HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1390 OF 2001 (OLD NO.133/1994) Jahid S/o Shaukat .……….. Appellant Versus State of Uttarakhand ..…….. Respondent Dated: September 08, 2009 Mr. J.S. Virk, Advocate for the appellant Mr. M.A. Khan, Brief Holder for the State Hon’ble Dharam Veer, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 25/27.01.1994 passed by Special Judge (Additional Sessions Judge), Nainital in S.T. No.103/1990, State Vs. Jahid & Shaukat, whereby the learned Special Judge (Addl. Sessions Judge) has convicted the accused/appellant Jahid u/s 304 Part II of the Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of ten years. However, the co-accused Shaukat was acquitted of the charge levelled against him by the trial court. 2. I have heard Mr. J.S. Virk, Advocate for the appellant as well as Mr. M.A. Khan, Brief Holder for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that Abdul Jabbar (PW3) lodged the FIR at P.S. Sitarganj stating therein that on 4.10.1989 his brother Sultan along with his partner Mehmood Hussain (PW4) were unloading the soil from their truck in front of their house at Village Pindari. At about 4 PM 2 the accused/appellant Jahid resident of the same village came there and asked Sultan to unload the soil in front of his house first, otherwise, he will not allow to unload the soil. Sultan asked the accused/appellant to unload the soil from his own truck. On this accused Jahid started hurling abuses and an altercation took place between them. Jakir Hussain and Suleman (PW5), who were present on the spot, intervened in between the quarrel and asked Jahid to go home. After sometime accused Jahid accompanied by his father Shaukat again came there. Jahid was armed with PATTI of the cot and on the instigation of Shaukat (co- accused), accused Jahid caused injuries to his brother Sultan with Patti as a result of which he fell down. On seeing this incident, he along with other two aforesaid witnesses came to his rescue. Wife of Sultan also came at the place of incident. On believing that Sultan has died accused Jahid fled from the place of occurrence. His brother died on the spot. With the above-said averments, the First Information Report was lodged by Abdul Jabbar (PW3) on 4.10.1989 at 05:45 PM at P.S. Sitarganj, that FIR is Ext.Ka-1. On the basis of FIR Ext.Ka-1, Chik FIR was prepared by Head Mohirror Shishu Pal Singh i.e. Ext.Ka-10. Necessary entries were also made in the G.D., copy of which is Ext.Ka-11. The investigation of this case was entrusted to Sub Inspector K.P. Singh (PW6), who prepared the inquest report of the dead body i.e. Ext.Ka-3. Along with the inquest report other papers viz. letter to CMO for conducting post-mortem examination of the dead body i.e. Ext.Ka-4, sketch of the dead body i.e. Ext.Ka-5 and Police Form No.13 i.e. Ext.Ka-6 were also prepared by the I.O. Post- mortem examination of the dead body was conducted by PW2 Dr. R. B. Tiwari on 5.10.1989 at 12:00 Noon and he also prepared the post-mortem report i.e. Ext.Ka-2. During the course of investigation, the I.O. recorded the statements of the witnesses, inspected the place of occurrence and 3 thereafter prepared the site-plan i.e. Ext.Ka-7. On completion of the investigation, he submitted the charge sheet against the accused/appellant Jahid and the co-accused Shaukat (acquitted by the trial court), that charge sheet is Ext.Ka-9. 4. On receipt of charge sheet, learned Chief Judicial Magistrate, Nainital committed the case to the court of Sessions on 16.4.1990 after giving necessary copies to the accused/appellant and the co-accused as provided u/s 207 Cr.P.C. It seems from record that the case was transferred to Additional Sessions Judge, Nainital for hearing and disposal according to law. 5. On 14.6.1990, learned IInd Additional Sessions Judge, Nainital framed the charge u/s 302 IPC against the accused/appellant Jahid and u/s 302 r/w Sec.34 IPC against the co-accused Shaukat. The charge was read over and explained to the accused/appellant and co-accused to which they pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined PW1 Aslam Hussain, who scribed the report Ext.Ka-1; PW2 Dr. R.B. Tiwari, who conducted post-mortem examination of the dead body; PW3 Abdul Jabbar, complainant of the case and brother of the deceased Sultan (not believed by the trial court); PW4 Mehmood Hussain (not believed by the trial court); PW5 Suleman, eyewitness; PW6 Kushal Pal Singh, Investigating Officer of the case and PW7 Constable Nanhe Babu, who filed the affidavit in the court below. 7. Thereafter the statements of the accused/appellant and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against 4 them. However, they have not filed any oral or documentary evidence in their defence. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Special Judge (Addl. Sessions Judge), Nainital vide his judgment and order dated 25/27.01.1994 convicted and sentenced the accused/appellant Jahid as stated above. However, the co-accused Shaukat was acquitted of the charge levelled against him by the trial court. Being aggrieved by the said judgment and order, the appellant has preferred the present appeal. 