[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 310 OF 2006
MOHAMMAD MIAN ....APPELLANT
VERSUS
STATE OF U.P. ....RESPONDENT
WITH
CRL.APEAL NO. 282 OF 2006
JUDGMENT
HARJIT SINGH BEDI,J.
1. This judgment will dispose of Criminal Appeal Nos.310 of
2006 and 282 of 2006. They arise out of the following facts:
2. Mohammad Mian, one of the appellants herein, was
running a fair price shop in the outer portion of his house
situated in village Ferozpur, District Bareilly. At about 7 a.m.
on the 20th of April 1980 Iqrar Mohammad son of Firasat
Husain PW-2 went to the fair price shop to buy sugar but
Crl.Appeal No.310/2006 etc.
2
instead of supplying
2 kgs. of sugar as per the ration card, Mohammad Mian gave
only 1 Kg. Firasat Husain then went to Mohammad Mian’s
shop and remonstrated with him and asked him as to why he
had supplied only half the quantity of sugar that was due on
his card. Mohammad Mian, however, abused him and told
him that he would give only that quantity and he could take it
or leave it as he wished. Mohammad Mian immediately
thereafter fired a shot at Firasat Husain with his gun hitting
him on his thigh and as he turned backwards Mohammad
Mian’s son, Zamir Mian, fired at him with a country made
pistol hitting him on the upper right gluteal region on which
Firasat Husain fell down on the ground. On hearing the
sound of the firing, Riyasat Husain, father of Firasat Hussain
went out of his house and moved in that direction and on
seeing his son lying injured, he questioned Mohammad Mian
which resulted in a quarrel between them. Mohammad Mian
thereupon asked his sons Ahmad Mian and Shamim Mian to
kill Riyasat Husain on which Ahmed Mian picked up a gun
and Shamim Mian a country made pistol and rushed to the
Crl.Appeal No.310/2006 etc.
3
roof of their house
and as Riyasat Husain turned to move away, each of them
fired a shot at him in quick succession on which he fell down.
On hearing the sound of the firing, Sharafat Husain, PW-1 too
left his house and proceeded towards the scene of occurrence.
The incident was also witnessed by Sabir Husain, Mohd.
Aslam, Rahat Husain and Summeri PW-3, who too were going
to the shop for purchasing sugar. Sharafat Husain
immediately went to his father who was lying in a precarious
condition and gasping for breath and removed him to his
house but he succumbed to his injuries within a short time.
Firasat Husain, the injured was also brought from the place
where he lay. Leaving his father’s dead body and his injured
brother in the family home, Sharafat Husain left for Police
Station, Shahi at a distance of about 4 miles from village
Ferozpur and lodged the FIR at 9.10 a.m. It is the case of the
defence that the special report was delivered to the Magistrate
the next day i.e. the 25th April, 1980. After receiving the
information of the murder, Sub-Inspector Sri Nivas Sharma
immediately reached village Ferozpur and made the necessary
Crl.Appeal No.310/2006 etc.
4
inquiries and drew
the inquest report. He also dispatched the dead body for the
post-mortem examination. Firasat Husain was also sent to
the District Hospital for treatment. The police officer also
prepared the site plan and also collected blood stained earth
from two places, one portion from the scene of occurrence and
another from the house of the deceased where the dead body
had been brought. Firasat Husain was medically examined by
Dr. J.N. Bhargava at the District Hospital, Bareilly at 12.25
p.m. on the 24th April, 1980 with two injuries, one being a gun
shot wound entry and the other its exit. Riyasat Husain’s
body was also subjected to a post-mortem examination at 2.30
p.m. on the 25th April, 1980, and nine injuries were found
thereon, four gun shot wounds of entry and four of exit
whereas the 9th was an abrasion. On an internal examination
on the body, the humerus and a rib were found to be fractured
on account of the gun shot injury. On the completion of the
investigation, the accused i.e. Mohammad Mian and his sons
Ahmad Mian, Shamim Mian and Zamir Mian were committed
to the Court of Sessions for offences punishable under Section
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5
302 and 307 of the
IPC and as they pleaded not guilty, they were brought to trial.
