We are of the view that relationship of PW-1 Dolly with deceased Smt. Hajjan Shakila Bano being blood relative, is not a reason to discard her evidence because her evidence is otherwise trustworthy. Mechanical rejection of her evidence would lead to the failure of justice.
30. Despite lengthy cross-examination, nothing has been elicited to discredit and discard her testimony, which has remained unshattered and consistent.
31. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. Falsity of a particular material witness or material particular would not ruin it from the beginning to the end. The maxim "falsus in uno falsus in omnibus" has no application in India.
32. In the case of Ramesh Harijan Vs. State of Uttar Pradesh, (2012) 5 Supreme Court Cases 777, it has been held that :-
"C. Criminal Trial - Appreciation of Evidence - Contradictions, inconsistencies, exaggerations or embellishments - Duty of courts - Reiterated - Held, it is duty of court to unravel the truth under all circumstances - Undue importance not to be given to minor discrepancies which do not shake basic version of prosecution case - Entire evidence must be evaluated by excluding exaggerated version as witnesses keep adding embellishments to their testimony - If a witness is otherwise trustworthy, then his evidence should not be disbelieved - If major portion is found to be deficient and residue is sufficient to establish guilt of accused, then courts must separate grain from chaff - It has to be appraised in each case as to what extent evidence is admissible - If courts consider some portion of evidence as insufficient or unworthy, it does not mean as a matter of law that entire evidence must be disregarded in all respects"
"E. Criminal Trial - Appreciation of Evidence - Credibility of witness - Maxim falsus in uno, falsus in omnibus - Inapplicability and effect of, if applied - Principles reiterated - Held, maxim falsus in uno, falsus in omnibus has no application in India and a witness cannot be branded as a liar - Falsity of witness or material particular at some portion would not ruin testimony from beginning to end - If that maxim is applied then in all the cases it is to be feared that administration of criminal justice would come to a dead stop"
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2739 of 2008
Abdul Azad V State Of U.P.
Hon'ble Bharat Bhushan,J.
Hon'ble Prabhat Chandra Tripathi,J.
Dated: Dated :- 16.6.2017
1. We have heard Sri I.K. Chaturvedi and Sri Rakesh Kumar Shukla, learned counsel for the sole appellant-Abdul Azad and Sri Ajit Ray, learned A.G.A. for the State-respondent.
2. This criminal appeal has been preferred by the sole appellant Abdul Azad against the judgment and order of the then Additional Sessions Judge, Fast Track Court, Jhansi dated 19.4.2008 in Sessions Trial No. 181 of 2007 arising out of Case Crime No. 207 of 2007, under Section 302 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Nawabad, District Jhansi and in Sessions Trial No. 182 of 2007 arising out of Case Crime No. 317 of 2007, under Section 25/27 Arms Act, Police Station Nawabad, District Jhansi convicting the appellant Abdul Azad under Section 302 I.P.C. and sentencing him to undergo for life imprisonment and also convicting him under Section 25 Arms Act and sentencing him to undergo simple imprisonment for two years and also imposed fine of Rs. 1,000/-. In case of default of payment of fine, one month simple imprisonment was awarded. All the sentences would run concurrently and it was also ordered under Section 428 of The Code of Criminal Procedure, 1973 that the period of detention undergone by the accused to be set off against the sentence of imprisonment.
3. The written F.I.R. in Hindi Vernacular is enumerated as below: -
The applicant Dolly daughter of Abdul Aziz, resident of 938 Jhokan Bagh, Police Station Nawabad, District Jhansi moved a written First Information Report dated 20.2.2007 before the Inspector Incharge Police Station Nawabad, District Jhansi on 20.2.2007 at about 12.20 P.M. that on that day i.e. 20.2.2007 a mild altercation took place between her mother Smt. Hajjan Shakila Bano wife of Abdul Aziz @ Mallu and her stepsister-in-law (Bhabhi) Farzana wife of Azad with regard to 'give and take' of 'Ring and Mangalsutra' of marriage. Her sister-in-law (Bhabhi) had taken back both the Rings from her mother which were gifted in the marriage to her mother then her mother also had taken back Mangalsutra which was given by her mother. On this count, her sister-in-law (Bhabhi) Farzana approached her brother Azad in weeping condition at about 11.15 hours in the day. Thereafter, his brother Azad with intention to kill her mother, who was working in the kitchen, fired at her with country made pistol. Her injured mother was taken away to the hospital by inmates of the house and neighbours. The informant Dolly, her mother and family of her stepbrother Azad used to reside in the upper and lower portions of the same house. Report may be lodged and necessary action may be taken.
4. Upon the written information of the informant, the First Information Report was lodged in case Crime No. 207 of 2007 at Police Station Nawabad, District Jhansi under Section 307 I.P.C. against the named accused person Abdul Azad son of Abdul Aziz, resident of 938, Jhokan Bagh, Police Station Nawabad, District Jhansi.
