Uttarakhand High Court
Zakir vs State Of Uttarakhand on 11 April, 2023
Author: Ravindra Maithani
Bench: Sharad Kumar Sharma, Ravindra Maithani
Reserved
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 11 of 2018
Zakir ..........Appellant
Vs.
State of Uttarakhand ........ Respondent
Present : Ms. Pushpa Joshi, Senior Advocate assisted by Ms. Chetna Latwal,
Advocate for the appellant.
Mr. J.S. Virk, Deputy Advocate General for the State.
With
Criminal Appeal No. 12 of 2018
Aakil and others ..........Appellants
Vs.
State of Uttarakhand ........ Respondent
Present : Mr. Shashi Kant Shandilya, Advocate for the appellants.
Mr. J.S. Virk, Deputy Advocate General for the State.
With
Criminal Appeal No. 25 of 2018
Meharban ..........Appellant
Vs.
State of Uttarakhand ........ Respondent
Present : Mr. Mohd. Safdar, Advocate for the appellant.
Mr. J.S. Virk, Deputy Advocate General for the State.
JUDGMENT
Hon'ble Sharad Kumar Sharma, J.
Hon'ble Ravindra Maithani, J.
Per: Hon'ble Ravindra Maithani, J.
Since all these appeals arise from a common judgment and order, they are being heard and decided together.
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FACTS
2. The appellants Aakil, Sajid, Raees, Zakir and Meharban have been convicted under Sections 147, 148, 452, 302 read with 149, 504, 506 IPC, in Sessions Trial No.287 of 2011, State vs. Aakil and others, by the court of District and Sessions Judge, Haridwar on 28.11.2017 and sentenced as hereunder:-
(i) Under Section 147 IPC to undergo imprisonment for a period of one year with a fine of Rs. 1000/-. In default of payment of fine, to undergo imprisonment for a further period of one month.
(ii) Under Section 148 IPC to undergo imprisonment for a period of one year with a fine of Rs. 1000/-. In default of payment of fine, to undergo imprisonment for a further period of one month.
(iii) Under Section 452 IPC to undergo imprisonment for a period of three years with a fine of Rs. 2000/-. In default of payment of fine, to undergo imprisonment for a further period of three months.
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(iv) Under Section 302/149 IPC to undergo rigorous imprisonment for life with a fine of Rs. 50,000/-.
(v) Under Section 504 IPC to undergo imprisonment for a period of three months with a fine of Rs. 500/-. In default of payment of fine, to undergo imprisonment for a further period of 10 days.
(vi) Under Section 506 IPC to undergo imprisonment for a period of six months with a fine of Rs. 500/-. In default of payment of fine, to undergo imprisonment for a further period of 15 days.
3. The appellant Aakil has also been convicted under Section 25 of the Arms Act, 1959 (for short, "the Arms Act") in Sessions Trial No.288 of 2011, State vs. Aakil, by the court of District and Sessions Judge, Haridwar on 28.11.2017 and sentenced to undergo three years rigorous imprisonment with a fine of Rs.2,000/-. In default of payment of fine, to undergo imprisonment for a further period of three months.
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4. In Criminal Appeal No.11 of 2018, the appellant Zakir, in Criminal Appeal No.12 of 2018 the appellants Aakil, Sajid and Raees, in Criminal Appeal No.25 of 2018 the appellant Meharban have challenged the impugned judgment and order dated 28.11.2017.
5. The prosecution case briefly stated is as follows. PW1 Shahnawaz, the informant and the appellants are the residents of the same village and have stayed in the neighbourhood. The appellants and their family members would stop a naali (drain) that runs in front of the house of the informant from East to West. The appellants and their family members would also fight with the informant and their family members. On 04.06.2011, at 08:00 in the morning, the appellants and their family members tried to stop the naali. The deceased Shahnazar objected to it. At that moment, the family members of the appellants exhorted the appellants to kill Shahnazar. The appellants chased the deceased Shahnazar. The deceased Shahnazar raised an alarm and entered into the house of his uncle Khaleel. He was followed by the appellants. The informant Shahnawaz tried to save his brother and raised an alarm. The father of the informant PW3 Shakeel and his 5 uncle PW5 Khaleel and other persons came at the spot, but the family members of the appellants stopped them and did not permit them to rescue the deceased Shahnazar. The appellants Sajid, Zakir, Raees and Meharban caught hold of Shahnazar and the appellant Aakil fired at the deceased Shahnazar. Shahnazar was taken to the hospital, but he was declared brought dead. A report of the incident was given by PW1 Shahnawaz at 09:15 AM at Police Station Kotwali Manglaur, District Haridwar. A case under Sections 147, 148, 149, 452, 302, 504, 506 IPC was lodged against the appellants and their family members namely, Smt. Nusrat, Smt. Dilshana, Smt. Reshma and Smt. Akhtari. The Investigating Officer collected articles from the place of occurrence i.e. a bullet, plain & blood stained soil and one chappal. The recovery memos were prepared. Site plan was also prepared on the same day. It is the prosecution case that on 11.06.2011, at the instance of appellant Aakil, a country made pistol of 0.315 bore was recovered from a secluded place in the forest. The country made pistol had a cartridge case also in it. A recovery memo was prepared and another Case Crime No.200 of 2011, under Section 25 of the Arms Act was lodged at Police Station Kotwali Manglaur, District 6 Haridwar against appellant Aakil, which was separately investigated.
