3 CRA No. 2452/2007In brief the prosecution case is that on 25.01.2006 at about 11:00 pm at Motilal Nagar, PS Nishatpura, Rijwan Khan (PW-9) heard the noise of a quarrel outside his house.He came out from his house and saw that the appellants and other co-accused were assaulting Akram Bhaijan with their knives and abusing him.The appellants were annoyed with Akram.They suspected that, Akram had informed the police (mukhbiri) about their profession.They inflicted blows of their knives on his head, chest, stomach, back and legs.They intended to kill Akram.Rijwan (PW-9) went there to rescue Akram, but the appellant Shaukat assaulted him with a knife on his left palm.Khalid, Mohd. Azam and Javed also came to rescue Akram.Akram fell down due to fatal injuries.Then appellants fled away.The persons who were present there brought him to Hamidia Hospital, where doctor declared him dead.Then, an FIR was lodged by Rijwan (PW-9) at police station, Nishatpura.To establish the crime against them, the prosecution is based on the testimony of eye-witness Rizwan (PW-9) who is an injured eye-witness.He deposed that at the time of incident on 25.01.2006 at about 10:30 pm to 11:00 pm, he was present at his house.He heard noise of a quarrel outside and came out.He saw that all the appellants had surrounded Akram (since deceased) and were abusing him.They were armed with knives and told Akram that he was the informant of the police against the appellants.The appellants inflicted blows on him using their knives.He sustained several injuries on his stomach, head, back, leg, chest, etc. He fell down on the ground.Rizwan (PW-9) reached there to rescue Akram.Appellant Shaukat assaulted Rizwan by knife.Rizwan sustained injuries on his left palm.On hearing the hue and cry, Azam, Khalid, Javed and other persons also came there and tried to save Akram and Rizwan from the appellants.Then, the appellants ran away from the spot.Akram and Rizwan were brought to the police station and on the advice of the police, they were brought to 7 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 Hamidia Hospital.(08/05/2018) Per : Smt. Anjuli Palo, J :-Criminal appeal No. 2452/2007 has been preferred by appellant Sahib @ Afzal challenging the conviction; Criminal Appeal No. 2004/2008 has been filed by Mohd. Sohel, Mohd. Shaukat, Soyeb, Sharafat and Shahjad Khan challenging the conviction; and Criminal Appeal No. 582/2010 has been filed by the State challenging the acquittal of appellants Sahib @ Afzal and Majid from the charges under Section 147, 148 and 302 r/w Section 49 of IPC.2 CRA No. 2452/2007Appellant Sahib @ Afzal and Majid have been convicted and sentenced as below :Appellants Mohd. Sohel, Mohd. Shaukat, Soyeb, Sharafat and Shahjad have been convicted as under :Appellant Mohd. Shaukat has been further convicted as under:The police registered crime under Section 302/149 and 324 of IPC against all the appellants and other accused persons.After investigation, charge sheet has been filed against them under the same provision before the concerned Court.After committal of the case learned trial Court conducted trial and held that except the accused Sahib @ 4 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 Afzal and Mazid @ Chhotu, all the appellants are liable for committing the murder of deceased (Akram) in furtherance of their common object to kill Akram.They are members of unlawful assembly to cause death of Akram.At the time of occurrence, they were armed with deadly weapons (like knife).Hence, they have committed offence of rioting and armed with deadly weapon and caused death of Akram which is punishable under Section 148 and 302/149 of IPC.At the same time, the appellants Mohd. Shaukat has voluntary caused simple injuries to witness Rijwan (PW-9) by his knife.Hence, he was convicted under Section 324 of IPC and sentenced for life imprisonment and rigorous imprisonment for one year, respectively.The respondents Mohd. Sahib @ Afzal and Mazid were convicted only under Section 25 Arms Act and sentenced as mention above.4 CRA No. 2452/2007The appellants have challenged the aforesaid findings on the grounds that learned trial Court has committed an error while convicted them on weak type of evidence.There were many contradictions, omissions and improvements in the versions of the