Naushad, Naseem and Khalil Khan (In Jail) vs State

A.P. Sahi, J.—This appeal has been filed against the Judgment and order 1.9.99 passed by 1st Additional Sessions Judge Moradabad in S.T. No 671 of 1997 whereby the appellant Khalil has been convicted u/s 302 I.P.C. and sentenced to imprisonment for life and fine of Rs. 1000 and in default of payment of fine further imprisonment for six months. The appellants Naushad and Naseem have been convicted under Sections 302/34 I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 1000 each and in default of payment of fine further imprisonment for six months.

The incident, as reported in the F.I.R., encloses the occurrence at about 11.00 A.M. on 28.4.1995. PW 1 - Shahid, who is the son of the deceased, is stated to have lodged the F.I.R. which was transcribed by one Mahboob Ali on his dictation and on which, according to PW-1, he had placed his thumb impression. It was alleged therein that while PW-1 was coming out from his house after stacking some hay, he saw the accused Khalil Khan, Naushad, Nasir and Naseem, who are residents of the same village at the scene of occurrence where Khalil Khan armed with a gun and the other accused armed with country-made pistol executed the crime. The role assigned to Naushad and Nasir was that they hat caught hold the hands of the deceased and Naseem had been blandishing his country-made pistol to allay the passers-by and villages with threats while Khalil fired the fatal shot resulting in the death of Shaukat. It is also stated therein that at the time of occurrence, Abrar was running the flour mill (Chakki) and Bakhtawar who was present also saw the commission of the offence. However, due to the terror created by the assailants most of the villagers fled away. The place of occurrence described in the F.I.R. is right in front of the door of the flour-mill of the deceased Shaukat where he was stated to have been sitting on his cot when the crime was committed.

The First Information Report was promptly lodged on the same day at about 12.05 P.M. and all the 4 accused were named in the First Information Report. The concerned police officer namely R.P. Sharma, S.I., Reporting Police Outpost Narauli, is stated to have reached the spot and recovered the remains of the alleged cartridge which was used for the commission of the offence. He has further deposed as PW6 and has stated to have carried out the necessary entries and recording of statement of Shahid as well as preparation of the site plan and complete inquest report. The inquest report was prepared at 13.30 P.M. The dead body was despatched for postmortem and the post-mortem was conducted by Dr. Or Mehrotra on 29.4.1995 at about 11.00 A.M. The post mortem report discloses the age of the deceased about 70 years and an average built person. The cause of death according to the Doctor was shock and haemorrhage due to an ante-mortem injury. The said report has been prepared by the concerned Medical Officer Dr. Om Mehrotra, senior Radiologist of District Hospital, Moradabad, who has deposed during the trial as PW-7. The ante-mortem injury is stated to be one gunshot wound of entry 3 cm x 3 cm of thoreaic cavity deep on the left side upper part on the front side of the Chest and approximately 9 cms above the left nipple. The wound was coupled with blackening, Charring and tatooing present in an area of 4 cm x 4 cm around the wound. The investigation proceeded and is further also stated to have been conducted by the C.B., C.I.D, where after the charge-sheet was submitted and case was committed to the court of Sessions. The accused Nasir, Naushad and Naseem were charged under Sections 302 read with 34 IPC whereas the accused Khalil was charged u/s 302 IPC. During the pendency of the trial it appears, that before recording of the statement of the witnesses, one of the accused Nasir died and, case against him abated vide order of the trial court dated 17.8.1998. Thereafter, the prosecution led its evidence by producing as many as 8 witnesses namely Shahid - PW1 (son of the deceased), Bakhtawar - PW2 (brother-in-law of the deceased), Abrar - PW3 (the person who was running the flour-mill on rent from the deceased Shaukat), Rajiv Yadav - PW4 (the Investigation Officer), Sri Pal Singh - PW5 (Head constable), R.P Sharma - PW6 (Sub-Inspector), Dr. Om Mehrotra - PW7 and Balbir Singh Yadav, retired Inspector, C.B., C.I.D. as PW8. All the accused pleaded not guilty and took up a defence that they have been falsely implicated due to enmity. They did not examine any witness in their defence.

