Sajid Ali vs The State

Amar Saran, J.—These are two interconnected criminal appeals arising out of the same Judgment and order dated 12.7.1982 passed by the Sessions Judge, Gorakhpur in S.T. No. 27 of 1982, which are being disposed of by this common judgment.

Criminal Appeal No. 1688 of 1982 has been preferred by Sajid who has been convicted and sentenced to life imprisonment under Sections 302 read with Section 34 IPC and Criminal Appeal No. 1722 of 1982 by Manager @ Azmat who has been convicted and sentenced to life imprisonment u/s 302 IPC simplicitor.

We have heard Sri Shishir Prakash for the appellant and learned AGA far the State.

The facts of this case in a nutshell were that there was a quarrel (marpeet) between the informant, Radhey Shyam, the stepbrother of of the deceased Sriram and Manager @ Azmat, appellant, one day prior to Fid at the liquor vend in Urdu Bazaar in Gorakhpur. At about 8 pm on the same evening Manager along with some persons reached the informant''s house and started assaulting his family members. On the intervention of the neighbours he left after hurling abuses and the threats. On the next day, the informant''s stepbrother, the deceased Sriram, went to Manager''s house and started complaining to his mother. But Manager''s mother started abusing Sriram, whereupon Sriram gave her a beating in retaliation and Manager began nursing a grouse against Sriram for this incident.

On 8.8.1991 at about 4 pm when Sriram was standing by the shop of Vishwa Nath, near Bari Masjid, Manager and Sajid arrived there. Sajid exhorted that the ''sala'' should be killed and he should not be allowed to escape. At that time Manager fired at the deceased, Sriram. Sriram had appeared as a witness against Sajid in one case, because of which Sajid was inimical to him. After receiving the injury Sriram feel down and Manager and Sajid escaped after giving threats to the persons nearby. This incident was witnessed by Jamah Israr (PW 4), Hira (PW 3) and other neighbours. On hearing the news of the incident the informant arrived at the spot. By that time some persons had already carried Sriram to the hospital in an injured condition. Radhey Shyam lodged the report u/s 307 IPC at case Crime No. 635 of 1981 (Ext. Ka 2) at PS Kotwali Sadar, Gorakhpur, which was one km away, at 5.10 pm. The chik report was prepared by Head Moharrir Ramayan Yadav (PW 7) who also made an entry in the general diary and registered a case u/s 307 IPC.

Sriram was taken to Sadar Hospital, Gorakhpur, by Israr Ahmad (PW 4) where he was medically examined by PW 2 Dr. M.P. Singh on 8.8.1981 at 3.40 pm. Dr. M.P. Singh found the following ante-mortem injuries on the person of Sriram:

Gunshot wound of entrance 2 1/2 cm 2 1/2 cm x depth kept under observation on the back of chest Lt. Lower part, blackening, charring, tattooing is present.

The condition of the patient was serious as he was in a state of shock. He was kept under observation. According to the doctor, a firearm was the cause of the injury.

After the deceased died at 5.50 pin at the district hospital a memo was received on 6.05 pm at the police station and the case was converted to one u/s 302 IPC, vide Ext. Ka 6 by PW 7, HM Ramayan Yadav. Relevant entries were made in the general diary. PW 9 SI Brij Raj Singh and Constables Abbas Ali and Sirajuddin then proceeded to the Sadar Hospital and PW 9 SI Brij Raj Singh conducted the inquest (Ext. Ka 13) on the body of the deceased. He prepared photo lash (Ext. Ka 14) and prepared the challan lash (Ext. Ka 15). The constables took the body for postmortem and the postmortem was conducted on 9.8.1981 at 2 pm by PW 6 Dr. S.J. Singh. The doctor found the following ante mortem injuries on the body of the deceased:

(1) G.S. wound of entry 1" x 1" x cavity deep on the left side back 4" below the inferior angle of left scapula.

