Shabbir And Another vs State Of U.P.
2023 Latest Caselaw 4304 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved on 13.09.2022
 
Delivered on 10.02.2023
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 1955 of 1984
 
Appellant :- Shabbir And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- K.K. Misra,Palok Basu,Panchu Ram Maurya
 
Counsel for Respondent :- Dga,A.G.A.
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Rajiv Gupta,J.

Heard learned counsel for the appellants and learned AGA for the State.

The appeal is directed against the judgment and order dated 07.08.1984 passed by the 4th Additional Sessions Judge, Mirzapur convicting appellant no.1, Shabbir s/o Usman under Section 302 and Section 395 read with Section 396 IPC and sentencing him life imprisonment and 7 years RI respectively.

The appellant no.2, Shabbir s/o Shukrullah has been convicted under Section 396 IPC and sentenced 10 years RI.

Appellant no.1 died during the pendency of the appeal and the appeal on his behalf has already been ordered to abate. It survives only on behalf of appellant no.2, Sabbir son of Shukrullah.

A FIR was lodged at PS Dudhhi, District Mirzapur on 12.09.1983 at 7.30 a.m. which gave rise to Case Crime No.115 of 1983, under Section 396 IPC regarding an incident which is stated to have taken place at 1 a.m. the previous day.

The case set out in the FIR aforenoted, lodged by Ram Briksha son of Lalji, was that on the intervening night of 11/12.09.1983, he was sleeping in a Kothari in the southern side of his house with his wife. His father was sleeping in a Kothari on the eastern side near the main entrance of the house and a lantern was burning there. The first informant's mother and other family members were sleeping in the eastern verandah. On hearing noises, he woke up at around 1:00 am on hearing sounds and came into the courtyard with a torch. The door on the rear entrance was broken open from outside and 8 to 10 persons entered. Three of these persons were armed with country made pistol while the rest had lathi, danda, spear and torches. On entering these persons looked for Lalji, father of the first informant and 3 of 4 of them entered his room. The first informant and his mother followed them. His father had woken up and sitting on the cot of which he had been sleeping. One of the intruders namely Sabbir shot the first informant's father who fell on the cot, itself. The first informant ran into the western kothari and close the door. The intruders opened the main door and some persons started guarding it and started looting the valuables. On the hue and cry raised by the first informant and his family members several villagers armed with torches and lathis arrived on the spot. In the meantime the door of the room wherein the first informant had locked himself up was also broken down and a shot was fired at him. He suffered some pellet injuries of the intruders. He was able to identify Shabbir son of Usman, Chirangan Musalman resident of Mahuli and Shabbir son of Sakrulla resident of Chhiwahi. His father had been shot by Shabbir resident of Mahuli. There was enmity between the deceased and Shabbir Musalman resident of village Mahuli regarding a fisheries lease which had been granted by the Sub Divisional Magistrate in favour of the first informant.

On 11.09.1983, Shabbir was fishing in this pond and the deceased asked him to desist. Shabbir threatened the accused that would be killed and the same night the incident took place on account of the aforesaid enmity. The dacoits looted gold and silver ornaments and various items, detailed in the FIR.

It appears that the first informant was sent for medical examination and is alleged to have been medically examined on 12.09.1983.

Inquest was conducted between 7:30 am and 10:30 am on 12.09.1983. Thereafter, the body was sent for post mortem which was duly conducted. The police after investigation submitted a charge-sheet against the accused on 23.10.1983.

Upon committal on 18.01.1984, the 5th Additional Sessions Judge, Mirzapur framed charges under Section 302 IPC against appellant no. 1 Shabbir son of Usman. He also framed charge against the accused under Section 395 read with Section 396 IPC.

The prosecution has examined as many as 8 witnesses to prove the prosecution case.

