Shoeb and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Shri Nagendra Mohan, Shri Ajmal Khan and Shri Hemant Kumar Mishra, learned counsel for the appellants, and Shri Umesh Verma, learned AGA for the State, were heard at length.

Since all the aforesaid criminal appeals arise out of a common judgement hence the same are being disposed of together.

Under challenge in the aforesaid criminal appeals is the judgment and order dated 03.03.2008 passed by Additional Sessions Judge/Special Judge (E.C. Act), Pratapgarh, in Sessions Trial No. 565 of 2003 arising out of Case Crime No. 237 of 2002, Police Station Kotwali Nagar, District Pratapgarh, whereby appellant Sameer was convicted for the offence under Section 302/34 and appellants Shareef and Shoeb were convicted for the offence under Section 302 IPC. All the appellants were sentenced with imprisonment for life and also with fine of Rs. 5,000/- each with default stipulation of six months'' additional imprisonment. However, by the same judgment all the appellants were acquitted of the charges under Section 307/34 IPC.

In brief, the case of the prosecution was that the complainant Nadeem Ahmad lodged a first information report at Police Station Kotwali Nagar, District Pratapgarh on 12.05.2002 at 12.30 PM alleging therein that on 11.05.2002 at about 06.15 PM he along with his brother Raees @ Chand was going towards Azad Nagar for repayment of money. In front of house of appellant Shoeb, appellants Shoeb, Shareef and Sameer met them and stated that he has met at a correct time to finish him. Thereafter appellant Shareef forcibly took Raees @ Chand to his veranda where Shareef and Shoeb fired at him with their country made pistols and then Sameer left Chand. When the complainant raised alarm and made an attempt to save his brother then Sameer also fired at him with his country made pistol but the complainant escaped from the said fire. Seeing the crowd of the vicinity the accused persons ran away from there. The complainant took his brother Chand for treatment to Sadar Hospital wherefrom he was referred to Allahabad. He was taken to Allahabad but he succumbed to the injuries. It was alleged in the first information report that the motive behind the incident was the old enmity. The incident is alleged to have been witnessed by Mohd. Afjal and Mohd. Arshad. It was informed that the dead body of his brother is lying in Medical College, Allahabad. Prior to registration of the case, on the information given by Chowkidar Chhotelal of Swaroop Rani Hospital, Allahabad to the concerned police station, the inquest proceedings were conducted on 12.05.2002 at 12.25 PM in Allahabad. After completing the necessary formalities the dead body was sent for postmortem which was conducted on 12.05.2002 at 04.15 PM. The duration of death was about 3/4 days and the following ante-mortem injuries were noted in the postmortem report:--

"(a) Firearm wound of entry 3/4" x 3/4" x cavity deep on right side of head 3" above right ear. Margins inverted, blackening, tattooing and scorching was present.

(b) Firearm wound of entry 3/4" x 3/4" x bone deep on front of left shoulder. Margins inverted, blackening, tattooing and scorching was present.

(c) Firearm wound of entry 3/4" x 3/4" x cavity deep on back of chest left side close to medial border of left scapula in middle part. Margins inverted, blackening, tattooing and scorching was present.

(d) Lacerated wound 2 cm x 1 1/2 cm x bone deep on right eye.

(e) Abraded contusion 2 1/2 cm x 2 1/2 cm on left side of neck.

(f) Abraded contusion 2 cm x 2 cm on outer surface of right wrist.

(g) Abraded contusion 2 cm x 1 cm on outer surface of right elbow."

A note was also mentioned in the postmortem report whereby it was noted that soft tissues of right big toe were eaten by animals. Three big size bullets were recovered, one from soft tissue of left shoulder, one from left side chest cavity and one from cranial cavity.

In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of firearm injuries.

The Investigating Officer inspected the place of occurrence, took blood stained and plain earth from the place of occurrence, prepared site plan and after completing the investigation, charge sheet was filed.

The defence of the appellants was that they have been falsely implicated in this case because of enmity. It was suggested to the witnesses that the incident had taken place at some unknown place by some unknown miscreants and only because of the enmity the appellants have been falsely implicated.