5. The prosecution has produced the following documentary evidence:-
(1) Written F.I.R. (Exhibit Ka-1), (2) Fard recovery memo of one empty cartridge of 315 bore (Exhibits Ka-2, Ka-4 and Ka-23), (3) Inquest report of the deceased Smt. Hajjan Shakila Bano (Exhibit Ka-3), (4) Postmortem examination report of Smt. Hajjan Shakila Bano (Exhibit Ka-5), (5) Chik F.I.R. (Exhibit Ka-6), (6) Copy of G.D. No. 34 time 12.20 hours date 20.2.2007 (Exhibit Ka-7), (7) Copy of G.D. No. 59 time 22.30 hours date 20.2.2007 in which the case registered under Section 307 I.P.C. was converted under Section 302 I.P.C. due to death of the injured person Smt. Hajjan Shakila Bano (Exhibit-Ka-8), (8) Fard recovery memo of Case Crime No. 317 of 2007, under Section 25/27 Arms Act, Police Station Nawabad, District Jhansi, State Vs. Abdul Azad (Exhibit Ka-9), (9) Copy of G.D. No. 25 date 15.3.2007 time 12.30 hours (Exhibit Ka-10) and other relevant formal documents which were sent after the inquest was conducted of the dead body of Smt. Hajjan Shakila Bano. The inquest was conducted on 20.2.2007 in between 13.45 hours to 14.45 hours and the police papers were sent through constable Jageshwar Verma to Maharani Laxmi Bai Medical College, Jhansi for conducting postmortem examination of the dead body of the deceased Smt. Hajjan Shakila Bano and these police papers were marked as Exhibits Ka-11 to Ka-17, (10) Fard recovery memo of country made pistol and site plan dated 15.3.2007 at 10.05 hours of Case Crime No. 207 of 2007 (Exhibits Ka-18 and Ka-19), (11) Charge sheet dated 11.4.2007 in Case Crime No. 207 of 2007, under Section 302 I.P.C. and Section 7 Criminal Law Amendment Act (Exhibit Ka-20), (12) Statement of the injured Smt. Hajjan Shakila Bano dated 20.2.2007 recorded under Section 161 Cr.P.C. in the Emergency Ward of Maharani Laxmi Bai Medical College, Jhansi by the Sub Inspector Vidya Sagar Dwivedi, Investigating Officer (Exhibit Ka-21) and (13) Site Plan (Exhibit Ka-22).
6. The prosecution has produced following material evidence:-
(1) Weapon of offence country made pistol recovered from the possession of the accused-appellant Abdul Azad and clothes with sample of seal (Exhibits-I and II)
7. The prosecution has produced the following oral evidence:-
PW-1 Dolly, PW-2 Abdul Rashid, PW-3 Dr. Arvind Kumar Jain, PW-4 Constable 229 Ram Prakash Chaudhary, PW-5 Constable 171 Dhana Ram Chaudhary, PW-6 Sub Inspector Jwala Prasad Pandey, PW-7 Sub Inspector Ashwani Kumar Sinha, PW-9 Sub Inspector Vidya Sagar Dwivedi, PW-10 Sub Inspector Shyam Sunder Singh.
8. The accused person has produced following oral evidence in defence:-
DW-1 Har Narayan Raikvar, DW-2 Dr. Dinesh Pratap, Professor of Surgery of Maharani Laxmi Bai Medical College, Jhansi and DW-3 Dr. Mahendra Kumar Bhatia, the Chief Medical Superintendent, Maharani Laxmi Bai Medical College, Jhansi
9. The learned counsel for the accused person-appellant Abdul Azad has advanced his arguments on the following points:-
(a) The F.I.R. is ante-timed.
(b) Presence of the witnesses at the scene of occurrence is doubtful.
(c) The prosecution has not produced any independent witness.
(d) The informant was known to the present accused-appellant.
(e) The investigation is partisan, erroneous, baseless and site plan is a total mismatch.
10. Lastly, as an alternative argument, learned counsel for the accused person-appellant has also advanced his arguments on the following point:-
The offence (if any) committed by the accused person-appellant is covered under Section 304 (Para I) of The Indian Penal Code (hereinafter referred to as I.P.C.)
11. Learned counsel for the accused person-appellant has also argued that PW-1 informant Dolly has not appended her signature on the written application-First Information Report dated 20.2.2007 (Exhibit Ka-1) and this fact has been admitted by other prosecution witnesses. It is strange that one bullet was recovered at the place of incident whereas one bullet was found inside the dead body of Smt. Hajjan Shakila Bano in her postmortem report. There was no motive to commit the crime. PW-2 Abdul Rashid was declared hostile whereas witnesses Hussain Mohammad @ Sannoo and Abdul Kadir, who were mentioned as witnesses in the charge sheet, were discharged by the prosecution. It has been deposed by the prosecution witnesses that six families resided in that building but none turned up to support the prosecution version. PW-1 Dolly did not mention this fact that at the time of commission of crime, she was washing the clothes.
12. It was further argued by learned counsel for the accused-appellant that PW-1 Dolly has deposed that she did not accompany her mother to the hospital, which is very unnatural conduct as PW-1 Dolly was the eldest daughter of her mother. She should have accompanied her mother to the hospital for the treatment. The cross examination of PW-1 Dolly is a total mismatch to the site plan, due to which place of occurrence also becomes doubtful.
