State of U.P. vs Irshad Ali

Arvind Kumar Mishra-I, J.—Heard Sri D.I. Faridi, learned A.G.A. for the State-appellant and Sri M.K. Gupta, learned counsel for the accused-respondents.

The instant Government appeal has been filed by the State of U.P. against the judgment and order dated 24.5.1982 passed by IInd Additional Sessions Judge, Shahjahanpur, in Criminal Appeal No. 109 of 1981 whereby the accused-respondents Irshad Ali and Shahid Ali have been acquitted of charge u/s 326/34, I.P.C. Police Station Katra, District Shahjahanpur.

The prosecution case, as is apparent from the impugned judgment is that one day prior to the occurrence, Ishrat Ali brother of Izakat Ali was robbed by the accused Irshad Ali and his companion Ram Sagar. He lodged a first information report regarding the said incident of robbery at the Police Station, Katra on the same day. Because of this incident, accused Irshad Ali and Shahid Ali began to harbour grudge against Ishrat Ali and his family members. On 1.1.1975 at 4:45 p.m., Mazhar Ali went to the betel shop of Laua situated towards the South of Shahjahanpur-Bareilly road which passes from town of Katra, for purchasing the betel. The accused-respondents Irshad Ali, Shahid Ali and the deceased-respondent Yusuf Ali were standing near bonfire. They caught hold of Mazhar Ali and exhorted that his brother Izakat Ali had lodged the first information report against them, therefore, they will kill him. Subsequent thereto, accused Irshad Ali dealt a blow with knife in the abdomen of Mazhar Ali and accused Shahid Ali dealt a blow with hockey on his head.

Mazhar Ali raised an alarm on which witnesses Puran Singh and Raft Ullah rushed to help him. When they tried to apprehend the accused, decamped. Hearing hue and cry raised by Mazhar Ali on being assaulted, Izakat Ali came to the scene of occurrence to whom Mazhar Ali narrated about the occurrence. The report of the occurrence was then got scribed by Suresh Chandra and injured Mazhar Ali was taken to the Police Station, Katra lodging the first information report which was lodged against the accused Irshad Ali, Shahid Ali and deceased Yusuf Ali, on 1.1.1975 at 5:15 p.m.

The injured Mazhar Ali was sent by the police to P.H.C., Katra for medical examination alongwith constable Tota Ram. His injuries were examined by Dr. U.C. Agrawal, P.W. 1 who was posted as Medical Officer, there, Perusal of the injury report revealed that injured had received a lacerated wound, an incised wound and was complaining of pain on left side of back.

At the trial, the prosecution examined Dr. U.C. Agrawal as P.W. 1, Izakat Ali P.W. 2 informant, Puran Singh P.W. 3 eye-witness, Rafi Ullah P.W. 4 eye-witness, Mazhar Ali P.W. 5 injured, M.M. Khan S.I. P.W. 6, Shiv Nath Singh P.W. 7 Malkhana Moharrir and S.N. Saxena, P.W. 8 A.P.O. regarding loss of the case diary of the present case.

Learned A.G.A. submits that the impugned judgment and order is assailed on the following grounds:

That learned Sessions Judge erred in holding that implicit reliance could not be placed on the testimony of Izakat Ali P.W. 2, Puran Singh P.W. 3, Rafi Ullah P.W. 4 and Mazhar Ali P.W. 5 (injured). The evidence of Mazhar Ali P.W. 5 who was injured in the incident was by itself sufficient for the conviction of the accused.

That Izakat Ali P.W. 2, Puran Singh P.W. 3 and Rafi Ullah P.W. 4 satisfactorily accounted for their presence at the place of the incident and the learned Sessions Judge erred in brushing aside their testimonies on the ground that they were chance witnesses.

That the learned Sessions Judge erred in holding that earlier statement of Mazhar Ali P.W. 5 was not consistent with the prosecution story as unfolded in the court. The inconsistencies noticed by the learned Sessions Judge are not at all material.