In order to prove its case, the prosecution has examined PW-1 Nadeem Ahmad - the complainant and brother of the deceased, PW-2 Mohd. Afjal and PW-3 Arshad @ Ashraf as witnesses of fact. PW-4 is Dr. O.P. Srivastava, who has performed the postmortem on the body of the deceased. PW-5 is SI Chandra Shekhar Prasad, who has prepared the inquest report. PW-6 is Head Constable Ram Kumar Tomar, who has prepared the chik report and GD of this case. PW-7 is SHO Jaydeo Singh Tomar - the second Investigating Officer of this case who took up investigation from 15.07.2002. PW-8 is R.P. Kanaujiya - the initial Investigating Officer of this case.

No evidence in defence was adduced on behalf of the appellants.

After appreciating the evidence on record, the trial court convicted the appellants, as above, hence these appeals.

Submission of learned counsel for appellants was that in the instant case the distance of police station from the place of occurrence was only 2 kilometres. The incident is alleged to have taken place in an inhabited area but in spite of that the first information report of this case was lodged at the police station on the next day at 12.30 PM. So the first information report was much delayed and the prosecution story as narrated in the first information report clearly shows that the complainant was not an eyewitness of this incident and the offence has been committed by unknown persons at some unknown time and only because of the enmity, the witnesses have falsely implicated the present appellants. He has argued that initial case of prosecution was only of two fires. When three firearm wound of entry were found in the postmortem report then prosecution case was improved. Likewise when lacerated wounds and abrasions were found on the body of the deceased then story of throwing the dead body from veranda on the road was also introduced and this improvement suggests that virtually no one has seen the incident. He has also argued that his submissions find support from the fact that big toe of the dead body was found to be eaten by animals which suggests that the body remained lying unattended and subsequently the case was developed but the learned trial court has not considered all these aspects of the case in correct perspective which has rendered its judgment unsustainable under law.

Per contra, learned AGA, addressing the State, has submitted that there are three eyewitnesses who have supported the case of the prosecution which stands corroborated by the medical evidence and therefore the learned trial court has not committed any illegality in convicting the appellants.

