State of U.P. vs Ibne Hasan and Others

M.C. Jain, J.—The State has challenged the acquittal of four accused-Respondents recorded on 2.9.1981 by Sri. B. K. Sharma, the then IIIrd Additional Sessions Judge, Shahjahanpur in S.T. No. 345 of 1980.

The deceased was one Akbar Khan and the incident took place on 20.3.1980 at about 1.00 p.m. in Mohalla Bazaria Makku, police station Sadar Bazar, district Shahjahanpur, The F.I.R. was lodged by Anwar Ali P.W. 1, the same day at 1.45 p.m. He claimed himself to be an eye-witness. The deceased died of gun shot injuries. Out of four accused-Respondents, Ibne Hasan was allegedly armed with gun whereas the three others had country made pistols who opened a volley of shots to put the deceased to eternal sleep.

The accused-Respondent Mohd. Siddiq is the son of accused-Respondent Anwar Khan and the remaining are said to be the associates of Anwar Khan. The deceased resided in Kakra Kalan. There was animosity between him and accused-Respondent Anwar Khan as the former had taken a theka of "Setha-Patel" of village Raikhurd through his dummy Maiku Lal. Anwar Khan accused-Respondent was also interested in taking that theka. The deceased had also taken theka of ''Setha-Patel'' Gram Samaj Kakra Kalan within the municipal limits of Shahjahanpur through Mohd. Wali P.W. 3 in which Anwar Khan accused-Respondent was also a bidder. There was yet another cause of enmity between Anwar Khan accused-Respondent and the deceased whose houses were adjacent to each other. Anwar Khan rested his chhappar touching the wall of deceased and an altercation took place between the two of this account. However, the residents of the locality had intervened, but Anwar Khan accused-Respondent continued to bore grudge and enmity against Akbar Khan.

On the date and time of the incident, the complainant Anwar Ali, P.W. 1 started for Bazar Bahadurganj at about 1.00 p.m. from the house of this sasural, where he used to live. The house of Akbar Khan deceased was about 25-30 paces towards south from that house. The complainant saw Akbar Khan coming and the two joined as Akbar was also going to Bahadurganj. The deceased Akbar Khan took the cycle which the complainant was carrying and started pedalling it while the complainant sat on the carrier. When they reached on the rasta in front of the house of Munna Lal Gadaria in Mohalla Bazaria Makku, they saw all the four accused-Respondents coming from the other side with the weapons as detailed herein above. Ibne Hasan challenged Akbar Khan crying hoarse that he would be taught lesson of taking contract. On hearing this, the complainant got down from the carrier of the cycle and for his safety climbed over the chabutara in front of the baithak of Munna Lal aforesaid. The deceased was getting down from the cycle by applying brakes and wanted to flee, but in the meantime, Ibne Hasan fired on him. The deceased sustained injury and fell down from the cycle. The complainant''s scream went out. Saukat, Budhu, Mohd. Taqi P.W. 2 and Mohd. Wali P.W. 3 reached there. The accused-persons fired shots from their weapons on the deceased. Ibne Hasan came closer to the deceased and fired a shot by putting the mouth of the barrel of his gun in contact with the deceased''s body. The deceased fluttered for some time. The witnesses challenged, but the accused persons managed to run away towards the west. Akbar died at the spot.

It was in the testimony of Mohd. Taqi P.W. 2 and Mohd. Wali P.W. 3 that they were coming from bazar, when they had seen the accused persons passing in two rikshaws from which they got down near the culvert and proceeded towards west from which side the complainant and the deceased were coming on cycle. After that, these witnesses reached the spot and saw the occurrence. The complainant Anwar Ali P.W. 1 got the report scribed by Mahmood and went to the police station, leaving others with the dead body. The report was lodged and the case registered. The investigation was taken up by Inspector Bhoop Singh P.W. 11.

The post-mortem over the dead body of the deceased was conducted by Dr. Satya Pal P.W. 8 on 21.3.1980 at 2.00 p.m. The deceased was aged about 50 years and about one day had passed since he died. Suffice it to say that several gun shot wounds of entry were found on his person with some exit wounds also. The gun shot wounds inter alia were on abdomen, behind right ear and neck. But there was no blackening, charring or tattooing on any one of them. On internal examination, mastoid and occipital bones were found fractured and brain was lacerated. Abdominal walls were perforated. Two wadding pieces and 31 pellets were taken out from abdominal and renal cavity.

The defence was of denial. Apart from medical evidence of the doctor, Investigating Officer and all other formal witnesses including those examined on the subject of theka, the prosecution relied on eye-witnesses Anwar Ali P.W. 1, Mohd. Taqi P.W. 2 and Mohd. Wali P.W. 3.

The prosecution case and evidence did not find favour with the learned trial Judge and giving several reasons, he has recorded acquittal.

