Delhi High Court
Akbar & Anr. vs State on 29 May, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
% Judgment reserved on : 28.04.2009
Judgment delivered on: 29.05.2009
+ CRL. APPEAL NO.327/2007
AKBAR & ANR. ...Appellants
Through : Mr. K.K.Sud, Sr. Adv. with
Mr. Alok Rai and Mr. Atul Sahi,
Advocates
versus
STATE ...Respondent
Through : Ms. Richa Kapoor, Advocate
CRL. APPEAL NO.329/2007
ABDUL HAMEED @ MILLU ...Appellant
Through : Mr. K.K.Sud, Sr. Adv. with
Mr. Alok Rai and Mr. Atul Sahi,
Advocates
versus
STATE ...Respondent
Through : Ms. Richa Kapoor, Advocate
CRL. APPEAL NO.374/2007
AFSAR @ UMAR DARAZ ...Appellant
Through : Mr. F.Haq, Advocate
versus
STATE ...Respondent
Through : Ms. Richa Kapoor, Advocate
Crl.A.Nos.327/07, 329/07 & 374/07 Page 1 of 58
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether judgment should be reported in Digest? Yes
: PRADEEP NANDRAJOG, J.
1. Vide impugned judgment and order dated 30.04.2007,
the appellants, Abdul Hamid @ Millu, Akbar, Afsar @ Umar
Daraj and Arasleen @ Mursaleen @ Sanno have been
convicted for the offence of having murdered Mohd. Kazim @
Babbu Pehelwan (hereinafter referred to as the "Deceased"),
for which offence they have been sentenced to undergo
imprisonment for life and pay a fine in sum of Rs.5,000/- each;
in default to undergo rigorous imprisonment for one year.
2. Case of the prosecution was that in the night of
03.02.2001 the appellants went to the house of the deceased
and that a dispute arose between appellant Arasleen and the
deceased over a sum of money. Thereafter all the appellants
fired shots at the deceased from their respective pistols and
fled from the place of the incident after causing the death of
the deceased. The wife and sons of the deceased namely,
Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3, had
witnessed the incident.
3. Needless to state the case of the prosecution hinged
upon the veracity and credibility of the testimony of Haseen
Bano PW-1, Safdar PW-2 and Akbar PW-3.
4. Criminal law was set into motion when at around 11.20
P.M. on 03.02.01, DD Entry No.28A, Ex.PW-6/A, was recorded
by HC Umesh Singh PW-6, to the effect that a wireless
information has been received informing that two persons
named Akbar and Afsar have shot a person near a transformer
situated near Brahmpur Pulia.
5. On receiving a copy of the afore-noted DD Entry, SI Jagbir
Singh PW-12, accompanied with Const. Shokeender PW-5 and
Const. Billu Singh PW-7, went to the electric transformer
situated near Brahmpur Pulia and on learning that an incident
of murder had taken place at a nearby slum-dwelling bearing
Municipal No. B-16/K-3332, K-Block, Ganda Nala, Seelam Pur
proceeded to the said dwelling where they learnt that the
deceased has been removed to GTB hospital.
6. Leaving Const.Shokeender PW-5, at the place of
occurrence, SI Jagbir Singh PW-12 and Const.Billu Singh PW-7,
proceeded to GTB hospital where they were informed that the
deceased has been declared brought dead as noted in the MLC
Ex.PW-4/A of the deceased. We note that on the MLC Ex.PW-
4/A of the deceased, following was recorded:-
"Name and address of relative or friend brought by:
wife
.......
Alleged H/o gunshot
Patient brought to hospital at 11.30 P.M."
7. After obtaining the MLC Ex.PW-4/A of the deceased, SI
Jagbir Singh and Const. Billu Singh returned to the place of
occurrence where they met Haseena Bano PW-1, the wife of
the deceased, who claimed to have witnessed the incident. SI
Jagbir Singh recorded the statement Ex.PW-1/A of Haseen
Bano and made an endorsement Ex.PW-12/A thereon, and at
around 1.30 A.M. forwarded the same through Const.Billu
Singh PW-7, for registration of an FIR. Const. Billu Singh took
Ex.PW-12/A to the police station and handed over the same to
HC Ram Singh PW-8, who recorded the FIR No.50/2001,
Ex.PW-8/A, at 1.40 A.M. on 04.02.01. HC Ram Singh
contemporaneously prepared DD Entry No.30A Ex.PW-6/DA,
recording the registration of the FIR Ex.PW-8/A.
8. In her statement Ex.PW-1/A, Haseen Bano stated that she
resides in a slum-dwelling bearing Municipal No.B-16/K-3332,
K-Block, Ganda Nala, Seelam Pur with her family. Her husband
had a factory, where bangles were manufactured, but at
present is running a dairy on account of the said factory being
sealed. Tonight, at around 10.30 P.M. she along with her
husband and children was present in her house when Sanno
Pehelwan along with his nephews Akbar and Afsar s/o Allah
Pehelwan and one Abdul @ Millu who was their friend had
come there. That two of her children; namely, Safdar and
Akbar were awake at the time of the arrival of said persons in
their house. The aforesaid persons who reside in New
Seelampur used to keep meeting her husband and that she is
well acquainted with them as they are her distant relatives. On
the arrival of the said persons, she got up from takhat (cot)
and was standing when Sanno asked her husband to return
the money borrowed by him on which her husband replied that
he did not owe any money to him. Thereupon a quarrel ensued
between her husband and Sanno and suddenly Sanno took out
a pistol. On seeing this, Akbar, Safdar and Millu also took out
pistols hidden in their clothes. On seeing pistol in their hands,
she got scared; fell on the feet of Sanno and pleaded with him
to forgive the deceased, but all the four aforesaid persons fired
shots at her husband. The bullets fired by them hit the chest,
left abdomen and the ribs of the deceased. When she and her
two children Akbar and Safdar shouted for help the said four
persons ran away. She sent her son Akbar to call the police
and removed her husband who was profusely bleeding to GTB
hospital in a TSR with the help of her son Safdar where he was
declared as brought dead. Sanno Pehelwan, Akbar, Afsar and
Millo had acted in concert with each other and murdered her
husband. She and her two sons namely, Safdar and Akbar,
have witnessed the incident in question.
9. At the spot SI Jagveer Singh PW-12, prepared the rough
site plan, Ex.PW-12/B of the place of the offence; recording
therein, at point „A‟ the spot where the takhat (cot) on which
the deceased was murdered was lying. On thorough search of
the place of occurrence, two cartridge cases of .12 bore and
.315 bore respectively and one bullet of .315 bore were found
which were seized vide memo Ex.PW-2/A. SI Jagveer Singh
lifted blood found at the place of occurrence which was seized
vide memo Ex.PW-1/C. The blanket stained with blood found at
the place of occurrence was seized vide memo Ex.PW-1/B.
Const.Padam (photographer) PW-9, reached the place of
occurrence on being summoned. 4 photographs, Ex.PW-9/A to
Ex.PW-9/D; negatives whereof are ExPW-9/E to Ex.PW-9/H
were taken.
10. The statements of the sons of the deceased namely
Safdar PW-2 and Akbar PW-3, who also claimed to have
witnessed the incident were recorded under Section 161
Cr.P.C. wherein they also indicted the appellants as the
assailants of the deceased.
11. Since the deceased was brought dead at the hospital, his
body was sent to the mortuary of GTB Hospital, where
Dr.K.K.Banerjee PW-18, conducted the post-mortem at about
11.05 A.M. on 04.02.2001 and gave his report Ex.PW18/A,
which records the following external ante-mortem injuries:-
"Antemortem Injuries
(i) Firearm Entry wound 3 cm x 2 cm x cavity deep
with irregular margins and blackening around the
wound obliquely placed on left side of upper part of
chest 4.5 cm medial to above at straight line drawn
medially from left nipple and 4.5 cm away from mid-
line directed inwards and medially from left to side
of chest cavity. On exploring the wound it had
caused a wide fracture of the 1st rib in the left
parasternal area 3.5 x 3 cm, a big laceration of the
left anterosuperior surface of the heart, aortic arch
and upper lobe of left lung.
