Ayub vs State Of U.P.
2012 Latest Caselaw 3771 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(Reserved)
 

 
Case :- CRIMINAL APPEAL No. - 599 of 2008
 
Petitioner :- Ayub
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- S.P. Tiwari
 
Respondent Counsel :- Govt. Advocate
 

 
            CONNECTED WITH
 

 
Case :- CRIMINAL APPEAL No. - 619 of 2008
 
Petitioner :- Mukhtar
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- S.P. Tiwari
 
Respondent Counsel :- Govt. Advocate
 

 
        AND
 

 
Case :- CRIMINAL APPEAL No. - 824 of 2008
 
Petitioners :- Shaukat Ali & Kallu @ Mansur Ali
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Gyan Singh
 
Respondent Counsel :- Govt.Advocate
 

 
Hon'ble Imtiyaz Murtaza,J.

Hon'ble Ashwani Kumar Singh,J.

(Delivered by Hon'ble Ashwani Kumar Singh,J.)

1. Criminal Appeal No.599 of 2008 has been preferred by Ayub; Criminal Appeal No.619 of 2008 has been preferred by Mukhtar and Crl. Appeal No.824 of 2008 has been preferred jointly by Shaukat Ali and Kallu @ Mansur Ali. Through these connected appeals, the appellants have challenged the judgment and order dated 21.2.2008 passed by Additional Sessions Judge/Special Judge, E.C.Act, Pratapgarh in Sessions Trial no.193/06, whereby all the four appellants have been convicted and sentenced under section 302 read with section 34 I.P.C. to undergo rigorous imprisonment for life and to pay fine of Rs.5000/-each in default to undergo simple imprisonment for six months and under section 307 I.P.C. read with section 34 I.P.C. to undergo seven years' rigorous imprisonment and to pay fine of Rs.2000/- each in default to undergo simple imprisonment for three months.

The sentences of the aforesaid four persons were directed to run concurrently.

2. Since all the above three appeals arise out of common factual matrix and impugned judgment and order, we heard them together and they are being disposed of by this common judgment and order.

3. Shortly stated, the prosecution case runs as under :-

On 8.4.2005, complainant Abdul Lateef was thrashing wheats and thereafter he along with his wife sat at the door; at about 1.00 a.m. in the night, Ayub son of Mojjam Ali, Mukhtar son of Mojjam Ali, Shaukat Ali son of Mojjam Ali and Kallu @ Mansur Ali son of Shaukat Ali, all resident of Village Patulki, police station Jethwara, District Pratapgarh and two unknown whom he could not recognize, in furtherance of common intention, armed with licensed gun and 'Katta' came and fired at complainant and his wife; complainant received injury on his back and his wife received injury on the right side of hip; on hearing the sound of fire, the villagers were attracted.

4. The first information report was lodged on 9.4.2005 vide case crime no.87 of 2005 under sections 147,324,323 I.P.C. at police station Jethwara, district Pratapgarh. The F.I.R. was lodged at 5.45 a.m. The investigation was conducted by Station Officer, police station Jethwara, Shiv Bachan Singh; during investigation, the case was converted under section 308 I.P.C.; injured Raheemul Nisha succumbed to her injuries on 10.4.2005 at Swarup Rani Hospital, Allahabad; inquest was conducted on 11.4.2005 and on the same day the autopsy on the corpse was also conducted at 4.00 p.m.; thereafter again the case was converted under sections 308/302 I.P.C. on 12.4.2005 vide 'Parcha' no.2.

After completion of the investigation, the charge sheet was submitted against the appellants.

5. The case was committed to the Court of Sessions in the usual manner, where the appellants were charged under sections 148, 302 read with 149 and 307 read with 149 I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial. No witness was produced in defence.

During trial, in all, prosecution examined seven witnesses; three of them, namely, Abdul Lateef, Saquib Ali and Abid Ali(P.Ws. 1,2 & 3 respectively) were examined as eye witnesses.