We have heard Sri S. K. Pal learned A.G.A. from the side of the State in support of the appeal and Sri G. S. Chaturvedi, learned senior Advocate from the side of the Respondents in opposition thereof. Record of the lower court is before us which we have scrutinized carefully. Leaving aside others, we are firmly of the opinion that for the following reasons the acquittal is perfectly justified and the accused-Respondents cannot be held to be guilty.

To begin with, we form an impression that there was congregation of birds of same feather in the form of scribe of the F.I.R. and so called eye-witnesses who tried to prop up the prosecution case. But the case, as projected against the accused-Respondents, was loaded with inherent improbabilities right from the beginning. No doubt the deceased died a violent death receiving a number of gun shot injuries as reported in his post-mortem report and death would have also been instantaneous having regard to the injuries sustained by him. There can be no doubt about the place of the incident also because blood, pellets, wads, pair of the shoes of the deceased, etc. were also found at the place where the incident allegedly occurred. But it is not established that the perpetrators of this crime were the present accused-Respondents or some of them. The scribe of the F.I.R. was one Mahmood. We note from the record that the prosecution took adjournment for examining him as a witness, but then on the next date dropped him. The reasons were obvious. The defence had a lot to say against him and to impeach his testimony, if examined. He was said to have reached the scene of occurrence just after the murder and readily agreed to scribe the F.I.R. As per the testimony of the complainant Anwar Ali Khan, P.W. 1, he is son of a retired Head Moharrir of police. It is strange that he not only scribed the F.I.R. of the present case, but was also the scribe of another F.I.R. dated 17.6.1978 of one Riyasat Khan for an offence inter alia u/s 307, I.P.C. against Ibne Hasan, Aslam (present accused-Respondents), Girvar and a few others. The copy of charge-sheet of that case was filed as Ex. Kha-3 and copy of his statement proving the F.I.R. before that Court was Ex. Kha-2. He was more than a scribe in that case. Ex. Kha-1 was the copy of the telegram sent to the S.P. Shahjahanpur on 21.6.1978 by Girvar (one of the accused in the above noted F.I.R. scribed by Mahmood). The copy of the charge-sheet submitted in the cross case to which this telegram related showed that the charge-sheet had been submitted against Riyasat and others, but not against Asif the brother of Mahmood named in the telegram. It was contended that it was due to the influence of Mahmood''s father who was a retired Head Moharrir of police. Any way, this much is clear that Aslam and Ibne Hasan, accused-Respondents in the present case, were on the side of the Girvar in those cross cases while Mahmood and his brother Asif were on the other side. Mahmood''s sister was also abducted and he lodged F.I.R. on 5.5.1977 about it against Anwar Khan, the present accused. Copy of the said F.I.R. was Ex. Kha-5. So, it would appear that the scribe Mahmood had an axe to grind against all the four accused-Respondents. Siddiq accused was the son of Anwar Khan accused. The trial Judge has rightly observed that in view of the background, possibility could not be ruled out that Mahmood played important role and was instrumental in implicating all the four accused-Respondents.

Coming to the motive aspect of the matter, Anwar accused was allegedly harbouring grudge against deceased as the latter had been outwitting him in procuring thekas in his name or in the names of his dummies. Even on taking it on its face value, it did not form adequate or reasonable motive on the part of Anwar Khan and others to murder the deceased. Such business rivalry amongst the contractors involved in auction is not very unusual but it does not mean that one or the other would go to the extent of murdering his rival. Similarly, altercation between Anwar Khan and the deceased over the placing of chhappar by the accused Anwar Khan touching the wall of the deceased was also a minor issue which could not be taken to be reason enough to impel or inspire the accused Anwar Khan to murder the deceased. That apart, the prosecution could not show any common bond of Ibne Hasan and Aslam with Anwar Khan and his son Mohd. Siddiq. There was nothing to show that they had any enmity with the deceased. The two sets were sought to be linked by the allegation that they were associates of each other. It was a bare claim without any evidence to back it.

It is further to be pointed out that Mohd. Taqi P.W. 2 and Mohd. Wali P.W. 3 stated about the coming of the accused persons in two rikshaws. As per Mohd. Taqi, Anwar Khan and Ibne Hasan were on one rikshaw and remaining two were on the other. To the same effect is the testimony of Mohd. Wali P.W. 3. The point of the matter is that there is nothing to show that the trip of the deceased was preplanned and in the absence of the same it is difficult to believe that four accused-Respondents could follow him and plan his murder as claimed by the prosecution. That apart, the accused-persons were not said to be coming from Village Kakra Kalan following the deceased on the way. They were said to be coming from opposite direction and surprisingly enough, they allegedly got down even before reaching him. There was yet another strange feature that they allegedly covered some distance through rikshaws and then chose to go on foot to reach the target and yet the witnesses managed to reach the scene of murder well in time to see every move and every act of the transaction of murder.