13. PW-3 Dr. Arvind Kumar Jain in his examination-in-chief has deposed that rigor mortis was present throughout the body of the deceased and 150 Ml watery fluid was present in the stomach whereas PW-1 Dolly has stated in her cross examination that her mother ate two Parathas at half-past nine in the morning. She was unable to depose that whether her mother had answered the call of the nature on the date of the incident.
14. PW-7 Sub Inspector Malkhey Dixit, who recovered the weapon of offence country made pistol from the possession of the accused person Abdul Azad after taking him in police custody remand, has erroneously, baselessly, falsely and illegally recorded this recovery. The statement of the injured Smt. Hajjan Shakila Bano dated 20.2.2007 recorded in the Emergency Ward of Maharani Laxmi Bai Medical College, Jhansi under Section 161 Cr.P.C. is in contravention of Rule 115 of the Uttar Pradesh Police Regulations because (i) it is not certified by any attending doctor and (ii) it is not attested by any independent witness.
15. PW-1 Dolly has deposed that this statement of her mother was recorded after removing Endo Tracheal Tube of her mother whereas it has not been stated as such by PW-9 Sub Inspector Vidya Sagar Dwivedi.
16. The argument of learned counsel for the accused appellant that the F.I.R. is ante-timed may be discussed in the light of evidence on record.
17. This fact is of paramount importance that the F.I.R. was lodged under Section 307 I.P.C. on 20.2.2007 at 12.20 hours (Noon) and on the same day i.e. 20.2.2007 the offence was converted from Section 307 I.P.C. to offence under Section 302 I.P.C. and entry to this regard was made in the General Diary No. 59 dated 20.2.2007 at 22.30 hours. Thus, there is nothing on record which could substantiate that the F.I.R. (Exhibit Ka-1) and Chik F.I.R. (Exhibit Ka-6) were made ante-timed. Thus, the argument of ante-timing of F.I.R. is not sustainable.
18. Much emphasis has been laid upon by the learned counsel for the accused-appellant that PW-1 Dolly has deposed against the appellant due to certain ulterior motive. She wanted to extract the money from her father which he allegedly received in lieu of entering into compromise in murder trial of brother of appellant.
19. At the first blush, the argument of the learned counsel for the accused-appellant appears to be attractive but on close scrutiny, it is of no avail because there is no supporting evidence in this regard. It was a mere formality to put suggestions in the cross-examination of PW-1 Dolly to malign her trustworthiness.
20. The main motive of the alleged crime has been specifically deposed by PW-1 Dolly. The manner of crime and the condition of the deceased Smt. Hajjan Shakila Bano in which she was rushed to the hospital also requires close and minute analysis. The injury report of Smt. Hajjan Shakila Bano dated 20.2.2007 at 11.50 A.M. (Exhibit Kha-1) mentions in the margin, "GC Poor. Pulse not palpate. Gasping condition. B.P. Not recordable. Abd. bleeding + at present tense and rigidity present."
21. Case sheet of the deceased Smt. Hajjan Shakila Bano (Exhibit Kha-2) dated 20.2.2007 shows that before the column 'expired' time has been mentioned as 'at 01.05 P.M. on 20/02/07'. Thus, every fraction of the second was crucial when Smt. Hajjan Shakila Bano was admitted in the hospital.
22. PW-9 Sub Inspector Vidya Sagar Dwivedi has tried his level best to record the statement of Smt. Hajjan Shakila Bano while she was admitted in the hospital. It is correct that formalities provided while recording her dying declaration could not be completed because of the aforementioned specific, crucial and critical condition of Smt. Hajjan Shakila Bano. Such piece of evidence (Exhibit Ka-21) may not be discarded in it's totality. This may be an irregular exercise of procedure but it is not illegal.
23. In the pursuit of search of truth this exercise was conducted by the Sub Inspector Vidya Sagar Dwivedi, Investigating Officer. It could not be said that her statement could be connected into one exculpative of the accused.
24. PW-3 Dr. Arvind Kumar Jain, who conducted the postmortem upon the dead body of Smt. Hajjan Shakila Bano on 20.2.2007 at 4.25 P.M., was posted as Medical Officer at Maharani Laxmi Bai Medical College, Jhansi and noted following injuries on her body:-
25. A gun shot entry wound of 2x.5 cm over lower chest and upper abdomen left side 14 cm below nipple and 14 cm about and out umblicus, margins are inverted clear cavity deep wound dressing + an area of 16x12 cm around wound colour. Multiple brownish small hemorrhage present cut open mark over both ankles, arms.
26. Cavity filled with blood. One bullet yellow full with free and matter recovered clotted.
27. Cause of death was recorded hemorrhage and shock as a result of ante-mortem firearm injury to the vital organ.
28. Ante-mortem injuries of Smt. Hajjan Shakila Bano mention firearm injury to the vital organ. Report of Forensic Science Laboratory U.P., Agra dated 10.07.2007 as noted down in the result of the test has mentioned that human blood was found upon the clothes and jewellery of beading of pearls which were worn by Smt. Hajjan Shakila Bano at the time of the incident. This report of the Forensic Science Laboratory U.P., Agra can be read in evidence under Section 294 Cr.P.C.