Coming to the prosecution witnesses, the first to be examined was Shahid, the son of the deceased Shaukat. He, in Ms statement, has described the incident; and also stated that he was contesting a litigation against the appellant Naushad. It is stated by him that the incident occurred at 11.00 A.M. on 28.4.1995 right in front of the door of the flour-mill of the deceased Shaukat where the deceased Shaukat was sitting on his cot when the assailant arrived. He has clearly stated that Khalil was carrying a gun in his hand whereas the other accused were armed with country-made pistols. He has further stated that the accused Nasir (since deceased) caught hold of one of the hands of the deceased and the other hand was caught by Naushad whereas the accused Naseem was brandishing has country-made pistol to put at bay the passers by and the vi lagers, by threatening them to go away from the scene, or else he would kill them. It has been further stated by Shahid that accused Khalil fired the fatal shot with his gun aimed at Shaukat, who immediately died as a result of the gunshot injury. He has further stated that immediately after the commission of the crime, the assailants fled away from the scene. One of the witnesses Abrar was operating the flour-mill. The shot was fired from a distance of 1-1-1/2 feet away by Khalil Khan. On his cross examination, Shahid deposed that he had no dispute over any passage with the accused and rather the dispute was between Naushad and Islam Khan. Islam Khan is the real brother of Bakhtawar, one of the other prosecution witnesses and the brother-in-law of the deceased. He has repeated that he had no dispute with Khalil over some passage nor there was any such dispute between Islam and Khalil. The deposition further discloses that there was no litigation between the accused Khalil and the witnesses either of any civil or criminal nature. He has, however, admitted that his father, the deceased Shaukat, was involved in a criminal case relating to the murder of some third persons in which the main assailant herein Khalil was a named witness for the complainant in that case, even though he had not entered the witness box. He has further admitted that he was also an accused in the said case which is still pending. He has further stated that the accused Nasir (since deceased) had been murdered in which an F.I.R. was lodged against some other persons whose names are indicated in the statement. In the said case of murder of accused Nasir, Bakhtawar - PW2 herein is one of the accused. The cross examination of PW1 further discloses that he had clearly denied the theory of alibi set up by the accused, that on the fatal day, they had gone to attend a function in village Basauli about 24 miles away at the residence of one Rais. At the time of the incident, F-W-l has stated that he was standing 2-3 steps away from the cot of his father on the western side. He has further deposed that at the time of incident Abrar, Bakhtawar and the deceased were present at the place of occurrence namely the flour-mill. He has further described Abrar to be operating the flour-mill and the other witness Bakhtawar to be standing besides him. He further states that there was no crowd assembled and that the assailants had arrived from the Western side of the scene of occurrence. After the shot was fired by Khalil in the manner described herein above, the deceased fell from his cot on the ground and that he did not make any attempt to save his father due to the imminent threat of the assailants He has further stated that Bakhtawar-PW2 also did not make any attempt to save his brother-in-law, the deceased. He has further denied the recital contained in the F.I.R. that he saw the incident when he was returning back from his house after stacking hay. He has further denied the fact that Bakhtawar was simply passing by when the incident took place and has clearly stated that he was present on the scene of occurrence and that Bakhtawar was also present on the scene from before the incident took place. The statement further indicates that he does not know as to why a different version appeared in the First Information Report. After the deceased fell dead, he was again placed on the cot. The witness has clearly admitted the firing of just one shot. PW-1 has also retracted from the discrepancies that were suggested to him in his alleged statement of 161 Cr.P.C. The deposition further indicates that Naushad and the other accused Nasir had caught hold the deceased who was shot at before he could make an attempt to release himself from their clutches.

The second witness PW2 - Bakhtawar has disclosed himself to be the brother-in-law of the deceased Shaukat. He has corroborated the story of the prosecution as regards the time and scene of occurrence as also the presence of the accused. He has, however, clearly stated that he did not see any of the accused firing any shot. He had only seen them retreating from the scene of occurrence hastily after the commission of the crime. He has also stated that he saw all the accused about 200 steps away and Khalil was carrying a gun whereas the other accused were carrying country-made pistols. He has further deposed that he was standing West of the place when he had seen the accused running away towards the East. In his cross-examination, he has stated that his residence is 200 steps away towards the South from the place of incident. He further states that the police had arrived within one and a half hours of the incident.