The prosecution declared Saquib Ali (P.W.2) as hostile witnesses. The trial Judge rightly recorded the finding that this witness was not reliable. He, however, believed the testimony of Abdul Lateef(P.W.1) and also of Abid Ali (P.W.3), though this witness was also declared hostile, and on its basis convicted and sentenced the appellants in the manner stated above.

Hence, this appeal.

6. After hearing Sri Nagendra Mohan, learned counsel appearing for the appellants and Sri Jyotinjay Verma, learned Additional Public Prosecutor and going through the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statements of the appellants recorded under section 313 Cr.P.C.; and the impugned judgment, we are implicitly satisfied that this appeal deserves to be allowed inasmuch as the appellants deserve the benefit of doubt.

7. It would become manifest from the above that the learned trial Judge has sustained the conviction of the appellants on the ocular account furnished by Abdul Lateef, P.W.1 - injured witness and Abid Ali, P.W.3 - not named in the first information report. The medical evidence has also been taken into account by the trial Judge. In our judgment, it would not be safe to accept the evidence of the aforesaid witnesses for the reasons stated hereinafter.

8. We would first like to deal with the evidence of Abdul Lateef(P.W.1). His evidence shows :-

On the date of incident, he, after thrashing wheat, was sitting along with his wife on a cot in front at door of his house and at about 1.00 a.m. in the night appellant Mukhtar armed with single barrel gun; appellant Ayub armed with double barrel gun, appellant Shaukat Ali armed with 'Katta' and appellant Kallu @ Mansoor Ali armed with 'Addhi' came there and surrounded them; he and his wife tried to run away; appellant Mukhtar fired the first shot in order to kill him; the second shot, in order to kill his wife, was fired by Ayub. Kallu and Shaukat instigated that none should escape and be done to death; the two unknown stood near appellant Ayub. This witness and his wife got injured; Saquib, Abid Ali and other villagers rushed towards the place with torch; thereafter the appellants fled away. At the place of occurrence there was a lantern; appellants were properly recognised in the torch and lantern light.

9. We have gone through the evidence of Abdul Lateef(P.W.1) and have no reservations in observing that we find it impossible to accept it. It should be borne in mind that Abdul Lateef(P.W.1) has deposed that it was a dark night and there were six accused persons, four were armed and two were unarmed. He could not recognise the unarmed miscreants, neither he was in a position to describe their 'Hulia'; both the miscreants were standing behind appellant Ayub. It is further deposed that a 12-13 year old Neem tree was standing in front of the house of this witness and this witness was sitting on a cot which was about 7-8 paces from the Neem tree on the northern side, the cot of his wife Raheemul Nisha was about two paces away from his cot on the northern side, the heap of wheat was also about 7-8 paces away on the northern side of Raheemul Nisha's cot; the lantern was placed at about 7-8 paces away under 'Chhappar' on the northern side of Raheemul Nisha's cot; under the 'Chhappar' there was boring of tube well and the lantern was hanging on the eastern side of 'Chhappar'. It was further deposed that on the southern side of the cot of this witness, at about 7-8 paces, there was another hut; the accused persons were at about 6-7 paces away scattered on eastern, northern and southern sides, none was on the western side of the cot on which Abdul Lateef(P.W.1) was sitting, the first fire was made from southern side and the second fire from northern side of the heap of wheat. In such a situation, it would be difficult to recognise the assailants as, admittedly, it was a dark pitched night and this witness and his wife Raheemul Nisha(the deceased) received only one injury each, according to the medical examination report. It is common knowledge that persons commit murders and crimes at the dead of night so that they are not noticed by anyone and consequently commit them in the shortest possible time and run away. It is difficult to gulp that the assailants would instigate to reveal their identity, lest they would come quietly and do away with the crime. In our view, this is an improbability, which renders the evidence of this witness, unworthy of acceptance. It should be borne in mind that evidence is always assessed on the touch-stone of probabilities and only if it is in consonance with probabilities, it is accepted by courts.

