State of U.P. vs Firasat and Others

M.C. Jain, J.—The State has come in appeal against the order of acquittal dated 14.10.1981 passed by Sri S.C.M. Tripathi, the then I Vth Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 119 of 1980. There are six accused-Respondents who stood tried before the court below under Sections 148, 449 and 302, I.P.C. read with Section 149, I.P.C. The deceased was one Irshad Hussain, son of Mohd. Hussain (P.W. 1). He was shot dead on 15.11.1979 at about 9 p.m. while lying asleep at his house situated in Mohalla Bijlipur, P.S. Kotwali, District Shahjahanpur. The F.I.R. was lodged by Ishtyaq Hussain P.W. 3 (cousin of the deceased) the same night at 11.20 p.m. It was alleged that all the accused-Respondents along with two strangers formed an unlawful assembly in the prosecution of common object of which they barged in the house of the deceased and shot him dead. The deceased and accused-Respondents lived in the same locality. Out of them, Hassu, Firasat and Nizakat Ali are real brothers. Makhdoom is their cousin. Abid Hussain and Javid Hussain are brothers and they are brothers-in-law (sala) of Nizakat.

Mohammad Hussain P.W. 1 (father of the deceased) and his younger brother Ejaz Hussain (father of Istiaq Hussain P.W. 3) lived separately in different portions of the house. The portion in occupation of Mohammad Hussain was towards the east. The western portion was in the occupation of Ejaz Hussain. Each portion had a raised verandah on the front side. The previous background was that about 5 or 6 months before this incident, Ashraf Ali alias Palli father of accused Hassu, Firasat and Nizakat Ali was murdered. The deceased and four others were being prosecuted for that murder at the time of the present incident. The deceased Irshad, his father Mohd. Hussain P.W. 1 and his two other brothers including Ishaq Hussain lay asleep on different cots in the verandah. There was a glowing lantern hanging by the peg fixed in the wall of the verandah. All the accused along with two strangers came from towards north through the lane in the east of the portion of Mohd. Hussain. They brought a wooden staircase and fixed it by the side of eastern boundary wall. Accused Firasat and Makhdoom, armed with gun and countrymade pistol respectively, scaled the wall through staircase and reached the roof of the pacca construction of Ejaz Hussain. They climbed down through the staircase and reached near Ejaz and his son Ishtiaq and on gun point commanded them to keep lying down and keep quiet. Firasat went towards the east and opened the door towards the lane. The accused Hassu and Javid armed with guns, Abid armed with country-made pistol, Nizakat armed with an axe and two strangers armed with Kantas entered the house through the door. They enquired as to where Irshad lay. Someone amongst them pointed towards him. All of them including Firasad and Makhdoom went towards Irshad. Accused Hassu and Javid opened fire on him and cut short his life while he was lying asleep. At that time, there had been electric light in the house. All the accused, making fires, made their escape towards the northern side. On the alarm raised by Ishtiaq, Rahmat Ali, Raees, Shafayat Ullah and others were attracted to the scene of occurrence. The accused were allegedly seen and recognised in the light of lamp and electricity. Ishtiaq himself scribed the report and went to the police station accompanied by Ishaq and lodged it there. A case was registered and investigation followed at the hands of Investigating Officer Mahendra Pal Tyagi P.W. 4 who immediately proceed to and visited the place of occurrence in the night.

After necessary formalities the dead body was sealed and sent for post-mortem which was conducted on 16.11.1979 at 4.30 p.m. by Dr. S. K. Mehrotra P.W. 5. The deceased was aged about 38 years and following ante-mortem injuries were found on his person:

(1) Gunshot wound of entry 5 cm. x muscle deep x 3 cm. breadth on middle of interior side of right arm. Blackening and Tattooing present.

(2) Gunshot wound of exit 6 cm. ? 6 cm. ? through and through on inner side of middle of right arm.

(3) Gunshot wound of entry 2 cm. ? 2 cm. ? chest deep front of chest 5th rib in clavicular line. Direction forward and towards left side. No blackening.

(4) Gunshot wound of entry 2 cm. ? 2 cm. ? full thickness of neck on middle of neck or left side. Direction forward and towards right side. Blackening present.

(5) Gunshot wound of exit 10 cm. ? 6 cm. ?on right side of upper part of neck below right mastoid process.