prosecution witnesses.The testimony of all the eye witnesses is entirely unbelievable.The trial Court has failed to see that there was a sudden quarrel which was not a result of pre-meditative act.5 CRA No. 2452/20075 CRA No. 2452/2007CRA No. 2004/2008 CRA No. 582/2010 The appellants were not the hardened criminals.The learned trial Court ought to have acquitted them.The prosecution has not proved the seizure of the knives.The medical evidence has also not established that the appellants had a common intention to commit murder of the deceased.The evidence of prosecution witnesses are not corroborated by any other independent witnesses.Hence, evidence of prosecution is tainted.Many illegalities and irregularities were committed by the Investigating Officer.It was also alleged that defence ought to have been accepted in favor of appellants.Hence, impugned judgment is liable to be set aside and appellants are liable to be acquitted.State has challenged the acquittal of the appellants Mohd. Sahib @ Afzal and Mazid from charges under Sections 147, 148, 149 and 302 of IPC on the grounds that the trial Court has erred in not appreciating the entire evidence in proper prospective.The findings of trial Court are illegal and liable to be set aside and have prayed for conviction of the respondents Mohd. Sahib @ Afzal and Mazid for rioting with deadly weapons and murder of Akram under Section 148 and 302/149 of IPC.We have heard all the learned counsel for the parties at length and perused the record.6 CRA No. 2452/20076 CRA No. 2452/2007CRA No. 2004/2008 CRA No. 582/2010Whether the appellants are rightly convicted under the charges levelled against them.Doctors declared Akram dead.Police also came there.Dehati Nalishi Ex. P/26 has been lodged by Rizwan (PW-9).The testimony of Rizwan (PW-9) is also corroborated by the other eye-witness, Mohd. Azam (PW-10), Khalid (PW-11) and Javed (PW-13).All the eye-witnesses strongly proved their presence at the scene of occurrence.7 CRA No. 2452/2007S.R.Yadav (PW-20) Inspector deposed that on the same day, he received information about the incident.He reached Hamidia Hospital and lodged Dehati Nalishi Ex. P/26 as narrated by Rizwan (PW-9).Dehati Nalishi (Ex. P/26) was received by Inspector R.S.Rai (PW-17).He deposed that FIR Ex. P/34 was registered by him on 26.01.2006 at 1:00 am under Section 302, 149 and 324 of Indian Penal Code against the appellants.Dehati Nalishi Ex. P/26 and FIR Ex. P/34 also corroborate the testimony of Rizwan and other eye-witnesses.Both the documents clearly establish the involvement of all the appellants.The promptness in lodging the FIR by names of the assailants and all the material facts mentioned in FIR itself indicate the truthfulness of the 8 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 incident.It prevents the possibility of false implication of the appellants in the concocted story.There is no material contradictions and omission in the testimonies of eye- witnesses.There is no inconsistency between their testimonies and with the FIR which inspires confidence and establish that the evidence of the eye-witnesses is trustworthy.Hence, it it not liable to be disbelieved.8 CRA No. 2452/2007It is also pertinent to mention here that the Rizwan (PW-9) is injured eye-witness.The testimony of injured eye-witness has great evidentiary value."The injuries found on the person of who was injured in the same occurrence lends assurance to his testimony that he was present at the time of the occurrence along with the prosecutrix.The evidence of an injured witness is entitled to a greater weight and the testimony of such a witness is considered to be beyond reproach and reliable.Firm, cogent and convincing ground is required to discard the evidence of an injured witness".Dr. Pravendra Malik (PW-14) examined Rizwan (PW-9) on the date of incident at about 11:00 pm.He found an incised wound of about 2.5 x 1 cms on his left palm and internal tissues were visible from the cut.Rizwan was not 9 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 able to move his ring finger and little finger.9 CRA No. 2452/2007As per Dr. Pravendra Malik, all the injuries were caused by hard and sharp object.In his cross-examination, he strongly denied that the injuries were caused by broken glass.The evidence of Dr. Pravendra Malik is corroborated by the testimony of other eye-witnesses particularly the testimony of Rizwan (PW-9).Dr. J.K.Chourasia (PW-12) also corroborated the testimony of Dr. Pravendra Malik.Hence, it is properly believed by the trial Court.Dr. J.K.Chourasia (PW-12) also examined the injuries of deceased Akram on the same date of incident at around 11:20 pm at Hamidia Hospital.Dr. Ashok Sharma (PW-19) conducted autopsy of the deceased Akram and found the following injuries on the person of the deceased :(i) Abrasion on left forehead obliquely of 6x0.5 cms.