(2) Contusion mark 4" x 4" on the front of chest, lower part (9) pellets recovered from subcutaneous tissue of the contused area.

The peritoneum was lacerated below injury No. 1 and the cavity was full of blood clots. The stomach was empty and congested. Liver, spleen and kidney were all lacerated. Death was caused due to shock and haemorrhage due to injury.

PW 8, SI Virendra Pratap Singh commenced the investigation of this case on 8.8.1981 at 5.45 pm. He proceeded to the spot in mohalla Bua Shaheed near Bari Masjid. The informant Radhey Shyam and a witness Jamal were present. There he conducted spot inspection and prepared the site-plan (Ext. Ka 9). He collected the blood-stained and and plain earth from the spot (Exts. 1 and 2). He recorded the statement of Vishwa Nath Prasad, PW 1, the tea shop owner, whose 161 Cr.P.C. statement has been annexed as Ext. Ka 10.

It may be mentioned here that tins witness, PW 1, Vishwa Nath Prasad, has turned hostile and disowned his 161 Cr.P.C. statement and not supported the prosecution case, and in his evidence PW 1 has given another story that 4 or 5 persons had fired on the deceased, but he could not identify them. After that the I.O. searched for the accused. On 9.8.1981 in the morning he recorded the 161 Cr.P.C. statement of the eye-witness Hira. The same day he arrested Sajid at 1 pm in Urdu Bazaar and lodged him at the police station at 2.33 pm. The appellant, Manager @ Azmat, surrendered in court on 12.8.1981 and was sent to Gorakhpur Jail on 14.8.1981. On 24.8.1981 he recorded the statement of Israr, PW 4. On 4.9.1981 he again visited the spot and after completing the investigation he submitted the charge-sheet (Ext. Ka 12).

Apart from the aforesaid formal witnesses and PW 1 Vishwa Nath Prasad, the tea shop owner who has turned hostile and not supported the prosecution case, two eye-witnesses PW 3 Hira and PW 4 Israr Ahmad and PW 5 Radhey Shyam, the informant, and step brother of the deceased have been examined in this case.

PW 3 Hira, has deposed that on the date of the incident he was going from his house towards Ghanta Ghar and was about 10 paces from the tea |shop of Vishwa Nath when the incident took place. He saw the deceased Standing there. Then Azmat and Sajid arrived there and Sajid cried out ''Maar Do Sale KO Jaan Se Bachaney na Paye''. Thereafter Azmat took out a country-made pistoJ from his pocket and fired at Sriram. He identified both the appellants in the court. The fire struck Sriram on the left side of his back and Sriram fell on his face. Israr, Jamal and Vishwa Nath were also present at the time of the incident. After that the two appellants ran away from the spot. A lot of blood had fallen at the spot where Sriram had fallen down. Then some persons including Israr took him on a rickshaw to the district hospital. After t that Sriram''s brother, Radhey Shyam arrived there and Jamal disclosed the entire incident to him. Then Radhey Shyam also proceeded to the hospital. Before this, during Eid, two or three persons had come to the house of Sriram and indulged in marpeet there. He was also present at the time of that dispute and in the negotiations when the neighbours intervened.

PW 4, Israr Ahmad has disclosed that he was drinking tea at Dulley''s tea shop which was adjacent to Vishwa Nath''s tea shop. He saw Manager and Sajid arrive there. Sriram was standing at Vishwa Nath''s shop. On the exhortation of Sajid, Manager fired at him with a country-made pistol. After that both the appellants ran away to the south. The shots hit Sriram on the hack and he fill on his face. Among his acquaintances, Jamal, Hira and Vishwa Nath were present there. When he approached Sriram after the incident he found him alive. This witness, Israr, Jamal and others placed Sriram on a ricksaw and he proceeded on the same rickshaw to the hospital where he showed him to the doctor.

