Latafat and Another vs State of U.P.

D. K. Trivedi, J.—The present criminal appeal is directed against the judgment and order, dated 22121979 passed by 1st Addl. Sessions Judge, Hardoi convicting the appellants under Section 302, IPC read with Section 34, IPC and sentencing each of them to Imprisonment for Life in connection with an incident which was alleged to have taken place on 159 1978 at about 5,45 p.m. in Mohalla Balai Kot within the police circle Shahabad District Hardoi.

Initially, four accused persons were prosecuted in this case, but out of them accused Muazffar and Thullu were acquitted by the learned Sessions Judge of the charges levelled against them. It is said that the accusedappellants used to live in Shahabad town and itself and are real brothers. Deceased Ahmad Ullah had mortgaged some land to Ashiq Ali, the father of the appellants for Rs. 5,000/ and it was one of the conditions of the. said agreement that after three years Ahmad Ullah will again take back the land after paying aforesaid amount. It is said that Ahmad Ullah asked Ashiq Ali after three years to resell the land in dispute but Ashiq Ali did not accept the request of deceased Ahmad UHah. It is further alleged that after some time a dacoity took place in the house of Ashiq Ali and in the said dacoity Ashiq Ali was killed, A report was lodged against this Ahmad Ullan but Ahmad Ullah fled away to Nepal. After some time, he returned to his village and thereafter, he surrendered himself before the concerned court in the said dacoity case. Just before 1213 days before this, Ahmad Ullah was released on bail after coming out from jail, he again made a request from Liyaqat Ali, another son of Ashiq Ali to execute the saledeed of the land for which Ashiq Ali had executed the agreement deed. Liyaqat Ali told him that the matter would be settled on ''Friday'' after ''Friday prayers. It is said that on the date of the incident deceased Ahmad Ullah alongwith Yunus, Tasawwar, Nabi Ahmad and Shazad Khan went to the house of one Afaq but Latafat took them to his own house. All these persons sat outside the house on the cots and some mohalla people also joined them. It is said that accused Latafat and Sharafat told them that their brother Liyaqat had gone to Hardoi for attending some case and he would be returning shortly after taking a date in the case. It is said that these persons waited Liyaqat upto 5.30 p.m. but thereafter, the mohalla people went away saying that they would return after Liyaqat comes there. It is said that Ahmad Ullah and his companions also wanted to leave that place saving that the panchayat would be held on some other day but accused Latafat and Sharafat dissuaded them and asked them to wait for 5 or 10 minutes more. It is said that thereafter, the accused persons went inside the house and after some time all the accused persons namely: Latafat, Sharafat, Muzaffar and Thullu came out armed with pistols and accused Latafat fired shot from his pistol at Ahmad Ullah. Ahmad Ullah (deceased) fell down on the cot and accused Sharafat then, again fired another shot causing injuries to Ahmad Ullah. It is said that thereafter, all the accused persons ran away. It is alleged that thereafter, Yunus went to PS. Shahabad and lodged a first information report on the same day at about 6.10 p.m. in the evening. The distance of the Police Station from the place of occurrence is two miles only. According to the FIR incident took place at about 5.45 p.m. in the evening. PW 7 Inspector Mohan Singh was present at the Police Station when the case was registered. He immediately recorded the statements of the complainant as well as Head Constable Ramesh Chandra who registered the case and thereafter, he proceeded to the place of the incident. According to him, he reached the place of the incident at 6.50 p.m. He prepared the inquest report and another relevant papers Ext. Ka4 to Ext. Ka6 and sent the deadbody of deceased Ahmad Ullah through constables Babu Ram and Shyam Manohar to mortuary for postmortem examination. He also recorded the statements of some other witnesses and thereafter, prepared, a site plan Ext. Ka 7. he also collected the bloodstained and plainearth and recovered seven pellets from the place of the incident. The accused persons were not available at their house but thereafter, all the four accused persons surrendered themselves in the court on 2091978. After completing the investigation, the Investigating Officer submitted the charge sheet against the accused persons. PW 8 Dr. V. K. Srivastava conducted autopsy on the deadbody of deceased Ahmad Ullah on 16 91978 at 2 p.m. The doctor found the following antemortem injuries on his person:

