Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1929 of 2001 (Old No. 823 of 1998) 1. Muslim S/o of Allah Rakha 2. Samshad S/o Muslim Both residents of village Bijhauli, P.S. Manglaur, District Haridwar …Appellants Versus State of U.P. (Now State of Uttarakhand) …Respondents Present: Smt. Pushpa Joshi, Advocate present for the appellants. Sri S.S. Adhikari, learned A.G.A. with Sri B.S. Parihar Brief Holder for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Oral: Nirmal Yadav, J. This appeal has been preferred by the appellants against the judgment and order dated 25.04.1998 passed by Additional Sessions Judge, Roorkee in Sessions Trial No. 333 of 1995 whereby the accused-appellants have been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short I.P.C.) and sentenced to undergo life imprisonment and fine of Rs. 20,000/- each. In default of payment of fine, they have been ordered to further undergo six months of rigorous imprisonment. The prosecution case is unfolded from the statement of PW-1 Salim Ahmad son of deceased Altaf Hussain, when he reported the matter vide written complaint (Ex. Ka-1) in Police Station Manglore on 04.08.1995 at 9:50 a.m. stating that his father Altaf Hussain had purchased a piece of land from one Sukkad. Sukkad and Allah Rakkha father of accused Muslim were having a dispute but the matter was decided in favour of Sukkad. Thereafter Altaf Hussain got the said land registered in 2 his favour from Sukkad. Thus the accused persons were having grudge on this account. The matter was still pending before the Consolidation Officer and the complainant along with PW-2 Irshad and his father Altaf Hussain were going to attend the proceedings of the said case on their respective cycles. Altaf Hussain was going little ahead of them on his cycle. At about 9:00 a.m. when Altaf Hussain reached near Bajari plant at G.T. Road accused Muslim armed with a ‘Tabal’ and his son Shamshad armed with an axe attacked his father. When they raised alarm Tahir and PW-3 Afzaal also came there on a scooter from behind. They tried to catch hold of the accused persons but they ran away towards Jungle of Bijauli leaving their cycles and blanket (Loi). On the basis of the written complaint, Chick F.I.R. (Ex. Ka-8) was recorded at 9:50 a.m. and entry in this regard was also made in the General Diary, copy of which is Ex. Ka-9. Investigation of the case was handed over to PW-7 Anil Kumar, who reached the spot and got prepared inquest report (Ex. Ka-4) through PW-5 Sub Inspector Om Veer Singh. He also got prepared letter (Ex. Ka-5) to the Chief Medical Officer for getting the postmortem of the dead body of Altaf Hussain, police form No. 13 (Ex. Ka-6), sketch of the dead body (Ex. Ka-7) and sample seal (Ex.-1). The Investigating Officer also took into possession one pair of rubber shoes and one pair of slippers and Loi vide memo Ex. Ka-10. The cycle was taken into possession vide Ex. Ka-11. He also picked up bloodstained earth as well as simple earth from the place of occurrence and took the same into possession vide memo Ex. Ka-12. The site plan of the place of occurrence (Ex. Ka-13) was also prepared on the same day. 3 The postmortem of the dead body was conducted by Dr. Sudhir Kumar Dhaundhiyal, who has since died, on 05.08.1995 at 9:05. The postmortem report (Ex. Ka-3) was proved by PW-4 Dr. O.P. Sharma, who had worked with Dr. Sudhir Kumar Dhaundhiyal. As per the postmortem report following ante mortem injuries were found on the person of deceased:- (i) Incised wound 4 c.m. x 1 c.m. x bone deep on the left side of head, 6 c.m. above the left ear. (ii) Incised wound 2 c.m. x 1 c.m. x muscle deep on the left side of forehead above the left eyebrow. (iii) Incised wound 9 c.m. x 4 c.m. x bone deep left side of the face extending from the bridge of the nose across the left eye of 2.5 c.m. middle to upper part of pinna of left ear transversely placed. Underneath the left eye there was a cut and eye was crushed. Left orbital bones, and left frontal fossa of brain were fractured. (iv) Incised wound 11 c.m. x 4 c.m. x mouth cavity deep extending from left ala of nose, and left nostril of lower part of pinna of left ear transversely place across the left side of face 4 c.m. below injury no. 3. Underneath nasal bone was fractured and the left maxilla was found cut and fractured. (v) Incised wound 11 c.m. x 3 c.m. x mouth cavity deep on left side of face and upper part of left side of neck transversely placed 2 c.m. below injury no. 4. Underneath lower jaw was fractured. (vi) Incised wound 9 c.m. x 5 c.m. x cervical vertebra deep (at the level of third cervical vertebra). 