Daud vs State of U.P.

Poonam Srivastav, J.—The sole Appellant Daud has preferred this appeal against the judgment dated 24.8.2000 in S.T. No. 196/99, State v. Daud S.T. No. 196/99 convicting him u/s 302, I.P.C. and sentencing him to undergo rigorous imprisonment for life and fine of Rs. 2,000. In default of payment of fine, further sentence of six months is awarded.

The story unfolded by prosecution is that the deceased Saleem, bother-in-law of the Appellant Daud and Salma, wife of Daud were done to death by the Appellant on 8.10.1998 at 11.45 a.m. in his own house situated in mohalla Khalapar, Police Station Kotwali, Muzaffarnagar. The Appellant was a truck driver. Salma was married to the Appellant three years prior to the date of occurrence. The first informant Sayeeda Begum, mother of the deceased had come to her daughters house alongwith her son (deceased) and younger daughter Sayama a day prior to the date of occurrence, i.e., 7.10.1998. The Appellant returned from his truck on the date of occurrence, his wife Salma (deceased) told her husband that she had taken loan of Rs. 20 from her neighbour Idrish, son of Mahmood. Daud got infuriated after he came to know that Salma had taken loan from Idrish, he started hurling abuses and beating her. The Appellants brother-in-law Saleem tried to intervene, Daud did not like his brother-in-law''s intervention and gave knife blows to Saleem. Salma tried to shield and save her brother but she was also attacked by her husband which resulted in a number of incised injuries, both brother and sister fell down and succumbed to his assault. This was witnessed by her mother Sayeeda Begum and her younger daughter Sayama. both started making hue and cry, on hearing their shrieks a number of neighbourers arrived at the scene of occurrence, Daud ran away alongwith the weapon of assault which was a knife.

The first information report was lodged by Sayeeda Begum, the mother of the two deceased on the same day at 13.15 hours at Police Station Kotwali Sadar, Muzaffarnagar situated at a distance of two kilometres. The said report was registered at Case Crime No. 374 of 1998 (Exhibit Ka-1). The scribe of the F.I.R. is one Shamim Ahmad The investigation was taken over by S.I. B. K. Singh. The inquest of both the dead bodies was conducted by the Investigating Officer and the dead bodies were sent for post mortem to the District Hospital, Muzaffarnagar.

Post mortem on the body of the deceased Saleem was performed on 9.10.1998 at 2.00 p.m. by P.W. 4 Dr. P. C. Jain. The Post Mortem Report of the deceased Saleem is Exhibit Ka-4 and Post Mortem Report of the deceased Salma is Exhibit Ka-5. Following ante-mortem injuries were detected by the doctor on the body of Saleem.

ANTE MORTEM INJURIES:

(1) Two incised wound 2 cm. x 1/2 cm. x muscle deep and 1-1/2 cm. x 1/2 cm. x muscle deep, 1/2 cm. apart of each other on the left side upper part of neck just behind lobule of left ear.

(2) I.W. 3 cm. x 1/2 cm. x muscle deep on left side neck 5 cm. below injury No. (1) .

(3) I.W. 2-1/2 cm. x 1 cm. x chest cavity deep on the front of mid line upper part of chest just below supra sternal notch (passing through inter space of 2nd and 3rd rib) .

(4) Abrasion 5 cm. x 2.5 cm. on the front of left side chest 10 cm. below left nipple.

(5) I.W. 1 cm. x 1/2 cm. x muscle deep on back of left upper arm (upper arm) 4 cm. above left elbow joint.

(6) I.W. 3-1/2 cm. x 1-1/2 cm. x muscle deep on the right side back of chest just below upper angle of Rt. scapula.

(7) I.W. 2-1/2 cm. x 1 cm. x chest cavity deep on the back of right side chest 8 cm. below lower angle of right scapula. The wound is passing through the inter space of 7th and 8th rib.

(8) I.W. 2 cm. x 1 cm. x muscle deep in the mid line back of chest, 3.5 cm. lateral to injury No. (7).

(9) I.W. 2-1/2 cm. x 1 cm. x chest cavity deep on the right side back of chest 10 cm below injury No. (8). The wound is passing through the inter space of (8th and 9th rib).

