Tasavvur & Others vs State Of Uttarakhand & Others

Sudhanshu Dhulia, J

All the aforesaid appeals arise out of an order passed by the Sessions Judge, Haridwar in Session Trial No. 62 of 2006, whereby all the accused have been convicted under Sections 302/149, 307/149, 506, 336, 148, 504, 323/149, 147 IPC and each of the appellants have been sentenced for life imprisonment under Section 302/149 IPC, four years imprisonment under Section 307/149 IPC, two years imprisonment under Section 506 IPC, six months imprisonment under Section 336 IPC, six months imprisonment under Section 148 IPC, four months imprisonment under Section 504 IPC, three months imprisonment under Section 323/149 IPC and three months imprisonment under Section 147 IPC.

Apart from other sentences, the accused Gulbahar has also been convicted under Section 25 of the Arms Act and has been sentenced for three years imprisonment, which has been challenged by the accused/appellant by means of Criminal Appeal No. 46 of 2010.

At this stage, we must also state that out of three appellants in Criminal Appeal No. 36 of 2010, appellant Gulzar has passed away during the pendency of the appeal and the case against him is already abated by order of this Court dated 31.07.2018.

The incident is of 11.10.2005, which happened in a village called "Madhopur" in District Haridwar. At the relevant time, Panchayat Elections were on and for the Gram Sabha Madhopur, there were two main candidates who were in the fight for the office of Gram Pradhan. These two were Tanveer and Irfan, and the village seems to have been divided in two group, one for Tanveer and the other in support of Irfan. Although there were two other candidates as well, but they will not be relevant for our purposes. The vote had been cast a day or two earlier and on 11.10.2005 at about 07:45 PM villagers who are the present accused before this Court and who belong to the Tanveer group, mainly Farooq, Kamil, Tasavvur, Gulbahar, Gulzar and Suleman started abusing the complainant who was at that time present in the "Baithak", of his house. The complainant belongs to the other group i.e. the group of Irfan. The complainant further states that Kamil and Gulbahar in order to kill Ahsan who was in the group of Irfan, fired at him. The bullet hit Ahsan on his head. Meanwhile the other persons who were carrying sharp edged weapon and "Lathis" and stones inflicted blows on Naved, Sajid, etc. of the rival group Irfan group. An alarm was raised by Irfan and hearing the alarm, Khalid, Anwar and Riyasat came to the spot and the complainant and other persons were rescued from the assailants. The assailants went away warning and exhorting the complainant and others. This FIR was lodged at police station Gangnahar, Roorkee, Haridwar. The FIR further states that out of the injured Ahsan and Naved, the medical has been done and the condition of Ahsan is critical and therefore the doctors at the local hospital have referred him to Jollygrant, Dehradun.

From the records which are available before this Court and from the statement of the Investigating Officer, it appears that Farooq, Tasavvur, Suleman and Kamil were arrested on 15.10.2005 from the village, Gulbahar was arrested only on 18.10.2005 at Preet Vihar, Roorkee and from him a countrymade pistol of 315 bore along with two live bullets were recovered. The remaining accused Gulzar was arrested on 09.11.2005.

The police completed its investigation and filed its chargesheet against the accused/appellants on 29. 11.2005. The matter was committed to sessions. On 18.11.2006, the charges were framed by the learned Additional Sessions Judge/First FTC, Roorkee, District Haridwar against the accused under Sections 147, 148, 307/149, 302/149, 323/149, 336, 504 and 506 IPC.

In this case, the prosecution in order to establish its case had examined as many as 13 witnesses. Out of these witnesses, Sajid, Amjad, Naved and Bahar Alam, who are also injured witnesses in the form of PW 3, PW 4, PW 5 and PW 6 have turned hostile. The remaining witnesses have also been turned hostile, except PW 2 Riyasat, who is also the brother of the deceased and an eyewitness. Whether PW 9 Irshad is an eyewitness or merely a witness to the inquest, we will examine in a while.

