Nizamuddin and Others vs State of U.P.

B.P. Singh, J.—Nizamuddin, Wahajuddin, Saifuddin and Hashmat have appealed against the judgment and order dated 3-9-1979 passed by VI Additional Sessions Judge, Allahabad in S.T. No. 298 of 1978, State v. Nizamuddin and three Ors., P.S. Saini, district Allahabad.

The case of the prosecution may briefly be stated as follows:

Appellants Nizamuddin. Wahajuddin and Saifuddin are real brothers and the Appellant Hashmat is their close associate. Hamiduddin PW 1, the first informant, and Ziauddin the injured and all these accused are residents of village Mithepur Sinyara, which lies within the local limits of P.S. Saini. There are two factions in the village. One faction is led by Hamiduddin PW 1 and his other associates while the other faction is led by the accused Nizamuddin. There was long standing enmity between the two factions.

On 3-9-1977, it was about 7.00 A.M. when Ziauddin PW 2 was irrigating his field from the canal water which was passing through a water channel. Accused Nizamuddin armed with a pistol and accused Wahajuddin, Saifuddin and Hashmat armed with lathis suddenly came there. On being exhorted by his remaining three co-accused, Nizamuddin at once fired upon Ziauddin. Ziauddin sustained gun shot wound in his stomach and right hand. Hamiduddin was also there. The accused attempted to assault Hamiduddin but he managed to escape. On alarm being raised by Hamiduddin and Ziauddin, witnesses Nisar, Mir Mohammad and Azizuddin came there. On being challenged by the witnesses the accused went away. As the condition of Ziauddin was serious, Hamiduddin and others took him to P.S. Saini. On his way to police station Saini Hamiduddin got a report Ext. ka 1 scribed by Sadruddin at the bus stop. The written report Ext. ka 1 was handed over to P.S. Saini where Head Constable Ramji Misra PW 4 had prepared the FIR Ext. ka. 2 and also made G.D. entry Ext. ka. 3 about the crime in question. Ziauddin PW 2 was sent from P.S. Saini to Government Hospital Sirathu where he was attended to and medically examined by Dr. Vinai Kumar Dwivedi the same day at 11.15 A.M.

Dr. Vinai Kumar Dwivedi PW-5 had found the following injuries upon the person of Ziauddin:

Wounds of entry-multiple present measuring 2 m.m. x 2 m.m. on the right side of the hypochondrium region, covering an area 3-1/2" x 3-1/2". Blackening present. Pellets are visible and some are traceable. No wound of exit present. Deepness of the wound cannot be traced without X-ray.

Two wounds of entry on the anterior surface of the right arm of the modella. Pellets are traceable not (sic). Wound measuring 2 m.m. x 2 m.m Scorching and tattooing present. No wound of exit present. Depth not traceable, for which X-ray is required.

There is blackening with superficial burning on the devolateral surface of the lower arm and upper fore-arm in an area measuring 7-1/2" x 2-1/2".

In the opinion of Dr. Vinai Kumar Dwivedi PW 5 all the injuries of Ziauddin were caused by fire arm. The injuries were fresh and were kept under observation as X-ray was advised for injuries Nos. 1 and 2.

The case was investigated by S.I. Roop Mangal Singh PW 6. After routine investigation a charge-sheet Ext. ka 8 u/s 307/34 was submitted against all the four accused.

At the trial the accused Nizamuddin was charged with the offence u/s 307 IPC while the remaining three accused were charged sheeted with the offence u/s 307 IPC read with Section 34 IPC. The accused pleaded not guilty and claimed to be tried.

In all the prosecution examined six witnesses i.e. Hamiduddin PW 1, Ziauddin PW 2, Azizuddin PW 3, H.C. Ramji Misra PW 4, Dr. Vinai Kumar Dwivedi PW 5 and S.I. Roop Mangal Singh PW 6 in the case. The accused did not lead any evidence in their defence. The plea of the accused was that they were falsely implicated in the case out of enmity.

The evidence of H.C. Ramji Misra PW 4. Dr. Vinai Kumar Dwivedi PW 5 and S.I. Roop Mangal Singh PW 6 is more or less of formal nature and has not been challenged from the side of the Appellants. The fact that Ziauddin PW 2 did sustain gun shot wounds on 3-9-1977 was not disputed by the Appellants. While the case of the prosecution is that it was Nizamuddin who had fired the gun shot which resulted in injuries to Ziauddin at 7.00 A.M., the contention of the Appellants was that some unkown persons had fired upon Ziauddin some time in the early hours of 3-9-1977 at some other place and because no one could know the identity of the assaillants due to darkness, they were falsely implicated in the case out of suspicion.