(ii) Firearm Entry wound 1 cm x 0.8 cm, oval shaped
surrounded by tattooing over an area of 9 cm x 9.2
cm on left side of abdomen 5 cm away from mid-
line, 15 cm above the middle of left inguinal line
entering the abdominal cavity directed from left to
right obliquely from above downwards.
(iii) Firearm Exit wound 1 cm x 1.2 cm on right
posterior axilliary line 10 cm above right iliac crest
irregular margins. On exploring the wound it was
found connecting injury no.2 and caused perforation
of the ileum."
12. He opined that the cause of the death of the deceased
was shock as a result of ante-mortem injuries to the internal
organs produced by the projectile of a firearm from a closed
range. That the injuries nos. (ii) and (iii) were caused by two
different weapons and were sufficient to cause death in the
ordinary course of nature.
13. After the post-mortem, the doctor handed over the
clothes and blood sample of the deceased on a gauze, a
blanket found wrapped on the body of the deceased, three
wads and 90 pellets recovered from the body of the deceased
to HC Om Pal Singh PW-11, who in turn handed over the same
to HC Bhoop Singh PW-10, as recorded in the memo Ex.PW-
10/A.
14. Since the three eye-witnesses; namely, Haseen Bano PW-
1, Safdar PW-2 and Akbar PW-3, had indicted the appellants of
having murdered the deceased, the police set out to
apprehend them. Appellants Abdul Hamid and Akbar were
apprehended by Inspector Rajender Gautam PW-18, SI Jagveer
Singh PW-12 and Const.Billu Singh PW-7 on 08.02.01 from a
flyover at ISBT. Thereafter appellants Afsar and Arsaleen were
apprehended on 09.02.01 and 14.02.01 respectively.
15. The appellants were interrogated and their confessional
statements were recorded. We need not note the contents of
confessional statements inasmuch as the same are completely
inadmissible in evidence as they admit of guilt. We note that
no recovery were effected nor was a fact discovered by the
police pursuant to the said statements made by the
appellants.
16. On 20.04.01 SI Mahesh Kumar, a draftsman, was taken to
the place of occurrence by Inspector Rajender Gautam PW-19,
where at the instance of Safdar he prepared the site plan to
scale Ex.PW-13/A; recording therein, points „A‟ to „F‟, the spots
where the takhat on which the deceased was murdered was
lying, the two shells and bullets were found, the spots
wherefrom Safdar and Haseena witnessed the incident and
blood was lying, respectively.
17. The seized materials; viz. the blood sample and clothes
of the deceased, the blanket seized from the place of
occurrence and the blanket found wrapped on the body of the
deceased at the time of post-mortem were sent to a serologist
for a serological test. Vide FSL reports Ex.PW-19/D and Ex.PW-
19/E it was opined that the blood group of the deceased was
„A‟; that the blood lifted from the place of occurrence was
human blood of group „A‟; that human blood of group „A‟ was
found on the clothes of the deceased and the afore-noted two
blankets.
18. The two cartridge cases and one bullet found at the place
of occurrence, three wads and 90 pellets recovered from the
body of the deceased and the clothes of the deceased were
sent to a ballistic expert for his opinion. Vide report Ex.PW-
19/C, the ballistic expert opined that the said two cartridges
cases are fired empty cartridge cases; that the bullet found at
the place of occurrence corresponds to the bullet of .315
cartridge; that the wads recovered from the body of the
deceased are air cushion wad, under shot wad and over
powder wad of 12 bore cartridge; that the pellets, 88 in
number, correspond to shots of a 12 bore cartridge; that four
holes were found present on the shirt of the deceased, three in
front and one in back and that the three out of the said four
holes viz, two in front and one in back , were caused by the
bullets.
19. Needless to state, the appellants were sent for trial.
Charges were framed against them for having committing the
offence punishable under Sections 302/34 IPC.
20. At the trial, HC Umesh Singh PW-6, deposed that DD
Entry No.28A, Ex.PW-6/A, was recorded by him. HC Ram Singh
PW-8, deposed that the FIR Ex.PW-8/A and DD Entry No.30A
Ex.PW-6/DA were recorded by him. Const.Om Pal Singh PW-11,
deposed having handed over the clothes and blood sample of
the deceased, the blanket found wrapped on the body of the
deceased and the wads and pellets recovered from the body of
the deceased to HC Bhoop Singh PW-10, vide memo Ex.PW-
10/A. SI Mahesh Kumar PW-13, deposed that the site plan to
scale Ex.PW-13/A was prepared by him. Dr.K.K.Banerjee PW-
18, deposed that he conducted the post-mortem of the
deceased and the post-mortem report Ex.PW-18/A was
prepared by him. Const.Padam PW-9, deposed that the
photographs, Ex.PW-9/A to Ex.PW-9/D; negatives whereof are
ExPW-9/E to Ex.PW-9/H were taken and developed by him.
Mohd.Hashim PW-15 and Abdul Kalam PW-16, the brothers of
the deceased, deposed that they had identified the body of the
deceased.
21. Ignoring the testimony of few formal police witnesses
who deposed to the receipt of various articles in the malkhana
and further movement thereof to FSL, we note the testimonies
of such witnesses, in respect whereof, submissions were made
during the arguments of the appeals on the issue, whether
Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3, were at all
eye-witnesses.
22. Haseena Bano PW-1, the wife of the deceased, deposed
on the lines of her statement Ex.PW-1/A.
23. Safdar PW-2, the son of the deceased, deposed that on
03.02.01 the appellants who were quite familiar to him had
come to his house and that he, his parents and his younger
brother were awake at that time. That appellant Sanno asked
his father to return the money borrowed by him to which the
deceased replied that he did not owe any money to him
whereupon an altercation took place between them. Suddenly
the appellant Sanno took out a pistol hidden in his clothes. On
seeing this, Akbar, Safdar and Millu also took out pistols
hidden in their clothes. On seeing pistol in their hands, his
mother got scared; fell on the feet of Sanno and pleaded with
him to forgive the deceased. Thereafter appellant Afsar
followed by appellant Akbar fired shots at the deceased
whereupon he, his mother and brother surrounded the
deceased. Thereafter appellants Sanno and Millu fired shots at
the deceased and then all the appellants fled from their house
after firing shots in the air. He and his mother removed the
deceased to GTB Hospital in a tempo where the doctor
declared him as brought dead. On their return from the
hospital they found that two police officials were present at
their residence. Two cartridge cases and one bullet was
recovered by the police from their house.
24. Mohd. Akbar PW-3, the son of the deceased, deposed
that on 03.02.01 at around 10.30 P.M. the appellants had
come to his house and that he, his parents and siblings were
present therein at that time. Appellant Sanno asked his father
to return the money borrowed by him to which the deceased
replied that he did not owe any money to him, whereupon an
altercation took place between them. Suddenly the appellant
Sanno took a pistol hidden in his clothes. On seeing this,
Akbar, Safdar and Millu also took out pistol hidden in their
clothes. On seeing pistols in their hands, his mother got
scared; fell on the feet of Sanno and pleaded with him to
forgive the deceased. Thereafter appellant Afsar fired a shot at
the deceased which hit him on the chest and he fell on the
ground. Thereafter appellant Akbar fired a shot at the
deceased which hit him on the back side of his stomach.
Thereafter appellants Sanno and Millu fired shots at the
deceased and then the appellants fled from their house. His
mother and brother Akbar removed the deceased to the
hospital in a TSR. Two cartridge cases and one bullet was
recovered by the police from their house.
25. In their examination under Section 313 Cr.P.C., the
appellants pleaded innocence and false implication. They
stated that the deceased used to indulge in gambling and was
murdered by some unidentified persons in connection with the
same. The deceased was murdered near an electric
transformer situated near Brahmpur Pulia and that his body
was subsequently shifted by his family to his residence in
order to contrive evidence against the appellants. That the
family of the deceased was inimical towards appellant Akbar
and Mursaleen on account of the fact that the brother of the
wife of the deceased was engaged to a relative of said
appellants, which engagement was broken by the family of the
said appellants. Due to this the family of the deceased bore a
grudge against appellants Afsar and Abdul Hamid inasmuch
they had supported the appellants Akbar and Mursaleen in the
dispute arising out of the said broken engagement.
Additionally, appellant Afsar pleaded the defence of alibi to
improbablize his physical presence at the place of occurrence
at the alleged time of occurrence. He stated that he was
attending the marriage of the daughter one Satbir Singh, a
friend of his father, at the alleged time of the crime.
