Shahid Khan and Others vs The State of U.P.

Pratyush Kumar, J.—1. The instant appeals filed by accused appellants are directed against the judgment and order dated 20.09.2013 passed by Sri Santram, the then Additional Sessions Judge/Special Judge, (The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, hereinafter referred to as ''the Act''), Court No. 3, Gonda in Gangster Case No. 465 of 2008 (State v. Dr. Shahid Khan and 7 others, whereby the accused appellants were convicted and sentenced as below:

Section

Sentence

Fine

In default

147 IPC

One year

Rs. 1,000/-

One month�s simple imprisonment

148 IPC

Two years

Rs. 1,000/-

One month�s simple imprisonment

323/149 IPC

One year

Rs. 1,000/-

One month�s simple imprisonment

435 IPC

Five years

Rs. 3,000/-

Three month�s simple imprisonment

302/149 IPC

Life Imprisonment

Rs. 10,000/-

One years� simple imprisonment

Note: All the accused appellants were acquitted from the charges under section 307/149, 506(2) IPC and section 3 (1) of the Act.

Since both the appeals arise out of the same gangster case, questioning the correctness of the same judgment, both are disposed of by a common judgment.

The prosecution case, in the instant appeals, is as under:

"That on 28th March, 2001 at 4.45 A.M. at P.S Kaudiya, District Gonda, Kale Khan R/o village Pathanan Purwa, P.S. Kaudiya, gave a written report mentioning therein that there was a dispute regarding the mosque and madarsa of village Bankati. Though their amicable settlement was arrived at with Dr. Shahid Khan and Maqbool Khan but Dr. Shahid bore grudge against them and due to which the previous night at about 9 P.M. when he along with his brother Abdulla, after taking their dinner were warming up by fire in front of their door from the side of mosque (west) Dr. Shahid, Maqbool, Tahir Khan, Zamal Khan R/o Pathanan Purwa accompanied by Shamsher Khan and Shahid Khan of village Chay Purwa armed with lathi and danda came there. They started to beat them in front of Abdulla''s shop. When Maseer Khan tried to save him, he was also beaten. Nizamudeen came to their rescue he was also beaten. Thereafter after setting fire to pual and lahi kept towards the mosque they departed toward west. While leaving the scene of occurrence Shahid fired his country made pistol in the air. Haneef Khan, Chingu Khan also came there and saw the occurrence in the light of electricity and torch. At about 1 A.M. in the night some persons from village Ranipurwa came there and helped them to take Abdulla on Thiliya (hand pushed cart) but when they were nearby Ranipurwa, Abdulla succumbed to injuries and died. Injured persons received severe injuries. Dead body was lying on a cot near Ranipurwa. After registering his report, he prayed for taking suitable action.

At this chick FIR was scribed. Case Crime No. 35 of 2001 under sections 147, 148, 149, 506, 323, 307, 435 and 302 IPC was registered and requisite entry was made in the report of the general diary. Injured were sent for medical examination and treatment. Investigation was entrusted to Sri Abdul Rahaman, the then Station Officer of the Police Station Kaudiya. Inquest proceedings were held, postmortem examination was conducted, spot was inspected, witnesses were examined. Thereafter section 3(1) of the Act was added. After completion of the investigation charge sheet was submitted."

Appellants stood for trial before the special court with two co-accused Siraj Khan and Ali Bahadur Ansari. They were charged under sections 147, 148, 323/149, 506(2) , 435, 307/149, 302/149 IPC and section 3(1) of the Act. They denied the charges and claimed to be tried. During the trial Siraj Khan and Ali Bahadur Ansari died. Against them proceedings were abated.