PW-1, Rambriksh is the son of the deceased and the first informant, PW-2, Moti is the person who is alleged to have carried the written report to the PW-3, Tunni is an alleged eye witness, PW-4, Smt. Moollar, is the widow of the deceased, PW-5, Jashoda aged about 15 years old is the daughter of the deceased, PW-6, Deep Chandra Tiwari is the first Investigation Officer who was Station Officer, PS Dudhhi on the date of the incident, PW-7, Jivodhan Rai is the second I.O. and the S.O. of PS Dudhhi and PW-8, Vasi Lal is the Constable who carried the body for post mortem.

The statement of the accused were recorded under Section 313 Cr.P.C. No evidence was produced by the accused in defence. The trial court on the basis of the evidence adduced convicted the appellants as noticed above. The trial at the third accused Chiragan was separated from the trial at hand.

PW-1, Ram Briksha deposed that on the night of the incident after having food and after closing the main door, he and his wife were sleeping in the room south of the courtyard while his father was sleeping in a Kothari on the eastern side near the main entrance of the house and a lantern was burning there. His mother and others were sleeping in the eastern courtyard. He woke up at around 1 a.m. on hearing some sound and came into the courtyard with a torch. Under apprehension of dacoity, he shouted. In the meantime, the dacoits brokeen the door with a heavy object and 8 or 10 persons entered the house. Three were armed with country made pistol. The rest were carrying lathies and spears. He had seen the faces of the intruders and their weapons in torch light. The intruders, on entering the house asked for Lalji. 3 or 4 of them entered his room. The first informant and his mother followed them. His father had woken up and was sitting on the cot. Sabbir s/o Usman shot him and his father fell on the cot itself. The first informant ran and hid himself in his room and bolted it. Even this door was broken down and a shot was fired on him. He suffered pellets injuries. Thereafter, the decoits looted various items. On a hue and cry being raised, a number of villagers arrived on the spot and the decoits ran away.

The first informant claims to have identified three persons in torch light, they being Shabbir s/o Usman, Chiragan resident of Mahuli and Shabbir resident of Chhiwahi and has stated that he knew them from before. He also stated that there was enmity with Sabbir s/o Usman on account of the fishing rights. The first informant had obtained fisheries lease of a pond, which was operated by him and his father. On the date of the incident at about 12 noon, Shabbir s/o Usman had threatened that if Lalji stopped him from the fishing in the pond, he (Lalji) would be eliminated and thereafter incident took place at that night. In his house, some gold & silver ornaments, five saries and a radio were looted. After the dacoits left, he transcribed the tahrir himself and handed it over to Moti to be given in the police station. The Sub Inspector arrived at about 10 a.m. on the morning and took custody of the body and after necessary documentation, the same was sent for postmortem. The cot on which his father was sleeping the mattress and the bed sheet were bloodstained which were marked as Ext. K1 and K2. The dhoti, worn by the deceased was bloodstained and marked as Ext. K-3. He and other witnesses had shown their torches to the Sub Inspector. After examining them, the Sub Inspector gave them in the supurdagi of the respective owners. His injuries were examined in the Hospital and X-ray was conducted at Kabir Chaura Hospital. The constables had accompanied him at both the places.

During cross-examination, he had stated that there was enmity with the accused Shabbir s/o Usman prior to the incident but no report in this regard was made. The dispute was regarding fishing rights of the pond, which had been leased out to him by the Sub Divisional Officer. He and his father never prevented Shabbir, accused from fishing in the pond. In fact, his father had offered him fishes but the same had annoyed Shabbir. The dacoity took place 2 or 3 years after this incident. Prior to the incident, there was an argument between his father and Shabbir. The lease of the pond had been obtained four years prior to the incident. Although, he has not filed the lease document, he can file the same. His father had no enmity with Shabbir. He himself has no concern with Shabbir nor had ever talked to him. He knows Nakchhedi Yadav who was earlier Block Pramukh and is still the Block Pramukh. He is not aware of any hostility between Nakchhedi Yadav and Sabbir s/o of Aftab Kuresi or that Sabbir and others had been made accused in the case lodged by Nakchhedi Yadav. He is not on talking terms with Nakchhedi Yadav, earlier in time. Aftab was also Block Pramukh. The distance between Mahuli to Chiwahi is about 4-5 Kms. He is unaware that Sabbir is close to Aftab Ahmad. He had not made any complaint against the Aftab to Nakchhedi but had complained to his father, the deceased. He does not have any terms with Aftab Ahmad. The Sub Inspector left the village at about 5 p.m. and he went for medical examination with the constable at 5, 5.30 p.m. and reached the Orthopedic Hospital at about 8 p.m. He was allowed to go after the examination was over and was not admitted in the Hospital. He was thereafter taken to the police station. The dead body had already arrived at police station. He returned home the next day after cremating it.

