Vijay Bahadur Singh vs M.P. Pollution Control Board

This criminal appeal has been filed under Section 374 of the Cr.P.C.

against the judgment dated 17.01.2007 passed by Sessions Judge, Bhopal in

Sessions Trial No.5/2006, whereby the learned Judge found appellant guilty

for the offences punishable under Sections 302 & 452 of IPC and sentenced

him to life imprisonment with fine of Rs.5,000/- and three years rigorous

imprisonment with fine of Rs.5,000/- with default stipulation respectively.

Brief facts of the prosecution case are that on 08.09.2005 at 02:30

PM, when deceased Tabussum was at her neighbour Nasiruddin''s house with

his wife Shahida (P.W.7) in house No.16 situated at Street No.2, Bagh

Farhat Afzab, the appellant came there armed with country made pistol (katta) and fired on her, due to which, she sustained gunshot injury in her

chest and Jarina (P.W.1), Shanu (P.W.3) & Nasiruddin (P.W.6) have also

saw the incident. Nasiruddin (P.W.6) took Tabussum with the aid of

neighbours to P.S. Aishbagh, where he lodged the report (Ex.P-7). On that

report, police registered Crime No.432/2005 against the appellant for the

offences punishable under Sections 307 & 452 of IPC and Sections 25 & 27

of Arms Act. P.N. Tiwari (P.W.8), the then ASI of P.S. Aishbagh,

investigated the matter. During investigation, he sent Tabussum for medical

examination to Hamidia Hospital. In the hospital, duty doctor S.K. Ahirwar

(P.W.5) examined Tabussum and gave MLC report (Ex.P-6) and admitted

her in the hospital for further treatment. Thereafter, P.N. Tiwari (P.W.8)

went to the spot and prepared the spot map (Ex.P-8) and also collected the

blood stained soil and simple soil from the spot and prepared seizure memo

(Ex.P-9) and recorded case diary statements of Smt. Jarina (P.W.7),

Nasiruddin (P.W.6 ) & Smt. Sahida (P.W.1). Rishi Maurya (P.W.4) recorded

the dying declaration of Tabussum (Ex.P/5). Tabussum died during

treatment on 09/09/05. On that, P.N. Tiwari (P.W.8) went to Hamidia

Hospital on 09.09.2009 and prepared inquest memo of dead body of

Tabussum (Ex.P-12) before panch witnesses and sent her dead body to

postmortem. Dr. Jayanti Yadav (P.W.2) conducted the postmortem of dead

body of Tabussum and gave post mortem report (Ex.P-2) to the effect that

Tabussum died due to gunshot injury. The investigation of the crime was

also conducted by N.S. Damley (P.W.10), the then S.H.O. P.S. Aishbagh,

who recorded the statement of injured Tabussum on 08.09.2005 and on

09.09.2005 arrested the appellant and prepared arrest memo (Ex.P-2). On

interrogation, appellant gave the information regarding seizure of country

made pistol. On that information, he seized one country made pistol from the

dickey of appellant''s scooter bearing registration No.MP04-D-2126 in the

barrel of that pistol one empty cartridge was also present and he prepared information memo (Ex.P-14) and seizure memo (Ex.P-15). He also recorded

the case diary statements of Ayub (Ex.P-16), Smt. Noorjaha (Ex.P-17) and

Tabussum (Ex.P-18). He also got the seized country made pistol examined.

Sarabjeet Singh Examined that pistol and gave the report (Ex.P/12) that

seized pistol was in serviceable condition. He also sent all seized articles for

examination to F.S.L. Sagar. After completion of investigation, police filed

charge-sheet against appellant/accused before the Judicial Magistrate First

Class, Bhopal, who committed the case to the Court of Sessions. On that

charge-sheet, S.T.No.5/2006 was registered. Learned Sessions Judge framed

charge against the appellant for the offences punishable under Sections 302

& 452 of IPC and Sections 25 & 27 of Arms Act and tried the case. The

appellant/accused abjured his guilt and took the defence that he had falsely

been implicated in the case. The prosecution produced as many as 10

witnesses to prove its case, however, after trial learned Sessions Judge

acquitted the appellant from the charge under Sections 25 & 27 of Arms Act

but found him guilty for the offences punishable under Section 302 & 452

of IPC and sentenced him as aforesaid. Being aggrieved from that judgment,

appellant filed this Criminal Appeal.

