Allahabad High Court
Shakir Ali vs The State Of U.P. on 8 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 612
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 31 Case :- CRIMINAL APPEAL No. - 1330 of 2004 Appellant :- Shakir Ali Respondent :- The State Of U.P. Counsel for Appellant :- Rishad Murtaza,Nadeem Murtaza Counsel for Respondent :- Govt.Advocate connected with Case :- CRIMINAL APPEAL No. - 1324 of 2004 Appellant :- Nabi Sher And Another Respondent :- State of U.P. Counsel for Appellant :- Rishad Murtaza,Nadeem Murtaza Counsel for Respondent :- Govt.Advocate Hon'ble Virendra Kumar Srivastava
1. Both the aforesaid appeals have been preferred against the judgment and order dated 25.05.2004, passed by Additional District and Sessions Judge, F.T.C. Court No.4, Hardoi, in Sessions Trial No.499 of 2002, arising out of Case Crime No.92 of 2001, P.S.-Pachdevra, District-Hardoi, whereby the appellants-Nabi Sher and Nabi Hasan of Criminal Appeal No.1324 of 2004 and appellant-Shakir Ali of Criminal Appeal No.1330 of 2004 have been convicted and sentenced for five years rigorous imprisonment with fine of Rs.5000/- each for offence under Section 307 read with 34 I.P.C.
2. Since both the above said criminal appeals have been preferred against the aforesaid judgment and order, both appeals have been heard jointly and are being decided by common judgment.
3. The prosecution case, in brief, is that Shakir Ali (P.W.-1), son of Shakkar Ali (P.W.-2), was resident of Village-Chandpur, P.S.-Pachdevra, District-Hardoi. The appellants-Nabi Sher and Nabi Hasan son of Sitaram were also resident of same village, but before two years of the occurrence, they had migrated to Village-Angwa, P.S.-Sahabad, District-Hardoi. The appellant-Shakir Ali is brother-in-law (Jija) of appellant-Nabi Sher. There was a previous enmity between Nabi Sher and Shakir Ali (P.W.-1) as criminal case was lodged by the appellant-Nabi Sher for causing grievous hurt against Shakir Ali (P.W.-1).
4. On 19.09.2001, Shakil Ali (P.W.-1) was sitting in his village near the house of one Rajendra, situated towards southern side of village and Deshraj son of Ramdin Kushwaha, Bhaiya Lal son of Buddhi Lal Pal and Ganga Singh son of Taule Kushwaha were also present there. Meanwhile, at about 12:00 p.m. at noon, the appellants-Nabi Sher, Nabi Hasan and the appellant-Shakir Ali (hereinafter referred to as appellants) along with two unknown persons came there with illegal arms, with intention to cause death and due to previous enmity, they fired fire around at Shakir Ali (P.W.-1). Shakir Ali (P.W.-1), to save his life, fled away from the place of occurrence and reached Village-Nagla Hussain from where Ram Kumar Telli, resident of Village-Nagla Hussain and one Chhote Bhaiya Singh, resident of Village-Pakda, took him (P.W.-1) via Kath (town) to District Headquarter-Sahanjahapur and therefrom to Primary Health Centre Sahabad, where he (P.W.-1) was given first aid treatment and thereafter he was carried to District Hospital, Hardoi for medical treatment. On hearing the noise and receiving the information, Shakkar Ali (P.W.-2) who was present at his house, reached at the place of occurrence and was told by people, present on the spot, that his son, Shakir Ali (P.W.-1) received fire arm injuries, shot by the appellants and had fled away from the place of occurrence. Shakkar Ali (P.W.-2) rushed to police station-Pachdevra and lodged a first information report (Ext.Ka-1) (in short F.I.R.) at 6:45 a.m. On 20.09.2001. The investigation of the case was entrusted to S.I. Shivpal (P.W.-4).