The third witness examined by the prosecution Abrar - PW3 was declared hostile by the prosecution, who completed denied having seen the accused at the scene of occurrence. He has further stated that he was actually operating and running the flour-mill when the incident took place and after having heard the s und of a shot being fired, he started searching for any defect in his machinery of the flour-mill as he apprehended that some part of the grinding machine had broken. However, when he did not find my such defect, he came out side where he saw the deceased lying en the cot in an injured state and he asked the deceased Shaukat as to what had happened, then he stated that the accused Nasir has shot me. He has further denied the contents of the Affidavit which was stated to have been filed by him nor had he ever gone to the Court along with his Affidavit.

The fourth witness to be examined was the then Station Officer - Rajiv Yadav, PW4, who admitted having conducted the investigation and recorded the statement u/s 16 Cr.P.C.

The fifth witness to be examined was Sri Pal Singh, the Head constable, who had made the entries at the Police outpost Narauli and deposed as a formal witness.

P.W. 6 is Sri R.P. Sharma, the Sub-Inspector of Police, who had reached the scene of occurrence upon having received the report, and who had carried out the initial investigation proved the exhibits that were prepared by him. He has denied any discrepancy in the investigation carried out by him.

PW7 - Dr. Om Mehrotra is the Medical Officer who had conducted the post-mortem of the deceased Shaukat.

The last prosecution witness was P.W. 8 - Balbir Singh Yadav an Inspector of C.B., C.I.D., who stated that he had also carried out the investigation after the same was entrusted to the C.B. C.I.D. and a charge-sheet was submitted on 12.2.1997 against all these accused persons. He also stated that during investigation, an Affidavit of one Ram Sewak had been filed stating therein that it was the accused Nasir, who had fired with his country-made pistol at Shaukat, the deceased.

The statements u/s 313 Cr.P.C. of the accused Naushad, Naseem and Khalil are also on record wherein all the accused had denied their complicity in the commission of the crime and have completely denied the prosecution story.

The trial court, after assessing the evidence, proceeded to hold all the appellants guilty of having committed the offence;; with which they were charged. Hence this appeal.

We have heard Sri P.N. Mishra, learned Senior Counsel for all the 3 appellants, Sri R.K. Singh the learned A.G.A. for the State and Sri M.D. Mishra for the complainant.

Sri P.N. Mishra, learned Counsel for the appellants, has advanced his submissions to the effect that the statement of Abrar, who was declared hostile, clearly demolishes the entire story sat up by the prosecution inasmuch as Abrar has been named as a witness by the PW-1 and PW-2 as well in their statements. Since Abrar has clearly denied his presence at the time of the occurrence of the incident, therefore, the prosecution story has to fall through Secondly, it is urged that the ocular testimony of Bakhtawar is absolutely concocted and his statement of having seen the assailant fleeing away is full of discrepancies and does not get corroborated either with the statement of PW1 - Shahid or with the other material evidence on record. He has further urged that Bakhtawar - PW2 has disclosed his age about 70 years and, therefore, a person of his age could not have correctly identified the assailants whom he is alleged to have seen from about a distance of 200 steps. He has further urged that since they were running in the opposite direction, therefore, it was not possible for him to identify their presence nor has Bakhtawar described the gait of the accused which may even remotely suggest the story of having seen the accused fleeing away at a distance of 200 steps. The third submission of Sri Mishra is that the role allegedly assigned to the appellant Naushad and co-accused Nasir (since deceased) of catching hold the deceased is absolutely concocted inasmuch as the deceased was an old person sitting on his cot and who is not stated to have offered any resistance. He contends that the theory of catching hold is highly improbable even otherwise as according to the prosecution story both Naushod and Nasir were also armed with country-made pistols. He, therefore, contends that if they were armed, then their conduct c catching hold is absolutely unbelievable as they themselves could lave fired shots and there was no necessity for them to have caught hold the deceased. According to Sri Mishra, this is an almost unnatural explanation and, therefore, the story of catching hold by the appellant Naushad and the accused Nasir is a mere conception. As a corollary to this submission, he further contends that similarly accused Naseem also appears to have been falsely implicated as there is no evidence of any probative value to establish either the complicity or the presence of the accused with the intention to commit murder. He contends that no ingredient of Section 34 IPC is, therefore, made out on the basis of the evidence that has been set up by the prosecution. On the strength of the aforesaid arguments, Sri P.N. Mishra pleads that the conviction of the appellants and the imposition of sentence on them be set aside and the appeal be. accordingly, allowed.