3. The prosecution in support of its case, examined three
eye witnesses, Sharafat Husain PW-1, Firasat Husain PW-2
and Summeri PW-3, Dr. J.N. Bhargava, PW-4 who had
examined Firasat Husain for his injuries, Dr. K.S. Tiwari, PW-
5 who had conducted the autopsy on the dead body, PW-6
Sub-Inspector Srinivas Sharma the main investigating officer
and PW-7 Head Constable Raghvendra Pal Singh who had
recorded the F.I.R. and dispatched the special report to the
Magistrate. The accused denied the allegations leveled against
them and pleaded that they had been implicated in a false
case.
4. The trial court on a consideration of the evidence (and
while believing most of the prosecution story) held that the
charge against the accused under Section 302/34 could not
be made out as the medical evidence did not correspond to the
ocular version. All the accused were acquitted of this charge.
The trial court, however, held Mohammad Mian guilty for the
Crl.Appeal No.310/2006 etc.
6
offence punishable
under Section 307 of the IPC for having caused the gun shot
injury on the person of Firasat Husain and sentenced him to 6
years R.I., but acquitted the other accused of that offence as
well.
5. Aggrieved by the judgment aforesaid, the State preferred
an appeal assailing the acquittal of the accused whereas the
Mohammad Mian filed a separate appeal challenging his
conviction and sentence under Section 307 of the IPC. The
High Court acutely conscious of the fact that it was largely
dealing with an appeal against acquittal and the limitations
that went with it, re-appraised the evidence and observed that
the three eye witnesses, particularly the injured Firasat
Husain, could not be disbelieved. The Court noted that
though in the FIR Sharafat Husain had not stated that he had
witnessed the murder of his father, but the fact that the site
plan had been prepared at his instance showing that he had
witnessed the occurrence from near the `baithak’ of Chhotey
Crl.Appeal No.310/2006 etc.
7
Pradhan, he was
indeed an eye witness to the murder. The Court observed that
the distance between the house of the complainant party and
the accused was only 60 or 70 paces (which would make it
about 100 feet) and this short distance and the sequence of
events that preceded the firing made it clear that Sharafat
Husain too had witnessed the incident. The Court also found
that after receiving the firearm injury, Firasat Husain had
fallen at a distance of 10 feet from the fair price shop of
Mohammad Mian and he was, therefore, in an apparent
position to witness the fatal assault on his father. Likewise,
the Court observed that PW-3 Summeri was a trust worthy
witness as he too had seen the incident from the `baithak’ of
Chhotey Pradhan after being attracted by the altercation
between Firasat Husain and Mohammad Mian. The Court
finally concluded that the eye witness account could not be
faulted in any manner. The High Court then dealt with the
medical evidence vis-a-vis the ocular evidence and observed
that as per the prosecution story the fatal shots had been fired
at the deceased by Ahmad Mian and Shamim Mian from the
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8
roof of the house
which was about 10 feet in height. The Court observed that
merely because the wounds of entry and exit were either
parallel to each other or in one case the exit wound was
slightly higher than the wound of entry would not detract from
the other evidence as it could not be said with certainty as to
the posture which the deceased and the assailants were
applying when the shots had been fired. The Court also
observed that the FIR had been lodged promptly and the
special report also delivered within a reasonable time which
testified to the truthfulness of the prosecution story. The
Court, accordingly, set aside the order of the trial court
acquitting Mohammad Mian, Ahmad Mian and Shamim Mian
for the offence punishable under Section 302 read with
Section 34 of the IPC and sentenced each of them to
imprisonment for life. The Criminal Appeal filed by
Mohammad Mian challenging his conviction under Section
307 was also dismissed. It was also directed that the sentence
of the accused were to run concurrently. The two appeals
Crl.Appeal No.310/2006 etc.