29. We are of the view that relationship of PW-1 Dolly with deceased Smt. Hajjan Shakila Bano being blood relative, is not a reason to discard her evidence because her evidence is otherwise trustworthy. Mechanical rejection of her evidence would lead to the failure of justice.
30. Despite lengthy cross-examination, nothing has been elicited to discredit and discard her testimony, which has remained unshattered and consistent.
31. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. Falsity of a particular material witness or material particular would not ruin it from the beginning to the end. The maxim "falsus in uno falsus in omnibus" has no application in India.
32. In the case of Ramesh Harijan Vs. State of Uttar Pradesh, (2012) 5 Supreme Court Cases 777, it has been held that :-
"C. Criminal Trial - Appreciation of Evidence - Contradictions, inconsistencies, exaggerations or embellishments - Duty of courts - Reiterated - Held, it is duty of court to unravel the truth under all circumstances - Undue importance not to be given to minor discrepancies which do not shake basic version of prosecution case - Entire evidence must be evaluated by excluding exaggerated version as witnesses keep adding embellishments to their testimony - If a witness is otherwise trustworthy, then his evidence should not be disbelieved - If major portion is found to be deficient and residue is sufficient to establish guilt of accused, then courts must separate grain from chaff - It has to be appraised in each case as to what extent evidence is admissible - If courts consider some portion of evidence as insufficient or unworthy, it does not mean as a matter of law that entire evidence must be disregarded in all respects"
"E. Criminal Trial - Appreciation of Evidence - Credibility of witness - Maxim falsus in uno, falsus in omnibus - Inapplicability and effect of, if applied - Principles reiterated - Held, maxim falsus in uno, falsus in omnibus has no application in India and a witness cannot be branded as a liar - Falsity of witness or material particular at some portion would not ruin testimony from beginning to end - If that maxim is applied then in all the cases it is to be feared that administration of criminal justice would come to a dead stop"
"G. Criminal Trial - Proof - Proof beyond reasonable doubt - Meaning of, and duty of court while applying principle of reasonable doubt - Reiterated - Held, reasonable doubt is not an imaginary trivial or merely possible doubt - It is a fair doubt based upon reason and common sense - Doctrine of benefit of doubt particularly in every case must not nurture fanciful doubts or lingering suspicion, thus destroying social defence- Courts must give paramount importance to ensure that miscarriage of justice is avoided.
33. Learned A.G.A. has also placed reliance on a decision of the Supreme Court in the case of Laxman Vs. State of Maharashtra, (2002) 6 Supreme Court Cases 710 in support of his arguments.
34. No other points have been raised before us by the learned counsel for the accused-appellant.
35. We believe that the prosecution has proved its case against the appellant beyond all reasonable doubt as far as factum of incident is concerned. However, it is evident that the entire incident occurred within the family in the fit of rage. Row erupted suddenly between women of the family in which the appellant got involved. The evidence reveals that the crime was committed on the spur of moment without any premeditation. The fact that a single shot was discharged is also relevant. The record reveals that the appellant is not a criminal and that he acted in the heat of passion. We believe that the entire offence committed by the appellant Abdul Azad falls within the ambit of Section 304 (Para I) I.P.C.
36. In view of the above, the appeal is partly allowed. Accordingly the judgement and order dated 19.04.2008 passed by the learned Additional Sessions Judge, Fast Track Court, Jhansi in Sessions Trial No.181 of 2007 (State Vs. Abdul Azad), arising out of Case Crime No.207 of 2007, under Section 302 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Nawabad, District Jhansi and in Sessions Trial No. 182 of 2007, arising out of Case Crime No. 317 of 2007, under Section 25/27 Arms Act, Police Station Nawabad, District Jhansi is set aside.
ORDER
(i) The accused-appellant Abdul Azad is held guilty under Section 304 (Para I) of the Indian Penal Code, 1860 and is convicted and sentenced to imprisonment for ten years and also liable to pay fine of Rs. 1000/- only. In case of default of payment of fine, he shall undergo one month simple imprisonment.
(ii) The accused appellant Abdul Azad is held guilty under Section 25 Arms Act and is convicted and sentenced to imprisonment for two years and also liable to pay a fine of Rs.1000/-. In case of default of payment of fine, he shall undergo one month simple imprisonment.
(iii) All the sentences awarded to the accused-appellant Abdul Azad shall run concurrently.
(iv) The accused-appellant Abdul Azad shall get benefit of Section 428 of the Code of Criminal Procedure, 1973 and period of detention undergone by the accused-appellant be set off against the sentence of imprisonment.
(v) The accused-appellant Abdul Azad is in judicial custody since 02.03.2007. The accused-appellant Abdul Azad has completed and undergone the period of sentence already awarded to him. In this criminal case he shall be released from District Jail, Jhansi.
Let the entire original record of this case be sent back to the Court of the learned Sessions Judge, Civil and Sessions Court, District Jhansi within 10 days for necessary compliance. The concerned court will report compliance within one month thereafter.