26. In defence, the appellants examined five witnesses
namely, Rukhsana, Allo, Satbir Singh, Jakir and Sayeeda
Parveen as DW-1, DW-2, DW-3, DW-4 and DW-5 respectively.
27. Rukhsana DW-1, a neighbour of the deceased, deposed
that the deceased used to indulge in gambling in his lifetime.
That 6-7 years ago at around 10-10.20 P.M. she was present in
her residence when she heard noises coming from the
neighbourhood whereupon she went out and found that the
deceased was lying murdered under an electric transformer
situated near pulia. That 2-3 persons brought the deceased to
his residence wherein no family member of the deceased was
found present. The deceased was laid down on the floor of his
residence and was covered by a blanket. Someone from the
crowd informed the wife of the deceased who was present at
the residence of her brother. That she had appraised the police
about the said incident.
28. Jakir DW-4, a neighbour of the deceased, deposed that
the deceased used to indulge in gambling in his lifetime. That
about 6-61/2 years ago he had seen that the deceased was
lying near an electric transformer situated near the pulia of his
colony and that 15-20 persons were standing near the
deceased. That someone from the crowd went to the house of
the deceased but the same was found to be locked. That
thereafter some persons from the crowd removed the
deceased to GTB hospital.
29. Sayda Parveen DW-5, a neighbour of the appellant
Mursaleen, deposed that a dispute had arisen between the
families of the wife of the deceased and appellant Mursaleen in
connection with the engagement of the brother of the wife of
the deceased with a relative of appellant Mursaleen. That the
family of the wife of the deceased had given threats to
appellant Mursaleen and also to his family members and
friends.
30. Also DW-2, the father of appellant Afsar, deposed that
the family of the deceased was inimically deposed towards his
family as he had supported appellant Mursaleen in the dispute
which had arisen between the families of the wife of the
deceased and appellant Mursaleen in connection with the
engagement of the brother of the wife of the deceased with a
relative of appellant Mursaleen. That on 03.02.01 appellant
Afsar had gone to village Kiradi near Punjabi Bagh to attend a
marriage and returned home next day at around 4 A.M.
31. Satbir Singh DW-3, a friend of the father of appellant
Afsar, deposed that the marriage of his daughter was
solemnized on 03.02.01 and that appellant Afsar had attended
the said marriage. That appellant Afsar handed him a gift at
around 7.30 P.M. and that he had last seen him at venue
between 12.30 A.M. to 1.00 A.M.
32. Believing the testimony of Haseen Bano PW-1, Safdar
PW-2 and Akbar PW-3, to be creditworthy; holding that the
witnesses examined by the defence particularly Rukhsana DW-
1 and Jakir DW-4, do not inspire any confidence for the reason
there is a material contradiction between their versions
inasmuch as Rukhsana had deposed that the deceased was
removed to his house from the electric transformer whereas
Jakir deposed that he was removed to the hospital; that
appellant Afsar has not been able to prove his defence of alibi
for the reason the credentials of Satbir Singh DW-3, are
doubtful, inasmuch as he has not been able to show any
evidence to establish that appellant Afsar had attended the
marriage of his daughter on 03.02.01, the learned Trial Judge
has convicted the appellants.
32. At the hearing of the appeals, learned counsel for the
appellants advanced submissions on following 8 counts:-
I That the FIR registered in the present case was ante-
timed.
II That the witnesses namely, Haseena Bano PW-1, Safdar
PW-2 and Akbar PW-3, are „wholly unreliable‟ witnesses.
III That there is variance between medical and ocular
evidence.
IV That the conduct of the so-called eye-witnesses after the
incident is most unnatural.
V That the case set up by the prosecution is improbable.
VI That the prosecution failed to prove the genesis of the
occurrence.
VIII That there are suspicious circumstances in the case of
the prosecution.
VIII That the investigation conducted in the present case is
most perfunctory.
FIR BEING ANTE-TIMED
33. The first submission advanced by the learned counsel for
the appellants was that the FIR Ex.PW-8/A registered in the
present case was ante-timed which leads to a strong
presumption that the police had gained time to contrive
evidence against the appellants. According to the counsel, the
circumstances which indicated that the FIR was ante-timed are
that: - (i) no evidence has been adduced by the prosecution to
prove that the requirement of sending the copy of the FIR to
the Magistrate soon after the occurrence prescribed under
Section 157 Cr.P.C. was complied with. Particular emphasis
was laid on the fact that the police official who had allegedly
delivered copy of the FIR to the Magistrate has not been
examined by the prosecution; (ii) there is a serious
contradiction in the evidence on record regarding the delivery
of the FIR to the Magistrate inasmuch as FIR Ex.PW-8/A records
that the same was delivered through Const.Ranveer Singh
whereas HC Bhoop Singh PW-8, who is the scribe of the FIR,
deposed that the same was delivered through Const.Harbeer
Singh; (iii) DD Entry No.30A Ex.PW-6/DA, records that the FIR
in question is „being recorded‟ at 1.40 A.M. on 04.02.01 which
is contrary to the recording contained in the FIR that the same
was recorded at 1.40 A.M. on 04.02.01 and (iv) the fact that
DD Entry No.30A Ex.PW-6/DA, was got proved by the defence
and not by prosecution indicates that the prosecution had
attempted to conceal the said document.
34. It is no doubt true that the compliance with the
provisions of Section 157 Cr.P.C. is required to be proved by
the prosecution. However, the question which arises for
consideration is whether the failure of the prosecution in
proving the said requirement necessarily leads to an inference
that the FIR has not been lodged at the stated time or that the
investigation is not fair and forthright.
35. A similar contention advanced before Madhya Pradesh
High Court in the decision reported as Naniya @ Nannuram &
Ors v State of M.P. (1995) MPLJ was repelled by the Court in
the following terms:-
"Though, it is the requirement of law that the report
of the offence, if any, be immediately sent to the
Magistrate having jurisdiction, but any irregularity in
that will not be sufficient to throw the case of the
prosecution over board. What is required is that the
evidence should be closely scrutinized and the
possibility as to whether FIR has been antedated
should also be examined."
36. In the decision reported as Poor Singh v State of MP 2004
CriLJ 3810 a contention was advanced before the Madhya
Pradesh High Court that no proof was adduced by the
prosecution pertaining to compliance with the provisions of
Section 157 of Code of Criminal Procedure regarding sending
of copy of the First Information Report to the Magistrate
concerned, therefore, the accused persons could have not
been convicted. The court noted that no question was put to
the Investigating Officer, who was the scribe of the FIR,
regarding the dispatch of the copy of the FIR to the Magistrate
and that no suggestion was given to the said witness to the
effect that copy of the FIR was not sent or that it was
dispatched late, which if given, would have given an
opportunity to the witness to afford some explanation or to
show as to when the FIR, was sent to and received by the
Magistrate. In view of the afore-noted circumstances, it was
held by the court that it cannot be said that the copy of the
FIR was not sent to the Magistrate promptly. It was further
held that mere non-compliance with the provisions of Section
157 Cr.P.C. is by itself no ground to throw out the case of the
prosecution.
37. In the decision reported as State of MP v Pattu 2001
Cri.L.J. 3217, the only evidence regarding the dispatch of the
copy of the FIR to the Magistrate was the testimony of the
police official who had registered the FIR that he had sent the
copy of the FIR to the Magistrate through a special
messenger. The special messenger who had delivered the
copy of the FIR to the Magistrate was not examined by the
prosecution. It was held by Madhya Pradesh High Court that
the deposition of the author of the FIR regarding the delivery
of a copy of the FIR to the Magistrate is sufficient to prove
compliance with the provisions of Section 157 Cr.P.C. It was
yet again held by the Court that mere non-compliance of
Section 157 Cr.P.C. shall not itself lead to throwing out of the
case of the prosecution.
38. In the instant case, HC Ram Singh PW-8, has
categorically deposed that he had dispatched the FIR Ex.PW-
8/A after its registration to the Magistrate and senior police
officials through a special messenger. It is relevant to note
that neither any question was put nor any suggestion was
given to the witness in his cross-examination regarding the
dispatch of the FIR.
39. In view of the afore-noted facts and judicial decisions
noted herein above, we find no merit in the submission of the
counsel predicated upon Section 157 Cr.P.C.
