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State of U.P. v. Krishan Pal Singh @ Baba & others - GOVERNMENT APPEAL No. 1666 of 1981  RD-AH 5750 (14 November 2005)
Government Appeal No. 1666 of 1981
State of U P......................................................Appellant
1. Krishan Pal Singh @ Baba
3. Ashraf (Died)
Hon'ble M. Chaudhary,J.
(Delivered by Hon'ble M. Chaudhary,J.)
This is a government appeal filed on behalf of State of UP from the judgment and order dated 17th of March 1981 passed by III Additional Sessions Judge, Etah in Sessions Trial no. 192 of 1979 State versus Krishan Pal Singh @ Baba & others acquitting them of the charges levelled against them under sections 147 and 148 IPC and sections 302, 307 and 324 each read with section 149 IPC.
State appeal against accused respondent no.3 Ashraf stood abated vide order dated 2.5.05 as he was reported having died.
The facts giving rise to this appeal in nutshell are that Fateh Mohammad, Nazim, Mohd Tahir and Mohd Qasim were real brothers; that house of Fateh Mohammad and that of Ashraf son of Latafat Husain were situate adjacently at Mohalla Nawab; that Rs 252. 00 were due from Ashraf to Nazim ; that at about 10:00 a.m. on 19th of March, 1978 Nazim went to the house of Ashraf for demanding money due from the latter; that at that time Krishan Pal Singh @ Baba, Abdul, Arshad, Shaukat, Iqbal and Zabbar were also present there; that immediately Iqbal, Zabbar and Krishan Pal Singh @ Baba shouted that they had killed his another brother and then he should also be put to an end, and immediately Krishan pal Singh @ Baba gave a knife blow to Nazim hitting him at his abdomen; that Fateh Mohammad who also went with his brother Nazim tried to save him; that then accused Abdul, Arshad, Shaukat, Zabbar and Iqbal caught hold of Fateh Mohammad and Ashraf gave him knife blow hitting him at his hand. On hearing the hue and cry raised Mohd Tahir, elder brother of Fateh Mohammad, Matin, Khalil, Munney Khan, Mahmood Khan and few others rushed to the scene of occurrence and intervened. Immediately injured Fateh Mohammad and his seriously injured brother Nazim were taken to the police station and since the condition of Nazim was quite precarious they were immediately sent to PHC Kasganj for treatment. Injured Nazim was medically examined by Dr K.S. Yadav, Medical Officer in-charge Primary Health Centre Kasganj at 10: 30 a.m. the same forenoon. His medical examination revealed below noted injury on his person:
Stab wound 2 cm x 1 cm x chest cavity deep on left side just lateral lower aspect 15 cm outer to pit of stomach and 16 cm below and outer to left nipple spindle shaped. Blood was oozing from the wound. Margins clean cut.
The doctor opined that the injury was fresh and caused by sharp edged and pointed weapon . Blood pressure was very low, pulse feeble and face restless. The patient was in senses.
Then Dr K.S. Yadav medically examined injured Fateh Mohammad at 10: 45 a.m. His medical examination revealed below noted injuries:
1. Stab wound 4 cm x 2 cm x 9 cm going inwards on the back, mid , outer and above left forearm. Margins clean cut. Bleeding present.
2. Stab wound 2 cm x 1 cm x joining injury no.1 on the front, mid and upper left forearm. Bleeding present.
3. Stab wound ½ cm x ¼ cm x muscle deep on left abdomen.
The doctor opined that all the injuries were caused by sharp edged and pointed weapon and fresh in duration.
It appears that since the condition of injured Nazim was serious Dr K.S.Yadav recorded dying declaration of injured Nazim at 11:15 a.m. the same forenoon. Injured Nazim stated that he was behind his house and he asked Ashraf to pay back the money due from him; that thereon he started hurling abuses and immediately Krishan Pal Singh @ Baba who was present there shouted that he should be caught and then Ashraf, Shaukat and Arshad caught hold of him and Krishan Pal Singh @ Baba gave him knife blow hitting him at his abdomen and that in the meanwhile several persons rushed to the scene of occurrence and took him in a rickshaw.