He has denied the suggestion that he had opposed his own medical examination despite the police insisting upon it. On the night of the incident, they had gone to sleep after locking the front and rear doors. The dacoits started firing immediately after entering his house. All the three of them did not fire. Only two shots were fired each by a separate person. He had been fired upon from the distance of 7, 8 steps and there were pellets marks on the wall in an area of 9 to 10 inches. These pellets marks had been examined by the Sub Inspector. His father had been shot from a very close range. He is not in a position to describe the other 7 or 8 dacoits. Some of the dacoits had covered their faces. He recognized the persons, who had not covered their faces. His mother had been pushed by the dacoits and had suffered some injuries. Apart from that and the gun shot wound, no one suffered any firearm injuries. There was no source of light that night, apart from the lantern and kerosene lamp and both of which had been examined by Sub Inspector at around 2 to 3 p.m. and thereafter given in his supurdagi. His house is situated 12 kms from the police station and he is unaware as to how Moti covered this distance. Moti his neighbour is matric fail. He started transcribing the tahrir at 3.30 -4 a.m. and completed in one and half hours. He had not taken any help while transcribing it.

He has denied the suggestion that it being a night incident, he did not recognize the dacoits and therefore had sent information to the police station only about a dacoity. Subsequently, on the intervention of Nakchhedi Yadav and others, the first information report was prepared implicating falsely the accused.

PW-2, Moti, the person who carried the tahrir transcribed by the first informant to the police station has stated that his house is situated at a distance of 1 kilometer from the house of the first informant. He does not know what a km is but that his house and that of Rambriksha is separated by a railway line. He heard shouts of Daku Daku at about mid night. He reached near the well with a lathi and torch and heard the sound of shots. On hearing sound of shots, he did not go further. The dacoity continued for about one and half hours. When the dacoits emerged from the house, he saw them in torch light. They were armed with country made pistols, lathis and spears. The dacoits ran away due south through sugar cane fields. He had not recognized any of them. This witness was declared hostile and was cross-examined by the prosecution.

During cross-examination by the prosecution, he has stated that Rambriksha gave him the tehrir outside his house at about 5.30 a.m. He carried this report and presented it to the police station at about 7.30 a.m. He was accompanied by Nand Lal. The police arrived in the village at about 10 a.m. and his statement was recorded by the Sub Inspector. He had not stated before the Sub Inspector that he had identified Shabbir, Chiragan and Shabbir resident of Chhiwahi in torch light. He knew Shabbir from before the incident. He also identified Shabbir in Court. Chiragan works as a gangman in Railway. Shabbir resident of Chhiwahi used to come to his village for selling bangles etc. He had seen the dacoits in torch light but had not identified them.

During cross-examination by the defense, he has stated that he was called at 12 noon previous day but had not been told what to depose before the Court. The police arrived in the village after the incident at 10 a.m. and stayed till 9-10 p.m. that night Ram Briksha was available in the village the whole day as was the witness himself. The police personnel took both of them to the police station.