(ii) Incised wound on mid forehead of 3x0.1 cms.(iii) Long incised wound on the forehead of 5x0.3 cms extending towards left auxillary region of 1x0.5 cms.below and similar to injury No. (v) of 10 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 1.5 x 3 cms.Main artery was cut.10 CRA No. 2452/2007(vii) Stab wound below injury No. (vi) on the stomach of 1x0.2 cms and 10 cms depth.(viii) Stab wound radial to injury no. (iv) of 1x0.3 cms and depth of 7 cms.cutting the main artery.(ix) Stab wound of 8 cms lateral to injury no. (5) on the stomach of 1x0.3 cms and depth of 14 cms penetrating the intestine.(x) Stab wound on the stomach lateral to injury No. (viii) of 1x0.3 cms on the stomach and 7 cms in depth cutting intestine.(xi) Stab wound lateral to injury No. (x) on the stomach of 1.2x0.3 cms cutting the intestine and spleen.(xii) Multiple stab wound on left back : 7 in number.(xiii) Stab wound on the right side of back of 1.2x0.3x7 cms deep rupturing the lung.(xiv) Long lacerated wound on the right shoulder of 5x1 cm.(xv) Stab wound on the right chest of 1.3x0.2 cms penetrating the chest rupturing the lung.(xvi) Stab wound near injury no. (xv) of 1x0.2 cms and 7 cms.deep penetrating the chest.(xvii) Stab wound on right side of back of 15x0.3 cm and 8 cms deep penetrating the diaphragm and large intestine.(xviii) Stab wound on right side of chest 1.3 x 0.2 cms.and 7 cms deep penetrating the stomach.(xix) Stab wound 6 cms.below injury No. 16 of 13x0.3 cms penetrating the 11 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 stomach rupturing the large intestine.(xx) Stab wound 4 cms below injury No. 16 penetrating the stomach of 1.2x0.2 cms, 6 cms deep (xxi) Incised wound on the right knee 1x0.2 cms.11 CRA No. 2452/2007(xxii) Incised wound below 4 cms of above wound of 1x3 cm.(xxiii) Lacerated wound on the right ankle of 4x1 cms x bone deep.(xiv) Lacerated wound on right side of head 5x1 cms.(xvi) Incised wound on left parietal region of 3.5x0.5 cms.Dr. Ashok Sharma (PW-19) opined that deceased died due to excessive bleeding from several fatal wounds and coma.All the injuries were caused by hard, sharp and pointed objects and were sufficient to cause death of the deceased in ordinary course of nature within 24 hours from postmortem.He also found cut impression on the clothes of the deceased.Parallel to the injuries found on the body of the deceased.Inspector S.R. Yadav (PW-20) stated that on 27.01.2006, he recorded the memorandums of the appellants Mohd. Shaukat, Mohd. Sohel and Mohd. Soyeb as Ex.P/6, Ex.P/7 and Ex.According to their memorandums, he seized a knife from the house of the appellant Mohd. Shaukat.Similarly, he recovered another knife from the possession of appellant Mohd. Sohel and a knife was 12 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 recovered from the possession of appellant Mohd. Soyeb.Different knives were seized form the possession of Mohd. Shaukat, Mohd. Sohel and Mohd. Soyeb vide seizure memo Ex.P/13 and Ex.12 CRA No. 2452/2007Dr. Ashok Sharma (PW-19) examined all the six knives which were hard, sharp and pointed objects.He deposed that he took a picture of the aforesaid weapons.The injuries mentioned in his postmortem report (Ex.P/36) and cut marks found on the clothes of the deceased can be caused by the aforesaid weapons.His report Ex.P/38 has also supported the prosecution case properly.It is important to mention here that learned counsel for the appellants has not cross-examined Dr. Ashok Sharma (Pw-19) nor he has challenged the doctor's opinion.In our considered opinion the testimony of Dr. Ashok Sharma (PW-19) has duly corroborated the direct evidence.There is no reason to disbelieve the opinion of Dr. Ashok Sharma which has further corroborated