IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 1950 of 2001 Date of decision : 25th September, 2007 A.F.R. (Approved for Reporting) ______________________________ Not approved for reporting Date : 25.09.2007 Initials of Judge Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 1950 of 2001 (Old No. 1331 of 1989) 1. Akbar S/o Sri Majeed 2. Israil S/o Sri Gafoor Both residents of Village Nagra P.S. Laksar District Haridwar 3. Abdul S/o Hasmat 4. Iqbal S/o Magta Residents of Village Mustafabad P.S. Jwalapur District Haridwar …Appellants Versus State of U.P. … Respondent Mr. Navneet Kaushik, Advocate for the appellants Mr. G.S. Sandhu, learned Government Advocate with Mr. B.S. Parihar, Brief Holder for the respondent/State Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (for brevity as Cr.P.C.), is directed against the judgment and order dated 26.05.1989, passed by learned Additional Sessions Judge, Roorkee in Sessions Trial No. 515 of 1988, whereby the appellants have been convicted & sentenced to undergo three years R.I. u/s 148 Indian Panel Code, 1860 (for brevity as I.P.C.) and imprisonment for life u/s 302 read with 149 I.P.C. It was further directed that both the sentences shall run concurrently. 2. Brief facts of the case are that complainant Hanif PW1 lodged an F.I.R. (Ex.Ka.1) in the Police Station Jwalapur, Haridwar on 14.09.1987 alleging therein that on 14.09.1987 at about 10:30 a.m. he was going from his village Ratanpur to Roorkee alongwith his son Furkar. Idrish PW2 and Ahmed Ali of his village also accompanied them. When they were passing through the path near the field of Mehmood at about 11:00 a.m., accused/appellants emerged from the field of Mehmood and surrounded them. Accused/appellants Akbar, Israil, Abdul and Iqbal were holding country made pistols in their hands whereas accused Mehboob and Mumtyaz were holding spears in their hands. Accused/appellant Iqbal told Furkan that few days before he had fired upon him and he was escaped but today he would not spare him and would like to kill him. The accused/appellant Abdul fired upon Furkan which hit on his right shoulder due to which Furkan fell on the ground; accused/appellant Akbar fired on his back and accused/appellant Iqbal fired upon his neck. Complainant Hanif PW1 and his associates wanted to save Furkan but the accused/appellants pushed them so that they could not save him. Thereafter, they fled away from the spot. The complainant made hue and cry due to which nearby people came at the spot and saw accused/appellants fleeing away from the spot. Furkan succumbed to his injuries at the spot. Thereafter, complainant Hanif PW1 got the report scribed from Master Liyakat Ali and lodged in the police station against the accused/appellants. On the basis of the report a chick report (Ex.Ka.4) was prepared; necessary entry was made in the General Diary vide Ex.Ka.5 and case was registered against the accused persons. The case was investigated by S.I. Yashwant Singh who recorded the statement of complainant Hanif PW1 & other persons; prepared panchayatnama; visited the place of occurrence; took sample of blood stained soil and plain soil. Thereafter the investigation was entrusted to S.I. M.K. Mishra. After completing the investigation, he submitted the chargesheet (Ex.Ka.14) before the court. 3. After submission of the chargesheet, the accused/appellants were committed to the Court of Sessions for trial and the trial court framed charges u/s 148 and 302/149 I.P.C. against the accused/appellants. The accused/appellants denied the charges and claimed to be tried. 4. The prosecution in support of its case examined as many as seven witnesses. Hanif PW1 is informant and eyewitness of the incident. He is the father of deceased Furkan. Idrish PW2 is other eyewitness of the incident. He is nephew of Hanif PW1. He was going with the deceased and complainant at the time of incident. Master Liyakat Ali PW3 is the scribe of the report. He has written the report on the dictation of informant Hanif PW1. Dr. Chandra Prakash PW4 is the medical officer who had conducted the post mortem of deceased Furkan. Constable Pramod Kumar Sharma PW5 and Head Constable Gajraj Singh are the formal witnesses of the prosecution case. S.I. Yashwant Singh PW8 is the Investigating Officer who investigated the case and later on the investigation was entrusted to S.I. M.K. Mishra who submitted chargesheet Ex.Ka.14. 5. The accused/appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. Accused Akbar has further stated in his statement recorded u/s 313 Cr.P.C. that Hasmat, the father of accused Abdul belonged to Mustafabad and Akhtar is the nephew of Hasmat. The accused Akbar has stated that Akhtar was married with his sister and he used to go to the house of his sister. Due to village rivalries, he has falsely been implicated in the case. Accused Abdul has stated in his statement recorded u/s 313 that the prosecution witnesses are the relatives of Rashid Pradhan. In the year 1986, 8 villagers alongwith four police personnel unlawfully entered into the house of his brother Riyaz and a melee took place between them in which he alongwith other villagers assaulted the police personnel. Cross cases were registered against each other and a case u/s 307 was lodged against him in which he was acquitted. However, Rashid Pradhan and four police personnel were facing trial before the court. He was the pairokar of his brother Riyaz in those cases, as such, he was falsely implicated in this case. He has further stated in his statement recorded u/s 313 Cr.P.C. that daughter of Hanif PW1 as well as Rashid Pradhan were married in Kaliyar. Hanif was married in Kasampur and the daughter of brother- in-law of Hanif PW1 living in Kasampur was married with the son of Rashid Pradhan. Accused Iqbal has stated in his statement recorded u/s 313 Cr.P.C. that on the date of incident he went to Mukurpur village as the wife of his brother-in-law Wahid had expired. Accused Israil has stated in his statement recorded u/s 313 that he is a poor man and he has falsely been implicated in the matter. 