Thursday, April 18, 2024

Allahabad High Court denies bail to murder accused, says quality of evidence matters more than number of witnesses

The Allahabad High Court has dismissed an appeal saying that in the matter of appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence, which is important.

The Division Bench of Justice Ramesh Sinha and Justice Renu Agarwal passed this order, while hearing a criminal appeal filed by Mumtazim and Others.

The appeal under Section 374 (2) CrPC has been preferred by the convicted appellants Muntazim, Mustaqim, Rhimuddin and Idris against the order dated 19.09.1984 passed by H.L Kurel III Additional Sessions Judge, Barabanki in Sessions Trial convicting and sentencing the appellants under Section 147 IPC to undergo one year rigorous imprisonment, and to further undergo 1½ years rigorous imprisonment under Section 148 IPC and to undergo life imprisonment under Section 302 IPC read with section 149 IPC.

In this case, the deceased Haji Majid Ashraf Khan owned a house in Village Sipahiya, Police Station Mawai District Barabanki. He had raised his house on his own land adjoining his house. The accused Idris claimed adjoining land. There was an unfriendly atmosphere between the two families. A case was registered against the accused but he was acquitted of that offence. On account of this enmity, accused Idris had beaten Haji Ashraf Khan at Madhwa Nala.

Parnala of the complainant’s house falls in Kolia between the house of the complainant and the accused Muntazim. The accused person had taken out parnala, raised a wall in the said kolia and prevented thereby flow of water of parnala. When the father of the complainant abstained the accused appellants from doing so, the accused started abusing and threatening his father. Complainant went to register a report in this regard to the police station concerned but the accused restrained their way and kept a watch standing in the ambush on their way. Therefore, they could not lodge the FIR immediately.

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The complainant along with other relatives Ejaz and Ashraf moved to the police station at about 4 p.m. As soon as they reached ‘Phool ka talab’ near Naya Purwa all the accused persons appeared from their hiding place in the Behaya and chased them. The complainant any how managed to escaped by raising alarm but Haji Ashraf was an old man, therefore, he was overpowered by the accused Idris holding Ballam, accused Muntazir holding axe and the rest of accused person with lathi and continued to beat the deceased till his death near the house of Jagjeevan. The incident was witnessed by Sifat Ahmad, Abrar Ahmad, Nizamuddin, Ejaz Ahmad, Shahnawaz and Shabbir.

The matter was reported to police station Mawai and a case was registered as Crime under Section 147, 148, 149 , 302 IPC Police Station Mawai.

After collecting all the relevant evidence and noting down the result of the post-mortem, the Investigating Officer submitted a charge sheet in the court under Section 147, 148, 149, 302 IPC.

After hearing both the parties and perusal of the record, the Trial Court reached to the conclusion that the prosecution has succeeded in proving the guilt to hilt against the accused and all of them were found guilty in Sessions Trial arising out of Crime under Section 302, 147, 148, 149 IPC Police Station Mawai District Barabanki.

Aggrieved by the order the appeal has been preferred by the convict appellants.

It is contended by the counsel for the appellants that the judgment passed by the trial court is erred in law and on facts. The evidence on record is most tenuous, limping, shaky, suspicious and fragile and the conviction cannot be sustained. The trial court misread the evidence on record and did not properly appreciate the veracity of the prosecution case as the prosecution case is absolutely inconsistent from the very beginning.

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On the contrary Arunendra, A.G.A for the State has argued that it is a case based on ocular evidence.

Mushtjab Ahmad is the son of the deceased and Nijamuddin is the eye-witness of the incident of murder. He is an independent witness who witnessed the incident and therefore there is no reason to disbelieve the witnesses. The injuries are corroborated by the eye-witnesses and the post-mortem report. The evidence against the appellants is proved beyond reasonable doubt. Place of occurrence is also established by the investigating officer. There is no error in the judgment and order passed by the court below, hence, the appeal is liable to be dismissed.