The informant, PW 5 Radhey Shyam, the step brother of the deceased, has deposed that he used to live separately from Sriram in the adjoining house. Eight days prior to this incident and one day prior to Eid at the liquor vend in mohalla Urdu Bazaar at about 6 pm there was a dispute with the appellant Manager @ Azmat over eating and drinking. After the quarrel Manager went away. On the same night at about 8 pm Manager accompanied by 5 or 7 persons came to his house. The neighbours of the mohalla intervened and Manager hurled abuses. The next evening his brother Sriram told him that in the morning he had gone to Manager''s house. Manager was absent but Manager''s mother was mere, to whom he had complained. But instead of responding positively to his complaints Manager''s mother had started abusing him, whereupon Sriram had given her a beating and had got after his life. Before this incident the deceased Sriram had given evidence against the appellant Sajid in a case. Sriram had told him that 3 or 4 persons had been following him, two of whom he did not recognize and the two appellants were among them.

On the date of the incident at about 4 pm he was selling goods on his thela near the Ghanta Ghar. When he reached near Vishwa Nath''s shop, Jamal told him about the incident with his brother. Hira also disclosed the incident and names of the assailants, and who were the persons present and that Israr had taken his brother to the hospital. On hearing this news he left his thela with some persons and went on a rickshaw to the hospital. Sriram was lying on a bed and was being treated. Israr was there and he also disclosed the incident to him. After hearing the entire story he obtained a piece of paper and wrote out the report (Ext. Ka 2) which he handed over at the police station.

Several submissions were raised by the learned Counsel for the appellants. Firstly, he has sought to question the reliability of the witnesses because all the witnesses had deposed that the incident took place at 4 pm whereas Dr. M.P. Singh, who examined Sriram, has noted that Sriram reached him at 3.40 pm on the same date. We think this argument amounts to mating a mountain out of a mole hill and to giving undue to importance to a minor discrepancy in the time as noted by the witnesses and examining doctor. In our view nothing turns on the 20 minutes'' difference in timing between the watch of the doctor and the watches of the witnesses, as there is no reason to suppose that the watches of the doctor and the witnesses were synchronized.

The fact of the matter was that Sriram, who was initially injured and who only died later at 5.50 pm at the hospital, was immediately rushed to the hospital by an eye witness, PW 4 Israr Ahman, and he was then t medically examined when he was alive at 3.40 pm by Dr. M.P. Singh. Significantly in the doctor''s medical report PW 4. Israr Ahmad, has been shown as the person who has brought Sriram to the hospital. The injured Sriram was taken to hospital on a rickshaw by Israr Ahmad even prior to the arrival of the informant Radhey Shyam, the stepbrother of the deceased, who arrived at the spot shortly thereafter and after being told about the incident left for the hospital on a rickshaw and then submitted the report at the police station which is one km away at 5.10 pm on 8.8.1981. Learned AGA is right pi submitting that the incident finds confirmation from the promptness of the report.

Another submission raised by the learned Counsel for the appellants was that independent witness and neighbouring shopkeepers had not been produced for corroborating this incident. In our view, PW 3 Hari and PW 4 Israr Ahmad are not related to any of the parties and they are fully independent witnesses. It is unfortunate, but an undeniable social reality that witnesses are notoriously reluctant to come forward to depose in a civil litigation, much less in a criminal case, to avoid being embroiled in the dispute of the parties and to incur the wrath of one or the other parties.

In this connection it has aptly been observed by the Apex Court in paras 11 and 12 in AIR 1988 Supreme Court 696 "Appabhai v. State of Gujarat":

In the light of these principles, we may now consider the first contention urged by the learned Counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether-in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubling the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Partap and Others Vs. State of Haryana, Chinnappa Reddy J. speaking for this Court succinetly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed (at p. 330) (of SCC: (at 682 of AIR):

Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Even one reacts in his own special way. There is no set ride of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

There maybe some of the reactions. There may be still more. Even a man prowess may become pusillanimous by witnessing a serious crime. In this case, the courts below, in our opinion, have taken into consideration of all those aspects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants.

