Sahwan and Others vs State of U.P.

This appeal has been preferred by Sahwan, Ramzan and Buddha against the judgment and order dated 9.7.1998, passed by 1st Additional Sessions Judge, Sitapur in Sessions Trial No. 536 of 1994 whereby they have been convicted and sentenced in the manner stated hereinafter:

Appellant Sahwan: (i) u/s 302, I.P.C. to imprisonment for life; and (ii) u/s 394, I.P.C. read with Section 397, I.P.C. to seven years'' rigorous imprisonment and to pay a fine of Rs, 2,000, in default six months'' R.I.

Appellants Ramzan and Buddha: u/s 394, I.P.C. read with Section 397, I.P.C. to four years R.I. and to pay a fine of Rs. 2,000 each ; in default to undergo six months'' R.I.

In brief, the prosecution case runs as under:

The deceased Jameel was the nephew of the complainant P.W. 1 Abbas. Nabi was the father of deceased Jameel and brother of the complainant Abbas. They are all residents of village Godianpurwa, hamlet of Raja Pur Kala within the limits of police station Reosa district Sitapur.

Smt. Chhotko (P.W. 2) is the wife of the deceased Nabi and mother of Rafiqun (P.W. 6).

Habib is the brother-in-law of the complainant resident of village Lodhpurwa police station Thangaon, who was present on the fateful day in the village of the complainant in connection with the reaping of his wheat crop.

Rafiqun (P.W. 6), daughter of deceased Nabi was married to accused Israr, who died during the pendency of the appeal. Appellant No. 2 Ramzan is the brother of accused Israr. Appellant No. 1 Sahwan and Appellant No. 3 Buddha both are brothers-in-law of accused Israr and Appellant Ramzan.

Appellant Ramzan and accused Israr are residents of village Semra, police station Reosa, while Appellant No. 1 Sahwan is resident of village Basantpur P.S. Reosa and Appellant No. 3 Budda is a resident of village Baithakpur Police Station Thangaon. Appellant Ramzan is the resident of village Semra Police Station Reosa.

Village Basantpur is at a distance of four miles and Reosa is at a distance of five miles from village Godiyan Purwa, hamlet of village Rajapur Kala where the incident, in question, took place.

2A. About two years from the date of the alleged incident, complainant''s niece, Rafiqun, daughter of Nabi was married to accused Israr. In marriage Smt. Rafiqun was given jewellery, which is said to have belonged to Appellant Sahwan. The said jewellery was kept by Smt. Rafiqun with her deceased brother Jameel Ahmad, which her husband Israr and Appellant No. 1 Sahwan were demanding back. Eight or ten days before the incident complainant''s brother Nabi and nephew Jameel (both deceased) had gone to Reosa market where accused Israr and Appellant Sahwan met them and asked for the return of the jewellery and threatened them with dire consequences if the same was not returned. On account of this, relations between them became strained.

2B. On the night between 15/16.4.1994 at about 2 O'' clock the accused Israr (since deceased) and Appellant Sahwan, along with two unknown persons came to the house of deceased Nabi and demanded back the ornaments from Jameel Ahmad. The accused Israr was armed with pistol and Appellant Sahwan was armed with gun and two other unknown persons were armed with lathies. Some altercation took place between the accused persons on one hand and Jameel on the other hand in connection with the return of the ornaments. Jameel Ahmad, however, refused to return them whereupon all the four persons started assaulting Jameel Ahmad and Nabi. The complainant on hearing the cries reached the spot and saw them assaulting Jamil Ahmad and Nabi, in the light of torch, which he had with him and in that emanating from ''dibbi'' burning in the house of Nabi. The accused Israr also fired at Jameel causing him fire-arm injuries resulting in his instantaneous death. The Appellant Sahwan dug out the earth where the ornaments were hidden and succeeded in getting them. Nabi the father of the deceased Jameel Ahmad, who resisted was also fired at by Sahwan. Similarly Habib was also assaulted by lathies. On hearing the alarm village people Babu Ram, Ram Khelawan and several others reached there with torches in their hands and on their challenge accused persons had run away.

2C. Since at the time of alleged incident, it was raining and no conveyance was available, in the next morning the injured Nabi and Habib were brought to the police station Reosa where a report was got scribed and thereafter was lodged at the police station at 7 a.m. The F.I.R. is Ext. Ka-1.