(10) I.W. 1-1/2 cm. x 1 cm. x muscle deep on the left side back of chest, 6 cm. below lower angle of left scapula.

Sd. Illegible 9.10.98.

Cause of death was shock and haemorrhage due to ante-mortem injuries.

Post mortem of Salma was performed by the same doctor on the same day at 2.00 p.m. and following ante-mortem injuries were found on her body:

ANTE MORTEM INJURIES:

(1) Incised wound 3 cm. x 1 cm. x muscle deep on the right side in front of axillary fold 6 cm. below front top of Rt. shoulder.

(2) Incised wound 2-1/2 cm. x 1 cm. x cavity on the front of right side chest 12 cm. below from Rt. nipple at 5 O''clock position. The wound is passed through inter shace of 9th and 10th rib.

(3) I.W. 2-1/2 cm. x 1 cm. x abdominal cavity deep on the left side front of abdomen, 7 cm. above from umbilicus at 1 O''clock position.

(4) I.W. 1-1/2 cm. x 1 cm. x muscle deep on the front of upper part of left thigh 12 cm. below from left iliac crest.

The Appellant Daud was arrested on 18.10.1998 and his statement was recorded by the Investigating Officer. He confessed his guilt and also got the knife recovered from his house in presence of the witness Anwar and Idrish. Recovery memo was prepared which was duly signed. Recovery memo is Exhibit Ka-2.

The investigation was completed by the Investigating Officer and charge-sheet was submitted against the Appellant. The prosecution examined five witnesses in support of its case. Witness of fact examined on behalf of the prosecution was only the first informant Smt. Sayeeda as P.W. 1, Anwar, son of Siya was examined as P.W. 2 who is witness of recovery. P.W. 3 Constable Kanti Prasad was examined to prove the registration of the case and G.D. No. 32, P.W. 4 Dr. P. C. Jain who conducted the post mortem and P.W. 5 S.I. B. K. Singh, the Investigating Officer. The Appellant did not examine any witness in defence but denied having committed the offence.

Sri I. M. Khan learned Counsel appearing on behalf of the Appellant has denied the prosecution case and advanced many fold arguments.

It is argued that the F.I.R. is ante-timed. He has also challenged the place and time of incident, the manner of assault is doubtful as well as the presence of the first informant at the scene of occurrence. Learned Counsel has tried to draw our attention to the cross-examination of P.W. 1 where she admits exchange of hot word and abuse between Daud and her daughter Salma commenced inside the room. The Appellant also started hitting his wife but the two deceased were done to death in the Sahan just outside the room. Sri I. M. Khan has invited our attention to the part of cross-examination where she has admitted that while Saleem was being assaulted by knife in the Sahan by Daud, her daughter Salma tried to cover her brother and fell on him but she was also assaulted. Both of them dragged themselves and somehow crawled like a dog outside the door and died in the Gali. It is emphatically argued that Sayama who is alleged to be an eye-witness, has not been produced, though she is said to have witnessed the entire incident. Non-production of Sayama gives an indication that she was not present. It is also argued that P.W. 1 has admitted that there was blood in the room on the double bed as well as wall where the first assault was made by Daud but the police has neither taken any bloodstained earth nor the bed sheet where she claimed that it was stained with blood.

The next ground of challenge by the learned Counsel is that the ante-mortem injuries found on the deceased do not show any mark of dragging and the narration by the prosecution to the effect that both the deceased have dragged themselves outside the door after receiving brutal knife blows renders the entire story doubtful. Learned Counsel also pointed out that P.W. 1 has stated that all of them had taken breakfast at about 8.00 or 9.00 a.m. They had a slice of bread and tea for breakfast but the post mortem report shows that the stomach was empty and there was gases and faeces in the intestine, therefore, the time of incident as mentioned in the report as 11.45 a.m. stands belied. It is also pointed out by the learned Counsel that the specific case of the prosecution is that Salma received knife blows while trying to shield Saleem from the knife blows wielded by Daud but since all the injuries are on the front side, the prosecution theory stands falsified. The manner of occurrence as canvassed by the prosecution cannot be accepted specially on the basis of the ante-mortem injuries on the body of Salma and it does not substantiate the testimony of P.W. l. In case Salma received knife blows while trying to cover her brother then injury should have been caused on the back side.

