Wasif Haider vs State of U.P.

Subhash Chandra Agarwal, J.—The Criminal Appeal Nos. 1419, 1430, 1518, 898 of 2004 arise out of the same judgment dated 22.1.2004, passed by Addl. Sessions Judge, Court No. 1 Kanpur Nagar in S.T. No. 164 of 2002 whereby the Appellants Wasif Haider, Hazi Atiq, Mumtaj alias Maulana and Safat Rasool were convicted under Sections 302/149, 307/149 and 148, I.P.C. and u/s 7 of Criminal Law Amendment Act and each of the Appellant was sentenced to undergo imprisonment for life, R.I. for five years, R.I. for one year and R.I. for three months respectively. The sentences awarded to the Appellants were ordered to run concurrently. The Appellants were however acquitted under Sections 395, 397, 436 and 153A, I.P.C.

The Government Appeal No. 5270 of 2005 has been filed against a common judgment dated 3.8.2005, passed by the Addl. Sessions Judge, Court No. 7, Kanpur Nagar in S.T. Nos. 143 and 144 of 2002 whereby the Respondent Wasif Haider was acquitted of the charge punishable u/s 25/27 of Arms Act and Section 4/15 of Explosive Substances Act pertaining to Crime Nos. 72 and 73 of 2001, P. S. Chamanganj, Kanpur Nagar. All the five appeals are being disposed of by a common judgment.

The incident took place on 16.3.2001 at 6.30 p.m. at Nai Sarak in front of Noorani Mosque P. S. Moolganj, Kanpur Nagar. The F.I.R. Ext. Ka-1 was lodged by the complainant Sri Rajendra Dhar Dwivedi (P.W. 2), who was posted as S.O. P.S. Moolganj, Kanpur Nagar on the same day at 8.05 p.m.

The prosecution story as unfolded in the F.I.R. is that on 16.3.2001 the complainant accompanied by other police personnel was busy in the law and order duty at parade crossing. He came to know that a crowd of 200-300 rioters were making mischief by fire and rioting at Chaubey Gola Temple. The complainant accompanied by police force and A.D.M. (Finance and Revenue) Sri Chandra Prakash Pathak, A.D.M. City Sri O. N. Singh (P.W. 14), S. P. (Rural) Sri S. B. Pathak, S.O. Babu Purwa Sri Rajesh Trivedi, S.O. Cantt. Sri Sukh Sagar Shukla (P.W. 3) alongwith one and a half Section P.A.C., proceeded towards Nai Sarak. When the A.D.M. (Finance and Revenue) reached in front of Sunehri Mosque on the Nai Sarak, rioters started firing on the police party from the upper portion of the mosque. Sri Chandra Prakash Pathak, A.D.M. (Finance and Revenue) and his orderly Ram Chandra were inured and fell down and were sent to the hospital for treatment. The police personnel also fired 2-2 rounds each in their defence and thereafter rioters stopped firing. When the police party reached the mosque, rioters had already fled away. Thereafter, police party reached Chaubey Gola Temple where rioters had looted some houses and had also committed arson. The police party also received information that A.D.M. (Finance and Revenue) Sri Pathak was dead. Thereafter the complainant lodged oral report at the police station Moolganj at 8.05 p.m., on the basis of which Case Crime No. 7/01 under Sections 302, 307, 395, 147, 149, 427, 436 and 153A I.P.C.

and Section 7 of Criminal Law Amendment Act was registered against 200-300 unknown rioters. In the same night inquest proceedings on the dead body of Sri C. P. Pathak were conducted by Tehsildar Sadar Kanpur Sri Satish Chandra Shukla (P.W. 9) and the dead body was sent for post mortem examination through Constable 1473 Bhaiyalal (P.W. 8) and Head Constable Nazar Singh.

The investigation of the case was handed over to Sri T. V. Singh, S.H.O. Police Station, Anwarganj (P.W. 11). The Investigating Officer recorded statement of witnesses, inspected place of occurrence and prepared Site Plan Ext. Ka-6. A bullet was found from the ashes of deceased C. P. Pathak which was sent to Forensic Science Laboratory for examination.

On 4.8.2001 the Investigating Officer came to know that accused Mumtaz alias Maulana was present at P. S. Cantt. and interrogated him. Thereafter he got information that accused Wasif was detained at police station Chamanganj. The Investigating Officer went to police station Chamanganj and recorded the statement of Wasif. Further investigation was conducted by Inspector Sri B. S. Tyagi (P.W. 15). On 17.9.2001 accused Hazi Atiq was arrested at about 8 p.m. and on 18.9.2001 accused Safat Rasool was arrested. Test identification parade was held on 27.9.2001 at District Jail, Kanpur. After completion of investigation, charge-sheet was submitted.

As the deceased Sri Chandra Prakash Pathak was a senior officer in the District Administration, the autopsy on his dead body was performed in the night of 16/17.3.2001 at 0.50 a.m. by Dr. U. K. Srivastava (P.W. 10). The age of the deceased was about 42 years and in the opinion of the doctor, the deceased died about 6-12 hours before the time of conducting the post-mortem examination. Rigor Mortis was present all over the body. Post-mortem staining was present over the back, buttocks and thigh. Following anti-mortem injuries were found on the dead body of the deceased:

Fire-arm wound of entry 1 ? 1 cm. chest cavity deep 4 cm. below the sternal notch 0.5 cm. to the right of mid-line. Black collar present around the wound. Margins inverted. Underlying bone sternum fractured.

Fire-arm wound of exit 2 ? 2 cm. left side of back 4 cm. below left Scapula margins everted.