In order to prove the charges, on behalf of the prosecution, in the documentary evidence besides other papers, written report Ext. Ka-1, inquest report Ext. Ka-2, chick FIR Ext. Ka3, copies of the report of general diary Exts. Ka-4, Ka-4A, recovery memo Exts Ka-5, Ka-19, injury reports Exts Ka-6 to Ka-9 of Haneef, Maseer Khan, Kale Khan, Nizamudeen respectively, charge sheets Exts. Ka-10, Ka-11, site plan Ext. Ka-12, gang chart Ext. Ka-13, were filed. In the oral evidence nine witnesses were examined. After close of prosecution evidence statements of the appellants were recorded under section 313 Cr.P.C. wherein they denied the facts stated by the witnesses. They did not dispute the veracity of medical evidence, however, they disputed correctness of the papers submitted by the police. According to them they were falsely implicated due to enmity. In the defence no evidence was given. Defence case in brief is that some unknown persons were involved in the occurrence which took place in the night and due to enmity they were falsely implicated.

After hearing the arguments for the parties, the learned Special Judge found the prosecution case trustworthy so far as charges framed under sections 147, 148, 323/149, 435, 302/149 IPC are concerned. In reference to charges framed under sections 307/149, 506(2) IPC and section 3(1) of the Act he did not find the charges proved beyond doubt. In those sections he acquitted the accused persons but in other sections he convicted the appellants and sentenced them as above.

Against the impugned judgment and order both these appeals have been preferred by accused appellants.

Heard Sri Nadeem Murtaza learned counsel for the appellants, Ms. Ruhi Siddiqi the learned AGA for the State and perused the record.

Learned counsel for the appellants in support of his appeals has submitted that in the present matter medical evidence contradicts the oral evidence, prosecution failed to show any source of light at the time of occurrence. According to him the learned trial Judge has wrongly believed the eye witness account because none saw the occurrence and witnesses are planted. In the last he has submitted FIR is delayed and the learned trial Judge has not adverted to this point in a correct legal manner.

On behalf of the State these arguments have been repelled and it has been submitted that eye witness account is trustworthy. Prosecution has produced injured witnesses. The learned trial Judge has rightly believed their version. Source of light has been stated by the prosecution and anti timing of FIR could not be established by the appellants. In the last he has submitted that contradiction between ocular version and medical evidence is not significant in the present matter because when oral evidence is trustworthy, any contradiction with the medical evidence does not erode the trustworthiness of the ocular version. In support of his argument he has referred the case of Suraj Singh v. State of U.P. , 2008 (3) JIC 520 (SC) he has placed reliance on para 41 of the report. He has further referred the cases of Chhotanney v. State of U.P. , AIR 2009 (SC) 2013, Mahamood v. State of U.P. , AIR 2008 SC 515 and State of U.P. v. Harvansh Sahai , (1998) 6 SCC page 50.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 CRI.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

First we would like to deal with the medical evidence.

Autopsy on the dead body of deceased Abdulla was performed by Dr. Hemant Kumar P.W.8 on 28th March, 2001 at 4.30 p.m. According to him time since death was more than 1/2 day- 1 day. Death had occurred due to shock and haemorrhage as a result of anti mortem injuries caused by lathi and danda. He proved the postmortem report Ext. Ka-21 wherein following ante mortem injuries were recorded:

"1. Incised wound 1 cm x 0.5 cm skull deep below 2 cm from head 1.5 cm below right eye brow.

Abraded contusion 1.5 cm x 1 cm at left forehead outside the injury No. 1.

Incised wound 1 cm x 0.5 cm x muscle deep towards left side of nose at forehead.

Abraded contusion 2 cm x 1 cm on the tip of the nose.

Incised wound 2 cm x 0.5 cm bone deep toward left ear 1 cm above on the head.

Incised wound 2.5 cm x 0.5 cm bone deep below injury No. 51 cm above on the head.

Multiple contusion (sic) (sic) 11 cm x 2 cm in an area of 52 cm x 36 cm all below neck on left shoulder and back over averaging in area of 2 cm.

Multiple abraded contusion 12 cm x 7 cm below right eyebrow and on the back of right elbow.

Multiple abraded contusion 30 cm x 11 cm on left leg in front of left knee, under lying bones were fractured.

