Mohd. Shafique Pahalwan And Two … vs State Of Madhya Pradesh on 21 August, 2000

Madhya Pradesh High Court
Mohd. Shafique Pahalwan And Two … vs State Of Madhya Pradesh on 21 August, 2000
Equivalent citations: 2001 (5) MPHT 238
Author: C Bhawani Singh
Bench: B Singh, A Mishra


ORDER

Bhawani Singh, C. J.

1. This appeal is directed against the judgment dated February 20, 1997, passed by Additional Sessions Judge (IV), Bhopal, in Sessions Trial No. 62/88. The appellant No. 1 – Mohammed Shafique Pahalwan has been convicted for offence under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs. 1,000/-, and in default of payment of fine, to undergo simple imprisonment for three month. He has also been convicted under Section 307 of the Indian Penal Code and sentenced to rigorous imprisonment for five year and fine of Rs. 500/-, and in default of payment of fine, to undergo simple imprisonment for one month. The appellants No. 2 and 3, namely, Hafiz Pahalwan and Irphan, have been convicted for offence under Sections 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs. 1,000/- each, and in default of payment of fine, to undergo simple imprisonment for three month each. The appellant No. 2 Hafiz Pahalwan has also been convicted under Sections 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five year and fine of Rs. 500/- and in default of payment of fine, to undergo simple imprisonment for one month. The appellant No. 3 – Irphan has also been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and fine of Rs. 500/-, and in default of payment of fine, to undergo simple imprisonment for one month. The narration of material facts may now be made.

2. Raffoo alias Rafique Pahalwan, brother of accused Mohd. Shafique and accused Hafiz Pahalwan was murdered at Bhopal on 25-7-1986. First Information Report of the said incident was lodged by accused Shafique at Police Station Hanumanganj, on which Crime No. 647/86 was registered. Iftedar (P.W. 4) and Kazi Sirajuddin (deceased in the present case) were accused in that case.

3. The prosecution case is that the murder trial of Raffoo alias Rafique Pahalwan’s case was fixed on 8-6-1987 in the Court of Additional Sessions Judge, Bhopal. The deceased Kazi Sirajuddin came to the Court to attend the case along with his son Iftedar (P.W. 4), brother in laws Umar Pharooque Sadi (P.W. 10) and AS. Bilgrami (P.W. 27) and the nephew Rais Wali (P.W. 8). The case was adjourned since the Presiding Officer was on leave. When these persons proceeded towards maingate, the accused Mohd. Shafique fired at Kazi Sirajuddin, which hit in his chest and another shot by accused Irphan hit Iftedar (P.W. 4). It is also alleged that other shots fired hit Kunjilal (P.W. 7) and Balram (P.W. 31). Accused Sanna alias Sageer Ahmed stands acquitted while accused Seharyar Ali Madni died during the course of trial.

4. During the course of investigation, sequel to registration of First Information Report, dead body of Kazi Sirajuddin was subjected to autopsy, statements of witnesses recorded and simple soil taken into possession, apart from that which was smeared with blood.

5. Accused Mohd. Shafique and Irphan were arrested on 9-6-1987 while accused Hafiz Pahalwan was arrested on 23-6-1987 and accused Sanna alias Sageer was arrested on 6-9-1987. At the time of arrest, revolver and six round of cartridges were seized from the possession of accused Mohd. Shafique. Statements of Iftedar (P.W. 4), Umar Farooque (P.W. 10) and A.S. Bilgrami (P.W. 27) were recorded under Section 164 of the Code of Criminal Procedure, 1973.

6. After completion of investigation, challan was presented against the accused in the Court of Chief Judicial Magistrate, 1st Class, Bhopal. It was committed to the Court of Sessions Judge, Bhopal, who transferred the same to the Court of Additional Sessions Judge (IV), Bhopal, for trial.

7. The accused denied the commission of crime. Accused Mohd. Shafique and Irphan stated that they are innocent and have been implicated falsely. Accused Hafiz Pahalwan stated that he was suffering from heart disease before the occurrence. On the date of occurrence, he was at Patan in connection with supply order from the Bank and delivered the same on 8-6-1987. In support, he furnished a bill and receipt of the Bank Work Order. There, he fell ill and treated himself for heart disease and produced discharge document of Victoria Hospital dated 22-6-1987. He has also produced document showing that he was Managing Director of Max Monar. Accused Sanna alias Sageer Ahmed stated that he was at Hyderabad on the date of occurrence, therefore, he was falsely implicated.

8. The prosecution examined 32 witnesses. Out of them, nine are eyewitnesses. Dharmendra Verma has been examined as Court witness. Iftedar Azam (P.W. 4), Kunjilal (P.W. 7) and Balram (P.W. 31) were injured persons.

9. In defence, two witnesses, namely, Shiv Singh Thakur and Suresh Kumar Tiwari have been produced.

10. The Trial Court acquitted the accused Sanna alias Sageer Ahmed for prosecution failing to show his presence at Bhopal and participation in the crime. It was found that he was at Hyderabad on the date of occurrence as stated by him. Another accused Seharyar Ali Madni died during the course of trial. Accused Mohd. Shafique Pahalwan, Hafiz and Irphan have been found guilty for the offence they were charged and punished to various terms of imprisonment mentioned in the preceding part of this judgment. Therefore, the Trial Court judgment has been challenged by the accused in this appeal on number of grounds.

11. Sarvashri Rajendra Singh and J.P. Gupta, Senior Counsel, contended that the prosecution case suffers from serious infirmities. The prosecution did not associate independent witnesses though available since the incident took place at a crowded place. To involve the accused and secure their conviction, relation witnesses have been produced in support of the case. However, there is complete failure to substantiate that the crime was committed by none other than the accused.

Shri G.S. Ahulwalia, learned Government Advocate for the State, submitted that the version of relation witnesses cannot be discarded on the ground of relationship, if otherwise dependable. Since these witnesses were present at the time of occurrence, they could depose what actually happened. The prosecution has also produced independent witnesses in the case, therefore, the said allegation is not sustainable.