On internal examination, sternum was found fractured, membrane and brain were pale, pleura and left lung were lacerated, stomach contained 4 ounce watery fluid.

Small intestine was half-full with gases and there was faecal matter and gases in the large intestine. In the opinion of the doctor, the deceased died due to shock and haemorrhage as a result of ante-mortem injuries. Post-mortem report is Ext. Ka-5.

Ram Chandra, the orderly of the A.D.M. (F. & R.) was also injured in the incident and received gun shot injuries, but neither he was examined as a witness, nor his injury report was proved by the prosecution.

The four Appellants namely Mumtaj alias Maulana, Wasif Haider, Hazi Atiq and Safat Rasool were put up for identification at Kanpur Jail. The identification proceedings were conducted by Vindhyawasini Saran (P.W. 7).

As per identification memo, Ext. Ka-3 the witnesses Shyama Kant Tripathi, P.W. 6, Sukh Sagar Shukla (P.W. 3), Rajendradhar Dwivedi (P.W. 2), Maiku Lal Rawat (P.W. 5) and Dambar Singh (P.W. 4) correctly identified all the four Appellants and the Head Constable Udal Singh identified Mumtaj, Wasif and Atiq, but committed one mistake and constable Ajay Kumar Mishra correctly identified Mumtaj and Atiq, but committed two mistakes.

The bullet recovered from the ashes of the deceased C. P. Pathak was examined by Fire Arms Expert of Forensic Science Lab, Lucknow Dr. N. K. Tiwari P.W. 12 and as per his report Ex. Ka-13 bullet was probably fired from a factory made Fire-Arm of 7.63 m.m. Calibre.

Learned Sessions Judge framed charges under Sections 148, 153A, 302/149, 307/149, 395, 397 and 436, I.P.C. and u/s 7 of Cr. Law Amendment Act against the Appellants who denied the charge and claimed to be tried.

The Appellants in their statement u/s 313, Cr. P.C., denied the prosecution story and stated that they had been falsely implicated by the Police. The Appellant Wasif Haider in his statement has further stated that before test identification parade, he was shown to the witnesses and his photographs and video tapes were prepared. He was not arrested on 3.8.2001, but was picked up by the Police from his house in the night on 31.7.2001 and till 4.8.2001, he was kept at various Police Stations and was not kept baparda and that he was shown to witnesses. Wasif Haider has further stated that his uncle Saiyad Anwar Ali was a Police informer and had property dispute with his family and at the instance of Saiyad Anwar Ali, Police has falsely implicated him in this case. Information regarding Wasif''s arrest in the night of 31.7.2008 was sent by his family members to the Police authorities through telegram and an application was also moved before the C.M.M., Kanpur in this regard. In the newspaper of 1.8.2001, the news item of his arrest was also published which falsified his arrest on 3.8.2001.

Appellant Hazi Atiq Ahmad in his statement u/s 313, Cr. P.C., has stated that at the time of his arrest, the Police Officers also took his passport into possession and his photographs were taken and he was shown to witnesses at the Police Station. It was further alleged that he had protruded teeth and he was identified by the witnesses with the help of his photograph and teeth and he was never kept baparda by the Police. He has further alleged that the Police could not trace out the real culprits and solve the high profile case, he was falsely implicated by the Police and that he was never involved in rioting, arson or murder.

The Appellant Safat Rasool has given out the defence version stating in his statement u/s 313, Cr. P.C. that he runs a sweets shop and at the time of incident, he was at his shop and he was never kept baparda by the Police. The witnesses knew him from before the incident and he was shown to the witnesses at the Police Station and that his photographs were also taken by the Police. It was further stated by him that he was suffering from Polio since childhood and could not run or walk without difficulty. The Police men used to visit his shop often and took sweets without payment and when he objected, he was falsely implicated.

The Appellant Mumtaj alias Maulana stated in his statement u/s 313, Cr. P.C. that he had no knowledge about the incident. In October, 1999 in Haleem College grounds, he had done painting work on payment for a S.I.M.I. conference, since then the Police administration and S.T.F. used to treat him as an active member of S.I.M.I. and used to harass him. He was not arrested at Kanpur as the Police apprehended that due to his arrest at Kanpur, the public opinion would go against it and therefore, in collusion with the Delhi Special Police, he was arrested at Delhi in a false case and he was brought to Kanpur at Police Station Cantt. without being kept baparda. At Police Station Cantt., he was shown to witnesses, his photograph was taken and a video film was prepared and he was falsely implicated.

The Appellants examined 7 witnesses in defence evidence. D.W. 1 Sri Ishtiyaq Rasool, elder brother of Appellant Safat Rasool stated that in the night of 17.9.2001, the Police raided his house and apprehended Safat Rasool, but did not disclose any reason for arrest. The witness sent telegram on 18.9.2001 at 1.30 a.m. to the Chief Minister and at 1.40 a.m. to the District Magistrate and S.S.P., Kanpur. Ext. Kha-1 is the true copy of the telegram sent to the Chief Minister and Ext. Kha-2 is the certified copy of the telegram sent to the District Magistrate and S.S.P., Kanpur. D.W. 1 further stated that he went to the Police Station on 18.9.2001, but could not know the whereabouts of his brother, therefore, he again sent telegram to S.S.P., Kanpur on 18.9.2001 at 21.40 hours, certified copy of which is Ext. Ka-3. He further stated that Safat Rasool is suffering from Polio since childhood. The certified copy issued by the Chief Medical Officer is Ext. Kha-4.