(1) Firearm wound of entry 2 cm x 2 cm x chest cavity deep with inverted margins on the back left side, 14 cm below inferior angle of left scapula. Blackening present in and around the wound. On dessection, 8th and 9th ribs on left side back were found fractured underneath the injury. On further dissection left pleura, left lung, left kidney and liver were found lacerated in the course of the injury. 7th and 8th ribs on right side front were found fractured left pleural cavity contained 6 ounces of fluid blood. Seven big shots were recovered embeded in the muscles of chest and abdominal wali on front on right side in an area of 7 cms. x 6 cms. One place of wadding material was found embeded in the left lung tissue. Abdominal cavity contained 20 ounces of fluid blood.

(2) Firearm wounds of entry 7 in number in an area of 6 cms. x 5 cms. on the posterolateral aspect of left thigh, 8 cms. below left gluteal fold. The margins were inverted each measuring 0.75 cm. xO.75 cm.

(3) Firearm wound of exit with inverted margins, five in number in an area of 6 cms. x 6 cms. on medial aspect of left thigh, middle measuring 1 cm. x O.75 cm.

Note.The wound communicate with the 5 wound of injury No. 2. Two big shots were recovered embeded in the muscles of left thigh.

(4) Abrasion in an area of 4 cms. x 3 cms. on antero medial aspect of right thigh, 11 cms. above right knee joint.

(5) Lacerated wound 3 cms. x 1 cm. x skin deep on the back of left leg middle.

On internal examination, the doctor found that the left pleura, left lung, left kidney and liver of the deceased were lacerated. The stomach .of the deceased contained 10 ounces of paste like material. The gall bladder of the deceased was found full while the bladder was found empty. According to the doctor, the death of deceased Ahmad Ullah was caused due to shock and haemorrhage, as a result of antemortem injuries.

The postmortem report is Ext. Ka 10.

Prosecution in support of its case examined eight witnesses, out of them PW 1 Yunus, complainant, P W 2 Shahzad and P W 4 Tasawwar Khan are the witnesses of facts. PW 3 Iqrar Khan is a witness of Panchayat and PW 5 Sayed Sartaj is a witness of the fact that on the date of the incident they were sitting on the cots and were waiting for Liyaqat at the house of the accused alongwith the deceased. PW 6 Head Constable Ramesh Chandra, registered the case and prepared the G.D. entries, PW 7 S.I. Mohan Singh conducted the investigation in this case and submitted a chargesheet against the accused persons. PW 8 Dr. V. K. Srivastava conducted autopsy on the deadbody of deceased Ahmad Ullah and submitted postmortem report Ext. Ka 10.

On the other hand, the accused persons denied the prosecution case and stated that they have been falsely implicated in this case due to enmity.

Shyama Charan was also examined in this case as C.W. 1 in order to know the dale of birth of accused Muzaffar. The learned Sessions Judge after considering the evidence on the record came to the conclusion that the prosecution has successfully proved the guilt of two of the accused persons, namely, Latafat and Sharafat beyond reasonable doubt but failed to prove the guilt of the other accused appellants, namely, Muzaffar and Thullu who were acquitted of the charges levelled against them. The learned Sessions Judge convicted and sentenced aforesaid two accused appellants, namely, Latafat and Sharafat as mentioned above.

The accused appellants aggrieved by the aforesaid judgment and order, have preferred the instant criminal appeal in this Court.

We have heard the learned Counsel for the parties and have also gone through the records carefully.

The main contention of the appellants Counsel, in this case, is that the witnesses examined in this case are partisan witnesses and no independent witnesses even though available on the spot have been examined. He further pointed out that the FIR is not genuine document and, therefore, the prosecution case is not reliable and therefore, the learned Court below has committed an illegality in convicting the appellants as mentioned above.

On the other hand, the learned Government Advocate contended that the evidence of the eyewitnesses is consistent and, therefore, even though there are some laches in the evidence but the same cannot be overlooked and tfce testimony of the eye witnesses itself proves the guilt of the accused appellant beyond reasonable doubt.