4 Underneath, left mandible of major blood vessels of neck, trachea, pharynx and oesophagus were cut at this level (vii) Abraded contusion 11 c.m. x 5 c.m. x backside of right elbow of right forearm. (viii) Abrasion 1 c.m. x 1 c.m. on the middle of the left forearm. On internal examination, the brain was found congested and the bones of frontal fossa were also found fractured. The major blood vessels on the right side of the neck were found cut. In the stomach 250 gm semi-digested food, in the small intestine digested food while gases and faecal matter was found in the large intestine. On receiving a secret information, both the accused persons were arrested by the Investigating Officer on 7th August 1995 and on the basis of their disclosure statement accused Muslim got recovered an ‘Axe’ while Shamshad got recovered ‘Tabal’, which were taken into possession vide memo Ex. Ka-14. On completion of the investigation, the challan was presented and accused-appellants were charge sheeted (Ex. Ka- 15) under Section 302 of the I.P.C. to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as seven witnesses. PW-1 Salim Ahmad, complainant is the son of Altaf Hussain (deceased), PW-2 Irshad and PW-3 Afzal are the eyewitnesses of the occurrence. PW-4 Dr. O.P. Sharma proved the postmortem report (Ex. Ka-3), which was prepared by Dr. Sudir Kumar Dhaundhiyal. PW-5 S.I. Om Veer Singh prepared the Pachnama and other related police papers. 5 PW-6 Head Constable Madan Pal recorded the Chick FIR (Ex. Ka-8) and entered the G.D. entry (Ex. Ka-9) and PW-7 Anil Kumar is the Investigating Officer. When examined under Section 313 Cr.P.C. accused appellants denied the entire incriminating evidence put to them by the prosecution. Accused Muslim stated that no such occurrence as put forward by the prosecution took place. Altaf Hussain might have been murdered by someone else during the night. He further stated that both of them have come from the outside and have settled in the village and therefore, they have been falsely implicated by the witnesses, who are related to each other. Accused Shamshad stated that in order to pressurize his grand father in the land case, false case has been, foisted upon them. We have heard Smt. Pushpa Joshi, learned counsel for the appellants, Sri S.S. Adhikari, learned A.G.A. with Sri B.S. Parihar Brief Holder for the State and perused the entire material available on record. Learned A.G.A. submitted that it is not disputed that a land dispute was going on between Altaf Hussain (deceased) and Allah Rakkha, father of Muslim and the proceedings were fixed for 4th August 1995 in the said dispute. He further submitted that Altaf Hussain along with his son PW1 Salim Ahamd and nephew PW-2 Irshad were going to attend the proceedings of the said case on the fateful day. PW-1 Salim Ahmad and PW-2 Irshad have fully corroborated the prosecution case. The presence of PW-1 Salim Ahmad and PW- 2 Irshad along with Altaf Hussain at the relevant time and the place of occurrence cannot be doubted. It was quite natural for them to accompany Altaf Hussain to attend the proceedings of 6 the case. Both of them have categorically stated that Altaf Hussain was going ahead of them on his cycle while they were following him at some distance, as they wanted to smoke since they could not smoke in front of Altaf Hussain. He further argued that medical evidence fully supports the eyewitness account given by PW-1 Salim Ahmad, PW-2 Irshad and PW-3 Afzal. As per the postmortem report (Ex. Ka-3) there were six incised wounds on the person of Altaf Hussain, which could be caused by ‘Axe’ and ‘Tabal’ which are heavy sharp edged weapons alleged to be carried by both the accused persons. Other two injuries i.e. abraded contusion and abrasion might have been caused when deceased fell down from the cycle. Learned A.G.A. further argued that F.I.R. lodged with promptitude and therefore, there appears to be no chance of false