P.W. 2 Mohammad Farrukh is the father-in-law of Appellant Hazi Atiq. It was stated by Mohammad Farruk that Hazi Atiq was arrested from his house on 17.9.2001 by Police party of various Police Stations who also took away his passport and Air ticket. At the time of arrest, he was called by the daughter of Atiq. He reached the house of Hazi Atiq and Police party wanted to interrogate Atiq about his visit to Pakistan. He sent letters to Chief Minister, S.S.P., Kanpur and D.I.G., Kanpur on 17.9.2001 under Postal certificates.

D.W. 3 Mohammad Samim Siddiqui was posted as records keeper in the Police Office, Kanpur. He brought in Court the G.D. of 3.8.2001 of Police Station Cantt. Kanpur. He deposed that at serial No. 2 of the G.D. at 0.10 a.m., accused Mumtaj alias Maulana was brought to the lock-up to the Police Station by S.I. Harjindar Singh and Govind Sharma. The certified copy of G.D. material Ext. 2 was filed. He also filed true copies of G.D. No. 32 of 11 a.m. and G.D. No. 59 of 20.30 hours of 3.8.2001 of P.S. Cantt., Kanpur which are material Exts. 3 and 4.

D.W. 4 Sunil Awasthi and D.W. 5 Ramesh Verma, employees with the newspaper Dainik Jagran were examined to prove news report dated 1.8.2001 and 7.8.2001, but they did not have any personal knowledge about the facts mentioned therein. Similarly, D.W. 6 Sri K. K. Kulshrestha, Dy. Editor, Amar Ujala, Kanpur was examined to prove news item dated 1.8.2001, but he also did not have any personal knowledge about the news item.

D.W. 7 Ashok Kumar Awasthi is a postal employee posted at Kanpur, he was examined to prove copies of telegrams material Ext. 8, 9 sent by Haidar Jafri.

Prosecution examined 15 witnesses in this case. The complainant R. D. Dwivedi (P.W. 2), S.H.O. Cantt. Sri Sukh Sagar Shukla (P.W. 3), Head Constable Dambar Singh (P.W. 4), S.I. Maiku Lal (P.W. 5), S.H.O. Collectorganj Shyama Kant Tripathi (P.W. 6) were examined as witnesses of fact who had identified the accused in jail and also in Court, P.W. 1 H. C. Ram Awtar was examined to prove check report Ext. Ka-1 and G.D. entry of registration of the case (copy Ext. Ka-2). P.W. 7 Vindhyawasini Saran was examined to prove memo of test identification parade Ext. Ka-3. P.W. 9 Satish Chandra Shukla, Tehsildar Sadar had conducted the inquest proceedings and P.W. 8 Constable Bhaiya Lal had taken dead body of Sri C. P. Pathak to the Mortuary for post-mortem examination. Dr. U. K. Srivastava who had performed the autopsy on the dead-body of the deceased C. P. Pathak was examined as P.W. 10. A.D.M. City Sri O. N. Singh another eye-witness was examined as P.W. 14, but he has not identified any of the Appellants either at jail or in Court. P.W. 11 Inspector T. V. Singh and P.W. 15 Inspector Sri B. S. Tyagi are Investigating Officers, P.W. 13 Inspector M. P. Salonia was examined to prove the arrest of Appellant Wasif.

Relying upon the prosecution version and the evidence adduced on behalf of prosecution and rejecting the defence story, the learned trial Judge convicted and sentenced the Appellants as aforesaid. Against the judgment of conviction passed by the trial Judge, the above Criminal Appeal Nos. 1419/2004, 1430/2004, 1518/ 2004 and 898/2004 were filed by the Appellants.

The facts regarding Government Appeal No. 5270/2005 are also required to be given in brief. On the basis of information received from co-accused Mumtaj alias Maulana, P.W. 13 M. P. Salonia assembled a raiding party consisting of Police personnels of various Police Stations and raided the house of accused Mohammad Wasif on 3.8.2001 at about 4 p.m. and arrested Mohammad Wasif from his house and one Pistol of 30 bore alongwith 3 Magazines and 24 live cartridges, one .380 bore Pistol colt with one Magazine and 6 live cartridges, 200 gm. R.D.X., 2 K.G. Potassium Chlorate, Detonator, Rocket Launcher, one Grenade nob, Hand Grenade Lever, A.B.C. timer, Power circuit etc., were recovered from his possession, on the basis of which, Crime No. 72/2001 under Sections 25 and 27 of Arms Act and Crime No. 73/2001 under Sections 4/5 of Explosive Substances Act were registered against him at Police Station, Chamanganj at 6.50 p.m. The case was investigated by Inspector Dharampal Singh who submitted two charge-sheets against Wasif, charge-sheet under Sections 25 and 27 of Arms Act resulted being S.T. No. 143/2002 and the charge-sheet u/s 4/5 of Explosive Substances Act resulted in S.T. No. 178/2002. Both the sessions trial were consolidated and decided by Additional Sessions Judge, Court No. 7, Kanpur Nagar. The accused Wasif claimed .380 bore Colt Pistol to be his licensed Pistol, the licence of which was found in his pocket when he was lodged at the Police Station, which according to the prosecution was forged. The Appellant Wasif denied the charges u/s 25/27 of Arms Act and u/s 4/5 of Explosive Substances Act and claimed to be tried.

