What cannot be used as evidence against the accused cannot be used in any other manner against him. If the court uses the entries in a Case Diary for contradicting a police officer it should be done only in the manner provided in Section 145 of the Evidence Act. The power conferred on the court for perusal of the diary under Section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in Section 162 of the Code, debars the court from using the power under Section 172 of the Code for the purpose of explaining the contradiction.
Kareem Vs. State Of U.P. [Criminal Appeal No. – 29 Of 2017]
Judgment
1. These criminal appeals have been preferred against the judgment and order of conviction and sentence dated 17.11.2016, passed by the Addl. Sessions Judge, Court No. 2, Muzaffar Nagar in S.T. No.483 of 2013 (State vs. Kareem and others), under Sections 452, 302/34, 506 IPC, P.S. Mansoorpur, District- Muzaffar Nagar, convicting accused (Kareem, Shahjad, Wajid) for offences under Sections 452, 302/34, 506 IPC and sentencing each of them with imprisonment for 3 years and fine of Rs.5000/- under Section 452 IPC, in default of fine, 3 months further imprisonment, life imprisonment to each of them along with fine of Rs.10,000 under Section 302/34 IPC, in default of fine, 6 months further imprisonment and 2 years imprisonment along with fine of Rs.5000/- to each of them under Section 506 IPC, in default of fine, 3 months further imprisonment. Accused Kareem has been acquitted from the charges under Section 25/27 of the Arms Act, giving benefit of doubt.
2. Being aggrieved therefrom, accused Shahjad preferred Criminal Appeal No. 31 of 2017, accused Kareem preferred Criminal Appeal No.29 of 2017 accused Wajid preferred Criminal Appeal No.30 of 2017 for setting aside their conviction and passing an order of acquittal.
3. Since common issues are involved in all the three appeals, hence all the three appeals are being disposed of by a common order. The fact stated in Criminal Appeal No.29 of 2017 shall be treated as a leading appeal.
4. In brief, prosecution case is that on 29.7.2012 at 5 AM in the morning when first informant Deepak along with his mother Kauhal Devi were present in house of his brother Rahul, neighbour Kareem, Shahjad, Fayyaz and Wajid entered the house, Kareem and Shahjad were armed with country-made pistols. Fayyaz and Wajid told that give him a lesson for bothering Anjum, daughter of Kareem and kill the Rahul. On the said exhortation, Kareem and Shahjad fired shots with intention to murder Rahul, Rahul fell down on spot due to injury caused to him. On account of noise raised by him and his mother and on seeing the villagers arriving, accused ran away, giving warning that they will kill them also. They carried injured Rahul to District Hospital where doctor declared him dead.
5. On the basis of written report (Ext. Ka-1), Case Crime No. 365/2012, under Sections 452, 302, 506 IPC was lodged against accused. Chik FIR (Ext. Ka-9) was registered and its entry was recorded in G.D. (Ext. Ka-10). The investigation of the case was handed over to Ramesh Chandra Yadav, S.O. Mansoorpur, Sub-Inspector Pritam Singh Rawal prepared inquest memo (Ext. ka-2) of deceased Rahul and relevant documents, like, letter to R.I. (Ext. Ka-3), letter to C.M.O. (Ext. Ka-4), photo lash (Ext. Ka-5), dead body challan (Ext. Ka-6) and sent the dead body for postmortem.
6. Investigating Officer prepared spot map (Ext. Ka-18) and recorded statement of witnesses, recovered pellets from the place of incident and prepared its memo (Ext. Ka-16) and recovered cartridges and prepared its memo (Ext. ka-17). During investigation, weapon of the crime, country-made pistol and two live cartridges were recovered from the possession of Kareem vide recovery memo (Ext. Ka-7). FIR was lodged against Kareem under Section 25/27 of the Arms Act in Case Crime No.469/2012. Charge-sheet under Sections 452, 302/34, 506 IPC was submitted against accused Kareem, Shahjad and Wajid and charge-sheet under Section 25 of the Arms Act was submitted against Kareem by Investigating officer which are Ext. Ka-19 & Ext. Ka-14 respectively. Charges were framed against accused Kareem, Shahjad and Wajid under Sections 452, 302/34, 506 IPC and under Section 25 of the Arms Act against the accused Kareem which they denied and claimed trial.
