Allahabad High Court
State Of U.P. vs Tahir Khan & Others on 4 August, 2017
Bench: Shashi Kant Gupta, Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 26.07.2017 Delivered on 04.8.2017 Case :- GOVERNMENT APPEAL No. - 8135 of 2006 Appellant :- State Of U.P. Respondent :- Tahir Khan & Others Counsel for Appellant :- Govt. Advocate, Kunwar Ajai Singh, P.K. Singh, P.K.Singh Counsel for Respondent :- K.K. Arora,Bipin Kumar,R.K. Singh Hon'ble Shashi Kant Gupta,J.
Hon'ble Prabhat Chandra Tripathi,J (Delivered by Hon'ble Prabhat Chandra Tripathi,J.)
1. We have heard Sri Rajeev Gupta, learned A.G.A. for the appellant-State of U.P. and Sri K.K. Arora and Sri Bipin Kumar, learned counsel for the accused persons-respondents.
2. This appeal has been preferred by the appellant-State of U.P. against the impugned judgement and order of the then learned Additional Sessions Judge, Court No.5, Kanpur Dehat dated 30.08.2006 in Sessions Trial No.120 of 2003, arising out of Case Crime No.167 of 2002, under Sections 147, 148, 307/149 and 302/149 Indian Penal Code, Police Station Moosanagar, District Kanpur Dehat acquitting the accused-persons Tahir Khan, Babu Khan, Mangali, Tauseef Khan, Mohammad Hasan, Tauseef Khan, Farid Ahmad and Shakeel Ahmad of the charges levelled against them under Sections 147, 148, 307/149 and 302/149 I.P.C.
3. The written F.I.R. in Hindi Vernacular is enumerated as below:-
"The applicant-Ateek Ahmad Khan son of Sami Ahmad Khan, resident of village Chandpur, Police Station Moosanagar, District Kanpur Dehat moved a written First Information Report dated 10.05.2002 at 11:30 A.M. before the Station Officer, Police Station Moosanagar, District Kanpur Dehat on 10.05.2002 at 13:00 hours that on 10.05.2002 at about 11:30 A.M. his uncle (Bade Abba) went to fetch the water from the government hand pump. At the same time, Tahir Khan son of Babu Khan also came to fetch the water and restrained Mustak Khan to fetch the water. At the same time, Babu Khan, Mangali Khan, sons of Munne Khan, Tahir Khan son of Babu Khan, Tauseef Khan, Mohammad Hasan sons of Mangali Khan and Tauseef Khan son of Taufeek Khan wielding bamboo sticks, 'Farsa' (Grubbing Spade) and Axe came with a common opinion and the fight ensued. Upon hearing the noise, applicant-Ateek Ahmad Khan and his brother Yakub Khan and Israr Khan son of Mahboob Khan rushed to rescue them. Then Fareed Ahmad and Shakeel Ahamd sons of Haseeb Ahmad wielding guns reached and with intention to kill them fired at them. The brother of the applicant died at the spot from the bullet fired by Fareed. Applicant and his uncle (Bade Abba) Mustak received injuries in the fight. Mohammad Kamal, Asif son of Mustak Khan had witnessed the incident at the place of occurrence. He (applicant) had brought his dead brother Yakub Khan and prayed to lodge the report and legal action might be taken."
4. Upon written information of the informant, First Information Report was lodged in Case Crime No. 167 of 2002, under Sections 147, 148, 307 and 302 I.P.C. at Police Station Moosanagar, District Kanpur Dehat against the named accused persons Tahir Khan, Babu Khan, Mangali Khan, Tauseef Khan, Mohammad Hasan, both sons of Mangali Khan, Tauseef Khan son of Taufeek Khan, Farid Ahmad and Shakeel Ahmad, both sons of Haseeb Ahmad, resident of village Chandpur, Police Station Moosanagar, District Kanpur Dehat.
