Akhtar And Others v. State Of Uttaranchal .

Dr. M.K Sharma, J.— This statutory appeal arises out of the final judgment and order dated 18-7-2007 passed by the Division Bench of the High Court of Uttaranchal by which the High Court allowed the appeal filed by the State of Uttaranchal and convicted all the appellants herein under Sections 148, 302/149, 307/149 and Sections 324/149 of the Penal Code, 1860 (in short “IPC”) and sentenced them to undergo rigorous imprisonment for life by setting aside the order of acquittal passed by the trial court.

2. The prosecution story, in brief, is that on 13-5-1987, at about 10.00 a.m the complainant, Jamil Ahmad (PW 2) along with his brothers, Asgar and Shakil (both deceased), and nephew, Mobin (PW 3), were ploughing their field, bearing Khasra No. 967, situated in Village Beljuri within the limits of Police Station Kashipur. Their tractor was being driven by driver, Radhey Shyam (PW 4). They were in litigation over possession of the said field with accused, Alla Bux and others. Stay order had also been obtained by them regarding the same.

3. It is alleged that on account of such running feud between them, Alla Bux and his associates were inimical to the complainant (Jamil Ahmad) and his brothers and that on the aforesaid date and time when the plot was being ploughed, accused Alla Bux, Akhtar, Mohd. Umar, Nuru, Rais alias Gabru, Yamin, Yasin and Amir Bux, armed with deadly weapons—pistol, tabals (a sharp-edged weapon), knives and lathies, reached the field. Accused Alla Bux exhorted his companions whereupon all the appellant-accused started giving blows with the weapons they were armed with, on the complainant, his brothers and nephew.

4. The appellant-accused Akhtar, who wielded a country-made pistol, fired upon them and wounded Shakil (one of the deceased) and Mobin (one of the injured). In the incident all of them, namely, Asgar, Shakil, Jamil Ahmad and Mobin sustained severe injuries. On account of the injuries thus sustained Asgar and Shakil died on the spot itself. Asgar (another deceased) and Jamil Ahmad (another injured) also received injuries of sharp-edged weapons. On raising alarm by Jamil Ahmad and others, many other persons from nearby place reached at the spot whereupon appellant-accused ran away towards River Dhela.

5. Leaving the dead bodies of Asgar and Shakil at the spot, Jamil Ahmad along with Mobin went to Kashipur. The written first information report (in short “the FIR”) was got scribed by one Anwar Hussain on dictation of Jamil Ahmad (PW 2). Jamil Ahmad then went to Police Station Kashipur and lodged the said FIR with the police. The police registered the FIR being Crime No. 160 of 1987 on 13-5-1987, at about 11.20 a.m against all the eight accused persons relating to offences punishable under Sections 147, 148, 149, 307 and 302 IPC and thereafter started investigation.

6. Shri R.S Lal Sharma, Sub-Inspector (PW 9) was entrusted with the investigation in the matter. He accompanied by Kalyan Singh (PW 7), another Sub-Inspector, reached the spot. The dead bodies were taken by the police into their custody. The dead bodies were sealed and sent for post-mortem examination. The police prepared inquest reports, Police Form No. 13, sketch of the dead bodies, sketch map of the spot and the letters requesting the Medical Superintendent, for post-mortem examination of the dead bodies. The police also collected the unstained soil and bloodstained soil from the place of incident along with empty shells of cartridges as well as live cartridges and duly sealed the same on the spot and prepared memorandums.

7. Meanwhile, on the same day i.e on 13-5-1987 injuries on the person of Jamil Ahmad (PW 2) and Mobin (PW 3), were got examined in L.D Bhatt Civil Hospital, Kashipur, at about 12.00 noon and their injury reports were prepared by the Medical Officer on duty. Post-mortem examination on the dead bodies of Asgar and Shakil was conducted on the next day i.e 14-5-1987 at 10.00 a.m and 10.30 a.m respectively by Dr. D.K Lumba, who prepared the post-mortem examination reports.

8. During investigation, the witnesses were interrogated and all the accused were arrested. From the possession of appellant-accused Akhtar, a pistol, used in the crime, was recovered. The said country-made pistol along with empty shells of cartridges, recovered from the spot itself by the police, were sent to the ballistic expert, who gave its report supporting the prosecution case.

9. On completion of investigation the police submitted charge-sheet on 30-5-1987 against all the eight appellant-accused, namely, Akhtar, Mohd. Umar, Nuru, Rais alias Gabru, Yamin, Yasin and Amir Bux and Alla Bux. The Additional Chief Judicial Magistrate, Kashipur took cognizance of the case and committed the case to the Court of Session, Nainital.