7. In joint trial of the two cases, prosecution produced as many as 8 witnesses viz. P.W.-1 Deepak, 1st informant and brother of deceased (eye-witness), P.W. 2 Smt. Kaushal, mother of deceased (eye-witness), P.W.3, Sub-Inspector Pritam Singh Rawal who prepared inquest, etc, P.W.4 Dr. Rajesh Kumar Dawrey who conducted postmortem of the dead body of deceased, P.W.5 H.C.P. Brijesh Kumar who lodged First Information Report of the incident under Sections 452, 302/34, 506 IPC, P.W.6 Constable Clerk Brahmajeet Singh who lodged the First Information Report under Section 25/27 of the Arms Act, P.W.7 Sub-Inspector Rajpal Singh who conducted investigation of case under the Arms Act, P.W.8 Sub-Inspector Ramesh Chandra Yadav who concluded investigation of case under Section 452, 302/34, 506 IPC. Defence has produced one witness Naushad as D.W.1.
8. P.W.1 Deepak in his examination-in-chief has stated that he knows accused kareem, Shahjad and Wajid who belong to his village. He knows accused Fayyaz who also belongs to his village. Accused are his neighbours. The name of his deceased brother is Rahul Sharma. Incident is of 27.9.2012, on that day, he, his brother Rahul and mother Kaushal were present in the house. In the morning at 5 AM, Kareem, Wajid, Shahjad and Fayyaj came to his house. Kareem and Shahjad were armed with country-made pistol. All the four entered into his house, Wajid and Fayyaz said that give him lesson due to misbehaviour done by him with Anjum, daughter of Kareem. Accordingly, Kareem and Shahjad on the exhortation of Fayyaz and Wajid fired shot to his brother Rahul. He and his mother saw the incident. Rahul was sleeping when shot was fired.
Rahul fell down from Takhat as soon as he received shot. Nobody came in spite of making noise. Accused ran away along with country-made pistol after making fire shot. He carried his brother in the car of his village Pradhan Dushyant to the police station Mansoorpur and told the incident to Station Officer. Station Officer has told him to take injured Rahul to Government Hospital, Muzzafar Nagar for treatment where doctor declared Rahul dead. The report of the incident was written by Jasveer in the hospital and the same was lodged against accused. In cross-examination, P.W.-1 stated that his mother, brother and sister were sleeping in the house and he was sleeping in the gher situated at a distance of 50-60 mtrs from the house. There are 4-5 houses in between his house and gher . His animals are being tied in the gher that is why he sleeps in the gher. He further stated that he heard two shots. His brother was in the house. When he came to his brother, then he found no blood near the body.
9. P.W.-2 Smt. Kaushal (mother of deceased) in her examination-in-chief stated that accused are her neighbours and Rahul was her son. Incident was of 27.9.2012 at 5 AM. She wake up at 4 AM and for milking her cow and buffalow, she went to gher where her elder son sleeps. She milked her cow and buffalow in the gher. She and her son Deepak came to house at about 5 AM. As soon as she was going to sleep the accused Kareem, Fayyaz, Wajid and Shahjad come inside the room through gallery. Rahul was sleeping on takht and she was on a charpai parallel to him. Fayyaz and Wajid said that give him a lesson as he misbehaved Anjum and end the life of Rahul. Accordingly, Kareem and Shahjad fired at Rahul. First shot was fired by Kareem and the second shot by Shahjad. On being shot, Rahul fell down from takht. Accused threatened if she made a noise, they will kill her also. First of all, Deepak came there. Deepak covered Rahul’s injured stomach from his lungi. Deepak called village Pradhan and took Rahul for treatment. In cross-examination, P.W.2 stated that first of all Deepak came there. Deepak covered the Rahul’s injured place from his lungi. He wear clothes inside the lungi. She became unconscious after the incident. Police has not taken into custody mattress, etc. Police has not taken into custody any item from her house and room in her presence. The shots hit the left side of stomach and the thigh. Intestine protruded from the fire-arm injury in the stomach.
10. P.W.3 Inspector Pritam Singh Rawal in his examination-in-chief has stated that on 27.9.2012, he was posted as Sub-Inspector at police station Mansoorpur, he prepared the Panchayatnama of the body of deceased Rahul and other documents relating to Panchayatnama were also prepared by him and dead body was handed over for postmortem to Constable Kapil Bhati and Constable Dinesh Kumar.
