Case :- CRIMINAL APPEAL No. – 1263 of 2015 Appellant :- Mohd. Azam
Respondent :- State Of U.P.

Connected with
Case :- CRIMINAL APPEAL No. – 745 of 2015
Appellant :- Liaqat And Another
Respondent :- State Of U.P.

Hon’ble Bala Krishna Narayana,J. Hon’ble Irshad Ali,_

• Section 154 CRPC Indian Evidence Act, 1872 Section 45 First Information Report Murder Two appeal against same Prosecution case as spelt out in the FIR which was lodged by P. W. 1 claiming himself to be an eye witness of the occurrence was that the deceased had received one gun shot each from the appellant Whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not Where the First Information Report is apparently a suspicious document and finds no corroboration from the Inquest report, then no reliance can be placed on the story of the prosecution as alleged therein Admittedly, the firearm weapons which were allegedly used by the accused appellants for committing the murder of the deceased were never recovered during investigation Report of forensic expert regarding the bullet and the pellet which were recovered from the body of the deceased, plain and bloodstained earth recovered from the place of occurrence and the clothes of the deceased Forensic evidence on record is not at all sufficient to link the appellants with the offence for which they have been convicted Absence of recovery of any fire arms from the accused coupled with the fact that the blood stains were either totally disintegrated or not capable of any classification in the report of the serologist would render the forensic evidence insufficient to link the accused with the commission of the alleged offence Prosecution has miserably failed to prove its case against the appellants beyond all reasonable doubts Neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set aside Ordered accordingly.

[Relevant Paras]

 

17. We now proceed to evaluate the evidence of P. W. 4 Asharfi Lal on the aforesaid aspect of the matter. P. W. 4 Asharfi Lal in his examination-in-chief on page 32 of the paper book has deposed that he was posted as Officer-In- Charge of Police Station Devgaon on 28.12.1995. On that day at about 10 A.M., P. W. 1 Abdul Kalam son of Mohd. Islam along with his 4 or 5 companions had come to the police station at about 10 A.M. On the information given to him by P. W. 1 Abdul Kalam that one Imamuddin @ Buggu resident of Village Katauli Khurd had been shot dead, he after issuing the necessary directions to register the case, reached the place of occurrence along with his force in a government jeep in village katauli Khurd and on reaching there he saw a dead body lying on cot. He after nominating the inquest witnesses commenced the inquest proceedings at 11 A.M. The inquest report which is on record as Ext. Ka4 also indicates that inquest proceedings had commenced pursuant to the information given at the police station by Abdul Kalam son of Mohd. Islam that Imamuddin @ Buggu had been shot dead. The inquest report Ext. Ka4 neither mentions the case crime number nor the names of the accused. P. W. 4 Asharfi Lal was re-examined and he in his re-examination on page 37 of the paper book deposed that the FIR of the incident which was on the record of the case was prepared on the basis of the written complaint given by Mohd. Ashahad son of Ayyub Ahmad on 28.12.1995 which is on record as Ext. Ka1. He further deposed before the Court that he was not aware about the fact whether there was any other person in village Katauli Khurd called Abdul Kalam son of Islam or not. He was also not aware whether the name of the father of Abdul Kalam is Ayyub or not. Chek FIR was not prepared on the basis of the written report given to him at the place of occurrence at the time when he had gone there to conduct inquest proceedings. He had received the written report of the occurrence when he had returned to the police station after completing the inquest proceedings which was signed by P. W. 2 Ashahad. The written report signed by Ashahad was received by him after 4 hours. He had scolded the Munshi for his having not prepared the chek FIR after receiving the written complaint of Abdul Kalam.

19. Thus, the credibility of the FIR in this case stands totally shattered in view of the evidence on record. Since the FIR in this case itself appears to be a devious, bogus and fictitious document, hence no reliance on the prosecution story as spelt out therein can be placed.

22. Admittedly the firearm weapons which were allegedly used by the accused-appellants for committing the murder of the deceased were never recovered during investigation. We are absolutely in the dark about the kind of weapons which were used by the culprits. The report of forensic expert vis-a-vis the bullet and the pellet which were recovered from the body of the deceased, Imamuddin @ Buggu, plain and bloodstained earth recovered from the place of occurrence and the clothes of the deceased Ext. Ka12 merely states that the blood was found on the bloodstained earth and other articles sent for forensic examination but the same were either totally disintegrated or not capable of classification. We are afraid that the forensic evidence on record is not at all sufficient to link the appellants with the offence for which they have been convicted. Moreover, neither there is any evidence nor any suggestion which may indicate as to which out of two accused, Mohd. Azam and non-appellant, Ajaz had shot at the deceased with the double barrel gun. The three ante mortem injuries noted by P. W. 3 Dr. Rajendra Prasad, Chief Pharmacist, Police Hospital, District Azamgarh on the body of the deceased, Imamuddin @ Buggu are on different parts of his dead body, although, the three witnesses of the occurrence have stated in unison that the two shots were fired by the appellants at the deceased.

23. In the instant case, the accused-appellants were neither apprehended on the spot nor any firearm was recovered from them or on their pointing out at any stage of the investigation.
24. Thus, in the present case, we find that the manner of assault as described in the FIR and later testified by the three witnesses of fact produced during the trial by the prosecution does not find corroboration from the medical evidence on record which puts a big question mark against their claim of being eye-witnesses of the occurrence. Moreover, all the three witnesses of fact, two of them namely P. W. 1 Abdul Kalam and P. W. 2 Ashahad being the real brothers of the deceased while P. W. 5 Javed Khan his cousin brother, are highly interested witnesses. It is true that the evidence of a witness cannot be discarded merely on account of his being a relative of the deceased if upon a cautious appraisal of his evidence, the Court comes to the conclusion that he has given correct and cogent description of the incident but considering the material contradictions in their testimonies inter alia on the point of time and the identity of the person who had lodged the FIR of the occurrence and the irreconcilable conflict between the ocular version and the medical evidence with regard to the number of shots fired at the deceased by the accused-appellants, it cannot be said that the three witnesses of fact have given cogent and correct description of the occurrence and that their evidence is wholly reliable and trustworthy. The previous enmity between the parties could be a very strong reason for them to falsely implicate the appellants after the dead body of the deceased was found.

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CRLA(A)_1263_2015 (1) Mohd. Azam va State Of U.P. & liyaqat va state of up

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