PW-3, Tunni has stated that his house is west to the house of Ram Briksha. The house of Ram Briksha, the first informant has a door due West also. There was a dacoity in the house of Ram Briksha at about 12 or 1 a.m. At that time he was sleeping in his house and woke up on hearing a hue and cry. He ran toward the house of Ram Briksha armed with torch and lathi. He saw two or three persons moving in and out from the near entrance of the house. They were carrying torches. When they saw the witnesses, they started abusing. He saw 4 or 5 people in front of the main door, armed with country made pistols and lathies. He stayed away from the site of the dacoity out of fear.

Even this witness was declared hostile and was cross-examined by the prosecution. He denied his statement under Section 161 Cr.P.C. as also the suggestion that he was deposing falsely out of fear.

During cross-examination on behalf of the accused, he has stated that he has come to depose at the instance of the police personnel, who had brought him once earlier also.

PW-4, Smt. Mullar is the wife of the deceased. She has stated that at 9 p.m. she was sleeping in her courtyard due east in a varandah along with her two daughters while her husband is sleeping in a room adjacent to the main entrance on a cot and a lantern was burning there. Her house opens towards east. The main door was locked. Even the western door was closed. The western door was broken by the intruders and she woke up and came into the courtyard and started shouting that miscreants had entered. Ram Briksha, her son who is also called Babu, was sleeping in the southern room with his wife. On her shouting, he arrived in the courtyard with a torch. There were about 9 to 10 miscreants, 2 or 3 carried country made pistols, 2 or 3 armed with lathies and 2 or 3 armed with spears. She pleaded to the dacoits not to assault anybody and to take whatever they wanted. She was pushed away and thereafter Shabbir shot her husband from a very close range. At that time Lal ji was sitting on the cot with his feet hanging down. On being shot, he fell on the cot itself. She identified Shabbir in Court as the person, who had shot her husband. Her husband was shot and her son ran and hid in the southern room and bolted the door, which was broken open by the dacoits and they also fired upon her son. The dacoits looted jewellery and other articles from her house. The persons, who had arrived on the spot were challenging the dacoits. She knew Shabbir, resident of village Mahuli, from earlier. Shabbir used to fish in their pond and regarding its there was an argument between her husband and Shabbir. The other witnesses in this case are not prepared to depose in Court.

During cross-examination, she has stated that the other witnesses on her asking to depose, had stated that they did not want to meet the same fate as her husband. She is aware that people were brought to Mirzapur to depose but they did not depose. She has denied the suggestion that the accused had been falsely implicated. She had recognized only two persons from amongst the dacoits, although, they were 9 or 10 of them. None had covered their faces. Shots were fired inside the room. Only two shots were fired. The pellets of the shot fired at Ram Briksha hit the wall and these pellets marks were examined by the Sub Inspector. On a specific question, she has replied that the Sub Inspector stayed on the site till about 9 to 10 p.m. The body was taken away at about 10 a.m. and that Ram Briksha returned to the village on the third day after the cremation. Subsequently, this was corrected to state that he had left on Monday and returned on Tuesday itself. She was not a witness to the fight between her husband and Shabbir but had been told about it by her husband and that Shabbir had threatened him. Her husband had also told her that Shabbir is resident of Mahuli. She was pardanshin but started moving out after the death of her husband. It is the 4th time when she had come to the court. On each occasion, the police had called and told that no one else is willing to depose and therefore, she should depose. She has denied the suggestion that she is deposing falsely on account of police pressure or that she did not see or recognize any of the dacoits. She also denied the suggestion that she has failing eye sight.

PW-5, Jasoda, aged about 15 years, the daughter of the deceased has supported the prosecution case. Her testimony is also on the same lines as that of other witnesses of fact. As regards, the sequence of events. She has stated that the incident took place at about 9 p.m. She identified Shabbir, who is resident of Chhiwahi in Court as the person, who fired upon her father. She knows him from before as he used to sell bangles etc. in her village.

