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2019 DIGILAW 1354 (ALL)

Rafiq Mulla v. State Of U. P.

2019-05-16

ALI ZAMIN, BALA KRISHNA NARAYANA

body2019
JUDGMENT : 1. Heard Sri Saghir Ahmad, learned senior advocate assisted by Sri Zafar Abbas, learned counsel for the appellant and Smt. Manju Thakur, learned A.G.A. I for the State. 2. This criminal appeal has been preferred by appellant-Rafiq Mulla against the judgment and order dated 20.11.2012 passed by Additional District and Sessions Judge, Court No. 11 Moradabad in S.T. No. 734 of 2008 (State Vs. Rafiq Mulla and another) convicting and sentencing appellant-Rafiq Mulla for life imprisonment and a fine of Rs. 25000/- and in default of payment of fine two years additional imprisonment under Section 302 I.P.C. 3. The prosecution story as spelt out in the written report of the incident Ext. Ka1 which was lodged by P.W.1 Lata at P.S. Civil Lines, District Moradabad on 15.2.2008 at about 20:50 hours is that deceased-Sompal, brother-in-law of P.W.1 Lata had his clinic in her neighborhood. Three days before the incident, an altercation and a scuffle had taken place between her brother-in-law, deceased-Sompal and appellant-Rafiq Mulla son of Ali Mulla resident of Chakkar ki Milak near Saifi wali Masjid in Chakkar ki Milak over collusion of bicycles and at that time, appellant-Rafiq Mulla had walked away abusing the deceased and threatening him with dire consequences. 4. On 15.2.2008 at about 8:30 P.M., appellant-Rafiq Mulla came on a motorcycle with another person and both of them fired at her brother-in-law from their respective firearms with the intention of causing his death. Upon hearing the sounds of gunshot, P.W.1 (informant) Lata, her brother P.W.2 Sompal Singh son of Babu Ram and her husband-Bhoora son of Nanhe rushed towards the place of incident and on reaching there, they saw that both the appellants after boarding on their motorcycle fleeing towards 'tiraha'. She took her injured brother-in-law to the police station and after getting the written report of the incident scribed, lodged it there. 5. On the basis of the written report of the incident Ext. Ka1, case crime no. 89 of 2008, under Section 307 I.P.C. was registered against appellant-Rafiq Mulla and one unknown person and chek F.I.R. Ext. Ka6 was prepared. The gist of the prosecution case was recorded in the G.D. at S.N. 69 at 12:50 hours on 15.12.2008, Ext. Ka7. 6. The investigation of the case was entrusted to Sub-Inspector Lalit Mohan. Ka1, case crime no. 89 of 2008, under Section 307 I.P.C. was registered against appellant-Rafiq Mulla and one unknown person and chek F.I.R. Ext. Ka6 was prepared. The gist of the prosecution case was recorded in the G.D. at S.N. 69 at 12:50 hours on 15.12.2008, Ext. Ka7. 6. The investigation of the case was entrusted to Sub-Inspector Lalit Mohan. The investigating officer during the course of investigation recorded the statements of the witnesses and inspected the place of occurrence and prepared its site plan. He got the injured Sompal son of Tota Ram admitted to the District Hospital Moradabad at 9:00 P.M. from where he was referred for treatment to Fortris Hospital Noida where he died on 16.2.2008 at about 2:00 A.M. The information about his death was sent to P.S. Civil Lines vide report Ext. Ka20 and the same was recorded at S.N. 15 in the G.D. on 16.2.2008 at 8:15 P.M. 7. Sub-Inspector Vijay Pal Singh conducted inquest on the body of deceased-Sompal in the mortuary and prepared the inquest report Ext. Ka2 and thereafter dispatched the deceased's body to District Hospital for postmortem examination. Postmortem on deceased's body was conducted by P.W.4 Dr. Rajendra Singh on 16.2.2008 who also prepared his postmortem report Ext. Ka5. 8. During the course of the investigation, the name of one Danish also surfaced as an accused and on his pointing out one country made pistol of 12 bore was recovered and its recovery memo Ext. Ka9 was prepared on the spot. The site plan of the place from where the country made pistol of 12 bore was recovered on the alleged pointing out of Danish was brought on record as Ext. Ka10. 9. On the basis of the recovery memo Ext. Ka9, case crime no. 192 of 2008, under Section 25 of the Arms Act was registered at P.S. Civil Lines, District Moradabad and chek F.I.R. of the aforesaid case Ext. Ka12 was also prepared. 10. After completing the investigation, the investigating officer filed charge sheet under Section 302 I.P.C. against appellant-Rafiq Mulla and co-accused Danish Ext. Ka11 while a separate chargesheet under Section 25 of the Arms Act was filed against co-accused Danish Ext. Ka16. 11. Ka12 was also prepared. 10. After completing the investigation, the investigating officer filed charge sheet under Section 302 I.P.C. against appellant-Rafiq Mulla and co-accused Danish Ext. Ka11 while a separate chargesheet under Section 25 of the Arms Act was filed against co-accused Danish Ext. Ka16. 