Aziz and Others vs State of U.P.

Pratyush Kumar, J.—1. These two appeals have been separately filed by accused appellants Aziz and Asgar with Faujdar against the judgment and orders dated 21st February, 2012 passed by Sri Mohan Lal Vishwakarma, the then Special Judge Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as the Gangster Act), Court No. 9 Gonda in Gangster Case No. 16 of 2008 (State v. Asgar and others) under sections 302 IPC and section 3(1) of the Gangster Act, whereby the appellants have been convicted under sections 302/34 IPC and 3(1) of the Gangster Act and sentenced to undergo imprisonment for life and to pay fine of Rs. 25000/- each and to undergo rigorous imprisonment of three years and to pay fine of Rs. 5,000 each, in default thereof to further undergo simple imprisonment of six months, respectively. The sentences were made concurrent.

Since both the appeals are against the same judgment, the appeals have been heard together and are disposed of by a common judgment and order.

In these appeals facts of the prosecution case may be summarized as under:

"That on 8th August, 2004 at 2 A.M. Smt. Noorjahan R/o mauja Vejapur village Alauddinpur, P.S. Sadulla Nagar gave a written report stating therein that in the intervening night of 7th/8th August, 2004 she and her husband were lying down on separate cots in front of the house, nearby son of her brother Abdul Moin was also lying down. At about 11.30 p.m. Asgar, Faujdar and Aziz were conversing with her husband and at that time lantern was burning. When the altercation in heated words started she awoke from her sleep and saw that Asgar and Faujdar had caught hold her of husband and Aziz shot her husband in the chest. On the hue and cry and sound of fire Samiullaha and Shakatu reached there and identified the assailants. Her husband tried to catch hold of Aziz but all the three assailants made good their escape towards west. They were hardened criminals and belonged to a gang. Dead body of her husband was lying on the spot."

At this chick FIR was scribed, case crime No. 286 of 2004 under section 302 IPC was registered, requisite entry was made in the general diary and investigation of the case was taken over by Shafiq Ahmad Khan, the Station Officer himself. Inquest proceedings were held. Postmortem examination was made. During the investigation on 9th August, 2004 the investigating officer arrested accused Aziz and on his pointing recovered his blood stained bushart from the chappar of his house. Spot inspection was also made, samples of blood stained earth and simple earth were taken. During investigation gang charts of the appellants were prepared. Against Asgar 35 cases, against Aziz 47 cases and against Faujdar 44 traced were cased out. After investigation charge sheet was submitted against all the three named accused persons.

They stood for trial before the court of Special Judge, Gangster Act. Against them charges under sections 302, 302/34 IPC and section 3(1) of the Gangster Act were framed. All the appellants denied the charges and claimed to be tried.

In order to prove the charges on behalf of the prosecution, besides other papers, written report Ext. Ka-1, Recovery Memo Ext. Ka-2, Inquest Report Ext. Ka-3, Postmortem report Ext. Ka-4, Recovery Memo Ext. Ka-5, Site Plan Ext. Ka-10 and Ka-13, Recovery Memo Ext. Ka-11 and Ka-12, chick F.I.R. Ext. Ka-15 were filed and in oral evidence 14 witnesses were examined. Thereafter statements of the accused persons under section 313 Cr.P.C. were recorded whereby they denied the facts stated by the prosecution witnesses and claimed false prosecution due to enmity.

On behalf of the appellants before the trial court no evidence was given in the defence.

After hearing the arguments the learned Special Judge found the prosecution version reliable, eye-witness account trustworthy. He convicted the appellants and sentenced them as above.

On behalf of the appellant on several counts correctness of the findings recorded by the learned trial Judge have been attacked, very briefly they are; evidence has not been appreciated in a legal manner, major contradictions, omissions and discrepancies in the evidence of prosecution witnesses have been ignored, prosecution could not establish source of sufficient light but ocular version given by the eye witnesses have been believed. According to him there is strong motive for the first informant to falsely implicate the appellant, this fact has not been taken into account. No independent witness has been examined. The role of two appellants is confined to catching hold of. There is no physical evidence to show their complicity in the crime. In the last it has been argued that FIR is ante timed, place of occurrence is doubtful and prosecution story is unnatural and improbable.