12. Before dealing with the version of relation witnesses, a reference may be made to some important independent witnesses of the prosecution. Kunjilal (P.W. 7) and Balram (P.W. 31) were part of the crowd at the place of occurrence. They received bullets injuries. Kunjilal (P.W. 7) states that he did not see the accused firing nor he saw, who shot at him. Although he has been declared hostile, but nothing substantial could be gathered by the prosecution from his cross examination. He states that 4-5 thousands people had gathered there and they started running here and there. He did not see any one running from place of occurrence but people were saying that killer was running away. Balram (P.W. 31) also states that he did not know, who hit him by bullet. He did not know who fired the shot nor he knew that the persons ran away. He did not know how many shots were fired.

13. D. Verma (Court Witness No. 1), Advocate, was with the accused in the Court. He reached the spot after firing had taken place and the deceased Kazi Sirajuddin had been shifted to the hospital. The case was fixed for presence of the accused and not for recording of evidence. He could not say whether accused were present in the Court in that case. He did not hear the sound of firing. When he came to the Court and remained there, he did not see the accused in the Court. Thus, these independent witnesses have not supported the prosecution, which could gather only these independent witnesses out of 500-1000 advocates, clients, clerks, typists, stamp vendors, S.TD. Boothe Owner etc., available at the spot and fails to give satisfactory explanation, why it did not do so.

14. A.S. Bilgrami (P.W. 27) is brother-in-law of the deceased and maternal uncle of Iftedar Azam (P.W. 4), son of the deceased Kazi Sirajuddin. Umar Farooque Sadi (P.W 10) is younger brother of A.S. Bilgrami (P.W. 27). Mohd. Rais Wali (P.W. 8) is cousin of Iftedar Azam (P.W. 4) and the deceased was his maternal uncle.

15. On the day of occurrence, deceased Kazi Sirajuddin and Iftedar Azam (P.W 4) were to face trial for death of Raffoo Alias Rafique Pahalwan, brother of the accused Mohd. Shafique and Hafiz Pahalwan. The case was fixed for presence of the accused; therefore, the presence of the relation with him was not necessary. Hence, absence is ruled out by their contradictory statements whether the accused were present at the main gate when they were holding fire arms, how many and of what nature, how the firing took place, how many shots were fired, who fired from which direction they were fired, how many accused participated, how they left the place, who followed them, who attended the deceased and carried him to the hospital Only statement, which seems to be, common, is that the deceased was hit in the chest, which has been contradicted by the medical evidence.

A.S. Bilgrami (P.W. 27) could not lift the deceased alone nor could he do so with Iftedar Azam (P.W. 4) called to the place so that they could pull him towards the gate for being shifted to the hospital in autorickshaw. This version is not supported by Iftedar (P.W. 4). A.S. Bilgrami (P.W 27) further states that he heard the sound of firing, but did not see any person doing so. When he reached the place, people had scattered thereby Contradicting his statement under Section 161 of the Code of Criminal Procedure that from front, the accused Mohd. Shafique, Hafiz, Irphan and Seharyar Ali Madni came with revolver in their hands. He was declared hostile and subjected to cross examination by the prosecution. He stated that Mohd. Shafique did not fire in his presence nor the deceased received bullet in his presence. Similarly, Irphan did not fire in his presence nor at the injured persons. Nothing happened in his presence.

Umar Farooque Sadi (P.W. 10) states that he heard bullet firing, but did not understand who fired it. A boy was running out, but he could not recognise him. He followed him and when he came back, he was told that bullet had hit his brother-in-law, who had been taken to hospital. He did not see the accused. He has been declared hostile and confronted with the statement given under Section 161 of the Code of Criminal Procedure. He denied having given that statement to the Police and stated that the Police told him that the incident happened that way.

Mohd. Rais Wali (P.W. 8) states that firing took place when they came to the ground floor from stairs and the deceased was hit by bullet. He fell down with hand on the chest. He saw Shivali and Farooque Sadi running from behind the main gate chasing somebody. He ran towards those people, but they sat in autorickshaw and ran away. When they were running towards gate, they realised that some one was firing at them from behind. After turning back, they could not find the person due to crowd. He did not know who fired at the deceased, since they were at sufficient distance. This witness has also been declared hostile. He states that he was not questioned by the police. Therefore, he denies his statement recorded by the Police that he chased the accused and that all the four accused had revolvers and resorted to firing. Whatever Police told him, he gave that statement. The incident, as narrated, had taken place in his presence. He did not see the accused firing nor did he see the fire arms in their hands. He did not see them running away in autorickshaw nor could he recognise those sitting in autorickshaw due to distance and for reason that he did not know them.

16. Shri G.S. Ahluwalia, GA, submitted that eye-witnesses are truthful and natural witnesses, therefore, their version has to be accepted despite having been declared hostile. Reliance is placed on the decision of the Apex Court in AIR 1991 SC 1519 (Alam and Ors. v. State of M.P). It is further submitted that minor contradictions in the statements of witnesses are no ground to reject the entire testimony. Reliance is placed on the decision of Apex Court in AIR 1988 SC 696 (Appabhai v. State of Gujarat) in which the Apex Court in Para 13 said:

Para 13 : On the second contention, the learned counsel highlighted many of the contradictions in the evidence of Devji (P.W. 4) as against his previous statement; one recorded by the Executive Magistrate (Exh. 66) and another by the Police during the investigation. We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the Police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately, he has survived. He must, therefore, be considered as the best eye-witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embelishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagmohan Reddy, J., speaking for this Court in Sohrab v. State of M.P (1972 Cri. LJ 1302 at 1305 = AIR 1972 SC 2020 at p. 2024), observed :

“This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embelishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.”