5. Dr. J. L. Gautam, Emergency Medical Officer, Civil Hospital, Hardoi, examined the injuries of Shakir Ali (P.W.-1), who was brought by Ram Kumar resident of Village-Nagla Husain, P.S.-Pachdevra, on 19.09.2001 at 11:30 p.m.. According to him, the following injuries were found on the body of the injured :
"(1) Firearm wound of entry size 2.0 cm x1.0 cm x depth not proved present on abdomen 6.0 cm above umblicus at 12"0 clock margin inverted lacerated.
(2) Firearm wound of exit size 5.0 cm x 3.0 cm x communicating with injury no.1 present on left side of abdomen, 6.5 cm away from umblicus at 3'0 clock margins everted, lacerated illegible.
(3) Black scabed depressed abraded wound 0.3 cm in diameter x depth not proved present on left arm middle part.
(4) Multiple Black scabed depressed abraded wounds size 0.3 cm in diameter x depth not probed to 2.00 cm x 0.3 cm x muscle deep gutter wound present on right leg from knee to ankle joint dried blood clots present. Soft scab over wound tissues present."
6. According to this witness (P.W.-3) the case was referred from Primary Health Centre, Sahabad and the aforesaid injuries were kept under observation as it would have been caused by fire arms like Tamancha and was half day old. According to him further, injuries nos.1 and 2 were from back to left side whereas rest injuries were from front to back side. He (P.W.-3) further stated that all injuries of P.W.-1 were noted by him in injury report (Ext.-Ka-2) and the said injury might be caused at 12"o clock on 19.09.2001.
7. S.I. Shivpal Singh (P.W.-4), during investigation, inspected the place of occurrence, prepared the site plan (Ext.-ka-5), recorded the statement of witnesses and after completion of investigation, filed charge sheet against the appellants, before the concerned Magistrate, who took the cognizance and since the offence was exclusively triable by the Court of Sessions, after providing the copy of relevant police papers as required under Section 207 of the Code, committed the case to the Court of Sessions, Hardoi for trial.
8. The learned trial Court, after hearing the counsel for both the parties, framed charges for the offence under Section 307 read with Section 34 I.P.C. against the appellants from which they denied and claimed for trial.
9. The prosecution, in order to prove its case, examined Shakir Ali (P.W.-1), Shakkar Ali (P.W.-2), Dr. Z. L. Gautam Devi (P.W.-3) and S.I. Shivpal Singh (P.W.-4). So far as documentary evidence is concerned, first information report (Ext.-Ka-1) was proved by Shakir Ali (P.W.-1), injury report (Ext.-Ka-2) was proved by Dr. Z. L. Gautam (P.W.-3), Chik-F.I.R. (Ext.-ka-3), G. D. Report (Ext.-Ka-4), site plan (Ext.-Ka5) and charge sheet (Ext.-Ka-6) were proved by S.I. Shivpal Singh (P.W.-4).
10. After conclusion of prosecution evidence, the statement of appellants were recorded under Section 313 of the Code, who denied the prosecution evidence and stated that they had been falsely implicated.
11. Learned trial Court, after conclusion of trial, convicted and sentenced the appellants vide impugned judgment and order. Aggrieved by the judgment and order as above, the appellants have preferred this appeal.
12. Heard Sri Nadeem Murtaza, learned counsel for the appellant and Sri Dhananjay Kumar Singh, learned A.G.A. for the State.
