Uttarakhand High Court
Mohd. Nawab vs State Of Uttarakhand & Anr on 30 June, 2022
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Appeal No . 493 of 2013
Mohd. Nawab .....Appellant
Vs.
State of Uttarakhand & Anr. .....Respondents
Present:
Non appearance for the appellant.
Mr. J.S. Virk, the learned Dy. Advocate General and
Mr. Rakesh Kumar Joshi, the learned Brief Holder for
the State.
With
Government Appeal No. 25 of 2014
State of Uttarakhand .....Appellant
Vs.
Aftab Alam .....Respondent
Present:
Mr. J.S. Virk, the learned Dy. Advocate General and Mr.
Rakesh Kumar Joshi, the learned Brief Holder for the
respondent.
Mr. Sandeep Kothari, the learned counsel for the
respondent Aftab Alam.
Hon'ble Vipin Sanghi, C.J.
Hon'ble Sanjaya Kumar Mishra, J.
Date of hearing and judgment: 30.06.2022 (Upon hearing the learned counsel for the parties, this Court made the following judgment. Per: Sri S.K. Mishra, J.) This common judgment arises out of two appeals against acquittal, one prefer by the State of Uttarakhand bearing Government Appeal No. 25 of 2014 and by the injured Mohd. Nawab i.e. Criminal Appeal No. 493 of 2013.
2. In both the appeals exceptions are taken against the judgment and order dated 30.09.2013, passed in 2 Session Trial No. 369 of 2009 by the court of learned 4th Additional Sessions Judge, Haridwar.
3. The case of the prosecution in short is that on 14.07.2009, while the injured was working in the agricultural field had altercation with respondent. In course of such altercation, the respondent went his house, brought out the double barrel licensed gun of his father and shot at the injured, namely, Mohd. Nawab, causing serious injury on his leg. Therefore, he was shifted to the hospital for treatment. On 15.07.2009, the informant Naseem, who happens to be uncle of the injured, lodged an FIR before the S.H.O., Pathri, Police Station Haridwar, for which case crime no. 144 of 2009 was registered for the commission of offence under Sections 307 and 504 of the Indian Penal Code, 1860. (hereinafter referred to as the Penal Code for brevity).
After receipt of the FIR and registration thereof, the Investigating Officer took up the investigation of the case and in course of investigation, examined the complainant and the injured; and he also got the injured treated in the hospital and also sent requisition for his medical examination; seized material objects and gun allegedly used in the commission of offence. He also sent the material object to the Forensic Science Laboratory for chemical and ballistic examination. On completion of the investigation, a charge sheet was submitted against the respondent for the offences as described above.
34. In the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for brevity), the respondent took specific plea that on that day of incident, the injured himself tried to damage the tractor standing nearby and when he protested, the injured himself fired. He further took a plea that when Nawab fired at the respondent, his father fired in return in defence.
5. In order to prove its case, the prosecution examined 10 witnesses and led several documents into evidence. PW1 is the injured, PW3 is uncle of the injured, who has lodged the FIR, PW4 is the father of the respondent, who has supported the defence case. PW9, a police constable is the scribe. For the purpose of our discussion in the succeeding paragraphs, discussion of the rest of the witnesses is not necessary. It is also borne out from the record that the learned Additional Session Judge while appreciating the evidence on record took into consideration the fact that the prosecution has not been able to prove its case beyond reasonable doubt as the counter case is also lodged against the informant, has not been explained by the prosecution. In other words, the learned Additional Session Judge accepted the version of the defence and came to the conclusion that there is enough doubt in the evidences given by the prosecution.
6. Mr. J.S. Virk, the learned Dy. Advocate General would argue that prosecution has proved that the victim suffered a gun shot injury on his leg and upper 4 shafts of tibia and fibulo were affected by the gun shot. On medical examination, the medical officer found an entry wound and an exit wound. He further submitted that the learned Additional Sessions Judge has made unreasonable observations and has come to an erroneous conclusion, in view of the fact that injured eye witnesses have supported the case of the prosecution.
7. On the other hand, Mr. Sandeep Kothari, the learned counsel appearing for the respondent would submit that in this case the original FIR has been destroyed and in its place another FIR, implicating the respondent has been lodged by the investigating agency, and, therefore, the case of the prosecution has to be viewed with suspicion.