In response to the aforesaid submissions, learned A.G.A. Sri R.K. Singh, has urged that the statement of the witnesses founded on occular testimony fully corroborates the case set up by the prosecution. He has urged that even if one of the witnesses has turned hostile, the same is of no consequence as further credible evidence is available on record and the alleged discrepancies pointed out by the learned Counsel for the appellants in his argument are absolutely in consequential which in no way create any doubt about the commission of the crime and the complicity of the accused. He has invited the attention of the court to the statement of the other prosecution witnesses to urge that all the accused are guilty and the charges is fully established against them. He has urged that all the accused had with the common intention in mind proceeded to execute the crime in broad day light and, therefore, to accept the defence version that the evidence is not trustworthy would be wholly unjustified.

Srt M.D. Mishra, for the complainant, has urged that the defence of alibi that was set up by the accused has been rightly disbelieved and that the statement of hostile witness cannot in any way dilute the entire direct evidence on record which fully proves the guilt or the offenders. He contends that there is no discrepancy much less a vital discrepancy in the evidence that has been led to establish the guilt and that there is no infirmity whatsoever in the statement of the witnesses that may warrant entertaining of any doubt on their testimony. According to him, the conviction and sentence awarded by the court below deserves to be affirmed and the appeal is to be dismissed.

We have perused the records and having gone through the entire evidence, we find it necessary to first examine the testimony of Pw 1 - Shahid. A perusal of the statement of PW-1 indicates that the prosecution marshalled the theory of the presence of all the 4 accused on the basis of the testimony of the witnesses, particularly the statement of PW-1 and PW-2, as PW3 has turned hostile. PWI - Shahid is the son of the deceased and PW2 is the brother-in-law of the deceased, who has stated that his house is about 200 steps away from the scene of occurrence. PW-1 in his statement has clearly said that Naushad and Nasir had caught hold one hand each of the deceased and the accused Khalil had fired the gunshot injury resulting in the instant death of his father. P.W. 2 Bakhtawar had corroborated the testimony of P.W.I Shahid and he deposed that Khalil was murdered in front of his Chakki by Khalil, Naseem, Nasir and Naushad. He saw Khalil armed with a gun and other accused carrying country made pistols running away after committing the murder. His testimony corroborates the testimony of P.W. 1 Shahid. The counsel for the appellant has challenged the presence of P.W. 2 on the ground that there is contradiction in his testimony and in the testimony of P.W.I about the exact place from which he had witnessed the occurrence. According to the statement of P.W. 1 at the time of occurrence Bakhtawar was standing besides him but P.W. 2 stated that he had witnessed the occurrence from 200 steps. We do not find any such contradiction in their testimonies to doubt their presence at the time of occurrence. This is only minor variation which do hot effect the credibility of evidence.

The Apex Court in the case of Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, has held as under;

While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the Evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main Incident because power of observation, retention and reproduction differ with individuals.

The time and place of occurrence is not seriously Challenged by the counsel for the appellants. According to prosecution occurrence took place on 28.4.95 at 11 a.m. in front of a Chakki while deceased was sitting on a cot. A written report of the incident was lodged at the police station at 12.05 a.m. The distance of the police station was 3 Km. The first information was promptly lodged containing all the necessary details about the names of the accused the weapons and manner of the crime and motive of the crime.