13. Learned counsel for the appellants has submitted that the appellants are innocent and have been falsely implicated due to previous enmity of criminal proceeding, lodged against Shakir Ali (P.W.-1) by the appellants, in order to create undue pressure to settle it. Learned counsel further submitted that independent witnesses, present on the spot including Ram Kumar who accompanied the injured from the place of occurrence to District Hospital, Hardoi were also not examined by the prosecution. Learned counsel further submitted that an F.I.R. was lodged by delay of 18 hrs. whereas concerned police station is situated only six kms. away from the place of occurrence and the prosecution has not placed any explanation in this regard. Learned counsel further submitted that Shakkar Ali (P.W.-2) is not an eye-witness whereas the statement of Shakir Ali (P.W.-1) is self contradictory and unreliable as he, even after receiving such injury, had fled away from the place of occurrence and neither lodged any report at any police station situated on the way to hospital through which he passed or received any medical treatment to any nearest hospital. Learned counsel further submitted that the statements of P.W.-1 and P.W.-2 are self contradictory. Learned counsel further submitted that the trial Court, without considering the material on record, passed the impugned judgment in cursory manner, which is liable to be set aside. Learned counsel has placed reliance on the law laid down by Supreme Court in Thulia Kali vs. State of Tamil Nadu, 1972) 3 SCC 393.
14. Per contra, learned A.G.A. vehemently opposed and submitted that the prosecution case is wholly reliable. Learned A.G.A. further submitted that Shakkar Ali (P.W.-2), father of Shakir Ali (P.W.-1), got information regarding the said occurrence, lodged the first information report without any delay. Learned A.G.A. further submitted that Shakkar Ali (P.W.-2) is illiterate person and due to geographical condition of the said police station, the F.I.R. was lodged at 6"o clock on next day. Learned A.G.A. further submitted that Shakir Ali (P.W.-1) is injured witness and his evidence cannot be brushed aside for want of independent witness. Learned A.G.A. further submitted that every effort was made to save the life of Shakir Ali (P.W.-1) as the appellants were chasing him, hence, failure to take any medical treatment at District Headquarter, Sahajahapur will not affect the credibility of prosecution story. Learned A.G.A. further submitted that there is no illegality in the impugned judgment and order, the appeal lacks merit and is liable to be dismissed.
15. I have considered the rival submissions made by both the parties and perused the record.
16. Shakir Ali (P.W.-1), sole star witness, supporting the prosecution story, has stated that before two years of the said occurrence, an occurrence was happened between the appellants-Nabi Sher and Nabi Hasan with him and criminal case was lodged against him (P.W.-1) by the appellant-Nabi Sher, which was pending at the time of occurrence. He further stated that at the time of occurrence, at about 12:00 p.m. (noon), he was present, nearby trolly, situated in front of Rajendra's house ; Ganga Singh and Deshraj were sitting in the trolly and Bhaiya Lal was sitting at floor. He further stated that meanwhile all the appellants along with two unknown persons, carrying firearms, appeared there and exhorted to kill him (P.W.-1) whereupon all the appellants and two unknown persons fired at him. He further stated that fire made by the appellant-Nabi Sher hit his stomach whereas fire made by the appellants-Nabi Hasan and Shakir Ali hit his leg and hands. He further stated that he did not know whether fire made by unknown persons caused any injury to him (P.W.-1) or not. He further stated that he rushed to the house of Rajendra and thereafter via house of one Prithvi Pal, he reached at his house. He further stated that the appellants chased him upto crossing, situated in front of Govardhan's house. He further stated that thereafter he reached at the house of one Ram Kumar Telli, resident of Nagla Husain and lay there wherefrom Ram Kumar and Bade Bhaiya, resident of Village-Pakda and Brij Lal carried him to a Kuriyan Kala via Ram Kheda and thereafter they reached at Kath. He further stated that he was carried to district-Sahajahapur by jeep and thereafter to Primary Health Centre, Sahabad where first aid was given to him. He further stated that he was referred to District Hospital, Hardoi where his injuries were examined and x-ray was also conducted. He further stated when his father (P.W.-2) reached at hospital, he came to know that first information report was lodged.
17. Shakkar Ali (P.W.-2), father of Shakir Ali (P.W.-1), narrating the prosecution story as stated by P.W.-1, has stated that at the time of occurrence, he was picking up "urad fali" at the door of his house. He further stated that Bhaiya Lal, Deshraj and Ganga Singh were present at the place of occurrence and had seen the occurrence. Stating that his son (P.W.-1) had fled away to his house, he also reached at his house. He further stated that he had lodged the first information report (Ext.-Ka-1).