6. The inquest report of deceased Shahnazar was prepared on 04.06.2011. On the same date, his postmortem was conducted. According to the doctor the cause of the death was injury on the vital organ and shock due to firearm injury. The recovered country made pistol was sent to the Forensic Science Laboratory for its examination, but the report did not reveal any finding that the bullet which was recovered from the place of occurrence was fired through the country made pistol, which was allegedly recovered at the instance of the appellant Aakil. After investigation, charge-sheet under Sections 147, 148, 149, 302, 452, 504, 506 IPC was submitted against the appellants and co-accused namely Smt. Nusrat, Smt. Akhtari, Smt. Dilshana and Smt. Reshma. Cognizance was taken and the case was committed for trial to the Sessions Court. Charge-sheet under Section 25 of the Arms Act was also submitted against the appellant Aakil, in which, cognizance was taken and both these trials proceeded together. On 07.02.2012, charge under Sections 147, 148, 452, 302 read with 149, 504, 506 IPC was framed against all the 7 appellants and co-accused to which they denied and claimed trial. Charge under Section 25 of the Arms Act was also framed against the appellant Aakil, to which he denied and claimed trial.
7. In order to prove its case, the prosecution examined 13 witnesses namely, PW1 Shahnawaz, PW2 Meharban Akhtar, PW3 Shakeel, PW4 Ahsaan Ali, PW5 Khaleel, PW6 Gayyur Alaam, PW7 Dr. Yogendra Kumar, PW8 Inspector Mahendra Singh Negi, PW9 Inspector Pratipal Singh Rautela, PW10 Constable Chetan Singh, PW11 Head Constable Ram Lal, PW12 SI Raj Kumar and PW13 SI Deep Kumar.
8. The appellants and the other accused were examined under Section 313 of the Code of Criminal Procedure, 1973. According to them; the witnesses have falsely deposed against them; they have been falsely implicated. In their defence, the appellants also examined 09 witnesses, namely; DW1 Naseem, DW2 Sanjay Kumar, DW3 Surendra Kumar, DW4 Gopal Singh Chauhan, DW5 Lokesh Kumar, DW6 Naseem Ahmed, DW7 Kurbaan, DW8 Wahid and DW9 Vishal Sharma.
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9. After hearing the parties, by the impugned judgment and order, Smt. Nusrat, Smt. Akhtari, Smt. Dilshana and Smt. Reshma have been acquitted of the charge framed against them, but the appellants have been convicted and sentenced, as stated hereinbefore. Aggrieved by it, the present appeals have been preferred.
10. Heard learned counsel for the parties and perused the record.
ARGUMENTS
11. Learned counsel for the appellants Aakil, Shakeel and Raees would submit that the prosecution utterly failed to prove its case beyond reasonable doubt. The court below wrongly convicted and sentenced the appellants.
12. It is argued that the site plan does not show any naali in front of the house of PW1 Shahnawaz, the informant. Therefore, the prosecution case fails on this count that any naali was blocked by the appellants on the date of incident, which according to the learned counsel for Aakil, Sajid and Raees doubts the prosecution case. Learned counsel also raised the following points in his submission:-
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(i) According to the doctor, who conducted postmortem, the entry wound on the head of the deceased had blackening. It is argued that the blackening could take place when the fire is made within 3 feet range whereas, it is argued that according to PW1 Shahnawaz, the deceased was fired from a distance of 6 feet. It is argued that it doubts the prosecution case.
(ii) PW3 Shakeel and PW5 Khaleel were not at the place of incident. The first Investigating Officer, Mahendra Singh Negi conducted the investigation till 16.06.2011, but he did not record the statements of these two witnesses.
Long thereafter, these two witnesses have stated that they gave an affidavit to the police and thereafter, their statements were recorded on 10.07.2011. It is argued, it doubts the prosecution case.
13. Learned Senior Counsel appearing for the appellant Zakir would submit that the statements of PW3 Shakeel and PW5 Khaleel are not reliable, they are not the witnesses of the incident. Their statements were 10 recorded long after the incident. Learned Senior Counsel also raised the following points in her submission:-
(i) The inquest was allegedly prepared at 10:00 AM on 04.06.2011, but its author PW12 Raj Kumar has stated that he was not aware of any FIR till he prepared inquest. It is argued that on the second page of the inquest report a different report given to police is reproduced, according to which, on 04.06.2011, PW3 Shakeel informed the police that appellant Aakil fired on the head of Shahnazar by a country made pistol, due to which, Shahnazar was seriously injured.
He was taken to the hospital, but he died. It is argued that this report is not produced by the police. This could be termed as an FIR. The document, which have been proved as an FIR and exhibited as A1 cannot be termed as an FIR. It is at the most a statement recorded during investigation, but since it is signed, it is an inadmissible evidence.
(ii) According to the prosecution case, the family members of the appellants, who were accused at the trial and have been acquitted had stopped PW3 Shakeel and PW5 Khaleel to enter into the room 11 where the deceased was shot dead. It is argued that these two witnesses could not have seen as to what happened inside the room.
(iii) PW12 Raj Kumar has stated that police had received an information at about 08:30 AM with regard to the incident which was recorded in G.D. Report No.28 at 08:30 AM. It is argued that till then, only appellant Aakil was named, no other appellant was named as an accused.
(iv) Appellant Zakir was with his daughter, she was unwell. He was not in the village.
14. Learned counsel appearing for the appellant Meharban would submit that he was not at the place of incident. He is a Revenue Amin. He was on his duty, which has been proved by the defence witnesses. It is also submitted that the appellant Meharban is not related to any of the appellants. He had no motive. Learned counsel would submit that based on the same evidence, the other named accused have already been acquitted by the trial court. Therefore, the appellant cannot be convicted on the same evidence.