10. The learned Sessions Judge, Nainital after hearing the prosecution and the defence, framed charges on 3-5-1988. Whereas the accused Akhtar was charged with the offences under Sections 148, 302, 307 and 324 read with Section 149 IPC, the co-accused Mohd. Umar, Nuru, Rais alias Gabru, Yamin and Yasin were charged with offences under Sections 148, 302/149, 307/149 and 324/149 IPC. The co-accused Amir Bux and Alla Bux were, however, charged with offences under Sections 147, 302/149, 307/149 and 324/149 IPC.

11. The trial court by its order dated 20-6-1989 held that the charges framed against the accused were not proved beyond reasonable doubt and consequently acquitted them of all the charges framed against them. Aggrieved by this order the State filed an appeal before the Allahabad High Court on 29-9-1989 in which leave was granted under Section 378(3) of the Code of Criminal Procedure, 1973 (in short “CrPC”) on 21-5-1992. However, the said appeal came to be transferred for its disposal to the High Court of Uttaranchal at Nainital under Section 35 of the U.P Reorganisation Act, 2000.

12. It is also to be mentioned at this stage that accused Akhtar, Yasin and Alla Bux died during the pendency of the appeal in the High Court and, therefore, the said appeal stood abated so far those three accused were concerned. The High Court of Uttaranchal allowed the appeal preferred by the State and set aside the judgment and order of the trial court dated 23-6-1989 and ordered for conviction of all the surviving five accused.

13. Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux and Yamin were convicted under Sections 148, 302 read with Section 149, Section 324 read with Section 149 IPC. Considering relevant factors on the question of sentence, Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux and Yamin were given rigorous imprisonment for a period of one year under Section 148 IPC; imprisonment for life under Section 302 read with Section 149 IPC; rigorous imprisonment for a period of five years under Section 307 read with Section 149 IPC; and rigorous imprisonment for a period of one year under Section 324 read with Section 149 IPC. The appeal against accused Akhtar, Yasin, Alla Bux abated due to their death during the pendency of the appeal in the High Court. Aggrieved by the said decision of the High Court, the five appellants have preferred the present appeal under Section 379 CrPC.

14. Before dwelling further into the matter, it would be pertinent to mention here that the ante-mortem injuries were found on the body of two deceased and injuries were also found on the body of informant Jamil (PW 2) and Mobin (PW 3). The first post-mortem examination report, genuineness of which has been admitted by the defence, discloses that autopsy was conducted on 14-5-1987 at 10.30 a.m on the dead body of Shakil by Dr. A.K Lumba. Another post-mortem examination report, genuineness of which has also been admitted by the defence, discloses that autopsy was conducted on the dead body of Asgar on 14-5-1987 at about 10.00 a.m by Dr. A.K Lumba. In the opinion of the Medical Officer, both Shakil and Asgar died on account of shock and haemorrhage resulting due to ante-mortem injuries.

15. The medical report with respect to the injuries caused to two eyewitnesses, namely, Jamil Ahmad and Mobin, genuineness of which has also been admitted by the defence counsel, discloses that on 13-5-1987 at about 12.15 p.m, injuries were found on the body of Jamil Ahmad (PW 2) by the Medical Officer who examined the injured at L.D Bhatt Civil Hospital, Kashipur.

16. In the opinion of the Medical Officer the injuries were fresh and simple in nature, caused by sharp-edged weapon. The same Medical Officer also examined PW 3, Mobin and opined that four injuries were caused by some hard, blunt object and two injuries were caused by a firearm and all the injuries were fresh in duration. Admittedly, there is no dispute as far as the genuineness of the injury reports, post-mortem reports and also the genuineness of the ballistic expert's report is concerned. As the defence has already admitted the same, no useful purpose would be served to discuss those reports again.

17. Undisputedly, it was a daylight incident, the motive of the accused was also established on record. There is concurrent finding of the trial court as well as of the High Court that there did exist enmity between the complainant party and the accused regarding ownership and possession on Khasra No. 967. Jamil Ahmad (PW 2) and Mobin (PW 3) in their depositions have stated that on account of dispute and litigation with regard to Khasra No. 967 the accused bore enmity against them (the complainant) and the accused were on the lookout to kill them (the complainant).

18. In Krishan v. State of Haryana (2006) 12 SCC 459 this Court has taken the view that if the prosecution case is supported by two injured eyewitnesses and if their (injured eyewitnesses) testimony is consistent before the police and the court and corroborated by the medical evidence, their testimony cannot be discarded. Similarly, in Surender Singh v. State of Haryana (2006) 9 SCC 247 this Court has opined that:

“9. The testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence, lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes.”