Lastly learned Counsel has tried to bring to our notice that there is inordinate delay in dispatch of the dead bodies. The Investigating Officer has admitted that the inquest was completed and thereafter it was handed over to the constables at 6.30 p.m. Learned Counsel has emphasized that since the dead bodies were handed over at 6.30 p.m. to the constables for being taken to the Police Line but the post mortem was not conducted on the same day, goes to show that the dead bodies had not reached to the Police Line and finally to the Mortuary on the same day and that is why the delay in conducting the post mortem. This is sufficient to cast a shadow of doubt on the time of occurrence and the consequent lodging of the F.I.R. as alleged by the prosecution. The dead bodies were handed over at the Mortuary only on 9.10.1998 at 7.30 a.m. Thus, there is delay of 12 hours. Learned Counsel has placed the statement of P.W. 4 Dr. P. C. Jain in support of his argument. The part of the cross-examination of the doctor where he admits that in the event Salma was lying flat over Saleem then the ante-mortem injuries as found by the doctor on her front side is not possible and, therefore, learned Counsel submits that this is yet another aspect which reflects the manner of occurrence as claimed by prosecution is doubtful. On the basis of aforesaid discrepancies pointed out in the prosecution version, Sri I. M. Khan laid stress that the incident occurred in a different manner. The statement of the accused u/s 313, Cr. P.C. has been brought to our notice in support of the contention. The reply to the last question to the effect that Appellants wife Salma used to go away from the house for a number of days whenever he was away at work with his truck. Learned Counsel has made an attempt to convince us that it is someone else or one of her paramour who has killed her while the Appellant was away and he has been implicated on account of suspicion.

Learned A.G.A. while disputing every argument of Sri I. M. Khan has placed the site plan and also the statement of the Investigating Officer that drops of blood were found and bloodstained earth was collected by him as well as the plain earth from the place of occurrence. He has also demonstrated from injury No. 4 of Saleem and statement of the doctor that theory of dragging propounded by prosecution does not stand negated.

We have given a careful consideration to the argument advanced by the respective counsels. At the very outset we cannot overlook the fact that it is broad day light occurrence. The F.I.R. is also prompt one. The argument that the F.I.R. was ante-timed cannot be accepted only for the reason that there appears to be some overwriting in the F.I.R. P.W. 3 Kanti Prasad who has proved the G.D., has clearly admitted in cross-examination that when the written report bearing the thumb impression of P.W. 1 was handed over at the police station, the overwriting was already there on the paper and it appears that the scribe while writing out the report had made the overwriting at the initial stage. He has gone further to clarify that there is no change whatsoever in the F.I.R. when it was handed over to him at the police station and the one exhibited in the trial. He has specifically denied the suggestion by defence that the case was registered after 5.45 p.m. So far the argument of the learned Counsel for the Appellant that the place and time of occurrence as well as the presence of the first informant is doubtful, cannot be accepted since the dead bodies were found at the place where the prosecution alleges the incident to have taken place and the inquest was prepared. Besides the bloodstained earth etc. were also found there. The emphasis laid by learned Counsel on the fact that Sayama, the younger sister of the deceased has not been examined by the prosecution though the specific case is that she was a witness to the entire occurrence is not sufficient to belie the entire prosecution story. At the time of occurrence when the evidence was being recorded, Sayama was only 6 years of age and the learned Session Judge has observed that she is not more than 6-7 years of age and very clearly stated in his judgment that thus at the time of occurrence she was not more than 5 years. Though the police had mentioned her name in the list of witnesses in the charge-sheet but the learned Session Judge discharged her on an application given on behalf of the prosecution. We cannot lose sight of the fact that Sayama had come to the Court on 24.1.2000. The learned Session Judge has written in his judgment that according to his estimation she was not more than 6-7 years of age. She appeared to be petrified and completely shaken and, therefore, the Court has discharged her. It is not the case that the first informant had tried to withhold her younger daughter but she had the courage to bring her to the Court to give her testimony in the trial. It can very well be imagined that the atmosphere within the Court, presence of Daud and the fact that she had witnessed the ghastly scene of murder of her elder brother and sister, it is very natural that this made her speechless and dumbfounded. There is no reason why we should disbelieve this finding of the learned Court. In the circumstances, mere non-production of Sayama as an eye-witness is not sufficient to draw an adverse inference. No doubt, there is only single eye-witness who happens to be the mother of the two deceased and, therefore, her testimony is to be scrutinized carefully and minutely.