9
mentioned above
have been filed impugning the judgment of the High Court.
6. Mr. Ranjit Kumar, the learned senior counsel for the
appellants, has raised several arguments during the course of
hearing. He has pointed out that the High Court had ignored
the basic fact that it was dealing with an appeal against
acquittal in so far as the charge of murder was concerned and
it could not be said that the judgment of the Trial Court was
so perverse or against the evidence that interference was
called for. He has further pleaded that the FIR had not been
lodged at its purported time but infact much later and then
ante-timed in the light of the fact that the special report, as
per the FIR itself, had been dispatched to the Magistrate on
the 25th of April, 1980 i.e. a day after the incident. He has,
accordingly, pleaded that this delay had been utilized by the
prosecution to involve the entire family of Mohammad Mian in
a false case, though the circumstances showed that neither
PW-1 nor PW-3 had been present at the spot. It has also been
emphasized that the medical evidence did not conform to the
Crl.Appeal No.310/2006 etc.
10
ocular testimony
leading to the conclusion that the incident had not happened
in the manner suggested by the prosecution.
7. Mr. Pramod Swarup, the learned senior counsel
representing the State of Uttar Pradesh, has, however,
controverted these submissions and has pointed out that the
distance between the house of the deceased and the shop and
house of the accused was only 70 paces or 100 feet and on
account of this very short distance and the time of the incident
being 7 a.m., the presence of the eye witnesses at home was to
be expected. It has also been pleaded that the presence of
Firasat Hussain who had been grievously injured with a
firearm could not, in any case, be disbelieved and in the light
of this fact even assuming there was some discrepancy in the
medical evidence vis-`-vis the ocular one, the same could be
ignored. It has, further, been submitted that there was no
delay in the lodging of the FIR or the delivery of the special
report in the light of the statement of Head Constable
Raghvendra Prasad Singh PW-7 who had deposed that the
special report had been dispatched to the Magistrate within a
Crl.Appeal No.310/2006 etc.
11
very short time, with
the result that there was no time to cook up a false story.
8. We have considered the arguments advanced by the
learned counsel for the parties. It will be noticed that the trial
court had given findings in favour of the prosecution on
virtually all aspects, but had ultimately acquitted the accused
of the charge of murder almost exclusively on the ground that
the medical evidence did not conform to or support the ocular
version. The High Court has, merely, reversed this aspect of
the trial court judgment and held that a case of murder was
also made out against three of the accused, that is the present
appellants. It is in this background that the entire matter
would have to be examined by us.
9. Undoubtedly, the prompt lodging of the FIR is a very
significant factor in any criminal prosecution. There are
several parameters by which the spontaneity of a F.I.R. and
the prosecution’s story as to the time at which it had been
lodged has to be adjudged, and one of the primary factors is
the time of the delivery of the special report to the Magistrate,
Crl.Appeal No.310/2006 etc.
12
as it is expected that
he being unconnected in any manner with the investigation or
the prosecution would be an independent person to endorse as
to the time that a copy of the FIR had been received by him. It
has come in the evidence that the incident had happened in
village Ferozpur at 7 a.m. on the 24th April of 1980. The FIR
(purportedly) had been lodged at Police Station, Shahi, about 4
km. away at 9.10 a.m. and as per the column in the statutory
form dealing with F.I.R’s, the copy of the special report had
been dispatched from the Police Station on the 25th April, 1980
to the Magistrate at Bareilly at a distance of 39 Kms..
Undoubtedly, this date, if accurate, would arouse great
suspicion about the time that the FIR had been lodged and
ipso facto some suspicion about the prosecution story as well.
We have, however, gone through the evidence of PW-7 Head
Constable Raghvendra Prasad Singh. This police official
categorically stated that the copy of the special report had
been dispatched from the Police Station on the 24th April, 1980
through Constable Mahesh and the said Constable had
returned to the police station at 9:15 p.m. on the same day
Crl.Appeal No.310/2006 etc.