11. Since the offences mentioned in the charge sheet, were triable exclusively by the Court of Sessions, C.J.M. Moradabad committed the accused for trial to the Court of Sessions Judge Moradabad where case crime no. 89 of 2008 under Section 302 I.P.C. and case crime no. 192 of 2008 under Section 25 of the Arms Act were registered as S.T. No. 734 of 2008 and 735 of 2008 and made over for trial from there to the Court of Additional District and Sessions Judge, Court No. 11 Moradabad who framed charge under Section 302 I.P.C. against appellant-Rafiq Mula and a separate charge under Section 25 of the Arms Act was framed against co-accused Danish. Both the sessions trial were consolidated and tried together. The accused abjured the charge and claimed trial. 12. The prosecution in order to prove its case against the accused examined as many as 10 witnesses out of whom P.W.1 Lata (informant) and P.W.2 Sompal Singh were examined as witnesses of fact while P.W.3 Dr. Shiv Singh, P.W.4 Dr. Rajendra Singh, P. W. 5 Ramvir Singh, P.W.6 K. N. Misra, P. W. 7 Rajendra Singh, P.W.8 Jitesh, P.W.9 Pankaj Kumar Tyagi and P. W. 10 Harpal Singh were produced as formal witnesses. 13. The accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case as false and alleged false implication due to previous enmity. 14. Learned Additional District and Sessions Judge, Court No. 11 Moradabad by the impugned judgment and order convicted appellant-Rafiq Mulla under Section 302 I.P.C. and sentenced him to life imprisonment while co-accused Danish was acquitted of all the charges. 15. Hence this appeal. 16. It is submitted by the learned counsel for the appellant that it is proved from the perusal of the F.I.R. recitals itself that neither P.W.1 Lata nor P.W.2 Sompal Singh had seen the occurrence and had arrived at the crime scene after the assailants had fled on their motorcycle after shooting Sompal. 15. Hence this appeal. 16. It is submitted by the learned counsel for the appellant that it is proved from the perusal of the F.I.R. recitals itself that neither P.W.1 Lata nor P.W.2 Sompal Singh had seen the occurrence and had arrived at the crime scene after the assailants had fled on their motorcycle after shooting Sompal. Since neither in the F.I.R. nor in the statement of the two witnesses recorded under Section 161 Cr.P.C., there is any mention of any source of light at the time and place of occurrence it was not at all possible for them to have identified the assailants even if they had reached there immediately after the occurrence and seen them running away from the crime site on a motorcycle. He next submitted from the evidence of P.W.1 Lata (informant) itself, it is established beyond all reasonable doubts that the incident could not have taken place at the time mentioned in the F.I.R. Both the so called eye witnesses of the occurrence have made material improvements in their evidence tendered during the trial and since there are material contradictions in their evidence, the learned trial court erred in law in recording the appellant's conviction on the basis of their wholly unreliable and untrustworthy testimonies of P.W.1 Lata and P.W.2 Sompal Singh. Although P.W.1 Lata in her evidence deposed that at the time of the incident, she was sitting in her shop which was adjacent to the shop of the deceased but the site plan of the place of incident accuracy whereof has not been challenged by any of the parties does not mention any shop of P.W.1 Lata adjacent to the shop of the deceased and hence her evidence that she had witnessed the incident while sitting in her shop is absolutely false. Such being the state of evidence, neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and the same are liable to be set aside. 17. Per contra learned A.G.A. appearing for the State submitted that it is fully proved from the evidence of the two eye-witnesses of the occurrence that the incident had taken place at the time, place and manner spelt out in the F.I.R. and that the appellants were the perpetrators of the crime. 17. Per contra learned A.G.A. appearing for the State submitted that it is fully proved from the evidence of the two eye-witnesses of the occurrence that the incident had taken place at the time, place and manner spelt out in the F.I.R. and that the appellants were the perpetrators of the crime. The contradictions, discrepancies or improvements, if any in the statements of P.W.1 Lata and P.W.2 Sompal Singh are not so material so as to render the entire prosecution story unreliable or untrustworthy. The medical evidence on record fully corroborates the ocular version. This appeal lacks merit and is liable to be dismissed. 