6. The accused/appellants did not adduce any oral evidence in their defence but filed certain documentary evidence , Ex. Kha.1 to Kha.7 in support of their defence. Ex.Kha.1 shows that Riyaz, brother of accused Abdul filed a case against Rashid Pradhan and four police personnel in the court of Munsif Magistrate, Haridwar. Ex.Kha.2 shows that the accused Akbar and Mumtaz have been tried for the commission of murder of one Yasin, however, they were acquitted from the charge. Ex.Kha.3 shows that Hasmat, the father of accused Abdul filed a case against Rashid Pradhan in the court of Judicial Magistrate, Roorkee u/s 418, 468, 471, 421 I.P.C. Ex.Kha.4 shows that a trial proceeded against accused Iqbal and Majeed for attempting to commit murder of Mansab S/o Hasmat in which they were convicted and sentenced to undergo R.I. for five years u/s 307 I.P.C. and R.I. for two years u/s 148 I.P.C. Ex.Kha.5 shows that Police Station Jwalapur has submitted a report to VIth Additional Sessions Judge, Saharanpur in S.T. No. 545/85 reporting therein that Furkan (deceased) was involved in Case Crime No. 443/84 u/s 460 I.P.C. and Case Crime No. 547/87 u/s 379 & 411 I.P.C. Thus, Ex.Kha.5 shows the criminal history of Furkan (deceased). Ex.Kha.6 is the copy of identification parade of the accused Furkan (deceased) in ST No. 545/85, State Vs. Kuldeep and others pending before IVth Additional Sessions Judge, Saharanpur. Ex.Kha.7 is the copy of judgment passed by which the IInd Additional Sessions Judge, Saharanpur convicted the accused Furkan (deceased) in ST No. 601 / 85 u/s 307/34 I.P.C. for attempting to commit the murder of accused Iqbal. 7. The learned Sessions Judge on appreciation of the evidence held accused/appellants guilty to the offences charged against them and convicted & sentenced them as mentioned above. 8. We have heard learned counsel for the parties and perused the record. 9. At the outset, it needs to be mentioned here that it is not disputed that deceased Furkan died on account of firearm injuries sustained by him on the date of occurrence. Dr. Chandra Prakash PW4, Autopsy Surgeon conducted the postmortem of deceased Furkan on 15.09.1987 at about 1:00 p.m. and found the following ante mortem injuries on the person of deceased:- 1. Abrasion 1 cm. x ½ cm. on forehead 1 cm. above left eyebrow. 2. Abrasion 3 cm. x. 1 cm. below left lower lid. 3. Firearm wound of entry 3 cm. x 2 cm. x bone deep on right side of neck, 3 cm below the ear (Rt) directing downward, backward & medially, margins inverted, blackening present. On sectioning of the wound three pieces of wad with 4 pellets (four pellets) found & sealed. Muscles of Rt side neck, right carotid artery, trachea, oeso-phagus, and 3rd cervical vertebra were lacerated and fractured respectively. 4. Contusion 20 cm. x 18 cm. on right side chest & upper abdomen. 5. F.W. of entry 1 cm. x 1 cm. on the right side back upper part, 8 cm. lateral to mid line of body margins inverted, blackening present, directing forward, upward and laterally. 6. F.W. of exit of injury No. 5, size 1-1/2 x 1-1/2 cm. on right side neck 4 cm. above the right tip of shoulder margins averted, on sectioning the corresponding muscles were found lacerated. 7. Six firearm wound of entry in an area of 9 cm. x 6 cm. on right side back lower part, 13 cm above right iliac crest. Each F.W. measuring 0.75 cm. x 0.75cm. x cavity deep, margins inverted, blackening present, directing forward, upward and medially. On opening the abdomen, right lobe of liver, right kidney lacerated and three (3) pellets were found and sealed. In the opinion of Medical Officer, the death of the deceased was caused due to shock and haemorrhage as a result of ante mortem injuries. He has proved the post mortem report Ex. Ka.3. He has opined that injury Nos. 3, 5, 6 & 7 could be caused by fire arms whereas injury Nos. 1, 2 & 4 could be sustained by the deceased due to fall. He has further opined that the death of the deceased could have been occurred at about 11 a.m. on 14.09.1987. Thus, it is amply proved that the deceased died on account of injuries sustained by him on the date of occurrence. 