Learned Counsel has tried to place certain part of the cross-examination to show the discrepancies to demolish her statement:

(a) The first ground is that there was no occasion for P.W. 1 to be present at the scene of occurrence. We do not agree with this argument as she has specifically stated that her elder son Saleem''s wedding was to take place and she had come to invite her daughter and son-in-law. This is not unusual specially in the villages.

(b) Saleem being the son of family, he escorted his mother and younger sister to extend the invitation but unfortunately became a victim of ire and wrath of his brother-in-law, therefore, there is no reason why her presence in the house should be disbelieved specially when there is no other suggestion of her being present at any other place.

(c) She claims herself to be present in the room but came out in the Sahan only when the quarrel between the husband and wife (Daud and Salma) ensued. Saleem tried to reprimand Daud which resulted in the knife assault to Saleem. P.W. l has stated that as soon as the assault was made over Saleem, she immediately came at the staircase which ends on the main road. She saw the spray of blood on the bed sheet but just because the police has not taken the bed sheet in its custody, will not render the entire prosecution version doubtful.

The Apex Court in the case of Chacko alias Aniyan Kunju and Ors. v. State of Kerala (XXXVIII) 2004 ACC 450: 2004 (2) ACR 1791 (SC), has held that no particular number of witnesses is required to prove a case. Conviction can be based on the testimony of a single witness if it is reliable. While examining the question whether on the basis of a solitary witness conviction can be maintained, a bare reference of Section 134 of the Indian Evidence Act would suffice. It clearly states that no particular number of witnesses is required to establish the case. Corroboration is necessary only where the evidence is partially reliable. In the instant case, evidence is unblemished and beyond all possible criticism and, therefore, we are satisfied that the witness is speaking the truth. Similar view was expressed in the case of State of Andhra Pradesh v. S. Rayappa and others, (LIV) 2006 ACC 828: 2006 (1) ACR 1009 (SC). The Apex Court was of the view that there is no reason as to why close relative will implicate falsely someone else and screen the real assailant to escape unpunished. The only requirement that the testimony of a close relative should be examined cautiously. For a ready reference, paragraph 7 of the said judgment is quoted below:

On the contrary it has now almost become a fashion that the public is reluctant to appear and 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 a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would he the relative witness, The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The High Court has brushed aside the testimony of P.W. 1 and P.W. 2 on the sole ground that they are interested witnesses being relatives of the deceased.

The argument that there is no injury on the body of the deceased to substantiate the theory of dragging as submitted by learned, counsel for the Appellant. We have perused the ante-mortem injuries of the deceased Saleem. Injury No. 4 is abrasion 5 cm. x 2.5 cm. on the front of left side chest 10 cm. below left nipple. The house of Daud was not such a big house that the deceased dragged a long distance. The room Sahan is just adjacent to the road and it is not the case where the dead bodies were dragged by the Appellant but they themselves tried to crawl to save themselves. Absence of dragging mark cannot be said to be fatal to the prosecution case, besides the doctor has admitted that injury No. 4 on the body of Saleem can be caused by dragging. The only other ground emphasized before us is the delay in the Post Mortem because though the dead bodies were dispatched at 6.30 in the evening but the doctor admits in his cross-examination that he received the dead bodies at 7.30 a.m. However, he has admitted that the time given on the post mortem is not in his own handwriting but some Pharmacist his written on the left side of the paper 674/9.10.98/7.36 a.m. He has also admitted in his cross-examination that he is not aware that this endorsement was made regarding receipt of the dead body or something else. Similarly 673/9.10.98/7.35 a.m. on the papers alongwith dead body of Salma is not in his own handwriting. He has clearly denied knowledge about the time when the dead bodies were brought to the Mortuary. The doctor has also stated that injury No. 4 caused to Saleem can be caused due to dragging though he has denied that in case Salma tried to embrace Saleem on the chest side then the injury Nos. 2 and 3 could not be caused. No specific cross-examination or suggestion has been made to P.W. 1 to elucidate the exact position in which Salma tried to shield her brother from the knife assault of her husband and, therefore, we cannot conclusively hold that the manner of occurrence as alleged is not possible, specially when there is specific eye-witness account and testimony of P.W. 1 which could not be dismantled by the defence besides, the F.I.R. being prompt one and the occurrence was a broad day light occurrence. It is not one of those cases where the prosecution has tried to introduce fictitious witnesses as generally is the tendency in a number of other cases. The manner of occurrence and the version given out by P.W. 1 inspires confidence, which cannot be said that there is any ambiguity to disbelieve her just because she happens to he mother of two deceased, her testimony cannot be negated.