During cross-examination, she has stated that she was not asked to identify the dacoits after they were arrested. Subsequently, she has stated that after the arrest, the accused were identified and she was told as to who is Shabbir resident of Ghevati and which is Shabbir of Mahuli. The dacoits had been arrested on the date of dacoity itself and were brought to the village and shown to them. She had recognized one and the dacoits as the same person, she had identified in Court today. She had seen her father being shot.

She has denied the suggestion in her cross-examination that she has not seen anything as she was sitting in the varandah. The shot was fired at Rambriksha in the room and there were pellets marks on the wall, which she has seen herself. She had not seen any empty cartridges in her house. She had informed the Sub Inspector that Ram Briksha carried a torch.

PW-6, Deep Chandra Tiwari was posted as Station House Officer, Police Station Duddhi on the date of incident and the case was registered in his presence. He started investigation and reached the village at 10 a.m. The inquest was conducted and the inquest report was prepared by Sub Inspector,V.K. Rai at his instance and on his dictation. The inquest report was marked as Ext. K-2 while the documents, which were sent along with the dead body for postmortem, were marked as Ext. K-3 to 6. He has stated that the lantern and the kerosene lamp, which were burning at the time of incident were examined by him and were found in working condition. They were given in the supurdagi of the first informant and a memo was prepared. All the doors, which were broken were also given to the supurdagi of the first informant. He also examined torches of the witnesses, Shiv Shankar, Tunni, Moti, Prem Shankar and Shiu, which were all functional. A memo was prepared. These memos were also sent along with other papers but they were misplaced. They were searched for in the police station but could not be traced. All the memos prepared are mentioned in the case diary. He had examined the scene of occurrence on the pointing out of the first informant and the witnesses and a site-plan was prepared by him, which were marked as Ext. K-7. He has indicated the spots where the lantern and kerosene lamp were burning in the site-plan. He sent the first informant for medical examination to PHC Duddhi with constable Girja Singh on 23.09.1983. On receiving information from the police informer, he had arrested Shabbir resident of Chhiwahi and recorded his statement. On 27.09.1983, he arrested accused Bhola Katar and Ishtiyaq .

During cross-examination, he has stated that he had recorded the statement of Jasoda on 12.09.1983. He reached the site of occurrence at 10 a.m. when the inquest was conducted statement of witnesses were recorded and the site was inspected. This was completed by 4 p.m. He has not obtained any memos which were forwarded nor any case diary. He does not possess any document regarding the loss of any document and none is available on record. He has denied the suggestion that no memo was prepared by him on the spot. He has also stated that while searching the house of the accused, a memo should be prepared but at times it is not, although, it should be prepared. He is aware that on search of the house of the accused, the looted items or the ornaments can be recovered. He had searched the house of the named accused at around 11 p.m. but had not prepared any memo. He has denied the suggestion that the said date, no accused was infact named or that their houses were never searched. He had sent Ram Briksha for medical examination at about 2.30 to 3 p.m. and not earlier as his father had died. He has not recorded the statement of the Doctor, who conducted the postmortem. None of the documents connected with the inquest has the detail of the case mentioned thereon. He has denied the suggestion that this was so because the FIR was not in existence till that time. When marks of a fire arm shot are seen on a wall it is marked in the site-plan, but, in the case at hand, it had not been shown due to oversight. He has denied the suggestion that there were no pellet marks on the wall of the house in question.

PW-7, Jivodhan Rai is the second Investigating Officer, who took over the investigation on 12.10.1983 on being posted as Station Officer, Duddhi after the transfer of the first Investigating Officer and he filed the charge sheet in Court, which was marked as Ext. K-8. He has also proved the chik report, which was marked as Ext. K-9 as also the consequential GD entries made by Ravindra Nath Rai, which were marked as Ext. K-10.