11. P.W.4 Dr. Rajesh Kumar Dawrey in his examination-in-chief has stated that he was posted on 17.9.2013 at the District Hospital, Muzaffar Nagar and he conducted the postmortem at 4 PM. Following injuries were found on the body of deceased:-
1. A gun shot wound of entry size 3cm x 2.5cm x abdomen cavity deep, present over left side of abdomen, at 2’O clock position and 15cms away from amblicus, abraided collar and B/T (blackening and tattooing), present around the wound in the area of 10cm x 8cm, margins inverted and lacerated. Intestine was protruding out from wound.
2. Multiple pellet wounds in the area of 13cm x 9cm x muscle and sic…. deep, present over anterior aspect of left thigh, 16cm about the knee. On exploration 6 tiny pellets recovered from muscles and skin.
3. A contusion 1.5cm x 1cm present over anterior aspect of right thigh in the middle part.
12. P.W.5 H.C.P. Brijesh Kumar has stated in his examination-in-chief that he was posted on 27.9.2012 at Police Station Mansoorpur, District Muzaffar Nagar as Constable / Clerk. On the basis of the written report of the informant Deepak, Chick Report No. 201 of 2012 Case Crime No.365/2012, under Sections 452, 302, 506 IPC was prepared. He proved chick report (Ext. Ka-9) and G.D. (Ext. Ka-10).
13. P.W.6 Constable Clerk Brahmajeet Singh has stated in his examination-in-chief that he was posted on 28.9.2012 at police station Chappar, District Muzaffar nagar as Constable / Clerk. He taken the memo of recovery of country-made pistol 12 bore from Station Officer Ramesh Chandra Yadav at 22.00. On the basis of memo of recovery, Case Crime No.369/2012 (State vs. Kareem), under Section 25/27 of the Arms Act was registered whose entry was made in G.D. No.56 at 22.00. He identified the Chick (Ext. Ka-11) and G.D. (Ext. Ka-12) which are in his handwriting.
14. P.W.-7 Sub-Inspector Rajpal Singh who conducted investigation of recovery of one country-made pistol and 2 cartridges), has stated in his examination-in-chief that on 29.9.2012, he was posted as Sub-Inspector at police station Mansoorpur, District Muzaffar Nagar. The investigation of Case Crime No.369/2012, under Section 25/27 of the Arms Act was handed over to him and he examined the witnesses. The site plan (Ext. ka-13) was prepared by him on the pointing out of the informant. He submitted charge-sheet (Ext. Ka- 14), under Section 25/27 of the Arms Act and proved it.
15. P.W.8 Ramesh Chandra Yadav, Sub-Inspector, the Investigation Officer of murder case, has stated in his examination-in-chief that since 27.9.2012 he was posted as Station Officer at Police Station Mansoorpur District Muzaffar Nagar, investigated Case Crime No.365/2012, under Sections 452/302/506 IPC. He recorded statement of Constable Brijesh Kumar who wrote First Information Report. The statement of first informant Deepak was also recorded at the police station. He went to District Hospital with official jeep along with Sub-Inspector Pritam Singh, Constable Manoj Kumar, Constable Kamlesh Kumar and Constable Dinesh Kumar. Sub-Inspector Pritam Singh prepared inquest of deceased Rahul Sharma and other documents relating to inquest. Body was sent to postmortem. Accordingly, witnesses of the inquest were examined. Pellets were recovered from the place of incident and memo was prepared vide Ext. Ka-16. On 27.9.2012, 3 cartridges were recovered from the place of incident and memo was prepared vide Ext. Ka-17. On the pointing out of first informant, inspection of the spot was made and site plan was prepared vide Ext. Ka-18 and the same was also identified by him. The witnesses of the recovery memo were examined as well as other witnesses were examined. He arrested accused Kareem on 28.9.2012 at 8 PM along with country-made pistol of 12 bore and 2 cartridges of 12 bore. Kareem stated that with the same country-made pistol, he murdered Rahul Sharma on 27.9.2012. The recovery memo of the country-made pistol and the cartridges was prepared by Sub-Inspector Pritam Singh vide Ext. Ka-7. Case was accordingly registered against Kareem and he was examined also, Sub-Inspector Pritam Singh who prepared inquest was examined, the Constable who was in the postmortem team was also examined. On 9.10.2012, accused Wajid was arrested and examined on 18.10.2012. After completion of investigation, charge-sheet (Ext. Ka-19) was submitted against Kareem, Shahjad and Wajid.