13
after delivering the
special report and that both the departure and arrival reports
had been recorded in the daily diary of the Police Station. Mr.
Ranjit Kumar has, however, emphasized that the statement of
PW-7 was at variance with the entry made in the FIR, (as
noted above) and as such was an after thought. It is extremely
significant, however, that PW-7 was not even remotely cross-
examined on the apparent confusion in the time factor with
regard to the special report. We are, therefore, of the opinion
that no advantage can be taken by the defence on account of
this discordance, if any. We must therefore take it as proved
that the incident had indeed happened at 7 a.m., the FIR had
been recorded at 9.10 a.m. and the special report had been
delivered to the Magistrate the same day.
10. We now examine the other evidence in the above
background. It bears notice that PW-2 Firasat Husain was
gravely injured in the incident. His presence, therefore,
cannot be doubted. We have gone through the medical
evidence with respect to his injuries and find five gun shot
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14
wounds of entry on
the spine with a corresponding wound of exit over the right
buttock. The doctor had examined Firasat at 12.25 p.m. on
the 24th April, 1980 and opined that the injuries could have
been suffered within six hours. This corresponds fully with
the prosecution story. It is this injury which has led to the
conviction of Mohammad Mian under Section 307 of the IPC.
We also see that the presence of PW-1 Sharafat Husain, the
author of the FIR, can also not be doubted. It is true that in
the FIR recorded at his instance, he does not specifically
allude to his presence at the spot. A perusal of the FIR,
however, reveals that read as a whole, it makes out that he
was indeed an eye witness. We have examined the evidence of
PW-6 Shri Nivas Sharma, one of the investigating officers, who
had prepared the site plan and had also carried out the
preliminary investigations at the site. He deposed in his
examination-in-chief that he had also recorded the statement
of Sharafat Husain at the spot and had prepared the site plan
on his instructions and had also shown (in the site plan) the
place from where he had seen the incident. When the
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15
statement of this
witness is read in the background of the site plan, it is clear
that Sharafat Husain was indeed present at the crucial time.
Mr. Ranjit Kumar has also drawn our attention to the evidence
of Summeri PW-3, the third eye witness, who is said to be a
totally independent one. He has referred us to his cross-
examination where he says that he had not made any
statement to the Darogaji under Section 161 of the Cr.P.C. To
our mind, this appears to be an attempt to help the defence as
the Darogaji referred to i.e. PW-6 categorically stated that he
had recorded his statement on the date of the murder. We
also see from the site plan that the presence of PW-3 also
figures as having seen the murder from outside the house of
Chhotey Pradhan, a very short distance away. To our mind,
therefore, the presence of this witness can also not be
doubted. Concededly, PW-6 did not record the statement of
any of the persons of the immediate neighbourhood. He
admitted to this fact in his cross-examination. We cannot,
however, ignore the sad but basic truth that so-called
independent witnesses tend to stay far away and are not
Crl.Appeal No.310/2006 etc.
16
willing to come forth
as they often face grave consequences. The prosecution has
therefore, perforce, to fall back on the testimonies of witnesses
who are friends or family members of the victim. In the
present case, we find that the house of the complainants was
only 100 feet from the house of accused and the incident
happened about 10 feet away from the house of the accused.
As already mentioned above, the presence of all the witnesses
was, therefore, natural at the time when the incident
happened and that in any case Firasat Husain was a stamped
witness, against whom no suspicion could be raised.
11. We have also gone through the depositions of the three
eye-witnesses. They have categorically stated that there was
enmity between the parties since long. It appears that the
dispute with regard to the 1 Kg. sugar had merely
precipitated the festering animosity. All the witnesses have
stated as to the manner in which first Mohammad Mian had
shot Firasat Husain and when his father had come forward to
see what had happened, he had been shot dead by the other
Crl.Appeal No.310/2006 etc.