40. Insofar as the discrepancy between the recording
contained in FIR Ex.PW-8/A and the testimony of HC Ram
Singh PW-8, regarding the delivery of the FIR to the Magistrate
is concerned, it be noted here that HC Ram Singh was
examined on 24.02.06 i.e. five years after scribing the FIR.
Human memory is not infallible. It is too much to expect that
the witness would correctly remember the name of the police
officer who had delivered the FIR scribed by him after five
years of scribing the FIR particularly when he has been
scribing and dispatching dozens of FIR in a month.
41. It was pointed out by the learned counsel, pertaining to
DD Entry No.30A, Ex.PW-6/D, that the said DD Entry records
that FIR No.50/2001 is „being recorded‟ at 1.40 A.M. on
04.02.01, meaning thereby, that the said FIR was in the
process of being recorded at 1.40 A.M., which is manifestly
contrary to the recording contained in the said FIR that it was
recorded at 1.40 A.M. on 04.02.01. Elaborating this contention
learned counsel contended that the fact that the prosecution
had attempted to suppress the said DD Entry by not proving
the same reinforces the stand of the appellants that the FIR
Ex.PW-8/A was not recorded at 1.40 A.M. as alleged by the
prosecution.
42. Nothing much turns on the fact whether the FIR Ex.PW-
8/A was „being recorded‟ or „recorded‟ at 1.40 A.M. on
04.02.01. If the argument of the counsel that the FIR was
being recorded at 1.40 A.M. is accepted, then it can safely be
taken the registration of the FIR would have been completed
by 1.55 A.M. This difference of fifteen minutes in the stated
and actual time of the registration of the FIR as brought out by
the counsel is of no consequence inasmuch as police would
have taken mere fifteen minutes to contrive evidence against
the appellants. It is apparent that the scribe of the FIR Ex.PW-
8/A, has recorded the time at which he started the registration
of the FIR, as the time of its registration. The argument is
nothing more than quibbling with words and expressions.
43. Insofar as the contention that the prosecution had
attempted to conceal the DD Entry No.30A Ex.PW-6/DA, as it
has not proved the same is concerned, suffice would it be to
state that the omission by the prosecution to prove the said
document is of no consequence inasmuch as prosecution did
not prove the said document as nothing much turned on the
said document, for the reason, it merely pertained to the
registration of the FIR Ex.PW-8/A.
EYE-WITNESSES BEING „WHOLLY UNRELIABLE‟ WITNESSES
44. Under this head, learned counsel for the appellants
contended that the so-called eye-witnesses are „wholly
unreliable‟ witnesses for the reason their evidence is full of
serious contradictions. The contradictions pointed out by the
learned counsel can be broadly classified into three categories
namely, (i) inter-se contradictions between the testimony of
the said witnesses; (ii) contradictions between the statements
of the witnesses recorded under Section 161 Cr.P.C. and their
testimony in Court and (iii) contradictions between the
testimony of the said witness and other evidence on record.
45. Under the first category, the contradictions pointed out
by the learned counsel were: - (i) Haseen Bano PW-1, deposed
that all the four appellants had at once fired shots at the
deceased from their respective pistols, whereas Safdar PW-2
and Akbar PW-3, deposed that appellant Afsar followed by
appellants Akbar, Sanno and Millu had fired shots at the
deceased; (ii) Haseena Bano deposed that she had sent Akbar
to the police station after the incident to inform the police, but
neither Safdar nor Akbar deposed about the fact that Akbar
had gone to the police station after the incident and (iii)
Haseena Bano deposed that she and her son Safdar had
removed the deceased to the hospital in a TSR whereas
Safdar deposed that they had removed the deceased to the
hospital in a tempo.
46. Under the second category, the contradictions pointed
out by the learned counsel were: - (i) Safdar stated in his
statement under Section 161 Cr.P.C. that the shots fired by
appellants Sanno and Millu had hit the wall whereas he
pleaded ignorance about the said fact in his testimony; (ii)
Akbar stated in his statement under Section 161 Cr.P.C. that
he, his mother and Safdar had embraced the deceased before
firing of shots by appellants Sanno and Millu whereas he
deposed in Court that they had come near to the deceased
but had not embraced him; (iii) Haseena Bano stated in her
statement Ex.PW-1/A that the appellants were her distant
relatives whereas she deposed in her examination-in-chief
that she was related to the appellants as she and the
appellants belonged to the same community and (v) Haseena
Bano stated in her testimony that the deceased removed the
quilt from his body when the appellants arrived at their
residence whereas no such factum was stated by her in her
statement Ex.PW-1/A.
47. Under the third category, the contradictions pointed out
by the learned counsel were:- (i) Haseena Bano deposed that
no blanket was wrapped on the body of the deceased at the
time of the incident or admission of the deceased in the
hospital whereas seizure memo Ex.PW-10/A records that a
blanket was found covering the body of the deceased at the
time of admission of the deceased in the hospital (ii) Safdar
deposed that the police had seized quilts and mattresses from
the place of occurrence but there is no memo recording the
seizure of the said articles and (iii) Haseena Bano and Safdar
deposed that they had met the police at the hospital whereas
there is no evidence establishing the said fact.
48. After pointing out the afore-noted contradictions, learned
senior counsel drew attention of this Court to the decision of
Supreme Court reported as Mahinder Singh v State of Haryana
1974 Cri.L.J. 742 (SC) wherein it was held that there is a limit
of illiteracy of a witness which should be considered a factor in
his benefit and that it cannot induce a Court to ignore the
infirmities in his evidence or to fill in lacuna in the prosecution
case. Learned senior counsel contended that in view of the
afore-noted observations of Supreme Court, this Court should
attach due importance to the contradictions pointed herein
above and discard the evidence of the said witnesses.
49. The appreciation of ocular evidence is a Herculean task.
There is no fixed or strait-jacket formula for appreciation of
ocular evidence. The judicially evolved principles regarding
the appreciation of the ocular evidence in a criminal case can
be enumerated as under:-
I 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 formed, it is undoubtedly necessary for the
Court to scrutinize 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 given
by the witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of belief.
II If the Court before whom the witness gives evidence had
the opportunity to form the opinion about the general tenor of
evidence given by the witness, the appellate court which had
not this benefit will have to attach due weight to the
appreciation of evidence by the trial Court and unless there
are reasons weighty and formidable it would not be proper to
reject the evidence on the ground of minor variations or
infirmities in the matter of trivial details.
III When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But courts
should bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the credibility
of his version that the Court is justified in jettisoning his
evidence.
IV Minor discrepancies on trivial matters not touching the
core of the case, hyper technical 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.
V Too serious a view to be adopted on mere variations
falling in the narration of an incident (either as between the
evidence of two witnesses or as between two statements of
the same witness) is an unrealistic approach for judicial
scrutiny.
VI By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It
is not as if a video tape is replayed on the mental screen.
VII Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the occurrence
which so often has an element of surprise. The mental
faculties therefore cannot be expected to be attuned to absorb
the details.
VIII The powers of observation differ from person to person.
What one may notice, another may not. An object or
movement might emboss its image on one person's mind
whereas it might go unnoticed on the part of another.
IX By and large people cannot accurately recall a
conversation and reproduce the very words used by them or
heard by them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a
human tape recorder.
X In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment at the
time of interrogation. And one cannot expect people to make
very precise or reliable estimates in such matters. Again, it
depends on the time-sense of individuals which varies from
person to person.
XI Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.
XII A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross
examination by counsel and out of nervousness mix up facts,
get confused regarding sequence of events, or fill up details
from imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so operates on
account of the fear of looking foolish or being disbelieved
though the witness is giving a truthful and honest account of
the occurrence witnessed by him.
XIII A former statement though seemingly inconsistent with
the evidence need not necessarily be sufficient to amount to
contradiction. Unless the former statement has the potency to
discredit the later statement, even if the later statement is at
variance with the former to some extent it would not be
helpful to contradict that witness.
(These principles have been culled out from the decisions of
Supreme Court reported as Bharwada Bhoginbhai Hirjibhai v
State of Gujarat AIR 1983 SC 753, Leela Ram v State of
Haryana AIR 1997 SC 3717 and Tahsildar Singh v State of UP
AIR 1959 SC 1012).