16. The Court after prosecution evidence, examined the accused under Section 313 Cr.P.C. and accused submitted that they have been falsely implicated in the present case due to enmity and partybandi. The accused – appellants have produced Naushad as D.W.1.
17. D.W. 1 Naushad in his examination-in-chief has stated that he knows Rahul Sharma of his village and also knows Kareem, Shahjad, Fayyaz, Wajid of his village. On 27.9.2012 in the morning at 4.30 AM, he went to mosque from his house. In the mosque, one person came and told him that Rahul Sharma was shot near the tubewell, situated in agriculture field. He was operating his tube well at that time. They went to the gher of Rahul. In the gher, Deepak and his mother were present. They called village Pradhan and thereafter all of them went to agriculture field where Rahul’s body was lying near tubewell. They carried Rahul on tractor trolley to village and then in the car of village Pradhan to hospital. The house and gher of Rahul are separate. No incident has taken place at the house of Rahul. In cross-examination D.W.1 has stated that electricity supply in village was from at 4 PM in the evening till 4 AM in the morning. He saw the dead body of Rahul in the agriculture field.
18. Heard Shri V.P. Srivastava, the learned Senior Counsel assisted by Shri Pankaj Kumar Tyagi and Ms Ankita Verma, for the appellants, Shri Pankaj Bharti, learned counsel for the complainant and the learned A.G.A. for the State.
19. The submission of the learned counsel for the appellants are:
(i) P.W.1 & P.W.2 alleged eye-witnesses of the incident are interested and partisan witnesses, were not present at the place of incident as such their evidence is unreliable.
(ii) No source of light has been disclosed. The incident is of 5 AM on 27.9.2012 and there was no electricity in the village at the relevant time. As such, prosecution case is doubtful.
(iii) Place of occurrence is also doubtful as no blood was recovered from the alleged place of incident either on takht or on ground. The testimony of D.W.1 as to the place of incident is different from that of the prosecution witnesses.
(iv) Latches in investigation create doubt about the prosecution story.
In support of the contentions, the learned counsel for the appellants has placed reliance upon the judgment of the Apex court in Mahabir Singh vs. State of Haryana, reported in 2001 SCC (Cri) 1262.
20. On the other hand, learned counsel for the complainant Mr. Pankaj Bharti and the learned AGA for the State argued that it is a case of direct evidence and strong motive. As such, latches in the investigation will not demolish the prosecution case as held by the Apex Court in Dayal Singh and Others vs. State of Uttranchal, AIR 2012 SC 3046.
21. So far as the argument of the learned counsel for the appellants that evidence of P.W.’s- 1 & 2, eye-witnesses of the incident are unreliable as they were not present on the place of incident is concerned, the evidence of P.W.’s- 1 & 2 will be relevant. P.W.1 Deepak in his examination-in-chief states that his mother, brother and sister were sleeping in room. He was sleeping at gher which is at the distance of 50-60 mtr. from his house, although in the First Information Report, first informant / P.W.1, also states that he and his mother were in the house. In his cross-examination, P.W.1 states that he heard the sound of two shots. His brother was in the house, when he came to his brother, there was no blood on the spot. This statement of P.W.1 clearly demonstrates that he was not present at the place of incident. As such, evidence of P.W.1 is not reliable and prosecution case is false and doubtful. So far as P.W.2, another eye-witness is concerned, she has stated in her examination-in-chief that her elder son Deepak had slept at gher where their animals are tied. She woke up at 4 AM in the morning on the date of incident and went at gher for milking cows and buffalows, after milking she and her son Deepak came to house at about 5 AM. She also stated in her cross-examination when she reached the gher for milking their animals, there was no electricity. P.W.1 & P.W.2 have also stated that their statements were not taken by police. It is also material to state that P.W.2 has made improvement also in her statement in order to prove that she and her son Deepak were present at the place of incident but the analysis of the statement of P.W.1 & P.W.2 as well as other evidence (FIR, site plan, etc.) on record fully reveal that P.W.1 & P.W.2 were not present at the place of incident and their evidence does not inspire confidence. It is difficult to accept that they are eye-witnesses.