15. Learned State counsel would submit that the prosecution has been able to prove its case beyond 12 reasonable doubt. He would raise the following points in his submission:-
(i) The incident took place at 08:00 AM and immediately thereafter, at 09:15 AM, FIR had been lodged. It is argued that at 08:30 AM, the information, that was received by the police, could not have been termed as an FIR because it was cryptic.
(ii) PW1 Shahnawaz, PW3 Shakeel and PW5 Khaleel have supported the prosecution case.
They have been extensively cross-examined, but nothing has been revealed in their cross- examination, which may doubt their credibility.
(iii) DW8 Wahid had also admitted the place of incident because he has said that in the house of Khaleel, they had seen the deceased Shahnazar with a fire shot on him.
(iv) Weapon of offence was recovered at the instance of appellant Aakil. The Forensic Science Report although did not conclusively prove that the same weapon was used in the offence, but it has also not given a finding that 13 the weapon was not used in the commission of offence.
(v) It is submitted that the investigation can be initiated on an FIR or otherwise. Lodging of an FIR is not necessary for initiation of investigation.
(vi) Inquest report is not a substantive evidence. It can only be used to counter its author. Even otherwise, the information which was recorded by PW12 Raj Kumar in the inquest report is part information. It is not complete information so as to be termed as an FIR.
(vii) PW1 Shahnawaz, PW3 Shakeel and PW5 Khaleel had witnessed the incident. They had categorically stated about it. Now, it cannot be said that they have not seen the incident because these witnesses were not cross- examined on that aspect.
(viii) Motive loses its significance, if there is a direct evidence. Even otherwise, the naali flows in front of the house of PW5 Khaleel. PW1 Shahnawaz, PW3 Shakeel and PW5 Khaleel are from the same family. The reference to naali in 14 the FIR is to the naali that flows in front of the house of PW5 Khaleel, therefore, there is a motive also.
(ix) In support of his contention, learned counsel has placed reliance on the principle of law as laid down in the case of Sidhartha Vashisht vs. State (NCT of Delhi) (2010)6 SCC, 1 and Pappu Tiwary vs. State of Jharkhand and connected criminal appeal, 2022 SCC Online SC 109. In the case of Sidhartha Vashisht (supra), the Hon'ble Supreme Court discussed as to what constitutes an FIR. In paras 101 and 105, the Hon'ble Supreme Court observed as hereunder:-
"101. It is the submission of the learned Senior Counsel for the appellant Manu Sharma that the statement of Rohit Bal, PW 70 ought to have been used for the purpose of registration of the FIR instead of Shyan Munshi, PW 2. It was demonstrated that Rohit Bal had made two calls on "100" on coming to know by other persons that Jessica Lal has been shot inside the Cafe. As against this, Shyan Munshi, PW 2 was very much within the vicinity of the place of occurrence and, therefore, the statement of Shyan Munshi was used for the purpose of registration of FIR. It is relevant to point out that PW 70 has never claimed to have witnessed the 15 incident. He confirmed his presence on the spot and having seen PW 20 accosting a man.
105. The judgment in Khwaja Nazir Ahmad [(1943-44) 71 IA 203 : AIR 1945 PC 18] is also distinguishable as the law laid down in the said case does not concern the issue involved in the present case. Cryptic telephonic messages could not be treated as FIR as their object only is to get the police to the scene of offence and not to register the FIR. The said intention can also be clearly culled out from a bare reading of Section 154 of the Criminal Procedure Code which states that the information, if given orally, should be reduced in writing, read over to the informant, signed by the informant and a copy of the same be given free of cost to the informant. In the case on hand, the object of persons sending the telephonic messages including PW 70 Rohit Bal was only to bring the police to the scene of offence and not to register the FIR."
(x) In the case of Pappu Tiwary (supra), the Hon'ble Supreme Court discussed the utility of an inquest report. In paras 30, 31 and 32, the Hon'ble Supreme Court observed as hereunder:-
"30. Now turning to the next plea on which a lot of emphasis was placed by learned counsel for the appellant, it was urged that there was a major discrepancy between the inquest report (Ex.3) and the post-mortem report (Ex.1). This aspect was actually sought to be linked to the plea of the FIR being ante timed. There are stated to be differences in the version which would 16 indicate that the fardbeyan was lodged only after the post-mortem report. The factual basis for the same is stated to be that in the inquest report six injuries are mentioned with no mention of gunshot injury while the post-mortem report shows that there are 26 injuries including the gunshot injury. The pistol was not recovered from him nor any cartridge found and A.S.I. Rajnikant Jha who recorded both the fardbeyan as well as the inquest report was not examined by the prosecution. On this aspect learned counsel relied upon the observations in Maula Bux v. State of Rajasthan [(1983) 1 SCC 379].
31. On the other hand learned counsel for the State sought to submit that inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest Suresh Rai v. State of Bihar [ (2000) 4 SCC 84]. He submitted that the inquest report is not really an evidence by itself and cannot be pitted against the evidence of the medical witness in court Surjan & 12 others v. State of Rajasthan [AIR 1956 SC 425]. Learned counsel drew our attention to the observations in Pedda Narayana & others v. State of Andhra Pradesh [(1975) 4 SCC 153] opining that the object of proceedings under Section 174 Cr.P.C. is merely to ascertain that whether the person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of death. The details, however, as to how the deceased was assaulted or who assaulted him would be foreign to the scope of proceedings under Section 174 of the Cr.P.C., nor are such details required to be mentioned in the inquest report Yogesh Singh v. Mahabeer Singh & others [(2017) 11 SCC 195].17
32. Learned counsel next turned to the more recent judgment of this Court in Tehseen Poonawalla v. Union of India & another [(2018) 6 SCC 72] opining that the purpose of holding an inquest is limited and the inquest report does not constitute substantive evidence. As compared to an inquest report, the doctor who conducts the post-mortem examination, examines the body from a medico-legal perspective. It is, thus, the post-mortem report that is expected to contain the details of injuries through a scientific examination. In that context he submitted that Maula Bux (supra) case did not help the appellant as a police officer who prepared the inquest panchnama is not an expert in medical jurisprudence."