50. As noted herein above, the first step in appreciating
evidence of a witness is to examine his evidence de-hors the
discrepancies appearing therein and to see whether the
evidence appears to be a truthful account.
51. In the instant case, the incident occurred around 10.30
P.M. on 03.02.01. The statement Ex.PW-1/A of Haseena Bano,
which formed the basis of the registration of the FIR Ex.PW-
8/A, was recorded at 1.30 A.M. on 04.02.01. The FIR stood
registered at around 1.40 A.M. on 04.02.01. It be noted here
that Haseena Bano had removed the deceased to the hospital
as recorded in the MLC Ex.PW-4/A of the deceased. The
statement of Haseena Bano Ex.PW-1/A was recorded at the
place of occurrence after she had returned from the hospital.
It can reasonably be taken that it must have taken at least 45
minutes for Haseena Bano in removing the deceased to the
hospital, getting him admitted there and thereafter to return
to the place of the occurrence. In these circumstances, the
possibility of Haseena Bano contriving facts and spinning a
false story in such less time is remote.
52. There is yet another fact which needs to be noted. The
Supreme Court in the decision reported as Malkiat Singh v
State of Punjab (1991) 4 SCC 391 has held that it is settled law
that the First Information Report is not substantive evidence.
It can be used only to contradict the maker thereof or for
corroborating his evidence and also to show that the
implication of the accused was not an after-thought. In the
instant case, the FIR Ex.PW-8/A, records that Haseena Bano
had stated that the bullets fired by the appellants hit the
chest, left abdomen and ribs of the deceased. The findings of
the doctor who had conducted the post-mortem of the
deceased after the registration of the FIR as recorded in the
post-mortem report Ex.PW-18/A are that two bullet entry
wounds were found on the left abdomen and the chest of the
deceased. Therefore, the FIR Ex.PW-8/A duly corroborates the
testimony of Haseena Bano, for the reason, unless Haseena
Bano had seen the bullets hitting the deceased; she could not
have correctly stated the situs of the injuries suffered by the
deceased, prior to the conduct of the post-mortem of the
deceased.
53. The MLC Ex.PW-4/A of the deceased corroborates the
testimony of Haseena Bano that she had removed the
deceased to the hospital, which in turn, establishes her
presence at the place of occurrence at the time of the
incident.
54. The three eye-witnesses have corroborated each other
on material aspects relating to the incident.
55. Therefore, the conclusion which emerges from the first
reading of the evidence of the witnesses in question is that
they are prima facie truthful witnesses.
56. Next, it needs to be considered, whether the
contradictions pointed out by the learned counsel render the
testimony of said witnesses, unworthy of any credit.
57. Before examining the effect of the contradictions pointed
out by the learned counsel qua the credibility of the
witnesses, it be noted here, that the witnesses were subjected
to a very lengthy cross-examination, evident from the fact
that the cross-examination of Haseena Bano, Safdar and
Akbar runs into 31, 23 and 13 pages respectively. They were
cross-examined by as many as four counsel.
58. The first contradiction which relates to the sequence of
firing of shots by the appellants as stated by Haseena Bano on
the one hand and Safdar and Akbar on the other hand, shall
be dealt by us under the head „variance between medical and
ocular evidence‟.
59. The second contradiction that Safdar and Akbar have not
deposed a word about the factum of Akbar going to the police
station after the incident in their examination-in-chief, is of no
consequence, for the reason they have succinctly stated in
their cross-examination that Akbar had gone to the police
station after the incident. Mere omission on part of the said
witnesses to state the said fact in examination-in-chief is not
fatal to the case of the prosecution.
60. The third contradiction which relates to the mode of
transport used to remove the deceased to the hospital is no
contradiction, because a TSR is also loosely referred to as a
tempo. Even otherwise, the discrepancies in the evidence of
the prosecution regarding the mode of transportation for
removing the deceased to the hospital are minor in nature as
held by Supreme Court in a recent decision in Criminal Appeal
No.341 of 2006 Gurunath Donkappal Keri v State of Karnataka
decided on 06.05.2009.
61. The fourth contradiction, which relates to the place,
where the shots fired by appellants Sanno and Millu had hit,
shall be dealt by us under the head „variance between medical
and ocular evidence‟.
62. The fifth contradiction relating to whether the witnesses
had embraced or surrounded the deceased before the firing of
the shot by appellants Sanno and Millu pointed out by learned
counsel is again of no consequence. As already noted
hereinabove, only those former statements which have the
potential to discredit the later statement of a witness can be
used to contradict a witness. The fact that whether the
witnesses had embraced or surrounded the deceased before
firing of the shots by appellants Sanno and Millu has no
material bearing on the guilt/innocence of the appellants.
Likewise, the contradictions that whether the deceased were
related to each other because of being distant relatives or
because of belonging to the same community or that whether
the deceased had removed the quilt at the time of arrival of
the appellants are of no consequence.
63. The next two contradictions which relate to the seizure of
the articles during the investigation are of no consequence for
the reason it is settled law that it is not proper to reject the
evidence of a witness on the ground of minor variations or
infirmities in the matter of trivial details.
64. Insofar as the last contradiction which relates to the
removal and admission of the deceased in the hospital by the
witnesses Haseena Bano and Safdar is concerned, suffice
would it be to state that the deposition of the said witnesses
that they had removed the deceased to the hospital, stands
corroborated by the MLC Ex.PW-4/A of the deceased, which
records that the wife of the deceased had brought him to the
hospital.
VARIANCE BETWEEN MEDICAL AND OCULAR EVIDENCE
65. The next submission advanced by the learned counsel for
the appellants was that the ocular evidence is totally
inconsistent with the medical evidence which entitles the
appellants to get benefit of doubt. In support of the said
contention, learned counsel placed reliance upon the
judgments of Supreme Court reported as Amar Singh v State
AIR 1987 SC 826 and Ram Narain v State of Punjab AIR 1975
SC 1727. The variance pointed out by the learned counsel for
the appellants were:- (i) that the so-called eye-witnesses
deposed that all the four appellants had fired shots at the
deceased whereas post-mortem report Ex.PW-18/A records
that only two bullet entry wounds were found on the person of
the deceased. Learned senior counsel further pointed out that
there is no evidence to show that the remaining shots fired by
the appellants had missed the deceased, inasmuch as no fired
bullet, bullet mark, bullet hole etc. were found at the place of
the occurrence and there are self-contradictions in the
testimony of the said witnesses regarding the number of shots
fired on the date of the incident; (ii) Akbar PW-3, deposed
that a bullet fired by appellant Akbar had hit the back of the
stomach of the deceased, whereas no bullet entry wound was
found at said place as recorded in the post-mortem report
Ex.PW-18/A of the deceased; and (iii) the case of the
prosecution was that the appellants had fired at the deceased
from a close range which is contradicted from the fact that
there was blackening and tattooing around the injuries found
on the person of the deceased. According to the learned
counsel, blackening/tattooing of a wound is not possible in
case of firing from close range when the victim is wearing
apparel over the situs of the said wound.
66. It is no doubt true that the evidence on record
establishes that only two shots were fired on the date of the
incident inasmuch as only two shots had hit the deceased and
that there is no evidence to show that any other shots were
fired.
67. It thus needs to be considered whether the said infirmity
in the evidence of the witnesses i.e. regarding the number of
shots fired on the date of the incident dislodges the whole of
the testimony of the witnesses.
68. It is well settled that the principle 'falsus uno falsus
omnibus' does not apply to criminal trials in India. Witnesses
just cannot help in giving embroidery to a story, however, true
in its essence. One hardly comes across a witness whose
evidence does not contain a grain of untruth or at any rate
exaggeration, embroideries or embellishments. Sometimes
there is a deliberate attempt to offer embellishment and
sometimes on account of over anxiety a witness gives slightly
exaggerated account. Therefore, it has to be appraised in
each case as to what extent the evidence is worthy of
acceptance, and merely because in some respects the court
considers the same to be insufficient for placing reliance on
the testimony of a witness, it does not necessarily follow as a
matter of law that it must be disregarded in all respects. It is
the duty of the court to disengage the truth from falsehood, to
sift the grain from the chaff instead of taking an easy course
of rejecting the evidence of the witnesses merely on the basis
of few infirmities. (See the decision of Supreme Court reported
as Mani @ Udattu Man v State JT 2009 (4) SC 169 and
Keshoram Bora v State of Assam (1978) 2 SCC 407.)