Multiple abraded contusion 23 x 9 cm right knee and toward front, bones were fractured.

Incised wound 1 cm x.50 cm on left leg, 9 cm above ankle."

During cross examination the witness has accepted that incised wound could have been caused by sharp edged weapon like farsa, gandasa, talwar. Except this point his testimony remains unchallenged. On the basis of his unchallenged testimony duly corroborated by postmortem report Ext. Ka-21 we hold that deceased Abdulla could have died on the stated date and time due to ante mortem injuries caused by lathi danda and sharp edged weapon.

Dr. Jawahar Lal Mishra, P.W.6 is the doctor who medically examined the injured on 28th March, 2001 in the morning hours. During medical examination he found, on the persons of Kale Khan, Haneef Khan, Maseer Khan and Nizamudeen, following injuries.

"Injury of Haneef Khan

Reddish contusion 4 cm x 3 cm on right scapular region.

Nature of injury was simple, caused by blunt objection within one day. Vide Ext. Ka-6.

Injuries of Maseer Khan

Incised wound 4 cm x 1 cm x muscle deep on right side of skull 8 cm above right ear. The direction of the wound was transverse, margins of the wound sharp and everted and hair bulbs are being cut (sic) of the wound is present in the inner aspect of the wound.

Reddish contusion of 5 cm x 2 cm on the left forearm 4 cm below left elbow.

Reddish contusion of 3 cm x 1.5 cm on the left hand just below the left wrist.

Reddish contusion of 3 cm x 2 cm on the left calf. Injury No. 1 was due to sharp edged weapon and advised x-ray. Other injuries due to blunt object and simple, duration of all injuries was within 24 hours. Vide Ext. Ka-7.

Injuries of Kale Khan

(1) Reddish contusion of 7 cm x 3.5 cm on the right forearm 3 cm below the right elbow.

(2) Reddish contusion of 3 cm x 2 cm on the left forearm 2 cm above the right wrist.

Both injuries were simple in nature caused by blunt object within 24 hours. Vide Ext. Ka-8

Injuries of Nizamudeen

(1) Reddish contused area with swelling 6 cm x 5 cm on the left hand just above the root of the left middle finger. Injury site is very painful. Advised x-ray.

(2) Reddish contusion 7 cm x 2 cm on the upper part of left forearm 9 cm. above the left wrist.

(3) Reddish contusion 2 cm x 2 cm

(4) Reddish contusion 9 cm x 1 cm on the right side of the back 4 cm to mid line of the back and 22 cm below and inward to right shoulder.

(5) Complaint of body ache."

All injuries were simple in nature, except injury No. 1 for which x-ray was advised, caused by blunt object. Duration was one day. Vide Ext. Ka-9.

Dr. Jawahar Lal Mishra was only cross-examined on the point whether injury No. 1 of Maseer Khan could have been caused by sharp edged weapon to which the witness replied that the injury was caused by sharp edged weapon like farsa.

In this way testimony of Dr. Jawahar Lal Mishra is also unchallenged. We hold, on the basis of his testimony, duly corroborated by injury reports Exts. Ka-6 to Ka-9, that on 28th March, 2001 on 9.45 A.M. Nizamudeen, at 10 A.M. Maseer Khan, at 10.20 A.M., Haneef Khan and at 10.30 A.M. Kale Khan were medically examined by Dr. Jawahar Lal Mishra, P.W.6 and during medical examination he found on their persons the above mentioned injuries, out of which one injury was caused by sharp edged weapon and others by blunt object and duration of the injuries was within one day.

On behalf of the appellants, on the basis of medical evidence, veracity of the ocular version given by the eye witnesses has been seriously challenged and on behalf of the State on the basis of law referred above, argument has been submitted that ocular version of the occurrence has primacy over the medical evidence.

We have to keep in mind that first we should re-examine and re-evaluate the oral testimonies of the eye witnesses only thereafter it has to be considered whether any contradiction existed between the oral evidence and medical evidence and if so, its effect.