P.W.4 Asharfi Lal Yadav was posted at the police station Reosa as Head Moharrir. On the basis of the written report Ext. Ka-1 the case was registered and chick F.I.R. Ext. Ka-5 was prepared. Necessary entries in the G.D. were made by him vide Ext. Ka-4.

P.W. 7 S. A. Rizvi is the Investigating Officer, who recorded the statement of the complainant on the same date at the police station and then along with S.I. Yasvant Singh and Police Constables proceeded to the place of occurrence where inquest report of the dead body of Jameel Ahmad was prepared at his direction by S.I. Yasvant Singh, which is Ext. Ka-15. Photo lash, sample seal, challan lash, letter R.I., letter C.M.O. etc. were also prepared, which are Exts. Ka-16 to Ext. Ka-20. The dead body was sent for post-mortem. Investigating Officer P.W. 7 S.A. Rizvi prepared the site plan Ext. Ka-21 and also recorded the statement of the witnesses. The ''dibbi'' and torch were also taken into possession under recovery memos Ext. Ka-2 and Ext. Ka-23.

Statement of the witnesses, namely, Ram Khelawan and Babu Ram were also recorded by the Investigating Officer. On 22.4.1994, statement of injured Nabi, was recorded in the District Hospital, Sitapur. The inquest report of the dead body (Ext. Ka-6) was prepared by P.W. 5 S.I. Ranvijai Singh. Letter to C.M.O., letter R.I. report C.M.O., seal mohar, challan lash are in the hand writing and under his signatures, which are Exts. Ka-6 to Ka-9 are Ext. Ka-11 to Ka-13.

On 28 4.1994, the accused Israr and Appellant Sahwan were arrested. On 24 6.1994, the Appellant Ramjan and Buddha were arrested from their houses.

After completing investigation charge-sheet Ext. Ka-25 was submitted against all the accused.

The injured Nabi succumbed to his injuries on 24.4.1994.

Revering back, the post-mortem of the dead body of Jameel was conducted on 17.4.1994 at 2.30 p.m. by Dr. A. K. Pandey (P.W. 8). On the person of the deceased Jameel Ahmad following ante-mortem injury was found:

Fire arm wound of entry 3.0 x 3.0 cm. x abdomen cavity deep present in the abdomen, 8 cm. above umbilicus at 12 O'' clock position. Blackening present 1.5 cm. all around injury. Margins inverted and lacerated. Omentum was seen coming out of wound.

Cause of death was reported as shock and haemorrhage due to ante-mortem fire arm injury.

Dr. Ashok Pandey (P.W. 8) reiterated the same cause of death in his statement on oath and proved the post-mortem report as Ext. Ka-26.

On 24.4.1994 Dr. Ashok Pandey (P.W. 8) also performed autopsy on the dead body of Nabi. Following ante-mortem injuries were found on his dead body:

(1) A contusion 5.5 cm. x 5 cm. on the Rt. side scalp 3.5 cm. above Rt. eye brow.

(2) A septic wound 4 cm. x 3 cm. x muscle deep present on the Rt. side abdomen 7.5 cm. above Rt. ant. Sup. Iliac spine 14 cm. from umbilicus at 9 O''clock position surgical packing present.

(3) An abrasion 1 cm. x 1 cm. present on the back of Lt. elbow Jt. Surgical dress present.

He reported cause of death as coma due to ante-mortem injuries. He stated on oath that the injuries of the deceased Nabi can be caused by some blunt object such as lathi. He also reiterated on oath the cause of death. He proved the post-mortem report as Ext. Ka-27.

Before Nabi could succumb to his injuries he was medically examined on 16 4.1994 at District Hospital, Sitapur, but the said injury report has not been proved.

Habib who is also said to have been assaulted by the Appellants was medically examined on 18.4.1994 at 1.45 p.m. by Dr. M. P. Gautam (P.W. 3). He found following injury on his person:

An abrasion wound of 1 cm. x 0.5 cm. with black scab present on the posterior aspect of the left index finger. 2 cm. above the base of nail.

P.W. 3 Dr. M. P. Gautam stated that the injury could have been caused in the night intervening 15/16.4.1994 at about 2 a.m. by some lathi and danda.

