STATE OF UTTAR PRADESH v. ABDUL AUWAL — 1994 DIGILAW 481 (ALL)

V. N. MEHROTRA, J. ( 1 ) THE state Government has filed the above mentioned appeals against the order dated 1. 8. 1979 by Sri S. C. M. Tripathi, VI Additional Sessions Judge, Azamgarh acquitting all the respondents in respect of the offences punishable under Sections 302, 147, 148, 302/ 149, 307/149, 325/149, 326/149, and 323/149 I. P. C The above criminal revision has been filed against the same order by informant Sadaruddin. These appeals and criminal revision have been heard together and shall be disposed of by this judgment. ( 2 ) THE prosecution case, in brief, was that about six days before the occurrence, there was a quarrel between the sons of informant Sadaruddin and his relatives on one hand and accused Adbul Auwal, his sons and relatives on the other. The matter was, however, patched up on the intervention by other persons. In view of this patch up, no F. I. R. was lodged by either of the parties at the police station. It was said that on the day of occurrence i. e. 26. 8. 1978, Irfan Ahmad, Shamshad Ahmad and Abdul who were the sons of informant Sadaruddin, had gone to the market of village Mohammadpur in order to make purchases in connection with Id festival. After purchasing the articles there, they were coming back to their house in the village. When these persons reached near the pond, which is near the bridge over river, all the 18 accused persons, who were hiding in the bushes on the edge of the pond, came out from that place. It was said that one of these accused persons was armed with a revolver; another with a DBBL gun; three with country made pistols and the others with lathis and brick bats. It was said that on seeing these persons, the informant and his sons started running towards west in order to reach their house. They were, however, chased by the assailants. They started pelting brick-bats which was also replied to by the victims in the same manner. The shouts of these persons attracted other persons. The assailants then started beating the victims with lathis and thereafter on the instigation by accused Auwal and Khalil, the persons armed with fire-arms, started firing from their weapons. They were, however, chased by the assailants. They started pelting brick-bats which was also replied to by the victims in the same manner. The shouts of these persons attracted other persons. The assailants then started beating the victims with lathis and thereafter on the instigation by accused Auwal and Khalil, the persons armed with fire-arms, started firing from their weapons. It was asserted that accused Abdul Auwal who was armed with a revolver, fired a shot aimed at Irfan Ahmad as a result of which he received injury on his chest. It was asserted that as many as eight persons on the side of the informant had received injuries. The injured persons were taken to the village and after that the informant sent a written report to the police station where the case was registered at 6. 45 P. M. on the same day against all the 18 accused persons. It is said that when injured Irfan was being taken to the hospital, he died on the way. In view of his death, Section 3021. P. C was also subsequently added. ( 3 ) THE injured were medically examined in the same night. A large number of injuries were found on their person. The injuries included firearm injuries also. Exts. Ka-15 to Ka-22 are the injury reports prepared by Dr. B. Das (P. W. 11 ). The post-mortem-examination of the dead body of Irfan was conducted by Dr. O. P. Khatri (P. W. 12) at 4. 30 P. M. on 27. 8. 1978. He found one gun shot injury on the chest and two small gun shot injuries on the left hand. According to Dr. Khatri, the deceased had died about one day earlier. ( 4 ) THE investigation in the case was conducted by Kazi Ekhlaq Hussain (P. W. 6), the Station officer. He recorded the statements of witnesses and prepared site plan and after completing the investigation, submitted charge sheet Ext. Ka-6 against the accused persons. ( 5 ) THE prosecution in this case has examined Mohd. Akhtar (P. W. 1), Shamshad (P. W. 2), Ansar Ahmad (P. W. 3), Sadaruddin (P. W. 4) and Abdul Ali (P. W. 5) as eye witnesses of the occurrence. It also examined other witnesses including the doctors and the Investigating officer, as mentioned earlier. ( 6 ) THE accused persons pleaded not guilty to the offences charged. Akhtar (P. W. 1), Shamshad (P. W. 2), Ansar Ahmad (P. W. 3), Sadaruddin (P. W. 4) and Abdul Ali (P. W. 5) as eye witnesses of the occurrence. It also examined other witnesses including the doctors and the Investigating officer, as mentioned earlier. ( 6 ) THE accused persons pleaded not guilty to the offences charged. They denied the prosecution version and alleged that the injuries were caused to some of them during the occurrence. It was also asserted that a cross case was pending against the informants party and that they had acted in their defence during the occurrence. ( 7 ) THE learned Additional Sessions Judge acquitted the accused persons mainly on the ground that the prosecution did not come with clean hand; the story put forth was improbable and distorted version of the occurrence; it suppressed facts and introduced facts in attempt to improve its case. It was also observed that the prosecution fabric appeared interwoven with the threads of lies. It was also observed that it was not possible to disengage the true facts and justify the conclusion that the occurrence originated and occurred on the place and in the manner alleged on behalf of the prosecution. ( 8 ) ON behalf of the State, it has been argued that the evidence produced by the prosecution was wholly reliable and was sufficient to establish the mode and manner of the occurrence and the participation of the accused persons. It has been argued that the learned Additional Sessions Judge was wholly wrong in acquitting the accused persons. ( 9 ) ON behalf of the accused-respondent, however, it has been argued by Sri G. S. Chaturvedi, Advocate that the prosecution