(Emphasis added)

Therefore, if ail the eye-witnesses and other neighbouring shopkeepers mentioned in the FIR have not come forward to give evidence in this case, it is not sufficient for discarding evidence of the eye-witnesses PW 3 Hari and PW 4 Israr Ahmad who have come forward and who have supported the prosecution case and we find little reason for not placing implicit reliance on their testimonies. Moreover, it has been held in a catena of decisions of the Supreme Court and this Court that there is no need for multiplication of witnesses to establish the same fact. Section 134 of the Evidence Act does not require plurality of witnesses to prove a fact, and it is the quality and not the quantity of evidence that is material.

Thus in Amar Singh Vs. Balwinder Singh and Others, it has been observed in paragraphs 16 and 17:

Another reason given by the High Court for acquitting the accused-respondents is that two other injured witnesses, namely, Kashmira Singh and Pritam Singh and one Ramesh, whose name was mentioned in the FIR, were not examined. Shri Ashwani Kumar, learned senior Counsel appearing for the accused-respondents has vehemently urged that the purpose of a criminal trial is not to support the prosecution theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of the public prosecutor is to represent the administration of justice and therefore the testimony of all the available eye-witnesses should be before the Court and in support of this contention he has placed reliance on State of U.P. and Another Vs. Jaggo alias Jagdish and Others, It is true that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether effect of their testimony is for or against the case of the prosecution. However, that does not mean that everyone who has witnessed the occurrence, whatever their number be, must be examined as a witness. The prosecution in the present case had examined three eye-witnesses who were all injured witnesses. The mere fact that Kashmira Singh and Pritam Singh were not examined cannot lead to an inference that the prosecution case was not correct. The aforesaid two witnesses had been given up by the prosecution on the ground that they had been won over by the accused. These two persons are not family members of the first informant Amar Singh and it is quite likely that they did not want to get involved in any dispute between the first informant and his sons on the one hand and the accused on the other hand as they had no interest in the land belonging to Jangir Dass Sadh which was being earlier cultivated by Gurdial Singh, father of A-1 and A-2 but had been taken an year earlier by the first informant Amar Singh, the contention raised by learned Counsel fails to take notice of Section 134 of the Evidence Act which provides that no particular number of witnesses shall in any case be required for the proof of any fact. A similar contention has been repelled by this Court in a very illustrating judgment in Vadivelu Thevar Vs. The State of Madras, and it will be useful to take note of para 11 of the report, which reads as under:

...The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laving down any such exceptions to the general rule recognised in Section 134 which by laving down that "no particular number of witnesses shall in any case, be required for the proof of any fact" has enshrined the well recognised maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished....

The above quoted principle was laid reiterated in Ramratan and Others Vs. The State of Rajasthan,

The prosecution having examined three eye-witnesses, in our opinion, there was no necessity of multiplying the number of witnesses and no adverse inference could be drawn against the prosecution merely on the ground that Kashmira Singh or Pritam Singh were not examined. If the incident had not taken place as suggested by the prosecution but had happened in a different manner, there was no impediment in the way of the accused-respondents to examine the aforesaid persons as defence witnesses, but they did not chose to do so.

(Emphasis added)

Another submission raised on behalf of the appellants was that the witnesses were chance witnesses. In a market place any witness will be a chance witness and he would also be natural witnesses at the said place. Such persons who ply their trade on a thela or have houses in the vicinity are natural witnesses and there testimony cannot be rejected on the ground that they are chance witnesses.

Here it would be useful to refer to a passage from AIR 2005 S C 1142 "Thangaiya v. State of Tamil Nadu":

Coining to the plea of the accused that PW-3 was a ''chance witness'' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as ''chance witnesses'' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the around that they are mere ''chance witnesses''. The expression ''chance witness'' is borrowed from countries where every man''s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man''s castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. Therefore, there is no substance in the plea that PW-3''s evidence which is clear and cogent is to be discarded.