DISCUSSION AND CONCLUSION
16. PW1 Shahnawaz is the informant. He has proved FIR Ex.A1. He has stated that a naali flows in front of his house on West to East. Due to this naali, they had bitter relations with the appellants and their family members. On 04.06.2011, the appellants tried to close the naali. Deceased Shahnazar objected to it. Thereafter, appellants along with other family members chased Shahnazar to kill him. Deceased Shahnazar raised an alarm and entered into the house of PW5 Khaleel, but the appellants and their family members caught hold of him. This witness tried to save his brother and also raised an alarm. PW5 Khaleel, the mother of this witness, his brother Waseem and others also rushed 18 to the spot, but the family members of the appellants stopped them from saving the deceased Shahnazar.
17. PW1 Shahnawaz has stated that appellant Aakil fired at Shahnazar and ran away. The deceased Shahnazar was taken to hospital, but the doctor declared him brought dead. PW3 Shakeel, who is the father of PW1 Shahnawaz and the deceased Shahnazar and PW5 Khaleel in whose house the deceased was killed have corroborated the statement of PW1 Shahnawaz in their examination-in-chief.
18. PW2 Meharban Akhtar and PW6 Gayyur Aalam have not supported the prosecution case. The prosecution tried to produce them as witnesses of recovery of articles from the place of occurrence.
19. PW4 Ahsaan Ali is a witness of inquest. He has signed the inquest. It is important to note that in the inquest report, the witnesses had opined that the deceased died due to a firearm injury which was caused by the appellant Aakil. PW4 Ahsaan Ali has stated that this opinion was based on the information given by the family members of the deceased.
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20. PW7 Dr. Yogendra Kumar had conducted postmortem of the deceased Shahnazar on 04.06.2011 at 03:16 PM. He has stated about two injuries, that were detected on the dead body. They are as follows:-
(i) A wound of entry on the top of head 2 cm x 1.5 cm with blackening present, 14.5 cm above the left ear. Margins inverted.
(ii) A wound of exit 4.5 cm x 2.5 cm over left side of forehead, just above the left eyebrow with everted margins and blood clotting present around the wound.
(iii) There were fractures on both sides of parietal bone and frontal bone.
21. PW7 Dr. Yogendra Kumar has also stated that at the entry of wound, there were hair singed also. The track of bullet has also been recorded in the postmortem report which has been proved by PW7. According to it, "bullet had entered by piercing and fracturing the parietal bone to brain almost midline and deviated towards the left side and made an exit by fracturing and piercing frontal bone just above the left eye brow along brain matter tissue leading to a small tumid." 20
22. PW8 Mahendra Singh Negi is the initial Investigating Officer, who was In-Charge Inspector of Kotwali Manglaur at the relevant time. He conducted investigation. According to him, he recovered a bullet from the place of incident and prepared recovery memo Ex.A4. He had also taken into custody the plain and blood stained soil, a bullet and a Chappal from the place of incident. He has also proved the site plan of the place of incident as well as the place from where the country made pistol was recovered at the instance of appellant Aakil. He has proved the recovery memo of country made pistol and other articles.
23. PW9 Inspector Pratipal Singh Rautela took Investigation from PW8 Mahendra Singh Negi on 06.07.2011. According to him, on 10.07.2011, he had recorded the statements of PW3 Shakeel and PW5 Khaleel. He had filed a charge-sheet against all the appellants.
24. PW10 Chetan Singh has recorded Chik FIR against appellant Aakil under Section 25 of the Arms Act. 21
25. PW11 Head Constable 62 Ram Lal is Chik Writer of the case against all the appellants and its GD Entry.
26. PW12 Raj Kumar has prepared inquest report and other documents. He has proved them.
27. PW13 SI Deep Kumar is the Investigating Officer of the case under Section 25 of the Arms Act against the appellant Aakil. He has proved the document including a charge-sheet.
28. On behalf of the appellants also witnesses have been examined. DW1 Naseem has stated that about 3 - 3½ years prior to his statement, one day at 08:00 in the morning, he had paid land revenue to the appellant Meharban and he had given receipt of the same.
29. DW2 Sanjay Kumar was the Manager of a Nursing Home. He had brought the documents pertaining to the daughter of Zakir, who was treated at their nursing home. He states that the Nursing Home's record of 2011 also reflects that Firdaush was admitted to the Nursing Home on 31.05.2011 at 01:15 PM and discharged on 09.06.2011.
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30. DW3 Surendra Kumar is an employee of Tehsil. He has stated about certain receipts that were issued to the appellant Meharban.
31. DW4 Gopal Singh Chauhan was Naib Tehsildar, according to him, on 04.06.2011 at 08:00 in the morning, he had seen appellant Meharban in the Village Mukkarmpur discharging his duties. He had collected land revenue on that date.
32. DW5 Lokesh Kumar has stated about telephone location of the appellant Zakir from 31.05.2011 to 03.06.2011. He has also stated that the location details for 04.06.2011 are with some agency
33. DW6 Naseem Ahmed has also stated about appellant Zakir that he had stayed in Roorkee and on 03.06.2011, he had gone to see his daughter at Chaurasiya Nursing Home.
