Naseem Ahmad vs State
2017 Latest Caselaw 1475 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 5							AFR
 

 
Case :-JAIL APPEAL No. - 7258 of 2007
 

 
Appellant :-Naseem Ahmad
 
Respondent :-State
 
Counsel for Appellant :-From Jail,Ms.Saumya Chaturvedi,Amic
 
Counsel for Respondent :-A.G.A.
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Ms. Somya Chaturvedi, learned counsel Amicus Curiae and Sri Tarkeshwar Yadav, learned A.G.A. for the State.

This is a jail appeal preferred by the accused. Briefly stated the facts of the case are that one Mohd. Haneef S/o Aivaz Khan lodged an FIR on 18.9.1999 at 6.15 a.m. alleging that he was sleeping in his house when at about 3' O clock in the morning, he heard knocking sound (Khat-Khat). He woke up and went to the terrace with a lighted torch in his hand and saw the accused Nasim Ahmad who belonged to the same mohalla. The informant asked him, who is there? and immediately thereafter, Nasim Ahmad fired upon him with a country made pistol. The informant raised alarm upon which Shakoor S/o Bashir Ahmad and Raees S/o Bashir residents of the same mohalla also reached there with lighted torches. They saw the accused Nasim running away alongwith two other persons in the torch light. The other two persons were not known to the informant and it is stated that he had seen them in the torch light and could recognize them, if they are produced before him. On the FIR the police registered a case under Section 307 IPC against the accused on the same day. On 18.9.1999 the torches of Mohd. Haneef, the informant and the witnesses Abdul Shakoor and Raees were checked and found to be in running condition. Mohd. Haneef, was examined by the Medical Officer, Primary Health Centre, Kanth, Moradabad at about 7.45 AM on 18.9.1999. The Medical Report is as under:-

"Injuries:

1. Multiple Gunshot injuries .3 cm in diameter present ones the front of chest more on Rt side, Rt side of abdomen, anterior aspect of Rt. arm, one on posterior aspect of Rt forearm (upper 1/3 & lower 2/3 ...) Two ones the forehead and one on upper lip. Bleeds on touching. Probing not done."

The informant has received injuries on the face, chest and hands. His X-ray was also taken and X-Ray report read as under:-

"Three small rounded radio opaque shadow of metallic density seen, fracture left maxilla bone on the left side face."

The trial ensued and ultimately the trial court convicted the accused of the offence under section 307 I.P.C. and sentenced him to undergo seven years R.I. with fine of Rs. 5,000/- with default stipulation. Against the judgment of the trial court, the present jail appeal has been preferred. This court appointed Ms. Somya Chaturvedi as Amicus Curiae.

The learned Amicus Curiae has taken the court through the entire evidence on record. The first submission is that the injuries are of simple nature and the medical report itself mentions that there are two pellet shots (chharra) .3 cm in diameter in front of chest on the right side abdomen, on the right side anterior of the right arm, one injury on the posterior of the right fore arm, upper 1/3 and lower 2/3 two injuries on the forehead and one on the upper lip which bleeds on probing. The injuries are stated to have been caused by a fire arm. The X-Ray shows three small rounded radio opaque shadow of metallic density, fractured left maxilla bone on the left side of the face. In the accompanying letter when the accused was sent for X-Ray examination it was mentioned that the pellet injuries were on the face, chest and hands.