The case was committed to the Court of Sessions in the usual manner where the Appellant Sahwan and co-accused Israr (since deceased) both were charged u/s 302, I.P.C. and u/s 394, I.P.C. read with Section 397, I.P.C. While the Appellants Ramjan and Buddha were charged u/s 394, I.P.C. read with Section 397, I.P.C. They all pleaded not guilty to the charges and claimed to be tried.

During trial the prosecution examined as many as 7 witnesses. Out of them P.W. 1 Abbas, P.W. 2 Chhotko and P.W. 6 Rafiqun are alleged to be the eye-witnesses.

After the closure of the prosecution evidence the statements of the accused u/s 313, Cr. P.C. were recorded. No evidence in defence was led.

Learned trial court believed the evidence adduced by the prosecution and convicted and sentenced the Appellants in the manner stated in paragraph 1.

As mentioned earlier co-accused Israr died during the pendency of the trial.

Aggrieved by the above order of their conviction and sentence the present appeal has been preferred.

We have heard Mr. Jafaryab Zilani, learned Counsel for the Appellants and Mr. Umesh Verma, learned Additional Public Prosecutor and perused the depositions of the witnesses ; the material exhibits tendered and proved by the prosecution ; statements of the Appellants recorded u/s 313, Cr. P.C. and the impugned judgment. We are constrained to observe that the prosecution has miserably failed to establish guilt against the Appellants and accordingly the appeal deserves to be allowed.

Learned Counsel for the Appellant, at the very outset, contended that in this case the F.I.R. is not genuine and the entire prosecution case is full of improbabilities and the presence of the witnesses could also not be established beyond doubt and entire evidence on record has been evaluated by the trial court in a wrong perspective.

Before scrutinizing the prosecution evidence, we would like to enumerate certain distinguishing features which hit the root of the prosecution case. They are:

(I) (i) In this case there are three injured persons. Jamil Ahmad died on the spot due to fire arm injuries.

(ii) Another injured Nabi succumbed to his injuries on 24.4 1994.

(iii) Another injured Habib was medically examined on 18.4.1994, i.e., about two days after the alleged incident.

Out of the three injured only Habib is alive but for reasons best known to the prosecution this Habib was not examined.

It is also pertinent to mention that injured Nabi, who succumbed to his injuries on 24.4.1994, was medically examined on 16.4.1994 in the District Hospital, Sitapur, but his injury report was not proved by the prosecution again for reasons best known to the prosecution. The approach of the trial court in this regard appears to be fallacious and untenable. In the absence of proof of such injury report it would not be possible to connect the injuries as being the result of the incident, in question.

(II) This occurrence took place on the night intervening 15/16.4.1994 at about 2 a.m. when every body, including the deceased injured as well as the complainant and the witnesses were sleeping. Undisputedly, it was a dark night. The accused persons are said to have been identified in the light emanating from the dibbi burning in the house of Nabi and also in the light of torches.

(III) The Appellant Sahwan and the accused Israr (since deceased) were named in the F.I.R. and two others co-associates, namely, Ramzan and Buddha could not be identified.

(IV) No dying declaration of deceased Nabi was recorded either by the Magistrate or by the doctor or in the presence of the doctor.

The statement of the deceased Nabi recorded by the Investigating Office u/s 161, Cr. P.C. was tendered in evidence and proved by the Investigating Officer as Ext. Ka-24.

(V) The prosecution is absolutely silent as to whether any blood was found at the place of occurrence or not.

(VI) Admittedly there were strained relations between the complainant, the deceased and the witnesses on the one hand and the accused persons on the other hand in respect of ornaments. It is said that accused Israr borrowed some ornaments from his brother-in-law Sahwan which he gave to his wife Smt. Rafiqun (P.W. 6) in her marriage. Israr wanted her to return the said ornaments which she kept with her brother Jamil Khan and the same, despite repeated demands, were not returned.

In the backdrop, as above, we now propose to scrutinize the testimony of the witnesses.