Learned counsel for the appellant submitted that learned trial court

without properly appreciating the prosecution evidence wrongly found the

appellant guilty for the offences. From the statements of so-called eye

witnesses Jarina (P.W.1), Shanu (P.W.3), Nasiruddin (P.W.6) & Sahida

(P.W.7) it clearly appeared that they did not see the appellant firing on

deceased Tabussum. Although police also produced dying declaration of

Tabussum (Ex.P/5). But that dying declaration is also doubtful as

prosecution did not produce the doctor who certified that Tabussum was fit

to give statement at the time of giving that dying declaration. On the

contrary P.N. Tiwari (P.W.4) clearly deposed in his statement that when Tabussum was brought to Police Station Aishbagh, she was not even in the

condition to speak. Even Tabussum in her dying declaration had deposed

that she was not feeling well which shows that she was not fit to give dying

declaration when she gave it . Even in the dying declaration Tabussum did

not state the name of the assailant. In the dying declaration it is mentioned

that her husband had fired on her but appellant was not Tabussum''s husband

at the time of incident because he had already given divorce to Tabussum

before the incident as clearly proved from the statement of Mohammad

Athar (DW-1). Likewise persecution also failed to prove the seizure of so-

called country made pistol (Katta) from the dickey of scooter and that the

appellant was the owner of that scooter. There is no evidence on record that

so called country made pistol was used in committing the offence.

Prosecution also failed to prove any motive of the appellant to kill his

divorced wife. Learned Trial Court without appreciating these facts wrongly

found the appellant guilty for the offences. Hence, counsel prayed that the

impugned judgment be set aside and the accused be acquitted from the said

offences.

On the other hand, learned counsel for the respondent/State has

vehemently opposed the submissions of the counsel for the appellant and

fully supported the judgment of the Trial Court and submitted that from the

prosecution evidence the guilt of the appellant is clearly proved. Learned

trial Court did not commit any mistake in holding the appellant guilty for the

offences punishable under Sections 302 & 452 of IPC and prayed for

rejection of appeal.

Point of determination in this appeal is whether the conviction and

sentence awarded by the trial court to the appellant under Sections 302 &

452 of IPC are liable to be set aside for the reasons stated in the memo of

appeal and raised during arguments.

On the point that Tabussum died on 08.09.2005 and her death was

homicidal which amounts to murder, Dr. S.K. Ahirwar (P.W.5) deposed that

on 08.09.2005, he was posted as C.M.O., Hamidia Hospital on the

emergency duty. At 2:50 PM, Constable No.2263, Sardar Singh Gurgar, P.S.

Aishbagh brought Tabussum in the hospital. He examined her and found that

Tabussum sustained one gunshot injury in her chest. His statement is also

corroborated from the report (Ex.P-6), which was given by him. Dr. Jayanti

Yadav (P.W.2) deposed that on 09.09.2005, she was posted as Assistant

Professor in Forensic Medical Department. On that date at about 11:45 AM,

Constable No.1963, Devi Singh, P.S. Aishbagh brought the dead body of

Smt. Tabussum, wife of Ubed for autopsy. On that, she started postmortem

of dead body Smt. Tabussum at 11:50 AM and found that the dead body was

of an average built female aged about 21 years. Her body was covered with

black and yellow bed-sheet and a black dupatta. She was wearing orange

and grey color kurta which was torn from midline. Blood stains and

blackening was also present on that kurta. She was also wearing one yellow

colour salwar which was also torn and blood stains were also present. Her

eyes was closed. Blood was oozing out from both the nostrils and mouth.