PW-8, Vasi Lal, CP No.153 carried the body for postmortem on 12.09.1983 at 12.30 p.m. along with 10 documents. They had crossed the Kantar river, which was filled with water. They reached the river bank at about 3,3.30 p.m. After waiting three hours, a boat came and then were able to cross the river. Thereafter they proceeded on foot and reached the hospital at about 08.30 p.m. The postmortem was not conducted on the same day as there was no electricity. It was conducted the next morning.

During cross-examination, he has stated that he reached the site of occurrence along with the Sub Inspector at 10 a.m. They had proceeded from the police station and had covered a distance of about 5-10 kms, they crossed Kantar river which is at a distance of 3 kms from the site of occurrence. The body was carried on a cot, which was lifted by two constables and two other persons. The same persons carried the body up to the mortuary.

The statement of the accused was recorded under Section 313 Cr.P.C. Sabbir s/o of Shukhrullah, appellant no.2 has denied the allegations and evidence against him and has stated that he has been falsely implicated on account of enmity as he has close relation with Zahir Ahmad and Aftab Ahmad.

As already noticed in the earlier part of this judgement, the appeal on behalf of the appellant no.1 has already abated on account of his death. It survives only on behalf of appellant no.2, who has been convicted under Section 396 IPC and has been sentenced to 10 years rigorous imprisonment.

The instant case, we find is uprecedented. There is an alleged injured witness in the form of the first informant, Ram Briksha. He is also alleged to have been medically examined as fire arm injuries were suffered by him. However, his medical examination report has not been proved in Court nor has it been exhibited. Even the Doctor who conducted the postmortem has not been produced nor has the postmortem report been proved or exhibited.

Two of the alleged eye witnesses have turned hostile and nothing of substance could be elicited from their cross-examination.

Admittedly, the incident took place after midnight as is the prosecution case. The incident also took place inside the house. The alleged source of light are torches carried by the witness and the first informant. The prosecution case also is that a lantern was burning in the room where the deceased was shot. A kerosene lamp is also alleged to have been burning in the room, where the first informant was sleeping with his wife. Although, it is the prosecution case that these items which constitute the source(s) of light were examined and memos were prepared, these documents were not produced before the Court. The memos prepared are alleged to have been lost, although, there is no document on record evidencing such loss.

The surviving appellant is not the main accused. He is not alleged to have shot the deceased. The shot fired at the first informant has been assigned to the surviving appellant by PW-4, Jasoda, the daughter of the deceased. However, the first informant himself in his testimony and in his cross-examination has stated that he could not identify the person who fired at him. The pellet marks on the wall, from the shot fired at him (first informant) are not marked in the site plan.

However, since the source of light itself is in serious doubt nothing turns upon the testimony of PW-4, especially when the pellet injuries allegedly suffered by the first informant have not been proved as his injury report has not been exhibited.

Under the circumstances, noticed above, we do not find it a fit case for affirming the conviction of the second appellant.

There is yet another aspect of the matter. The appellant no.2 has been convicted under Section 396 IPC. However, none of the looted articles have been recovered from him nor any of the accused. In the absence of any recovery from or at the instance of the appellant, in our considered opinion, his conviction under Section 396 IPC, cannot be sustained.

Accordingly, we of the firm opinion that the prosecution has not been able to prove its case against the appellant no.2 beyond reasonable doubt. We are therefore, constrained to acquit the appellant no.2 of the charges against him.

Non Bailable Warrants had been issued against the appellant no.2 vide order dated 27.02.2018 but there is no report as to whether, the said non bailable warrants has been executed.

Under the circumstances, we not only allow the appeal, we also recall the order issuing non bailable warrants issued on 27.02.2018, in case they have not been executed.

In case, the non bailable warrants against appellant no.2 have been executed, he may be released forthwith as his conviction under Section 396 IPC is not sustainable and is being set aside.

The appeal is allowed, accordingly.

Let the lower Court record along with copy of the judgement be remitted back to the Court below, forthwith, for necessary compliance.

Order Date :- 10.2.2023

RKM