18. The prosecution did not examine Ganga Singh, Deshraj and Bhaiya Lal, who were present at the time of occurrence with Shakir Ali (P.W.-1). It has not examined Rajendra in front of whose house, the occurrence was taken place and after the occurrence, P.W.-1 entered into his house to save his life. It has also not examined Ram Kumar, Bade Bhaiya and Brij Lal, who carried P.W.-1 to district hospital, Hardoi via Kuriyan Kala, Kath, Sahajahapur and Sahabad. The prosecution has also not examined the radiologist who conducted x-ray examination of Shakir Ali (P.W.-1). It has also not examined the Constable, who prepared Chik-F.I.R. (Ext.-Ka-3) and entered the information (Ext.-Ka-1) in G. D. Report (Ext.-Ka-6). The prosecution has not placed any explanation as to why the aforesaid important witnesses were withheld and only one witness of fact i.e. injured-Shakir Ali was produced. The record further shows that the cross-examination of Dr. Z. L. Gautam (P.W.-3) was closed by the trial Court without affording any opportunity to cross-examine him. From perusal of the record, it further transpires that the appellants' counsel, before trial Court, had filed an application to recall P.W.-3 for cross-examination on the ground that the cross-examination of P.W.-3 could not be conducted as advocates were abstaining from work due to condolence but the trial Court dismissed the said application on the ground that P.W.-3 was only formal witness.
19. Now the question arises whether the prosecution evidence, based on testimony of P.W.-1 and P.W.-2, is reliable or not.
20. P.W.-1 is injured witness. His first medical aid, according to him, was provided at Primary Health Centre, Sahabad but the prosecution has not placed any documentary evidence as to whether or not any treatment was given to P.W.-1 at Primary Health Centre, Sahabad. According to Dr. Z. L. Gautam (P.W.-3) he had examined P.W.-1 at 11:35 p.m. i.e. after twelve hours of the occurrence. P.W.-1 has stated that fire arm injury was caused at his stomach, leg and hands and after the occurrence, he fled away from the place of occurrence and entered into one Rajendra's house, reached at his own house via Prithvi Pal's house and also reached to Village-Nagla Hussain at Ram Kumar's house where he lay down. According to him, he reached at District Hospital-Hardoi via Ram Kheda, Kuriyan Kala, Kath, Sahajahapur and Sahabad. In cross-examination, he admitted that during his journey, he neither gave any information nor took any treatment at any place. He further admitted that he was lying at the door of Raj Kumar's house for two hours. He further stated that Hardoi, Sahajahapur road is stituated 35-36 kms. away from his Village-Chandpur and Kath where police station is also situated, is situated 4-5 ''kosh' (8-10 miles). He further stated that he reached at Sahabad at 6:30-7:00 p.m. ; Sahabad police station is situated at main road ; he had narrated the incident to police of police station Sahabad but had not given any written report. He further stated that he did not know whether or not his report was lodged at P.S.-Sahabad.
21. In addition to above, the conduct and statement of this witness are also doubtful because according to him even after receiving serious injuries in his leg and stomach, he ran from the place of occurrence and entered into the house of one person, thereafter gone to his house and therefrom reached another village and lay down there. Thus, according to him, after the occurrence, he had gone also to his own house but his father Shakkar Ali (P.W.-2) had stated that information of the occurrence was received by him from unknown person. In view of the said contradiction, the statement and conduct of P.W.-1 become doubtful.