9. Before any further discussion, it would be pertinent to mention the ante-mortem injuries found on the dead body of the deceased Sultan. Dr. R.B. Tiwari (PW2)conducted the post-mortem examination of the dead body on 5.10.1989 at 12:00 Noon and also prepared the post- mortem report Ext.Ka-2, which reads as under:- (i) Abraded contusion 8 cm x 8 cm on left side of chest 5 cm away and lateral side of left nipple extending upto mid axillary line. 10. To prove the above-noted post-mortem report, the prosecution examined PW2 Dr. R.B. Tiwari, who stated that on 5.10.1989 he was posted as Medical Officer at Civil Hospital, Haldwani. On that day at 12:00 Noon he conducted the post-mortem examination of the dead body of the deceased and found the above-noted ante-mortem injuries on the dead body. 11. To prove its case further, the prosecution examined PW1 Aslam Hussain who stated that on 4.10.1989 he has written the report on the dictation of Abdul Jabbar (PW3). 5 The same was signed by him and Abdul Jabbar PW3. That report is Ext.Ka-1. In the cross-examination, he stated that the distance between Village Pindari and Rampura is about 1½-2 Kms. He further stated that he had gone to police station and the dead body was lying there. He wrote the said report in the police station and at that time Sub Inspector and Head Constable were present there. 12. PW3 Abdul Jabbar and PW4 Mehmood Hussain were not found reliable by trial court and the trial court has held that they were not present on the spot and did not see the occurrence. As such, their testimony is based on hearsay evidence, on which implicit reliance cannot be placed. Otherwise also there was no reason or occasion from them to be present on the spot as they were resident of another village. The trial court has also held that there is nothing on record to justify their presence on the spot. Therefore, their statements were not believed by the trial court and there is no need to discuss the evidence of these witnesses furthermore. 13. PW5 is Suleman whose statement was recorded in the trial court on 5.12.1991. He stated that the said incident had taken place about two years before. On the date of incident at about 4 PM he was standing on the road near to his house. Sultan Ahmed (deceased) and some other villagers were unloading soil from truck and placing it on road in front of their house. Meanwhile, accused/appellant Jahid came there and altercation took place between them on the matter of soil. He intervened in between them. Thereafter Jahid armed with Danda came there and assaulted Sultan (deceased) with Danda. He further stated that he did not see co-accused Shaukat on the spot. He further stated that Sultan succumbed to his injuries. At this stage, this witness was declared hostile on the request of State counsel who was then 6 permitted to cross-examine this witness. In the cross- examination by the defence counsel, this witness stated that Mehmood Hussain (PW4) is his MAMU (maternal uncle) and Abdul Jabbar (PW3) is his MAUSA (maternal uncle) and both of them are residents of Rampura, Sitarganj. He further stated that co-accused Shaukat is suffering from paralysis for the last 8-10 years and he is unable to move. He further stated that during the whole occurrence he did not see co-accused Shaukat. After the said incident he went to Rampura through bicycle and called Abdul Jabbar and Mehmood Hussain. He further stated that the police station is at a distance of about 1/2 kms and Village Pindari is at a distance of about 1 Kms from the house of these two witnesses. He further stated that when he had gone to call Abdul Jabbar and Mehmood Hussain at that time he had not gone to the police station and these two witnesses have also not lodged the report in the police station. Thereafter he went to hospital with the dead body of Sultan (deceased). He further stated that when the altercation took place between the accused/appellant and Sultan he was about 2-4 Furlongs away from Sultan (deceased) and the time when accused/appellant attacked on Sultan with Danda he was 2 Furlong away from Sultan. So many people of the village were also present at the spot. He further stated that near the house of the deceased Sultan there is house of Aftab, Munna, Radheyshyam, Jamaluddin, Mukhtiyar and Ahmed Ali and in the east side of the house of Sultan, Komal Singh, who is a Constable in Police Station Sitarganj resides in the house of Aftab. He further stated at the time of incident all the aforesaid persons were present on the spot and were also went to the hospital and police station with the dead body. He further stated that four attacks were made on Sultan (deceased) by Danda and the deceased had received injuries of these four attacks. Two attacks were made on the front side and two attacks were made on back 7 side. He further stated that Sultan had not received any injury on his hands which means he had not tried to save himself. 14. PW6 Kushal Singh stated that on 4.10.1989 the investigation of this case was entrusted to him. On the same day, he prepared the inquest report of the dead body, letter to CMO, Halwani for conducting post-mortem of the dead body, sketch of the dead body, Challan Lash which are Ext.Ka-3 to Ka-6, respectively. He also inspected the place of occurrence and prepared the site-plan, which is Ext.Ka-7. During the course of investigation, he also recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the accused/appellant Jahid and co-accused Shaukat, that charge sheet is Ext.Ka- 9. He further stated that the Chik FIR of the case was prepared by H.M. Shishu Pal Singh and necessary entries were also made by him in the G.D. He has proved the Chik FIR and copy of the G.D., which are Ext.Ka-10 and Ka-11, respectively. He has also proved the specimen of seal of the sealed dead body i.e. Ext.Ka-12. 