Kasim Ali vs State Of Chhattisgarh

Arvind Singh Chandel, J

The instant appeal has been moved against the judgment dated 29.11.2013 passed by the 7th Additional Sessions Judge, Raipur in Sessions Trial No.212 of 2012, whereby the Appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced with imprisonment for life and fine of Rs.1,000 each, in default of payment thereof they have to undergo additional rigorous imprisonment for 6 months.

Name of deceased is Mohd. Rafis Ali alias Nafis Ali. PW1 Batulam Begum and PW2 Shama Parvin are his wife and daughter, respectively. Rafis Ali was working as a truck driver and was residing at Maudahapara, Raipur. Appellant 1 Kasim Ali was also a truck driver. One month prior to the incident, a dispute took place between Rafis Ali and Appellant Kasim regarding rent of the truck. Allegedly, Appellant Kasim threatened Rafis Ali of life. Rafis Ali and the Appellants were originally residents of Hamidpur, Uttar Pradesh and a dispute was going on in their families for the last 19 years. Allegedly, brothers of Rafis Ali, namely, Rahmat and Rahman were also murdered by relatives of the Appellants and, therefore, the dispute continued between the families. Further case is that on 2.7.2012 at about 21:45 hours Rafis Ali came out of his house for taking his truck to Bilaspur. The Appellants were hidden on the way. In furtherance of their common intention, they assaulted Rafis Ali with stone, brick and iron rods. Rafis Ali sustained grievous injuries on his body. The incident was witnessed by PW1 Batulam Begum, wife of Rafis Ali and PW2 Shama Parvin, daughter of Rafis Ali. PW4 Bachchaji alias Mohd. Sadik and PW6 Imam Ali also witnessed the incident. After the incident, the Appellants fled from the spot. Injured Rafis Ali was taken to Medical College Hospital, Raipur. He died during the course of treatment. Dehati FIR (Ex.D1) was lodged by PW1 Batulam Begum. First Information Report (Ex.P22) was registered. Inquest (Ex.P2) was conducted on 3.7.2012. Post mortem examination over the dead body was conducted by PW9 Dr. Shiv Narayan Manjhi. Post Mortem Report is Ex.P37 in which cause of death is reported to be due to haemorrhage and shock as a result of head injury and nature of death is reported to be homicidal. During the course of investigation, on the basis of memorandum statements of the Appellants, i.e., Ex.P3 to P6, stone, brick, iron rods and blood stained clothes of the Appellants were seized. Statements of witnesses were recorded under Section 161 Cr.P.C. On completion of the investigation, a charge-sheet was filed. The Trial Court framed charges. To rope in the Appellants, the prosecution examined as many as 9 witnesses. In examination under Section 313 Cr.P.C., the Appellants denied the guilt and pleaded innocence. A specific defence was taken by Appellant 4 Habbi alias Habib Ali that on the date of incident he was not present on the spot and thus a plea of alibi was taken by him. In their defence, the Appellants examined 4 witnesses. On completion of the trial, the Trial Court convicted and sentenced the Appellants as mentioned in first paragraph of this judgment. Hence, this appeal.

Learned Counsel appearing for the Appellants argued that the eyewitnesses PW1 Batulam Begum and PW2 Shama Parvin are wife and daughter of the deceased, respectively and other eyewitnesses PW4 Bachchaji and PW6 Imam Ali are also close relatives of the deceased and, therefore, all the 4 eyewitnesses are interested witnesses. Hence, without corroboration by other evidence, their statements cannot be relied. PW2 Shama Parvin is a child and tutored witness and, therefore, her statement is also not reliable. It is further argued that the incident took place in an open place, but, despite that, the prosecution did not examine any independent witness. The statement of DW2 Sultan Ali, who is a resident of Maudahapara itself, clearly shows that he was present on the spot and the eyewitnesses came there later and according to the statement of Sultan Ali, the assailants were unknown persons. Therefore, the entire prosecution case is suspicious. It is further argued that from the statements of DW3 Nageshwar Prasad and DW4 Kheduram, it is also established that on the date and time of the incident Appellant 4 Habib Ali was present at Korba for loading of coal, but, the Trial Court has not appreciated this evidence properly. Therefore, it appears that all the eyewitnesses have falsely implicated the Appellants due to the previous animosity. Reliance has been placed on Mahendra Singh v. State of Madhya Pradesh, (2022) 7 SCC 157, Balwan Singh v. State of Chhattisgarh, (2019) 7 SCC 781, Harbeer Singh v. Sheeshpal, (2016) 16 SCC 418, J. Venktesh v. State of Chhattisgarh, 2022 SCC OnLine Chh 1989 and Onkar Sahu v. State of Chhattisgarh, 2022 SCC OnLine Chh 1973 .

Learned Counsel appearing for the Respondent/State supported the impugned judgment and submitted that considering the entire evidence on record the Trial Court has rightly convicted the Appellants. Though the eyewitnesses of the incident are relatives of the deceased, only on this ground their statements cannot be disbelieved.

We have heard the rival contentions put-forth on behalf of the parties and perused the entire evidence both oral and documentary with utmost circumspection.

The first question for consideration is whether the death of Rafis Ali was homicidal in nature. The Trial Court, after appreciation of the medical evidence on record, particularly, the statement of PW9 Dr. Shiv Narayan Manjhi and taking into account the Post Mortem Report (Ex.P37), has rightly come to the conclusion that the death was homicidal in nature. This finding is a pure finding of fact based on the evidence available on record and the finding is neither perverse nor contrary to the record. Even otherwise, it has not been seriously disputed by Learned Counsel for the Appellants that the death was homicidal in nature. In view of the above, we hereby accept and hold that the death was homicidal in nature and we also hereby affirm this finding.