69. In the decision reported as Leela Ram v State of Haryana
AIR 1997 SC 3717 the High Court had acquitted the appellants
primarily for the reason that eye-witnesses‟ account regarding
the number of shots fired by the accused at the deceased
stand contradicted by the medical evidence. After noting that
one hardly comes across a witness whose evidence does not
contain some exaggeration or embellishment and that number
of shots fired at the deceased can be termed to be immaterial
in the matter of assessing the culpability of the accused,
Supreme Court believed the testimony of the eye-witness and
convicted the accused.
70. In view of the afore-noted discussion, we hold that the
infirmity in the evidence of the eye-witnesses regarding the
number of shots fired on the date of the incident can be
ignored in light of the fact that their evidence otherwise
inspires confidence as already discussed by us in paras 51 to
54 of the judgment.
71. In view of the fact that we have held that the witnesses
were exaggerating the number of shots fired on the date of
the incident, the contradictions pertaining to the sequence of
shots fired by the appellants and place of hitting of the said
shots have become superfluous.
72. The discrepancy regarding the situs of the bullet injury
suffered by the deceased as inter se the testimony of Akbar
and the post-mortem report should be considered in the light
of the fact that the son who saw his father has been shot at
and thereafter fell dead would be totally stunned and it is on
this score that the hair splitting on the evidence on record
ought not to be undertaken and instead the totality of the
situation should be reviewed. The rationale and normal human
conduct should be kept in mind while subjecting the
deposition of a witness to a scrutiny.
73. There is absolutely no foundation for the submission that
blackening/tattooing of a wound is not possible in case of
firing from close range when the victim is wearing apparel
over the situs of the said wound as no suggestion was given to
the doctor who had conducted the post-mortem on said score.
74. Pertaining to the decisions relied upon by the counsel,
the facts of Amar Singh‟s case (supra) were that the eye-
witness deposed that the accused persons who were all armed
with sharp weapons had inflicted number of blows on the
person of the deceased and that many of the said blows fell
on the ribs and abdomen of the deceased. The medical report
recorded that not a single incised wound was found on the
body of the deceased and that no injury was noted on the ribs
and abdomen of the deceased. Supreme court held that the
evidence of the eye-witness is totally inconsistent with the
medical evidence, for if the evidence of eye-witness is to be
accepted, then there would have been incised wounds all over
the body of the deceased; whereas the medical report showed
that not a single incised wound was found on the body of the
deceased. Thus, the accused were acquitted. The instant case
is not one which is totally inconsistent with the medical
evidence, inasmuch as the evidence of the eye-witnesses that
the appellants had fired at the deceased and particularly the
version of Haseena Bano PW-1, that the bullets fired by the
appellants had hit the chest and left abdomen of the deceased
stands duly corroborated by the post-mortem report Ex.PW-
18/A of the deceased which records that the deceased died of
gunshot wounds and that bullet entry wound was found on the
chest as also the left abdomen of the deceased.
75. In Ram Narain‟s case (supra) the eye-witnesses deposed
that one shot was fired at the deceased by the accused
persons whereas medical evidence showed that the deceased
died of two gunshot injuries. Noting the afore-noted
contradiction as also the fact that the evidence of the eye-
witnesses does not inspire confidence as it was full of serious
contradictions and infirmities; that there was variance
between the scientific and ocular evidence and that the
conduct of the eye-witnesses was most unnatural after the
incident, Supreme Court acquitted the accused persons. On an
analysis of the said case, it is clear that acquittal of the
accused persons was on account of various infirmities in the
evidence of the eye-witnesses including the variance between
ocular and medical evidence, which is not the position in the
said case.
UNNATURAL CONDUCT OF THE EYE-WITNESSES
76. The next submission advanced by the learned counsel
was that the conduct of the so-called eye-witnesses after the
incident is most unnatural. The first instance of the unnatural
conduct pointed out by the counsel was that the witnesses
Haseena Bano and Safdar returned to the place of occurrence
after receiving the news of the death of the deceased instead
of remaining at the hospital which is most strange behavior
inasmuch as a grief stricken wife and son would remain by the
side of his husband/father at the time of his death. According
to the counsel, the said strange conduct of the said witnesses
shows that they had not removed the deceased to the
hospital. The second instance of the unnatural conduct
pointed out was that the witnesses did not inform the other
adult son of the deceased namely Arshad who was sleeping at
a place which was at a stone throw distance from the place of
occurrence about the incident before leaving for the
hospital/police station. In support of the contention that the
evidence of the witnesses should not be believed on account
of their unnatural conduct, the counsel placed reliance upon
the decisions of Supreme Court reported as Selveraj v State of
Tamil Nadu 1976 CriLJ 1541 and Chanan Singh v State of
Haryana 1971 CriLJ 1554.
77. Pertaining to the submission relating to the conduct of
the mother of the deceased, it would be beneficial to note the
following observations made by Supreme Court in the decision
reported as Leela Ram v State of Haryana AIR 1997 SC 3717:-
"The court shall have to bear in mind that different
witnesses react differently under different situations:
whereas some become speechless, some start
wailing some others run away from the scene and
yet there are some who may come forward with
courage, conviction and belief that the wrong should
be remedied. As a matter of fact it depends upon
individuals and individuals. There cannot be any set
pattern or uniform rule of human reaction and to
discard a piece of evidence on the ground of his
reaction not falling within a set pattern is
unproductive and a pedantic exercise."
78. In the decision reported as State of Karnataka v
K.Yellappa Reddy AIR 2000 SC 185 it was held by Supreme
Court that unless the reaction demonstrated by an eye-witness
is so improbable or so inconceivable from any human being
pitted in such a situation it is unfair to dub his reaction as
unnatural.
79. In the instant case, the deceased was declared as
brought dead at the hospital. The body of the deceased would
have been handed over to the family members after a
considerable time as it was a case of a murder. The witnesses
could not have achieved anything by remaining at the hospital
as the deceased was dead. It is the human tendency to seek
the solace of his loved ones and be in his familiar surroundings
in the time of crisis. In view of said circumstances, the fact
that the witnesses returned to the place of occurrence instead
of remaining at the hospital cannot be viewed with suspicion.
80. A comparable situation had arisen before Bombay High
Court, in the decision reported as Sanjay v State of
Maharashtra MANU/MH/0873/2007, wherein the injured
witnesses who were the relatives of the deceased who was
declared as brought dead left the hospital after getting
treatment for their injuries. It was held by the Court that the
conduct of the witnesses who were in a disturbed state of mind
in leaving the hospital as the completion of the formalities
were to take time cannot be viewed with suspicion.
81. There is nothing unnatural in the conduct of the
witnesses in not informing the other adult of the son of the
deceased about the incident before leaving for the
hospital/police station. The mental faculties of a person
become slow in a crisis situation. The possibility that the
thought of informing the other son of the deceased did not
cross the mind of the said witnesses is highly likely in the said
circumstances.
82. Facts of Selveraj‟s case (supra) were that the appellant
demanded sexual favor from the deceased and on her denial,
stabbed the deceased. The husband of the deceased and one
other person had witnessed the said incident. While the
appellant was running away, he was questioned by three
persons, whereupon he replied that he had taken revenge
from the deceased by stabbing her. Acquitting the appellant,
the Supreme Court held that it is difficult to believe that the
appellant was so inflamed with passion as to demand sexual
intercourse with the deceased in presence of her husband and
that the conduct of husband of the deceased was highly
unnatural and difficult to accept as there were two persons on
his side, and yet, he quietly watch proceedings without making
any attempt to save the deceased; that it is difficult to believe
the story of the witnesses that after committing murder of the
deceased, the appellant would be running in open street
holding in hand for every one to see knife with which he
stabbed the deceased and would stop for purpose of
answering question and boastfully proclaim that he killed the
deceased and wreaked vengeance. Under said circumntances
the recovery of the knife from the person of the appellant was
held to be suspicious.