34. DW7 Kurbaan has stated that the appellant Sajid was with them in a Jamaat on 04.06.2011. They were in Calcutta on that date. According to him, they had left Manglaur on 29.05.2011.
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35. DW8 Wahid is a villager. His house is situated across the pathway of the house of PW5 Khaleel. He has stated that at about 05:00 in the morning, one day he had heard a fire shot and he saw someone running away, but he could not identify that person. He along with other persons entered into the house of PW5 Khaleel and saw that the deceased was lying there with a fire shot. He is the closest neighbour of PW5 Khaleel.
36. DW9 Vishal Sharma has also brought the call details and location of the telephone number.
37. In the criminal trial, the prosecution has to prove its case beyond reasonable doubt. Mere suspicion, howsoever strong, may not be a ground to convict any person. In the case of Krishnanand Agnihotri vs. State of Madhya Pradesh, (1977)1 SCC 816, the Hon'ble Supreme Court had observed that, "It is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence." In the case of Mohan Singh and another vs. State of M.P., (1999)2 SCC 428, the Hon'ble Supreme Court inter alia observed that, "Efforts should be made to find the truth, this is the very object for which 24 courts are created. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. "
38. First Information Report in criminal cases rolls the wheels of justice. It is quite important piece of information, which finds scrutiny during investigation or trial. In the case of Thulia Kali vs. State of Tamil Nadu, (1972)3 SCC 393, the Hon'ble Supreme Court observed that, "First information report in a criminal case is an extremely vital and valuable piece of evidence for the 25 purpose of corroborating the oral evidence adduced at the trial."
39. Evidence is appreciated in accordance with the settled legal propositions. The word 'proved' has been defined under Section 3 of the Indian Evidence Act, 1872. In the case of K. Ponnuswamy vs. State of T.N. (2001)6 SCC 674, the Hon'ble Supreme Court discussed the law on 'proved' and relevant factors and observed as hereunder:-
"27. ........................................................................ ................................................................................. ................................................................................. ................................................................................. .................................................................................
There can be no dispute with the legal proposition. However, let us see what is meant by "proved". Section 3 of the Evidence Act defines "proved"
as follows:
"3. 'Proved'.--A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
Further, Section 114 of the Evidence Act reads as follows:
"114. Court may presume existence of certain facts.-- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct 26 and public and private business, in their relation to the facts of the particular case."
Thus the fact is said to be proved when after considering the matters before it, the court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case."
40. The first and foremost argument, which has been raised on behalf of the appellants, is with regard to non-existence of motive. It is a settled legal proposition that in the cases of direct evidences, the motive loses its significance. Fact remains that the appellants and the informant's family were not in good terms. In para 18 of his statement, PW1 Shahnawaz has categorically stated that his family is not in talking terms with the family of appellant Aakil. But then, enmity is a double edged sword. On the one hand, it may be a reason for someone to cause an offence, but on the other hand, it may also be a reason for false implication, therefore, in such cases, the Court should always be much cautious while examining or scrutinizing the material before it. 27
41. During the course of arguments on behalf of the State it has been argued that the prosecution case has to be relied on because no father would implicate some persons other than real assailants. It has been argued that there is no reason for PW1 Shahnawaz and PW3 Shakeel to implicate the appellants falsely and let the real assailants go. Merely because of this proposition, a finding of guilt may not be returned. As stated, prosecution has to prove its case beyond reasonable doubt.
42. PW1 Shahnawaz has categorically stated in his FIR that there is a naali flowing in front of their house from East to West that carries water of their houses. In his statement, this has also been reiterated by PW1 Shahnawaz. In the initial lines, he states that the naali runs from West to East. Site Plan Ex.A7 has been proved by PW8 Mahendra Singh Negi. In this site plan, no naali has been shown in front of the house of PW1 Shahnawaz. In fact, the house of PW1 Shahnawaz has been shown on the extreme right and on the West of it is the house of appellant Aakil and its left is the house of PW5 Khaleel. The naali has been shown in half of the portion of the house of Khaleel cutting through the pathway towards 28 North-East. When confronted with it in his examination recorded on 14.08.2014, PW8 Mahendra Singh Negi at page 3 has stated that this naali is only up to the house of PW5 Khaleel. It does not move towards East to the house of appellant Aakil or of the house of deceased Shahnazar.
43. PW5 Khaleel has also been asked about this naali. He tells at page 8 of his examination that the water flows in a naali from his house towards Eastern side, but beyond his house there is no naali. Thereafter, it spills in open. The statements of the witnesses categorically establish that, in fact, there is no naali in front of the house of PW1 Shahnawaz or PW3 Mohd. Shakeel.
44. It is being argued that PW5 Khaleel is a family member of PW1 Shahnawaz and PW3 Shakeel, therefore, reference to naali in FIR is to the naali which flows in front of the house of PW5 Khaleel. This argument has less force for acceptance because it is admitted case of the prosecution that Khaleel has two houses, one where allegedly the incident has taken place and one another house where PW5 Khaleel stays. PW1 Shahnawaz and PW3 Shakeel have separate houses. Even if PW1 Shahnawaz, PW3 Shakeel and PW5 Khaleel are relatives, 29 it cannot be construed to infer that the naali, which is referred to in the FIR and which has been stated by the PW1 Shahnawaz is the naali which flows in front of the house of PW5 Khaleel. This is so because in the FIR, PW1 Shahnawaz has categorically stated that a naali flows in front of his house. His house does not mean PW5 Khaleel's house. This is what PW1 Shahnawaz has stated in the initial lines of his examination.