The first point to be considered in the instant case is the first information report. Great stress has been laid on behalf of the appellants that the first information report of this case has been lodged after consultation and no one has seen the occurrence. The incident of this case is alleged to have taken place on 11.05.2002 at 1615 hours and the first information report of the same was lodged on the following day on 12.05.2002 at 12.30 PM. Apparent reason of this delay was that the complainant, after the incident, took his brother Raees @ Chand to the District Hospital wherefrom he was referred to Allahabad and on the way to Allahabad his brother died. Thereafter he kept the dead body in the medical college mortuary and came back to his house at about mid night. So there is apparent explanation why the first information report could not be lodged immediately. PW-1 in his statement during trial has admitted that while taking his brother to the District Hospital he crossed the police station concerned but admittedly by that point of time no effort was made to inform the police. Likewise, he has also stated that he came back to Pratapgarh in the mid night in between 11 PM -12 AM but in spite of that he lodged the first information report after more than 12 hours of his arrival in Pratapgarh. The incident of this case had taken place within the territorial jurisdiction of Kotwali Nagar, Pratapgarh, only at a distance of two kilometres from the police station. It is really strange that no action was taken by the police nor any information about murder in broad day light was given to the police by any person of the vicinity. Since the complainant himself has admitted that he reached his house in the midnight therefore the delay of 12 hours there from remains unexplained. There is yet another reason which compels us to conclude that the first information report was lodged after consultation. According to the evidence of PW-1 his elder brother Shakeel Ahmad had also accompanied him to Allahabad. He remained there till the postmortem and brought the dead body to the village. Said Shakeel Ahmad was also a Panch in the inquest report and the Investigating Officer in the inquest report has mentioned that Shakeel Ahmad told him that his brother Raees @ Chand was taken away by a person named Shareef to his house and after about an hour, he got the information that his brother Raees @ Chand has been murdered. On this information, he along with other family members reached there and took Raees @ Chand to District Hospital, Pratapgarh. Since the condition of Raees @ Chand was precarious so he was referred to Swaroop Rani Hospital, Allahabad where he was declared dead. According to challan lash Ext. Ka-6, the time of death of the deceased was 08.40 PM on 11.05.2002. Thus this narration in the inquest report shows that by that time none of the family member was aware of manner in which this incident had taken place. Admittedly the complainant had accompanied the deceased along with his brother Shakeel Ahmad to Allahabad. If the details of the incident were within the knowledge of the complainant by that time then there was absolutely no occasion for him not to disclose the same to his brother Shakeel Ahmad. The inquest report was conducted on 12.05.2002 at 12.25 PM and concluded on the same day at 01.20 PM. It means that even by the following afternoon Shakeel Ahmad was not aware of the fact as to how the incident had taken place and who has murdered his brother. We are conscious about the fact that the purpose of inquest report is limited and such narration in inquest is not a substantive piece of evidence but definitely it can be used as a check to verify whether the first information report was lodged with correct facts. There is yet another ground which compels us to hold that the version given by Shakeel Ahmad in the inquest report was correct because in the inquest report on the right big toe of the deceased there was a mark of mole rat bite, which has been mentioned as injury No. 8 in the inquest report as mole rat bite. This fact also finds place in the postmortem report wherein doctor has made a note that soft tissues of right big toe are eaten by animal. Since the doctor PW-4 O.P. Tripathi has stated that in the mortuary several mole rats live and they might have eaten the soft tissues of big toe. But this statement of the doctor is not correct because it was also mentioned in the inquest report and also because of the reason that if after the death of the deceased these animal bites would have been caused then the same would have given the appearance of postmortem injuries. Since this animal bite injury was also mentioned in the inquest report so it was ante-mortem and there was absolutely no explanation as to how this animal bite was suffered by the deceased. Non-explanation of it provides support to the defence version that the incident had taken place at some unknown place and by some unknown persons which was not witnessed by any person. Therefore, the prosecution could not explain as to how the deceased sustained this animal bite.

Now we come to the medical evidence. According to the version of the first information report the deceased was caught hold by Sameer and remaining two appellants Shoeb and Shareef fired with their country made pistols. The third fire is alleged to have been fired by Sameer which, according to the version of the first information report, did not hit anyone but in the postmortem report, three firearm wounds of entry were found on the body of the deceased. Apart from it, one lacerated wound and other abrasions were also found on the body of the deceased while there was absolutely no explanation for the presence of these injuries on the body of the deceased. During trial, it was improved that fire by Sameer also hit the deceased and after the incident, accused persons threw the dead body on the road. Even if, for the sake of argument, we accept all these improvements, even then the animal bite on the right toe remains unexplained which makes the defence version probable that the incident had taken place at some unknown place by some unknown persons and subsequently the case was concocted. Keeping in view that entirely different version was given by the elder brother of the deceased in the inquest report, the medical inconsistencies, as discussed above, and the unexplained delay of more than 12 hours in the first information report, compels us to conclude that the defence theory was probable. In the instant case, the witnesses have admitted that the deceased was a man of criminal antecedents and several cases were pending against him. So such a person must have several enemies, though the complainant has avoided to reply direct question on this point put him in cross examination. So the probability that the deceased might have been killed by some other persons who were on inimical terms with him cannot be ruled out. Apart from it, the present appellants were on inimical terms with the complainant side. The complainant has also admitted the enmity of appellant Sameer with the deceased and it was mentioned in the first information report also. Law is settled on the point that the prosecution is required to prove its case beyond reasonable doubt while the defence is required to only show that the defence version is probable. In the instant case defence has been successful to show that their defence was probable.

In view of discussions made above, these appeals deserve to be allowed and are hereby allowed. Appellants Shoeb, Shareef and Sameer are hereby acquitted of all the charges levelled against them. Appellant Sameer is on bail. His bail is cancelled and sureties discharged. Appellants Shoeb and Shareef are in jail. They shall be released forthwith if not wanted in any other case.

Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.