On behalf of the State-respondent these arguments have been repelled and it has been argued that contradictions etc. have been rightly ignored, source of light was duly proved. Prosecution story is natural and probable, place of occurrence is duly established. Learned AGA further submits that by virtue of section 34 IPC the two appellants, assigned with the role of catching hold, are equally responsible for the murder of the deceased.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 Cri.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

First we find it convenient to have a glance at the medical evidence, which consists of statement of Dr. A.S. Gupta, P.W.7 and postmortem report Ext Ka-4. Dr. A.S. Shukla P.W.7 has stated that on 8th August, 2004 at 3 p.m. he performed autopsy of the dead body of Mangre aged about 45 years. On his person he found three antemortem injuries. During internal examination he found 6th rib on the right side fractured, left pleura and lung were lacerated; 200 ml. semi digested food was found in the stomach, in the small intestine pasty material and gases were found. In the large intestine faecal matter and gases were present. Estimated time of death was 1/2 day, death had occurred due to shock and hemorrhage as a result of antemortem injuries which could have been inflicted by fire arms on the stated date and time. He proved the postmortem report Ext. Ka-4 wherein the following antemortem injures are recorded:

"1. Firearm wound of entry 1 cm x 3/4 cm with abraded collor on Rt. chest wall 6 cm below Rt. nipple at 5''O clock position. Directing towards left & backward in between 5th & 6th ribs. No blackening or tattooing around.

Abrasion 1 x 1 cm on Rt. elbow back at lateral condyl level.

Multiple small abrasions in 17 cm x 10 cm area of left chest back."

During cross examination the witness was asked questions about the distance from which blackening and tattooing would be found on the body of person shot. He was also asked about the estimated time of death and contents of stomach. The line of cross examination goes to show that homicidal death of Magre by gun shot injuries was not disputed. Facts stated by the witness in this regard are unchallenged, therefore, leaving aside his opinion part we hold that on the stated date and time the deceased could have died by gun shot wounds.

Now before we proceed further it would be gainful for us to have summary of the evidence of the witnesses examined by the prosecution. The summary read as under:

Appreciation of ocular evidence

Presence of Smt. Noorjahan P.W.1 at the spot at the relevant time is natural and probable. Right from the first information report she had disclosed the source of light as burning lantern. On behalf of the appellant this fact is hotly disputed but in the site plan Ext. Ka-10 we find that by letter ''x'' the place has been shown where the lantern was hanging and burning. It was 2-4 steps away from the cot of the witness. The deceased was lying on the adjacent cot, therefore, the site plan not only confirms the existence of lantern but it also indicates that from the place lantern was burning and the place where occurrence took place, light of lantern would be enough to identify the assailants. On the same date its memo was prepared by the investigating officer Ext. Ka-4. The lantern was produced by the witness in the court. During cross-examination on the point of lantern her testimony remains unshaken. For these reasons we find that the witness had opportunity to see the occurrence. Since all the appellants were known to the witness, she had occasion to identify them. During cross-examination neither any material contradiction nor any thing discrepant with the prosecution version could be extracted, therefore, her testimony remains unshaken.

Here we would like to address the argument advanced on behalf of the appellants that the learned trial Judge ignored the defence case that one constable named Muslim procured the false implication of the appellants. Smt. Noorjahan P.W.1 admitted that that constable was known to her, her husband was on friendly terms with the police personnel of the police station concerned. The witness denied the suggestion that she had illicit relations with Muslim constable. C.P. Sri Bahadur P.W.2 was asked about involvement of said Muslim in the present crime, who that said constable was transferred from police station Sadulla Nagar prior to the incident. 1st investigating officer was only suggested that he under the influence of said Muslim and enmity conducted biased investigation, which the witness denied. The 2nd Investigating Officer was not even suggested these facts. No evidence was given by the defence about these facts. In absence of any evidence and considering the categorical denial by that witness we hold that the defence case on this point has not substance.

Smt. Noorjahan being wife she is the most interested person to see that real culprits responsible for the murder of her husband should be punished, therefore, she had no reason to depose falsely against the present appellants.

On behalf of the appellant one improvement has been pointed out that in the FIR she had written that her husband tried to catch Aziz but in the examination-in-chief she has stated that the deceased had caught Aziz and when Aziz pushed him he fell down and his blood stained the shirt of Aziz. The new fact stated by the witness is that shirt of Aziz was stained with blood. When the first information report was written the state of the mind of the witness must be perturbed, omission of this fact deserves to be ignored because we find that this omission was not brought to the attention of the witness during the cross examination. She was merely asked about Aziz pushing her husband. For the reasons mentioned above we find her to be a trustworthy witness.

The other incriminating circumstance against the appellant Aziz is recovery of blood stained shirt on his pointing out. This fact has been stated by S.I. Ram Saran Yadav P.W.9 and Shafiq Ahamad P.W.13. It is true that both these witnesses are police officer but merely being police officers they cannot be disbelieved. During cross examination their testimonies remain unshaken. This shirt was scientifically examined at State Forensic Laboratory. Vide report dated 31st January, 2005 it has been reported that during chemical examination blood stains were found on the shirt. Evidence of these two witnesses of recovery stands corroborated by recovery memo Ext. Ka-5 but we find that the report of the State Forensic Science Laboratory and statement admissible under section 27 Evidence Act was not put to the appellant Aziz, therefore, we think that this incriminating circumstance should be excluded from consideration.