In the case against Wasif, the prosecution examined 7 witnesses namely P.W. 1 Inspector M. P. Salonia, P.W. 2 S.I. R. P. Singh, P.W. 3 Head Constable Amar Singh, P.W. 4 S.I. D. K. Sharma, P.W. 5 Constable Arun Kumar, P.W. 6 Inspector Dharampal Singh and P.W. 7 Company Commander Arshad Jamal Siddiqui. Out of 7 witnesses, P. Ws. 1, 2 and 4 are witnesses of fact and recovery, P. Ws. 3 and 5 are formal witnesses, P.W. 6 is the Investigating Officer and P.W. 7 is the person by whom explosives were destroyed and only a portion was retained as sample.

The statement of accused Wasif was recorded u/s 313, Cr. P.C. in which he denied the factum of recovery of contraband articles from his possession. It was claimed by him that he was not arrested on 3.8.2001, but was arrested from his house in the night in between 30/31.7.2001 at about 1.30-2.00 a.m. and a false arrest and recovery was shown on 3.8.2001. One Ashok Kumar Awasthi was examined as defence witness to prove a telegram dated 31.7.2001 sent by Haider Zafri Saiyed.

Learned Additional Sessions Judge disbelieved the prosecution story and acquitted Wasif under Sections 25 and 27 of Arms Act and u/s 4/5 of Explosive Substances Act. The judgment of acquittal has been challenged by the State of U. P., in Government Appeal No. 5270/2005.

We have heard Sri V. M. Zaidi learned Counsel for the Appellant Wasif Haidar, Sri P. N. Mishra learned senior counsel assisted by Sri Apul Mishra on behalf of Appellant Hazi Atiq Ahmad, Sri K. K. Arora learned Counsel for the Appellant Safat Rasool and Sri Shankar Suan advocate appearing on behalf of Appellant Mumtaj alias Maulana and Sri A. K. Dwivedi learned A.G.A. for the State and perused the records.

The submissions made on behalf of the Appellants are manifold. The Appellants are not named in the F.I.R. and the prosecution case is based on identification evidence. It was submitted that at the time of incident, firing was resorted to by the rioters towards the Police party and bombs were being hurled and, therefore, the Police personnel'' were at a great distance from the Mosque and that the witnesses were not in a position to identify the members of the rioting crowd or unlawful assembly. It was further submitted that test identification parade was held after long delay of more than six months from the date of incident and after such a long delay, the memory of the witnesses would have faded in the normal course of human nature and all the five eye-witnesses examined by the prosecution during the trial correctly identified all the four accused without committing any mistake and therefore, the evidence of identification is too good to be believed and is, therefore, highly suspicious. It was further submitted that the prosecution has not furnished any explanation for delay in holding test identification parade. It was contended that Appellant Mumtaj alias Maulana and Wasif came to the custody of the Kanpur Police on 3.8.2001 while the test identification parade was held on 27.9.2001. It was further submitted that involvement of Appellants Hazi Atiq and Safat Rasool came to light on 3.8.2001 itself on the basis of confessional statement of Mumtaj alias Maulana, but no effort was made to arrest them and their arrest was deliberately delayed by the Police to enable the witnesses to visit their homes and places of work to mark them so that their subsequent identification in jail may be successfully conducted and for this purpose, no coercive steps were taken to apprehend them and Safat Rasool was arrested as late as on 17.9.2001 and Hazi Atiq was arrested on 18.9.2001. It was next contended that none of the accused were made baparda by the Police and no link evidence has been produced by the prosecution to show that the Appellants were kept baparda since their arrest or were sent to jail baparda and that on each date of remand, they were brought baparda to Court for the purposes of remand etc., and were again sent back to jail baparda. It was submitted that without such link evidence, identification in jail or in Court cannot be relied upon as there was ample opportunity for witnesses to see the faces of the Appellants. It was submitted that in the F.I.R. no hulia of the Appellants was given and in the absence of any hulia or specific mark of identification the identification evidence is not worth reliance.

It was next contended on behalf of the Appellant Mumtaj alias Maulana that he was arrested by Police of P. S. Kamla Nagar, New Delhi and a false case relating to recovery of certain explosives and he was not made baparda by Delhi Police and on 3.8.2001, Mumtaj was brought to Kanpur at P. S. Cantt. and thereafter taken to P. S. Bajaria and was interrogated by various Police Officers and he was not made baparda at all.

Similarly learned Counsel for the Appellant Wasif Haider has also contended that Wasif was not made baparda at the time of his arrest and was arrested on 31.7.2001 and was kept in Police custody for about 3 days to enable the witnesses to identify him at the Police Station and his false arrest and recovery was shown on 3.8.2001.

It was submitted by the learned Counsel for the Appellant Hazi Atiq that Atiq has protruded teeth and this specific feature of his face was not mentioned by the complainant in the F.I.R. or by the witnesses in their statements recorded u/s 161, Cr. P.C.

It was submitted by the learned Counsel for the Appellant Safat Rasool that he is suffering from Polio since birth and cannot walk without difficulty and runs a sweet shop at Kanpur. He was not arrested promptly and there was every opportunity for the witnesses to visit his shop or house to see him as he was not deliberately arrested promptly.

Per contra the contention of learned A.G.A. is that the Appellants had been correctly identified by P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 6 without committing any mistake and there was no reason to disbelieve or doubt the test identification parade held on 27.9.2001 or the identification of the Appellants in Court. It was contended that all necessary precautions were taken by the police and the Appellants were made baparda at the time of their arrest and were kept so while in Police custody and even after their remand till test identification parade was held and this evidence should not be disbelieved. It was further submitted that there was sufficient convincing evidence on record to prove involvement of the Appellants Wasif Haider, Hazi Atiq, Mumtaj alias Maulana and Safat Rasool in the murder of A.D.M. (F. & R.) Sri C. P. Pathak. The Appellants were the members of the unlawful assembly who were firing from the side of Noorani Mosque and that learned Sessions Judge rightly believed the prosecution story and had rightly convicted the Appellants.