Learned counsel also placed reliance on the decision of Apex Court in AIR 1991 SC 1853 (Khujji v. State of M.P) and submitted that the evidence of hostile witnesses cannot be treated as effaced or washed off the record altogether. Evidence, which is otherwise acceptable, can be acted upon. We do not subscribe to the submissions advanced by the learned counsel for the State. Reproduction of evidence of these witnesses clearly points out massive contradictions as to essential and material parts of the prosecution case. Presence of relation witnesses was not possible on that day as the case was not against them, only the presence of the accused was required. This conclusion gains support from the conflicting statements given by these witnesses in this case. Such contradictory statements would not make them truthful and natural witnesses with regard to the incident and essential parts thereof. It is not only difficult but also hazardous to place reliance on their testimony for connecting the accused with the crime. No part of their testimony can be usefully utilised in favour of the prosecution and against the accused. True, it may be that the statements of hostile witnesses should not be effaced or washed off the record altogether, but when the statement on which the prosecution wants to rely, is completely off-set by the statement on which he has been declared hostile, no reliance can be placed on the version of the hostile witness; even the independent witnesses examined by the prosecution have not supported it. The legitimate conclusion is that their versions have seriously damaged the prosecution case as thoroughly weak, shaky, contradictory, unsatisfactory and undependable. Rightly, the Trial Court has not placed reliance on their statements.

17. The prosecution case now hinges on the sole testimony of Iftedar Azam (P.W. 4). He is son of the deceased and injured in the incident. Therefore, his presence at the spot cannot be ruled out. Shri G.S. Ahluwalia, GA, contended that the statement of this witness cannot be ignored since it is established that he was present on that occasion and the incident took place in his presence. Pre-existing enmity between the parties is rendered insignificant. The reference is made to AIR 1994 SC 1624 (Brijpal Singh v. State of U.P.) to butters the submissions, unless good reasons are shown, such testimony of eye witnesses otherwise credible cannot be ignored on the ground of relationship. Learned counsel submitted seeking assistance from AIR 1998 SC 2903 (Rajinder Singh v. State of Bihar).

18. Shri J.P. Gupta, learned Senior Advocate, vehemently contended that the evidence of Iftedar Azam (P.W. 4) is highly interested, inimical and actively partisan in character. Apart from contradicting himself in material particulars, he is belied by medical evidence. With a view to ensure the conviction of the accused, he has modulated his version to fall in line with the medical evidence and other surrounding circumstance. He is totally unreliable; therefore, his statement cannot be acted upon. Alternatively, assuming that his statement is partly reliable and partly unreliable, it cannot be acted upon unless corroborated in material particulars by independent evidence which is not forthcoming in this case, therefore, his statement has to be rejected. The Trial Court has committed error by accepting his statement erroneously resulting in conviction of the accused. This happened due to improper appreciation of evidence and other material on record otherwise no conviction could be founded on the testimony of interested and unreliable witness. Shri J.P. Gupta, Senior Counsel, placed reliance on AIR 1957 SC 614 (V. Thevar v. State of Madras), in which the Apex Court said that (paras 11 and 12):

Para 11: ………If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established, on the testimony of a single witness, even though a considerable number of witnesses may be forth coming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

“Para 12: In the first category of proof, the Court should have no difficulty in coming to its conclusion either way – it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial…….”

In AIR 1973 SC 2622 (Shivali v. State of Maharashtra), the Apex Court said in Para 19 that:

“Para 19: Now let us sum up the whole case in the light of the evidence we have found to be of worth. We must observe that even if a witness is not reliable, he need not be false and even if the police have trumped up one witness or two or has embroidered the story to give a credible look to their case that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. Informing ourselves of these important principles, we analyse the evidence found good by us. In our view there is only one eye witness, P.W. 5, Vilas. Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given on sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs. We are persuaded that the P.W. 5 is a witness for truth but in view of the circumstances that he is interested, we would still want corroboration in this case to reassure ourselves. And what we have in this case.

In AIR 1976 SC 560 (Badri v. Rajasthan Goswami), the Apex Court said in Para 18 that:

Para 18 : ……..If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony.”

In AIR 1979 SC 1408 (Suraj Mal v. State (Delhi Administration)), the Apex Court said in Para 2 that:

“Para 2; ……..It is well settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.”

Therefore, plurality of witnesses may not be insisted upon for proof of the crime where the crime was committed in the presence of sole witness, whose version is satisfactory and dependable otherwise crime may go unpunish, but where the crime has been committed in presence of large number of persons, corroboration is required by production of more witnesses satisfactorily supporting each other on the material aspect of the case. The requirement of corroboration is necessary where the prosecution has cited relation witnesses and evidence of enmity between the parties is established.

19. Iftedar Azam (P.W. 4) is accused along with the deceased for murder of Raffoo alias Rafique, elder brother of accused Mohd. Shafique in this appeal. This Crime No. 647/86 had taken place on 25-7-1986 registered at Police Station, Hanumanganj at the instance of accused Mohd. Shafique and Crime No. 254/87 was registered on 3-3-1987 at the same Police Station for offence under Sections 307/109 of the Indian Penal Code at the instance of Iftedar (P.W. 4) against the present accused Mohd. Shafique, Hafiz and another person Aslam, but they have been acquitted. The prosecution alleges that deep rooted enmity existed between the parties, and rightly so, since evidence unerringly points out this position, therefore, the contention of Shri J.P. Gupta, Senior Counsel, that it was on account of enmity and lodging of report by Mohd. Shafique in Crime No. 647/86 against Iftedar Azam (P.W. 4) and the deceased Kazi Sirajuddin at Police Station, Hanumanganj that the accused Mohd. Shafique has been assigned the main act of firing at the deceased, has to be accepted.

Iftedar Azam (P.W. 4) is a highly interested inimical and partisan witness. He has changed his version, from time to time, to suit the prosecution case and adjusted with the medical evidence. His version sustains the defence allegation against him. His evidence is highly interested, inimical and partisan in character. He has contradicted himself in material particulars. His evidence is belied by the medical evidence. He can neither be corroborated by his previous statement nor by independent witness. He has admitted the enmity with the accused and relationship with the deceased. He is not supported by other eye witnesses to the offence. His effort has been to involve the accused and name of Sanna alias Sageer Ahmed can be mentioned in this regard whose name has also been mentioned by him as one of the accused, but he was found at Hyderabad on the day of occurrence. He admitted that when the police arrived at the scene and he was asked about the persons, he suspected having committed a crime. He stated that he did not tell the Doctor about any name nor about the person, who fired the bullet, but told the Police that there existed old enmity with the accused and it appeared that the act may have been committed by them. Almost in the same situation, the Apex Court in AIR 1981 SC 1230 (Sev v. State of Tamil Nadu), said (in para 3):

“Para 3 : …….. All the eye-witnesses are partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence to the peculiar circumstances of the case. Where the entire evidence is of a partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the Court to sift the evidence becomes very difficult indeed….”

