Babloo vs State

Naheed Ara Moonis, J.—The instant appeal has been filed by the Appellant challenging the judgment and order dated 22.7.2005 passed by the Addl. Sessions Judge (FTC Court No. 17) Bulandshahar in Sessions Trial No. 915 of 2003 u/s 302 IPC and the Sessions Trial No. 911 of 2003 u/s 25/4 Arms Act, Police Station Khurja Dehat District Bulandshahar whereby the Appellant Babloo was convicted & sentenced for life imprisonment with a fine of Rs. 5000/-each and in default of payment he shall undergo one year rigorous imprisonment u/s 302 IPC . He was further directed to serve out sentence of one year rigorous imprisonment with a fine of Rs. 1000/- in default of payment of fine, the Appellant shall undergo three months imprisonment u/s 25/4 Arms Act. Both the sentences awarded by the learned Addl. Sessions Judge were directed to run concurrently.

Heard Dr. Abida Saeed Amicus Curiae appearing on behalf of the Appellants and the learned AGA for the State .

The genesis of the prosecution case giving rise to the present appeal is that a first information report was lodged on 21.10.2003 at about 15.30 hrs by Sharfuddin against the accused Appellant Babloo alleging therein that the accused Appellant at 2.30 p.m. on the same day had cut the throat of his daughter Ruqsana while she was coming down from the roof of Nannoo after taking the clothes which were put on the said roof for drying. There was exchange of some heated words between Babloo & Jannat who is his niece and is wife of Bablu''s elder brother Manish. Anterior to two /three days of the incident in which Ruqsana, the victim had also hurled some vituperative and filthy languages to Babloo on account of which Babloo was highly exasperated and was constantly threatening to the victim for wreaking vengeance. Taking advantage of her loneliness at the roof of Nannoo, the accused Appellant abruptly appeared and after dragging the victim cut her neck with knife. On the shriek and cry of the victim, Ramzano, Alla Mahar, Noor Mohammad etc. rushed and saw the accused fleeing away from the place of occurrence with a knife. The witnesses tried to nab the culprit, the culprit succeeded in fleeing away towards the field on the dint of his knife. The victim succumbed to injury on account of fatal injuries caused by knife.

The first information report with respect to the said incident was registered as case Crime No. 149/03 u/s 302/506 IPC against the accused Appellant at Police Station Khurja Dehat District Bulandshahar. After registration of the said incident, the police swiftly came into action by starting investigation and reached on the spot. The police took corpse of the deceased in possession and after completing necessary formalities sent to mortuary for autopsy. The autopsy of the deceased was conducted on 22.10.2003 at 4.00 p.m which was marked as Ex. Ka.4. The doctor opined that the death of the victim had occurred due to shock and haemorrhage as a result of ante-mortem injuries stated as under:

1 W 13 cm x 6 cm x bone deep on front of neck. On exploration lyrnx cut muscles of the neck, cut great vessels of the neck cut both side.

The investigating officer at the instance of the complainant collected plain and blood stained earth which was marked as Ex. Ka.13 and the site plan was marked as Ex. Ka.12 . One pair of ''sandal'', two buttons, one half sleeve cream colour shirt with blood stains were also found on the place of occurrence of which recovery memo was prepared and the same was marked as Ex. Ka.14. The investigating officer recorded the statement of the eye witnesses. The accused Appellant was arrested on the same day along with blood stained knife at 22.30 hours and the first information report u/s 25/4 Arms Act was lodged at about 11.45 p.m. vide Case Crime No. 150 of 2003 Police Station Khurja District Bulandshahar. Arrest and recovery memo of blood stained knife was also prepared and the same was marked as Ext. Ka.15 . The site plan prepared with respect to the arrest of the accused Appellant was marked as Ex. Ka.18. On 27.11.2003 the recovered incriminating articles viz. blood stained and plain earth, shirt and knife were sent for chemical examination. According to the Serologist report, human blood was found in all the articles but no conclusion could be drawn as the blood was disintegrated.

The investigating after collecting credible and clinching evidence submitted charge sheet against the accused Appellant under Sections 302/506 IPC. In the case u/s 25/4 Arms Act separate charge sheet was submitted against him. The Appellant disowned all the charges attributed against him and claimed to be tried. The prosecution in support of his case examined Sharfuddin P.W.1, the father of the victim who had lodged the first information report. The P.W.1 Sharfuddin reiterated the contents of the first information report. It was also divulged in the statement that anterior to the incident, some tussle had taken place between his niece Jannat and the accused Appellant in which the daughter of the complainant deceased Ruqsana had taken the side of Jannat and had used some abusive and filthy languages to Babloo which had caused indignation and wrath in the mind of the accused Appellant. The Appellant used to threaten the victim constantly so as to quench his anger. On the fateful day at about 2.30 the victim had gone on the roof of Nannoo for taking the clothes which were put for drying. Babloo, the accused Appellant who was in search of Ruqsana appeared abruptly having a knife and after dragging the victim cut her neck with the knife. On the shriek and cry of the victim, the complainant, the mother of the victim, Ramjano, Alla Mahar & Noor Mohammad etc. reached on the spot. The accused Appellant let loose of a reign of terror on the point of knife and succeeded in fleeing away towards the field. In the process of chasing the accused, the accused had left Kameej and Chappal on the spot. The victim succumbed to her injuries on the spot on account of the cut of her neck by knife. The said incident was dictated to one Iliyas resident of the same locality. The complainant had put his thumb impression on the said script. Thereafter the complaint reached the police station and lodged the first information report narrating the entire incident.