Date, time and place of incident is not disputed by the Appellants. It is also not in dispute that on 16.3.2001, there was an incident of burning of pages of Quran at Delhi resulting in wide spread protests and rioting at Kanpur. People came out on road in large numbers at various parts of Kanpur City including the area of Nai Sarak where incident took place in front of Noorani Mosque. In the F.I.R., this Mosque has been described as Sunehri Mosque, but P.W. 2 Rajendra Dhar Dwivedi has clarified in his cross-examination that incident took place in front of Noorani Mosque and at the time of lodging of the F.I.R., he thought Noorani Mosque to be Sunehri Mosque, but after 2-4 days, his confusion was removed.

It is also not in dispute that a crowd of 200-300 rioters was assembled on and around the Noorani Mosque and when the A.D.M. (F. & R,) Sri C. P. Pathak reached there leading the patrolling party, he was fired at by someone from amongst the crowd and Sri C. P. Pathak alongwith his orderly Ram Chandra received injuries and fell down. They were taken to the hospital where Sri C. P. Pathak was declared dead. It is also not in dispute that Sri Pathak died of gun-shot injury.

We have considered the submissions made by the learned Counsel for the Appellants and learned A.G.A., in the light of evidence available on record. First we have to see as to whether the witnesses were in a position to see the Appellants carefully at the time of incident so that an impression of their faces could be imprinted on their minds. Admittedly the witnesses did not know the Appellants from before. It was admitted by the P.W. 2 Rajendra Dhar Dwivedi in his cross-examination that when they reached the spot, the riot was in full swing. Sound of bombs and firing was coming. Police personnels were on foot with Jeep''s following them. P.W. 2 has admitted that the place, where Sri C. P. Pathak was hit, was at a distance of about 27-28 paces from the Mosque. 200-300 persons were present in the crowd. He was at a distance of 100-150 paces from the rioters. Bombs were hurled towards the Police force. Hundreds of rioters were present on the roof, stairs, chabutras and nearby lanes.

P.W. 2 has specifically stated that firing was done from the roof of the Mosque which hit Sri C. P. Pathak and Ram Chandra while on the other hand, P.W. 3 Sri S. S. Shukla stated that the Appellants were present on road, outside the wall of the Mosque and he had seen them towards the road. Thus, the statements of these two witnesses in respect of the point from where firing was done on Sri C. P. Pathak are contradictory. Similarly as per P.W. 4 Dambar Singh, firing was done from road level while according to P.W. 5 Maiku Lal Rawat, firing was done from the first floor. P.W. 5 even went to the extent of saying that A.D.M. was killed by accused Mumtaj alias Maulana and Safat Rasool. Again P.W. 6 Shyama Kant Tripathi deposed that some persons fired on A.D.M. from below. P.W. 6 has further stated that when he reached the parade crossing, the riot was in full swing, bomb blasts, firing and slogan shouting was being done by the rioters.

From the statements of all the 5 eye-witnesses, it is evident that when they reached the place of incident, the rioting was at it''s peak, bombs were hurled towards the Police party and there was continuous firing, but surprisingly after the A.D.M. (F. & R.) Sri C. P. Pathak and Ram Chandra got injured, no Police personnels received any kind of injury. Not receiving any injury from firing and bomb blasts would go to show that the Police personnels were not very near the Mosque, but were at a distance. P.W. 2 Rajendradhar Dwivedi was candid enough to admit that he was at a distance of 100-150 paces behind. In such extreme circumstances, the focus of the police personnel was to control the mob by counter firing which they did. It is the prosecution case that as soon as the A.D.M. fell down, each member of the Police party fired two rounds and immediately thereafter the entire crowd of rioters disappeared and fled away. P.W. 2 R. D. Dwivedi had admitted in his examination-in-chief itself that as soon as the firing by the rioters was stopped, they reached the Mosque but did not find any rioters. All these facts would go to show that at the time of incident, the Police personnels were at great distance from the Mosque which according to D.W. 2 was 100-150 paces. Only the A.D.M. (F. & R.) Sri C. P. Pathak was in front but he too was at a distance of 27-28 paces, i.e., more than 50 feet from the Mosque. In these circumstances, it is hard to believe that the witnesses could recognise the faces of the Appellants who were not known to them from before. We cannot lose sight of the fact that the incident took place at about 6.30 p.m. in the evening when the light must also have lessened. Taking the total scenario prevailing at the time of incident into consideration, we are in agreement with the submission made by the learned Counsel for the Appellants that the witnesses were at such a distance from the Mosque that they were not in a position to identify the members of the rioting crowd. Had they actually recognised the 4 Appellants in the crowd, they could have easily find out that Hazi Atiq had big and protruding teeth and Safat Rasool was suffering from Polio. Such a distinctive marks could not have been missed by the witnesses had they been in a position to see the Appellants from close quarters. Surprisingly neither any hulia of the assailants was given in the F.I.R. nor the witnesses disclosed any hulia to the Investigating Officer in their statement recorded u/s 161, Cr. P.C. Non-mentioning of the hulia or distinguishing marks of identification of the accused in the F.I.R. makes the subsequent identification doubtful.