Thereafter injured Fateh Mohammad went to police station Kasganj and handed over written report of the occurrence to the police there at 11:30 a.m. the same forenoon mentioning the said facts also therein. The police registered a crime against the accused under sections 147, 148, 324 and 307, IPC accordingly and made entry regarding registration of the crime in the GD.
Since the condition of injured Nazim was serious Dr K.S.Yadav referred him to Medical College AMU Aligarh. Then he was rushed to the Medical College, Aligarh the same noon and admitted there but he succumbed to the fatal injury sustained by him during the night between 19th and 20th of March, 1978 at 3:02 a.m.
SI Kalbey Ali to whom investigation of the crime was entrusted recorded statements of the witnesses, visited the scene of occurrence, inspected the site and prepared its site plan map (Ext Ka 5). He also collected blood stained and simple bricks from the scene of occurrence and prepared its memo (Ext Ka 6).
After receiving information regarding death of Mohd Nazim in Medical College, AMU Aligarh SI Ashok Kumar Sharma, police station Civil Lines, Aligarh went to the Medical Hospital and drew inquest proceedings on the dead body of Nazim, preparing inquest report (Ext Ka 8) and other necessary papers (Exts Ka 19 and Ka 20) and entrusted the dead body in sealed cover alongwith necessary papers to constables Shiv Raj Singh and Mohd. Idrish Khan for being taken for its post mortem.
Autopsy conducted on the dead body of Nazim by Dr N.K.Saxena, Medical officer District Hospital, Aligarh on 20th of March 78 at 4:00 p.m. revealed below noted ante mortem injuries on the dead body:
1. Stitched wound 1" long on left side chest lower part 6 inches below left nipple. On removing stitches wound was 1" x ½" x abdomen cavity deep and was directed towards right.
2. Stitched wound 6" long on left side of abdomen ½" left side from umbilicus on upper part. On removing stitches wound was found abdominal cavity deep and margins clean cut.
On internal examination left pleura was found punctured under injury no. 1 and pleural cavity contained about one pound of blood and left lung collapsed. Peritoneum was found cut under injury no. 2 and abdominal cavity contained about 2 pounds of blood Stomach was cut at two places under injury nos. 1 and 2 and was empty. Large intestine contained faecal matter. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries.
Subsequently the crime was altered inter alia, under section 302 IPC
After completing the investigation the police submitted charge sheet against the accused accordingly.
After framing of the charge against the accused the prosecution examined Fateh Mohammad (PW 1) and Mohd Tahir (PW 2) as eye witnesses of the occurrence. PW3 Dr K.S.Yadav Medical Officer in-charge Primary Health Centre Kasganj who medically examined injured Nazim and Fateh Mohammad proved their injury reports (Exts Ka 2 and Ka 3). He also proved dying declaration of injured Nazim recorded by him stating that at the time his dying declaration was recorded by him he was in a fit mental state to make the statement (Ext Ka 4). PW 5 ASI Ram Charan Singh, the then HM police station Kasganj who prepared check report on the basis of written report handed over to him by Fateh Mohammad at the police station and made entry regarding registration of the crime in GD has proved these papers (Exts Ka 8 & Ka 9). He also proved GD entry regarding alteration of the crime under section 302 IPC (Ext Ka 10). PW 6 Dr N.K. Saxena, Medical officer, Medical College, Aligarh who conducted autopsy on the dead body of Nazim on 20.3. 78 has proved the post mortem report (Ext Ka 11). PW 4 SI Kalbey Ali, the investigating officer who investigated the crime in main has proved the police papers. He also proved charge sheet submitted by SHO Ram Chandra Singh who subsequently took up investigation of the case in his hands (Ext Ka 7).
The accused denied the alleged occurrence altogether and stated that they were got implicated in the case falsely on account of enmity.
On an appraisal of evidence and other material on the record the prosecution case and evidence was disbelieved by the Additional Sessions Judge with the result that the accused were acquitted of the charge levelled against them.
