted that appellants have not committed the present offence. They have been falsely implicated in the matter. It was lastly submitted that the findings recorded by trial court in the impugned judgment and order are not based on correct appreciation of facts and evidence and suffer from infirmity and illegality warranting interference by this Court.

16. In reply, learned AGA appearing for the State has submitted that the accused appellants had committed the present offence. PW-1 is the eye account witness. PW-2 and PW-3 have clearly established the motive. Source of light at the place of occurrence has also been disclosed by the witnesses before the trial court. The Investigating Officer had also found bulb on the spot at the time of inspection. Mere non-taking into custody the said bulb, it will not be sufficient to disbelieve the prosecution case. Medical evidence fully supports the oral version. Referring to the statement of doctor concerned, who conducted the post mortem on the dead body of the deceased, it was further submitted that this witness has clearly stated that injury no.6 could come from falling on earth. F.I.R. was in existence on the date and time mentioned in it. Non-mentioning the name of scribe of the written report in it is not sufficient to disbelieve the prosecution case. Since accused persons were sons of the brother of the deceased and both parties were fully acquainted with each other, there was no difficulty to recognize the accused persons at the time of the incident. Non-disclosure of broken pieces of country made pistol in the F.I.R. is also not sufficient to discard the statement of eye account witness, whose statement finds support with medical evidence. Incident took place on the date, time and place disclosed in the F.I.R.. Prosecution case cannot be disbelieved only on this basis that witness Naim was not examined. Prosecution was able to prove its case beyond reasonable doubt against the accused appellants. There was no chance of false implication. Motive suggested by the prosecution has been proved beyond reasonable doubt. Prosecution was also able to prove the recovery said to have been made in the matter on pointing of the appellants. It was next contended that if for the sake of argument recovery is taken as unbelievable, then also statement of eye account witness cannot be brushed aside. There is no infirmity or illegality in the impugned judgment and order warranting interference by this Court. Findings of trial court in the impugned judgment and order are based on correct appreciation of facts, evidence and law.

17. We have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record and evidence carefully.

18. In this matter, as is evident from the record, F.I.R. was lodged on 6.2.2003 at 6.20 a.m.; distance between the place of occurrence and the police station concerned is only one kilometer; incident is said to have taken place on 6.2.2003 at 5.15 a.m.; informant is the son of the deceased and accused appellants are the cousin of the informant; cause of death of the deceased is anti mortem fire arm injuries due to shock and hemorrhage; inquest of the dead body was conducted on the same day by the police concerned; Investigating Officer has also recovered broken pieces of country made pistol from the place of occurrence; motive in the F.I.R. has been disclosed that one one occasion deceased had beaten the appellant Anis, as he wanted to marry with the sister of the informant, when witnesses were examined during trial, they have also disclosed that Rs. 20,000/- was given as loan by the deceased to the appellants and it was being demanded by the deceased and due to this reason present offence was committed. Nothing has been mentioned in the F.I.R. about source of light, however, during examination, witnesses have disclosed that there was a bulb at the place of occurrence. No recovery memo has been prepared at the end of the Investigating Officer with regard to the said bulb. PW-1 Javed Alam is the informant, PW-2 is the mother of the informant, PW-3 is the daughter of the deceased / sister of the informant. PW-2 and PW-3 were not present on the spot at the time of occurrence. As per F.I.R. witness Naim was also present alongwith PW-1 on the spot at the time of incident but he has not been examined by the prosecution. Recovery of country made pistols of 12 and 315 bore have been made on pointing of the accused appellants. It has also come in the evidence that it was foggy hours.

19. After outlining the aforesaid facts, we are proceeding to deal with the submissions advanced by the learned counsel for the parties.

20. First of all, we take-up the submission of learned Senior Counsel appearing for the appellants that F.I.R. was not in existence at the time mentioned in it.

21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Sahib Singh Vs. State of Haryana, AIR 1997 SC 3247].

22. In cases where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604; G. Sagar Suri & Anr. Vs. State of U.P. & Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. & Ors., (2008) 12 SCC 531).