Dated :- 16.6.2017
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30. Despite lengthy cross-examination, nothing has been elicited to discredit and discard her testimony, which has remained unshattered and consistent.
31. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. Falsity of a particular material witness or material particular would not ruin it from the beginning to the end. The maxim "falsus in uno falsus in omnibus" has no application in India.
32. In the case of Ramesh Harijan Vs. State of Uttar Pradesh, (2012) 5 Supreme Court Cases 777, it has been held that :-
"C. Criminal Trial - Appreciation of Evidence - Contradictions, inconsistencies, exaggerations or embellishments - Duty of courts - Reiterated - Held, it is duty of court to unravel the truth under all circumstances - Undue importance not to be given to minor discrepancies which do not shake basic version of prosecution case - Entire evidence must be evaluated by excluding exaggerated version as witnesses keep adding embellishments to their testimony - If a witness is otherwise trustworthy, then his evidence should not be disbelieved - If major portion is found to be deficient and residue is sufficient to establish guilt of accused, then courts must separate grain from chaff - It has to be appraised in each case as to what extent evidence is admissible - If courts consider some portion of evidence as insufficient or unworthy, it does not mean as a matter of law that entire evidence must be disregarded in all respects"
"E. Criminal Trial - Appreciation of Evidence - Credibility of witness - Maxim falsus in uno, falsus in omnibus - Inapplicability and effect of, if applied - Principles reiterated - Held, maxim falsus in uno, falsus in omnibus has no application in India and a witness cannot be branded as a liar - Falsity of witness or material particular at some portion would not ruin testimony from beginning to end - If that maxim is applied then in all the cases it is to be feared that administration of criminal justice would come to a dead stop"
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2739 of 2008
Abdul Azad V State Of U.P.
Hon'ble Bharat Bhushan,J.
Hon'ble Prabhat Chandra Tripathi,J.
Dated: Dated :- 16.6.2017
1. We have heard Sri I.K. Chaturvedi and Sri Rakesh Kumar Shukla, learned counsel for the sole appellant-Abdul Azad and Sri Ajit Ray, learned A.G.A. for the State-respondent.
2. This criminal appeal has been preferred by the sole appellant Abdul Azad against the judgment and order of the then Additional Sessions Judge, Fast Track Court, Jhansi dated 19.4.2008 in Sessions Trial No. 181 of 2007 arising out of Case Crime No. 207 of 2007, under Section 302 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Nawabad, District Jhansi and in Sessions Trial No. 182 of 2007 arising out of Case Crime No. 317 of 2007, under Section 25/27 Arms Act, Police Station Nawabad, District Jhansi convicting the appellant Abdul Azad under Section 302 I.P.C. and sentencing him to undergo for life imprisonment and also convicting him under Section 25 Arms Act and sentencing him to undergo simple imprisonment for two years and also imposed fine of Rs. 1,000/-. In case of default of payment of fine, one month simple imprisonment was awarded. All the sentences would run concurrently and it was also ordered under Section 428 of The Code of Criminal Procedure, 1973 that the period of detention undergone by the accused to be set off against the sentence of imprisonment.
3. The written F.I.R. in Hindi Vernacular is enumerated as below: -
The applicant Dolly daughter of Abdul Aziz, resident of 938 Jhokan Bagh, Police Station Nawabad, District Jhansi moved a written First Information Report dated 20.2.2007 before the Inspector Incharge Police Station Nawabad, District Jhansi on 20.2.2007 at about 12.20 P.M. that on that day i.e. 20.2.2007 a mild altercation took place between her mother Smt. Hajjan Shakila Bano wife of Abdul Aziz @ Mallu and her stepsister-in-law (Bhabhi) Farzana wife of Azad with regard to 'give and take' of 'Ring and Mangalsutra' of marriage. Her sister-in-law (Bhabhi) had taken back both the Rings from her mother which were gifted in the marriage to her mother then her mother also had taken back Mangalsutra which was given by her mother. On this count, her sister-in-law (Bhabhi) Farzana approached her brother Azad in weeping condition at about 11.15 hours in the day. Thereafter, his brother Azad with intention to kill her mother, who was working in the kitchen, fired at her with country made pistol. Her injured mother was taken away to the hospital by inmates of the house and neighbours. The informant Dolly, her mother and family of her stepbrother Azad used to reside in the upper and lower portions of the same house. Report may be lodged and necessary action may be taken.
4. Upon the written information of the informant, the First Information Report was lodged in case Crime No. 207 of 2007 at Police Station Nawabad, District Jhansi under Section 307 I.P.C. against the named accused person Abdul Azad son of Abdul Aziz, resident of 938, Jhokan Bagh, Police Station Nawabad, District Jhansi.
