State vs Mukhtar Ahmad and Others

Maithli Sharan, J.—The State has preferred this appeal against the order of conviction and sentence dated 30.11.1978, passed by Sri B.P. Srivastava, Hlrd Addl. Session Judge, Pratapgarh in ST. No. 145 of 1977, acquitting all the four Respondents for the offences Under Sections 302, 302 read with Section 34, I.P.C., 307 and 307 read with Section 34, I.P.C. One of the four accused-Respondents, namely, accused-Respondent Mukhtar Ahmad has expired after filing of this appeal by the State; hence it has abated as against him.

The prosecution story, in brief, is that informant Murtaza Hussain (P.W. 3) was resident of Backhaul, Police Station, Kunda, District Pratapgarh and all the four accused persons were also residents of the same village, and that they all were known to each other. The deceased accused-Respondent Mukhtar Ahmad and the Respondent Sanilac were real brothers, and accused-Respondent Mukhtar Ahmad and Mohammad Was were gun licensees. The incident occurred on 08.06.1977 at about 6.00 p.m. when P.W. 3 Murtaza Hussain was sitting at the door along with his father Iqramuddin; his younger brother Mustafa Hussain and other persons were also sitting nearby. According to the prosecution, a quarrel had started between accused-Respondent Mukhtar Ahmad and one Java Hussain (P.W. 4) in regard to a drain in front of the door of one Liyaqat-Ullah. On hearing the noise of the quarrel, the informant Murtaza Hussain (P.W. 3) and other persons sitting nearby rushed to the scene of occurrence. Meanwhile, accused-Respondent Mukhtar Ahmad had brought his licensed gun; accused-Respondent Sanahullah was armed with country-made pistol, accused Alta Hussain was empty handed. Accused Mohammad Was and Alta Hussain instigated the other two accused to kill Jawed (P.W. 4) and then accused Mukhtar Ahmad fired his gun which hit Iqramuddin, father of Murtaza Hussain (P.W. 3); he fell down and expired instantaneously. Accused-Respondent Sanahullah had also fired his country-made pistol which injured Mohammad Raja and Ors. Afterwards the accused-Respondents fled away from the place of occurrence.

A written report was got written by the informant Murtaza Hussain (P.W. 3) ; the scribe was one Kamal Ahmad ; it was read over and explained to P.W. 3 Murtaza Hussain who put his signatures thereon and afterwards it was given at the Police-Station, Kunda. The said report is Ext. Ka-1, and on its basis F.I.R. was prepared and the investigation was started. Medical examination of the injured persons was got down at the Medical Hospital, Kunda. The Investigating Officer examined the injured and afterwards he rushed to the place of occurrence. The injured persons were sent to Allahabad for further treatment. The injured Raffia died at Allahabad, the next day on 09.06.1977. The Investigating Officer, after reaching the place of occurrence, started investigation; he prepared inquest report and other necessary documents in respect of the dead-body of Iqramuddin; his post-mortem examination was got down at the Government Hospital; the witnesses were examined and the site-plan of the place of occurrence was also prepared. The Investigating Officer later on collected the bloodstained and ordinary earth from the Place of occurrence, and sealed it. He thereafter sent the recovered articles in sealed condition to the Police-Station for being sent for further examination. Accused persons were absconding; hence the procedure u/s 82/83, Code of Criminal Procedure was adopted. However, later on all the four accused persons surrendered in the Court of C.J.M., Pratapgarh. After completing the investigation in this case charge-sheet was filed in the Court of C.J.M., wherefrom the case was committed to the Court of Sessions, Pratapgarh. Charges were framed against the Respondents for the offences Under Sections 302, 302 read with Section 34, 307 and 307 read with Section 34, I.P.C, and they were read over and explained to the accused-Respondents who pleaded not guilty and claimed to be tried.

The prosecution examined only four witnesses of fact, namely, Mustafa Hussain (P.W. 1), Mohammad Rais (P.W. 2), Murtaza Hussain (P.W.) and Jawad Hussain (P.W. 4). They are, according to the prosecution, the eye-witnesses of the incident in question. Besides, the Investigating Officer, Chhabinath Tiwari (P.W. ''5) was also examined in the case by the prosecution. The documents prepared during the investigation were also filed in the case by the prosecution to prove the guilt of the accused persons. The accused persons in their statements u/s 313, Code of Criminal Procedure. pleaded not guilty and stated that they had been falsely implicated in this case on account of enmity. The main accused-Respondent Mukhtar Ahmad (now dead) had admitted that he and accused-Respondent Sanaullah were real brothers and they were gun licensees. According to him, though the occurrence did take place, but it had not taken place as was shown by the prosecution. According to him, there was some dispute in regard to one grove of which he, the deceased Iqramuddin, Ram Adhar and Kedar had their shares and when he had gone to pluck some fruits in the grove then other shareholders forbade him, and then there had occurred some quarrel. According to the accused Mukhtar Ahmad he had to fire his gun in self-defence. Apparently enough, the story given by the accused-Respondent Mukhtar Ahmad is clearly different from the story given by the prosecution. to the effect that there had occurred same quarrel between P.W. 4 Jawad Hussain and accused persons in regard to some drain.