18. We have heard the learned counsel for the parties present and perused the entire lower court record very carefully. 19. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubt or not. 20. Before proceeding to evaluate the evidence of the two eyewitnesses of the occurrence, P.W.1 Lata (informant) and P.W.2 Sompal Singh with a view to ascertain the veracity of the facts deposed by them, we first propose to have a glance at the evidence of the formal witnesses. 21. P.W.3 Dr. Shiv Singh who had examined the injuries of deceased-Sompal on 15.02.2008 at 9 P.M. deposed that he had noted following injuries on his person : (i) lacerated firearm wound of entry 2.5 cm x 1.5 cm x depth not probed, present on right side of the chest 1.0 cm above right nipple, wound margin inverted, oval shape, bleeding present, advised x-ray chest. (ii) lacerated firearm wound of entry 7.0 cm x 4.5 cm x depth not probed, present on right side of mid neck reaching upto right ----bone, 8.0 cm above right clavical, wound margin inverted, bleeding puncture wound present. Blackening around the wound present. Advised x-ray right neck. He proved deceased's injury report Ext. Ka4 and also deposed that it was possible that the injuries noted by him on the person of Sompal were caused on 15.02.2018 at 8:30 P.M. He in his cross-examination stated that no blackening, tattoing or scorching was found around the first firearm wound. Blackening was present around the second injury. It was possible that the second injury was caused by a gunshot fired from a distance of 3-4 feet. 22. P.W.4 Dr. Blackening was present around the second injury. It was possible that the second injury was caused by a gunshot fired from a distance of 3-4 feet. 22. P.W.4 Dr. Rajendra Singh deposed that he was posted as Medical Officer in Central Hospital Moradabad on 16.2.2008 and on that date he had conducted postmortem on the body of the deceased-Sompal at 2:00 P.M. He had noted following ante mortem injuries on the deceased's body : Gunshot wound of entry 7.0 cm x 5.0 cm on right side of neck, 2.5 cm below and backward from right ear. Underneath muscles, blood vessels lacerated, one plastic cap and fifty five small metallic pellets are recovered from neck. Blackening and charring present around the wound. Margins are inverted. 23. He further deposed that he had discovered a large metallic bullet from 9 to 11 thoracic vertebrae of the deceased. Blackening and charring was present around both the ante mortem gunshot wounds. 24. P.W.6 Kavindra Narayan Misra, Inspector-Incharge of P.S. Civil Line, Moradabad at the relevant point of time who had taken over the investigation of the case on 20.2.2008, in his evidence tendered before the trial court narrated the various steps taken by him during the investigation. He proved the recovery memo of a country made pistol allegedly used by co-accused Danish in committing the murder of the deceased on his pointing out on 15.2.2008 and its recovery memo Ext. Ka9. He also proved the site plan of the place from where the alleged crime weapon was recovered as Ext. Ka10, charge sheet submitted by him against accused after completing the investigation Ext. Ka11 and the report of the forensic expert pertaining to the case properties which included the crime weapon material Ext. Ka29, three empty cartridges of 12 bore material Ext. Ka30, Ext. Ka31 and Ext. Ka32 and one empty cartridge of 315 bore material Ext. Ka33. 25. P. W. 7 Constable Rajendra Singh who was posted as Clerk Constable at P.S. Civil Lines, District Moradabad on the date of incident at the relevant point of time proved the chek F.I.R. of the case registered against co-accused Danish in case crime no. 192 of 2008, under Section 25 of the Arms Act Ext. Ka12 and the carbon copy of the relevant G.D. entry Ext. Ka13. 26. P.W.8 Sub-Inspector Jitesh who had investigated the case crime no. 192 of 2008 (State Vs. 192 of 2008, under Section 25 of the Arms Act Ext. Ka12 and the carbon copy of the relevant G.D. entry Ext. Ka13. 26. P.W.8 Sub-Inspector Jitesh who had investigated the case crime no. 192 of 2008 (State Vs. Danish) under Section 25 of the Arms Act, in his evidence proved the various documents pertaining to the aforesaid case with which the appellant has no concern. 