However, the testimony of the witnesses with regard to the commission of offence by Khalil cannot be doubted on any score. The evidence, which has been brought forth in respect of the act of the accused Khalil, clearly establishes the presence of Khalil as having committed the offence. This is further corroborated by the Medical Report and the single gunshot injury sustained by the deceased from a very close range. His participation in the crime is also finds corroboration from the testimony of P.W.2 Bakhtawar who had seen Khalil running away carrying a gun from the place of occurrence.

The plea of alibi, which has been set up by the accused before the trial court, has not been urged before us and even otherwise the same is riot worthy of any belief as the defence has been unable to prove the same by leading any evidence to that effect. We, therefore, find from the discussions made herein above that Khalil did commit the offence, which is a broad daylight murder, and, therefore, his conviction and sentence awarded to him deserves to be confirmed.

So far as the accused Naushad and Naseem are concerned, it is evident from the discussion of the evidence made herein above that the role assigned to them is only of catching hold of the deceased. Apart from this, the argument of the learned Counsel for the appellant that if Naushad was armed with a country-made pistol, then he along with Nasir had no occasion to play the role of catching hold and they could have also fired shots deserves to be accepted as the description of their conduct by the prosecution is unnatural. The deceased was a fairly old person and there is no Evidence of any scuffle or resistance having been put forth by the deceased so as to develop the theory of catching hold when all the accused are alleged to be armed with fire arms and the deceased who was almost 70 years of age could have been easily hit and injured. The prosecution witnesses have nowhere deposed to indicate any such movement of the deceased or the eyewitnesses of having attempted to help him to put up any resistance.

The case against accused Naseem, therefore, further does not indicate his complicity as he has been assigned the role of simply threatening passers by and villagers. The prosecution has not attempted to produce any other independent witness of the village to corroborate the allegations against Naseem.

The presence of Naseem and Naushad, therefore, turns out to be seriously doubtful at the scene of occurrence. The trial court has not satisfactorily appreciated the evidence and has, therefore, in our considered opinion incorrectly convicted Naushad and Naseem. We, therefore, hold that accused Naushad and Naseem ware clearly entitled to the benefit of doubt. On the basis of the findings and the conclusion drawn herein above, we, therefore, affirm the conviction and sentence of accused Khalil Khan and partly allow the appeal setting aside the conviction and sentence of accused Naushad and Naseem.

From the records, we find that an order was passed by this Court on 13.11.2003 calling for a report from the Chief Judicial Magistrate, Moradabad, whether the accused Khalil Khan is still in Jail or not or whether he was released on the basis of any order passed by the State Government. The said report is stated to have been sent by the Chief Judicial Magistrate on 5.1.2004 which was reiterated by his report, dated 17.2.2004. According to the said report, the accused Khalil Khan had been released on the basis of certain Government Orders. This Court, keeping in view the aforesaid fact, had rejected the bail application of the accused Khalil Khan as having become infructuous vide order dated 26 2.2004. The said order further records that this Court in the case of Mirza Mohammad Hussain v. State of U.P. and Ors. reported in 2002 (44) ACJ 81, had already set aside the said G.O.''s with a direction to the State Government to take back into custody those persons, who had availed benefit of the same. However, the order dated 26.2.2004 recites that it is not clear as to whether the judgment in the case of Mirza Mohammad Hussain (supra), had become final or any appeal had been filed against it or any further action had been taken for arresting the appellant Khalil Khan. At that stage, the prayer made by the complainant for taking Khalil Khan into custody had been rejected.

For the reasons stated above, the appeal is allowed in respect of the appellants Naushad and Naseem and stands dismissed insofar as the appellant Khalil Khan is concerned.

The order dated 1.9.1999 in respect of appellant Naushad and Naseem convicting and sentencing them, as aforesaid, s set aside. However, the order dated 1.9.1999 in respect o appellant Khalil Khan convicting and sentencing the appellant Khalil Khan is affirmed.

Appellants Naushad and Naseem are on bail. They need not appear. Their bail bonds are cancelled and sureties discharged.

Now in view of our Judgment delivered today, we direct that appellant Khalil Khan be taken into custody forthwith for serving out the sentence awarded to him by the trial court and affirmed by us.

Office is also directed to communicate this order within two weeks to the concerned trial court for compliance of this order.