20. In the First Information Report, varacity of which may be discussed later, Iftedar Azam (P.W. 4) states that the accused were holding pistol and Mohd. Shafique fired bullets which hit the deceased in the chest. Accused Irphan fired bullets from pistol and hit him. He changed his version and stated that the revolver was used to suit the prosecution case since revolver was recovered from the accused with six cartridges. Similarly, his version was that bullets hit the deceased in the chest, but when it was found that the deceased was hit only by one bullet that too in the back, he changed the version and stated that the deceased moved the side with the result that the bullet hit the deceased in the manner it was found. Further, perusal of other parts of the statement demonstrates quite clearly that his conduct displayed sense of enmity against the accused. See AIR 1990 SC 1628 (B.N. Singh v.. State of Gujarat).

21. It was contended by the learned counsel for the accused that the prosecution has bungled in the registration and investigation of the case. First Information Report has been ante timed, otherwise the first information received at the Police Station did not mention the names of the accused, as the perpetrators of the crime. Occurrence took place on 8-6-1987 at about 11.30 a.m. The Police Station was informed by the Constable Rishi Raman through telephone at 11.15 a.m. at the instance of the Court Superintendent. It is recorded at Rojnamcha Sanha No. 690. It is First Information Report pointing out commission of cognizable offence. ASI Devendra Shukla and Head Constable Chhabiram commenced the investigation. Superintendent of Police was informed and Constable Raghuveer was deployed to inform the Town Inspector.

Second information was received at 1 p.m. from Hamidia Hospital recorded in Rojnamcha Sanha No. 700. It was conveyed by telephone attendant R.B. Kaushik that during the duty of Dr. Vijay Jalota, the deceased and injured Iftedar Azam (P.W. 4) were brought to the Hospital. The deceased had gunshot injury on the chest and Iftedar (P.W. 4) in left hand while Kunjilal and Balram had injuries on their person by unknown persons. This information also discloses commission of cognizable offence, but does not name the accused, therefore, it has not been registered as First Information Report, learned counsel for the accused submit.

22. The prosecution case is that the Inspector Shyamlal Yadav (P.W. 32) was in Hamidia Hospital and he recorded the statement of Iftedar Azam (P.W. 4). He recorded Dehati Nalishi (Ex. P/6) at the instance of Iftedar Azam (P.W. 4). It was sent to the Police Station through constable Raghuveer Singh, who had informed him about commission of crime, and First Information Report (Ex. P-4) was registered at 12.15 noon on 8-6-1987. Learned counsel for the State contended that the First Information Report was not recorded on the basis of Rojnamcha Sanha No. 690 at 11.15 a.m., since description was not given. Next in the point of time was the report received at the Police Station on the basis of Dehati Nalishi (Ex. P-6) of Iftedar Azam (P.W. 4) but it is. hit by Section 162 of the Code of Criminal Procedure and is not inadmissible in evidence and the report received by the Police directly should be treated First Information Report in this case.

23. Learned counsel for the accused submitted that First Information Report (Ex. P-4) has been ante timed, which is clearly established from the evidence in this case. The investigation has not been fair and the Investigating Officer has committed serious violations of law and procedure making the investigation wholly unfair and tainted so liable to be rejected and the accused acquitted of the charges. In AIR 1997 SC 940 (Sunil Kumar v. State of M.P), the Apex Court said (in para 20):

“Para 20: While on this point, we wish to mention however that the High Court erred in not treating the telephonic information that P.W. 3 gave to the police station as the FIR. It is not disputed that P.W. 3 did give an information to the police station wherein he stated that one person had been killed and another person had been dismembered and it was recorded accordingly in the diary book (Ex. P-17). The same entry discloses, notwithstanding the absence of the names of the assailants therein, a cognizable offence and indeed it is on the basis thereof P.W. 6 initially started their investigation. Ext. P-17 will, therefore, be the FIR and the statement of Ramesh (Ext. P-2) which was recorded by him in course of the investigation is to be treated as one recorded under Section 161 Cr.P.C. This conclusion of ours, however, does not in any way affect the merits of the prosecution case for we find that immediately after P.W. 1 was taken to the hospital his statement was recorded by a recorded as a dying declaration which, consequent upon his survival, is to be treated only as a statement recorded under Section 164, Cr.P.C. and can be used for corroboration or contradiction. This statement recorded by the Magistrate at the earliest available opportunity clearly discloses the substratum of the prosecution case including the names of the appellants as the assailants and there is not an iota of materials on record to show that this was the upshot of his tutoring. On the contrary, this statement was made at a point of time when P.W. 1 was in a critical condition and it is difficult to believe that he would falsely implicate the appellants leaving aside the real culprits. In view of the observation of the Trial Court that his evidence was discrepant we carefully looked into the same and found that there was only some minor inconsequential contradictions which did not at all impair his evidence. Then again as already noticed, the evidences of the doctors fully supports his version of the incident. Another related aspect of the matter is the lodging of the complaint by P.W 1 and his brother before the Superintendent of Police (Ext. P-l) (which we have earlier referred to) wherein they sought for police action against the threat meted out by the appellate that they would cut them to pieces a threat which was brutally (and literally) translated into action.”