In a case before the Hon''ble Supreme Court while challenging the manner of occurrence in the case of Pandurang Kalu Patil and Anr. v. State of Maharashtra 2002 SCC 371: 2002 (1) ACR 624 (SC), on the ground that eye-witness account was inconsistent with the injuries noted by the doctors. In the said case, according to the version of the eye-witnesses, the deceased was running forward while the assailants shot him from behind but the firearm injuries sustained by the deceased could well have been shot face-to-face. The Apex Court held that this aspect is not enough to doubt the correctness of the testimony of the eye-witness, for, it is quite possible that it is by way of reflex action the running deceased would have turned back either to see whether he had gone out of the range of peril or to know the nearness of it. Thus, there is every possibility that at the time when Salma was assaulted, she might have tried to get up and save herself and the injuries were caused on the front side. A mother witnessing the murder of two grown up children cannot be expected to give a photographic description of the occurrence of each and every second. It is sufficient for us to believe her statement as it was a broad day light incident. She had seen elder daughter trying to save her brother and this alone is not sufficient to overthrow her testimony which otherwise has withstood the test of cross-examination.

Learned Counsel has cited a Division Bench of this Court in the case of Chandoo and Ors. v. State of U.P. 1996 JIC 376: 1996 ACR 137. In the said case it was held that the F.I.R. was ante-timed since the distance between the place of occurrence and police line or Mortuary was 8-9 kilometres and dispatch of the dead body was late by 15 hours and also P.W. 3, eye-witness in the said case was not cited at the first instance and the other witnesses were close relatives. Her presence was held to be doubtful and none saved the deceased and close relatives not to be expected a simple spectators. The said appeal ended in an acquittal.

We have examined the judgment at very great length. No benefit can be given to the accused only because there is intervention of 11 hours between the dispatch of the dead body and receipt of the same at Mortuary. The doctor has specifically stated that the endorsement on the papers alter receipt is not in his own handwriting. He cannot say that at what time the dead bodies arrived at Mortuary and the person whoever made the endorsement on the papers, made it immediately or sometimes in the morning. It is thus not safe to throw out the prosecution case only on this basis specially when the doctor has denied that he has not made that endorsement and he cannot say at what time the dead bodies arrived. It is a case of double murder. It has come in evidence that the Appellant used to beat and hit his wife on two earlier occasions. The family members had to intervene and resolve their problems within a short span of marriage of three years. It is sufficient to hold that the Appellant had a bad tamper only because on the fatal day, his wife taken loan of Rs. 20 from a neighbour, he started hitting and abusing her. It is normal conduct of the family members of the wife to intervene, and if Saleem tried to stop his bother-in-law when he was given knife blows which resulted in his death. Salma, real sister of the deceased Saleem also tried to save her brother and met the same fate at the instance of her husband. The prosecution story appears to be very natural, probable and the evidence to establish the prosecution case is absolutely unshaken. We are not in agreement with the submission made by learned Counsel for the Appellant. The judgment of conviction does not call for any interference whatsoever. The quantum of punishment awarded is appropriate. The appeal lacks merit and is accordingly dismissed.