5. The prosecution has produced the following documentary evidence:-
(1) Written F.I.R. (Exhibit Ka-1), (2) Fard recovery memo of one empty cartridge of 315 bore (Exhibits Ka-2, Ka-4 and Ka-23), (3) Inquest report of the deceased Smt. Hajjan Shakila Bano (Exhibit Ka-3), (4) Postmortem examination report of Smt. Hajjan Shakila Bano (Exhibit Ka-5), (5) Chik F.I.R. (Exhibit Ka-6), (6) Copy of G.D. No. 34 time 12.20 hours date 20.2.2007 (Exhibit Ka-7), (7) Copy of G.D. No. 59 time 22.30 hours date 20.2.2007 in which the case registered under Section 307 I.P.C. was converted under Section 302 I.P.C. due to death of the injured person Smt. Hajjan Shakila Bano (Exhibit-Ka-8), (8) Fard recovery memo of Case Crime No. 317 of 2007, under Section 25/27 Arms Act, Police Station Nawabad, District Jhansi, State Vs. Abdul Azad (Exhibit Ka-9), (9) Copy of G.D. No. 25 date 15.3.2007 time 12.30 hours (Exhibit Ka-10) and other relevant formal documents which were sent after the inquest was conducted of the dead body of Smt. Hajjan Shakila Bano. The inquest was conducted on 20.2.2007 in between 13.45 hours to 14.45 hours and the police papers were sent through constable Jageshwar Verma to Maharani Laxmi Bai Medical College, Jhansi for conducting postmortem examination of the dead body of the deceased Smt. Hajjan Shakila Bano and these police papers were marked as Exhibits Ka-11 to Ka-17, (10) Fard recovery memo of country made pistol and site plan dated 15.3.2007 at 10.05 hours of Case Crime No. 207 of 2007 (Exhibits Ka-18 and Ka-19), (11) Charge sheet dated 11.4.2007 in Case Crime No. 207 of 2007, under Section 302 I.P.C. and Section 7 Criminal Law Amendment Act (Exhibit Ka-20), (12) Statement of the injured Smt. Hajjan Shakila Bano dated 20.2.2007 recorded under Section 161 Cr.P.C. in the Emergency Ward of Maharani Laxmi Bai Medical College, Jhansi by the Sub Inspector Vidya Sagar Dwivedi, Investigating Officer (Exhibit Ka-21) and (13) Site Plan (Exhibit Ka-22).
6. The prosecution has produced following material evidence:-
(1) Weapon of offence country made pistol recovered from the possession of the accused-appellant Abdul Azad and clothes with sample of seal (Exhibits-I and II)
7. The prosecution has produced the following oral evidence:-
PW-1 Dolly, PW-2 Abdul Rashid, PW-3 Dr. Arvind Kumar Jain, PW-4 Constable 229 Ram Prakash Chaudhary, PW-5 Constable 171 Dhana Ram Chaudhary, PW-6 Sub Inspector Jwala Prasad Pandey, PW-7 Sub Inspector Ashwani Kumar Sinha, PW-9 Sub Inspector Vidya Sagar Dwivedi, PW-10 Sub Inspector Shyam Sunder Singh.
8. The accused person has produced following oral evidence in defence:-
DW-1 Har Narayan Raikvar, DW-2 Dr. Dinesh Pratap, Professor of Surgery of Maharani Laxmi Bai Medical College, Jhansi and DW-3 Dr. Mahendra Kumar Bhatia, the Chief Medical Superintendent, Maharani Laxmi Bai Medical College, Jhansi
9. The learned counsel for the accused person-appellant Abdul Azad has advanced his arguments on the following points:-
(a) The F.I.R. is ante-timed.
(b) Presence of the witnesses at the scene of occurrence is doubtful.
(c) The prosecution has not produced any independent witness.
(d) The informant was known to the present accused-appellant.
(e) The investigation is partisan, erroneous, baseless and site plan is a total mismatch.
10. Lastly, as an alternative argument, learned counsel for the accused person-appellant has also advanced his arguments on the following point:-
The offence (if any) committed by the accused person-appellant is covered under Section 304 (Para I) of The Indian Penal Code (hereinafter referred to as I.P.C.)
11. Learned counsel for the accused person-appellant has also argued that PW-1 informant Dolly has not appended her signature on the written application-First Information Report dated 20.2.2007 (Exhibit Ka-1) and this fact has been admitted by other prosecution witnesses. It is strange that one bullet was recovered at the place of incident whereas one bullet was found inside the dead body of Smt. Hajjan Shakila Bano in her postmortem report. There was no motive to commit the crime. PW-2 Abdul Rashid was declared hostile whereas witnesses Hussain Mohammad @ Sannoo and Abdul Kadir, who were mentioned as witnesses in the charge sheet, were discharged by the prosecution. It has been deposed by the prosecution witnesses that six families resided in that building but none turned up to support the prosecution version. PW-1 Dolly did not mention this fact that at the time of commission of crime, she was washing the clothes.
12. It was further argued by learned counsel for the accused-appellant that PW-1 Dolly has deposed that she did not accompany her mother to the hospital, which is very unnatural conduct as PW-1 Dolly was the eldest daughter of her mother. She should have accompanied her mother to the hospital for the treatment. The cross examination of PW-1 Dolly is a total mismatch to the site plan, due to which place of occurrence also becomes doubtful.