In 1977 Cri.LJ. 107 (Raberi Karsan Cova and Ors. v. The State of Gujarat), it has been held that:

“Para 4 ; In Soma Bhai v. State of Gujarat (AIR 1975 SC 1453 = 1975 Cri.LJ. 1201), the principle which has been laid down is that the first information is the earliest report made to the police officer with a view to his taking action in the matter. If the receipt of the information of an incident by the police requires the police to take an action in the matter or to investigate into it, then certainly it becomes the information of a cognizable offence. In the instant case, the information which had reached Mehsana Police showed that some incident had taken place in which the deceased had become unconscious and which required police to take action. We are, therefore, of the opinion that the information which was given by the Head Constable Prakash to PW. Batuksing was an information of a cognizable offence and, therefore, the first information within the meaning of Section 154 Criminal Procedure Code which led to action being taken by the Police. It was after this information was received that the complaint, Ex. 49, was recorded by the police. Since the incident was reported to the police earlier than the complaint, Ex. 49, was recorded and since the police had taken action in the matter, any other information received by the police subsequently would be hit by Section 162 of the Code of Criminal Procedure. We are, therefore, of the opinion that the learned trial Judge was in error in holding that the complaint, Ex. 49, was not hit by Section 162 Criminal Procedure Code and was admissible in evidence. In our opinion, since it was hit by Section 162 Criminal Procedure Code, it was inadmissible in evidence and could not have been exhibited by the learned Trial Court. We have, therefore, ruled it out of our consideration.”

In 1995 Cri.LJ. 457 (Meharaj Singh v. State of U.P.), the Apex Court in Paras 12 and 13 said :

“Para 12: FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the Courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report prepared under Section 174 Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR. and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante timed and had not been recorded till the inquest proceedings were over at the spot by P.W. 8.”

Para 13: It appears that it was a blind murder and one of the eye-witnesses were actually present at the scene. The ante timing of the FIR was obviously made to introduce eye witnesses to support the prosecution case. We may demonstrate this by noticing that though P.W. 3 Smt. Kamlesh the widow of the deceased claimed that she was present with her husband at the time of the occurrence, her conduct was so unnatural that not only she did not try to save her husband by trying to provide a cover but even after her husband fell down and was inflicted repeated injuries with the knife by the appellant Mehraja Singh, she did not even try to go anywhere near her husband and even later on held his head in her lap and try to provide some comfort to him. This becomes obvious from absence of any blood stains on her clothes. She admitted that she had not even received a scratch during the occurrence. In a situation like this, the normal conduct of any wife would be firstly to make an effort to save her husband even by taking to blow on herself and if that is not possible then at least to go so close to his person, at least after the assailants had left that there would be no escape from the blood ozzing out of his injuries of the deceased to come on to her clothes. Similar criticism is also available against Balbir P.W. 2. Shiv Charan P.W. 4 and Satkari P.W. 5. It is not the case of the prosecution that the clothes of any of them had got blood stained. The very fact that none of these witnesses went to lodge a report and instead left it to the father of the deceased to lodge the FIR would also go to show that the witnesses in all probability were not present at the spot. The absence of any blood in the field of Kirpal Singh as also the absence of blood trail from the field of Kirpal Singh to the place where the dead body was found, as admitted by P.W. 8, also suggests that the occurrence did not take place in the manner suggested by the prosecution and that the genesis of the fight has been suppressed from the Court. The evidence of Dr. Pande who conducted the post mortem examination showing that the stomach contained partially digested food material weighing about 150 gms. and concluding therefrom that the occurrence must have taken place between 9 and 9.30 a.m. if the deceased had taken his food at 7 a.m. would also throw a doubt on the correctness of the prosecution version which alleged time of occurrence as 11.30 a.m. presumably to lend an assurance that P.Ws. 2, 3, 4 and 5 were present in the field at that time. The evidence of Dr. Pande also to the effect that he had found incised injuries on the deceased including an ‘L’ shaped injury (injury No. 11) and a semi circular injury (injury No. 18) is indicative of the fact that these two injuries were caused with different weapons and looking to the nature of the other incised wounds present on the deceased, the possibility that the three types of sharp edged weapons were used cannot be ruled out. That being the position, it is obvious that the ocular testimony does not fit in with the medical evidence and instead it contradicts it.”

In 1976 Cri.LJ. 132 (Jagdish B. Rao v. Government of the Union Territory of Goa, Daman and Diu and Ors.), it has been held that:

“Para 8 : The learned Sessions Judge in his judgment has addressed himself to the question of admissibility of the telephonic message as a first information report. He has observed that the telephonic report can never be treated as a first information report because the requirements postulated by Section 154 Criminal Procedure Code with regard to obtaining the signature of the person on the report cannot be complied with in a telephonic report. There is no authority for this proposition. It is true that a telephonic report cannot be signed as per the requirements of Section 154 Criminal Procedure Code. But, this requirement is a technical formality and does not affect the admissibility of the document. On the question whether a telephonic message at the Police Station can constitute a first information report or not their Lordships of the Supreme Court in Tapinder Singh v. State of Punjab (AIR 1970 SC 1566 = 1970 Cri.LJ. 1415), observed in para 4 as follows :

“But prima facie this cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report. The mere fact that this information was the first in the point of time does not by itself clothe it with the character of first information report. The question whether or not a particular document constitutes a first information report has broadly speaking, to be determined on the relevant facts and circumstances of each case.”

In that case, an unknown person had given on telephone a cryptic information about the commission of the offence without disclosing all facts or the names of the culprits. Their Lordships, therefore, refused to treat it as a FIR. The question has to be decided with reference to the facts in each case. If a telephonic message is given by a known person who disclosed this identity and it contains all the necessary facts which can constitute an offence, and is reduced to writing by the Station House Officer it can be treated as a first information report (Shew Pru v. the King, AIR 1941 Rang 209 – 43 Cri.LJ. 157).”