Feeling dissatisfied with the impugned judgment and order this government appeal has been filed assailing the judgment of acquittal passed by the trial court.
We have heard Sri K.P.Shukla, learned AGA for the State appellant and Sri V.C..Tewari, Senior Advocate for accused respondent no. 1 Krishna Pal Singh and Sri S.S.Chauhan learned counsel for the remaining accused respondents.
Learned AGA for the State appellant vehemently argued that since the impugned judgment acquitting all the accused of the charge levelled against them suffers from illegality and manifest error in evaluation of evidence and the grounds on which the order of acquittal is based are unreasonable, it can not be maintained in law and is liable to be set aside. On the other hand learned counsel for the accused respondents contended that the learned trial judge has given cogent and convincing reasons for acquitting the accused and hence the impugned judgment need not be interfered with.
It is well settled that in criminal cases if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. On the basis of this very principle appeal from the order of acquittal should be interfered with only when there are compelling and substantial reasons therefor. After going through the impugned judgment and record of the case we find ourselves unable to agree with the findings recorded by the court below.
Learned counsel for the accused respondents contended that FIR in the case is delayed and ante-timed as according to the prosecution the alleged occurrence took place at about 10:00 a.m. and FIR of the occurrence was lodged at police station Kasganj situate at a very short distance from the place of occurrence at 11:30 a.m. PW 1 Fateh Mohammad, the injured and brother of the deceased and also the first informant stated that soon after the incident he taking his injured brother Nazim alongwith few others went to the police station Kasganj but the constables present there after seeing injured Nazim advised them to take Nazim to the Hospital first as his condition was quite precarious and then to lodge FIR of the occurrence and therefore he taking his injured brother Nazim went to the Primary Health Centre Kasganj where both of them were medically examined; that since the condition of injured Nazim was quite serious Dr K.S.Yadav Medical Officer in-charge PHC Kasganj recorded his dying declaration because of non-availability of the Executive Magistrate and that in the meanwhile he got report of the occurrence scribed and then taking the written report of the occurrence he went to the police station Kasganj and handed over written report of the occurrence to the police there at 11:30 a.m. the same noon. Since the condition of injured Nazim was worsening the doctor at PHC Kasganj referred him to Medical College, Aligarh and then at about 1:00 p.m. he taking his injured brother alongwith others went to Medical College Aligarh where he was admitted. PW 5 ASI Ram Charan Singh, the then HM at police station Kasganj who prepared check report on the basis of written report handed over to him by Fateh Mohammad made entry regarding registration of the crime in the general diary proved these papers (Exts Ka 8 & Ka 9). He was not questioned at all by the defence counsel in his cross-examination if at about 10: 15 a.m. or so that very forenoon Fateh Mohammad, the injured taking his injured brother Nazim alongwith few others had gone to the police station to lodge FIR of the occurrence but they were advised by the police at the police station to go to the Hospital first as the condition of Nazim was quite serious and then to lodge an FIR of the occurrence. We see no plausible reason to doubt the genuineness of the FIR of the occurrence recorded on the basis of the written report handed over at the police station on 19th of March,1978 at 11: 30 a.m. and entry regarding registration of the crime in GD made by HM at the police station in the discharge of his official duties. The explanation offered by PW 1 Fateh Mohammad, the first informant appears to be plausible and convincing.