Thus there remains only evidence of Smt. Noorjahan P.W.1 and medical evidence. According to learned counsel for the appellant there is discrepancy between ocular version narrated by Smt. Noorjahan P.W.1 and facts stated by Dr. A.S. Shukla P.W.7. The alleged discrepancy is that according to the eye witness it was a close range fire but no blackening or tattooing was found. The shot was fired during heated exchange when appellants Asgar and Faujdar caught hold of the deceased but Smt. Noorjahan did not say that when Aziz fired the fatal shot he was very close to the deceased. For this reason we don''t think that there is any discrepancy between the medical evidence and the ocular version and evidence of Smt. Noorjahan is fully corroborated by medical evidence.

On behalf of the appellants the learned trial Judge has been accused of not appreciating the evidence in proper perspective. He is also said to have ignored the material contradictions. In spite of going through the testimony of Smt. Noorjahan, we do not find any material contradiction either from the first information report or from her statement recorded under section 161 Cr.P.C. Even the omission mentioned above, occurring in the first information report does not find place in the statement of Smt. Noorjahan recorded under section 161 Cr.P.C. Even the omission mentioned above, occurring in the first information report does not find place in the statement of Smt. Noorjahan recorded under section 161 Cr.P.C. Shafiq Ahamad P.W.13 has categorically stated that this fact was communicated to her by Smt. Noorjahan during investigation. The argument in this regard is without substance hence rejected.

The argument regarding absence of source of light has already been discussed by us and it deserves to be rejected.

Third argument that the conviction has been based on the sole testimony of Smt. Noorjahan P.W.1 is also misconceived. Her statement does not contain material contradictions and it inspire confidence of the court and receives corroboration from medical evidence.

In view of trustworthy testimony of Smt. Noorjahan we are not inclined to give benefit of doubt to appellant Faujdar and Asgar. It is true that they have been assigned role of catching hold of the deceased but testimony of Smt. Noorjahan is of higher order in terms of credibility and this part of her statement cannot be disbelieved in absence of any cogent reason. This argument also stands rejected.

The last argument about conviction under Gangster Act is also misconceived. Gang chart has been filed. It was approved by the District Magistrate and exhibited as Ext. Ka-14. This gang chart is corroborated by testimonies of S.I. Khalid Naseem P.w.10, Prusram Dhore P.W. 11 and Shafiq Ahamad P.W.13. In their statements recorded under section 313 Cr.P.C. the appellants only claimed that it was false that they were gangsters for procuring financial and material benefits. This is a bare denial without any explanation, it deserves to be rejected.

Very briefly it has been argued before us first information report was ante timed. This argument is based on certain omissions creeping in the police papers such as in form 13 case crime number has not been written. In diagram dead body case crime number has not been written. The investigating officer was asked about it who frankly admitted that these omission had occurred but he denied that when the dead body was sent for postmortem examination, FIR was not registered. According to him inquest proceedings were held as early as possible. Actually it began at 3 A.M. in the light of torch and lantern all the papers were ready before morning when it became grey, thus he has given reason for these omissions. Further chick FIR and copy of the report of the general diary has been proved by constable Ramdras P.W.14. He has not been cross examined on this question nor he was given any suggestion that FIR was ante timed, therefore, this argument also fails.

In the last we conclude that statement of Smt. Noorjahan P.W.1 is wholly credible and trustworthy. It inspires our confidence. Her evidence is duly corroborated by facts established by the medical evidence. In our view the prosecution has successfully proved charge of murder sharing common intention against all the appellants.

We find that findings recorded by the learned trial Judge are well substantiated from the record. He has properly appreciated the evidence. The findings recorded by him do not contain any legal or factual infirmity and they warrant no interference.

Grounds taken in the appeal and arguments advanced in support thereof are without substance. The appeals lack merit and they deserves to be dismissed and conviction and sentence awarded to the appellant are affirmed by us.

Criminal Appeal Nos. 558 of 2012 and 374 of 2012 filed by the appellants are dismissed. Conviction and sentence awarded by the impugned judgment and orders dated 21.2.2012 passed by Sri Mohan Lal Vishwakarma, the then learned Special Judge Gangster Act/Additional Sessions Judge, Court No. 9 Gonga are hereby affirmed. The appellants are in jail. They are directed to serve out their sentence.

Office is directed to certify this order to the court concerned forthwith and send back the lower court record.