Clotted Blood was also present over chest and face. Rigor mortis was

present all over the body. Hypostasis was fixed on back. She found

following external injuries on her body:-

(i) Firearm entry wound was present over chest in midline at the level of nipple, 134 cm above the heel. Wound is 0.9 x 0.5 cm vertical in size. Tattooing present all around. Tattooing is 4.5 cm vide along upper margin of the wound and 5.2 cm along lower margin. The tattooing is more spread and dispersed in longer area in right lower margin. (ii) The wound has a slicing margin on left side and flapping margin on right side. The wound is oval in shape. (iii) The wound has entered the thoracic cavity by piercing the sternum nearly at mid at the level of 5 th rib. Sternum was fractured transversely at this level. Underneath partly clotted Blood present in mediastinum between both lungs and in both thoracic cavity of about 2.5 liters. Bullet recovered from right lumbar region within posterior abdominal muscles at level of L3 vertebra, 117 cm above heel, 14 cm right to midline. The bullet after entering the thoracic cavity has pierced the apex of heart through and through and then piercing the diaphragm on right posterior aspect lodged in right posterior abdominal muscle. She further deposed in his opinion that Tabussum died due to shock and haemorrhage which was caused due to firearm injury sustained by her in her chest and her death was homicidal in nature. Duration of death was within 24 hours from the time of postmortem. His statement is also supported from post mortem report( ExP-3).

Dr. S.K. Ahirwar (P.W.5) and Dr. Jayanti Yadav (P.W.2) are the

independent witnesses and there is no infirmity in their statements in this

regard. So there is no reason to disbelieve their statements. From their

statement, it is clearly proved that on 08/09/05 Tabussum sustained gunshot

injury on her chest and died on 09.09.2005 during treatment due to the

injuries sustained and that her death was homicidal which amounts to

murder.

As regards the fact whether appellant murdered Tabussum, Rishi

Mourya (P.W.4) who recorded the Dying Declaration of deceased Tabussum

(Ex.P/5) at Hamidia Hospital Bhopal, deposed that on 28.01.2004 after

obtaining the certificate from duty doctor that Tabussum was fit for giving

statement, he recorded Tabussum''s statement in which she stated that her

husband Ubed (appellant) doubted her character and at about 1-2 PM when

she was sitting at Babbu''s house, he fired at her and at that time Babbu and

her husband were also present. Her Dying Declaration is also corroborated

from medical evidence and the statement of Jarina (P.W.1) who deposed that

On the date of incident, on hearing the noise of a gunshot, she went out from

her house and saw that one person was coming out from the house of Nasiruddin armed with gun. Thereafter, when she went inside Nasiruddin''s

house and saw that Tabussum was lying there in injured state. She had

sustained gun shot wound in her chest. Some people took Tabussum to P.S.

Aishbagh. During treatment Tabussum died. Tabussum also told her that

appellant fired on her.

In this regard prosecution story also gets strengthened by the

statement of Nasiruddin (P.W.6), who clearly deposed that deceased

Tabussum was his neighbour. On the date of incident at about 2-2.30 PM

when he returned from the work to his house Tabussum was sitting there and

talking to his wife. Appellant came there and entered inside his house armed

with country made pistol (katta). He further deposed that when appellant

came out of his house after firing at Tabussum, he was standing outside his

house and appellant told him to run away or he would shoot him too. When,

he went inside his house he saw that Tabussum had fallen on the ground and

had injury on her chest and his wife Sahida and other neighbours also came

there. He took Tabussum to P.S. Aishbagh by auto and lodged the report

(Ex.P-7) which was also proved by P.N. Tiwari (P.W.8) the then Station

House Officer, P.S. Aishbagh.

His statement is also corroborated by the statement of his wife Sahida

(P.W.7), who also deposed that on the date of incident at around 2-2:30 PM

Tabussum was sitting with her in her house when appellant Ubed-husband

of Tabussum came there and enquired to her about Tabussum, she told him

that Tabussum was sitting there and he fired on Tabussum and asked her to

to run away otherwise he would shoot her too.

On the point that whether appellant had gone to Nasiruddin''s house in

search of Tabussum on the date of incident prosecution story is also

corroborated from the statement of Shanu (P.W.3) who deposed that

Tabussum was his sister. On the date of incident, Tabussum had gone to Nasiruddin''s house. At 12 PM, appellant came and inquired about Tabussum

to him on which he told him that Tabussum had gone to Nasiruddin''s house

so appellant went to Nasiruddin''s house.