Meanwhile, what is important is to examine the testimony of PW 1 Shahnawaj, who though has turned hostile, was the informant, who had lodged the FIR. In his examination-in-chief, he states that the incident is of 11.10.2005. He was sitting in his "Baithak" when he heard the sound of gunshot. He along with others went out and found Ahsan who was lying injured and was surrounded by a crowd. In the mele, he too got a few blows from the others. He then admits that apart from Ahsan, his brother Amjad, Sajid and Javed had also sustained injuries and then they have brought the injured to the hospital where considering the critical injuries sustained by Ahsan, he was referred to higher centre i.e. Jollygrant. Regarding this incident, he admits that he had lodged the FIR. He identifies in the court the first information report, which was lodged by him at P.S. Gangnahar, Roorkee, District Haridwar. However, immediately thereafter he states that the accused are of his village, he knows them but they did not attack the deceased or the injured on that fateful day, as due to darkness he could not properly see the assailants. Obviously this witness has turned hostile, but yet the statements given by him in his examination-in-chief corroborated with the first information report, which he has duly identified in the court as Exhibit A-1, will have to be appreciated. In his first information report, which was lodged by none else, but by this witness i.e. PW 1 where he had said that it was in his "Baithak" that the incident happened. He narrates the incident in great detail. This witness clearly states that gunshots were fired by Gulbahar and Kamil, which had hit Ahsan on his head. The remaining assailants who inflicted wounds which had caused the injuries to Naved and Sajid by sharp edged weapon, "lathis", etc.

PW 3 Sajid, PW 4 Amjad, PW 5 Naved, PW 6 Bahar Alam, PW 7 Anwarul Haq and PW 8 Khalid Rasheed have already turned hostile, though they had corroborated the story of the prosecution in their statement under Section 161 CrPC.

Undoubtedly all the above witnesses have turned hostile. In other words, they have taken a stand contrary to the stand of the prosecution and contrary to their own statement recorded under Section 161 CrPC. In such cases, the prosecutor with permission of the court under Section 154 of the Evidence Act, 1872 can cross-examine his own witnesses, which has been done in the present case. What has come out of these evidences, particularly of PW 1 would be relevant for our purposes, as it is a settled position of law that the examination-in-chief as well as the cross-examination of a hostile witness so far as it supports the case of the prosecution can be read as an evidence in favour of the prosecution.

In Bhajju alias Karan Singh v. State of Madhya Pradesh reported in (2012) 4 SCC 327 has observed as under:-

"36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.

The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled canon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution."

In the above case, the Hon'ble Apex Court has also relied upon the earlier decisions of the Hon'ble Apex Court in the case of Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624; Prithi v. State of Haryana, (2010) 8 SCC 536; Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 and Ramkrushna v. State of Maharashtra, (2007) 13 SCC 525.

Even as per the examination-in-chief of PW 1, who is also the informant, the incident did take place near his "Baithak" on that fateful day i.e. on 11.10.2005. It is again admitted by him that Ahsan got the fatal wound on his head by gunshot and the remaining injured also sustained injuries on that day. He also does not deny his presence or the presence of the injured persons. This clearly corroborates with the testimony of two witnesses i.e. PW 9 and PW 2, which we shall shortly examine.

PW 9 Irshad is an eyewitness, according to the prosecution. Before we examine the testimony of this particular witness, a fact must be placed on record. This incident happened during the holy period of "Ramzan". Atleast two witnesses i.e. PW 2 and PW 9 have testified that on that fateful day they were invited by Gulzar (who has been produced as DW 1) for the "Roza Iftar" and after they had broken their fast they had gone to the house of Shahnawaj, where the fateful incident happened. PW 9, therefore in his examination-in-chief says that on that fateful day, he was in the village as he had gone to the house of Gulzar for "Roza Iftar", where he heard noise coming from the "Baithak" of Shahnawaj. When he reached there, Sajid, Shahnawaj, Naved, Anwar and Farooq, etc. were present there, who were abusing Ahsan. Farooq, Gulbahar and Kamil were having countrymade pistol with them. The rest were carrying "Lathis/Dandas". After exhorting Ahsan both Gulbahar and Kamil opened fire. The fire which was shot by Gulbahar hit Ahsan. The shot fired by Kamil did not hit anyone. Ahsan fell down and the rest of the persons were hit by "Lathis/Dandas". The assailants then ran away from the spot. This witness is a close relative of the deceased, as it has come in the cross-examination. Question was also put to this witness suggesting that he was not there on the spot and was actually at his residence at Roorkee and he normally does not reside in the village, as he resides at Roorkee town. He admits that he has opened a shop at Roorkee, but denies that he was not present in the village at the time of the incident.