8. It is not disputed that the FIR has been lodged by PW3. He has stated in his examination-in-chief that on 15.07.2009 he had submitted a report in the Pathri Police Station which has been marked as Ex. 4A/2, however, in the cross-examination he has stated that police had taken Nawab to the Hospital and they accompanied the police but again he stated that they have not accompanied the police. He categorically admitted that the FIR which was submitted in the first instance that was torn or destroyed, and, then on the next day, another FIR was got scribed by the police and lodged in the Pathri Police Station. This witness has been declared hostile by the prosecution after cross-examination by the defence and his statement recorded under Section 5 161 of the Code has been confronted to him which he has denied. However, if the entire evidence read carefully it does not reveal that the prosecution has been able to get some substantial admission or statement to the effect that his evidence in cross- examination that the FIR that was lodged in the first instance was torn and another FIR was lodged.
9. Moreover, the evidence of PW3 gets corroboration from the evidence of PW9. PW9 was the scribe. He is a police constable. He has stated on oath that the FIR was lodged on 15.07.2009 and such FIR is exhibited as 4A/1. He has stated in his examination-in-chief that in the night at 1:30 a.m., there is entry in the G.D., regarding the registration of the FIR. However in the cross-examination, he has stated that there is overwriting in the G.D., on that day. He has further stated that the earlier First Information Report which is referred in the G.D., was not registered rather Naseem brought another FIR at 1:30 A.M. which was registered. He has denied further suggestion. Thus evidence of PW3 and PW9 shows that the original FIR that was registered in this case for the offences under Sections 307 and 506 of the Penal Code was suppressed and another FIR was lodged. This witness PW9 was not declared hostile by the prosecution and was not cross-examined. Thus, it is apparent that the prosecution has not assailed the statement made by him regarding the suppression of the first FIR and lodging of a second FIR by PW9.
610. PW4, who happens to be father of the respondent has stated that the victim himself has started to damage the tractor belonging to them and thereafter there was an altercation and therefore he himself fired from his license gun. All these evidences show that the prosecution has suppressed the first FIR which itself is a good ground of recording the judgment of acquittal. Secondly, it is further borne out from the record that there is a lagging and a reasonable doubt regarding the complicity of the respondent in commission of crime, especially, for the reasons stated above, and also for the fact that a counter-case was registered against the injured/ victim, in which, the Police submitted a Final Report, but on a Protest Petition filed by the informant of that case, the Magistrate proceeded under Section 156(3) of the Code and the prosecution do not explain how such case came to be registered, and, therefore, the learned Additional Session Judge was correct in coming to the conclusion that there is doubt in the case of the prosecution, and, therefore the respondent was correctly held to be not guilty.
11. In this case we also take note of quoted case of Ghurey Lal vs. State of Uttar Pradesh, (2008) 10 SCC 450 wherein the Hon'ble Supreme Court after taking into consideration several earlier decided cases has come to the conclusion that an appeal against acquittal stands in a different footing than appeal against conviction. In an appeal against acquittal, the presumption of innocence of the accused, till he is proven guilty, become stronger and only in a case 7 where substantial and compelling reasons exists a judgment of acquittal is turn over or over turn to a judgment of conviction.
12. In this case we are of the opinion that there is no substantial and compelling reason to set aside the order of acquittal and turn into one for conviction under Section 307 and 506 of the Penal Code. We also do not find any perverse reasoning or unreasonable appreciation of evidence of witnesses led on behalf of the prosecution to come to the conclusion that the learned Additional Sessions Judge has committed an error apparent on the face of the record, which requires interference of this Court.
13. In the result, we are not inclined to allow the appeals. The appeals, are, therefore, dismissed being devoid of merit. No body appear in the Criminal Appeal No. 493 of 2013. On the last date, Ms. Pushpa Joshi, the learned Senior Counsel appearing for the victim has submitted that she has no instructions. However, we heard the matter. Since, the impugned judgment challenged by the State Government we are of the opinion that no prejudice has been caused to the victim because a senior Law Officer has represented the State.
(Sanjaya Kumar Mishra, J.) (Vipin Sanghi, C.J.) PV