The case of the prosecution regarding the main occurrence rests upon the evidence of Hamiduddin PW 1, Ziauddin PW 2 and Azizuddin PW 3. I have gone through the evidence of these witnesses in the light of the arguments advanced at the Bar. The contention of the Appellants'' counsel that no one could be certain of the assaillants as the injuries were caused prior to the day break, is not with out force. It is significant to note that the case of all these three witnesses in their evidence is that only one shot was tired by Nizamuddin which resulted in three injuries of Ziauddin. But the nature, size and seat of these injuries belie the above evidence and lead to the inference that these injuries of Ziauddin were the result of atleast two gun shots. Injury No. 1 is a gun shot wound of the size of 3-1/2" x 3-1/2" on the right side of the stomach and blackening was present. Injury No. 2 comprises of two gun shot wounds of entry 2 mm x 2 mm diameter upon right hand and tatooing and scorching was present. Injury No. 3 is blackening in an area of 7-1/2" x 2-1/2" upon upper fore-arm with superficial burning. A scrutiny of these injuries would reveal that there was only blackening in injury No. 1; there was scorching and tatooing in injury No. 2 while blackening and superficial burn was present in injury No. 3. These three injuries could not have been the result of a single shot. Dr. Vinai Kumar Dwivedi PW 5, who is the own witness for the prosecution, had to concede that it was likely that injuries Nos. 1 and 2 were the result of two gun shots. Thus it is obvious that there is inconsistency between the evidence of witnesses of fact and the medical witness regarding the number of gun shots which would have caused the injuries of Ziauddin. Where the evidence of witnesses of fact is absolutely reliable, trustworthy and springs from the sources which could not be termed as tainted and has also stood the acid test of cross-examination, medical evidence to the contrary may be ignored. But where the evidence of witness of fact cannot be termed as wholly reliable and comes from the sources which are tainted, the medical evidence to the contrary cannot be brushed aside lightly. No doubt that discrepancy between the medical evidence and the evidence of the witnesses of fact has not been held to be always fatal but there have been cases where this discrepancy has led the courts to give the accused persons benefit of doubt. In such cases an attempt may be made to find out the truth under these circumstances but when the discrepancy is on the major aspect of the case i.e. whether the injuries were as a result of one shot or two shots, the exercise may turn out to be futile. Considering the nature of the discrepancy in the evidence of witnesses of fact and the medical evidence the accused may be given benefit of doubt.

It was also contended from the side of the Appellants that Hamiduddin PW 1 was not present upon the scene of occurrence. The contention was not without force. Admittedly Hamiduddin was the leader of the faction which was opposed by the accused. Hamiduddin also claims to be present upon the scene of occurrence. Yet Hamiduddin was spared and the shot was aimed at Ziauddin. Hamiduddin did not sustain any injury during the course of occurrence. Hamiduddin PW 1 admits in his cross-examination that neither accused had fired upon him nor they had weilded lathis upon him. But his assertion in the FIR was that the three accused had weilded lathis upon him but he had escaped while raising alarm. He was confronted with his statement and he has denied to have made such statement either in the FIR or in his statement u/s 161 Code of Criminal Procedure. He could not give out any explanation for this inconsistency in his evidence. Again Hamiduddin PW 1 has stated that all the three witnesses i.e. Azizuddin, Nisar and Pir Monammad were coming towards the scene of occurrence after answering call of nature. He had mentioned in the FIR that Nisar, Pir Mohammad and Azizuddin, who were working in the fields nearby, had come upon the scene of occurrence. When confronted with this statement in the FIR Hamiduddin PW 1 could not give any explanation as to how this fact came to be mentioned in the FIR and his statement u/s 161 Code of Criminal Procedure.

The case of Ziauddin PW 2 in his statement is that Nizamuddin had fired from the northern Mend of Nawabuddin''s field and at that time he was standing upon southern Mend of this field. This fact was not mentioned by him in his statement u/s 161 Code of Criminal Procedure. A perusal of the site plan would show that a chak road and water channel separates the two places i.e. the place from where the shot was fired and the place where Ziauddin was standing. In his examination in chief Ziauddin has given out that when he saw the accused, they were at a distance of 7-8 steps from him and immediately there after Nizamuddin had fired upon him. This would indicate that the distance of the man who fired upon Ziauddin was 7-8 paces. If the site plan is taken to be true, the width of the chak road and water channel should also come to 7-8 paces i.e. 10-12 feels. But the injuries had blackening, scorching and tatooing and burning present. These marks are not possible if the distance of the fire arm from the seat of injury is 10-12 feets. This circumstance also to leads the inference that the injuries were caused some time when it was dark and Ziauddin was not in a position to see as to who had fired upon him and from what distance.

Azizuddin PW 3 maintains that Nizamuddin had fired from a distance of three paces. But this is an improvement in the evidence because no such statement was admittedly made by him before the I.O.

Under these circumstances it cannot be said that the evidence of these witnesses belong to the category of wholly reliable witnesses. In my opinion the prosecution has failed to prove its case and the Appellants are entitled to benefit of doubt.

The appeal is allowed. The conviction of the Appellants is here by set aside. They are on bail. Their bail bonds are cancelled and the sureties are discharged.