The defence had cross examined the P.W.1 Sharfuddin but no discrepancy was found in his cross examination. The P.W.3 Noor Mohammad real brother of the complainant and the uncle of the deceased being an eye witness of the occurred reiterated the same who had reached at the spot hearing the shrieks of Ruqsana. He stated that the Appellant was living jointly along with his brother Manish. The deceased Ruqsana had taken the side of Jannat, the wife of Manish and had spoken harsh words to the Appellant which the Appellant could not tolerate and had prompted him for committing the murder. The P.W.3 Noor Mohammad had supported the prosecution version. No anomaly was detected in his cross examination.

The prosecution had further examined P.W.2 Constable Rajesh Kumar who was posted as constable clerk. He had proved Check FIR which was marked as Ex. Ka.2. The prosecution had examined Dr. Yashwant Singh P.W.4 who had performed autopsy of the deceased on 22.10.03 . This witness had proved the injury of the victim. The doctor had opined the death was due to shock and haemorrhage as a result of ante-mortem injuries.

The prosecution had further examined S.I. Suresh Etoriya P.W.5 who had investigated the case u/s 25/4 Arms Act and had submitted a separate charge sheet exhibited as Ka.6. The investigating officer Jagvir Singh, P.W.6 who after investigating the matter had submitted charge sheet against the accused Appellant u/s 302/506 IPC was examined. The P.W.6 Jagvir Singh supported the prosecution case stating that the accused Appellant was arrested by him at 22.30 night and a blood stained knife was recovered from his possession. The statement of the accused Appellant u/s 313 Code of Criminal Procedure was recorded wherein the accused Appellant had admitted that he was the brother in law of complainant''s niece Jannat and used to reside along with his elder brother at Mohalla Islamabad but had disowned any sort of discord with Jannat and Ruqsana. The accused Appellant had stated that he had given Rs. 10,000/- to the father of the deceased. The Appellant had been falsely indicted in the present crime with the oblique motive of usurping his money.

In defence D.W.1 Nannoo Khan and D.W.2 Smt. Jannat were examined. D.W.1 Nannoo Khan was the neighbour of the complainant where the incident had taken place. The D.W.1 Nannoo had denied about his presence at the time of incident. He had gone to hawk. When he came back at about 6.30 p.m. he came to know about the incident. The corpse was also lifted from the place of occurrence. The D.W.1 Nannoo heard the confabulation of the people in the street that the daughter of the complainant Sharfuddin was done to death by Babloo. It also came to his notice that the incident had taken place at about 2-2.30 p.m. The D.W.1 Nannoo came to know about the name of the deceased by his wife.

The D.W.2 Jannat stated that the victim was the daughter of her uncle Sharfuddin. She had denied that Babloo who was her Devar was not residing with her at Islamabad. The Appellant Babloo used to live in the house of Ramzano. She had also denied about the discord with Babloo 2/3 days earlier. Babloo used to live in the house of Ramzano on the assurance of Sarfoo that he would marry his daughter Ruqsana with Babloo. Babloo was married with another girl earlier to this incident. The said girl had left Babloo. Babloo used to live in the house of Ramzano with the expectation of settling his marriage with Ruqsana as Babloo was already assured by Sarfoo. Babloo was giving his entire earning to Sarfoo. Babloo had given about 10-12 thousands to Sarfoo. The D.W.2 Jannat was not present at her residence at the time of occurrence. She had gone to market for purchasing medicines for her son. The D.W.2 Jannat had come to know about the killing of Ruqsana after returning from market but she had denied about the involvement of the Appellant in the commission of the said crime. Babloo used to live separately from the D.W.2 Jannat from the very beginning. Babloo used to earn money by pulling the Rickshaw. The D.W.2 Jannat had also denied any sort of quarrel with Babloo. Ruqsana had not taken her favour at any time. The Appellant had been falsely implicated in the present case merely on the basis of suspicion. The trial court after taking into account the evidence and the facts and circumstances of the case in entirety arrived at the conclusion that the prosecution had proved the case u/s 302 IPC only and no offence u/s 506 IPC was made out against the Appellant.

Learned Counsel appearing on behalf of the accused-Appellant has vehemently argued that the Appellant was falsely implicated in the present case. There was no testimony of ocular witness of the occurrence. The accused Appellant had falsely been implicated in the present case at the instance of the P.W.1, Sarfuddin on account of transaction of money as the accused Appellant used to give his entire earning to the P.W.1 on the assurance of P.W.1 Sarfuddin to settle marriage of his daughter with him. The Appellant has been indicted in the present case. The accused Appellant was not arrested on the place of occurrence. There is contradiction in the statement of the prosecution witnesses about the incident. The entire prosecution story is based on circumstantial evidence.