10. For the aforesaid reasons, we are not inclined to accept the evidence of Abdul Lateef(P.W.1).

11. We may now evaluate the evidence of Abid Ali(P.W.3), who was declared as a hostile witness. He stated that due to fear he was not deposing against the appellants; when cross-examined by Assistant Public Prosecutor, the witness deposed that he had seen the appellants running away; he makes contradictory statements with regard to distance from where he saw the accused persons - at one place, this witness states that he saw Ayub, Mukhtar, Kallu & Shaukat in torch light from about 10-15 paces and when further cross-examined, he states that he saw them running away from a distance of about 20-25 paces, i.e. he almost doubles the distance. This witness was also given assurance by the court for his safety before he being declared hostile. It is hard to believe that this witness was awoke in the mid of night, i.e. at about 1.00 a.m. and that he would be in a position to dash to the place of incident, he being an old person of 72 years of age. If we had to believe this witness, then the four appellants would have waited after firing and then ran away, to get themselves identified. The testimony of this witness also does not stand absolutely untouched by improbabilities. Law is well-settled that the evidence of hostile witness cannot as a matter of law be treated as washed out from the record altogether. The evidence of such a witness has to be considered to the extent whether as a result of such cross-examination and contradiction, the witness stands voluntarily discredited or can still be believed in regard to a part of his testimony. If the part of his testimony is found to be credit worthy, it can be acted upon.

12. The peculiarity in the evidence of the present witness is that he, at the very first instance, categorically deposes that due to fear of accused persons, he does not want to depose against them and then he states that he reached the place of occurrence flashing his torch and saw the accused persons running away. This dual deposition of the witness brings his credibility under dark cloud. There was no need for him to express that he was under pressure of fear from accused side, he could have very well stated that he saw the accused running away and then this evidence could have proved, worth acceptance. The evidence of Abid Ali(P.W.3), in the light of above discussions, is, thus, not acceptable.

13. Next the medical evidence - Dr.B.P.Shukla(P.W.4), who examined the injuries of Smt.Raheemul Nisha(deceased) on 9.4.2005 at 7.10 a.m., found the following injuries :-

(1) Multiple L.W. of the size of 0.3 cm x 0.3 cm x depth(not probed) spread over an area of 27 cm x 17 cm on the lower part of the right side of the abdomen, anterior & lateral aspect of the right buttock & upper part of the right thigh.

Burning and tattooing present. Advised X-ray.

Remark:- Inj. No.1 is (illegible). Injury caused by firearm.

Abdul Lateef(complainant) was also examined on 9.4.2005 at 7.35 a.m. by Dr.B.P.Shukla and following injury was found :-

(1) A L.W. of the size of 0.3 cm x 0.2 cm x depth (not probed) with a reddish contusion of the size of 0.8 cm x 0.6 cm on the midline of the back 7 cm above the inner (illegible).

Burning and tattooing present c/o severe pain. Advised X-ray.

Remark:-Injury No.(1) is kept under observation caused by fire arm.

14. Dr.Ajeet Singh(P.W.6) conducted autopsy and found three following ante-mortem injuries :-

(1) Surgically dressed and stitched wound 2.4 cm long(mid-line) on interior abdominal wall present;

(2) Multiple fire arm wound of entry of approx 0.5 cm x 0.5 cm varying depth present in area of 52 cm x 19 cm antero- lateral aspect of Rt. side of abdomen and Rt. thigh up to knee; margins inverted, no B.T. seen;

(3) Fire arm wound of entry 4 cm x 2.5 cm x Abd. Cavity deep margin inverted, no B.T. Seen on Antr. Abd. Wall 5 cm left to umbilicus of 3 O'clock position.

The cause of death was due to septicemia as a result of ante mortem fire arm injury.