In AIR 1959 Calcutta 342 (Kamal Kanto Das v. The State), it has been held:

“Pare 15: ………The first is that the statement of Ranjit which was treated as the first information report in the case was not really the first information report because the police had already started investigation on the strength of a telephonic message received from Pankaj Das. Of course, there was one Pankaj Das amongst the prosecution witnesses. He is P.W. 7. He does not admit having sent a telephonic message to the Police. At the same time, Mr. Banerjee has pointed out certain circumstances which according to him would tend to show that it was this very Pankaj Das who had sent this telephonic message. Whether this is so or not, the fact remains that one Pankaj Das sent a telephonic message to the Police and on receipt of this telephonic message, S.I. Kamal Kumar Sen Gupta, P.W. 36, proceeded to the spot; then after having taken Bimal to the hospital he came back to the spot and then examined Ranjit. Evidently, therefore, he had already started investigation so that Ranjit’s statement was the statement of a person taken by the police during investigation. It also appears that when Lakshmi Moni was coming back home from the police station accompanied by another Sub Inspector, namely Amalendu Bhusan Kundu, P.W. 13, she heard from one Tantiburi of the murder of her husband and the officer was then there. It is possible to say that neither this telephonic message nor the information given by this Tantiburi amounted to a first information contemplated by Section 154 of the Code of Criminal Procedure because the officer to whom Tantiburi the information was not the officer Incharge of a Police Station and the telephonic message was not signed by the informant. As a matter of fact, the police did not know who the informant was and the information given by Tantiburi was not an information given by her to an Officer Incharge of a Police Station but whether or not the information given by Tantiburi or the telephonic message of one Pankaj Das amounted to a first information report within the meaning of the expression in Section 154 of the Code of Criminal Procedure, it is obvious that the police had already moved in the matter and started investigation, for under Section 156 of the Code of Criminal Procedure an Officer Incharge of the Police Station may investigate any cognizable case even without a formal first information report and this was the view taken in Chandrama Prasad Chamar v. The State (ILR (1951) 1 Cal. 539). We respectfully agree with that view. The statement, therefore, of Ranjit by Kamal Kumar Sen Gupta, S.I., is evidently hit by the provisions of Section 162 and should not be treated as the first information report.”

In 1989 Cri.LJ. 1350 (Tehal Singh v. State of Rajasthan), it has been held :

“Para 21 s Tb us, it appears that whether a telephonic message can be treated as an FIR or not would dependent upon the facts and circumstances of each case. No hard and fast rule can be laid down in this connection. If the telephonic message has been given to Officer Incharge of a Police Station, the person giving the message is ascertained one or is capable of being ascertained, the information has been reduced into writing as required by Section 154 Cr.P.C. and it is a faithful record of such information and the information discloses commission of a cognizable offence and is not cryptic one or incomplete in essential details, it should constitute an FIR. An anonymous information, or information which is vagus or cryptic and lacks in essential details or an information which has not been faithfully recorded, would not constitute an FIR. Section 154 Cr.P.C. requires that the oral information given to the Officer Incharge of a Police Station shall be reduced into writing and shall be read over to the first informant and shall be signed by him. Now, reducing into writing of the information is mandatory; it should be reduced into writing by the Officer Incharge of a Police Station or by any person under his direction. It should be a true and faithful record of the information given to the Officer Incharge by the informant. Whether it has been read over to him or not or whether it has been signed by him or not would be mere matters of form and not of substance. The ideas behind reading over the information reduced into writing and obtaining signatures of the first informant thereon are intended to ensure that what has been reduced into writing is a true and faithful version of the information given to the Officer Incharge of the Police Station. Our view is supported in a good measure by the observation in the case of Jagdish (1976 Cri.LJ. 132) (Goa) (supra), in which it has been held that obtaining signatures of the first informant is a mere technicality of form and does not alter the basic character of the information.”

In 1980 Cri.LJ. 1397 (Randhir Singh v. The State), it has been held :

“Para 7 : In the present case, it is admitted by P.W. 23 head Constable Ramphal that on December 23, 1978, the Officer Incharge of the Police Station, Inspector Vidyaprakash, had left to supervise the arrangements of Kisan Rally in the morning and arrived back at the Police Station at 11.25 p.m. The telephonic message (Ex. P.W. 4/A) was received in his absence. Sub Inspector Naider Singh, who was next in rank to the Station House Officer, was present in the Police Station. As envisaged in Section 2(o) of the Code of Criminal Procedure, he was for the time being, Officer Incharge of the said Police Station. He was, thus, competent to decide to conduct the investigation of the case on receipt of the telephonic message which had already been recorded in the daily diary. As noticed above, the telephonic message not only disclosed the commission of a cognizable offence but had also disclosed the name of the appellant for having committed that offence. The name of the deceased as well as the place of occurrence namely, cremation ground of village Pooth Kalane were known. Sub Inspector Naider Singh was, therefore, duty bound to proceed to the said cremation ground. His endorsement on copy of Exhibit P.W. 4-A, reveals that he had not proceeded to the spot to hold an informal or preliminary inquiry. On arrival at the spot when he found that the appellant was trying to slip away, he apprehended him, who, on interrogation, admitted that the dead body on the pyre was that of his wife Smt. Bhagwani. In my view, the proceedings conducted by Sub Inspector Naider Singh at the cremation ground are part of the ‘investigation’ as envisaged in Section 2(h) of the Code.”

“Para 8: Applying the law laid down by Supreme Court in Tapinder Singh’s case (1970 Cri.LJ. 1415) (supra) to the facts and circumstances of the present case, and following the rule laid down by this Court in Kanhaya Singh’s case (1974 (1) Cr.L.T. 465) (supra), I hold that the telephonic message (Exhibit P.W. 4-A) constitutes the First Information Report, within the contemplation of Section 154 of the Code. The admission made by the appellant to Sub Inspector Naider Singh (P.W. 4) is thus, hit by the provision of Section 162 of the Code as it was made during the investigation of this case. It cannot, therefore, be read against him.”

Recently, in J.T. 1994 (1) SC 33 (Dhananjoy Chatterjee alias Dhana v. State of West Bengal), the Apex Court has held :

“In case telephonic message sent to the Police Station is cryptic in nature, it could not be treated as the First Information in the case. The Court found on facts that the Investigation Officer rushed to the spot, recorded the statement of ‘Y’ and started the investigation thereafter, therefore, the statement of ‘Y’ would form First Information Report in the case since the investigation was started thereafter.”