13. PW-3 Dr. Arvind Kumar Jain in his examination-in-chief has deposed that rigor mortis was present throughout the body of the deceased and 150 Ml watery fluid was present in the stomach whereas PW-1 Dolly has stated in her cross examination that her mother ate two Parathas at half-past nine in the morning. She was unable to depose that whether her mother had answered the call of the nature on the date of the incident.
14. PW-7 Sub Inspector Malkhey Dixit, who recovered the weapon of offence country made pistol from the possession of the accused person Abdul Azad after taking him in police custody remand, has erroneously, baselessly, falsely and illegally recorded this recovery. The statement of the injured Smt. Hajjan Shakila Bano dated 20.2.2007 recorded in the Emergency Ward of Maharani Laxmi Bai Medical College, Jhansi under Section 161 Cr.P.C. is in contravention of Rule 115 of the Uttar Pradesh Police Regulations because (i) it is not certified by any attending doctor and (ii) it is not attested by any independent witness.
15. PW-1 Dolly has deposed that this statement of her mother was recorded after removing Endo Tracheal Tube of her mother whereas it has not been stated as such by PW-9 Sub Inspector Vidya Sagar Dwivedi.
16. The argument of learned counsel for the accused appellant that the F.I.R. is ante-timed may be discussed in the light of evidence on record.
17. This fact is of paramount importance that the F.I.R. was lodged under Section 307 I.P.C. on 20.2.2007 at 12.20 hours (Noon) and on the same day i.e. 20.2.2007 the offence was converted from Section 307 I.P.C. to offence under Section 302 I.P.C. and entry to this regard was made in the General Diary No. 59 dated 20.2.2007 at 22.30 hours. Thus, there is nothing on record which could substantiate that the F.I.R. (Exhibit Ka-1) and Chik F.I.R. (Exhibit Ka-6) were made ante-timed. Thus, the argument of ante-timing of F.I.R. is not sustainable.
18. Much emphasis has been laid upon by the learned counsel for the accused-appellant that PW-1 Dolly has deposed against the appellant due to certain ulterior motive. She wanted to extract the money from her father which he allegedly received in lieu of entering into compromise in murder trial of brother of appellant.
19. At the first blush, the argument of the learned counsel for the accused-appellant appears to be attractive but on close scrutiny, it is of no avail because there is no supporting evidence in this regard. It was a mere formality to put suggestions in the cross-examination of PW-1 Dolly to malign her trustworthiness.
20. The main motive of the alleged crime has been specifically deposed by PW-1 Dolly. The manner of crime and the condition of the deceased Smt. Hajjan Shakila Bano in which she was rushed to the hospital also requires close and minute analysis. The injury report of Smt. Hajjan Shakila Bano dated 20.2.2007 at 11.50 A.M. (Exhibit Kha-1) mentions in the margin, "GC Poor. Pulse not palpate. Gasping condition. B.P. Not recordable. Abd. bleeding + at present tense and rigidity present."
21. Case sheet of the deceased Smt. Hajjan Shakila Bano (Exhibit Kha-2) dated 20.2.2007 shows that before the column 'expired' time has been mentioned as 'at 01.05 P.M. on 20/02/07'. Thus, every fraction of the second was crucial when Smt. Hajjan Shakila Bano was admitted in the hospital.
22. PW-9 Sub Inspector Vidya Sagar Dwivedi has tried his level best to record the statement of Smt. Hajjan Shakila Bano while she was admitted in the hospital. It is correct that formalities provided while recording her dying declaration could not be completed because of the aforementioned specific, crucial and critical condition of Smt. Hajjan Shakila Bano. Such piece of evidence (Exhibit Ka-21) may not be discarded in it's totality. This may be an irregular exercise of procedure but it is not illegal.
23. In the pursuit of search of truth this exercise was conducted by the Sub Inspector Vidya Sagar Dwivedi, Investigating Officer. It could not be said that her statement could be connected into one exculpative of the accused.
24. PW-3 Dr. Arvind Kumar Jain, who conducted the postmortem upon the dead body of Smt. Hajjan Shakila Bano on 20.2.2007 at 4.25 P.M., was posted as Medical Officer at Maharani Laxmi Bai Medical College, Jhansi and noted following injuries on her body:-
25. A gun shot entry wound of 2x.5 cm over lower chest and upper abdomen left side 14 cm below nipple and 14 cm about and out umblicus, margins are inverted clear cavity deep wound dressing + an area of 16x12 cm around wound colour. Multiple brownish small hemorrhage present cut open mark over both ankles, arms.
26. Cavity filled with blood. One bullet yellow full with free and matter recovered clotted.
27. Cause of death was recorded hemorrhage and shock as a result of ante-mortem firearm injury to the vital organ.
28. Ante-mortem injuries of Smt. Hajjan Shakila Bano mention firearm injury to the vital organ. Report of Forensic Science Laboratory U.P., Agra dated 10.07.2007 as noted down in the result of the test has mentioned that human blood was found upon the clothes and jewellery of beading of pearls which were worn by Smt. Hajjan Shakila Bano at the time of the incident. This report of the Forensic Science Laboratory U.P., Agra can be read in evidence under Section 294 Cr.P.C.