That the learned Sessions Judge erred in holding that the first information report of the incident was ante-timed. As already adverted the first information report of the incident was lodged at 5:15 p.m. within an hour of the incident and all the three accused were named therein.

That the learned Sessions Judge erred in drawing adverse inference against the prosecution on the ground that no independent witness was examined in support of the prosecution case.

That the learned Sessions Judge erred in holding that the investigation of the case was not fair.

That the prosecution story is consistently supported by testimony of Izakat Ali P.W. 2, Puran Singh P.W. 3, Rafi Ullah P.W. 4 and Mazhar Ali P.W. 5 and finds material corroboration from the prompt first information report of the incident and the medical evidence and the learned Sessions Judge erred in brushing aside the prosecution story.

That the acquittal of Irshad Ali and Shahid Ali is contrary to the weight of evidence on record is bad in law and has resulted in miscarriage of justice.

The learned trial Judge after scrutiny and analysis of the entire prosecution evidence arrived at a conclusion that in the present case, independent witnesses could be available to depose in respect of the occurrence but the prosecution had withheld them and in the facts and circumstances of the case discussed in the judgment, the accused persons were found entitled to acquittal.

Learned counsel for the respondents submitted that admittedly the occurrence took place in front of the betel shop of Laua who was an important witness. He in all probability would have seen the occurrence. Withholding him from witness box is a strong indicative of the fact that the prosecution version regarding assault on the injured Mazhar Ali in front of his betel shop is not true. Eye-witnesses Puran Singh and Rafi Ullah are chance witnesses and their evidence suffers from serious infirmity, therefore, they are not reliable.

Summing up discussion, the Court held thus:

Eye-witness Puran Singh and Rafi Ullah are chance witnesses and their evidence suffers from serious infirmities. It, in itself, is not reliable. The first information report of the present case has been ante-timed as is evident if we compare it with the dying declaration. There exists no motive for the accused Irshad Ali, Shahid Ali and their deceased father Yusuf Ali to commit murderous assault on injured Mazhar Ali. The prosecution has shifted the scene of occurrence from the country made liquor shop to the betel shop of Laua to put curtain on the defence version. The circumstances of the present case when read with the conduct of Mazhar Ali leave no room for doubt that he was stabbed near country made liquor shop when he picked up a quarrel with someone. It may infer that some suspicion may be casted on the accused Irshad Ali to have participated in the quarrel but it is well-settled that in a criminal case, suspicion cannot replace proof. It is the duty of the prosecution to establish the case against the accused beyond any reasonable doubt. In the present case, the prosecution has put a false and concocted version of the occurrence which has several infirmities because of which it cannot be accepted. In the present case, the prosecution has failed to establish the alleged assault on Mazhar Ali by the accused and deceased Yusuf Ali in the alleged manner. The accused are, therefore, entitled to benefit of doubt.

Having considered the submissions made by learned A.G.A. and on perusal of the impugned judgment and order, we are of the firm view that the learned court below by the impugned judgment and order dated 24.5.1982 found that the evidence adduced by the prosecution was not reliable, the F.I.R. was ante-timed, there was no motive for the accused persons to have committed the crime and lastly that the place of occurrence was shifted by the prosecution. On the aforesaid conclusions the appeal of the appellant Yusuf Ali, who died during the pendency of the appeal, was abated. The appeal of appellants Irshad Ali and Shahid Ali was allowed and their conviction u/s 326/34, I.P.C. was set aside. In this case, there is no compelling and substantial reasons for interfering with the appeal against acquittal order passed by the learned trial Judge against the accused-respondents. The findings recorded by the learned trial Judge are not perverse or contrary to the evidence and material on record.

We find no infirmity in the reasons assigned by the learned trial Judge for acquitting the accused-respondents. The view taken by the learned trial Judge while acquitting the accused was reasonable and possible. We are accordingly not inclined to interfere with the order of acquittal recorded by the learned trial Judge in respect of the accused-respondents. The Government appeal is accordingly, dismissed.