27. P.W.9 Sub-Inspector Pankaj Kumar Tyagi in his statement recorded during the trial proved the site plan of the place of occurrence, recovery memos of 1 empty cartridge of 12 bore and one empty cartridge of 315 bore, one bloodstained jacket, plain and bloodstained earth recovered by him from the place of occurrence as Ext. Ka17, Ext. Ka18 and Ext. Ka19. In his cross-examination, he deposed that when P.W.1 (informant) Lata had come to the police station to lodge the F.I.R., he was present there. He had recorded the statement of P.W.1 Lata on 16.2.2008. On 15.2.2008, the investigation of the case was entrusted to Sub-Inspector Harpal Singh. He had not recorded the statement of P.W. 1 Lata. 28. Thus, from the evidence of P.W.3 Dr. Shiv Singh and P.W.4 Dr. Rajendra Singh, it is proved that the deceased had died as a result of firearm injuries received by him on 15.2.2008 at about 8:30 P.M. in his chest and neck. 29. The question which next arises for our consideration in this appeal is that whether the prosecution has been able to establish that appellant-Rafiq Mulla was the author of the two fatal firearm wounds found on the deceased's body. 30. As already mentioned hereinabove, the prosecution in order to prove that the deceased had been shot by the appellant and co-accused Danish had examined P.W.1 Lata, real sister of the deceased and P.W.2 Sompal Singh, real brother of the deceased as eye-witnesses of the occurrence. It is noteworthy that evidence of P.W.1 Lata and P.W.2 Sompal Singh qua co-accused Danish was disbelieved by the trial court and he was acquitted. 31. It is noteworthy that evidence of P.W.1 Lata and P.W.2 Sompal Singh qua co-accused Danish was disbelieved by the trial court and he was acquitted. 31. On behalf of the appellant, it has been contended by the learned counsel for the appellant that both the eye-witnesses of the incident P.W.1 Lata and P.W.2 Sompal Singh being real sister and real brother of the deceased fall in the category of highly interested witnesses and the learned trial judge committed a patent error of law in relying upon their evidence for the purpose of convicting the appellant without seeking corroboration from the evidence of any other independent witness. 32. Before proceeding to scrutinize and analyze the evidence of the two eye-witnesses of the occurrence, we consider it appropriate to first deal with the objection raised by the learned counsel for the appellant with regard to the admissibility of the evidence of P.W.1 and P.W.2 on account of their being the close relatives of the deceased. 33. In the case of Waman and others Vs. State of Maharashtra 2011 Crl.L.J. 4827, it has been observed by Hon'ble Apex Court that merely because witnesses are related to the complainant or deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being relative cannot by itself discard their evidence. In other words, relationship is not a factor to affect credibility of witness and Courts have to scrutinize their evidence meticulously with care. 34. Thus, what follows after going through the aforesaid judgment of the Apex Court is that if the Court finds that a witness who is related to the deceased has given a correct and cogent description of the incident, in that case his evidence is not liable to be discarded merely on the ground of his being relative of the deceased. 35. P.W.1 Lata in her examination-in-chief recorded before the trial court deposed that the incident had taken place about seven months before the date on which her statement was recorded. It was winter season and at about 8:30 P.M, her brother-in-law had his medical store in her neighbour. About three days before, her brother-in-law Sompal's bicycle had collided with Rafiq Mulla on account of which some altercation had taken place between them which was followed by a scuffle. Rafiq Mulla had gone away abusing and threatening Sompal with dire consequences. It was winter season and at about 8:30 P.M, her brother-in-law had his medical store in her neighbour. About three days before, her brother-in-law Sompal's bicycle had collided with Rafiq Mulla on account of which some altercation had taken place between them which was followed by a scuffle. Rafiq Mulla had gone away abusing and threatening Sompal with dire consequences. Three days after the occurrence, Danish son of Rafiq Mulla and appellant-Rafiq Mulla came to the medical store of her brother-in-law on a motorcycle at about 8:30 P.M. and shot her brother-in-law. The place was illuminated with light. At that time, she, her brother-in-law-Sompal and her husband-Bhoore were present in their shop which was adjacent to the shop of her brother-in-law. They had seen the incident. She and her brother Sompal Singh, her husband Bhoore ran towards her brother-in-law and took him to P.S. Civil Lines from where they took him to Moradabad Hospital. The doctor of district hospital Moradabad referred her brother-in-law for treatment to Sai Hospital Moradabad and from where he was referred to Delhi. Her brother-in-law died while he was being taken to Sai Hospital Moradabad. She had got the complaint of the incident scribed by one Raj Kumar resident of her locality on her dictation and had signed the same after the same had been read over to her. She took the written complaint to the police station and lodged the same there. She proved the written complaint of the incident as Ext. Ka1. She further stated that in a state of nervousness she had failed to nominate appellant-Rafiq Mulla's son Danish also as an accused in the written complaint. 