by other evidence on record and doctor's opinion.All the weapons were sent for FSL examination by S.R.Yadav (PW-20).In the FSL report (Ex.P/40) blood stains 13 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 were found on the soil collected from the spot and clothes of the deceased and particularly all the six knives as Article-E, F, G, H, I & J all were blood stained, which were recovered from the appellants.In four knives as Article-E, F, H & J, the expert confirmed that human blood was present on it.Due to the technical reason that spots of blood were disintegrated and quantity of blood was not sufficient.Origin of blood was not confirmed in FSL report.13 CRA No. 2452/2007In case of State of Rajasthan Vs.Teja Ram & Ors.[(1999) 3 SCC 507], Hon'ble Supreme Court has held as under :"Failure of the Serologist to detect the origin of the blood, due to disintegration of the serum in the meanwhile, does not mean that the blood stuck on the axe would not have been human blood at all.Sometimes it happens, either because the stain is too insufficient or due to hematological changes and piasmatic coagulation that a Serologist might fail to detect the origin of the blood.Will it then mean that the blood would be of some other origin? Such a guess work that blood on the other axe would have been animal blood is unrealistic and far fetched in the broad spectrum of this ease.The effort of the criminal court should not be to prowl for imaginative doubts.Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity no benefit can be claimed by the accused.It cannot be said that in all cases where there was failure of detecting the origin of the.blood the circumstance arising from recovery of the 14 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 weapon would stand relegated to disutility."14 CRA No. 2452/2007As the recoveries of the bloodstained gunny bag, dumb-bell, tie, etc. were made on the basis of the disclosure statement of the 15 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 appellant himself, the chain of circumstances is therefore complete."15 CRA No. 2452/200716 CRA No. 2452/2007All the eye witnesses have clearly identified them by their names.They have also established their active involvement with the crime along with the other appellants.Police has also seized knives from their possession, as per their memorandums.Blood stains were found on their knives.In our considered opinion, plea of alibi which was 17 CRA No. 2452/2007 CRA No. 2004/2008 CRA No. 582/2010 taken by them is purely an afterthought.All the eye witnesses have not accepted that at the time of the incident appellant Afzal and Majid were not present on the spot.It is also important to note that Rizwan (PW-9) is an injured eye witness.No suggestion has been given to him about "not presence of the appellants Sahib @ Afzal and Majid" on the spot or with regard to their plea of alibi.Similarly, no suggestion has been given to the other eye witnesses nor they accepted the absence of the aforesaid appellants from the spot.It is apparently clear that the story of defence witnesses is after thought.It is made during the stage of defence evidence.On the aforesaid reason we are not inclined to accept the aforesaid defence version in favour of the appellants Sahib @ Afzal and Majid.17 CRA No. 2452/2007This Court has consistently taken the view that in an appeal against acquittal the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed.This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor [AIR 1934 PC 227] and Nur Mohammad v. Emperor [AIR 1945 PC 151].18 CRA No. 2452/2007In our opinion, learned trial Court has committed an error in acquitting Sahib @ Afzal and Majid form the charges under Sections 147, 148 and 302 read with Section 149 of IPC.Accordingly, CRA No. 582/2010 filed by the State for convicting Sahib @ Afzal and Majid is hereby allowed.Their acquittal from the aforesaid charges is hereby set aside.They are also convicted under Sections 147, 148 and 302 read with Section 149 of IPC and are awarded sentence as follows :19 CRA No. 2452/2007

Sections cited: Section 149 in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 324 in The Indian Penal Code, Section 148 in The Indian Penal Code, Section 300 in The Indian Penal Code, Section 147 in The Indian Penal Code