evidence was unreliable and it did not explain the injuries received by six of the accused persons nor it was reliable as regards the origin of the occurrence. It is also contended that the prosecution has suppressed the true facts and in the circumstances the learned Additional Sessions Judge was right in acquitting the accused persons. It has also been argued that in appeal against acquittal, this Court should not interfere when the view taken by the Sessions Judge could also be reasonably taken. It is also contended that the prosecution has suppressed the true facts and in the circumstances the learned Additional Sessions Judge was right in acquitting the accused persons. It has also been argued that in appeal against acquittal, this Court should not interfere when the view taken by the Sessions Judge could also be reasonably taken. It has further been argued that the view taken by the learned Additional Sessions Judge was a reasonable one based on the evidence on record and could not, in any way, be said to be perverse. ( 10 ) WE have heard the learned counsel for the parties and perused the material on record. In case of appeal against the acquittal, though there is no limitation of appellate power as there is no distinction between an appeal from an acquittal and an appeal from a conviction, still there are certain rules of adjudication and conduct which should be followed. The appeals against acquittal are to be judged by a standard different from that applicable to those against conviction. It is to be remembered that the initial presumption of innocence is strengthened by acquittal from the trial court and the Court of Appeal will interfere only if it is proved without any doubt not only that the accused person is guilty but that he has been acquitted on unreasonable grounds. It has also been observed in some cases that when the appreciation of evidence by the sessions judge was not perverse, the High Court will be in error in reversing the judgment of acquittal recorded by the trial court. ( 11 ) IN the present case, it has been argued on behalf of the accused persons that six of them had received injuries which have not been explained by the prosecution. Dr. B. Das (P. W. 11) has in his cross-examination stated that he examined accused Ishtiyaq Ahmad, Akbal Ahmad, Abdul Auwal, Movin Ahmad, Iftkhar Ahmad and Kamil between 2. 45 A. M. and 3. 45 P. M. in the night of 26th127th August, 1978. He has proved the injury reports on the record of cross Sessions Trial No. 14 of 1979. He filed the true copies of injury reports Exts. Kha-3 to Kha-8. He has also stated that injury nos. 1 and 2 of Aqbal, injury nos. 1 and 2 of Abdul Auwal and injury Nos. He has proved the injury reports on the record of cross Sessions Trial No. 14 of 1979. He filed the true copies of injury reports Exts. Kha-3 to Kha-8. He has also stated that injury nos. 1 and 2 of Aqbal, injury nos. 1 and 2 of Abdul Auwal and injury Nos. 2, 3 and 4 of Movin were incised wounds. The injury reports of these accused persons also indicate that injury No. 3 of Abdul Auwal and injury no. 1 of Movin were fire-arm wounds. ( 12 ) ON behalf of the appellant State, it has been argued that injuries of the accused, as has been stated by Dr. B. Das (P. W. 11), were fictitious and wrong injury reports had been prepared and in the circumstances it was not necessary for the prosecution to explain these injuries. It has also been pointed out that the trial court itself has observed that some of the injuries might have been self suffered or fictitious. This argument has been challenged on behalf of the respondents. The learned counsel has argued that there was no reason to disbelieve the statement of Dr. B. Das on this point and, in fact, six of the accused persons had received injuries which had not been explained by the prosecution. We have considered this aspect of the matter. We are unable to hold that Dr. B. Das had prepared fictitious injury reports as regards the injuries of the above mentioned accused persons. It is true that in the injury report, the doctor has written (P. M.) instead of A. M: but the same had been explained by him who has stated that it was a mistake that he wrote TP. M. instead A. M. in the injury reports. This explanation appears to be plausible. It appears that these six accused did receive injuries including two gun shot injuries during the occurrence. The injuries were, however, not explained on behalf of the prosecution as the prosecution witnesses have merely stated that some brick-bats were also pelted from their side too. The non explanation of gun shot injuries and incised wounds received by some of the accused persons will indicate that the prosecution witnesses are not speaking the whole truth as regards the actual occurrence. The non explanation of gun shot injuries and incised wounds received by some of the accused persons will indicate that the prosecution witnesses are not speaking the whole truth as regards the actual occurrence. ( 13 ) THE learned Additional Sessions Judge has also held that the prosecution evidence as regards the manner and mode of the occurrence does not appear to be reliable. It is asserted by the prosecution witnesses that about seven days before this occurrence, there was a volley ball match and a quarrel ensued on the next day between (he two parties but the same was patched-up. No reference to the volley ball match was made in the F. I. R. , though the incident which took-place about six days before the occurrence has been mentioned. According to the prosecution itself, the matter had been patched-up and the parties shook hands after some other persons had intervened. In view of these facts, it will be rather difficult to believe that as many as 18 persons would lay in wait for the three sons of (he informant, armed with deadly weapons, in order to kill them. Further, in case these 18 persons lay in wait by the side of the pond for the victim to arrive they would have immediately started acting in a way to ensure that the victims