Even if the explanation offered by Fateh Mohammad, for not lodging FIR of the occurrence immediately thereafter is left out of consideration, anxiety of saving life of his brother Nazim would have been his prime concern and there is nothing wrong if he taking his injured brother alongwith others first went to the Hospital and after medical examination of both the injured and recording of dying declaration of injured Nazim whose condition was quite precarious so much so that immediately thereafter he was referred to Medical College, Aligarh there was no delay in lodging FIR of the occurrence at the police station as it was lodged by handing over written report of the occurrence by Fateh Mohammad, the injured without losing any time. A perusal of the check report and GD entry goes to show that crime was registered at the police station on the basis of written report of the occurrence handed over to HM Ram Charan Singh at 11:30 a.m. that very forenoon against the accused named therein. Genuineness of the check report and GD entry prepared by the police officers in the course of their official duty can not be doubted unless proved otherwise. Under the circumstances there was also no time for any consultation and confabulation to spin out a false story. It has been contended that several facts such as which of the assailants had caught hold of which of the victims were not mentioned in the FIR. It is well settled that FIR is a report giving information of the commission of a cognizable crime which may be committed by any person knowing about the commission of such an offence. It is intended to set the criminal law in motion. Any information relating to the commission of a cognizable offence is reduced to writing by official concerned at the police station and signed by the person giving it and the substance thereof is entered in a book to be kept at the police station in such form as the State Government may prescribe in that behalf. The registration of the FIR empowers the Officer-in-charge of the police station to commence the investigation with respect to the crime reported at the police station either himself or depute one of his subordinate officers not below such rank as the State Government may by general or special order prescribe in that behalf to investigate the facts of the case and if necessary to take measures for arrest of the offenders. It is not a substantial piece of evidence. Since Fateh Mohammad, the first informant was himself injured and due to precarious condition of his injured brother Nazim he must be under a state of shock and confounded he mentioned in the report whatever he thought necessary and came to his mind. In view of the above facts the said arguments advanced by the learned counsel for the accused respondents that the FIR is delayed or ante timed or was scribed after consultation or did not contain all the details of the occurrence have got no substance and are repelled.
Learned AGA for the State appellant vehemently argued that the trial Court discarded the dying declaration of Nazim recorded by the doctor unjustifiably . The trial judge has observed that since the dying declaration was not recorded by a Magistrate but by the doctor and the doctor stated that at the time of recording dying declaration several persons who had come with the injured were present there and talking together loudly taking the names of the assailants, the dying declaration was not voluntary and genuine. No doubt, PW 3 Dr K S Yadav who medically examined injured Nazim and recorded his dying declaration due to non-availability of the Magistrate stated that the persons accompanying the injured were present near Nazim and were talking together loudly taking the names of the assailants. However when cross-examined further on the point he could not tell names of any of the assailants uttered by the persons collected there. Otherwise too, it does not appear to be of any consequence. The incident took place in broad day light and all the assailants were well known to injured Nazim since before. It is mentioned in the injury report that the injured was in senses. He himself saw accused Kishan Pal Singh @ Baba assaulting him and inflicting injuries on him with knife. Under the circumstances, it would be too much to propose that despite seeing the injuries being inflicted on him he would while making the statement implicate the accused respondents on account of previous enmity leaving the real person who inflicted injuries on him altogether free. It is against the human conduct, more so when he was under imminent danger of death. Learned counsel for the accused respondents also contended that according to the injury report pulse of injured Nazim was feeble and BP very low and body was getting cold and hence he was not in a position to make any statement. Physical state or injuries sustained by injured declarant are not by themselves determinative of mental fitness of the injured to make the statement as mental fitness can be ascertained from opinion of the doctor and surrounding circumstances. In the instant case the doctor who medically examined the injured and was attending him recorded his dying declaration and certified about the mental fitness of the injured to make a statement. There is no plausible reason to disbelieve the doctor who was a government servant and wholly independent person as there is nothing on the record to show that he was siding or favouring the prosecution. In view of all these facts and circumstances we are of the view that since the doctor who was on duty and attending the injured recorded his dying declaration giving a certificate that he was in a fit mental state to make statement and there is no discrepancy in the statement of injured Nazim, the deceased and it is also very brief we see no cogent reason to find that the dying declaration was not made voluntarily. Thus we are of the view that the dying declaration was made by injured Nazim in a fit mental state voluntarily and the same is genuine. Dying declaration of the injured Nazim gets further strengthened by the testimony of the two eye witnesses including injured witness Fateh Mohammad (PW 1).