5. The prosecution has produced the following documentary evidence:-
"(i) Written F.I.R. (Exhibit Ka-1), (ii) Chik F.I.R. (Exhibit Ka-2), (iii) Copy of General Diary No.17 dated 10.05.2002, time 13:00 hours, Police Station Moosanagar, District Kanpur Dehat (Exhibit Ka-3), (iv) Medico-legal report of Mustak Ahamd (Exhibit Ka-4), (v) Medico-legal report of Ateek Ahmad (Exhibit Ka-5), (vi) Post Mortem Examination Report of Yakub Ahmad (Exhibit Ka-6), (vii) Fard Memo of recovery and possession of weapon of offence of two licensed factory made 12 bore guns one SBBL gun and another DBBL gun (Exhibit Ka-7), (viii) Fard Memo Site Plan of recovery of two 12 bore licensed factory made DBBL and SBBL guns from the accused Shakeel Ahmad and Fareed Ahmad (Exhibit Ka-8), (ix) Charge-sheet (Exhibit Ka-9), (x) Letter sent by the Chief Judicial Magistrate, Kanpur Dehat to Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 (Exhibit Ka-10), (xi) Inquest Report of Yakub Ahmad (Exhibit Ka-11), (xii) Police Form No.43 (Exhibit Ka-12), (xiii) Police Form No.33, Challan Form Post Mortem of the dead body of deceased Yakub Khan (Exhibit Ka-13), (xiv) Police Form No.379, Photo Nash (Exhibit Ka-14), (xv) Letter sent from Police Station Moosanagar, District Kanpur Dehat to the Reserve Inspector, Reserve Police Lines, Kanpur Dehat (Exhibit Ka-15), (xvi) Letter sent by Police Station Moosanagar, District Kanpur Dehat to the Chief Medical Officer, District Kanpur Dehat for post mortem examination of the deceased person Yakub Khan (Exhibit Ka-16), (xvii) Sample seal of Police Station Moosanagar, District Kanpur Dehat (Exhibit Ka-17), (xviii) Site plan (Exhibit Ka-18), (xix) Report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 13.11.2002 (Exhibit Ka-19) and (xx) Report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 31.12.2002 (Exhibit Ka-20).
6. The prosecution has produced following oral evidence:-
"P.W.-1 Mustak Ahamd, P.W.-2 Ateek Ahmad, P.W.-3 H.C.10 Arun Kumar Awasthi, P.W.-4 Dr. Anil Kumar Verma, P.W.-5 Dr. R.P.S. Chauhan, P.W.-6 S.I. Charan Singh and P.W.7 S.I. Ram Sajiwan."
7. The learned counsel for the appellant-State of U.P. has advanced his arguments on the following points:-
"(a) Fard Memo of recovery and possession of weapons of offence (Exhibit Ka-7) proves the recovery of weapons of offence under Section 27 The Indian Evidence Act, 1872.
(b) As per prosecution version, two firearms were used and two shots were fired."
8. Learned counsel for the accused persons-respondents has advanced his arguments on the following points:-
"(a) The prosecution has not produced any independent witness.
(b) Presence of the witnesses at the scene of occurrence is doubtful.
(c) The investigation is partisan, erroneous, baseless and site plan is a total mismatch
(d) The informant was known to the present accused-appellant."
9. The following extract of cross-examination of injured witness P.W.1 Mustak Ahmad is enumerated as below:-
''geus fdlh eqyfte ds gkFk es Qjlk ugh ns[kkA geus njksxk th dks Qjlss dh ckr ugh crk;h FkhA fdlh ds gkFk es Qjlk ugh FkkA-------
geus eaxyh] ckcw [kkW o rkSflQ [kkW oYn eaxyh [kkW dksbZ muds 'kjhj ij pksVs ugh ns[kh FkhA-------
glhc vgen dh cUnwd tCr djkus ds okor eSus nj[kkLr nh gSA mldh cUnw[ks tCr dj yh xbZ gSA rkjh[k ;kn ugh gSA ftl fnu dk okD;k gS mlh fnu glhc o cUnw[kks dks Fkkus ys x;s FksA okn esa tCr dh xbZ FkhA-------
mRrj o iwjc ds ?kjks ls Qk;fjax ugh gqbZ FkhA iqfy;k ls [kM+s gksdj Qk;fjax dh xbZ FkhA djhc 2&3 xt nwj ls Qk;fjax gqbZ FkhA-------
esjs edku ls feys gq;s osguks ds edku gSA osguks yksx Hkh 'kksj lqudj ckgj vk x;s FksA-------
'keh vgen ds edku ls esjk oqtqxhZ edku feyk gqvk gSA ogkW ij jgus okys yksx o jkgxhj feykdj 200 yksx ekSds ij vk x;s FksA-------
esjs Åij dqYgkM+h ls fdrus okj gq;s ugh crk ldrk esjs lj es 6 t[e gSA vrhd ds Åij dqYgkM+h ls fdrus okj gq;s eSa ugh crk ldrk eSus ugh fxusA-------