23. In the present matter, incident is said to have taken place on 6.2.2003 at 5.15 a.m., distance between place of occurrence and the police station concerned is about one kilometer. During trial, PW-1 has stated that he had prepared the written report at the place of occurrence, scribed by one Mohd. Tahir, thereafter, he went alongwith two other persons at the police station concerned for lodging the F.I.R.. F.I.R. came into existence at 6.20 a.m.. Preparation of written report within the said duration when informant and other witnesses remained present at the place of occurrence is possible one. Thus, preparation of chik F.I.R. at 6.20 a.m. can also not be taken as impossible. Inquest report and other papers prepared in the matter also bear the crime number. Witness concerned while examined before the Court has clearly admitted that when this witness reached the place of occurrence, dead body was on a cot. Prosecution case is that when accused persons opened fire upon the deceased, he fell down on the earth. It might be possible that people gathered at the place of occurrence would have kept the dead body on the cot. Mere non-mentioning the name of scribe in written report when sufficient explanation has been given by the PW-1 during examination before the Court, finding of dead body on the cot at the time of inquest, non-mentioning of source of light in the F.I.R., will not be sufficient to say that F.I.R. was not in existence at the time mentioned in it. Hence, submission made by the learned Senior Counsel in this regard is not acceptable.

24. Now we take-up the submission regarding motive and the presence of PW-1 (informant) on the spot at the time of occurrence. Although we are oblivious of the fact that motive relegates into the back ground in a case of direct ocular testimony and is not of much significance, but where the motive is false and cooked up, then it assumes importance to test the veracity or other wise of the prosecution witnesses. In this case specific motive has been mentioned in the F.I.R. that accused appellant Anis wanted to marry with the sister of the informant and since he was vagabond, deceased had denied and at one occasion he had beaten the appellant Anis. This fact has consistently and clearly been stated by the PW-1, PW-2 and PW-3 during examination before the Court. A lengthy cross-examination has been made by the defence on this point but nothing has come out in it to disbelieve the statement of prosecution witnesses on this point. As in the instant case the most pivotal role is that of the ocular account of PW-1, therefore, in our view, we would like to discuss it by making careful reappraisal of the same, so, an innocent one may not fall on account of misreading or non-reading of material evidence. The prosecution case mainly rings upon the alleged ocular account witness Javed Alam. We would like to reappraise their testimony first of all to draw conclusion as to whether his presence at the time of occurrence was established by the prosecution and whether his testimony is worthy of credence, believable and whether his conduct is natural and in accordance with the ordinary human conduct or otherwise. Certainly, in this matter, prosecution did not examine the other witness Naim but this fact alone is not sufficient to say that PW-1 Javed Alam was not present on the spot at the time of occurrence. All the facts, except, source of light and giving of loan amounting to Rs. 20,000/- find place in the F.I.R. itself. PW-1 Javed Alam has clearly stated that his father (deceased) used to go to Masque concerned every day in the morning and open door and thereafter make preparation for offering Namaz. On the day of incident also in the morning he had gone at about 5.00 a.m.. Informant (PW-1-Javed Alam) and other witness Naim had also gone to the Mosque behind him within few minutes. As per the statement of PW-1 incident took place before him, accused persons were hiding there and when deceased opened the outer door of the Mosque, they opened fire upon him. Deceased fell down on the earth due to injuries sustained by him and died. In Islam religion going to mosque for the Muezzin in the morning is not unnatural and unbelievable. Since informant also used to go to Masque for offering Namaz, therefore, going to Masque for offering Namaz behind the deceased is a natural conduct of PW-1 and other witness Naim. Mere non-examination of witness Naim by the prosecution will not be sufficient to disbelieve the statement of PW-1 Javed Alam. Naim is the uncle of the accused persons and brother of deceased. It might be possible that he did not come forward for statement as he would not have wanted to offend any one or take enmity with any one. It is pertinent to mention here that if the testimony of sole eye account witness finds corroboration with the medical evidence and inspires confidence, same is sufficient to convict the accused. In this matter, presence of PW-1 on the spot at the time of incident is not improbable and unbelievable. It is clear from the evidence that deceased was Muezzin of the Mosque concerned and used to go to Mosque for Azan and Namaz. Hence, presence of PW-1 on the spot at the time of incident has been proved by the prosecution from its evidence beyond reasonable doubt. Finding recorded by the trial court in the impugned judgment and order on this point cannot be termed to be illegal or perverse. Only on this ground that nothing has been disclosed in the F.I.R. regarding source of light and loan amount given to the accused persons by the deceased, particularly, when both parties are well acquainted with each other, presence of PW-1 on the spot at the time of occurrence cannot be said to be incorrect or improbable. Incident took place at about 5.15 a.m in the month of February. The fog would not have been so densed that it would have been difficult for the informant to identify the accused. Non-preparation of fard regarding the bulb by the Investigating Officer is also not sufficient to disbelieve the presence of PW-1 on the spot at the time of occurrence. Hence, the submissions advanced by the learned Senior Counsel appearing for the appellants in this regard are also not liable to be accepted.