We are also of the opinion that the trial Judge was perfectly justified in not placing reliance on the testimony of the so-called eye-witnesses. But a little discussion is required to support our belief in this behalf. In the F.I.R., the case was that the deceased and complainant were going to market from their houses. At the trial, however, the complainant started saying that he used to live in the house of his sasural and had started from there. The house of his sasural was at distance of 25-30 paces towards north from the house of the deceased while his own house was 50-60 paces towards north-west from the house of the deceased. Necessity was felt at the evidence stage by the complainant to change his stand that he was going to market from the house of his sasural, because if the deceased was to go to Bahadurganj from his house, the own house of the complainant was not to fall in the way.

It is also very strange that the complainant did not receive any scratch on his body in the whole transaction of firing at the deceased, though he claimed to be riding on the carrier of the cycle being driven by the deceased. His claim was that he chose to run and climb over the chabutara of baithak of Munna Lal. The events having taken place in so short a time, the complainant could hardly have any opportunity to run for safety and he could not escape unhurt. The absence of any injury on the person of the complainant Anwar Ali Khan P.W. 1 renders his presence at the spot increasingly doubtful. We do not mean to say that an eye-witness accompanying the victim cannot be believed if he does not receive any injury on his person. But the point that we wish to make is that the manner in which the incident is said to have taken place and the case of the prosecution that the complainant was sitting on the carrier of the cycle driven by the deceased when the shooting started, he would not have ordinarily escaped unhurt.

The testimony of Anwar Ali P.W. 1 was to the effect that Ibne Hasan fired a shot on the deceased and then all of them fired on him from a distance of 7 or 8 paces and in the last Iben Hasan fired shot at the deceased by putting the end of the barrel in contact with his body. In the F.I.R. there was no mention of any such contact firing. Mohd. Taqi P.W. 2 testified that Aslam fired first shot and then corrected himself that the first shot had been fired by Ibne Hasan. He then further stated that all the four accused thereafter fired shots in quick succession. According to him, the first fire was made from a distance of 7 or 8 paces and remaining from a distance of 2-1/2-3 paces. He further stated that one fire was made from a very close distance. Mohd. Wali P.W. 3 deposed that Ibne Hasan fired on the deceased and after he fell down all the four accused-Respondents fired on him. While cross-examined, he stated that all the fires were made on Akbar Khan in quick succession. On being tested on the anvil of the medical evidence, ocular testimony of these eye-witnesses could not inspire judicial confidence. None of the injuries was caused from close range as there was no scorching, blackening or tattooing. No contact wound was recorded in the autopsy report. The ocular testimony was vague in this behalf also as to on which part of the body of the deceased contact-firing allegedly made by Ibne Hasan struck. The description given by the witnesses about the shots fired on the deceased was inconsistent and vague giving impression as if they were speaking out of imagination to stand by the prosecution case.

It is also to be pointed out that the complainant was not an independent person. It is there in the evidence that he and deceased were arrested together in a gambling case and were made accused in that case. Both of them were jointly tried and convicted in a case u/s 307, I.P.C. In that case of Section 307, I.P.C. the husband of the accused Anwar''s sister was a prosecution witness. Obviously, he (this witness)_ was interested with the deceased on one hand and was likely to harbour enmity against accused-Respondent Anwar. Mohd Taqi P.W. 2 was said to be the Mausera brother of the deceased. When he was put the relationship in his cross-examination, he kept on giving evasive answers. He was trying to conceal the relationship. It was obvious from the fact that when he was suggested that he was suppressing his relationship, he replied that he did not know it. Obviously, he had no scruples in telling lies. He was not very respectable either. He was tried and convicted for an offence u/s 307, I.P.C. for stabbing his own brother-in-law. The last witness Mohd. Wali P.W. 3 was thick with the deceased Akbar as he was his dummy in taking auctions for him. The interested witnesses could be believed provided their testimony had the ring of truth on the scrutiny of their evidence. But the way in which they allegedly reached the spot and the vital discrepancies as to shooting part spoken by them shook their veracity to the very foundation and they could not be safely relied upon as rightly viewed by the learned trial Judge.

No other independent witness was examined, though Saukat son of Saifulla, Budhu son of Mughal Khan and Mohd. Ali Khan son of Mughal Khan were named in the F.I.R. To say in other words, only interested and partisan testimony was adduced which was incapable of being relied upon in view of the discussion made hereinabove. We should also say as a passing reference that the deceased himself was a bad character and he had a number of enemies. He was a history sheeter at the time of the incident. There could be possibility of any of his enemies perpetrating this crime and so-called eye-witnesses making best of a bad bargain by thrusting the blame on the heads of the accused-Respondents owing to previous background which we have related in desired particulars in the preceding discussion.

We should not be misunderstand to be saying that the direct evidence could be rejected because of there being other enemies of the deceased. Our point is that the prosecution case, as projected against accused-Respondents and attempted to be proved by the testimony of interested and partisan witnesses, was loaded with full of improbabilities. We are in agreement with the conclusion arrived at by the learned trial Judge and do not find any merit in this appeal.

In view of the above discussion, we hereby dismiss this appeal. The accused-Respondents are on bail. They need not surrender. Their personal and bail bonds are cancelled.