29. We are of the view that relationship of PW-1 Dolly with deceased Smt. Hajjan Shakila Bano being blood relative, is not a reason to discard her evidence because her evidence is otherwise trustworthy. Mechanical rejection of her evidence would lead to the failure of justice.
30. Despite lengthy cross-examination, nothing has been elicited to discredit and discard her testimony, which has remained unshattered and consistent.
31. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. Falsity of a particular material witness or material particular would not ruin it from the beginning to the end. The maxim "falsus in uno falsus in omnibus" has no application in India.
32. In the case of Ramesh Harijan Vs. State of Uttar Pradesh, (2012) 5 Supreme Court Cases 777, it has been held that :-
"C. Criminal Trial - Appreciation of Evidence - Contradictions, inconsistencies, exaggerations or embellishments - Duty of courts - Reiterated - Held, it is duty of court to unravel the truth under all circumstances - Undue importance not to be given to minor discrepancies which do not shake basic version of prosecution case - Entire evidence must be evaluated by excluding exaggerated version as witnesses keep adding embellishments to their testimony - If a witness is otherwise trustworthy, then his evidence should not be disbelieved - If major portion is found to be deficient and residue is sufficient to establish guilt of accused, then courts must separate grain from chaff - It has to be appraised in each case as to what extent evidence is admissible - If courts consider some portion of evidence as insufficient or unworthy, it does not mean as a matter of law that entire evidence must be disregarded in all respects"
"E. Criminal Trial - Appreciation of Evidence - Credibility of witness - Maxim falsus in uno, falsus in omnibus - Inapplicability and effect of, if applied - Principles reiterated - Held, maxim falsus in uno, falsus in omnibus has no application in India and a witness cannot be branded as a liar - Falsity of witness or material particular at some portion would not ruin testimony from beginning to end - If that maxim is applied then in all the cases it is to be feared that administration of criminal justice would come to a dead stop"
"G. Criminal Trial - Proof - Proof beyond reasonable doubt - Meaning of, and duty of court while applying principle of reasonable doubt - Reiterated - Held, reasonable doubt is not an imaginary trivial or merely possible doubt - It is a fair doubt based upon reason and common sense - Doctrine of benefit of doubt particularly in every case must not nurture fanciful doubts or lingering suspicion, thus destroying social defence- Courts must give paramount importance to ensure that miscarriage of justice is avoided.
33. Learned A.G.A. has also placed reliance on a decision of the Supreme Court in the case of Laxman Vs. State of Maharashtra, (2002) 6 Supreme Court Cases 710 in support of his arguments.
34. No other points have been raised before us by the learned counsel for the accused-appellant.
35. We believe that the prosecution has proved its case against the appellant beyond all reasonable doubt as far as factum of incident is concerned. However, it is evident that the entire incident occurred within the family in the fit of rage. Row erupted suddenly between women of the family in which the appellant got involved. The evidence reveals that the crime was committed on the spur of moment without any premeditation. The fact that a single shot was discharged is also relevant. The record reveals that the appellant is not a criminal and that he acted in the heat of passion. We believe that the entire offence committed by the appellant Abdul Azad falls within the ambit of Section 304 (Para I) I.P.C.
36. In view of the above, the appeal is partly allowed. Accordingly the judgement and order dated 19.04.2008 passed by the learned Additional Sessions Judge, Fast Track Court, Jhansi in Sessions Trial No.181 of 2007 (State Vs. Abdul Azad), arising out of Case Crime No.207 of 2007, under Section 302 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Nawabad, District Jhansi and in Sessions Trial No. 182 of 2007, arising out of Case Crime No. 317 of 2007, under Section 25/27 Arms Act, Police Station Nawabad, District Jhansi is set aside.
ORDER
(i) The accused-appellant Abdul Azad is held guilty under Section 304 (Para I) of the Indian Penal Code, 1860 and is convicted and sentenced to imprisonment for ten years and also liable to pay fine of Rs. 1000/- only. In case of default of payment of fine, he shall undergo one month simple imprisonment.
(ii) The accused appellant Abdul Azad is held guilty under Section 25 Arms Act and is convicted and sentenced to imprisonment for two years and also liable to pay a fine of Rs.1000/-. In case of default of payment of fine, he shall undergo one month simple imprisonment.
(iii) All the sentences awarded to the accused-appellant Abdul Azad shall run concurrently.
(iv) The accused-appellant Abdul Azad shall get benefit of Section 428 of the Code of Criminal Procedure, 1973 and period of detention undergone by the accused-appellant be set off against the sentence of imprisonment.
(v) The accused-appellant Abdul Azad is in judicial custody since 02.03.2007. The accused-appellant Abdul Azad has completed and undergone the period of sentence already awarded to him. In this criminal case he shall be released from District Jail, Jhansi.
Let the entire original record of this case be sent back to the Court of the learned Sessions Judge, Civil and Sessions Court, District Jhansi within 10 days for necessary compliance. The concerned court will report compliance within one month thereafter.
Dated :- 16.6.2017
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