implication after consultation or deliberation. The eyewitness account is further corroborated from the recovery of ‘Axe’ and ‘Tabal’ recovered at the instance of both the accused persons. On the other hand, learned counsel for the appellants has challenged the prosecution case mainly on the ground that the F.I.R. is ante time. According to learned counsel for the appellants, there is visible overwriting in the Chick F.I.R. (Ex. Ka-8) in the column of the time of the occurrence as well as, the time of the reporting. According to her, time of occurrence appears to have been 1:50 p.m., however, by overwriting it has been made as 9:00 a.m. and this is further supported from the fact that postmortem on the person of deceased was conducted on 05.08.1995 at 9:05 a.m. whereas as per the prosecution case, the dead body was sent for conducting postmortem on 04.08.1995 and no reasons are coming forward from prosecution side as to why the 7 postmortem was conducted after so much of delay. Learned counsel for the appellants further pointed out that the prosecution has failed to prove beyond doubt as to what was the weapon actually used in the crime. According to eyewitnesses i.e. PW-1 Salim Ahmad and PW-2 Irshad, accused Muslim was carrying a ‘Tabal’ while Shamshad was carrying an ‘Axe’. In the Forensic Science Laboratory, Agra (Ex. Ka-16) the weapons sent for the chemical examination was an ‘Axe’ and a ‘Balkati’. She referred to the statement of PW-3 Afzal, who stated that accused Muslim was carrying a ‘Balkati’ with which he caused injuries on the person of Altaf Hussain. Specific question was put to him in the cross-examination where he stated that ‘Balkati’ is used for cutting the sugarcane. It was argued by learned counsel for the appellants that it is not possible to cause the injuries which have appeared on the person of Altaf Hussain by ‘Balkati’ which is a very light weapon and is used for cutting sugarcane. On careful consideration of the rival submissions made by learned counsel for the parties and entire evidence available on record, we are of the view that the prosecution has successfully been able to prove its case beyond reasonable shadow of doubt. It is an admitted fact that a land dispute was pending between both the parties before the Consolidation Officer. Altaf Hussain along with his son PW-1 Salim Ahmad and his nephew PW-2 Irshad was going to attend the proceedings of the said case. The occurrence took place at 9:00 a.m. on 04.08.1995 near Bajari plant at G.T. Road. Both the eyewitnesses i.e. PW-1 Salim Ahmad and PW-2 Irshad were strenuously cross-examined but there appears to be no material contradiction and discrepancy in their statement. They have withstood the test of examination successfully. It is well settled that evidence of a witness cannot be discarded merely on the 8 ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. We have considered the evidence of both the abovementioned eyewitnesses and we find that there is no material discrepancy or contradiction in their deposition. Thus their evidence is trustworthy and credible. Another important feature of prosecution case is that prompt F.I.R. of the case was lodged with the police. PW-1 Salim Ahmad immediately after the occurrence reported the matter in Police Station Manglore which was at a distance of three kilometers from the place of occurrence. The occurrence took place at 9:00 a.m. on 04.08.1995 and the F.I.R. was recorded at 9:50 a.m. The argument of learned counsel for the appellants that there are manipulations with regard to the time of occurrence and the time of reporting the F.I.R. does not appear to be correct after perusing the entry in this regard made in the General Diary, copy of which is Ex. Ka-9, where there is no such overwriting or manipulation. The time of occurrence has been clearly mentioned as 9:00 a.m. and the time of reporting mentioned as 9:50 a.m. PW-6 Head Constable Madan Pal is the person who had recorded the Chick F.I.R. He categorically stated that the written complaint (Ex. Ka-1) was given to him by PW-1 Salim Ahmad at 9:50 a.m. and the Chick report was prepared by him on the basis of the said complaint. He categorically denied that any manipulation has been done with regard to the timing. The learned counsel for the appellants referred to the contradiction in the statement of PW-3 Afzal and the other eyewitnesses namely, PW-1 Salim Ahmad and PW-2 Irshad with regard to the use of weapon in the crime and in the Forensic Science Laboratory report (Ex. Ka-9) the weapon of 9 offence are mentioned as ‘Axe’ and ‘Balkati’. After going through the statements of the witnesses and other relating material available on record, it is well proved that an ‘Axe’ was recovered at the behest of accused Shamshad whereas a ‘Tabal’ was recovered at the behest of accused Muslim. PW-7 Investigating Officer Anil Kumar was shown the weapon of offence (Ex.