P.W. 1 Abbas is the complainant, who stated to have reached the spot and seen the occurrence. Accordingly he lodged the report at the police station in the next morning, i.e., on 16.4.1994 at 7.30 a.m. He has named accused Israr and Appellant Sahwan. Two of their associates, namely, Ramzan and Buddha could not be identified and so they were not named in the F.I.R. This version is belied from the very testimony of this witness when he admitted in his cross-examination that on the very night he came to know the names and addresses of two unknown persons from the witnesses, Habib, Rafiqun and widow of Nabi. P.W. 6 Smt. Rafiqun has however deposed that she had been knowing all the four accused from before and her father and also uncle Abbas (informant) were knowing accused Appellants Ramzan and Buddha from before the incident, in question. The question is that if in view of the above P.W. 1 Abbas was present and had seen the occurrence, why the names of Ramzan and Buddha were not mentioned in the F.I.R particularly in the background of his own depositions and also the depositions as made by P.W. 6. Though P.W. 1 Abbas has taken a shifting stand on this point but presuming for a moment that these two persons, namely, Ramzan and Buddha could not be identified at the spot, the question is why they were not put to identification test. P.W. 1 Abbas in his cross-examination at one stage stated that he was not at all knowing them from before the incident. He stated to have seen them for the first time at the time of incident and he then saw them in the Court on the last date. If it was so, then it was quite obligatory on the part of the prosecution to have resorted to identification proceedings which would have removed all shadow of doubt. Non-mentioning of the names of Ramzan and Buddha in the F.I.R. and then failure on the part of the prosecution to hold identification are grounds which will adversely affect the prosecution case.

14A. It is also pertinent to mention that complainant P.W. 1 got the F.I.R. scribed by some one whom he does not know either by face or by name. The deposition made by this witness P.W. 1 in regard to the F.I.R. appears to be quite unnautral and untrustworthy. It is strange to mention that most of the contents of the F.I.R. were denied by this witness during the course of his cross-examination. He could not even tell the meaning of several words which find place in the F.I.R. All this will also adversely affect its veracity.

The presence of witness Abbas on the spot and the genuineness of the F.I.R. both stand shaken.

P.W. 2 Smt. Chhotko, who is widow of deceased Nabi also claimed to have seen the accused-Appellants assaulting by lathies and also firing by tamancha and gun thereby causing injuries to Jameel Ahmad, Nabi and Habib but it is regretful that she could also not stand to the test of reliability. She could not tell the places where the assailants were standing and also the place where her husband Nabi was. She could also not tell the place from where the firing was done and also the place where the injured received injuries. She further gave out absolutely a different version by saying that Nabi was fired at first by the Appellants and Jameel was fired thereafter, which is absolutely contrary to what has been stated by P.W. 1 and P.W. 6. She also stated to have recognized assailants in the light of torch, which she had but this fact never finds mention in the F.I.R. A perusal of her entire deposition reveals that her testimony is not worth reliance.

P.W. 6 Rafiqun is the daughter of Nabi, who was married to accused Israr and it is on her count that the present incident is said to have taken place. She gave out another version in her statement by saying that after firing the complainant Abbas and Habib and several other people of the village came on the spot, which statement is absolutely contrary as to what has been set up in the F.I.R. and as to what has been stated by complainant (P.W. 1) Abbas. The deposition made by her in her cross-examination further gives a cruel blow as to the truthfulness of the prosecution case. She stated that about ten days after the alleged incident, all the accused came to her house and divorce took place between them. At that time her uncle Abbas and her mother were also present. The divorce was reduced into writing. After the alleged divorce as deposed by her the accused were arrested at her house. It looks quite unnatural that the Appellants would commit murder well within the knowledge of the complainant and witnesses and still they would come to the place of the witnesses for divorce. This version of arrest is also not consistent with the deposition as made by S.I. P.W. 7 who stated about the arrest of the accused at different places and on different dates. It was further deposed by her that the complainant Abbas also went along with them to the police station where a report was lodged by him. It clearly shows that the report of this incident was lodged sometimes after ten days which fact brings the prosecution case to a stage where it can well be thrown out straightaway.

It has come in the testimony of both the P.W. 2 and P.W. 6 that village Chaukidar, namely, Doober had also come on the spot in the night and he had proceeded to the police station in the night and in the morning at 7 a.m. he came back along with the police personnel. It means that first information was given at the police station through Chaukidar but where that information has gone is a matter of grave concern. The prosecution appears to have very cleverly concealed the said material fact without any explanation. In normal course such information must have been recorded in the G.D. and it is only thereafter the police would have liked to come on the spot but there is nothing on record to explain the same which gives another jolt as to the truthfulness of the prosecution version. The said information in the shape of the F.I.R. appears to have been suppressed deliberately with a view to conceal truth and to overcome the lacunas cropped therein by lodging another report, i.e., Ext. Ka-1, which can well be said to be second F.I.R. which is not admissible in evidence.