17
two accused from
the roof of their residential house. The learned counsel for the
appellants has, however, referred us to some inconsistencies
inter se the statements of these three witnesses. To our mind,
they are so insignificant that they call for no serious
discussion as they are bound to appear in the statement of
any witness.
12. The trial court had acquitted the accused of the charge of
murder primarily on the ground that the medical evidence did
not support the ocular version of the incident. To our mind,
the reasons given by the trial court were not well considered.
It has been observed by the Trial Court thus:
“Moreover, the medical evidence also does not
fit in the prosecution story in this case even if it is
presumed although reluctantly that the fatal shots
were fired from the roof top by the accused Ahmad
Mian and Shamin Mian. According to Dr.
K.S.Tiwari who conducted the post mortem
examination of the deady body of Riasat Husain
there were four gun shot wounds of entry on the
back of chest of the deceased which are injuries
no.1 to 4 in the post mortem examination report
Ex. Ka-3. Their corresponding wounds of exit are
injuries no.5,6,7 and 8 respectively. According to
PW5 Dr. K.S. Tiwari the exit wounds of injury No.1
is slightly higher than the wound of entry. This
particular injury cannot be caused from roof top.
Crl.Appeal No.310/2006 etc.
18
The witness
PW.1 Sharafat
Husain stated that the height of the roof from
where the fatal shots were fired is about 10′ and
there is also a Mundair thereon about 1 =’ or 2′
high. This witness also stated that the deceased
Riasat Husain was at a distance of 6 or 7 stops
from the door of the shop from the roof of which
the accused Shamim Mian and Ahmad Mian fired
the shots. This topography makes it certain that
injury No.1 corresponding to its wound of exit
injury no.5 cannot be caused from the roof top.
The witness PW5 Dr. K.S.Tiwari further stated that
injury No.2 and injury No.4 have their exit wound
at the same level. This witness further says that
the exit wound of injury No.3 is slightly on a lower
plan. Thus the position of the wounds of entry and
exit is such that it is difficult to believe that the
firing in which Riasat Husain (illegible)was caused
from the roof top as alleged by the prosecution. It
appears that the firing actually took place from the
shop itself and the two accused Ahmad Mian and
Shamim Mian were elevated to the roof top simply
to be seen by the witnesses from point `F’ and in
this process the prosecution evidence lost its
credibility and led the court only to a confusion
which was aggravated all the more by the contents
of the FIR Ex.Ka01. It became and doubtful under
these circumstances to ascertain which of the two
sets of accused fired the fatal shot. The court
cannot presume that it were the accused
Mohammad Mian and Zamir Mian standing at the
shop fired the fatal shots because they are not
stated by the witnesses to have fired any shot at
Riasat Husain deceased. The other set of the two
accused Ahmad Mian and Shamim Mian are
unautmously alleged to be at the roof top and first
alleged to have fired at Riasat Husain at his chest
and then at his back but by medical evidence it is
Crl.Appeal No.310/2006 etc.
19
not probable
that the fatal
shots were at all fired from the roof top.”
13. To our mind, these observations are meaningless in the
light of the ocular evidence when read in the context of
incident as it happened. The post-mortem examination of the
dead body was conducted by PW-5 Dr. K.S.Tiwari on the 25th
April, 1980 at 2.30 p.m. He had found the following injuries
thereon :
“(1) Gun Shot wound of entry 1 cm x 1 cm x
chest cavity deep on back of scapula lateral end,
margins inverted and ragged. No blackening or
tattooing present. Under the injury humerus bone
was fractured on upper part.
(2) Gun shot wound of entry 1 cm x 1 cm x
cavity deep on left side back of chest 5 cm below
injury No.1. Margins inverted and ragged. No
blackening or tattooing present.
(3) Gun shot wound of entry 1 cm x 1 cm x
cavity deep on left side back of chest 8 cm away
from middle and 19 cm below root neck. Margins
inverted and ragged. No blackening or tattooing
present.
(4) Gun shot wound of entry 1 cm x 1 cm x
caity deep on left side back 10 cm below injury
No.3.