In the trial Haneef was examined as a witness and he stated that on the night of 18.9.1999 he heard a sound of khat-khat at about 3.00 AM and woke up. He took a torch and went on the terrace. He lit his torch and at that time there was a lighted bulb of the opposite house and in this light he saw Nasim standing and he asked him "Abey tu?". On his question Nasim fired at him with a country made pistol and 2 or 3 pellets struck him on the forehead, one on the stomach, one in the arm, one on the upper lip and one on the eyebrow including the chest. His neighbour Shakoor and Raees also reached there with their torches on the alarm being raised by him. Both these persons saw the accused in their torch light. Along with the accused there were two or three more people who ran away. After that Haneef went to the police station and lodged his report and then went to the hospital for medical examination. In his statement on oath he has stated that there was only a little blood oozing from the injury on his lip. There was bleeding from all the injuries and had stained his clothes which were seized by the police. He also stated that the distance of the police station from his house was about 20 mins. He started from his house for the police station at about 4.30 am and reached there at about 5.00 or 5.15 am. Lot of public had collected there. Several members of the public were enquiring about his condition. He had gone to the police station on foot and the witnesses had also gone with him to the police station. Haneef had also stated that the accused after firing upon him ran away towards his house. Nobody tried to catch the accused because they were frightened for their lives. The police after recording his statement went in search of the accused. The accused was caught at about 5' O Clock. Haneef has also stated that he does not know the other two persons who were with the accused. He reached the hospital at about 7.00 or 8.00 am. He was admitted and discharged after three days from the hospital. He has stated that he received pellet injuries while he was on the terrace and the accused was standing on the ground floor. The accused was standing about 20 ft away from Haneef. The area to the north and west of the house are vacant. He also stated that accused fired from the ground floor to the terrace. Haneef also stated that there was no quarrel between him and the accused.

Abdul Shakoor appeared in the trial as Prosecution Witness-2 (P.W.-2). He was about 70 years of age. In his statement he has stated that he is the neighbour of Haneef and the incident is of 18.9.1999 at about 3.00 am in the morning. He heard some khat-khat sound and woke up. He was sleeping on the terrace and saw Haneef climbing the stairs. He asked Haneef what was the matter. He as well as Haneef lit the torch and saw the accused Nasim. His two associates were hammering at a wall with a pipe. Haneef asked him "tu hai?" and immediately Nasim fired upon him and thereafter, ran away towards his house and his associates also ran away with him. Haneef received pellet injuries on his forehead, stomach, right side chest and on the right hand. With the sound of firing, lot of people from the mohalla collected there. Abdul Shakoor further stated that no cry was raised by Haneef prior to the pellets being fired and in fact he screamed only after he received the pellet injuries. He woke up on hearing the sound of khat-khat when the Haneef was climbing the stairs. He also reached the place of the incident. He has also stated that other than him no other person had reached the spot at the time of firing. The family members of the Haneef reached the spot later. This witness has further stated that when Haneef received the pellet injuries he had reached the terrace and saw in the torch light that the accused was standing on the ground floor. The distance from where the pellets were fired was about 10-12 steps and the terrace is about 10-12 ft in height. The accused was standing towards the east. He also stated that to the north of the house in question is plain and vacant land and to the west is the house of the informant - Haneef and to the north of Haneef's house is the haveli of Raees.

The Medical Officer, Dr. Chaman Prakash was examined as PW-3 and he has confirmed the medical report stating that maximum injuries were on the right side but has stated that the blood oozed from the injuries only upon pressing. In the medical report, the depth of the injuries was not examined and the wounds were found fresh. He has also stated that when the injured reached the hospital his injuries were examined and there was only slight bleeding from the wounds and that too only on pressing. No stitched were applied to any of the injuries. He has also stated that injuries were caused by a fire arm which was fired from a distance of possibly 10-12 ft.

The Radiologist, Dr. J.K. Jain was examined as P.W.-4 who has confirmed the X-Ray reports and has stated that from the X-Ray it was noticed that the left Maxilla bone of the face was fractured.

Head Constable, Om Prakash Sharma was examined as P.W.-5 who has stated that it was he who noted down the FIR which was written word to word and read out to the informant who then affixed his thumb impression thereon.

Sub-Inspector-Fahim Khan, the investigating officer was examined as PW-6. He examined the site of the place of the occurrence and prepared the site map and recorded the statement of Nasim Ahmad on 21.9.1999. He has also stated that he took the statement of the informant as well as the witnesses on the same date but the other two accomplices of the accused could not be traced even with the help of police informers. The investigating officer in his statement stated that the accused was arrested on 21.9.1999 and brought to the police station at about 9.25 am.