Kale Khan P.W.1 is the first informant and brother of the deceased. Nature of his injuries are such that we have to carefully scrutinize evidence of this witness because he had sustained simple injuries which according to the doctor could be self inflected. This witness in his examination-in-chief has supported the version contained in the first information report. He belongs to Bareillyvi''s school where as the appellants belong to Deobandi school. According to this witness construction of separate mosque for performing nawaz by the followers of Bareillyvi''s school was the motive of this occurrence. During cross examination it has come out that mosque situate near the place of occurrence, where Muslims of Bareillyvi school perform nawaz and nearby it was his house. This mosque was constructed 20 years before. The duration of 20 years tends to falsify the reason assigned by this witness for the occurrence.

We find that in the FIR and in his statement on oath he claims that the miscreants were identified in the light of electric bulb and torch. We also find that in the site plan the investigating officer has not shown any electric pole or bulb. Unfortunately, the investigating officer had died (stated by S.I. Prabhu Dayal, P.W.7). We further find that in the defence on behalf of the appellants information, obtained under the Right to Information Act, dated 18th July, 2013 has been filed. This information was furnished by Sub Divisional Officer, Power Distribution Sub Division Ist, Gonda informing that in Majra Pathanan Purwa, Mauja Ramapur, P.S. Kaudiya near madarsa or masjid there is no electricity connection and further there is no pole of electric power line. This paper filed by the defence would show that there existed no electric bulb near the scene of occurrence. Torch has not been produced before the Court. In absence of light this witness was not in a position to see the occurrence due to dark night. This fact is also fortified from the answer given by this witness during cross examination where he says that when he raised hue and cry some miscreants were near the door, some were near the mosque and he could not tell who were near the door and who were near the mosque. It is relevant to notice here that miscreants came and started to beat Abdulla. When he fell down only thereafter this witness raised hue and cry. Thus when the first informant and deceased brother were beaten there was no source of light except the fire from which they were warming themselves. It is an admitted fact that night was dark and fires for warming up are always small. Though we find presence of this witness on the spot at the time of occurrence natural and probable but he had no opportunity to identify the assistants because there was no light.

Nizamudeen, P.W.2 is also an injured witness. He was living at village Seerpurwa in his sasural. He had not explained the reason to be present in another village on the night when incident took place. According to him deceased Abdulla was aged about 22-23 years, whereas as per postmortem report he was aged about 34 years. In his statement recorded by the investigating officer under section 161 Cr.P.C. he has stated that when he saw Abdulla he was stained with blood. In the cross examination he says Abdullaha did not bleed. He is the close relative of the deceased. His presence on the place of occurrence is not natural. At the most he can be called a chance witness and in absence of his explanation for his presence, we do not think his testimony can be relied upon.

Haneef Khan, P.W.3 has admitted in the cross-examination that he could not see in the night. The occurrence is of night. Identification of the appellants by him cannot be trusted upon.

The learned Special Judge in his lengthy judgment has not noticed the facts mentioned above. He believed the statement of Kale Khan, P.W.1 due to absence of contradiction, he found the statement of Nizamudeen trustworthy because he is an injured witness. He believed Haneef Khan P.W.3 on account of fact that he accompanied Kale Khan to the police station. These reasons are not relevant yardsticks to assess the trustworthiness of the eye witness account. Therefore, we come to the opinion that learned Special Judge did not properly appreciate the eye witness account and erroneously believed their version.

Since eye witness account given by all the three witnesses have been found not reliable by us, the point that ocular version is contradictory to medical evidence remains no longer material, however, we would like to mention that deceased had sustained injury Nos. 1,3,6 and 11 which the doctor recorded as incised wounds.