The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused Appellant and in the instant case the prosecution story and the evidence led against the Appellant is full of doubt and deficiency. The investigation was done in a very perfunctory manner and the witnesses were not examined by the prosecution with due care to bring home the guilt beyond reasonable doubt. The sentence and conviction of the accused Appellant awarded by the court below hinged on circumstantial evidence. The accused Appellant can be convicted on the strength of circumstantial evidence only when the circumstances bring home the offence beyond all reasonable doubt, therefore, judgment and order passed by the court below may be set aside and the Appellant may be acquitted of the charges of Section 302 IPC and u/s 25/4 Arms Act.

Per contra learned AGA has supported the findings arrived at by the learned Sessions Judge and has contended that the victim was done to death in an extremely brutal and dastardly manner by cutting her neck which is supported by the medical evidence. There were clinching circumstances pointing towards the guilt of the accused Appellant. The recovery of blood stained knife was made from the Appellant. The incident had taken place in broad day light on the roof of Nannoo. On the shriek and alarm of the victim, P.W.1 Sharfuddin, Ramzano, the mother of the victim, Alla Mahar, Noor Mohammad etc. reached on the place of occurrence and they saw the victim committing the heinous and brutal offence. There is direct and clinching evidence which cannot be bogged down in any circumstances of the case. There is statement of the witnesses that the accused Appellant used to give his entire earning to the complainant since the complainant had assured him to settle the marriage of the victim with him and the complainant had later on resiled from his stand which had prompted the Appellant to quarrel with the family members of the victim and ultimately out of frustration and exasperation, the accused Appellant could not contain his wrath and indignation and ultimately killed the victim by cutting her neck with a knife. The blood stained knife and other incriminating articles viz. blood stained shirt and sandal of the Appellant cannot be overlooked in ordinary course. The contradiction in the statement of Smt. Jannat and Noor Mohammad would not topple down the entire prosecution version.

We have considered the submission made by the learned Amicus Curiae appearing on behalf of the Appellant and the learned AGA in the light of evidence on record.

The evidence of P.W.1 Sharfuddin and P.W.3 Noor Mohd. are the two witnesses who had right from the stage of the first information report given vivid description about the participation and the manner in which the Appellant caused injury to the deceased Ruqsana. Their testimony was subjected to searching cross examination but nothing has been brought to discredit their statements.

The evidence of Dr. Yashwant Singh (P.W.4) and his autopsy report clearly recorded one incised wound on the front of neck cutting larynx both sides of the vessels of neck were cut deeply and which was sufficient to cause death by the use of knife. The knife was also shown to the witness who had admitted the injury is possible with the said knife. In such circumstances it cannot be said that the deceased has not received the injuries with the knife.

The P.W.6 S.I. Jagvir Singh has stated that soon after the incident on the same day the Appellant was arrested with the blood stained knife. The knife was sent for examination and according to the expert report blood was found. The blood stained knife cannot be planted by the police under the circumstances of the case.

The explanation offered by the accused Appellant u/s 313 Code of Criminal Procedure and the statement of D.W.5 are not convincing to hold the complicity of the Appellant to be false.

The direct and clinching evidence are sufficient to substantiate towards guilt of the accused Appellant. The oral evidences coupled with various recoveries gathered against the accused Appellant were of conclusive nature and the chain of evidence only shows that within all human probability the act has been done by the accused Appellant alone. The manner in which the victim was killed to death by cutting her neck portrayed a very inhuman and gruesome state of mind of the accused Appellant. It is not proper to reject the case for want of corroboration by an independent witness if the case is otherwise true and acceptable. It would be unreasonable to discard the oral evidence of the witnesses only on the ground that it is the evidence of partisan and interested witnesses. On this sole ground rejection of such evidence would lead to failure of justice. The prosecution is not under obligation to produce and examine each and every witness whosoever happens to witness the occurrence. It has been held in catena of decisions by the Apex Court that plurality of evidence is not at all required for bringing home the guilty, it is the quality of evidence which is significant in appraisal of evidence. This issue has been dealt with in extenso by the Apex Court in the matter of Munshi Prasad v. State of Bihar 2001 (43) A.C.C.1001 S.C.

In the present case overwhelming evidence is available at the yardstick of the facts and circumstances of the case as spelled out through the credibility of the eye witnesses including the medical evidence, the Appellant is not entitled to get any benefit of doubt therefore, the judgment and order passed by the learned Additional Sessions Judge being reasoned and judicious deserves to be upheld.

Having considered the submissions advanced by learned Counsel for the parties and looking to the facts and circumstances of the case, we do not find any infirmity or vulnerability in the judgment and order dated 22.7.2005 passed by the Additional Sessions Judge (FTC No. 17) Bulandshahar. The judgment and order passed by the learned Additional Sessions dated 22.7.2005 is hereby upheld.

Resultantly this appeal fails and is hereby dismissed.