10. Now, we have to consider who is responsible for the injuries caused on the person of the deceased Furkan. The case rests on the direct evidence. The prosecution in support of its case examined Hanif PW1 and Idrish PW2. Hanif PW1 is the informant, father of deceased and eyewitness of the incident. He has stated in his evidence that on the date of incident, he was going to Roorkee alongwith his son Furkan, Idrish PW2 and Ahmed Ali to make some purchasings. When they reached near the field of Mehmood, which was about ½ furlong from his village, accused/appellants emerged from the field of Mehmood and surrounded them. Accused/appellants Akbar, Isrial, Abdul and Iqbal were holding country made pistols in their hands whereas accused Mehmood and Mjmtyaz were holding spears in their hands. Accused/appellant Iqbal told Furkan that few days before he had fired upon him and he made his escape good on that day but he would not spare him today. The accused/appellant Abdul fired upon Furkan which hit on his right shoulder due to which Furkan fell on the ground; thereafter accused/appellant Akbar fired on his back and accused/appellant Iqbal fired upon his neck. Complainant Hanif PW1 and his associates cried and wanted to save Furkan but the accused/appellants threatened them to kill and told them to remain silent. After commission of offence, the accused/appellants fled away from the place of occurrence. Furkan succumbed to his injuries at the spot. Hanif PW1 has also stated that he has enmity with Iqbal and for that reason a criminal case was instituted in which his son Furkan was sentenced to five years imprisonment. Idrish PW2 also narrated entire incident in his evidence. He is the nephew of the complainant Hanif PW1. He was also going to Rorkee from his village with the deceased Furkan and Hanif PW1. he has corroborated the evidence of Hanif PW1 on all material particulars. 11. We have gone through the entire evidence of prosecution eyewitnesses, Hanif PW1 and Idrish PW2. Both the witnesses have corroborated each other. We have gone through the entire evidence and noticed that there were some marginal variations in the testimony given in the Court. Such variations cannot be duped as improvement made with any sinister motive. The said marginal variations are of no use to the defence. The learned counsel for the accused/appellants further could not demonstrate us any material contradictions or variations which could lead us to take the evidence of eyewitnesses as unreliable. The defence counsel has cross examined both the eyewitnesses at length but nothing could be elicited in their cross examination to discredit their evidence. Their evidence is consistent and believable. While appreciating the evidence of Hanif PW1, father of deceased and Idrish PW2, cousin of the deceased, we cannot lose sight of the panic suffered by the father and cousin of the deceased at the time of the incident. Even then both these witnesses have come forward with the vivid account of the incident as to how the shots were fired by the accused/appellants. Their presence at the spot cannot be doubted. We are satisfied that the witnesses have basically remained at the same position which they have stated in their statement recorded u/s 161 Cr.P.C. It was further contended that informant Hanif PW1 is the father of deceased Furkan and Idrish PW2 is the nephew of informant. Learned counsel for the accused/appellants contended that the Court’s below did not take notice of the fact that there was animosity in between the parties and, therefore, the evidence of so called eyewitnesses was tainted. It is true that Hanif PW1 is the father of deceased Furkan and Idrish PW2 is the nephew of Hanif PW1. It is now well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased or the witnesses, if the witnesses are otherwise found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty can escape nor the innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and truthful it can be acted upon. If it is found to be improbable or suspicious it ought to be rejected. Animosity is a double edge weapon. Sometimes it can be used for implicating the accused and sometimes it is used as an attack on the deceased or the injured. Thus, animosity cannot be regarded as a weapon only for false implication of the accused. In the instant case, nothing has been elicited in the cross examination of Hanif PW1 and Idrish PW2 to discredit their evidence and their evidence stands corroborated from the medical evidence of Dr. Chandra Prakash PW4. Thus, the evidence of Hanif Singh PW1 and Idrish PW2 could not be rejected on the ground that they are closely related to the deceased. The Apex Court in the case of State of Punjab Vs. Karnail Singh reported in 2004 SCC (Cri) p/135 has held as under :- “8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab reported in AIR 1953 Sc 364 in which surprise was expressed over the impression which prevailed in the minds of the Members of the bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p. 366, para 25) “25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in – Rameshwar v. State of Rajasthan reported in AIR 1952 SC 54 (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 9. Again in Masalti v. State of U.P. AIR 1965 Sc 202 this Court observed: (AIR pp. 209-10, para 14) “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 12. Apart from this, it is a matter of common experience that in the recent times the witnesses other than the relations are not inclined to depose against the accused or they remain indifferent to give their evidence on the ground that they have no courage to come forward to depose against the accused persons. It has now almost become a fashion that the public is reluctant to depose before the court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidated and at the top of all they are subjected to unnecessary lengthy cross-examination. So, the witnesses avoid coming to the court. Only the related witnesses dare to come before the Court to depose against the accused persons. 