36. Although P.W.1 in her examination-in-chief had stated that she had a shop adjacent to the medical store of deceased Sompal but the site plan of the place of incident which was prepared by the investigating officer at her instance and accuracy whereof has not been challenged by either of the parties does not indicate any shop of the informant either adjacent to or in front of the medical store of the deceased which has been described in the site plan as the house of Sompal. When P.W.1 Lata was contradicted with her statement recorded under Section 161 Cr.P.C. in which she had failed to state that at the time of the incident she was present in the shop and had rather told him that she, her brother Sompal Singh and her husband Bhoore had come out after hearing the sounds of gunshot. She deposed that she had stated that she had no explanation why the fact that at the time of the occurrence she was present in the shop was not mentioned by the investigating officer in her statement recorded under Section 161 Cr.P.C. although she had categorically stated the aforesaid fact to him. She also had no explanation why the investigating officer had recorded in her statement that she had told him that she, her brother and her husband Bhoore had come out after hearing the sounds of gunshots although no such statement was made by her to the investigating officer. However when the aforesaid extract of the testimony of P.W.1 was brought to the notice of the investigating officer of the case P.W.9 Pankaj Kumar Tyagi, he in his cross-examination on page 76 of the paper book categorically stated that P.W.1 had not told him that at the time of the incident she was present in the shop. On the same page, he further deposed that P.W.1 Lata in her statement had categorically stated that upon hearing the sounds of gunshots, she, her brother Sompal Singh and her husband Bhoore had ran out of the shop. 37. Upon perusal of the aforesaid extract of the statement of P.W.1 Lata, it is apparent that in order to successfully project herself as an eyewitness of the occurrence, she had made material improvements in her statement recorded during the trial by deposing that she had seen the occurrence. The very fact that the investigating officer had not found any shop of the informant near the vicinity of the deceased's shop is in itself clearly indicative of the fact that she had arrived at the seen of the occurrence from her house which was far away from the place of occurrence after the incident had taken place and her claim that she had witnessed the incident is absolutely false and incorrect. 38. 38. Now coming to the evidence of P.W.2 Sompal Singh, we find that he in his examination-in-chief had stated that the accused-appellant Rafiq Mulla and co-accused Danish who were residents of Chakkar ki Milak near Saifi wali Masjid were previously known to him. Sompal Singh son of Tota Ram, deceased's brother-in-law had a medical store in Chakkar ki Milak and in front of his medical store was the cloth shop of his sister-Lata. He used to sit in both the shops. The incident had taken place at about 1 year and 11 months before in the evening at about 8:30 P.M. At the time of the incident, power supply was on and he was sitting in the sister's cloth shop. He further deposed that appellant-Rafiq Mulla and co-accused Danish had come on a motorcycle and got down and both went inside the shop and shot his brother-in-law Sompal. Both the accused had fired one shot each. When he was standing in the shop of Bhoore, his brother-in-law and his sister-Lata were also standing there. The shots fired by the accused had hit Sompal. He, his sister-Lata and his brother-in-law had gone to the place of incident and taken Sompal from there to the police station and from police station, they took Sompal to hospital and from hospital to Sai Hospital and from there he was referred to Delhi and while he was being taken to Delhi, he died near Brajghat and thereafter they returned with his dead body. There was no enmity between Sompaldeceased and the accused before the incident. Three days before the occurrence, Rafiq Mulla had collided with deceased-Sompal's cycle which had led to an altercation between them and Rafiq Mulla had left threatening the deceased with dire consequences. He proved the application given by him at police station mentioning the name of Danish also as an accused as Ext. Ka-2. 