The trial judge observed that injured Nazim did not state the time of the occurrence and presence of witnesses including his brothers namely Fateh Mohammad and Tahir at the scene of occurrence in the declaration. He further observed that the dying declaration is silent about assault at Fateh Mohammad and that it also contains cuttings and for all these reasons no evidentiary value could be attached to it and it was of no use to the prosecution. We have given our anxious consideration to all these observations and in our considered opinion it was not necessary for the injured to narrate all the details of the occurrence and since his condition was quite precarious he answered the questions put to him by the doctor in brief, and there was nothing wrong in it. As far as cutting at two places in the dying declaration is concerned, it is in continuation at the time of recording the statement and not subsequent to recording of the dying declaration and hence of no avail to the defence.
Learned AGA for the State appellant further argued that the trial court was not justified in discarding the testimony of the two eye witnesses including the injured witness. PW 1 Fateh Mohammad, the injured has narrated all the facts of the occurrence from the beginning to the end stating that Ashraf who originally was a resident of district Budaun was residing alongwith his family in mohalla Nawab, Kasganj for the last 8-9 months prior to the occurrence, that since he and his brother Nazim used to run a hotel in close vicinity of his house he used to visit his hotel occasionally and take food there; that about one month prior to the occurrence he had taken food at his hotel but had not made the payment; that he had also borrowed some money and a sum of Rs 252. 00 was due from him to Nazim; that some 8-10 days prior to the occurrence his brother Nazim had asked Ashraf to pay back the money due from him; that Ashraf did not relish the same but promised to pay back the money due from him on 19th of March ; that at about 10:00 a.m. that day Nazim went from the hotel to the house of Ashraf situate in the back side and he also followed him; that at that time Krishna Pal Singh alias Baba, Shaukat, Arshad, Abdul, Jabbar and Iqbal were also present with Ashraf there; that as Nazim asked Ashraf to pay back the money due from him the persons present there started hurling abuses and Krishna Pal Singh shouted that they should catch hold of him and they had already murdered his one brother and now they would also put an end of him; that then Ashraf, Shaukat and Arshad caught hold of Nazim and Krishna Pal Singh stabbed him with knife hitting Nazim at his abdomen; that as he proceeded for his rescue Jabbar, Iqbal, Arshad and Shaukat caught hold of him and Ashraf gave knife blow to him hitting at his hand and also causing injury at his abdomen and that on hearing the hue and cry, his brother Tahir and one Siddiq , Matin, Munney Khan, Khalil and Jafar also reached there and sighting them the assailants took to their heels. PW 2 Mohd Tahir,brother of the injured and the deceased corroborated him on all the material points stating likewise. Both the witnesses were subjected to searching and gruelling cross-examination but nothing tangible to doubt their credibility could be brought on the record.
The trial judge doubted testimony of both the witnesses observing that the alleged occurrence did not occur at the time, place and in the manner alleged by the prosecution. PW 3 Dr K.S.Yadav stated in his cross-examination that the injuries sustained by both the injured could be caused while they were lying and that the injuries sustained by them might be caused to them that mid night . Placing reliance on the said statement of PW 3 Dr K.S.Yadav the trial judge observed wrongly mentioning in the judgment that in the opinion of the doctor injuries were more possible to have been caused during the lying posture of the complainant a situation which conforms to the defence plea of the assault having been made at the two persons at some time during night while they were asleep. However Dr K S Yadav nowhere stated that injuries were more possible to have been caused during lying posture of the complainant. The doctor stated only this much in response to a question put up to him by the defence counsel in cross-examination that the injuries sustained by the two injured could be caused while they were lying. It is true that he also stated that the injuries sustained by the two injured could be caused to them that mid night. It was merely a probability. But it could not be lost sight of that he deposed categorically in his examination- in-chief that the injuries sustained by the two injured were fresh in duration. In medical science normally the injuries caused within six hours are said to be fresh. At the time of medical examination of both the injured the doctor found that injuries sustained by both of them were bleeding. Further, it is unacceptable that the two injured would have been assaulted at some hour in the midnight as in that case their relations would not have waited for taking them to the Hospital for their treatment upto 10:00 a.m. next morning. Condition of injured Nazim was quite precarious and the family members of a seriously injured person would not have taken the risk of his life even for an hour, had he been assaulted in the midnight, what to say of ten hours or so. Therefore the said finding arrived at by the trial court is perverse.