In the instant case, it is the case of the prosecution that the incident took place infront of the house of accused Latafat and it is alleged that all these persons were sitting on the cots. It is admitted fact that there are so many other houses near the house of accused Latafat. It is alleged that the incident took place at about 5.45 p.m. and a report was lodged at 6.10 p.m. and the distance of the Police Station from the place of the incident is only 2 kms. The Investigating Officer somehow, stated that he reached the place of the incident at 6.50 p.m. According to him the report was lodged at 6.10 p.m. and after registration of the case the investigation of this case was entrusted to him. He recorded the statements of the complainant as well as Head Constable and thereafter, he proceeded to the place of the incident reaching there at 6.50 p.m. He collected the ''punches'' and started to prepare the inquest report of the deceased. The inquest report is Ext. Ka4 which shows that the preparation of the same was started at 6.50 p.m. In these circumstances, it is not possible to believe that the FIR was lodged at 6.10 p.m. as alleged by the prosecution because after 6.10 p.m., the complainant dictated the report to the Head Constable who after writing down the said report, registered the case and then the investigation of this case was handed over to PW 7 S.I. Mohan Singh who thereafter, recorded the statements of the complainant Yunus as well as Head Constable. The report Ext. Ka. 1 itself shows that the same is detailed one and it must have taken 1520 minutes and thereafter, its copies were prepared also. The Investigating Officer, thereafter, recorded the statements of the witnesses as well as Head Constable which must have taken 11/2 hours and taking into consideration all these facts, it is not possible to believe that the Investigating Officer, thereafter proceeded to the place of the incident reaching there at 6.50 p.m. The contention of the defence Counsel further is that even the deadbody was handed over to the constable Babu Ram on the same day at about 8 p.m. in the night but the deadbody reached mortuary on 1691978 which was received by the doctor at 1.45 p.m. but the papers were received at about 12 noon and this delay of reaching the deadbody also throws doubt about the genuineness of the prosecution case.

Apart from this, it is admitted by PW 7 S.I. Mohan Singh that the Head Constable as well as three other constables had already reached the place of the incident and he met them at the place of the incident. It is also stated by PW 6 Ramesh Chandra, Head Moharrir that ''Daroga Ji'' meaning thereby, P W 7 Mohan Singh, left the Police Station for the place of the incident at 6.10 p.m. As pointed out above, 6.ID p.m. is the time of lodging of the FIR and thereafter, the report was registered and was dictated to the Head Constable and further thereafter, the Inspector recorded the statements of the complainant as well as Head Constable and then, he (Mohan Singh) left the Police Station for the place of the incident. In these circumstances, it is impossible to believe that the Investigating Officer shall leave the Police Station at 6.10 p.m. as entered in the general diary. Similarly, it is also impossible to believe that the Investigating Officer after lodging of the FIR recorded the statements of the complainant as well as Head Constable and thereafter, reached the place of the incident at 6.50 p.m. It is also not disputed that the deadbody was sent from the place of the incident to mortuary at about 8 p.m. In these circumstances, it is not possible to believe that the FIR was lodged at 6.10 p.m. as alleged by the prosecution.