13. On a conspectus of various relevant features of this case including the genesis; the nature of the incident; the nature of weapon carried by the accused/appellants at the time of occurrence, it cannot be concluded from the prosecution evidence or from any probability arising from the record that the accused/appellants had falsely been implicated in this case. After going through the same, we do not find any reason to disbelieve the version of the prosecution witnesses. We are completely in agreement with the findings recorded by the trial court and we find that the prosecution has been able to establish the case beyond reasonable doubt. Thus, we do not find any force in the contention of the learned counsel for the accused/appellants. 14. The learned counsel for the accused/appellants contended that even if the evidence of the prosecution was found credible and cogent, the accused/appellants are entitled to get the benefit of doubt as the prosecution has failed to prove any motive to cause injuries on the person of the deceased. Learned G.A. refuted the contention. The defence has failed document Ex.Kha 1 to Kha-7 which reveal that there was enmity in between the parties. The enmity is a doubt-edged weapon. It can be used for the false implication of the accused or it may be a cause of assault on the deceased. The motive which has been assigned by the prosecution is that there was enmity in between the parties so the accused/appellants had committed murder of Furkan. It was submitted that Furkan had already been convicted by Sessions Court, as such, there was no occasion for the accused/appellants to commit murderous assaults on him. It is true that deceased Furkan had been convicted by the learned Sessions Judge in the said case but it cannot be said that merely by convicting the deceased for 5 years by the Sessions Court, the accused/appellant Abdul was satisfied with the sentence awarded to him. Human behaviour varies from person to person. It also depends upon the mental and social status of persons. It cannot be determined by a particular principle and formula. It is also apparent that there was motive to commit the offence. Thus, the prosecution has proved the motive for committing the crime by the accused/appellants. 15. Assuming for the sake of argument that the prosecution has failed to prove the sufficient motive against the accused/appellants. When the eyewitnesses of the occurrence consistently supported the prosecution case, the question of motive would have lost its importance. It is well settled that in order to bring home the guilt of an accused, it is not necessary for the prosecution to prove the motive. The existence of motive is only one of the circumstances to be kept in mind while appreciating the evidence adduced by the prosecution. If the evidence of the witnesses appears to be truthful and convicting, failure to prove the motive is not fatal to the case of the prosecution. It is also well settled that establishment of motive is not sine qua non for proving the prosecution case. In the case of Baboolal Vs. State of U.P. 2001 SCC (Cri) 1484, the deceased was sitting inside the teashop of one Abdul Nabi. On the opposite side of road, there was a sweetmeat shop and all the accused were sitting inside it. As the radio was being played on a high pitch, an exchange of words took place between those who were sitting in the teashop and the accused. The accused threatened PW1 and others for raising this petty issue. A little later the deceased reached there and on coming to know of the development of the incident, he expressed his resentment at the incident on such a petty issue. On this, the accused moved forward with a pistol accompanied by the second accused and another person with daggers in their hands and fired upon the deceased. The Hon’ble Supreme Court has held as follows :- “8. Learned counsel rightly contended that on such a petty quarrel, no sensible person would have used such a lethal weapon and killed the victim. How the mind of an assailant reacted is not possible to be fathomed from a detached reflexion. As pointed out by this Court in Nathuni Yadav v. State of Bihar 1998 SCC(Cri) 992: “Many a murders have been committed without any known or prominent motive. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.” 16. In the case of Thaman Kumar Vs. State of Union Territory of Chandigarh 2003 SCC (Cri) 1362, the Hon’ble Apex Court has held that :- “18. Shri Sushil Kumar has drawn our attention to certain findings recorded by the learned Sessions Judge and has urged that he had rightly given benefit of doubt to the appellants and the High Court committed manifest error of law in reversing the aforesaid findings and convicting and sentencing the appellants while hearing an appeal against acquittal. The learned counsel has urged that the prosecution has failed to prove any motive on the part of the appellants to commit the crime. It is true that the only witness examined on the point of motive, namely, PW 7 Sardara