It is an admitted fact that the injured Ahsan was taken to Government Hospital, Roorkee from where he was referred to Jollygrant Hospital, Dehradun, which is actually a medical college in the outskirt of district Dehradun. Since the condition of Ahsan was extremely critical, it has also come on record, that he was finally referred to Chandigarh and while he was being taken to Chandigarh he passed away, barely five kilometers short of Chandigarh. The dead body was brought back to Roorkee and kept in the Government hospital.

The inquest started on 13.10.2005 at 07:30 A.M. and continued till about 12 Noon. This particular witness i.e. PW 9 is also a witness of the inquest. The inquest report reads as under:-

"A white colour bandage was wrapped on the head. Below the bandage two wounds were noticed on the right side of the head towards over the ear."

As per the opinion of the "Panchas" the deceased Ahsan died due to gunshot wound which he has sustained on his head.

The postmortem was conducted on 13.10.2005 at 12:50 P.M. In the postmortem report, following ante mortem injuries were noticed :-

"1. Surgically dressed wound on the occipital area on right side back of head. On removing surgical bandage there is wound of entry with 2 stitches in the scalp layer 2 cm x 1 cm. Margins inverted, blackening and tattooing present around the wound 8.5 cm from right ear.

Gun shot wound of size 3 cm x 1.5 cm. Rt. side back of head with 3 stitches margin everted and communicating with injury no. (1), 5.5 cm below the right ear.

Abraded contusion of 5.5 cm x 4 cm on the right side of face, outer to right eyebrow.

Abrasion of 4.5 cm x 4 cm on front part of left knee joint.

Abrasion of 1.5 cm x 1 cm on the lower part of great toe right leg."

As per the postmortem report, the cause of death is "shock and haemorrhage as a result of ante-mortem firearm injuries".

There is another eyewitness, as per the prosecution, who has stood his ground, and unlike some of the other eyewitnesses has not turned hostile. This is Riyasat i.e. PW 2. He is also the younger brother of the deceased. Riyasat resides in the same village, as his brother (i.e. the deceased) and was invited by Gulzar for "Roza Iftar", at about 06:00 P.M. Both he and his brother Ahsan went to the house of Gulzar, where they broke their fast with Gulzar. He also mentions what was eaten by them and thereafter his brother Ahsan said that he is going to the house of Shahnawaj, and left. When he heard the noise coming from the house of Shahnawaj, he reached the spot. He narrates the entire incident which clearly corroborates the story of the prosecution, as said in the FIR, which is that people belonging to Tanveer group were abusing Ahsan as he belonged to rival group of Irfan and then it was Gulbahar who shot the fatal blow on the right side of the head of the deceased by the country made pistol, he was carrying. He then narrates as to how the body was taken to the hospital at Roorkee and thereafter to Jollygrant and finally how Ahsan passed away.

Ms. Pushpa Joshi, learned Senior Counsel for the appellants (barring Gulbahar) and Mr. Ramji Srivastava, learned Amicus Curiae for the appellant Gulbahar, who is appointed as Amicus Curiae by this Court for the appellant Gulbahar, have argued that the presence of both the eyewitnesses i.e. PW 2 and PW 9 is extremely doubtful. The remaining eyewitnesses have turned hostile. The conviction could not be possible on the basis of testimony of these two witnesses, as it is not a credible evidence.

As far as the testimony of PW 9 is concerned, we agree with the learned counsels for the appellants. He does not appears to be an eyewitness to us. His name is not mentioned in the FIR. In the chargesheet, which has been filed by the police on 29.11.2005, his name does find a mention but only as "a witness of the inquest". The inquest took place after two days of the incident i.e. on 13.10.2005. The incident is of 11.10.2005. Therefore though his presence at the time of inquest is not doubtful, as he was a close relative of the deceased, however, his presence at the time of incident also becomes doubtful for the reason that his presence is not shown in the FIR, and most importantly he was never examined by the police during investigation. There is no statement of this witness recorded under Section 161 CrPC. Therefore as far as the testimony of PW 9 is concerned, we are extremely doubtful as to his presence as an eyewitness on the day of the incident.