15. There is no dispute that injured Abdul Lateef(complainant) and deceased Smt.Raheemul Nisha received one injury each and the evidence of eye witness P.W.1 that appellant Mukhtar fired the first shot at him and the second fire was made by appellant Ayub, which hit his wife Smt.Raheemul Nisha corroborates but at the same time it strengthens the defence version that none of the witnesses including P.W.1 could recognise the assailants as it was a dark night and further the evidence reveals that the assailants gave no opportunity to injured Abdul Lateef and his wife Smt.Raheemul Nisha(deceased) to make any movement, even to stand up and run away. It would be most natural for the appellants to fire and escape from the place within the shortest period of time so that they are not identified.

16. We have gone through the evidence of Abdul Lateef(P.W.1), Abid Ali(P.W.3) and we do not find it to be acceptable. On a perusal of the first information report, it reveals that none of the eye witnesses produced were named therein. P.W.2 Saquib Ali and P.W.3 Abid Ali both were declared hostile and the court did not find the evidence of P.W. 2 worthy of acceptance.

17. The evidence of Abdul Lateef(P.W.1) is not in consonance with probabilities. Admittedly, it was a dark night, there was a lantern light placed about 7-8 paces on the northern side away from the cot where he and his wife were sitting; fire was also made from the same distance. The case of the prosecution as developed by this witness that six shots had been fired is all bogus and it has been deliberately introduced for the first time to make it convenient for this witness and other witnesses to identify the assailants by getting more time. The injury report indicates that this witness received only one injury and the deceased(Rahimul Nisha) also, when examined as injured, had only one injury on her person. Thus it is more probable that it was a case of single shot and the miscreants fled away and left no time for complainant P.W.1, Abdul Lateeef, whose wife had also got injured, to make any movement, and identify the assailants. The arrival of witnesses at the spot and identifying the assailants is also not acceptable and it seems that the prosecution, later on, produced them with their convenience to support the prosecution case; in the first information report, their names do not find place. The evidence of this witness deposed with regard to placing of lantern also gets contradicted as there is no lantern shown in the site plan under 'Chhappar', which was on the northern side of his wife Raheemul Nisha's cot, while the lantern shown at place 'L' in the site plan, under the hut is on the southern side of the cot of Abdul Lateef (P.W.1). It creates a reasonable doubt on the source of light, if visibility is not present at the right place, certainly, it would be difficult to identify assailants, as admittedly it was dark night. The other source of identification was torch shown in the hands of Abid Ali(P.W.3), whose testimony we have already discarded.

Thus, the whole affair appears to be extremely impossible because, as we have mentioned earlier that accused persons choose dead of night to commit a crime so that no one notices them committing it and therefore commit it in the shortest possible time and run away. Here this witness wants us to believe to the contrary and we are certainly not prepared to believe him.

It should be borne in mind that there was enmity between the complainant and accused persons; three days prior to the present incident, there was some 'maarpit' on a trivial issue and the deceased was beaten by accused persons, the weapon of assault was 'Lathi' and for the same a non-cognizable report was lodged at the police station.

In our judgment, in view of the infirmities and improbabilities mentioned above, it would be wholly unsafe to accept the evidence on record.

18. For the aforesaid reasons, we do not find the evidence of Abdul Lateef(P.W.1) and Abid Ali(P.W.3) trust worthy and acceptable.

19. To us it appears that this is a typical case of hit and run type. In our judgment, at about 1.00 a.m. on the night of 9.4.2005, while the deceased and complainant were sitting on cots, in a twinkling of moment the deceased and complainant Abdul Lateef(P.W.1) were fired upon sustaining one injury each on their person, the real assailant/assailants, as the case may be, ran away after injuring them and the appellants have been falsely implicated by complainant Abdul Lateef on account of enmity.

20. In the result, we allow the above three appeals; set aside the convictions and sentences of appellants Ayub, Mukhtar, Shaukat Ali and Kallu @ Mansur Ali on all the counts; and direct that appellants Ayub and Mukhtar, if not wanted in any other case shall be released from jail forthwith. Appellants Shaukat Ali and Kallu @ Mansur Ali are on bail, their bail bonds shall stand cancelled and sureties discharged. In case appellants have paid fine, the same shall stand refunded to them.

Order Date :-

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