45. As stated, in the cases of direct evidence, motive loses its significance, but then, the origin of dispute has been attributed as proposed closure of naali by the appellants on 04.06.2011. But, as stated, there is no naali in front of the house of PW1 Shahnawaz or PW3 Shakeel. Therefore, the cause of dispute, as stated, in fact, does not exist. The question is why it has been so written in the FIR? It is not clear. It is in the realm of obscurity.
46. After all, allegedly the incident took place at 08:00 in the morning. How did it ignite? As stated, there is no naali in front of the house of PW1 Shahnawaz. PW1 Shahnawaz at paras 9 and 10 of his statement has stated that they approached the appellants from their Baithak, which is towards West of the house of the appellant Aakil. 30 At para 10 of his statement, PW1 Shahnawaz has stated that the appellants were obstructing the naali in front of their house, but at that time they did not beat/kill the deceased Shahnazar.
47. PW3 Shakeel has stated that they were in the Baithak of PW5 Khaleel. He was told by Shahnawaz that the appellants were obstructing the naali. Nothing had happened in his presence. (Statement of PW5 Page 17). The witness has further stated that altercation between the appellants, Shahnazar and Shahnawaz took place for about 5 - 7 minutes. He was not present there. He was told about it by Shahnawaz. But, as per prosecution, the incident began when the appellants were objected to by the deceased Shahnazar from obstructing the naali and, thereafter, deceased was chased and killed. This part of the statement of PW3 Shakeel does not support the prosecution case on this aspect. On the other hand, PW5 Khaleel in para 13 of his statement tells that after hearing the noise he and PW3 Shakeel reached at the spot. According to him, PW1 Shahnawaz and deceased Shahnazar had gone running from the Baithak.
48. But, according to PW1 Shahnawaz, when from Baithak they approached the appellants at that time 31 deceased Shahnazar was not beaten up/killed. The statements of these witnesses are not consistent with each other on this important aspect. The Baithak has not been shown in the site plan.
49. It is argued on behalf of the appellants that Ex. A1 the FIR, which has been proved by PW1 Shahnawaz is not the FIR because the police already had the information that the deceased has been shot by one of the appellants. It is argued that this would be treated as an FIR.
50. Undoubtedly, the witnesses have stated that when they were taking deceased Shahnazar to hospital, the police was approaching to their village. PW8 Mahendra Singh Negi is the Station House Officer. In his cross-examination done on 14-08-2014, in the initial lines, he has stated that he had left the police station at 08:30 in the morning and he stayed at the place of incident till 04:00 in the evening. He has stated that he had visited the place of incident based on an information, which was received from the Control Room, Roorkee. He has not recorded time in his Case Diary as to show that at what time, which action was taken by him. In any of the recovery memos, the time has not been 32 recorded and the name of the accused has also not been recorded. He has also admitted that in the inquest report neither case details nor the name of the accused has been written. At page 2 of his cross-examination done on 14- 08-2014, PW8 Mahendra Singh Negi has stated that he had sent some Inspector to prepare Panchayatnama from the spot itself. Therefore, there is no mention of case crime number, section or accused in the inquest report. He further speaks that he had received the information of death of the deceased at 09:15 AM from the police station.
51. The question that arises is, what was that information which was received at the police station, based on which, PW8 Mahendra Singh Negi had left the police station at 08:30 in the morning? PW12 SI Raj Kumar has been cross-examined on those aspects. According to him, he had reached at the place of incident at 08:00 in the morning, where police was already present. In his examination at page 1, last three lines, PW12 SI Raj Kumar has stated that he was told at the spot by the Police Inspector that the deceased has been taken to Combined Hospital, Roorkee. He reached at mortuary and prepared Panchayatnama. At page 2, last paragraph, this witness has stated that when he was 33 preparing inquest report, he was not aware of any other accused except Aakil. At this stage only, it may be seen as to what is recorded in the inquest report. In the inquest report, at page 2, it is recorded that, "today on 04.06.2011, Shri Shakeel Ahmed S/o Ismile R/o Village Bukkampur, Kotwali Manglaur, District Haridwar informed that Shri Aakil S/o Zamil R/o Bukkampur fired on the head of his son Shahnazar, aged 22 years. The fire made an exit from front. His son was taken to Combined Hospital, Roorkee in a serious condition for treatment. He died in the hospital. This incident happened at about 08:00 in the morning. I'm giving information, please take action." It is a kind of reproduction of some report in the words of the reporter. The inquest report further records that based on this information PW12 Raj Kumar and SI N.S. Bisht had reached for preparing inquest report in the mortuary. The inquest report also records the opinion of the witnesses. According to which, the death of Shahnazar took place due to a fire made by appellant on his head by a country made pistol. As stated, PW4 Ahsaan Ali, a witness of the inquest report has stated that the opinion in the inquest report was written as was 34 told to the witnesses by the family members of the deceased.
52. Now, the question is, where is that information which was given by PW3 Shakeel to police station about killing of his son by the appellant Aakil, which finds mention in the inquest report? It is true that inquest report is not a substantive evidence. It may be used for contradicting its author. But, then it is a prosecution document. Prosecution witness has stated it in the inquest report that a report had been received by them from PW3 Shakeel. That report is not on record.