We also agree with the submissions made by learned Counsel for the Appellants that there was inordinate delay in holding the test identification parade in jail and that no explanation for such delay has been furnished by the prosecution. The incident took place on 16.3.2001 and as per prosecution''s own case, accused Mumtaj alias Maulana was brought to Kanpur from Delhi on 3.8.2001 and on the same day, Appellant Wasif was arrested, but the test identification parade was held on 27.9.2001 after a delay of 55 days. Order sheet prepared by the Magistrate who conducted test identification parade is on the lower court''s record which shows that request by Investigating Officer for identification was received by the Magistrate on 10.8.2001 and 25.8.2001, 7.9.2001 and 25.9.2001 were fixed for identification parade, but on each of the aforesaid dates, the prosecution witnesses did not turn up and ultimately 27.9.2001 was fixed, on which date, the test identification parade was conducted. No explanation for absence of witnesses on the earlier dates fixed by the Magistrate for holding test identification parade has been furnished by the prosecution specifically when all the Police witnesses were posted in various Police Stations of district Kanpur.

In Rajnath Singh v. State of U. P. 1998 ACR 97, a general description of the Dacoits was given in the F.I.R. and the special features of each of the Appellants as mentioned by the Magistrate conducting identification parade were not stated in the F.I.R. or to the Investigating Officer and the identification took place after two months. The performance of witnesses in the identification parade was found to be doubtful.

In Rameshwar Singh v. State of J. & K. 1971 CAR 416, Hon''ble Supreme Court has held that identification of the accused by the witnesses soon after the former''s arrest is of vital importance because it furnishes to the investigating agency the assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witnesses later in Court at the trial.

The unexplained delay of 55 days in holding test identification parade of accused Mumtaj alias Maulana and Wasif gives rise to the suspicion that the witnesses did not attend the test identification parade earlier deliberately as by that time, they were not confident of recognising them.

As regards Hazi Atiq and Safat Rasool, admittedly their involvement in the case came to light on 3.8.2001 itself from the confessional statement of Mumtaj alias Maulana. Surprisingly, no steps to arrest Hazi Atiq and Mumtaj alias Maulana were taken by the Investigating Officer for more than 6 weeks. No coercive steps to ensure their interrogation were taken. Hazi Atiq was arrested on 17.9.2001 and Safat Rasool was arrested on 18.9.2001. On 13.8.2001, investigation was handed over to B. S. Tyagi, Inspector Kotwali Kanpur Nagar (P./W. 15). It was contended by learned Counsel for the Appellants for Hazi Atiq and Safat Rasool that despite the names of Hazi Atiq and Safat Rasool coming to light on 3.8.2001, deliberately no attempt was made to apprehend them and to put them up for test identification soon. It was contended that their arrest was deliberately delayed by the Police for more than 6 weeks so that the witnesses may visit their houses or places of work to have a glimpse of their faces so that the witnesses may subsequently identify them during the test identification parade. Reliance has been placed on the case of Nathwa and Others Vs. State, , in which it was held by this Court:

It was on 20.1.1949, that Ali Husain''s confession was recorded and thereafter on 22.12.1949, the Circle Inspector directed that Kirpal should be arrested. No explanation at all is forthcoming why Kirpal was left at liberty for about two months or so between 26.11.1948 and 22.1.1949. It papers to me that there is considerable force in the suggestion made on behalf of the Appellant that the Circle Inspector deliberately left Kirpal at liberty allowing him to live peacefully in his village with the object that this interval of about two months might be utilised by his prosecution witnesses to see him in his village and mark him carefully so as to be able to recognise him at the time of the identification proceedings subsequently. Even if this inference does not necessarily follow, this circumstance creates a considerable doubt in my mind about the genuineness of the identification.

The above view was followed by this Court in the case of Rajnath Singh (supra).

In the instant case also, no explanation at all is forthcoming as to why Hazi Atiq and Safat Rasool were left at liberty for about 6 weeks. We find considerable force in the suggestion made on behalf of these two Appellants that the Investigating Officer deliberately did not arrest them earlier with the object that this interval of about 6 weeks might be utilised by his prosecution witnesses to see them at their homes or places or work to mark them carefully so as to recognise them at the time of identification parade subsequently. Thus, this circumstances creates a considerable doubt in our mind about the genuineness of the identification regarding these two Appellant and we are of the view that deliberate delay of about 6 weeks in the arrest of Hazi Atiq and Safat Rasool has caused prejudice to them resulting in grave and substantial injustice.

The next submission made by the learned Counsel for the Appellants that performance of the witnesses in the test identification parade is too good to be believed and is suspicious is also well merited. Out of seven eye-witnesses who participated in the test identification parade, 5 to wit, P.W. 2 to P.W. 6, had correctly identified all the four Appellants without committing any mistake and even the performance of other two witnesses was good. Udal Singh identified Mumtaj alias Maulana, Wasif Haider, Hazi Atiq, but committed only one mistake and Ajay Kumar Misra correctly identified Mumtaj alias Maulana and Hazi Atiq, but committed two mistakes. At the time of incident, bombs were hurled and firing was resorted to by a crowd of 200-300 rioters, witnesses were at a considerable distance from the Mosque and were hardly in a position to mark the faces in the incident. Even then, 5 star witnesses of the prosecution P.W. 2 to P.W. 6 gave 100% performance and identified all the four accused correctly. In these circumstances, their performance is too good to be believed and is suspicious as held by this Court in Sheo Nath Bhar v. State 1990 ACR 553 and Chunnoo and Others Vs. State,