-2) in the court and he clearly stated that Ex.-2 is ‘Tabal’ and not ‘Balkati’. He further admitted that in the forwarding letter sent to the Forensic Science Laboratory, it might have been inadvertently mentioned as ‘Balkati’. It is of course stated by him that ‘Balkati’ is a lighter weapon than ‘Tabal’. But a perusal of the nature of the injuries on the person of deceased clearly shows that the weapon used in the crime was a heavy sharp edged cutting weapon. All the, six incised wounds could be caused by a heavy sharp edged weapon. Most of the injuries are bone deep and have caused fractures of most of the bones underneath the injuries. Arteries have been found cut. The argument of learned counsel for the appellants that the prosecution has not explained the delay in sending the dead body for postmortem is not acceptable, as there appears to be no inordinate delay in sending the dead body for postmortem. The dead body along with the papers was received in the hospital on 04.08.1995 at 5:05 p.m. and the postmortem was conducted on the next day at 9:05 a.m. In the present case, the prosecution case is fully supported by PW-1 Salim Ahmad and PW-2 Irshad whose presence as discussed above was natural with Altaf Hussain (deceased) at the time of occurrence. The presence of PW-3 Afzal also cannot be doubted. A perusal of his cross- examination shows that he is not related to the deceased or any 10 of the witnesses. There is nothing on record to prove that this witness was in any way inimical towards the accused persons or he was partisan or interested towards the complainant party, therefore, there appears to be no motive on his part to falsely implicate the accused persons. His statement was recorded immediately after the matter was reported. PW-7 Anil Kumar categorically stated that after the case was registered, he recorded the statement of the complainant and thereafter he went to the place of occurrence and recorded the statement of PW-3 Afzal and Tahir. PW-3 Afzal, who is admittedly an independent witness, has fully supported the statements of PW- 1 Salim Ahmad and PW-2 Irshad. The defence has cross- examined all the three eyewitnesses on all material points but their deposition is consistent and have not been contradicted on any point, therefore, after careful scrutiny of the statements of all the three witnesses, we do not find anything to disbelieve their deposition. The trial court has rightly recorded the conviction of the accused appellants on the basis of deposition of these witnesses. We may further mention that the medical evidence fully corroborates the eyewitness account as all the injuries on the person of deceased Altaf Hussain are proved to have been caused by some heavy sharp edged weapon. The doctor has categorically stated that injuries nos. 1 to 6 found on the person of Altaf Hussain could be caused by an ‘Axe’ and ‘Tabal’. In view of the above discussion, we are of the considered view that the prosecution has been able to prove its case beyond reasonable shadow of doubt. Thus, we find no merit in the appeal and the same is dismissed. The judgment and order dated 25.04.1998 passed by Additional Sessions Judge, Roorkee in Sessions Trial No. 333 of 1995 is affirmed. 11 Conviction and sentence awarded by the trial court against the accused appellants is maintained. The accused appellants are on bail, their bail bonds are cancelled and sureties discharged. They shall be taken into custody forthwith to serve out the sentence awarded by the trial court. The registry is directed to send back lower court record for compliance of the order. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) VKG 10.09.2010