FAKHRUDDIN Vs. STATE

JUDGEMENT

(1.) BOTH the criminal Appeals have been preferred assailing the judgment and order dated 15.5.1982 passed by Addl Sessions Judge Bulandshahare in S.T. No 160 of 1981 whereby the appellants have been convicted for offences under section 396 IPC and each of them have been sentenced to undergo R.I. for 10 years. It would transpire from the record that initially accused Fakhruddin, Nizamuddin , Prem, and Rohtash and Khurshid were committed for trial. The trial has its genesis in the FIR lodged by the complainant Dori Lal Gupta of village Amargarh District Bulandshahre and consequential investigation conducted by the local police of PS Jahangirabad. Mentioning background, the complainant alleged that two days prior to the occurrence, accused Fakhruddin, a native of the same village, had come to his shop and demanded cigarette on credit which request was declined. It is further alleged that in the meanwhile, the younger brother of complainant happened to be at the shop and there was heated exchange followed by scrimmages between the two. However, the people of the village intervened and both the horn-locked persons were separated from each other. It is further alleged that thereafter, accused Fakhruddin left the scene threatening with dire consequences. Narrating the events of the day of occurrence, it is alleged that on 6.9.1979, while the father of the complainant were asleep on the terrace of the roof and other family members were asleep in the rooms on the second floor of the house, 10-12 persons gained entry into the house and demanded key of the safe threatening the family members with serious consequences. It is further alleged that he was awakened by his father. They screamed for help upon which village people were attracted and they came out armed with respective weapons. It is also alleged that having heard the hue and cry, two police personnel who were on patrol duty were also attracted to the scene of occurrence and they challenged the accused persons, In the meanwhile, it is further alleged, three of the miscreants went up the roof and forcibly took his father down the stairs demanding key of the safe. It is also alleged that after initial fisticuffs between the miscreants and the complainant side, in the melee, the faces of the bandits which were muffled, came loose and amongst them, they recognised accused Fakhruddin, his brother Nizamuddin, Prem and Jasmant Dada. The remaining accused persons were also recognised by them but being unknown, it is alleged, they could be identified if paraded before them. It is also alleged that when he saw scuffle between his father Ramesh Chandra and brother Suresh on one hand and the accused persons on the other hand, he escaped from the back of the house and screamed for help. It is also alleged that there was exchange of fire between the policemen and the bandits but the bandits escaped while firing in which his father Ramesh Chandra and brother Suresh and as many as 14 other village people sustained fire arm injuries. It is alleged that in the incident, his brother Suresh breathed last on the spot while his father was taken to hospital in serious condition.

(2.) THE investigation of the case was conducted by SO K.P.Singh of PS Jahangirabad and after visiting the spot he completed all the formalities. It is stated that the SO during investigation was tipped that the accused persons would collect at the tubewell of Rohtash near village Chandiyana for distributing the looted valuables, and upon receipt of information, he laid siege to the place and arrested the accused persons namely Rohtash and Khursheed from whom valuable articles and transistor were recovered on 8.9.79 at 11 am. Subsequently, the identification parade was arranged. After completing investigation, the investigating officer submitted charge sheet in the court. The defence version abjured the guilt submitting that they have been falsely nominated in the case on account of enmity. Each of the accused gave their respective reason for false implication. The trial culminated in the conviction of appellants Fakhruddin, Nizamuddin and Prem for offences as aforesaid while accused Khursheed and Rohtash were given clean acquittal.

(3.) IT is well settled by a catena of decision that that while appreciating the evidence of the witnesses related to the deceased, having strained relations with the accused party, their evidence cannot be discarded solely on that basis but at the same time the court is required to carefully scrutinize it and find out if there is scope for taking view whereby the court can reach the conclusion that it is a case of false implication and whether the evidence inspires confidence or not. All that is required by the court is that the court has to weigh such evidence whether or not there are discrepancies in the evidence, whether or not evidence strikes the court as genuine, whether or not the story disclosed by the evidence is probable. It is settled in law that where relatives or interested witnesses are examined, the court has a duty to analyze the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence is biased Upon scrutiny of the evidence on record, it would transpire that all the witnesses have in unison stated that they had recognised the bandits in the light emanating from a burning lantern and also it being moon lit night and that some of the bandits had their faces covered and on account of uncovering of the faces in the scuffle, they had recognised the accused persons. This story set up by the appellant does not commend to me for acceptance for the reason that in all, Dhatas of all the accused are said to have fallen down. There is an illuminating decision of this Court which is Dadua v State reported in Alld. Criminal cases 1970 p371. The excerpt of relevant portion of the said decision in para 19 being germane to the controversy involved in this appeal are quoted below.