We find force in the contention of the defence Counsel that the information of the murder was sent to the Police Station and after arrival of the police a case was concocted and the appellants were implicated in this case due to enmity and suspicion. The conduct of the complainant, Yunus is also not above board. In the FIR he stated that he is resident of'' village Harai, P.S. Shahabad, District Hardoi. Before the Investigating Officer, also he stated that he is resident of village Harai but before the Sessions Court, he disclosed his place of residence as Mohalla Gunja, P.S. Shahabad, Distt. Hardoi. He was cross examined that he admitted that initially he is resident of village Harai but for the last 1718 years'' he is residing in village Maulaganj. He tried to explain his conduct by saying that he had disclosed all these facts to the ''Munshi Ji'' as well as ''Daroga Ji'' but it appears that the said facts were not mentioned. It is not possible to believe that if he had mentioned the place of residence as Maula Ganj then, why the same was written by the Head Constable as well as Investigating Officer as village Harai. Similarly, he further stated that Ahmad Ullah after returning from Nepal started living in his house but in crossexamination he admits that he (Ahmad Ullah) used to live in the house of Fida Hussain which is situated at a distance of 1 1.25 miles from the house of the accused. Deceased Ahmad Ullah was admittedly his ''Bhanja'' and the other witnesses namely, PW 2 Shahzad as well as PW 4 Tasawwar Khan are also partisan witnesses. PW 1 Yunus admits that PW 2 Shahzad is the fatherinlaw of Sharif who is the real brother of Shahzad. PW 2 Shahzad is resident of village Harai. The testimony of PW 1 Yunus further finds support from the medical evidence about manner of the assault. It is the case of the prosecution that the accused persons came out from the house and fired at Ahmad Ullah from a close range. PW 1 Yunus admits that the gun was fired at the space of one step and the distance between the barrel and the deceased was only nine inches. He further admits that the second fire was also made, in spite of the fact as mentioned above that the doctor who conducted the autopsy on the deadbody of the deceased found blackening against injury No. 1 only. Out of three injuries, two injuries were shown as entry wounds and third injury was shown to be exit wound. Apart from this, the deceased also received one lacerated wound on his led and an abrasion in an area of 4 cm x 3 cm but there is no explanation about these injuries. Whereas, it is admitted fact that no one had assaulted Ahmad Ullah by lathi or Danda. Apart from the abovementioned infirmities, it is also proved that the FIR alleged to be lodged by him is not a genuine piece of document and in these circumstances, the testimony of this witness is not reliable. PW 2 Shahzad is admittedly, the relation of PW 1 Yunus and admittedly he resides in village Harai. He also admits that he returned back to village Harai on the same day. He also admits that his daughter is married to Sharif, the real brother of complainant Yunus. This witness also implicated Muzaffar as well as Thullu but they have already been acquitted. He also stated the same thing about the manner of the assault as alleged by the PW 1 Yunus. As pointed out above, he is resident of village Harai and there is nothing to show that the sitting of a ''Panchayat'' was preplanned, therefore, his presence on the spot is not probable. PW 4Tasawwar Khan is another eyewitness. He has also deposed he same statement about the accused persons also well as manner assault. He is also resident of village Garni Kala, and he was called next day by the Investigating Officer for interrogation. Here, it may be pointed out that the house of accused Latafat was surrounded by so many persons and the incident took place just infront of the house of the accused but even not a single person of the nearby locality has been examined to prove the prosecution case. As pointed out above, the most serious infirmity is that the FIR itself is found to be not genuine one. The circumstances pointed out above clearly show serious doubts on the prosecution case as disclosed in the FIR. The prosecution case that the FIR was lodged at 6.10 p.m. by Yunus, on the face of it, not correct and the same appears to be lodged later on and the papers were prepared simultaneously one after other. The time mentioned on the said papers itself shows that the same could not be prepared as alleged by the prosecution. The fact that the FIR is the basis of the prosecution case and if, the same is held to be brought into existence long after the occurrence and with consulations then, the whole prosecution case collapsed and the same cannot be held to be genuine on the basis of the testimony of the partisan witnesses whose statements weic also found full of infirmities. The papers prepared by the police also throw doubt about the genuineness of the prosecution case. In any case, a doubt also arose about the sitting of the ''Panchayat'' as alleged by the prosecution. According to the prosecution case, they were collected and were got seated on the cots infront of the house of the accused persons. Out of these persons, most of the persons had already left the place because Liyaqat had gone to Hardoi and had not returned back. There is no sense as to why the deceased and other persons were remained sitting and waiting for Liyaqat who had gone to Hardoi and there is nothing on the record to show that he will return back soon from Hardoi. Liyaqat had already left the village and had gone to Hardoi and in these circumstances, there is no question of calling the deceased etc. if, the presence of Liyaqal was necessary.

In view of the facts stated above and the fact the above mentioned eyewitnesses have also initially tried to implicate innocent persons, in our opinion, atleast it can be said that the prosecution had failed to prove the guilt of the accused appellants beyond reasonable doubt and, therefore, the aforesaid appellants are also entitled to get benefit of doubt.

Accordingly, the aforesaid criminal appeal is, hereby, allowed. The conviction and sentence as awarded by the learned Sessions Judge against the aforesaid appellants, namely, Latafat and Sharafat are hereby, set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties stand hereby discharged. Appeal allowed.