dqYgkM+h ls gedks ekjk x;k FkkA gekjh N% t[ke dqYgkM+h dh FkhA gejs Qjls ugha ekjs x;sA-------''
10. It has been mentioned in the First Information Report that accused persons were wielding bamboo sticks, Farsa (Grubbing Spade) and Axe, whereas P.W. 1 Mustak Ahmad in his cross-examination at the very outset has stated that he has not given the statement to 'Daroga Ji' about Farsa (Grubbing Spade). Nobody wielded Farsa (Grubbing Spade). Whereas, P.W. 6 Sub-Inspector Charan Singh, Investigating Officer of this case has specifically stated in his cross-examination that witness Mustak Ahmad has stated before him that accused persons were wielding bamboo sticks, Axe and Farsa (Grubbing Spade). Such type of factual contradiction creates serious doubt about the truthfulness of the prosecution case. Moreover, P.W.1 Mustak Ahmad has deposed in his cross-examination that the witnesses have pelted stones upon the accused persons;, such fact has been disclosed by him before the Investigating Officer, whereas P.W. 6 Sub-Inspector Charan Singh;, Investigating Officer has categorically denied this fact. These contradictions of depositions are of paramount importance. The testimony of this witness is relevant for the fact of prompt lodging of the First Information Report as revealed by the Chik F.I.R. (Exhibit Ka-2) but simultaneously the major factual contradictions shake the trustworthiness of this injured witness P.W.1 Mustak Ahmad.
11. The medico-legal reports which were produced by the defence e.g. injury report of Mangali Khan (Exhibit Kha-3), injury report of Babu Khan (Exhibit Kha-4), injury report of Tauseef Khan son of Mangali Khan (Exhibit Kha-5), injury report of under-trial Babu Khan (Exhibit Kha-6), injury report of under-trial Mangali Khan (Exhibit Kha-7) and supplementary report of under-trial Mangali Khan (Exhibit Kha-8) reveal that on 10.05.2002 and 11.05.2002, these injury reports were prepared at different time during course of the day. But, P.W.1 has blatantly denied to this fact of presence of any injury on the bodies of the accused persons Mangali Khan, Babu Khan and Tauseef Khan sons of Mangali Khan. This Court has an uncanny feeling that injured witness P.W. 1 Mustak Ahmad was purposely suppressing the true facts and was trying to suggest the wrong facts before the trial court which is instrumental in causing serious blow to the prosecution story. Conduct of this witness is covered by the Latin Legal Maxim suppressio veri; suggestio falsi : suppressing the truth; suggesting the false.
12. The admission of injured witness P.W. 1 Mustak Ahmad in his cross-examination that he had moved an application for seizure of the gun of Haseeb Ahmad and the guns were seized. He did not remember the date. On the date of incident, Haseeb Ahmad and guns were taken to the Police Station (which were) later on seized. Now, marshalling this deposition, it is crystal clear that SBBL gun and DBBL gun, which were weapons of offence were taken along with Haseeb Ahmad to the Police Station and both the guns were later on seized. This admission of the injured witness P.W. 1 Mustak Ahmad in his cross-examination seals the fate of the prosecution case. Due to this admission of the injured witness P.W. 1 Mustak Ahmad, the whole story of recovery and possession of weapons of offence of two licensed factory made 12 bore guns one SBBL gun and another DBBL gun becomes false and cooked-up. Resultantly, Fard Memo of recovery and possession of weapons of offence of two licensed factory made 12 bore guns one SBBL gun and another DBBL gun (Exhibit Ka-7) and Fard Memo Site Plan of recovery of two 12 bore licensed factory made DBBL gun and SBBL gun from the accused Shakeel Ahmad and Fareed Ahmad (Exhibit Ka-8) have no evidentiary value.