Further, the injuries sustained by PW 1 Fateh Mohammad could not be self-inflicted or manufactured and therefore his presence at the scene of occurrence can not be doubted. Name of PW 2 Mohd Tahir finds mention in the FIR lodged at the police station by injured Fateh Mohammad without losing any time. Both these witnesses have given an honest account of the occurrence witnessed by them . Shorn of few contradictions which are of very trivial nature and insignificant, testimony of both the witnesses on all the material points has been consistent. They appear to be truthful and straightforward witnesses and the sworn testimony of these witnesses who are blood relations of the deceased can not be thrown over board as both these witnesses withstood the test of cross-examination firmly and their presence at the scene of occurrence can not be doubted. Their sworn testimony stands further supported by FIR of the occurrence lodged at the police station without losing any time. The medical evidence leaves no room for doubt as to the factum of the occurrence and the prosecution case with regard to its time and the weapons used in the assault also receives corroboration from it. The place of occurrence is also fixed up by recovery of blood. Thus we are of the view that testimony of PW 1 Fateh Mohammad, the injured and PW 2 Mohd Tahir who is real brother of the victims can not be thrown away merely on the ground of close relationship as nothing material could be elicited in their cross-examination to shake the central core of their assertions in respect of the prosecution version.
The trial judge also observed that failure of the investigating officer to send the blood stained brick piece and blood stained clothes of the injured to the Serologist for chemical examination is fatal to the prosecution case. However in our view that would not provide a handle to the defence to attack the prosecution case. No doubt it would have been better if the investigating officer would have sent blood stained brick piece and blood stained clothes of the injured to the Serologist for chemical examination. However, the said omission on the part of the investigating officer is not a flaw of that type so as to invite the consequence of jettisoning the sworn testimony of the two eye witnesses and that of the other witnesses.
The trial judge observed that since both the eye witnesses were highly prejudiced against accused respondent Krishna Pal Singh alias Baba to the extent that PW 1 Fateh Mohammad admitted that the accused abovenamed was named in all the cases which were registered at the police station at his instance or at the instance of any of his family members and PW 2 Mohd Tahir stated that accused Krishna Pal Singh alias Baba was thirsty of their blood and hence no reliance could be placed on their testimony. It appears that the trial judge did not take pains for appreciating the evidence on record in its true perspective. PW 1 Fateh Mohammad emphatically denied the suggestion given to him in his cross-examination that in all the cases reported by him or by any of his family members at the police station Krishna Pal Singh alias Baba was named as one of the assailants whether he was among the assailants or not. The observation made by the trial judge can not be attached any importance because it is a matter of common knowledge that in villages or localities there are often party factions and if two parties are at daggers drawn and any member of a party being dare-devil used to participate in all the occurrences it is but natural that he would be named as one of the assailants or miscreants in the FIRs of incidents. As far as statement of PW 2 Mohd Tahir that Krishna Pal Singh alias Baba was their blood thirsty there is nothing wrong in it because admittedly accused Krishna Pal Singh alias Baba alongwith others was prosecuted for the murder of Mohd Qasim, real brother of Mohd Tahir (PW 2) and convicted and sentenced to imprisonment for life thereunder though with the qualification that an appeal was pending from that judgment in the High Court. Admittedly some 14-15 years ago Krishna Pal Singh alias Baba gave knife blow to Mohd Siddiq Khan, cousin of Fateh Mohammad and for that he was convicted and sentenced for a period of two years and that in appeal the matter was got compromised and then Krishna Pal Singh alias Baba was acquitted. On 27th of March 1975 Krishna Pal Singh alias Baba and others gave knife injuries to Mohd Qasim, brother of Tahir and admittedly accused Krishna Pal Singh alias Baba also received injuries and cross-cases were going on at the time of the instant murder of Nazim. Nazim, the deceased had also been attacked with knife by accused Krishna Pal Singh alias Baba and others on 6th of November 1975 and a criminal case regarding that incident was also going on. Under the circumstances it can not be said that PW 1 Fateh Mohammad and PW 2 Mohd Tahir were witnesses prejudiced against Krishna Pal Singh alias Baba. It has also been observed by the trial judge that since the antecedents of both these witnesses were bad as they were also involved in other criminal cases no reliance could be placed on their testimony as they could be made to state anything against anyone at any time. As discussed above we have seen that there is a chain of criminal cases pending between the parties. No doubt that Fateh Mohammad (PW 1) and Mohd Tahir (PW 2) faced some other criminal trials too but some of them ended in their acquittal in appeal. It has come in evidence that PW 1 Fateh Mohammad and PW 2 Mohd Tahir used to run a hotel and it is a matter of common experience that in this business some incident may occur now and then. Under the circumstances it can not be said that PW 1 Fateh Mohammad and PW2 Mohd Tahir were the witnesses of such character that they could be made to state anything against anyone at any time.