The next question for consideration is whether the Appellants are the persons who committed the crime in question. Conviction of the Appellants is based on the testimony of the eyewitnesses PW1 Batulam Begum, PW2 Shama Parvin, PW4 Bachchaji and PW6 Imam Ali. PW1 and PW2 are real wife and daughter of the deceased, respectively and PW4 and PW6 are also relatives of the deceased. The Trial Court has also found that pursuant to the memorandum statements of the Appellants, seizures of stone, brick and iron rods were made and according to the opinion given by PW9 Dr. Shiv Narayan Manjhi the injuries sustained by the deceased could be caused by the seized articles and on these grounds the Trial Court has convicted the Appellants.

Undisputedly, eyewitnesses PW1 Batulam Begum and PW2 Shama Parvin are wife and daughter of the deceased, respectively and it is also not in dispute that PW4 Bachchaji and PW6 Imam Ali are also relatives of the deceased. Thus, all the eyewitnesses of the incident are relatives of the deceased. Apart from them, no independent witness has been cited or examined by the prosecution.

PW1 Batulam Begum, who lodged Dehati FIR (Ex.D1), categorically stated that at the time of incident after taking meal Rafis Ali (the deceased) was going towards Maudahapara Road and after him, this witness and her children PW2 Shama Parvin and Sneha were also going. When they reached Maudahapara Road, at that time, all the Appellants, who were hidden there, came out and assaulted Rafis Ali with stone, brick and iron rods. This witness categorically deposed that as the Appellants were residents of her locality, she recognised and identified them clearly. According to this witness though some persons were moving there, they did not help them. According to this witness, PW4 Bachchaji, PW6 Imam Ali and Mubina (PW3) came there then the Appellants left Rafis Ali there and ran away. The statement of this witness is duly corroborated by her daughter PW2 Shama Parvin. PW2 Shama Parvin also categorically deposed that she witnessed the incident and the Appellants were the persons who assaulted her father (the deceased). The incident took place at 21:45 hours and Dehati FIR (Ex.D1) was lodged at 22:30 hours, i.e., immediately after the incident at Medical College Hospital Raipur. In Dehati FIR (Ex.D1), it is mentioned that the incident was witnessed by PW1 Batulam Begum and PW2 Shama Parvin. It is also mentioned therein that the incident was witnessed by PW4 Bachchaji, PW6 Imam Ali and PW3 Mubina also. PW3 Mubina, PW4 Bachchaji and PW6 Imam Ali, corroborating the statements of PW1 Batulam Begum and PW2 Shama Parvin, have stated that on listening the shouts, they reached the spot and saw that all the Appellants were assaulting Rafis Ali. Having seeing them, the Appellants fled from the spot. All the said eyewitnesses of the incident, i.e., PW1 Batulam Begum, PW2 Shama Parvin, PW3 Mubina, PW4 Bachchaji and PW6 Imam Ali duly remained firm during their cross-examination.

In State of Jammu and Kashmir v. Hazara Singh, (1981) SCC (Cri) 537, the Supreme Court held that the testimony of inimical witness has to be examined with due caution and diligence and the testimony of witnesses cannot be rejected merely on the point of inimical background.

In Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498, the Supreme Court held that the requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. A duty is cast upon the Court to examine the testimony of inimical witnesses with due caution and diligence.

In State of Maharashtra v. Tulshiram Bhanudas Kamble, (2007) 14 SCC 627, it is held that enmity is a double edged weapon. It can be a ground for false implication, but, it can also be a ground for correct implication and, therefore, the testimony of the inimical witnesses cannot be discarded merely because of the enmity.

Reverting to the facts of the present case, in light of the aforesaid parameters of law laid down by the Supreme Court, it is quite vivid that in the instant case the eyewitnesses PW1 Batulam Begum, PW2 Shama Parvin, PW3 Mubina, PW4 Bachchaji and PW6 Imam Ali have supported the case of the prosecution. PW1 and PW2 are close relatives of the deceased and rest of the eyewitnesses are also relatives of the deceased. All these eyewitnesses remained firm during their cross-examination. Though there are some contradictions and omissions in their statements, they are not material. Dehati FIR (Ex.D1) was promptly lodged by PW1 Batulam Begum in which it is clearly mentioned that the incident was witnessed by all the abovementioned eyewitnesses including her. With regard to the plea of alibi taken by Appellant 4 Habib Ali, though DW3 Nageshwar Prasad and DW4 Kheduram have been examined by the defence, from their statements and documents submitted by these two defence witnesses it is clear that their statements are not reliable, as the documents in which the signature and name of Appellant 4 Habib Ali are mentioned with overwriting and correction for which no acceptable explanation has been offered by these two defence witnesses. Therefore, the Trial Court has rightly arrived at the conclusion that the plea of alibi of Appellant 4 Habib Ali has also not been established. Thus, we hold that PW1 Batulam Begum, PW2 Shama Parvin, PW3 Mubina, PW4 Bachchaji and PW6 Imam Ali are reliable eyewitnesses and the Trial Court relying on their statements has rightly convicted the Appellants.

Consequently, the appeal is dismissed. The impugned judgment of conviction and sentence is affirmed.

Record of the Court below be sent back along with a copy of this judgment for information and necessary action.