As is evident, the deceased had received three gunshot wounds of entry and two of exit. One of the gunshot wounds of entry was on middle of interior side of right arm with blackening and tattooing, the other on front of chest and third on middle of neck of left side. Exit wounds were on inner side of middle of right arm and on right side of upper part of the neck.

The defence was of denial and of false implication due to ill-will and enmity.

Apart from the medical and formal evidence including that of investigation, the prosecution relied upon the testimony of Mohd. Hussain P.W. 1 (father of the deceased), Ishaq Hussain P.W. 2 (brother of the deceased) and Ishtiaq P.W. 3 (cousin of the deceased) as eye-witnesses of the incident. The prosecution evidence did not find favour with the learned trial Judge for various reasons discussed in the impugned judgment and he recorded acquittal.

We have heard Sri S. K. Pal, learned A.G.A. in support of the appeal and Sri P. N. Mishra from the side of the accused-Respondents in opposition. The record has been summoned before us. We have given our anxious thought and have scrutinised the evidence carefully. We are of the opinion that for the sterling reasons dealt with below, the finding of acquittal is perfectly justified which is not capable of being reversed in appeal by this Court.

Indeed, it could not at all be doubted that Irshad Hussain deceased was victim of violence and was shot dead in the fateful night while lying asleep on a cot at his house. It is also clear from the post-mortem report that the gunshot wounds of entry sustained by him formed the cause of death.

It is to be noted in the first instance that the F.I.R. is shown to have been lodged at the police station on 15.11.1979 at 11.20 p.m. However, initially it bore the date ''16.11.1979''. The digit ''6'' was changed as ''5''. Ishtiaq P.W. 3, informant also admitted before the Court below that by mistake the digit ''6'', instead of ''5'' was written and was made ''5'', though he denied that the report was prepared on 16.11.1979. The date ''16'' had been entered in the formal report and in another copy of report as well as in the G.D. In all these papers ''16'' appeared to have been changed to ''15'' by making interpolation in the digit ''6''. The Investigating Officer also admitted that the date ''16'' entered in G.D. Ext. Ka-3 appeared to be changed to ''15'' and that there was some overwriting in the date entered in the report. Ishtiaq Hussain P.W. 3 also stated that he visited the police station Kotwali 3-4 days after the occurrence and he admitted that his signatures were taken. It may be relevant to state that it sounds to be logical that while writing a date one happens to mention an earlier date, but it can seldom happen that by mistake a future date is put. The interpolation in the date from ''16'' to ''15'' is indicative of the fact that it was not lodged on 15.11.1979. Rather the ante clocking had been done in the lodging of the F.I.R. which had been prepared after deliberation much later. Putting all the facts together including interpolation in the date from ''16'' to ''15'' in the F.I.R., ante clocking had seemingly been done in lodging of the F.I.R. Thus, the spontaneous character of the F.I.R. is clouded which is supposedly the earliest version of the prosecution.

Secondly, the availability of light at the spot is doubtful. The Investigating Officer claimed to have visited the spot that very night. According to him, the F.I.R. had been lodged at the police station in his presence at 11.20 p.m. on 15.11.1979. He stated to have found one lit lantern and one electric bulb at the place of occurrence. He admitted that the night of the occurrence was dark one. He also made a note in the C.D. to the effect that he fell down at the spot. He found no electric meter installed at the house. The inquest proceedings were also not conducted in the night. No lamp or electric bulb had been taken by him in possession. Recording of the fact in the case-diary that he did fall at the spot contradicted the availability of the light during the night of the occurrence. Mohd. Hussain P.W. 1 claimed to have taken electric power from the house of one Zahir in the neighbourhood. According to him, he had joined electric wire from his house. The house of Zahir was situated south of his house across the lane and it was unlikely that he could have taken electric connection through wire from the house of Zahir Mohd. Hussain P.W. 1 also stated that the electric light was off for about 10-15 minutes before the occurrence and at that time the lantern was lit. On the contrary, Ishaq stated that the lantern lay lit since evening. The evidence regarding light adduced by the prosecution was apparently conflicting and it was not free from doubt that the light was there at the time of incident. Indeed, in the absence of source of light it was difficult to believe that the culprits could have been seen and recognised in the darkness of night.