Learned AGA has submitted that these injuries are on bony parts, they can be caused by blunt object. Statement of Dr. Hemant Kumar, P.W.8 is emphatic that incised wounds were caused by sharp edged weapon. There are four incised wound on the dead body of deceased Abdulla and one incised wound on the person of injured Maseer Khan. Injured Maseer Khan had sustained injury No. 1 by sharp edged weapon. This fact stands proved by the testimony of Jawahar Lal Mishra, P.W.6. According to him roots of the hair were cut and inside of the injured part had tailings. From the evidence of Dr. Jawahar Lal Mishra, P.W.6 the probability is that injury No. 1 caused to Maseer Khan was caused by sharp edged weapon.

When there is discrepancy between ocular and medical evidence in reference to seat of injury, ocular version of the occurrence if reliable would have primacy, however, if there is a discrepancy as to the weapon used, this discrepancy would be treated in the ordinary circumstances as incompatible with ocular version. In the present case none of the eye witness has claimed that any assailant was armed with sharp edged weapon. If we accept the possibility that any lathi might have cutting edge even then metal would shine and reflect whenever such lathi is wielded. It is very difficult for an eye witness not to notice this fact. In the present case even all the three alleged eye witnesses failed to notice any abnormal feature with any lathi. This fact also persuades us that the alleged eye witnesses did not see the occurrence and their testimonies cannot be relied upon. The learned Special Judge also did not take into consideration the contradiction between the ocular version and the medical evidence which is so fundamental in nature that both these two cannot be made compatible with each other.

For the reasons mentioned above, we find that the learned Special Judge has committed error in appreciating eye witness account and by ignoring contradiction between ocular version and the medical evidence. Findings recorded by him are against evidence on record and law, they cannot be sustained and deserve to be set aside.

Now remain two arguments advanced on behalf of the appellants; anti timing of FIR and absence of motive.

Occurrence allegedly took place on 27th March, 2001 at about 9 P.M. FIR was lodged on 28th March, 2001 at 4.55 A.M. Distance from place of occurrence to police station is 6 km. We find that Kale Khan P.W.1 the first informant has given reason for delay in lodging the FIR. Considering the facts and circumstances of the case we think that his explanation appears to be reasonable.

So far as anti timing of FIR is concerned we find that inquest proceedings were held at 6 A.M. and concluded at 9.A.M. on the same day. Postmortem was conducted on the same day at 4.30 P.M. Upto this point there is nothing to show that FIR was anti timed. Only on the basis of chitthi majroobi and injury reports Exts. Ka-6 to Ka-9 showing omission in writing case crime number and sections therein we cannot hold that FIR was anti timed. However, keeping in view the other facts we do not think that in the present FIR was anti time or lodged with delay. We think that the learned Special Judge committed no wrong in opining the same.

Absence of motive does not materially affect the prosecution case because this case is based on direct evidence, however, eye witness account has not been found trustworthy by us, therefore, we need not delve on this point any longer.

Since the eye witness account has been found by us not trustworthy, charges framed and found proved against the appellants by the learned Special Judge, could not be proved by the prosecution against beyond reasonable doubt. Their conviction and sentences also deserve to be set aside and they are entitled to be acquitted from there charges.

Thus both the appeals are allowed.

The impugned judgment and orders dated 20.9.2013 passed by Sri Santram, the then Additional Sessions Judge/Special Judge, (The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986) Court No. 3, Gonda in Gangster Case No. 465 of 2001 (State v. Dr. Shahid Khan and others are set aside as also conviction and sentences awarded to the appellants Doctor Shahid Khan, Tahir Khan, Maqbool Khan, Jamaal Khan, Shamsher Khan and Shahid Khan are set aside and they are acquitted from the charges framed under sections 147, 148, 323/149, 435, 302/149 IPC.

Appellants are in jail, if they are not wanted in any other case, they be released forthwith provided within 30 days from the date of the judgment and order the appellants file their personal bonds and two surety bonds in the like amount before the Sessions Judge, Gonda in pursuance of provisions contained under Section 437A Cr.P.C.

Office is directed to certify this order to the court concerned forthwith and send back the lower court record.