On the point whether the appellant fired on Tabussum the prosecution

story is also supported from the circumstantial evidence collected by N.S.

Damle (P.W.10) during investigation who deposed that on 09.09.2005 he

arrested the appellant and prepared arrest memo (Ex.P-13). Thereafter, he

interrogated the appellant and seized one country made pistol on the

information of the appellant from the trunk of his scooter bearing

registration No.MP-04-D-2126 and prepared information memo (Ex.P-14),

seizure memo (Ex.P-15) and also seized that scooter and Saranjeet Singh

(P.W.9) who examined that pistol, deposed that on 21.10.2005, he was

posted as Assistant Sub-Inspector at Police Line Nehru Nagar, Bhopal. On

that day, he examined country made pistol (katta) and found that the firearm

was 315 bore country made pistol which was in serviceable condition and

gave report (Ex.P-12).

Learned counsel for the appellant submitted that prosecution did not

produce the Doctor who endorsed certification on Dying Declaration of

deceased Tabussum (Ex.P/5) to that effect that she was in a fit state at the

time of giving Dying Declaration. On the contrary, in the Dying Declaration

(Ex.P/5), it is mentioned that Tabussum herself stated in reply to a question

that she was not conscious which shows that at the time of giving Dying

Declaration Tabussum was not in a fit state. Even otherwise, in the Dying

Declaration (Ex.P/5), Tabussum did not mention the name of assailant, who

fired on her. It is only stated that her husband fired on her, while appellant

had already given divorce to Tabussum before the incident as proved from

the statement of Mohd. Athar (D.W.1) and the consent divorce document

(Ex.D/2). Even in the Dying Declaration, Tabussum stated that at the time of incident, she was in the house of Babbu, while according to prosecution

story, the appellant fired at Tabussum in the house of Nasiruddin (P.W.6), so

the whole prosecution story becomes doubtful. Learned trial court

committed mistake in believing the Dying Declaration (Ex.P/5). Likewise so

called eye witness Jarina (P.W.1) clearly admitted in her statement that she

did not see the person who fired at Tabussum and she also deposed that she

did not know the appellant so from her statement, it is not proved that the

appellant fired on Tabussum in the incident. Other eye witness, Shanu

(P.W.3) also stated that he did not know who murdered Tabussum and he

clearly denied that appellant fired at Tabussum and also denied having given

case diary statement (Ex.P/4) to that effect. Nasiruddin (P.W.6) also did not

depose that he saw the appellant firing on Tabussum. On the contrary, he

only deposed that he saw the appellant, when appellant came out from his

house, which shows that this witness had also not seen the appellant firing at

Tabussum. Sahida (P.W.7) also admitted in her cross-examination that she

did not give case diary statement (Ex.D/2) to the police to the effect that

appellant fired on Tabussum with intent to kill her, which clearly shows that

this witness also did not saw the appellant firing on Tabussum. But his

arguments have no force.

Although, prosecution did not produce the doctor who endorsed the

certificate regarding fitness of Tabussum to give Dying Declaration

(Ex.P/5). But Rishi Maurya (P.W.4) who is independent witness clearly

deposed that he recorded the Dying Declaration (Ex.P/5) of Tabussum after

certification of doctor. There is no reason to disbelieve his statement.

Although in answer to question, "What happened thereafter" Tabussum

stated that "she is not conscious". But from the reading of whole dying

declaration (Ex./P5), it clearly appears that the answer was given by the

Tabussum in the Context that what happened soon after the incident. So only on that answer it can not be inferred that at the time of giving the dying

declaration (Ex./P5) Tabussum was not fit to give statement. Zarina (PW/1)