The Court noted that,

In the matter, the complainant has alleged in the FIR that on account of previous animosity regarding the flow of water parties have strained relations and on 07.08.1979, at about 4 p.m he was going to the police station to lodge FIR against the accused persons, he was assaulted by the accused persons near ‘phool ka talab’. The complainant and Ejaz escaped from the place of occurrence however, Haji Ashraf being an old man could not escape and was killed by the accused.

It is argued on behalf of the appellants that the presence of the complainant on the place of occurrence is highly improbable. He is the son of the deceased. He did not try to save his father and allowed his father to die in this marpit. His conduct is not natural and convincing but according to prosecution story all the six accused having deadly weapons attacked them when he was going along with the deceased and Ejaz to the police station Mawai to lodge FIR in the police station about the incident that took place in the forenoon of that day regarding the obstruction in the flow of parnala by constructing wall by accused. He is the natural witness who accompanied his father while going to the police station for lodging the FIR. There is no evidence on record to show that the deceased had any other son alive who might have accompanied him. Therefore, it is very natural conduct of the complainant that he was going to lodge an FIR with his father (now deceased) and close relatives who described the incident in the court on oath.

According to the prosecution case the accused assaulted the deceased with lathi and ballam. Muntazim attacked with an axe. Therefore, the injuries found on the person of the deceased are in consonance with the case of prosecution as well as corroborated by prosecution witnesses.

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It is argued by the counsel for the accused appellant that none of the injuries were found on the face of the deceased. As per the panchnama the dead body was found lying, keeping the face downwards. The deceased was killed by lathi blows. It is the natural conduct of human beings that when he is assaulted by someone, he raises his hands first to save his face or head. It transpires from the post-mortem report that both of his hands were fractured which goes to show that the deceased himself had sustained blows of lathis on his hand and must have saved his face. Moreover, the incident is witnessed by ocular evidence who proved the incident by their cogent evidence.

The Court said that so far as the motive is concerned, motive loses its importance when there is ocular evidence. However, in the impugned case the motive is very much clear. There was a dispute regarding flow of parnala and the accused closed the parnala of the deceased and raised their wall. In the forenoon also the dispute arose regarding the obstruction of flow of water from parnala by the construction of wall and FIR was also lodged by the mother of accused themselves which proved that there was animosity between the parties and due to this animosity accused assaulted the deceased when he was going to lodge FIR in the police station.

“The trial court had discussed the evidence at length. From the perusal of the record of the trial court it transpires that there was a dispute regarding flow of water in Parnala which was obstructed by the accused and the quarrel took place in the fore-noon of fateful day. The ocular evidence adduced by the prosecution has proved the prosecution case in court. The Motivation is well established. Place of occurrence is proved by the prosecution as blood stain earth was collected from the place of occurrence and blood stains were found on kurta, tehmat and gamcha of the deceased.

According to the forensic science laboratory report human blood was found in the sample. The injuries found on the body of the deceased are well in consonance with the prosecution case. Accused Mustakim was said to have an axe in his hand at the time of incident however, no injury of axe was found on the body of the deceased. It is stated that Mustakim was using the stick of an axe and his presence at the place of occurrence was proved.

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It is also stated that the motive accrue only to accused Israr who has expired during the course of trial but it is admitted in the statement of Section 313 Cr.P.C and during the course of evidence that all the accused formed unlawful assembly and attacked the deceased with common object to kill him. The participation of all the accused is proved in this incident.

The trial court discussed the evidence of all prosecution witnesses and formal witnesses at length. There is no infirmity or perversity in the order passed by the trial court.

Hence, we do not find any reason to interfere with the judgment of the trial court passed in Sessions Trial whereby the accused are convicted by the trial court”, the Court observed while dismissing the appeal.

“The accused appellants-Muntazim, Mustaqim, Rahimuddin and Idris are on bail. Their bail bonds stand cancelled and sureties discharged they are directed to surrender before the concerned Court within a period of two weeks,” the Court ordered.


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