The statement of the accused under Section 313 Cr.P.C. is on record. The accused has denied the allegations against him. Question no.5 was put to him that it has come in the evidence that P.W.-1 Haneef, P.W.-2 Abdul Shakoor, P.W.-3 Dr. Chaman Prakash, P.W.4-Dr. P.K. Jain, P.W. 5-Om Prakash Sharma, Head Constable, P.W. 6-Fahim Khan, Sub-Inspector are present in the court and what he has to say about them. The accused in his reply stated that they have given their statements out of enmity ("ranjish me bayaan deve hai").

The trial court has considered the documentary evidence on record as well as the oral testimony of the witnesses with regard to the delay in the lodging of the FIR. The trial court has held that the police station was at a distance of 1 Km from the place of incidence i.e. house of Haneef but considering the circumstances of the case, it cannot be said that the delay is inordinate. So far as the contention that the investigating officer took the blood stained clothes in his custody but did not prepare any recovery memo or examine the matter in detail, the trial court held that this is a minor discrepancy which is not very material and is a lapse on the part of the investigating officer because the injuries suffered by the victim Haneef. The trial court has also held that the incidence of the accused Nasim firing upon Mohd. Haneef has been confirmed by the statement of P.W.-2 Abdul Shakoor and therefore, merely because blood stained clothes were not examined and proved would not make much difference so far as the guilt of the accused is concerned.

The trial court has also held that the accused in his statement under Section 313 Cr.P.C. has stated that he has been implicated in the incident due to enmity but he has not proved the enmity and has also not produced any documentary evidence regarding enmity with the injured Haneef. The trial court has also referred to the medical report and the X-Ray reports as well as the statement of witnesses and held that, from the medical report it is confirmed that the injuries were caused to Haneef by pellets which were fired by the accused from a country made pistol and therefore, it is established that the accused has fired upon Haneef with the intention to cause his death and therefore the accused was guilty of the offence under section 307 I.P.C. As regards the distance from which the accused is stated to have fired from the country made pistol upon the injured Mohd. Haneef, the trial court held that the incident was witnessed in torch light and the injured is a villager and if he has stated that the accused fired from a distance of 20 steps but on investigation this distance was found to be 12 steps, that itself would not make much of a difference as a villager is not expected to know whether the distance was of 20 steps or 12 steps and such discrepancies are minor. Regarding non-recovery of the weapon used in the incident, the trial court held that in every case, it cannot be expected of the investigating officer to recover the weapon of assault. The injured as well as P.W. 2 Abdul Shakoor have confirmed the incident. The injured had suffered the injuries which are proved by the medical reports which clearly goes to show that the accused fired upon Haneef with the intention to cause his death and therefore, a case under Section 307 IPC is made out. The trial court on these findings has convicted and sentenced the appellant, as aforesaid.

Ms. Somya Chaturvedi, learned Amicus Curie on the other hand has sought to demolish the case of the prosecution by referring to various discrepancies in the statements of witnesses and reference of the incident as well as the investigation. She submits that the incident itself occurred at about 3.00 a.m. during night hours. The injured Haneef in his statement has mentioned that he heard the sound of knocking (khat-khat) and went to the terrace. He had a torch light in his hand and there was also a light bulb burning in the opposite house, he saw the accused standing and said "Abey tu?" and immediately, thereafter the accused fired upon him. According to Haneef after he raised alarm, his neighbour Abdul Shakoor and Raees who lived in the same mohalla reached to the spot. This statement of Haneef is strictly in conflict with the statement of P.W.-2 Abdul Shakoor who stated that he was sleeping on the terrace and woke up hearing the sound of khat-khat and saw that Haneef was climbing the stairs. He asked Haneef what happened. They saw in their torch light that the accused Nasim Ahmad was standing and his two associates were digging the wall with a Kudal. Haneef questioned him "tu hai?" upon which Nasim Ahmad immediately fired upon him and then ran away towards his house alongwith his associates. This witness has stated that the injured screamed after he received the pellet injuries. Referring to these two statements, the learned Amicus Curiae submitted that both the statements are self-conflicting and self-contradictory inasmuch as according to Haneef it is after he received the injuries and started shouting that Abdul Shakoor and Raees who belonged to the same mohalla reached the spot whereas according to Abdul Shakoor, P.W.-2 he was already on the terrace and had woken up when he heard the sound of khat-khat and lit a torch and saw Haneef climbing the stairs and then he saw the accused Nasim Ahmad standing. Haneef asked him "tu hai?" whereupon the accused fired at Haneef causing him injuries. Therefore, according to her neither statements is trustworthy as they do not give the correct report of the incident and therefore, a statement which is not worthy of trust cannot be the foundation of a case to bring home a verdict of guilt against the accused.