13. The prosecution has failed to examine any independent witness of the fact. P.W. 4 Dr. Anil Kumar Verma has examined the injured witness P.W.1 Mustak Ahmad and injured witness P.W. 2 Ateek Ahmad and has prepared their injury reports (Exhibit Ka-4 and Exhibit Ka-5 respectively). The opinions, which were expressed in both the above-mentioned injury reports are verbatim same and are enumerated as below:-
"Opinion:- All injuries are simple in nature & caused by hard & blunt object.
Duration - Fresh".
14. These injury reports were prepared on the date of incident i.e. on 10.05.2002 at 3:00 P.M. and 4:00 P.M. respectively. These injury reports do not corroborate the fact of use of Farsa (Grubbing Spade) and Axe in the fight.
15. The injured witness P.W. 2 Ateek Ahmad in his examination-in-chief has deposed as under:-
''-----2 lky ls dqN T;knk igys dh ckr gSA nksigj ds 11 ;k 11&1@2 cts dh ckr gSA cM+s vCck eq[rkj [kka ljdkjh uy es ikuh Hkjus x;s FksA ogh ij ckcw [kka o rkfgj [kka vk x;sA ikuh Hkjus ls euk fd;kA bu yksxks us eq[rkj [kka dks ikuh Hkjus ls euk fd;kA dgk lquh ij eaxyh mudk yM+dk rkSlhQ] eks0 glu] rkSlhQ ,l0@vks0 rkSQhd vk x;sA ;g yksx gkFkksa esa ykBh dqYgkM+h o dV~Vk fy;s FksA-------''
16. The perusal of the deposition of the injured witness P.W. 2 Ateek Ahmad in his examination-in-chief reveals that this witness has replaced the weapon of offence Farsa (Grubbing Spade) by the weapon of offence country made pistol which is nowhere mentioned in the First Information Report (Exhibit Ka-1). Such type of concocted and false deposition does not inspire the confidence in his testimony.
17. P.W.3 H.C. 10 Arun Kumar Awasthi is a formal witness.
18. P.W. 4 Dr. Anil Kumar Verma has examined and prepared the injury report of injured P.W. 1 Mustak Ahmad (Exhibit Ka-4) and injury report of injured witness P.W.2 Ateek Ahmad (Exhibit Ka-5) on the date of incident i.e. on 10.05.2002.
19. Startling fact in this connection is that in the cross case in Sessions Trial No.511 of 2003 (State of U.P. Vs. Mustak Khan and 7 others), arising out of case crime no.176-A of 2002, under Sections 147, 148, 323/149 I.P.C., P.S. Moosanagar, District Kanpur Dehat decided by the learned Additional District and Sessions Judge, Court No.5, Kanpur Dehat on 30.08.2006. This witness P.W. 5 Anil Kumar Verma has prepared injury report of Mangali Khan (Exhibit Kha-3), injury report of Babu Khan (Exhibit Kha-4) and injury report of Tauseef Khan (Exhibit Kha-5). These injury reports were also prepared on the same day of incident i.e. on 10.05.2002 at various time of the day.
20. No cogent and plausible reasons were advanced on behalf of the appellant-State of U.P. about the injuries of Mangali Khan, Babu Khan and Tauseef Khan. This veiled conduct of the prosecution casts an opaque umbra upon the obscure production of the evidence and causes ventage in the prosecution canopy.
21. P.W. 5 Dr. P.B.S. Chauhan, who conducted the post-mortem upon the dead body of Yakub Ahmad, noted the following ante-mortem injuries:-
"(1) Multiple firearm wounds of entry over left temple (face & forehead) in area of 10 x 8 cm inverted margins, each measuring ½ cm diameter to ¼ x ¼ cm x brain cavity. C underlying bone fracture. Collar of abrasion and contusion present.
(2) Multiple firearm wounds of entry over left upper chest, left shoulder, outer aspect of Lt arm, elbow are of 31 x 20 cm. C inverted margins measuring between ½ cm diameter to ½ x ¼ cm x under deep. Collar of abrasion and contusion present.
(3) Multiple firearm wounds of entry in area of 17 x 5 cm over right elbow and forearm. C inverted margins x muscle deep. Area ½ cm diameter to ¼ x ½ cm. Collar of abrasion and contusion present.
(4) Abrasion 3 cm over front of chest over upper sternum.
(5) Abraded contusion 2 x 3 cm on front of both knee joints."