53. In the case of Pappu Tiwary (supra), the Hon'ble Supreme Court observed that an inquest report is not a substantive evidence. The question in the case of Pappu Tiwary (supra) was on variation on the point of injuries noted in the injury report and in the postmortem report. In the instant case, the issue is different. The inquest report records of a specific report given by PW3 Shakeel on 04.06.2011 about the death of his son. It is not an opinion of any witness in the inquest report. In the inquest report mention is made of a report which prompted the police to proceed for preparing the inquest. 35 The question is where is that report of PW3 Shakeel? It has great bearing in the instant matter.
54. PW12 Raj Kumar has stated that, in fact, the information which they had received at police station was recorded in G.D. Report No.18. This G.D. Report No.18 has not been proved by the prosecution, but it is on the record. It is of 08:30 AM, according to it, Control Room, Roorkee telephonically informed that two parties are fighting in Village Bukkampur. There are apprehensions of breach of peace and a person has already been fired. Based on which, according to this G.D. Entry, Mahendra Singh Negi along with Raj Kumar and others proceeded to the spot. If this report, which is recorded in G.D. Report No.18 was received by the police then, again the question arises, as to where is the report which is mentioned in the inquest report by PW12 Raj Kumar? PW12 Raj Kumar has been cross-examined extensively on it. In para 4 of his statement recorded at page 2, PW12 Raj Kumar could not reply, as to which report did he read? According to him, SI N.S. Bisht dictated him the inquest report and he recorded it. N.S. Bisht has not been examined.
55. FIR in the instant case was lodged at 09:15 AM by G.D. Report No.20 of the Police Station Kotwali 36 Manglaur, District Haridwar. It records that PW8 Mahendra Singh Negi was telephonically informed about death of the deceased, but this G.D. Report, which is proved as Ex. A15 records that PW8 Mahendra Singh Negi had told that he already had information about the death of the deceased. According to this G.D. Report PW8 Mahendra Singh Negi had also required that, he be also sent a copy of the FIR. Who informed PW8 Mahendra Singh Negi about the death of the deceased Shahnazar? There is a slight contradiction on this aspect which is significant. One thing is clear from the statement of PW8 Mahendra Singh Negi that he did receive information from police station about lodging of the FIR as well as death of the deceased at 09:30 AM. He asked for a copy of the FIR and directed his colleague Sub-Inspector to proceed for preparing inquest report. That is what PW12 Raj Kumar has stated. He proceeded to mortuary along with N.S. Bisht.
56. There cannot be two FIRs in a case. It is true that a cryptic information may not be termed as an FIR, but if there are enough details for the police to proceed in the matter, such information is termed as an FIR. In fact, at the time when information is given to police 37 telephonically and is entered into the General Diary Entry, it also amounts to an FIR. In the case of T.T. Antony vs. State of Kerala and others, (2001)6 SCC 181. The Hon'ble Supreme Court in para 18 observed as hereunder:-
"18. An information given under sub-section (1) of Section 154 CrPC is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 CrPC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report -- FIR postulated by Section 154 CrPC. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC. Take a case where an FIR 38 mentions cognizable offence under Section 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H -- the real offender -- who can be arraigned in the report under Section 173(2) or 173(8) CrPC, as the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused."
57. There are a few things, that emerge from the above discussion:-
(i) Police had reached the spot at about 08:00 AM.
(ii) When the deceased was taken to hospital, the police had approached the village.
(iii) The FIR was lodged at 09:15 AM. But, before that at 08:30 AM, an entry was made in General Diary as Report No.18;
that information had reached at police station that two groups are fighting and a person has been shot.
39
(iv) The most important thing in the inquest report is the reference of a report given by PW3 Shakeel has been made that his son was killed by the appellant Aakil and he sought an action by the police. Where is that report? Is there any another report?
(v) PW8 Mahendra Singh Negi was at the spot when the FIR Ex. A-1 was lodged and he was told about lodging of the FIR and death of the deceased. He sent police officer for inquest and also requested a copy of the FIR from the police station.
(vi) PW12 Raj Kumar proceeded for preparing the inquest. It means PW12 Raj Kumar had knowledge of the lodging of FIR before he proceeded for inquest.
(vii) The inquest report does not record FIR details as proved by the prosecution.
Instead it is first person reproduction of a report given by PW3 Shakeel about killing of his son by the appellant Aakil.
(viii) In page 2, para 4 of his statement PW12 Raj Kumar could not tell about the report 40 which is mentioned in the inquest.
According to him, SI N.S. Bisht dictated inquest to him. SI N.S. Bisht has not been examined.
(ix) The prosecution concealed the report mentioned in the inquest. It may be noted that, report which is reproduced in the inquest is in first person. Even it cannot be said that the report is summary of the FIR, Ex. A-1.
58. It definitely establishes that the prosecution is concealing the report given by PW3 Shakeel. That report is definitely prior to Ex. A-1, the FIR in point of time. It is also not cryptic. It is detailed as to what happened? Who did it? When was it done? Therefore, this Court is of the view that the report given by PW3 Shakeel which is reproduced in the inquest report is the FIR. It is the first report after incident. It has not been placed by the prosecution. Ex. A-1 as proved by PW1 Shahnawaz is not an FIR, but a statement given during investigation. It is a signed statement. Therefore, it is inadmissible in evidence in view of Section 162 of the Code. It doubts the prosecution case immensely. 41
59. Learned State counsel would submit that PW1 Shahnawaz, PW3 Shakeel and PW5 Khaleel had proved the prosecution case. It is submitted that some variations in the statements of the witnesses are natural. They may not be photogenic and if they are photogenic it is submitted that it may doubt the prosecution case.