(Emphasis added)

It was next argued by the learned Counsel for the appellants that as Sriram and his brother, the informant Radhey Shyam, were stepbrothers and that they were living separately. Hence there was no occasion for Sriram to have interceded on behalf of Radhey Shyam because of an earlier quarrel of Radhey Shyam with Sriram at the liquor vend, and for this reason Sriram''s visit to Manager @ Azmat''s place for complaining against Azmat for his behaviour with his brother, resulting in Azmat''s mother abusing him, and Sriram slapping her in retaliation, making Azmat inimically deposed towards Sriram appeared improbable and unnatural, and therefore the motive set forward in this case is not reliable.

We are not inclined to accept this argument. If two stepbrothers are residing in adjacent houses and if a third person comes to the house of one of them and starts abusing his step brother, there is nothing improbable or exceptional if the other stepbrother visits the house of that person for complaining against him and in the sequel of events the chain of events as described above take place. There is also no reason for inventing such a motive, if the sequel of events for the crime had taken place in a different nanner.

The presence of PW 3 Hira has been doubted by the learned Counsel for the appellants that apart from being a chance witness he is not even clear about what he was selling on the date of the incident, and whether he was gelling ice as usual on that day or was selling halwa.

Learned AGA has rightly repulsed this argument by stating that the witness was a petty hawker who sold different items on different days and he could be plying his thela selling ice on one day, halwa or peanuts on the next day and so on. Therefore, there was nothing unnatural in selling halwa on the date of the incident, and being present at that market spot at that time for purchasing lemons. Again we think that the learned Counsel for the appellants Cannot make much capital out of the suggestion that the witness PW 3 Hira has given a slight variance in his testimony as to whether he saw the incident as a result of the firing which had taken place or after the cries were raised after the incident.

If the appellants were present 3 or 4 paces from Sriram and the appellant Azmat @ Manager was carrying a country-made pistol, there would have been no difficulty for this witness in identifying this appellant. Again, no importance can be given to the fact as to whether he was raising a cry when he was chasing the accused. It is common knowledge that witnesses react differently in a set of circumstances as pointed in Appabhai''s case (supra), and it is not essential that everyone must have raised cries in the circumstances of the present crime.

For all these reasons, we think that the prosecution has been successful ID establishing the case against the appellant Manager @ Azmat and his conviction to imprisonment for life u/s 302 IPC as awarded by the trial court is upheld.

However, so far as the appellant Sajid is concerned, the only role assigned to him was of exhortation, which has been sometimes described as a weak kind of evidence as witnesses are prone to exaggerate things and to involve as many accused as possible vide Jainul Haque Vs. State of Bihar, Moreover, the eye-witness PW 3 Hari admits that he knew the name of Azmat from before but did not know the name of Sajid. Yet, Sajid was never produced for test identification by this witness. Also, as separate reasons for enmities with Sriram are alleged against Manager and Sajid, and it is not even clarified as to the nature of the case in which Sriram is said to have appeared as a witness against the appellant Sajid, we think it would be unsafe to rely on the testimony of the solitary witness, PW4 Israr Ahmad for holding him liable for this offence. In the result, the appeal preferred by Sajid succeeds and is allowed.

The conviction and sentence awarded to Sajid by the court below u/s 302/34 IPC is set aside. He is on bail. His bail bonds are cancelled and his sureties are discharged. He need not surrender to the bail granted him.

So far as the appellant Manager @ Azmat is concerned the appeal preferred by him is dismissed. His bail bonds are cancelled. He may be taken into custody to serve out the sentence awarded to him by the trial Court. Office is directed to communicate this order to the CJM within a week for compliance. The CJM shall submit a compliance report to the High Court within two months.

The appeal of Manager @ Azmat is dismissed and the appeal of Sajid is allowed.