(5) Gun shot wound of exit 1.2 cm x 1 cm on
the front of left shoulder 2 cm below top of
shoulder corresponding to injury No.1, margins
everted.
Crl.Appeal No.310/2006 etc.
20
(6) Gun
shot wound of
exit 1.2 cm x 1.1. cm on front of chest left side
upper part 4 cm above left nipple corresponding to
injury No.2 margins everted.
(7) Gun shot wound of exit on left side chest
6.5 cm below left nipple corresponding to injury
No.3, margins everted.
(8) Gun shot wound of exit 1.2 cm x 1 cm on
front of chest left side 2.1 cm from midline and 19
cm from umbilicus corresponding to injury No.4,
margins everted.
(9) Abrasion 2 cm x 2 cm on outer aspect of
left buttock 10 cm below anterior superior iliac
spine.”
14. The doctor opined that the exit of injury No.1 was at a
marginally higher level than the wound of entry, that the exit
and entry wounds of injury No.2 were at the same level
whereas the exit wound of Injury No.3 and 4 were at a slightly
lower level than the wounds of entry. The doctor also opined
that there were fractures of the left humerus bone, the 5th rib
on the right side and the 7th costal cartilage. We must observe
that country made weapons had been used and the
performance of these weapons being unpredictable and
uncertain, the trajectory of the bullet alone would not be a
safe basis for assessing the entire evidence more particularly
Crl.Appeal No.310/2006 etc.
21
as the projectiles
could have been deflected from their true path by the bones or
tissues that came along the way. This is what Dr. Modi has to
say in Modi’s Medical Jurisprudence and Toxicology, Twenty-
third Edition at page 724: Direction
from which the Weapon was fired.
“The question regarding the direction of fire,
whether from right to left or from front to back is
of medico-legal importance. To ascertain this, it
is necessary to know the position of the victim at
the time of the discharge of the bullet, when a
straight line drawn between the entrance and exit
wounds and prolonged in front generally
indicates the line of direction. In some cases, it
is difficult to determine the direction as the bullet
is so often deflected by the tissues that its course
is very irregular, also when the bullet wobbles.”
There is yet another circumstance which is extremely
relevant. It is the case of the prosecution that the gun shots
had been fired from the roof of the house of Mohammad Mian
which was 10 or 12 feet high. It has come in the statements of
Sharafat Husain and Firasat Husain that the firing was from a
distance of 10 to 12 steps which would mean 15 feet. This
clearly corresponds to the nature of the injuries found on the
Crl.Appeal No.310/2006 etc.
22
dead body. The trial
court seems to have been greatly influenced by the fact that
the prosecution story that the shots had been fired from the
roof was deliberately created by the prosecution as otherwise
Mohammad Mian’s house would not have been in their direct
line of sight. We have, however, considered this aspect in the
light of the statement of PW-1. He candidly admitted that the
shop of Mohammad Mian was not visible from their house as
there was a mosque in between but after 10 feet or so beyond
the grave located near the gate, the shop of the accused could
be seen. In this situation, we find that the normal tendency of
a witness who had heard the sound of repeated gun shots
close to his house would be to move in that direction. This is
what Sharafat Husain apparently did as after hearing the
sound of the first shot fired at Firasat Husain, both the
deceased and Sharafat had been attracted towards that way
leading to the murder. We also see from the site plan which
had been prepared contemporaneously that the gun shots had
been fired on the deceased from the roof of the house. The
finding of the trial court, therefore, that the prosecution had
Crl.Appeal No.310/2006 etc.
23
changed the location
of the two accused to bring them on the roof, was speculative.
We are, therefore, of the opinion that no fault can be found
with the judgment of the High Court. The appeals are,
accordingly, dismissed.
……………………………..J.
(HARJIT SINGH BEDI)
……………………………..J.
(CHANDRAMAULI KR. PRASAD)
DECEMBER 16, 2010
NEW DELHI.