15. PW7 is Constable Nanhe Babu who filed his affidavit in the court below. In the affidavit, he has stated that on 4.10.1989 he along with the S.S.I. Kushal Singh had reached at the place of occurrence at Village Pindari where dead body of Sultan Ahmed was lying. The police took the dead body into possession, appointed Panch and sealed the dead body in a cloth and thereafter handed over the same to Const. Khem Singh for post-mortem. On 5.10.1989, post- mortem of the dead body was conducted at Civil Hospital, Haldwani. He further stated that upto when the dead body was in their possession in sealed condition it remained intact and nobody tampered with it. 8 16. Thereafter the statements of the accused/appellant and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them. However, they have not filed any oral or documentary evidence in their defence. 17. Learned Counsel for the appellant/accused submitted that the prosecution has not proved the case against the appellant/accused beyond reasonable doubt. I find substance in the submission of the learned counsel for the appellant/accused inasmuch as the two witnesses viz. PW-3 Abdul Jabbar and PW4 Mehmood Hussain, who were shown to be eyewitnesses of the case, were not believed by the trial court. Also there is nothing on record to believe that they were present on the spot at the time of incident. Other witnesses, namely, Aslam Hussain PW1, who scribed the report Ext.Ka-1, PW6 Kushal Pal Singh, I.O. of the case and PW3 Nanhe Babu, Constable are the formal witnesses. 18. Now remains the solitary evidence PW5 Suleman. Only on the basis of evidence of this witness, the trial court has convicted the accused/appellant but after perusal of the entire evidence, I find that the evidence of PW5 Suleman is not believable, reliable and does not inspires confidence, due to following reasons:- (i) As per the statement of this witness, at the time of incident, number of people from the vicinity of the deceased viz. Aftab, Munna, Radheyshyam, Jamaluddin, Mukhtiyar, Ahmed Ali and Komal Singh, who was the constable at P.S. Sitargaj, were present on the spot but not a single witness among these witnesses was examined by the prosecution in the court below, which creates a reasonable doubt in the prosecution story. 9 (ii) PW5 Suleman in his statement has stated that he had seen the said incident from a distance of two Furlongs. This fact creates doubt in his statement since it is difficult to see the actual incident from such distance. (iii) This witness was declared hostile by the prosecution as he did not support the prosecution case in toto. In examination-in-chief, he stated that the accused/appellant caused injuries to the deceased by Danda but in the FIR it has come that the injuries were caused to the deceased by PATTI of the cot. (iv) This witness also stated that during the whole incident he did not see the co-accused Shaukat on the spot, however, in the FIR it was stated that on the instigation of co-accused Shaukat, accused/appellant Jahid assaulted the deceased Sultan. (v) As per the statement of this witness, accused/appellant Jahid gave four blows of danda on the body of deceased; two on the front side and two on the back side. But perusal of the post-mortem report Ext.Ka-2 prepared by PW-2 Dr. R.B. Tiwari reveals that only one ante-mortem injury was found on the body of the deceased. Thus, oral evidence of PW5 Suleman does not get corroboration by the post-mortem report and, therefore, version of this witness does not inspire confidence. Hence, the evidence of PW5 Suleman is not cogent, reliable and trustworthy. Though it is permissible to sustain a conviction on the solitary evidence. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of the Suleman PW5, it should be fully reliable but here the evidence of this witness is not reliable, believable and it also does not inspires confidence. 10 19. In support of its case, learned counsel for the appellant/accused placed reliance upon the judgment delivered by the Hon’ble Apex Court in case of “Joseph v. State of Kerala” reported in (2003) 1 SCC 465, wherein at para 13 the Apex Court has observed as under: “To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyze evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.” 20. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and in the background of well-settled proposition of law and other circumstances, it is clear that the prosecution has not disclosed the true genesis of the occurrence and has thus not presented the true version. The prosecution has been failed to prove the case against the accused/appellants beyond reasonable doubt. As such, the trial court was in error in 11 brushing aside serious infirmity in the prosecution case and the impugned judgment and order of the trial court, in view of the above narrated legal proposition, evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 21. For the reasons recorded above, the appeal is allowed. The judgment and order dated 25/27.01.1994 passed by Special Judge (Additional Sessions Judge), Nainital in S.T. No.103/1990, State Vs. Jahid & Shaukat, is hereby set aside. Consequently, the conviction against the accused/appellant u/s 304 Part II IPC and sentence of ten years’ R.I. is also set aside. The accused/appellant is on bail. He need not surrender unless wanted in any other case. 22. Let the lower court record be sent back. (Dharam Veer, J.) September 8, 2009 RG