25. So far as the submission that the witnesses are interested and relative / family member is concerned, it is settled legal position that when the statement of witnesses, who are relatives or known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was family member of the deceased or victim or interested witness or person known to the affected party. There can be cases where it would be but inevitable to examine such witnesses, because, as the events occurred, they were the natural or the only eye witness available to give the complete version of the incident. Close relative of the deceased or victim would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. [vide : Namdeo v. State of Maharashtra, (2007) 14 SCC 150]. It is also settled that testimony of eye-witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased was related to the eye-witnesses or previously there had been some disputes between the accused and the deceased or the witnesses.

26. In the present case, PW-1, PW-2 and PW-3 are the son, wife and daughter of the deceased, therefore, in the facts and circumstances of the case it is necessary to scrutinize the prosecution evidence carefully and cautiously. In this matter, PW-2 has clearly stated that PW-1 had gone for offering Namaz on the day of incident behind the deceased. PW-3 has also supported the motive part happened against her. Thus, in this case, testimony of PW-1, PW-2 and PW-3 on the ground of relative witness cannot be discarded. It is worthy to note here that if one is relative of the victim or informant, he cannot be termed as interested / partisan witness. Interested/ partisan witnesses are those who are interested to get the accused convicted. In the present matter, close scrutiny of statement of PW-1, PW-2 and PW-3 reveals that they had disclosed before the Court the true facts. On close scrutiny of their testimony with anxious care we are of the view that testimony of these witnesses is probable, natural and reliable and also inspires confidence to be accepted. Hence, the submission of learned Senior Counsel for the appellants in this regard is not accepted.

27. As far as recovery of country made pistol on pointing out of the accused appellants is concerned, it has come in the evidence of the police personnel that accused persons confessing their guilt had got made the recovery of the country made pistol said to have been used in commission of the present crime. Referring to aforesaid facts, learned Senior Counsel appearing for the appellants has submitted that if broken pieces of the country made pistol were lying at the place of occurrence and same were taken into custody, then recovery of 12 bore and 315 bore country made pistol said to have been used in commission of crime from different place on pointing out of the appellants appears improbable and unbelievable. If the submission advanced on behalf of the appellants is minutely analyzed with the evidence adduced by the prosecution on this point, certainly recovery of 12 bore and 315 bore country made pistol does not inspire confidence of the Court and it cannot be relied upon. It appears that said recovery was planted by the police. Statement of prosecution witnesses to this extent is not reliable.