The trial judge also observed that since the statements of both these witnesses were recorded by the investigating officer next day of the occurrence their examination was delayed with the intention to manipulate the case. The said observation made by the trial judge is not correct. It has come in evidence that Dr K S Yadav who medically examined injured Nazim referred him to Medical College Aligarh as his condition was quite serious. PW 1 Fateh Mohammad stated that injured Nazim was rushed to Medical College Aligarh at about 1:00 p.m. the same noon where he succumbed to the injuries at about 3:00 a.m. during the night between 19th and 20th of March 1978. Then these witnesses must have returned back from Aligarh in the afternoon on 20th of March 1978. Under the circumstances there is nothing wrong if their statements were recorded by the investigating officer on 20th of March 1978.
The trial judge also observed that the prosecution case and evidence are full of incongruities and improbabilities and hence no reliance can be placed upon the testimony of the two eye witnesses and the dying declaration of injured Nazim recorded by Dr K S Yadav, Medical Officer in-charge PHC Kasganj after his medical examination at 11:15 a.m. He observed that injured Nazim stated in his declaration that he was behind his house and asked Ashraf to pay back the money due from him; that immediately he started hurling abuses to him; that in the meanwhile Krishna Pal Singh alias Baba asked his associates present there to catch hold of him and that then Ashraf, Shaukat and Arshad caught hold of him and Krishna Pal Singh alias Baba stabbed him with knife whereas PW 1 Fateh Mohammad stated that at about 10:00 a.m. the alleged morning Nazim went from his hotel to the house of Ashraf situate in close vicinity and he also followed him ; that as Nazim asked Ashraf to pay back the money due from him Krishna Pal Singh alias Baba who was already present there alongwith the brothers of Ashraf and Iqbal and Jabbar sons of Ghaffar shouted that he had already killed his one brother and his matter would also be settled and that immediately Ashraf, Shaukat and Arshad caught hold of Nazim and Krishna Pal Singh alias Baba gave knife blow to him hitting at his abdomen. The trial judge observed that according to the dying declaration the occurrence took place behind the house of Nazim whereas according to the eye witnesses occurrence took place in front of the house of Ashraf. If we analyze testimony of the two eye witnesses and the dying declaration carefully there is no real inconsistency between the two. The house of Ashraf is situate behind the hotel of Fateh Mohammad and Nazim. Thus the incident took place behind the hotel of Nazim and in front of the house of Ashraf. It appears that due to some mistake injured Nazim stated that occurrence took place behind his house in his declaration instead of behind his hotel.