39. Upon a comparative evaluation of the testimonies of the two eyewitnesses of the occurrence, P.W.1 Lata and P.W.2 Sompal Singh, we find that there are following glaring contradictions in their evidence : (i) P.W.1 Lata has stated that her shop was adjacent to the shop of her brother-in-law. P.W.2 deposed that the cloth shop of Bhoore, husband of P.W.1 Lata was in front of the medical store of the deceased. P.W.2 deposed that the cloth shop of Bhoore, husband of P.W.1 Lata was in front of the medical store of the deceased. (ii) P.W.1 Lata had deposed that accused-appellant-Rafiq Mulla and his son Danish came on a motorcycle to the medical store of her brother-in-law and shot him while P.W.2 Sompal Singh had stated that on the date of incident accused-appellant Rafiq Mulla and co-accused Danish came on a motorcycle and after parking the same, they had got down and entered into the shop of the deceased and fired at his brother-in-law. He had also stated that each of the accused had fired one shot each at her brother-in-law while the aforesaid facts are conspicuous by their absence in her examination-in-chief. She neither deposed that the accused had got down from their motorcycle after parking the same and had entered into the shop of the deceased nor both the accused had fired one shot each at the deceased and both the shots had hit him. 40. Apart from the aforesaid contradiction in the statements of P.W.1 Lata and P.W.2 Sompal Singh, there is yet another very important circumstance which belies their claim of being the eye-witnesses of the occurrence. Although P.W.1 and P.W.2 have stated that Bhoore, husband of P.W.1 Lata and brother-in-law of P.W.2 had a cloth shop either adjacent to the medical store of the deceased or in front thereof as deposed by the two eye-witnesses of the occurrence but the site plan of the place of incident accuracy whereof has not been challenged by either of the parties does not mention any shop of Bhoore either adjacent to or in front of the deceased's medical store and hence the whole story narrated by P.W.1 and P.W.2 that at the time of the incident they were standing in the shop of Bhoore and had witnessed the same from there stands totally falsified. 41. Moreover both the so called eye-witnesses of the occurrence P.W.1 and P.W.2 have made material improvements in their statements recorded before the trial court. 41. Moreover both the so called eye-witnesses of the occurrence P.W.1 and P.W.2 have made material improvements in their statements recorded before the trial court. Upon being contradicted by defence counsel with his statement recorded under Section 161 Cr.P.C. in which P.W.2 Sompal Singh had neither stated that at the time of the incident, the power supply was on nor that both the accused had got down from the motorcycle and then entered into the shop of the deceased and fired at him, he deposed that he had stated the aforesaid fact before the investigating officer but he had no explanation why he had failed to record the statement. However, the investigating officer upon being confronted with the aforesaid extract of the testimony of P.W.2 Sompal Singh, categorically deposed during the trial in his cross-examination on page 76 of the paper book that Sompal Singh had not stated before him that at the time of the incident he was standing in the cloth shop or that the electricity supply was on at the time of the incident nor he had told him that both the accused after getting down from the motorcycle had entered into the shop and had shot him inside his shop. He also deposed that P.W.2 Sompal Singh had not told him that his brother-in-law Bhoore and sister-Lata were standing in the shop. He also deposed that P.W.2 Sompal Singh had not told him that his brother-in-law Bhoore and sister-Lata were standing in the shop. Thus, in view of the above, it is apparent that both the witnesses made material improvements in their statements by deposing the fact which were neither mentioned in the F.I.R. of the incident nor in their statement recorded under Section 161 Cr.P.C. Although P.W.1 Lata in the F.I.R. which was scribed on her dictation by one Rajkumar and also in her examination-in-chief had categorically deposed that after her brother-in-law had been shot, she had got the written report of the incident scribed by Rajkumar on the spot and then she, her husband and her brother-in-law had taken the deceased to the police station where she had lodged the written report of the incident but she in her cross-examination on page 35 of the paper book deposed that her brother and her husband had taken her deceased brother-in-law to the police station and since she had small children, she had returned to her house where she had stayed for about one and a half hour and then she had gone to the police station where she had stayed for 10-15 minutes. She had met with darogaji at the police station and had told him about her brother-in-law. She was not aware who had got the report scribed at the police station. She had got her written report of the incident written in her brother-in-law's house by Rajkumar which she had taken to