28. So far as the submission regarding minor contradictions, variations, omissions, discrepancies and improvement made by the prosecution witnesses at the stage of evidence is concerned, it is settled that minor contradictions, variations, omissions, discrepancies and improvements in the evidence of any witness cannot be attached undue importance to discard the entire prosecution case if otherwise on vital aspects or on core of the prosecution case, the testimony of such witness or witnesses is found truthful, reliable and trustworthy. It is also settled legal position that it is the duty of the prosecution to prove its case beyond any shadow of doubt and no person accused of an offence can be convicted based on mere probabilities or assumptions. Moreover, the legal dicta is well settled on the point that more serious the crime, greater the responsibility of scrutinizing the evidence adduced by the prosecution as well as the defence, and this onerous task should be adhered to in the most meticulous and objective manner before arriving at any final conclusion. It is also a settled legal position that the Courts are not to get swayed by minor contradictions or insignificant discrepancies if otherwise testimony of a witness is cogent, credible and trustworthy on the material aspects of the case. No witness even the most genuine one would be in a position to give the exact account of the scene of crime minutely or to describe what preceded the incident and what exactly happened post incident. Some minor discrepancies, variations and improvements are bound to occur due to multiple factors governing the human behaviour and the background of a particular witness under examination and, therefore, unless such discrepancies and improvements affect the core of the prosecution case, no undue importance should be given to such minor discrepancies, variations and improvements which usually creep in the testimony of any witness due to multiple factors. In the present case, certainly, nothing was mentioned in the F.I.R. about source of light at the place of occurrence. Similarly, no detail was disclosed in the F.I.R. about the loan said to have been taken by the accused appellants but these facts are not sufficient to disbelieve the statement of PW-3, who has supported the motive disclosed in the F.I.R.. If the improvement said to have been made during trial is segregated from other evidence, then also residue (remaining) evidence is sufficient to hold that prosecution was able to prove its case beyond reasonable doubt.

29. As far as the submission made by the learned Senior Counsel regarding medical evidence is concerned, in this case doctor concerned has clearly opined that injuries found on the body of deceased were of the date and time mentioned in the F.I.R.. Though injury no.6 found on the body of the deceased was a lacerated wound yet in the cross examination, PW-4 Dr. Manoranjan Kumar, has clearly stated that injury no.6 could come from falling also. If such is the position, submission raised on behalf of appellants in this regard is also not acceptable. There was no need to explain the injury no.6 sustained by the deceased. This fact is explained by the doctor concerned and on this basis manner of the incident stated by the PW-1 Javed Alam cannot be doubted.

30. As regards sentence imposed upon the appellants 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.

31. 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].

32. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.

33. Applying the principles laid down by the Apex Court 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, in our view, sentence imposed upon accused appellants is neither exorbitant nor excessive and same is adequate and also proportionate to gravity of offence. They have been awarded minimum sentence for the offence under Section 302 IPC.

34. Hence, on close scrutiny of entire evidence, we are of the opinion that deceased was done to death by the accused appellants opening fire upon him. This fact finds support with the medical evidence. F.I.R. is genuine document. Prosecution was able to prove date, time and place of incident from its evidence. Findings of the trial court regarding guilt of the accused appellants for the offence under Section 302 IPC are based on correct appreciation of facts, evidence and law. There is no infirmity or illegality in the impugned judgment and order. Minor contradictions occurred in the statement of witnesses are not of such nature, which may place the PW-1, PW-2 and PW-3 in the category of 'unreliable' witnesses. Incident took place before the PW-1 Javed Alam. Non-examination of witness Naim is also not fatal to the prosecution case. Trial court has rightly held accused appellants nos. 1 and 2 (Shafique and Anis) guilty for the offence under Section 302 IPC and sentenced them for life imprisonment with fine.

35. Considering entire aspects of the matter and looking to the circumstances, under which present offence has been committed, we are of the view that impugned judgment and order passed by trial court is well thought and well discussed and trial court has rightly held that prosecution has succeeded to prove guilt of accused appellant nos. 1 and 2 (Shafique and Anis) beyond reasonable doubt. As such, impugned judgment and order passed by trial court is liable to be upheld and appeal having no force is liable to be dismissed.

36. Accordingly, present Criminal Appeal is dismissed. Conviction and sentence imposed upon accused appellant nos. 1 and 2 (Shafique and Anis) vide impugned judgment and order dated 19.3.2007 is hereby confirmed.

37. Copy of this judgment alongwith lower court record be sent forthwith to Sessions Judge, J.P. Nagar for compliance. Compliance report be also submitted to this Court.

Order date: 27.04.2022

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