As far as link evidence is concerned, it is totally missing. The Appellant Mumtaj alias Maulana was arrested on 2.3.2001 at Delhi by Police of P. S. Kamla Nagar. On 3.8.2001, the Delhi Police brought Mumtaj to Kanpur at P. S. Cantt. It is evident from the statement of P.W. 13 M. P. Salonia that from Police Station Cantt., Mumtaj was taken to Police Station Bajaria. There is no evidence on record to show that at Delhi Mumtaj was made baparda. The members of the Police force who arrested Mumtaj at Delhi or the members of the Police party who brought Mumtaj alias Maulana from Delhi to Kanpur have not been examined to show that he was made baparda or not. P.W. 13 Inspector of P. S. Babu Purwa Sri M. P. Salonia has stated that Mumtaj was made baparda at P. S. Bajaria, but there is no documentary evidence on record to show that Mumtaj alias Maulana was ever made baparda. No G.D. of P. S. Cantt. or P. S. Bajaria has been filed and proved to show that Mumtaj alias Maulana was kept baparda at the P. S. Cantt. or Bajaria. On the same day, i.e., on 3.8.2001, Appellants Wasif Haider was arrested by P.W. 13 M. P. Salonia and certain explosives and fire-arms are said to have been recovered from the house of Wasif. it was deposed by P.W. 13 that Wasif was also made baparda and was detained at the hawalat of P. S. Chamanganj baparda, but the arrest cum recovery memo Ext. Ka-14 does not reveal that Wasif was made baparda. Even the G.D. of P. S. Chamanganj pertaining to Crime No. 72/2001 and 73/2001 does not show that Wasif Haider was made baparda. The Police personnels who took Appellant Mumtaj alias Maulana from the P.S. to Court for remand and later took him to jail have not been examined. Mumtaj was sent back to Delhi and later on, he was brought to Kanpur for test identification parade on 27.9.2001. There is no evidence on record to show that from 3.8.2001 to 27.8.2001 Mumtaj alias Maulana remained baparda while in custody. Similarly link evidence regarding accused Wasif Haider is also completely missing. From 3.8.2001 to 27.8.2001 Wasif must have been brought from jail to the Court of the Magistrate for periodical remand, but none of the Police personnels who brought him from jail and took him back to jail have been examined.

At the time of arrest two pistols, one of .30 bore and one of .38 bore are said to have been recovered from the possession of Wasif Haider. After arrest he was taken to Police Station Chamnganj and an allegedly forged arms licence was recovered from his pocket. This licence was never sealed by P.W. 13 or the Investigating Officer. Licence must have contained photograph of Wasif Haider and thus prosecution witnesses had sufficient opportunity to see his photograph on the basis of arms licence which the prosecution claimed to be forged.

The Appellant Hazi Atiq was arrested on 17.9.2001 and Safat Rasool was arrested on 18.9.2001 by P.W. 15 B. S. Tyagi the Investigating Officer who stated that both of these accused were made baparda by him, but again there is no documentary evidence to support this claim. No arrest memo was prepared by P.W. 15 regarding arrest of Hazi Atiq and Safat Rasool nor any memorandum was prepared to show that they were made baparda, even the Police constable who took Hazi Atiq and Safat Rasool to Court for remand and from the Court to jail had not been examined to show that these accused were kept baparda and nobody was allowed to see their faces, but such link evidence is completely missing. This Court in Sheo Nath Bhar''s case (supra) held:

It is still more unfortunate that the learned Additional Sessions Judge did not pay attention to the fact that prosecution did not adduce entire link evidence with regard to safe custody of the Appellants soon after arrest till their entry in jail. Prosecution could examine only the Investigating Officer as the arresting officer and he alone provided the link evidence. It is evident that the explanation afforded by the prosecution was that the relevant general diaries were weeded out due to lapse of time and so complete link evidence could not be adduced. When the case was pending the relevant general diaries could have been preserved under special order of the Superintendent of Police at any rate, the explanation offered by the prosecution cannot discharge the burden of the prosecution to adduce formal and link evidence about the safe custody and baparda custody of the accused. This was additional reason why the identification should not have been made basis of conviction.

Complete absence of link evidence compels us not to accept the authenticity of the identification evidence. If the Appellants were not kept baparda, the evidence of previous test identification parade and subsequent identification of Appellants in Court loses it''s importance and credibility. Learned Sessions Judge has completely ignored these aspects of the case.

After carefully analysing the evidence on record in light of the submissions made by learned Counsel for the Appellants and learned A.G.A., we have come to the conclusion that at the time of incident, the witnesses were at such a distance from the Mosque that they could hardly recognise the faces of the Appellants, no hulia or distinguishing marks of identification of the Appellants was mentioned in the F.I.R. There was inordinate delay in holding identification parade in respect of Appellants Mumtaj alias Maulana and Wasif Haider, the arrest of Hazi Atiq and Safat Rasool was unduly delayed probably to give an opportunity to the witnesses to have a glimpse at their faces, the performance of witnesses at the test identification parade was too good to be believed and was highly suspicious and complete absence of link evidence to show that the Appellants were made baparda since the time of arrest till test identification parade, completely demolishes the prosecution case. Unfortunately a Senior Administrative Officer Sri C. P. Pathak lost his life in this incident, but we are also conscious of the fact that the evidence against the Appellants is not of the quality and the standard required to prove the Appellants guilty. We have already pointed out that the identification of the Appellants in jail was highly suspicious and therefore, no credibility can be attached to the identification of Appellants by the witnesses in Court. The result is that the Appellants are entitled to the benefit of doubt and are entitled to be acquitted and Criminal Appeal Nos. 1419/2004, 1430/2004, 1518/2004 and 898/2004 deserve to be allowed.

Now, we come to Government appeal filed by the State against the acquittal of Appellant Wasif Haider in the cases u/s 25/27 of Arms Act and 4/5 of Explosive Substances Act. It is submitted by learned A.G.A., that the trial Judge has acquitted Wasif Haider on technical ground and on the basis of minor contradictions in the statements of witnesses of recovery and Wasif Haider should not have been acquitted on the basis of minor contradictions when large quantity of explosive material and fire-arms were recovered from his possession.