83. In Chanan Singh‟s case (supra) the eye-witnesses fled
from the place of occurrence after witnessing the incident and
did not inform the family members of the deceased about the
incident despite the fact the house of the deceased fell on his
way when he was fleeing. The witness informed the police
about the occurrence after a considerable delay. Noting that
there was no evidence to show that the witness was struck by
terror or fear, the Supreme Court held that the conduct of the
witness in not informing the police or family members of the
deceased about the occurrence is most unnatural. The
accused was acquitted. Relevant would it be to note that
besides the factum of unnatural conduct of the witness, the
other reasons which weighed with the Supreme Court for
acquitting the accused were that there were many inherent
improbabilities and infirmities in the evidence of the eye-
witness and that there was material variance between the
ocular and medical evidence.
IMPROBABILITIES IN THE CASE OF THE PROSECUTION
84. It was urged that there are following improbabilities in
the case of the prosecution; namely, (i) that the place of
occurrence was a small slum-dwelling ad-measuring, at the
most, 10 X 10½ feet where 7 persons besides the deceased
were present and therefore it is highly improbable that the
shots fired by the appellants did not miss their target and hit
the other persons present therein; (ii) that the evidence on
record establishes that there was a room on the first floor of
the slum-dwelling and therefore it is most difficult to believe
that 8 persons including 4 adults were sleeping in one room
when one spare room was available at their disposal and (iii) it
is difficult to believe that the door of the slum-dwelling was not
bolted from inside at 10.30 P.M. in the night on the date of the
incident as deposed to by the so-called eye-witnesses.
85. The answer to the question as to why none of the other
persons present at the place of occurrence at the time of the
incident receive any bullet injuries lies in the post-mortem
report Ex.PW-18/A of the deceased. The said report records
that the blackening and tattooing was noticed around the two
gunshot entry wounds found on the person of the deceased,
which indicates that the shots were fired at the deceased from
a closed range. The doctor who conducted the post-mortem of
the deceased also opined that the injuries found on the person
of the deceased were caused by the projectile of a firearm
fired from a closed range. The fact that the shots were being
fired from a close range increases the probability of the shots
hitting their target. In such circumstances, the fact that none
of other persons present at the place of occurrence receive
any bullet injury is clearly explainable.
86. The family of the deceased belongs to the economically
weaker sections of the society evident from the fact that they
were living in a slum-dwelling. The said section of the society
is constrained and used to live in cramped spaces because of
scarcity of funds which could enable them to have an
adequate accommodation for a living. Courts cannot be
oblivious to the ground realities. Considering the economic
status of the family of the deceased, there is nothing unusual
in the fact that 8 persons were sleeping in one room on the
date of the incident.
87. Insofar as the submission pertaining to the locking of the
door of the house of the deceased is concerned, it is relevant
to note the testimony of Haseena Bano PW-1, that they used
to bolt the door of their house only when all of the family
members were about to sleep. The eye-witnesses have
categorically deposed that the deceased, Haseena Bano,
Safdar and Akbar were awake at the time of the arrival of the
appellants in their house; therefore, the circumstance of the
door of the house of the appellants on not being locked at the
time of the incident is explainable. Even otherwise, there is
nothing improbable in the fact that the door of a slum-dwelling
was not locked in the night as the slum-dwellers can bother to
leave their house unlocked inasmuch as thieves hardly bother
to trouble them because of the non-availability of valuable
things in their house.
GENESIS OF THE OCCURRENCE NOT BEING PROVED
88. The next submission advanced by the learned counsel for
the appellants was that the evidence pertaining to genesis of
the occurrence suffers from serious infirmities, which is fatal to
case of the prosecution. The first infirmity pointed out by the
counsel was that the so-called eye-witnesses have deposed
that a quarrel had ensued between the deceased and
appellant Sanno on account of a sum of money demanded by
appellant Sanno which led to the murder of the deceased
whereas Haseena Bano PW-1, in her cross-examination stated
that appellant Sanno did not demand any money from the
deceased and that there was no quarrel between them on the
date of the incident. The second infirmity pointed out by the
counsel was that Akbar PW-3, stated in his cross-examination
that appellant Afsar had taken money from the deceased 7-8
days from the incident, which is contrary to the case of the
prosecution.
89. The FIR Ex.PW-8/A which was registered on the basis of
the statement of Haseena Bano PW-1, clearly records that the
genesis of the occurrence was a quarrel which had ensued
between the deceased and appellant Sanno because of a sum
of money demanded by appellant Sanno from the deceased.
Haseena Bano PW-1, in her examination-in-chief categorically
deposed about the said fact. The other two eye-witnesses,
Safdar and Akbar, also deposed about the said fact. It is highly
possible that Haseena Bano got overawed and confused by the
court atmosphere and piercing and lengthy cross-examination
due to which she mixed up facts. As already noted in para
49(IV), a hyper technical approach by taking sentences torn
out of context here or there from the evidence does not
ordinarily permit rejection of the evidence of a whole.
90. The deposition of Akbar PW-3, that appellant Afsar had
money dealings with the deceased does not negate the
evidence on record that appellant Sanno had demanded a sum
of money from the deceased on the date of the incident. It is
possible that the deceased was having money dealings with
appellant Sanno as also Afsar.
SUSPICIOUS CIRCUMSTANCES IN THE CASE OF THE
PROSECUTION
91. The next submission advanced by the learned counsel for
the appellants was that there are various suspicious
circumstances in the case of the prosecution which raises a big
question mark on the genuineness of the same. The suspicious
circumstances pointed out by the counsel were that:- (i) DD
Entry No.28A Ex.PW-6/A records that the deceased was shot
dead at an electric transformer situated near Brahmpuri Pulia
which corroborates the defence of the appellant that the dead
body of the deceased was shifted to his residence to contrive
evidence against the appellants; (ii) that there is an
overwriting in the name „Afsar‟ recorded in the DD Entry
No.28A Ex.PW-6/A; (iii) that the name of Akbar has been
surreptiously included in the list of witnesses filed by the
prosecution before the trial court evident from the change in
seriatim of the witnesses in the said list; (iv) that there is
considerable delay in the admission of the deceased in the
hospital inasmuch as the incident had occurred at 10.30 P.M.
and the deceased was admitted in GTB hospital at 11.30 P.M.
whereas the distance between the place of occurrence and the
hospital was hardly one kilometer; (v) that the case of the
prosecution that Akbar had gone to police station Seelampur
after the incident is falsified as there is no piece of evidence
which could establish the said visit of Akbar; (vi) that Haseena
Bano and Safdar have deposed that their clothes were stained
with the blood of the deceased but no such clothes were
seized by the police; (vii) that the rough site plan Ex.PW-12/B
of the place of occurrence does not indicates the position of
the so-called eye-witnesses; (viii) that only the relation of the
person and not the name of the person who had brought the
deceased to the hospital has been recorded in the MLC Ex.PW-
4/A of the deceased; (viii) that there is no evidence to show
that thumb impression on the MLC of the deceased are that of
Haseena Bano; (ix) that the names of the assailants of the
deceased do not find a mention in the MLC of the deceased.
92. The eye-witnesses as also the police officials who had
conducted the investigation of the said case have deposed
that the electric transformer situated near Brahmpur Pulia was
very close to the residence of the deceased. There is a
tendency among persons to associate a particular place with a
prominent landmark situated near the said place for the
purposes of identification. It is apparent that the person who
informed the police did not know the municipal number of the
place of the occurrence i.e. the residence of the deceased, or
has otherwise for the purposes of identification, associated the
place of occurrence with the electric transformer as the same
was a prominent landmark situated close to the place of
occurrence.
93. HC Umesh Singh PW-6, who is the scribe of DD Entry
No.28A Ex.PW-6/A, has denied the suggestion that he had
made interpolations in the said document to include the name
of appellant Afsar therein. Typing or writing errors being noted
contemporaneously and corrected there and then are not
unknown.
94. The list of witnesses filed by the prosecution is at page
695 of the trial court record. It is no doubt true that a
correction has been made in the said list to include the name
of Akbar. But therefrom itself, it cannot be inferred that an
interpolation has been made. It is most relevant to note that
same pen with which the list of witnesses has been prepared is
the one used to insert the name of Akbar in the said list, which
establishes that the person who had prepared the said list
committed an inadvertent error by omitting to include the
name of Akbar therein, which mistake had been duly corrected
there and then.