22. The first information report was lodged by Shakkar Ali (P.W.-2) , father of Shakir Ali (P.W.-1). Admittedly, he is not eye-witness. In cross-examination, he has stated that he could not reach at the place of occurrence and when he was on the way to place of occurrence, the people told that his son had escaped from the place of occurrence. Stating that he could not see the place of occurrence, he further stated that he could not tell the name of persons who narrated to him the occurrence. He further stated that he could not meet the boy who had informed him regarding the occurrence. Stating that he had given the information at concerned police station at 1:00 a.m. (night), he further stated that the said occurrence took place in the evening.
23. The first information report, although is neither substantive piece of evidence nor encyclopedia of the occurrence, is important step of the prosecution to initiate the criminal machinery in order to collect the evidence. Although, there is no prescribed proforma for lodging the F.I.R. and also no time limit is provided to lodge the same but if it is lodged by the inordinate delay without any explanation, it creates doubt in the prosecution story.
24. In Thulia Kali vs. State of Tamil Nadu, 1972) 3 SCC 393 where the first information report was lodged by delay of twenty two hours, Supreme Court has held as under :
"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
25. Coming to the facts of this case, according to P.W.-2, he had received the information of the occurrence just at the time of occurrence. Admittedly, the first information report was lodged on 20.09.2001 at 6: 45 a.m. whereas occurrence was taken place at 12:00 p.m. on 19.09.2001. Thus, the F.I.R. was lodged by delay of 18 hours. In Ext.-Ka-3, the distance of place of occurrence from concerned police station is only six kms. P.W.-2, in his cross-examination, has not placed any plausible explanation as to why he had not lodged the first information report at any reasonable time just after the occurrence on 19.09.2001. His admission, in cross-examination, that the said occurrence took place in evening, further creates doubt in the prosecution story. Although, he has stated in cross-examination that he had given information at 1:00 a.m. in the night but this fact is not supported by any documentary evidence and even he had not explained as to why he had lodged first information report at 1:00 a.m. in the night i.e. by delay of 13 hrs.
26. Thus, in the light of above discussion, it is clear that there was enmity between P.W.-1 and the appellants due to enmity of criminal case, lodged against P.W.-1 by the appellants-Nabi Sher and Nabi Hasan. The prosecution has also failed to produce the independent witnesses, present at the spot, including the witness who carried the P.W.-1 to hospital and remained present with him for more than twelve hours since his departure from the place of occurrence till his arrival at District Hospital, Harodi. The conduct and evidence of P.W.-1 and P.W.-2, who were inimical to the appellants, are not trustworthy. Their statement regarding the time of occurrence as admitted by P.W.-2 that it was happened in the evening, is also contradictory with the statement of P.W.-1. Non filing of first information report at any police station i.e. Kath or Sahabad and failure to take medical aid for nearly 12 hrs by P.W.-1, further creates doubt in the prosecution story. In addition to above filing of first information report by delay of more than 18 hrs. without any reasonable explanation also has made the prosecution case doubtful. Learned trial Court, without considering the aforesaid fact of the prosecution story, passed the impugned judgment and order in cursory manner.
27. Thus, the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants. The appellants-Shakir Ali, Nabi Sher and Nabi Hasan are entitled for acquittal and both the appeals are liable to be allowed.
28. In view of the above, the impugned judgment and order passed by trial Court is set aside. Both the Criminal Appeal No.1330 of 2004 (Shakir Ali vs. State of U.P.) and Criminal Appeal No.1324 of 2004 (Nabi Sher and another vs. State of U.P.) are allowed. All the appellants-Shakir Ali, Nabi Sher and Nabi Hasan are acquitted. They are on bail. Their bail bonds are cancelled and sureties are discharged.
29. Keeping in view the provision of Section 437-A of the Code, appellants-Shakir Ali, Nabi Sher and Nabi Hasan are hereby directed forthwith to furnish a personal bond of a sum of Rs.20,000/- each and two reliable sureties each of the like amount before the trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, they, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.
30. A copy of this judgment along with lower court record be sent to trial Court by FAX for immediate compliance.
Order Date :- 08.01.2021 Mahesh