also deposed that soon after the incident when she reached on the spot

Tabussum told her that appellant had fired on her. Appellant did not

challenge her statement on that point in his cross examination. Although

Mohammad Athar (D.W.1) deposed that appellant gave divorce to

Tabussum on 14.07.2004. He also produced talaknama (Ex./D-2) in support

of his statement. But in her Dying Declaration she clearly stated that her

husband''s name was Ubed (appellant) and her husband fired at her. So from

the dying declaration (Ex.P/5) of Tabussum it is clear that she gave the

statement calling appellant (Ubed) as her husband. From the statement of

Nasiruddin (P.W.6) and Sahida (P.W.7) also it is proved that appellant is the

person who had fired on Tabussum. So statement of Mohammad Athar

(D.W.1) has no significance. Likewise Tabussum stated in her Dying

Declaration that the incident occurred at the house of Babbu but from the

statement of Nasiruddin (P.W.6) Sahida (P.W.7) and Jarina (P.W.1), it is

clear that incident occurred at the house of Nasiruddin/Sahida. Appellant

also not challenged the statements of above mentioned witnesses in their

cross-examination on that point. From their statement it also appears that

Sahida (P.W.7) is Babbu none else.

Although, Nasiruddin (P.W.6) did not depose that he saw the

appellant firing at Tabussum but he clearly stated that appellant entered his

house with country made pistol and came out after firing on Tabussum from

his house, at that time, he was standing at the door of his house and

thereafter, when he went inside the house he saw that Tabussum sustained

gunshot injury on her chest, which clearly shows that appellant fired on

Tabussum. Although Sahida (P.W.7) in her cross-examination stated that she

did not give the statement to the police that appellant fired on Tabussum with the intent to kill her but in this regard her statement is to be considered

as a whole not in piecemeal. She clearly stated in her examination-in-chief

that She was washing the clothes at the time of the incident. Tabussum was

sitting near her. The accused came and asked her where Tabussum was and,

she told him that Tabussum was sitting there on which the accused shot

Tabussum which clearly shows that she saw the appellant firing at

Tabussum. So there is no question to disbelieve the prosecution story that

appellant fired on Tabussum.

Regarding seizure of country made pistol from the trunk of scooter

bearing registration No.MP-04-D-2126 on the information of appellant,

there is no contradiction in the statement of N.S. Damle (P.W.10), so his

statement cannot be discarded only on the ground that prosecution did not

produce independent witnesses of information memo (Ex.P-14) and seizure

memo (Ex.P-15). As the ownership of scooter is concerned, the appellant

himself in his examination under Section 313 of CrPC in reply to question

No.41 clearly admitted that the said scooter was his. Although prosecution

also not produce that seized country made pistol during evidence but from

the statement of Sharanjit Singh (PW/9) who had examined that seized

country made pistol it is proved that the seized pistol was 315 bore country

made pistol, and was in a serviceable condition.

Even otherwise, for the sake of argument if it is assumed that seizure

of country made pistol is not proved then too the whole prosecution story

cannot be discarded on that ground. The seizure of country made pistol from

the possession of the appellant is only a corroborating piece of evidence

where prosecution story is proved from the direct evidence that there is no

effect of not proving the seizure of weapon. From the Dying Declaration of

Tabussum which is also corroborated by the statement of eyewitness of

incident Nasiruddin (P.W.6) and Sahida (P.W.7), and the other prosecution evidence, it is clearly proved that appellant fired at Tabussum. In Dying

Declaration, Tabussum also stated that appellant doubted her character,

which also proves the motive behind murder by the appellant.

Thus, from the evidence on record it is clearly proved that on

08.09.2005 Ubed fired on deceased Tabussum by country made pistol (katta)

with an intention to kill her due to which she died. In the considered opinion

of this court, learned trial court did not commit any mistake in finding

appellant guilty for the offences punishable under section 302 & 452 of IPC.

So conviction of the appellant Ubed under Sections 302 & 452 of IPC is

hereby upheld.

The sentence for life imprisonment and fine of Rs.5,000/- and three

years rigorous imprisonment with fine of Rs.5,000/- with default stipulation

is also adequate and this Court does not find any reason to interfere with the

judgment. Hence, appeal filed by the appellant/accused stands dismissed.

The appellant, who is in the custody, shall serve the remaining part of the

sentence, in accordance with law. Both jail sentences shall run concurrently.

The period already undergone shall be set off from the period of substantive

jail sentence.

Accordingly, the appeal stands dismissed.