So far as the factum of the occurrence in which two persons died and others injured is concerned, it is the admitted position that such an incident did occur and the persons named in the first information report did receive injuries. However, the place and the manner of occurrence is disputed. Thus, the point of consideration now boils down to much only, as to whether the prosecution could prove its case beyond doubt that the occurrence had occurred in the manner it had been brought by it. True, though the accused-Respondents had brought the factum of self-defence in their statements u/s 323, CPC and had pleaded that the place and the manner of occurrence were different, but it is immaterial if the did not adduce any evidence to that effect to establish their case, as the legal position is very much settled that the prosecution has to prove its case beyond all shadow of doubts, and it cannot take advantage of any weakness of the defense version s already pointed out above, the prosecution has examined only five witnesses, out of whom first-four witnesses are witnesses of fact, claiming themselves as eyewitnesses, and the last one witness is the Investigating Officer, Cohabitate Tiara (P.W. 5). Since the medical evidence regarding the post-mortem reports, etc. was not disputed, on the contrary rather admitted, hence the prosecution did not adduce any oral evidence in that regard.

At the outset, it is worthwhile to note in this case that the prosecution could not show at all that there was any motive on the part of the accused persons to kill the deceased Iqramuddin and Rafiq, and injure others. Neither any previous or immediate motive is lurking from the wordings of the F. I. R. nor could any such motive be brought about in the oral evidence of the witnesses concerned. According to the first information report, evidently enough, a quarrel had taken place between the accused-Respondent Mukhtar Ahmad alone on the one side and Jawed Hussein (P.W. 4) on the other side, concerning a drain, and it had resulted into abuse and brick batting and, further, gun was fired at Iqramuddin who died instantaneously and Raffia was injured, who died later on the next day, besides injuries having been received by other persons. It is curious to note at this stage that though according to the prosecution, quarrel had started between Jawad Hussain (P.W. 4) and accused-Respondent Mukhtar Ahmad but, surprisingly, no report was lodged by Jawad Hussain. The motive previous or immediate, brought about by the prosecution in regard to a drain, thus, stands disproved as there is no iota of evidence in this regard.

The written report Ext. Ka-1 does not indicate at all regarding the drain as to where it was situated; the nature of the dispute regarding drain was also not mentioned. So even doubt arises about the existence of the alleged drain. It is not understandable as to whether there was at all any dispute between Jawed Hussein (P.W. 4) and Mukhtar Ahmad in regard to the existence of any drain. Jawed Hussein (P.W. 4) is the star witness of this case. The Investigating Officer, Chhabinath Tiwari (P.W. 5) admitted that he had not found any ''Nali'' anywhere near the house of the accused ; he, however, deposed that he had found a portion of ''Nali'' in its zig-zag shape lying near the house of Jawad Hussain, in the north and south side. There is not even an iota of evidence to show that the accused persons had anything to do with such a ''Nali''. The site-plan prepared by the Investigating Officer also does not give support to the prosecution case in this regard. Thus, the prosecution case to the effect that the quarrel had taken place between Jawad Hussain (P.W. 4) and the accused persons in regard to existence of some drain stands shattered, and it appears that it was a cooked-up story.

In the oral evidence of the witnesses, the prosecution has tried to bring about the fact of enmity between the deceased Iqramuddin and the accused persons. Again, it appears to be an afterthought because this fact was brought for the first time in the Court and not earlier.

The delayed F.I.R. in this case also goes to create some doubt in the prosecution case that it was lodged after some deliberation. The scribe of the written report Ext. Ka-1 Kamal Ahmad was not examined at all in this case, by the prosecution. The evidence adduced in the case shows that he had come at the Police-Station. The occurrence had taken place at 6.00 p.m. on 8.6.1977 and the information was given at the Police-Station at 9.15 p.m. when the distance of the Police-Station from The place of occurrence was only 8 miles. The residence of scribe Kamal Ahmad was only a few furlongs from the Police-Station Kunda; hence it appears doubtful that he was called from there to the place of occurrence. That apart, as observed above, his presence at the place of occurrence does not find place in the written report Ext. Ka-1. Besides, no place of occurrence is mentioned in the written report ; there is also no mention of any other witnesses in this report, excepting those who had actually witnessed the occurrence and intervened, though they themselves have deposed that even other persons were present at the time of the incident in question. The witnesses examined by the prosecution in the Court are all partisan witnesses and they are highly interested witnesses; no independent witness was examined in the case. As already observed above, scribe Kamal Ahmad was also not examine There are material contradictions and omissions also between the depositions of the prosecution witnesses examined in the Court and their statements recorded by the Investigating Officer during the course of investigation u/s 161, Code of Criminal Procedure Such contradictions and omissions do go to discredit their testimony.

In view of the above discussion of the evidence led by the prosecution in the Court, it could not be said that the findings of the learned Sessions Judge, treating such evidence to be disproved, are perverse. The conclusions arrived at by the learned Sessions Judge are sound as the prosecution has completely failed to bring home the guilt of the accused-Respondents for the offences they had been charged with. In the result, we find no force in this appeal which is hereby dismissed.