Per contra, learned Counsel for the Respondent in this appeal submitted that not only there are material contradictions in the statements of witnesses of recovery on very material points, but there is complete absence of independent corroboration of the testimony of Police witnesses.

We are aware of the fact that Wasif Haider was acquitted by the trial court in the cases relating to recovery of explosives and fire-arms and the judgment of acquittal cannot be interfered with by this Court unless the judgment of the trial court is perverse or based on misreading of evidence.

We have gone through the judgment dated 3.8.2005, passed by Additional Sessions Judge, Court No. 7, Kanpur Nagar in S.T. Nos. 143 and 144 of 2002. We have also gone through the evidence adduced by the prosecution. The prosecution case rests on the testimony of Inspector Sri M. P. Salonia (P.W. 1), S.I. R. P. Singh (P.W. 2), S.S.I. Sri D. K. Sharma (P.W. 4). The statement of P.W. 1 shown that personal search of accused Wasif Haider was not taken on the spot, it was alleged that besides other articles, one .380 bore Colt pistol was recovered from his possession which he claimed to be his licensed pistol for which he could not show any licence, but surprisingly when Wasif Haider was taken to Police Station Chamanganj, an arms licence was recovered from his pocket by the head constable, on the basis of which, a case of forgery was also registered. No reason has been shown as to why personal search of Wasif Haider was not taken on spot. Moreover as per the statement of P.W. 1, all the explosives and fire-arms and cartridges were recovered from the corner in the room, but as per the statement of P.W. 2 given in cross-examination, pistol and cartridges were kept in Almirah and remaining articles were lying on the floor. Thus, there are major contradictions in the testimony of witnesses regarding the place from where fire-arms and ammunition were recovered. According to P.W. 2 personal search of Wasif Haider was taken on spot and nothing was recovered, this statement of P.W. 2 is in direct contradiction to the statement of P.W. 1 that personal search of Wasif Haider was not taken on the spot. P.W. 4 S.S.I. D. K. Sharma stated in the cross-examination that all the Police personnels were not made to sign the recovery memo, which is very strange.

Besides the various contra-dictions in the testimony of P.W. 1, P.W. 2 and P.W. 4 on the point of recovery and personal search, there is total lack of independent corroboration. No effort appears to have been made to take independent public witnesses with them while going towards the house of Wasif Haider. An attempt was made by the witnesses to explain that public witnesses were not ready. Even if this statement is to be believed, in the absence of independent corroboration, the testimony of Police witnesses is to be scrutinised very carefully. As per prosecution case, one .380 pistol Colt was recovered from the possession of Wasif Haider, but according to P.W. 2 S.I. Sri R. P. Singh, one .32 bore pistol Colt was recovered which clearly shows that P.W. 2 R. P. Singh was not present at the time of arrest and recovery. Even otherwise, there is one more circumstance which compels us not to interfere with the judgment of acquittal. Ext. Ka-4 and Ext. Ka-7 are the sanctions for the prosecution accorded by Mukul Singhal, the then District Magistrate, Kanpur Nagar. A perusal of sanction order Ext. Ka-4 whereby sanction was granted to prosecute Wasif Haider for offence punishable u/s 25/27 of Arms Act reveals that in the sanction order, two .38 pistols are alleged to have been recovered from the possession of Wasif Haider while according to prosecution, one .30 bore star pistol and one .38 bore Colt pistol were recovered from the possession of Wasif Haider. In the sanction order both the pistols are stated to be of .38 bore which shows the S.D.M. had not applied his mind properly to the relevant papers and had not personally inspected the fire-arm which were allegedly recovered from the possession of Wasif Haider. Moreover, sanction order Ext. Ka-4 and Ka-7 have not been proved for the prosecution according to law. Sanction orders were allegedly proved by P.W. 6. Inspector Dharam Pal Singh, the Investigating Officer who has deposed that he had given papers for sanction to the District Magistrate and after about a week, sanction orders were received. He has further stated that sanction orders bear the signature of Sri Mukul Singhal. It is nowhere stated by Dharam Pal Singh that he had ever seen Mukul Singhal signing or that he recognised the signature of Mukul Singhal. Thus, the signature of the District Magistrate cannot be said to be proved. Mukul Singhal has not been examined by the prosecution in evidence, thus the sanction Ext. Ka-4 and Ext. Ka-7 have not been duly proved. In the absence of valid sanction, the prosecution u/s 25/27 of Arms Act and Section 4/5 of Explosives Substances Act to not survive and on this ground also, we do not propose to interfere in the judgment of acquittal passed by learned Sessions Judge. Thus, the Government appeal is liable to be dismissed.

For the reasons afore-mentioned, we set aside the judgment and order dated 22.1.2004, passed by the Additional Sessions Judge, Court No. 1, Kanpur Nagar in S.T. No. 164 of 2002 and acquit the Appellants Wasif Haider, Hazi Atiq, Mumtaj alias Maulana and Safat Rasool of the charge under Sections 148, 302/149 and 307/149, I.P.C. and Section 7 of Criminal Law Amendment Act. The Appellants are languishing in jail for the last more than 8 years. They be released from the jail forthwith unless wanted in connection with any other case. Their appeals are accordingly allowed.

Government Appeal No. 5270 of 2005 is dismissed.

Let the copy of this judgment be certified to the courts below for compliance. The compliance report be submitted to this Court within four weeks.