received injuries at the earliest. However, it is asserted on behalf of the prosecution that on seeing the assailants, the three victims started running towards the west and the assailants merely chased them and later on started pelting brick-bats which was replied in the kind by the victims and others on their side, who had reached there. It is said that not a single shot was fired by the assailants when the victims were being chased by them. It is asserted that after the witnesses arrived at the scene of occurrence, it was only then that the assailants started firing shots. This fact is not compatible with the prosecution case that 18 assailants were on the spot in order to kill the victims. At least, the assailants, who were armed with fire-arms, would have started firing on the victims instead of chasing them for about 70-80 paces and then starting pelting brick-bats and then using lathis. ( 14 ) IN this case, the prosecution has examined five witnesses as eye witnesses of the occurrence. At least, the assailants, who were armed with fire-arms, would have started firing on the victims instead of chasing them for about 70-80 paces and then starting pelting brick-bats and then using lathis. ( 14 ) IN this case, the prosecution has examined five witnesses as eye witnesses of the occurrence. They included Sadaruddin (P. W. 4) who is informant; Mohammed Akhtar (P. W. 1), who is said to have received injuries during the occurrence; Shamshad Ahmad (P. W. 2), who is son of informant Sadaruddin and who is also said to have received injuries and Ansar Ahmad (P. W. 3) and Abdul Ali (P. W. 5) who are said to have also reached the scene of occurrence. Out of these witnesses, Shamshad Ahmad (P. W. 2) is the only witness who is said to have been present at the scene of occurrence from the very beginning and who has said about the initiation of the occurrence. The remaining four witnesses are said to have reached the scene of occurrence after hearing the shouts. They have not said as to in what manner the actual occurrence started. According to them, the incident had already started when they rushed to the place of occurrence. They could not, therefore, be in a position to say about the origin of the occurrence. Shamshad Ahmad (P. W. 2) has supported the prosecution case as regards the origin of the occurrence and the manner in which it took-place. As mentioned earlier, the prosecution assertion about the origin and manner of the occurrence appears to be doubtful. In case 18 armed persons were waiting for the victims in order to kill them or at least to cause grievous injuries to them, they could not have initiated the incident with throwing of brick-bats and then using lath is, but would have definitely started firing aimed at the victims. Under the circumstances, we are unable to accept the prosecution evidence as regards the origin of the incident and the manner in which it took-place. It may be that the initial Marpit took-place between a small number of persons when the brickbats might have been pelted and later on a number of other persons armed with other weapons also joined the same inflicting injuries to the victims of both sides. It may be that the initial Marpit took-place between a small number of persons when the brickbats might have been pelted and later on a number of other persons armed with other weapons also joined the same inflicting injuries to the victims of both sides. In any case, the prosecution version of the occurrence appears to be doubtful and cannot be accepted on its face value. Further, the learned Additional Sessions Judge has in his judgment also considered the plea raised on behalf of the accused persons that the prosecution witnesses in fact are interested as most of them had been named as accused in the cross-case initiated on the report lodged on behalf of the present accused persons. We agree with the observation of the learned Additional Sessions Judge mentioning that the prosecution witnesses appear to be interested one. ( 15 ) APART from the above fact, it was argued on behalf of the accused respondents that the contention by the prosecution that Shamshad (P. W. 2) and his brother had gone to the market of the village to make purchases on the occasion of Id did not also appear to be correct. It is said that though according to this witness a large number and quantity of articles were purchased by him and his brother in the market, no such article was found lying at the scene of occurrence when the Investigating Officer reached that place. It is also argued that in order to meet this lacuna in the prosecution case, Shamshad (P. W. 2) has, for the first time asserted in his deposition before the court, that actually he and his brother were accompanied by their servant Phaudar and the purchased articles had already been sent to their house from the market itself through that servant. This assertion was neither made in the F. I. R nor in the statement of this witness recorded under; Section 161, Cr. P. C. The learned Additional Sessions Judge was unable to accept this assertion which was for the first time made at the stage of trial. ( 16 ) IN view of the above discussion, including the fact that the injuries received on the side of the accused persons remain largely unexplained, it will not be safe to reverse the finding of acquittal recorded by the trial court and convict all these 18 accused persons. ( 16 ) IN view of the above discussion, including the fact that the injuries received on the side of the accused persons remain largely unexplained, it will not be safe to reverse the finding of acquittal recorded by the trial court and convict all these 18 accused persons. In the circumstances, the appeals and the criminal revision are liable to be dismissed. ( 17 ) IN the result, Govt. Appeal No. 3116 of 1979, State v. Abdul Auwal and others; Govt. Appeal No. 3117 of 1979, State v. Samshuddin and others and Criminal Revision No. 1772 of 1979, Sadaruddin v. State of V. P. and others are hereby dismissed. Govt. Appeals dismissed. .