The learned Amicus Curie further submitted that Raees who was a resident of the same mohalla and who according to the statement of Haneef reached the place of incidence immediately along with Abdul Shakoor, was never produced before the trial court for recording his statement or to give his evidence and therefore, the statement of the prosecution witnesses P.W. 1 and P.W. 2 being self-contradictory are not trustworthy.

Learned AGA could not explain this discrepancy and inherent contradiction in the statements of two prosecution witnesses both of whom claimed to be eye witnesses of the incident and therefore, the submission of learned Amicus Curie must be accepted. Where the eye witnesses account itself suffers from contradiction , neither statement can be relied upon to bring home a verdict of guilt against the accused.

The learned Amicus Curiae next submitted that the incident itself was of 3.00 a.m. in the night of 18.9.1999 but the FIR was lodged at 6.15 a.m. and the police station was only 1 km away or at a distance of 20 minutes from the residence of the injured Mohd. Haneef which fact has been confirmed in the trial but it has not been explained as to why it took 3 hours 15 minutes for the informant to lodge the FIR. The injured in his oral testimony has stated that after the incident, he went to the police station to lodge the FIR and was accompanied by a large number of people of the mohalla who were enquiring about his health, therefore, it is not clear as to why it took 3 hours 15 minutes for the informant to lodge the FIR and it cannot be said that the injured is a villager and an unlettered person, therefore, he could not decide what to do. Infact in such a situation it would be expected that the FIR be lodged at the earliest to effect an arrest.

Learned AGA submitted that this witness has stated that the people did not chase the accused immediately because they were scared of their lives. This can hardly be accepted for the reason that Haneef in his testimony has stated that the accused immediately ran away towards his house after firing at him. Therefore, it is not explained as to why it took 3 hours 15 mins for lodging of the FIR, this delay not explained satisfactorily.

Learned Amicus Curiae next submitted that the accused in his statement under Section 313 Cr.P.C. was asked as to what he has to say about the statements recorded by the prosecution witnesses to which the reply was that it was because of enmity ("ranjish me bayaan deve hai."), therefore, the accused has been falsely implicated in the case by Haneef.

The learned AGA on the other hand submitted that if it was the case of the accused that he was falsely implicated in the case because of enmity, the burden was upon the accused to establish or clarify what was the enmity.

The contention of the learned Amicus Curiae is that the answer was given by the accused to the question no.5 which was put to him as to what he has to say about the statement of the witnesses to which he replied "ranjish me bayaan deve hai" (it has been given due to enmity) but thereafter no other question was put to the accused by the prosecution to further explain himself. Her submission is that the burden lay upon the prosecution to prove the guilt of the accused and therefore, it was for the prosecution to have asked the accused to explain the incidents of enmity or cause of enmity and if, no question was put by the prosecution to the accused, the accused was not expected to reply or to make any statement beyond what was required of him or answer any question beyond what was asked of him.