Another incongruent feature of the case is that as many as six accused-Respondents with two strangers were variously and dangerously armed, but only two of them, namely, Hassu and Javid Hussain allegedly opened shots on the deceased. It is somewhat against inherent probability of the situation that as many as eight culprits went to the spot dangerously armed when only two of them meant to accomplish the job by shooting. Further, another unnatural aspect of the matter is that despite the culprits being dangerously armed, they did nothing to harm any of the witnesses who were kith and kin of the deceased Irshad.

Yet another factor giving a serious jerk to the prosecution case is that though several persons including Rahmat Ali, Raees and Shafayat Ullah were named as eye-witnesses, but they were not examined. The statement made by Mohd. Hussain was that the said witnesses were not prepared to give evidence due to fear of accused persons. The explanation was not convincing. There was no evidence to the effect that the accused were notorious criminals and were a terror in the area. The Apex Court has held in the case of Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., Hyderabad 2002 (3) ACR 2695 (SC) : 2002 SCC (Cri) 1370, that non-examination of independent witnesses by prosecution on the ground that none came forward to give evidence because of fear of accused cannot be accepted in absence of evidence showing that the accused were notorious criminals or were a terror in the area. In such situation, non-examination of independent witnesses would seriously impair credibility of the prosecution case.

It is not in dispute that there subsisted ill-will and enmity between the deceased and members of his family on the one hand and the accused on the other. Despite that, only partisan and interested witnesses came to be examined whose testimony did not have the ring of truth. The prosecution story was given unnatural twist right from the beginning that in the first instance Firasat and Makhdoom reached near Ejaz and Ishtiaq and on gun point commanded them to keep lying quiet. There could hardly be any necessity or occasion to invite such a trouble by offering the sleeping persons an opportunity of being witnesses to this incident. The target Irshad was not an unknown person and he could have been found out and shot dead without any such exercise. Further, the allegation that the accused enquired as to where Irshad lay indicated as if sufficient light was not available and target Irshad had to be found out. It is again unnatural that in all the hubble and bubble the victim continued to lie fast asleep and did not wake up at all.

Mohd. Hussain P.W. 1 admitted before the court below that he lived in jointness with his two sons. Irshad was separate in mess and business. He was living along with his wife and children and was in exclusive occupation of his portion. Ishtiaq P.W. 3 admitted that the portion of Irshad deceased was newly built and he had been living in it. Irshad having built his separate portion to the exclusion of his father and brothers and the accused-Respondents being residents of the same locality would have fully known him and his portion. They could easily scale the wall straightaway reaching him. If the accused designed and intended to shoot and kill him, they would have chosen the direct way to reach the target without waking up the witnesses Ejaz and Ishtiaq. It was highly unnatural that they would reach the target in a manner suggested by the prosecution. Ishtiaq P.W. 3 claimed to have kept lying on the cot quietly due to fear. Then it is difficult to believe that he would be able to identify the co-accused who according to him, entered the house later on through eastern door. The manner of the entry of the accused into the house was seemingly so projected as to make Ishtiaq a probable witness. His testimony could not at all be believed and so was the case with regard to Mohd. Hussain P.W. 1 and Ishaq Hussain P.W. 2. It has come in evidence that there was a ''Milad'' ceremony in the vicinity at the house of one Nizam Ali. The women folk had gone to attend the ceremony as per the prosecution evidence. Mohd. Hussain P.W. 1 with his two sons lived in the adjacent portion. It was highly improbable and unlikely that Ejaz with his two sons would have been sleeping at the house of the deceased, leaving his own house uncared for in the month of November and so was the case with Mohd. Hussain P.W. 1 who was admittedly living separately with his two other sons. The evidence is that Ishaq was sleeping with a quilt covering him. But as per the testimony of Ishaq Hussain P.W. 2, he, his father and brothers had nothing with them to cover them. He made varied statement a little later that there lay Gadda and Chaddar on all the cots. Nothing of the sort was shown to be there by the Investigating Officer or found by him at the spot. The conclusion was justified that none of the eye-witnesses was sleeping nearby the deceased. None of them is an injured witness. There is no doubt that the deceased died of shooting that night, but on testing the evidence on the anvil of reliability the implication of the accused-Respondents was based on suspicion and around imagination only. The testimonial assertions of so-called eye-witnesses did not inspire judicial confidence.

In view of the discussion made herein above, we are in agreement with the finding of acquittal recorded by the learned trial Judge. We see no merit in this appeal. The appeal is hereby dismissed. The accused-Respondents are on bail. They need not surrender. The bail bonds are cancelled and sureties discharged.