24. Now, we turn to examine whether the First Information Report (Ex. P-4) has been ante timed and conduct of the inspector – Shyarnlal Yadav (P.W. 32) is reprehensible, rendering the investigation unfair and in contravention of legal provisions and accused liable to be acquitted, as contended by the learned counsel for the accused. Head Constable Purushottam Pandey (P.W. 14) states that Constable Raghuveer Singh (P.W. 2) was sent to inform Inspector Shyarnlal Yadav (P.W. 32) in Hamidia Hospital. It is not understandable how Purushottam Pandey (P.W. 14) knew that Inspector Shyamlal Yadav (P.W. 32) was in Hamidia Hospital at that time and he was not informed by Inspector Shyamlal Yadav (P.W. 32) at any stage prior to his visiting the Hospital. The Police Station record is not produced to show his departure and arrival in the police station, though he states that he came to the police station at 9 a.m. and remained there upto 11 a.m. Record was not produced about his departure and returned in Rojnamcha, which was essential to meet the suggestion put to him that on that day, he left the Police Station for the first time at 4 p.m.

25. Next, the Police Station was informed at 1 p.m., Rojnamcha Sanha No. 700 by telephone attendant from Hamidia Hospital that Dr. Vijay Jalota, on duty, attended the deceased and the injured. In case, the Inspector Shyamlal Yadav (P.W. 32) was in the hospital as alleged, there was no occasion to inform the Police about the injured, who was attended by Dr. Vijay Jalota. Dr. Vijay Jalota did not say anything about the presence of Inspector Shyamlal Yadav (P.W. 32). Similarly, Shyamlal Yadav (P.W. 32) did not say that the deceased and the injured were attended by Dr. Vijay Jalota and he was informed about the same. Similar is the case with Dr. Ashok Sharma, who attended the deceased and the injured and recorded their history, found Kazi Sirajuddin dead and kept his body for examination while other injured were examined. Further, Inspector Shyamlal (P.W. 32) has admitted that in the Hospital, adjacement to the emergency ward, there existed police assistance room with public telephone and wireless facility. Information could be gathered and conveyed through this center, which means he was not in the hospital as alleged by him. It is also found that the injured were being bandaged and examined in different branches of the Hospital. There is no evidence suggesting the time when Dehati Nalishi (Ex. P-4) was recorded. Another sang here is that Iftedar Azam (P.W. 4) had been admitted along with injured Kunjilal (P.W. 7) and Balram (P.W. 31) in the hospital. No application requesting the Doctor to make available Iftedar Azam (P.W. 4) for recording the Dehati Nalishi (Ex. P-6) is there. The Doctor was not associated when this statement was recorded. The Doctor was not asked whether Iftedar Azam (P.W. 4) was fit to make statement nor any of the Doctors attending the injured associated when Dehati Nalishi was written. None of the Doctors including Dr. D.K. Apathy (P.W. 29) said about the presence of Inspector Shyamlal Yadav (P.W. 32) in the hospital for recording the statement of Iftedar Azam (P.W. 4), meaning thereby hospital record completely eliminates the presence of Inspector Shyamlal Yadav (P.W. 32) in the hospital during that time. This is clear from his admission that he could not say whether time about his departure or arrival was recorded in the Roznamcha Sanha. He could not say at what time, he reached the police station. At one stage, he admits that he went to hospital for second time at 3 or 3.30 p.m., which means he may have visited hospital at the time when autopsy of the dead body was conducted which is between 3.15 p.m. to 3.45 p.m. Iftedar Azam (P.W. 4) was examined at 12.45 p.m. and subjected to further tests, which means he could not be available to Inspector Shyamlal Yadav (P.W. 32) before that period. This is further clear from the statement of Iftedar Azam (P.W. 4) that he came to know about the names of the accused in the evening, but the names of accused find mentions in the FIR. This means Dehati Nalishi (Ex. P-6) and FIR (Ex. P-4) were recorded in the evening but made to appear that they were recorded at 12 noon and 12.15 noon respectively. It is admitted that during framing of panchanama, it did not come to the knowledge of the panchas, who killed the deceased. The only thing they knew was that the deceased was killed by bullet. Iftedar Azam (P.W. 4) and other injured have not said anything about meeting Inspector Shyamlal Yadav (P.W 32) in the hospital nor Shyamlal Yadav has said where he was after departure from the police station. Dr. D.K. Satpathi (P.W. 29) states that Iftedar Azam (P.W. 4) did not tell him about any kind of weapon in the hands of the accused. Inspector Shyamlal Yadav (P.W. 32) admits that while recording of statements of witnesses during investigation it came out that firing was done only by one person.

26. Another default committed by the Inspector Shyamlal Yadav (P.W. 32) is that he recorded facts which were not stated by Iftedar Azam (P.W. 4), who has specifically denied giving those statements to him, for example, Iftedar Azam (P.W. 4) has admitted in his statement that Dehati Nalishi wrongly mentions that accused ran away in autorickshaw because he had not seen them running away in auto and that when he lodged the report, he knew only that he had sustained injury by fire arm in the hand but did not know, who had fired at him and that at the time of lodging the report, he did not know that two persons from the public were injured. Therefore, from the proper assessment of evidence, it is abundantly clear that FIR was ante timed with a view to discard reports received at the police station against the Roznamcha Sanha Nos. 690 and 700, since they did not make mention of the accused and the police mentioned their names in the Dehati Nalishi. It is, therefore, concocted and undependable. The result is that the first information received at 11.15 a.m. against Roznamcha Sanha No. 690, on which investigation commenced, should be First Information Report. Alternatively, after holding that the FIR (Ex. P-4) is ante timed to 12.15 noon, Roznamcha Sanha No. 700 can be taken to FIR in the case and Ex. P-4 is hit be Section 162 of the Code of Criminal Procedure. In AIR 1980 SC 638 (Marudanal Augusti v. State of Kerala), the Apex Court said:

“………The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence……”

27. Next, it was contended that copy of the report was not sent to Magistrate forthwith resulting in concoction and manipulation. The Investigating Officer did not send it immediately after 12.15 noon, since FIR was not actually registered at that time, Section 157 of the Code of Criminal Procedure, 1973, mandates that report about commission of cognizable offence has to be sent to magistrate by the Officer Incharge of the police station forthwith. The delay in despatching it creates serious doubts about the credibility of the FIR as to the timing of commission of crime, accused involved, weapon used, witness of occurrence, place of occurrence etd. etc. To ensure promptness in recording the FIR, the provision for sending the report to the Magistrate forthwith has been provided. Unless the delay in sending the report to the Magistrate is satisfactorily explained, untrustworthiness of the prosecution story can be easily inferred. The prosecution has not explained when the FIR was sent to the Magistrate and when it was received by him. On being asked to produce the record, it was reported that the said report had been destroyed. It is surprising how the report and the record had been destroyed during pendency of the case. The conclusion, which can be arrived at, is that in case, it has been produced, it would have gone against the prosecution. This is another ground to demonstrate that the case has not been investigated fairly and in accordance with law throwing serious doubts about the trustworthiness of the prosecution case. This is another reason to show that FIR is not a trustworthy document and is liable to be rejected.