Having said that, however, we have no doubt as to the presence of PW 2 Riyasat on the date of incident. His name is not only mentioned in the FIR but also in the inquest and his presence continues when the injured is taken to the hospital at Roorkee, then at Jollygrant and finally to Chandigarh. He is also a witness to the inquest.

Learned counsels for the appellants have raised doubt as to presence of PW 2 Riyasat in the hospital where he was taken and as per the hospital record the name of only one person called Anwarul Haq is there. The name of Anwarul Haq is only for the sake of record. If the record speaks of only one person, it cannot be said that the remaining villagers had not gone to the hospital, when it has come in the evidence that after the incident on the fateful day nearly 100 villagers had gone to the hospital. Riyasat being the younger brother of deceased, his presence could not have been doubted.

The learned Senior Counsel for the appellants has also argued that the incident of "Roza Iftar" at the house of Gulzar is again not proved, as Gulzar was produced as DW 1 who has denied that "Roza Iftar" was in his house and Riyasat and Ahsan had come to his house on the fateful day of the incident. This witness has not been held to be trustworthy by the trial court, and we think rightly so. But in any case, even if we believe the testimony of this witness that Ahsan and Riyasat had not broken their fast in his house, it makes little difference to the story of the prosecution so far as the presence of Riyasat is concerned at the time and place of the incident.

The only question is as to the application of Section 149 along with Section 302 IPC and the culpability of the remaining accused in the offence.

It has clearly come in the evidence that prior to the incident, which occurred at 07:45 P.M. in the "Baithak" of Shahnawaj, the elections had already taken place. Definitely there was some rivalry between the parties but since the elections have already taken place, it cannot be said that rivalry was of such a nature that all the assailants would come to the house of Shahnawaj with a plan to kill Ahsan. Moreover, they had come to the house of Shahnawaj and not to the house of Ahsan. Ahsan merely happened to be there. Whether it was an "unlawful assembly" or it was a common object of the unlawful assembly, has not been proved beyond a reasonable doubt by the prosecution. The deceased died due to a single gunshot injury inflicted at the hands of Gulbahar. The conduct of Gulbahar is also important as though the remaining accused (barring Gulzar) were arrested on 15.10.2005, Gulzar was evading his arrest and was finally arrested only on 18.10.2005 that too from Roorkee and not from his village. His conduct therefore will also be seen under Section 8 of the Evidence Act, 1872.

Section 8 of the Evidence Act, 1872 reads as under:-

"8. Motive, preparation and previous or subsequent conduct. - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. - The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2. When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."

Moreover, recovery of weapon as well as two live bullets was made from him. The nature of the weapon recovered, the nature of injuries and the testimony of PW 2 Riyasat make it a case of conviction as against Gulbahar. Consequently, under the facts and circumstances of the case, we uphold the conviction of Gulbahar, though only under Section 302 IPC and Section 25 of the Arms Act and to that extent, Criminal Appeal No. 46 of 2010 is hereby dismissed. Criminal Appeal No. 35 of 2010 is also dismissed subject only to our findings regarding the offence of Section 149 IPC. The accused Gulbahar is on bail. His bail is cancelled. He shall be taken into custody forthwith to serve the remaining sentence.

In view of the observations made above, Criminal Appeal Nos. 30 of 2010, Criminal Appeal No. 36 of 2010 and Criminal Appeal No. 37 of 2010 are allowed. The accused/appellant Tasavvur, Kamil, Suleman and Farooq are acquitted of the charges under Section 147, 148, 307/149, 302/149, 323/149, 336, 504 and 506. Accused Tasavvur, Kamil, Suleman and Farooq are already on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.

The judgment passed by the learned Sessions Judge dated 10.02.2010 is modified to the above extent.

Let a copy of this judgment be sent to the learned court below along with the lower court record for onward compliance.