60. The scrutiny of the statements of PW1 Shahnawaz, PW3 Shakeel and PW5 Khaleel reveal that, in fact, they are photogenic kind of evidence. They all have been categorical even about minor details. According to them, the appellants along with their family members chased the deceased. The deceased entered into the house of PW5 Khaleel, where he was surrounded by the appellants and the appellant Aakil fired at him, due to which, he died. All these witnesses have stated on the same lines. They all had stated that PW3 Shakeel and PW5 Khaleel wanted to intervene, but the family members of the appellants, who were accused in the trial had stopped them to enter into the room where deceased Shahnazar was killed.
61. The site plan needs some elaboration. According to the prosecution case, the deceased entered into the house of PW5 Khaleel. This house has a gallery in 42 between and on both the sides of the gallery there are two rooms. There are two more rooms on the southern portion of the house also. PW1 Shahnawaz has stated that when he ran along with the deceased Shahnazar, he had entered into the room which is on the Western side of the house of PW5 Khaleel and the deceased Shahnazar entered into the room which is situated on the Eastern side. Both these rooms are divided by a gallery, which according to PW5 Khaleel is about 12-13 feet wide. The doors of both these rooms, are divided by a gallery. The door of Eastern room of PW5 Khaleel is towards South- West and the doors of the Western room is towards East South, which means the doors are opposite to each other divided by a gallery.
62. The question is if PW1 Shahnawaz entered into the opposite room, which is divided by the gallery, how could he see the incident? And similarly, if PW3 Shakeel and PW5 Khaleel were stopped at the door by the family members of the appellants, how could they see as to what had happened inside the room where allegedly the deceased Shahnazar was killed because the place of shooting has been shown on the Northern side of the room. This has not been made clear by the prosecution. 43
63. Learned State counsel at this stage would submit that the witnesses had not been cross-examined on this point. Prosecution has to prove its case. If the question is not asked, as to how PW1 Shahnawaz could see what happened in the opposite room, which is divided by a gallery, it does not mean that mere statement could prove the fact. That is what the appreciation of evidence is. In fact, witnesses have also stated that the shooter was at about a distance of 6 to 7 feet from the deceased Shahnazar. How could they say so? In para 1 of his cross- examination done on 09.10.2012, PW3 Shakeel had stated that he had heard one fire shot. In the next sentence he says that he did not show that place to police officer. Does it mean that this witness only heard the fire shot and did not witness anything?
64. PW5 Khaleel had stated that he did not enter inside the room. On 4th page of his cross-examination done on 05.03.2013, PW5 Khaleel has stated, in paragraph 3 that the incident took place inside a room, but he was not inside the room.
65. PW5 Khaleel has also clarified that since he was stopped by the women, he did not tell the Investigating Officer about the position of persons inside 44 the room. Because he did not go inside the room (Statement of PW5 Khaleel recorded at page 9 last but one para). PW3 Shakeel was with him, he also could not have seen as to what happened inside the room. If it is so, how could they say, as to what was done by each one of the appellants? It doubts the credibility of the statements of PW1 Shahnawaz, PW3 Shakeel and PW5 Khaleel.
66. The FIR is quite in detail in the instant case. PW1 Shahnawaz has stated that he got it recorded through some person in the hospital. The scribe has not been examined.
67. The appellant Aakil has also been charged under Section 25 of the Arms Act. According to the prosecution on 11.06.2011 at the instance of appellant Aakil, a country made pistol alongwith cartridge case was recovered from an open space. PW5 Khaleel and PW8 Mahendra Singh Negi have stated about it and proved the recovery memo as well as the recovered article. PW5 Khaleel was a chance witness of the recovery. There is no independent witness to this recovery. 45
68. Investigation of the case under Section 25 of the Arms Act was done by PW13 SI Deep Kumar. He completed the investigation within a day. On 13.06.2011 he had submitted the charge-sheet without prosecution sanction. The sanction according to him was taken on 06.07.2011. The question is after submission of the charge sheet how did PW13 SI Deep Kumar got the weapon and cartridge case from Malkhana for obtaining prosecution sanction? Where are the Malkhana entries etc.? Nothing is proved. The prosecution sanction is not a mere formality. The prosecution could not prove that at the time of sanction allegedly recovered firearm was placed before the District Magistrate. Even this investigation cannot be said to be fair. PW13 SI Deep Kumar is a subordinate officer of PW8 Mahendra Singh Negi, who allegedly recovered the firearm from the appellant Aakil. It has been admitted by PW13 SI Deep Kumar, in his statement. Under the facts and circumstances of the instant case it alone vitiates the investigation under Section 25 of the Arms Act.
69. In view of the foregoing discussion we are of the view that the prosecution has not been able to prove its case beyond reasonable doubt. The appellants are entitled 46 to the benefit of doubt. The court below has committed an error in convicting and sentencing the appellants. Therefore, the impugned judgment and order is liable to be set aside. Accordingly, the appeals deserve to be allowed.
70. All the appeals are allowed.
71. The impugned judgment and order is set aside. The appellants are acquitted of the charge levelled against them.
72. The appellants Sajid, Raees, Zakir and Meharban are on bail. Their bonds are cancelled and sureties are discharged of their liability.
73. Appellant Aakil is in custody. He be released forthwith, if not wanted in any other case.
74. The appellants shall furnish a personal bond and two sureties of like amount to the satisfaction of the court concerned, by each one of them, under Section 437A of the Code within a period of three weeks from today.
75. Let a copy of the judgment alongwith the record of the case be sent to the court concerned. (Ravindra Maithani, J.) (Sharad Kumar Sharma, J.) 11.04.2023 Sanjay