22. Learned A.G.A. has vehemently argued that both the weapons of offence viz. two licensed factory made 12 bore guns one SBBL gun and another DBBL gun were used in commission of the crime and has put reliance upon the following deposition of the injured witness P.W.1 Mustak Ahmad which was made in his examination-in-chief:-
''esjh ph[k iqdkj lqudj esjk Hkrhtk vrhd nkSM+ dj vk;k rks eqyfteku ges NksM+ dj iqfy;kW ds ikl tk dj vrhd dks ekjus yxsA blh chp iqfy;kW ij Qjhn vkSj ldhy cUnwd ysdj vk x;s vkSj vrhd ds HkkbZ ;kdwc tks lM+d ds ml ikj ls vk jgk Fkk dks tku ls ekjus dh fu;r ls xksyh pyk nhA ftlls ;kdwc dks pksVs vk;h og fxj x;kA''
23. This deposition of P.W.1 is not in consonance with the First Information Report (Exhibit Ka-1). In the First Information Report (Exhibit Ka-1), it has been clearly mentioned that brother of the informant (Ateek Ahmad Khan) died by the bullet fired by Fareed.
24. This self-contradictory version of the prosecution story will shatter its case. Moreover, the ante-mortem injuries recorded in the post-mortem examination of the deceased Yakub Ahmad also do not support the contents of the First Information Report (Exhibit Ka-1).
25. The suggestion which was made to this witness near the end of the cross-examination at the later part of it proved insidious to the prosecution.
26. It is also settled law that the motive looses of its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a strong motive for the accused person to commit a particular crime he cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if, there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. As pointed out, even the accused persons have stated that they have been falsely implicated due to previous enmity, in such circumstances, it was stringent duty of the prosecution witnesses to specifically prove their case beyond doubt and without any contradictions which the prosecution side has utterly failed.
27. The report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 13.11.2002 (Exhibit Ka-19) and report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 31.12.2002 (Exhibit Ka-20) have neither been proved by any prosecution witness nor they have been proved under Section 294 Cr.P.C.
28. P.W. 6 Sub-Inspector Charan Singh is the Investigating Officer and P.W.7 Sub-Inspector Ram Sajiwan has proved the prosecution papers e.g. inquest report (Exhibit Ka-11) and other police papers viz. Exhibit Ka-12, Exhibit Ka-13, Exhibit Ka-14, Exhibit Ka-15, Exhibit Ka-16 and Exhibit Ka-17. This witness has also prepared the site plan (Exhibit Ka-18).
29. P.W. 7, Sub-Inspector, Ram Sajiwan, Investigating Officer, who has prepared the site plan did not disclose the time of his arrival at the place of occurrence. He has not entered the time of opening and closure of the investigation in the case diary. No blood was found at the place of occurrence. No independent witnesses were procured. Such type of major errors were committed by this witness P.W. 7 Sub-Inspector Ram Sajiwan, who was also one of the Investigating Officer of this case. Obviously, this will ruin the prosecution case.
30. Thus, the view taken by the learned Trial Judge is the only possible view. Moreover, the impugned judgement and order dated 30.08.2006 does not suffer from any illegality and perversity.
31. No other points have been raised before us by the learned counsel for the appellant-State of U.P.
32. In view of the foregoing discussions, the appeal is found to be devoid of any merit. The appeal thus fail and is accordingly dismissed on merits.
ORDER
(i) This appeal is dismissed on merits.
(ii) The impugned judgement and order of the then learned Additional Sessions Judge, Court No.5, Kanpur Dehat dated 30.08.2006 in Sessions Trial No.120 of 2003, arising out of Case Crime No.167 of 2002, under Sections 147, 148, 307/149 and 302/149 Indian Penal Code, Police Station Moosanagar, District Kanpur Dehat acquitting the accused-persons Tahir Khan, Babu Khan, Mangali, Tauseef Khan, Mohammad Hasan, Tauseef Khan, Farid Ahmad and Shakeel Ahmad of the charges levelled against them under Sections 147, 148, 307/149 and 302/149 I.P.C. is hereby affirmed.
(iii) Let the entire original record of this case be sent back within ten days to the Court of the learned Sessions Judge, Civil and Sessions Court, District Kanpur Dehat.
Order Date :- 04.8.2017 S.Sharma