28. There is inconsistency in the medical evidence on material aspect of the prosecution case. The consistent stands of the prosecution witness has been that the bullet hit the deceased on the chest. But, the medical evidence clearly points out that the deceased was hit on the back and the exit wound is on the chest. In AIR 1975 SC1727 (Ram Narain v. State of Punjab), the Apex Court in Para 14 observed :

“Para 14 : Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. In Mohinder Singh v. The State, 1950 SCR 821 = (AIR 1953 SC 415 = 1953 Cri.LJ. 1761) this Court observed in similar circumstances as follows:

“In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that were the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle.”

It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered the important aspect, but readily accepted the prosecution case without noticing that the evidence of the eye witnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the Doctor’s evidence with a view to support an incorrect case.”

Therefore, the medical evidence has completely smashed the direct evidence of prosecution witnesses. This further demonstrates that the so called eye witnesses of the prosecution were not present at the spot and they did not see how firing took place and who killed the deceased.

29. Another serious flaw in the prosecution case pointed out by the learned counsel for the accused is that the report of Ballistic Expert has not been produced despite long lapse of time. The prosecution case is that the revolver and six cartridges were recovered from the possession of the accused Mohd. Shafique and two empty bullets were seized from the spot. First of all, it is unbelievable that the accused would keep them in his pocket to facilitate the police to catch him in the crime. Recovery thereof has not been supported by the witnesses. It is not understandable why report was not received from the Ballistic Expert, in case they were sent for examination. Identity of weapon and manner of use by the accused has to be established by the prosecution. The weapon and the empties have to be connected with the crime otherwise the use of weapon is not established and the same is not connected with the accused. In AIR 1995 SC 1601 (Sukhwant Singh v. State of Punjab), the Apex Court in Para 21 said:

“Para 21 : From a critical analysis of the material on the record, we find that it would not be safe to rely upon the sole testimony of P.W. 3 Gurmej Singh, the brother of the deceased, without independent corroboration in view of the infirmities pointed out by us above which render his testimony as not wholly reliable and since in the present case no such independent, corroboration is available on the record, it would be unsafe to rely upon the testimony of P.W. 3 only to uphold the conviction of the appellant. The prosecution has not been able to establish the case against the appellant beyond a reasonable doubt. The Trial Court, therefore, fell in error in convicting and sentencing the appellant. His conviction and sentence cannot be sustained…..”

30. The conclusion which emerges, is that the prosecution has failed to lead material evidence in the case thereby damaging the case to a great extent and it is not established that the accused Mohd. Shafique used it in the commission of crime.

31. The aforesaid discussion takes us further to appreciate the contention of the learned counsel for the accused that the crime was not committed by the accused and they have been involved due to past and existing enmity. We find from the statement of Iftedar Azam (P.W. 4) that during his incarceration in jail, his mother and younger sisters lived alone in the house and no harm was caused to them by the accused, who lived adjoining to their house. Further, during release on parole, visits to lands and other places, no physical harm was caused to them by the accused. With this background, it is not understandable why the accused should choose most crowded and sensitive place to kill the deceased instead of resorting to this act at some other secluded place. This takes us to the statement of Umar Farooque Sadi (P.W. 10) that he saw a boy running but he could not recognise him and that of Mohd. Rais Wali (P.W. 8) that they were being fired at from behind while they were going towards the gate. It is also in evidence that the persons committing crime ran through corridor (Galiyara). The res-gestae evidence under Section 6 of the Indian Evidence Act does not refer to the accused, rather it suggests the commission of crime by a person, which information was, who gathered by Inspector Shyamlal Yadav (P.W. 32). (Also see Ex. D-23 and Ex. D-24). In 2000 SCC (Cri) 419 (Sukhar v. State of U.P.), the Apex Court in Paragraphs 6, 7 and 8 said:

“Para 6: Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore’s Evidence Act reads thus:

“Under the present exception (to hearsay) and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now, this state of excitement may well continue to exist after the exciting facts has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.

“Para 7 : Sarkar on Evidence (15th Edn.) summarises the law relating to applicability of Section 6 of the Evidence Act thus:

“1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover, the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such fact are part of a transaction which is continuous.

2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.

3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot & the declarations of all concerned in the common object are admissible.

4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matter stated.”

“Para 8 : This Court in Gentela Vijayavardhan Rao v. State of A.P. considering the law embodied in Section 6 of the Evidence Act held thus: (SCC pp. 246-47, para 15)
“15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue ‘as to form part of the same transaction’ that it becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But, it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But, if there was an interval, however, slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.”

32. Finally, the prosecution case that the accused made good their escape by autorickshaw, driven by Mehboob (P.W. 25), is not established, since this witness has not supported the prosecution case, while other witnesses have not given satisfactory account on this aspect of the case. The result is neither the presence nor the participation, nor the departure of the accused established by the prosecution in this case. The prosecution has failed to sustain the commission of crime by production of satisfactory evidence. Many of its witnesses have turned hostile while others have not spoken the truth, for the reasons discussed above.

33. What emerges out of the aforesaid discussion is that the Trial Court judgment is unsustainable, therefore, set aside. The accused are acquitted of the charges levelled against them. They be set free forthwith. In case they are no bail, their bail bonds and surety bonds shall stand cancelled.

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