From the depositions of the above three eye-witnesses it is clear that their claim as having seen the incident, besides being doubtful, is also not consistent with the medical evidence.

Besides above, all the three witnesses P.W. 1, P.W. 2 and P.W. 6 are closely related by blood and they are highly interested witnesses. In the background of inimical relations, as stated in the earlier part of the judgment, their testimony is to be viewed very cautiously. On close scrutiny their evidence does not inspire confidence. It is also pertinent to mention that on hearing the alarm, Ram Khelawan Godiya and Babu Ram Pasi, reached the spot with torches in their hand and on their challenge the Appellants are said to have run away and none of them have been examined. The independent corroboration must have given some boost to the prosecution case but regrettably we do not have it.

As already stated above the occurrence took place at dead hours of night and the light of torch and burning dibbi are said to be the source through which the Appellants were identified. This dibbi and torch of the complainant as well as of P.W. 2 were also taken in possession under a recovery fard. However, the torches which the independent witnesses, namely, Ram Khelawan and Babu Ram Pasi had with them were not taken into custody. Whatever may be but these material pieces of evidence (dibbi and torch of P.W. 2) were not produced in the Court during the trial which is again a circumstance which goes against the prosecution. If the very source of light is not established the entire prosecution structure in regard to identification of the assailants falls to the ground.

It is also pertinent to mention that Jameel succumbed to his injuries on the spot and Nabi is also said to have received fire arm injuries. It has come in the evidence that when the assailants had run away, the injured Nabi was brought inside the room, but strange enough the prosecution is silent about the presence of the blood.

Before closing it is pertinent to mention that Nabi succumbed to his injuries on 24.4.1994, i.e., week after the incident but his dying declaration was not recorded either by a Magistrate or by the doctor or in the presence of the doctor. The statement of the injured Nabi was recorded u/s 161, Cr. P.C. which was tendered into evidence as dying declaration. We make no bones in observing that the practice of the Investigating Officer himself recording the statement of the witness, who was in a precarious condition, without requisitioning the services of the Magistrate, is a practice which merits to be condemned. Such a view was also taken by the Apex Court in Munnu Raja and Another Vs. The State of Madhya Pradesh, .

It is also material to mention that in this case the investigation does not appear to be very fair. As admitted by the Investigating Officer himself on the very day i.e., 16.4.1994 the injured Nabi came to the police station along with the complainant but he did not record the statement of Nabi on that date, while he recorded the statement of the complainant on the same date. Investigating Officer (P.W. 7) also stated to have gone to the place of occurrence on 16.4.1994. It is clear from a perusal of the site-plan that the Investigating Officer found the dead body of Jameel kept under neath tarwaha (chhappar). Nabi, as clear from the deposition of witnesses, was also brought inside the house after the accused had run away. The Investigating Officer appears to have not taken any care to collect blood from any point of the places where the incident took place. Even in the site-plan no such place was shown where blood was present. In the site-plan no such place has been shown from where the Appellants had opened fire or where initially the marpit had taken place. Apart from it, no recovery of weapon was made by the Investigating Officer and no search warrant was prepared and the accused were arrested after a considerable gap. The statements of the witnesses were also not recorded in a reasonable time despite they being available. The statement of Habib was recorded on 22.4.1994 for no plausible reason. The statement of Rafiqun and Chhotko was recorded but it bears no date as to when it was recorded. The investigation to our opinion is neither fair nor legally conducted.

In view of the foregoing discussions, we make no bones in observing that prosecution remained unsuccessful in proving its case against the Appellants beyond reasonable doubt. The possibility of defence version which was that a dacoity was committed in which Jameel Ahmad, Nabi and Habib sustained injures and the Appellants being falsely implicated due to strained relations, cannot be ruled out.

In view of the above we are of the judgment that the conclusions arrived at by the trial court cannot be sustained. In our view the appeal deserves to be allowed.

Appeal is hereby allowed. The judgment and order dated 9.7.1998 convicting and sentencing the accused-Appellants is hereby set aside. All the three Appellants are hereby acquitted of the charges levelled against them.

The accused Ramzan and Buddha are on bail. They need surrender. Their bail bonds are cancelled and sureties discharged. The Appellant Sahwan is in jail. He shall be set at liberty forthwith, if not required in any other case.