The trial judge also observed that the prosecution case is full of improbabilities and incongruities. He observed that according to the prosecution case Iqbal and Jabbar sons of Ghaffar and Ashraf, Abdul, Arshad and Shaukat sons of Latafat Husain and Arshad belonged to one family and resided in close neighbourhood and Krishna Pal Singh alias Baba who used to reside at a distance of about 2-3 furlongs from their houses were of one party and if they were of one party and Nazim was bitterly inimical to Krishan Pal Singh @ Babs as to why he permitted Ashraf as a customer in his hotel and gave money to him on credit. It has come in evidence that Ashraf and his family members originally belonged to Budaun but for the 8-9 months prior to the occurrence they started residing in mohalla Nawab and since then used to visit his hotel occasionally and take food there and that only 8-9 days prior to the occurrence he came to know that they and Krishan Pal Singh @ Baba were of one party. Under the circumstances there is nothing strange if Nazim attended Ashraf in his hotel and gave money to him on credit on his request. Thus the alleged incongruities and improbabilities are of very trivial nature and insignificant not going to the root of the case and should not be attached undue importance and have to be ignored.
The trial judge also observed that admittedly there are so many residences and shops in the vicinity of the place of occurrence but no independent witness was examined by the prosecution in its support. It is a matter of common experience that everybody wants to avoid appearing as a witness in criminal matters in the courts and depose against the accused as they do not want to invite trouble for themselves. Moreover the said incident would have hardly taken 2-3 minutes and it is quite possible that on hearing the hue and cry by the time persons from the neighborhood rushed to the scene of occurrence the incident was over. Furthermore, a perusal of the inquest report goes to show that the defence counsel admitted genuineness of the document under section 294 of the Code of Criminal Procedure (Ext Ka 18). It is mentioned in the inquest report that in the opinion of Panchas Mohd Nazim died due to knife injuries caused to him by Ashraf, Krishan Pal Singh @ Baba, Abdul, Arshad, Shaukat, Iqbal and Jabbar on 19th of March, 1978 at about 10:00 a.m. and the case regarding that incident was already registered at police station Kasganj. Out of these ''Panchas' three were residents of Mohalla Nawab, Kasganj.
The trial judge also observed that even if it is assumed that Rs 252.00 were due from Ashraf to Nazim it did not constitute sufficient motive for committing his murder. We may mention here that in the case of direct evidence motive pales into insignificance. Moreover twenty five years' ago a sum of Rs 252.00 was not so small. There is nothing improbable if accused Krishna Pal Singh alias Baba having nurtured grievance against Fateh Mohammad and his family members as he was involved in several criminal cases at their instance and wanting to settle scores with them joined hands with Ashraf who took ill of being asked by Nazim to pay back money due from him.
For the foregoing reasons, we are of the view that evidently judgment of the trial court suffers from serious and substantial errors and legal infirmities and hence it can not be maintained in law. However since accused respondents Abdul, Shaukat, Jabbar and Iqbal have been assigned the role of catching hold they should be given benefit of doubt and their acquittal is confirmed. Accused Krishna Pal Singh alias Baba is held guilty of the charge levelled against him under section 302 IPC for the murder of Nazim and under section 324 read with section 34 IPC for voluntarily causing hurt to Fateh Mohammad as he shared common intention with Ashraf in committing the crime. Conviction with the aid of section 34 IPC is legal on a charge framed with the aid of section 149 IPC in view of the Apex Court decision in the case of Amar Singh vs. State of Haryana reported in AIR 1973 SC 2221.
The appeal is allowed in part and the impugned judgment acquitting accused Krishan Pal Singh @ Baba is hereby set aside. He is convicted under section 302 IPC and section 324 read with 34 IPC and sentenced to imprisonment for life and one year' rigorous imprisonment respectively thereunder. Both the sentences shall run concurrently. The accused respondent is on bail. Chief Judicial Magistrate, Etah is directed to get the accused respondent Krishan Pal Singh @ Baba arrested and lodged in the jail to serve out the sentences imposed upon him.
Since accused Ashraf was reported having died, State Appeal against him stood abated. Acquittal of accused Abdul, Shaukat, Zabbar and Iqbal is hereby affirmed. They are on bail. Their bail bonds are hereby discharged.
Let the judgment be certified to the court below. Record of the lower court be sent to the court concerned immediately for necessary compliance under intimation to this Court within two months.
Dt. November 14, 2005
GA-1666 of 1981/Dks
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