22. So far as second argument of the learned counsel for the appellant that there was no source of light at the place of incident is concerned, P.W.2 in her cross-examination stated that there was no electricity when she reached the gher for milking her cows and buffalows and came back to house at 5 AM. As such, at the time of incident, there was no electricity in the house at 5 AM on 27.9.2012. D.W.1 Naushad also states in his cross-examination that electricity supply in his village was from 4 PM in evening till 4 AM in morning. So it is well established that there was no electricity in the house at the time of incident. It was, therefore, not possible for P.W.2 to identify the accused in the absence of electricity in the early morning. No alternative source of light has been set up by the prosecution. As such, prosecution case as set up against the accused appellants is doubtful.
23. So far as the third argument of learned counsel for the appellants that place of incident is doubtful is concerned, it is material to state that no blood was found either on takhat or on the ground or at any other place which make the place of occurrence doubtful. In the site plan also, there is no mention of blood, etc. any any place. It is also material to state that 36 pellets were found below the takhat while accused was sleeping on the takhat. D.W.1 Naushad in his statement-in-chief as well as in cross-examination stated that body of deceased Rahul was found in agriculture field near tubewell and no incident has taken place at the residence of Rahul. The above evidence belies the place of incident as also the prosecution case.
24. With regard to the fourth argument of learned counsel for the appellants that the investigation is faulty and defective, following facts will be relevant:
(a) Statement under Section 161 Cr.P.C. of P.W.1 & P.W.2 were not recorded at all.
(b) Witnesses Kalwa who has seen the incident as shown in the site plan and Mange whose house is also mentioned in site plan were examined under Section 161 Cr.P.C. but they were not produced by prosecution.
25. The counsel for the appellant placed reliance upon the judgment of the Apex Court in the case of Mahabir Singh vs. State of Haryana reported in 2001 SCC (Cri) 1262 on the point of non-examination of P.W.1 & P.W.2 under Section 161 Cr.P.C. Paragraph nos. 13 & 14 of the judgment are relevant and read as follows:
“13. If a Public Prosecutor failed to get the contradiction explained as permitted by the last limb of the proviso to Section 162(1) of the Code, is it permissible for the court to invoke the powers under Section 172 of the Code for explaining such contradiction? For that purpose we may examine the scope of Section 172 of the Code. That section deals with the diary of proceedings in investigation. Sub- section (1) enjoins on the Investigating Officer to enter in a diary the time at which he began and the place or places visited by him during the course of investigation. Such entries should be made on a day-to-day basis. Sub- sections (2) and (3) of Section 172 read thus:
172 (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.
14. A reading of the said sub-sections makes the position clear that the discretion given to the court to use such diaries is only for aiding the court to decide on a point. It is made abundantly clear in sub-section (2) itself that the court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the court uses the entries in a Case Diary for contradicting a police officer it should be done only in the manner provided in Section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is intended to be so used for contradiction. In other words, the power conferred on the court for perusal of the diary under Section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in Section 162 of the Code, debars the court from using the power under Section 172 of the Code for the purpose of explaining the contradiction.”
26. It is also material that prosecution has not produced witnesses Kalwa and Mange whose statement under Section 161 Cr.P.C. have been recorded. In the site plan, it is mentioned that Kalwa had caught accused Kareem at place “G” but he fled away giving threat. The above discrepancy on the part of investigation also makes the prosecution case doubtful.
27. In view of the facts and circumstances of the case and the evidence available on record, we find that witnesses produced by prosecution do not inspire confidence that they are eye witnesses of the incident. There was no source of light at the place of incident and place of occurrence is also doubtful. There are lapses on the part of investigation. Prosecution has failed to prove the charge against the appellants – accused beyond reasonable doubt. Accordingly, judgement and order dated 17.11.2016 passed by the learned trial court is not sustainable and is liable to be set aside.
28. The appeals are allowed. The judgment of conviction and order of sentence dated 17.11.2016 is set aside. Appellants are acquitted of the charged offences. Appellants- Kareem and Shahjad in Criminal Appeal Nos.29 of 2017 and 31 of 2017 respectively are in jail. They shall forthwith be released from the jail, if not wanted in any other case. Appellant Wajid in Criminal Appeal No.30 of 2017 is on bail. His bail bond and sureties stand discharged.