This Court has taken the view in State of M.P v. Mansingh (2003) 10 SCC 414 that:

“9. The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.”

19. It was contended by the appellant that the testimony of Jamil Ahmad (PW 2) and Mobin (PW 3) cannot be relied on as these two eyewitnesses were allegedly highly interested witnesses and were related to the deceased. In our considered view, merely because the witnesses in question were related to the deceased cannot be a ground for non-acceptance of their evidence, which otherwise was found to be trustworthy. It is true that these two witnesses are related to the deceased but at the same time one cannot lose sight of the fact that these two witnesses were also injured witnesses. It is extremely difficult to believe that the injured witnesses who themselves got injured and whose close relatives lost their lives would shield the real culprits and name somebody else only due to some enmity. The defence had ample opportunity to cross-examine these two injured eyewitnesses but records show that no suggestions were put to them as to how they received the injuries, mentioned in the medical reports. In fact, various documents filed by the defence with respect to litigation among themselves itself give the unmistakable impression that there was indeed motive to attack the deceased and the injured witnesses.

20. Though declared hostile by the prosecution, Radhey Shyam (PW 4), another eyewitness who was the driver of the tractor on that day at the place of occurrence substantially corroborated the prosecution version to the extent that on the date of occurrence at 10.00 a.m he was ploughing the field of the deceased when some 7-8 persons reached there, he got frightened and ran away from the place of occurrence. This independent witness has supported the date, time and place of the incident as deposed by the two injured eyewitnesses, namely, Jamil Ahmad (PW 2) and Mobin (PW 3). Further, even if the recovery of the pistol has not been proved beyond reasonable doubt, the testimony of the two injured eyewitnesses, which is quite consistent and has further been corroborated by the medical evidence, cannot be disbelieved.

21. It has been argued that non-examination of the medical officers concerned is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post-mortem examination reports before the trial court. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 CrPC. It is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under sub-section (3) of Section 294 CrPC. Accordingly, the post-mortem report, if its genuineness is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined.

22. With regard to the contention of semi-digested food being found in the stomach of the deceased, it has been contended that both the deceased were fasting as it was the holy month of Ramzan. So, it was argued that there could not have been semi-digested food in their stomach at 10.00 a.m We are unable to accept this contention as it is common knowledge that during holy Ramzan heavy food is taken before sunrise.

23. Jamil Ahmad (PW 2) stated that Shakil (the deceased) had taken “sahri” i.e morning food taken by Muslims before sunrise on a fasting day. Since the incident was of the month of May, there cannot be denial of the fact that after a period of five hours, there could be some semi-digested food in the stomach of the deceased which has in fact been confirmed by the doctor conducting the post-mortem examination. There might be some minor contradiction in the prosecution version but the same would not render the trial fatal. The evidence adduced in the present case, despite minor discrepancies, clearly establishes the involvement of the appellant-accused on the date of occurrence.

24. In Sardul Singh v. State of Punjab 1993 Supp (3) SCC 678, where some semi-digested food was found in the stomach of the deceased therein although there was evidence that they had taken food immediately before the occurrence, this Court held as under:

“6. We see absolutely no reason to discredit the evidence of the three eyewitnesses whose presence cannot be doubted. Now coming to the semi-digested food, it cannot be ruled out that the old lady might not have eaten anything earlier. Merely because the illiterate witnesses stated that they took their meals immediately before the occurrence cannot by itself be a circumstance to discredit their evidence on the basis of medical evidence regarding the presence of semi-digested food. It is also clear from the textbooks on medical jurisprudence that the stomach contents cannot be determined with precision at the time of death. As rightly held by the High Court, the trial court grossly erred in basing its verdict mainly on the nebulous medical observation.”

This position of law has been recently reiterated by this Court in Virendra v. State of U.P (2008) 16 SCC 582, (2008) 15 Scale 283

25. In view of the aforesaid discussion, we do not find any infirmity in the judgment and order passed by the High Court. Accordingly, the appeal filed by the appellants herein is dismissed.

26. The High Court's decision against each accused i.e Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux and Yamin convicted under Sections 148, 302/149, 307/149 and Sections 324/149 IPC and sentenced to rigorous imprisonment for a period of one year under Section 148 IPC, imprisonment for life under Sections 302/149 IPC, rigorous imprisonment for a period of five years under Sections 307/149 IPC and rigorous imprisonment for a period of one year under Sections 324/149 IPC, is hereby upheld. The sentences awarded to them shall run concurrently.