In my opinion, the learned Amicus Curiae is absolutely correct. I have gone through the statement of the accused under Section 313 Cr.P.C. The question no.5 put to him was what he has to say of the statement of the prosecution witnesses to which he replied that they have given the statement due to enmity ("ranjish me bayaan deve hai"). After this statement no question was put to the accused by the prosecution asking him to explain in detail the nature or cause of enmity and therefore the accused was not required to make unnecessary statements other than what was specifically asked. The burden lay not upon the accused to explain the nature of enmity but rather upon the prosecution to ask him specific questions to clarify the nature of enmity. This the prosecution has failed to do and therefore, the testimony of the accused that the statement was given by the prosecution witnesses due to enmity remained un-rebutted and disproved.

An interesting factor alluded to by the learned Amicus Curiae is that the weapon with which the accused is stated to have been fired upon Mohd. Haneef was never recovered by the police. It is surprising that the two prosecution witnesses have stated that they saw the accused Nasim Ahmad firing from a tamancha (country made pistol) but the said tamancha was never recovered. What efforts were made by the investigating officer to recover the weapon has also not been disclosed during the trial. Once the testimony of the two prosecution witnesses are found to be untrustworthy in view of the same being self-contradictory, the fact that the weapon used in the incident was never recovered is a material failure on the part of the investigation as neither the pellet injuries could be matched with those of the alleged country made pistol used nor have the finger prints of the accused been lifted from the weapon.

Reliance has been placed on the judgment of the supreme court in the case of Krishnegowda and others Vs. State of Karnataka by Arkalgud Police reported in AIR 2017 Supreme Court 1657, 2017 Indlaw SC 220. Relevant paragraphs no. 19, 23 and 25A read as under:-

"19. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt.

20. .........

21. .........

22. .........

23. In the evidence of the prosecution witnesses in respect of exact time when the incident had happened, who were the people present at the scene of offence, the time of police reaching the scene of offence, place of registering the complaint, there were lot of variations. According to PW1 the complaint was recorded at hospital at 12 p.m. whereas the Investigating Officer deposed that he registered the complaint at 10:30 a.m. at the police station. PWs 1-3 say that they were arrested by Investigating Officer but the I.O. gave a contradictory statement that he has not arrested them. PW1 initially gave a statement before the police saying A1, A5, A3, A4 had not assaulted him. Later he gave a contradictory statement which is marked as Exhibit D1.

24. ...........

25. ...........

25A. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Benthem, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused."

In the case in hand, there is material contradiction in the statements of informant and P.W. 2. According to the first informant when he raised the alarm after receiving the fire arm injury, P.W. 2 Abdul Shakoor reached the terrace whereas according to the testimony of P.W. 2 the accused Naseem has fired upon the first informant in front of him and Abudl Shakoor was already on the terrance and inquired from the informant what was the matter.

According to the first informant the incident was witnessed by Shakoor and Raees, but only Shakoor has been produced by the prosecution as a witness. So far as the Raees is concerned, the prosecution has not examined him as a witness and the trial court also never thought it fit to summon Raees under Section 311 Cr.P.C. to examine him and to verify the statements given by the first informant as well as Shakoor, P.W. 2.

The corroborating evidence such as recovery of weapon of assault, seizure of blood stained clothes of the injured, non production of another eye witness Raees as well as the failure on the part of the investigating officer to arrest the other two associates of the appellant have been held to be minor discrepancies by the trial court and it has convicted the appellant only on the basis of the testimonies of the first informant and P.W. 2, which are self contradictory, which in my opinion is not correct.

Therefore, on a conspectus of facts and the unsustainability and unreliability of the evidence on record, the judgment of the trial court dated 18.07.2007 convicting the appellant under Section 307 IPC cannot survive and is accordingly set aside.

The jail appeal is allowed.

It is to be noted that the appellant has already been released after completion of the sentence awarded by the trial court.

Before concluding, this Court must put on record its appreciation of the efforts put in by the learned Amicus Curiae in providing valuable assistance to the Court. It is, therefore, directed that a sum of Rs. 10,000/- be paid to Ms. Somya Chaturvedi, learned Amicus Curiae towards fees.

The above amount be paid to Ms. Somya Chaturvedi, learned Amicus Curiae by the Registry of the Court within 15 days.

Order Date :- 31st May, 2017

Kirti