95. The eye-witnesses have approximately fixed the time of
occurrence as 10.30 P.M. It cannot be taken as gospel truth
that incident had occurred at 10.30 P.M. The incident had
occurred in the late hours of the night, therefore, the
witnesses, namely Haseena Bano and Safdar must have taken
considerable time in arranging the transport for removing the
deceased to the hospital. They would have also taken some
time for transporting the deceased to the hospital. The doctor
would have taken time to examine the deceased and
thereafter prepare his MLC. In such circumstances, the time
gap of one hour between the time of the occurrence and
preparation of the MLC of the deceased is most reasonable, in
any case not unreasonable.
96. HC Umesh Singh PW-6, who was posted as duty officer at
Police Station Seelampur on the date of the incident, deposed
that a person who claimed himself to be the son of the
deceased visited the police station on the date of the incident.
The said police official has not deposed that any inquiry was
made from said person. No document was prepared by him
recording the visit of the son of the deceased in the hospital. It
is possible that no attention was paid to the son of the
deceased as some police officers had already left for the place
of occurrence for investigation. The conduct of HC Umesh
Singh PW-6, in not paying any attention to the son of the
deceased, brings out the apathy of the police officials towards
the economically weaker sections of the society. Be that as it
may, it establishes that a son of the deceased did visit the
hospital and that the same was Akbar.
97. Insofar submission pertaining to non-seizure of the
clothes of the eye-witnesses is concerned, suffice would it be
to note the decision of Supreme Court in Gurunath‟ s case
(supra) wherein a similar contention was advanced on behalf
of the accused persons. Repelling the said contention, it was
held by the Court that the said fact merely points out an error
on the part of the Investigating Officer and the same, by itself,
is not sufficient to discard the entire prosecution case.
98. The site plan is not substantive evidence as held by
Supreme Court in the decisions reported as State of UP V Babu
AIR 2003 SC 3408 and Surinder Singh v State of UP AIR 2003
SC 3811. Therefore, not indicating the position of the eye-
witnesses in the site plan has no bearing on the case of the
prosecution.
99. The submissions which were predicated upon the MLC of
the deceased can again be dealt with reference to the decision
of Supreme Court in Gurunath‟s case (supra). In the said case,
one of the submissions advanced on behalf of the accused
persons was that case of the prosecution is doubtful inasmuch
as the names of all the four persons who had removed the
deceased to the hospital were not recorded in the medical
certificates and that the nature of the weapon used as also the
names of the assailants do not find a mention in the hospital
register. While repelling the said contention, the Court held
that the deceased was seriously injured and therefore, it was
not expected of the doctor who was treating the deceased to
have recorded in details the names of the persons who had
brought the deceased to the hospital inasmuch as the priority
of the doctor was to save the life of the injured and not to
make entries. It was held that there is no requirement in law
that the doctors must note down every bit of the details of the
incident in the registers maintained by them.
PERFUNCTORY INVESTIGATION
100. It was urged that there are serious lacunas in the
investigation conducted in the present case and that the same
are fatal to the case of the prosecution. The lacunas pointed
out by the counsel were that:- (i) that seizure memos of the
articles allegedly seized from the residence of the deceased
bear the signatures/thumb impressions of Haseena Bano,
Safdar, Akbar, Const.Shokeender, Const.Billu Singh and SI
Jagveer Singh whereas Const.Shokeender has deposed that
Haseena Bano was not present at the time when the case
property was seized from the place of occurrence and that no
other person besides him, Const.Billu Singh and SI Jagveer
Singh had signed the said memos. Particular emphasis was
laid on the testimony of Haseena Bano that Safdar had got
affixed thumb impressions of Haseena Bano on certain
documents given by the police few days after the incident and
that seizure memo Ex.PW-1/C was one of the said documents;
(ii) Const.Shokender has deposed that SI Jagveer Singh had
prepared the site plan of the occurrence at his own instance.
Much emphasis was laid on the testimony of Haseena Bano
that the Investigating Officer had prepared the site plan on his
own accord; (iii) that 90 pellets were recovered from the body
of the deceased whereas only 88 pellets were sent to the FSL
as evident from the FSL report Ex.PW-19/C which shows that
there was tampering with the case property; (iv) FSL report
Ex.PW-19/C records presence of one hole which was caused by
the bullet on the back of the shirt of the deceased whereas no
entry wound was found on the back of the deceased as
recorded in the post-mortem report Ex.PW-18/A of the
deceased and (v) that no weapon of offence was recovered.
101. Save and except Const.Shokeender, all the other
witnesses to the seizure memos in question, namely Haseena
Bano, Safdar, Akbar, Const.Billu Singh and SI Jagveer have
deposed that Haseena Bano, Safdar and Akbar were present at
the time of the seizure of the articles in question from the
place of occurrence. Insofar as the testimony of Haseena Bano
and Safdar that Safdar had got affixed thumb impressions of
Haseena Bano on certain documents given by the police few
days after the incident is concerned, it be noted here that site
plan to scale Ex.PW-13/A was prepared few days after the
incident therefore, it is quite possible that the thumb
impressions of Haseena Bano were obtained in connection with
preparation of the said plan or some other documents relating
to the investigation. The testimony of Haseena Bano that
seizure memo Ex.PW-1/C is one of the documents on which her
thumb impressions were obtained a few days after the incident
is clearly an error on the part of Haseena Bano who has
obviously mistaken said document for some other document,
inasmuch as she is an illiterate lady and probably recognized a
document only by looking at it and recollecting its broad
features. The testimony of Const.Shokeender is the only piece
of evidence which strikes a discordant note and is explainable
as a mix up of facts. In any case, the same is trivial.
102. Haseena Bano, Const.Billu Singh and SI Jagveer Singh
have deposed that the site plan Ex.PW-12/B was prepared at
the pointing of Haseena Bano. Haseena Bano had first stated
that she had pointed out the relevant spots to the
Investigating Officer while he was preparing the site plan and
has later deposed that the site plan was prepared by him on
his own accord. From a conspectus reading of the two
statements as also the fact that Haseena Bano was an illiterate
lady, it is apparent that she had meant the Investigating
Officer was drawing the site plan and that she had shown
relevant spots to him.
103. The last submission which related to the discrepancy in
the number of pellets recovered from the body of the
deceased can be dealt with reference with to the FSL reports
Ex.PW-19/C and Ex.PW-19/D. The FSL report Ex.PW-19/D
records that 90 pellets were received in the biology division of
the laboratory. Since some of the queries raised pertained to
the domain of the ballistic division, the necessary parcel
including the parcel containing the pellets were forwarded to
the ballistic division. The FSL report Ex.PW-19/C records that
88 pellets were received by the ballistic division. It is therefore
clear that no tampering was done with the case property by
the police officials and that an error occurred in the biology
division of the FSL while re-sealing the parcel containing the
pellets recovered from the body of the deceased.
104. Insofar as the discrepancy between the medical and
scientific evidence is concerned, it be noted here that the
injury no. (iii) noted on the post-mortem report of the
deceased, which is a firearm exit wound, was found on the
back of the deceased which answers the presence of a hole
caused by a bullet on the back of the deceased.
105. Pertaining to the submission that the weapon of
offence(s) were not recovered, suffice would it be to state the
decision of this Court reported as Abdul Mursalin v State 2005
(84) DRJ 430 wherein it was held that the non-recovery of the
weapon of offence is immaterial where there is direct evidence
of an eye-witness to an incident.
106. From the evidence on record it is apparent that all the
appellants had visited the jhuggi of the deceased with a pre-
determined intention to make him pay money and upon his
refusal to do so, the appellants took out firearms. Only two
appellants fired a shot each resulting in the death of the
deceased. Two appellants took out firearms, obviously to
intimidate everybody who was present in the jhuggi. It is
apparent that the two shots were fired by Afsar and Akbar, the
two persons named in the DD Entry 28A. The other two just
took out the firearms to intimidate the residents of the jhuggi.
That the witnesses have attributed firing by all the appellants
is obviously a result of the witnesses being overtaken by fear
and being from a humble background, attributing firing at the
instance of all the appellants, being the conclusion arrived by
the mind which sees somebody take out a pistol and hold it
out in a threatening manner.
107. In view of above discussion, the appeals are dismissed.
(PRADEEP NANDRAJOG)
JUDGE
(ARUNA SURESH)
JUDGE
May 29, 2009
mm