the police station. She had left for the police station from her house at 8:45 P.M. From the aforesaid contradictions in her evidence, the time of the incident mentioned in the F.I.R. become extremely doubtful because if the incident had taken place at 8:30 P.M. as is evident from the perusal of the chek F.I.R. Ext. Ka12 then how could P.W.1 Lata go to the police station at 8:45 P.M. that too after waiting in her house for about one and a half hour after the occurrence. Ka12 then how could P.W.1 Lata go to the police station at 8:45 P.M. that too after waiting in her house for about one and a half hour after the occurrence. In case the facts stated by her in her cross-examination are accepted to be true in that case the incident had taken place much before 8:30 P.M. at about 7:00 P.M. on 15.03.2008 and the whole prosecution case that the incident had taken place at 8:30 P.M. in the medical store of the deceased and the same was witnessed by P.W.1 and P.W.2 stands totally belied. Although P.W.1 deposed that her husband's shop was situated next to the shop of her brother-in-law and she had seen the incident from there but she in her cross-examination on page 33 of the paper book she stated that Bhoore was her husband. The shop of her deceased's brother-in-law was at a distance of about 600-700 paces from her house. In front of the medical store of her brother-in-law and across the road was the house of Ramesh and in the west, the houses of Lekhraj, Karan and others were situated. Similarly in the east was house of Ramesh and other residential houses. On both sides of the shop where the incident had taken place, there were vacant plots and in the west of vacant plots, were residential houses. 42. Thus, from the evidence of P.W.1 Lata itself, it is proved that her husband did not have any shop near the medical store of the deceased from where she could have witnessed the incident. 43. Thus, upon a careful scrutiny of the evidence of P.W.1 Lata and P.W.2 Sompal Singh who are the real sister and brother of the deceased, we do not find that it was possible for them to have witnessed the incident and hence it is not at all safe to confirm the conviction of the appellant-Rafiq Mulla recorded by the trial court on the basis of their evidence which neither inspires confidence nor appears to be reliable and trustworthy. 44. From the perusal of statement of P.W.3 Dr. Shiv Singh who had examined the injuries of deceased-Sompal at District Hospital Moradabad on 15.2.2008, tendered before the trial court, it is proved that the deceased was examined by P.W.3 in District Hospital Moradabad on 15.02.2008 at 9 P.M. Thus from the evidence of P.W.3 Dr. 44. From the perusal of statement of P.W.3 Dr. Shiv Singh who had examined the injuries of deceased-Sompal at District Hospital Moradabad on 15.2.2008, tendered before the trial court, it is proved that the deceased was examined by P.W.3 in District Hospital Moradabad on 15.02.2008 at 9 P.M. Thus from the evidence of P.W.3 Dr. Shiv Singh also, it is established that the incident could not have taken place at the time mentioned in the F.I.R. There is also nothing on record which may indicate that the special report of the occurrence was forwarded by the concerned police station to the superior officer promptly or at least within a reasonable time. 45. P.W.6 Inspector, Kavindra Narayan Misra, the second investigating officer of the case has deposed on page 66 of the paper book in his cross-examination that the F.I.R. Ext. Ka6 was forwarded by C.O. on 18.2.2008 which was perused by C.J.M. on 21.02.2008. He was not aware when the F.I.R. was dispatched as the same was send by post and the chek F.I.R. does not contain the date of dispatch. 46. Thus, upon a wholesome consideration of the facts of the case and a critical analysis of the evidence on record both oral as well as documentary, we find that there are material contradictions in the statements of the witnesses with regard to the manner of assault which belie their claim of being the eye-witnesses of the occurrence and also indicate that the incident had not taken place at the time mentioned in the F.I.R. and the F.I.R. in this case being ante timed. 47. Thus, the prosecution having failed to prove its case against the accused-appellant beyond all reasonable doubt, appellant-Rafiq Mulla is entitled to benefit of doubt. 48. The appeal is accordingly allowed. The impugned judgment and order dated 20.11.2012 passed by Additional District and Sessions Judge, Court No. 11 Moradabad in S.T. No. 734 of 2008 (State Vs. Rafiq Mulla and another) is set aside. Appellant-Rafiq Mulla is in jail. He shall be released forthwith unless he is wanted in some other case subject to his complying with the mandatory provisions of Section 437-A Cr.P.C. 49. There shall be however no order as to costs.