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2023 DIGILAW 1517 (ALL)

Ishtiyaq Khan v. State of U. P.

2023-05-31

SURESH KUMAR GUPTA

body2023
JUDGMENT : 1. Heard Sri Shishir Pradhan, learned counsel for the appellant and learned A.G.A. for the State as well as perused the record. 2. This appeal has been filed against the judgment and order dated 10.3.2004 passed by the Fast Track Court No. 1/ Additional Sessions Judge, District-Raebareli in Sessions Trial No. 253/1996 in case crime no. 11/1993 (State of U.P. Vs. Ishtiyaq Khan and others), Police Station-Mohanganj, District-Raebareli whereby the appellant is convicted under Section 307 I.P.C. to undergo five years rigorous imprisonment and fine of Rs. 1000/-and further the appellant is convicted for one year rigorous imprisonment under Section 452 I.P.C. and fine of R. 500/-In case of default in payment of fine the appellant shall suffer two months additional imprisonment. All the sentence shall run concurrently. . 3. Brief facts of the case emerges from the written report Exbt-Ka-1 is that the complainant-Jumni Khatoon and her husband Mohd. Hanif were residing in half portion of the house of Mohd. Hanif. At the time of incident, Smt. Armani, who is step wife of Mohd. Hanif, was also residing along with her son and daughter in the half portion of the house. Step wife-Smt. Armani and her son had enmity with the complainant and her husband-Mohd. Hanif. On 22.1.1993 at about 12:00 night when the complainant- Jumni Khatoon was sleeping along with her husband Mohd. Hanif, then, suddenly accused persons-Smt. Armani, son-in-law of Smt. Armani Ishtiyaq resident of Bibiyapur and one unknown person entered into the house of the complainant. After entering into the house of the complainant, Smt. Armani and unknown person caught hold Mohd. Hanif and appellant-Ishtiyaq opened fire upon Mohd. Hanif by the country-made pistol with intention to his murder. Mohd. Hanif got fire arm injury on mouth and chest. On hue and cry of the complainant the villagers rushed to the spot then all the accused persons fled away from the spot. The appellant and Smt. Armani were identified in the flesh light of the torch. With the help of the villagers, the complainant came to Raebareli for treatment of her husband but her husband Mohd. Hanif was referred to the Lucknow on 23.1.1993. 4. A written report was filed by the complainant on 29.1.1993 against accused persons Smt. Armani, Ishtiyaq Khan and one uknown person at Police Station-Mohanganj at 6:45 p.m. as case crime no. With the help of the villagers, the complainant came to Raebareli for treatment of her husband but her husband Mohd. Hanif was referred to the Lucknow on 23.1.1993. 4. A written report was filed by the complainant on 29.1.1993 against accused persons Smt. Armani, Ishtiyaq Khan and one uknown person at Police Station-Mohanganj at 6:45 p.m. as case crime no. 11/1993 under Section 307/452 I.P.C. and the Chik F.I.R. Exbt-Ka-3 was prepared. The entry was made as G.D. No. 30 at 18:45. 5. After lodging the F.I.R., investigation of this case was entrusted to the investigating officer. During course of investigation, the Investigating Officer collected the medical report and also recorded the statement of the injured and complainant-Jaumni and other witness under Section 161 Cr.P.C. During the course of the investigation, the Investigating Officer on the pointing out of the complainant prepared the site plan. After conducting all the formalities of the investigation, the Investigating Officer filed charge sheet against Ishtiyaq Khan, Armani and Riyasat. 6. The charge sheet was submitted before the Magistrate Court where it was committed to the court of Sessions and the Sessions Court framed the charges on 21.8.1999 against Ishtiyaq Khan, Armani and Riyasat under Section 307/34, 452 I.P.C. The charges were read over to the accused-appellants, but they denied the charges and claimed for trial. 7. In order to prove his case, the prosecution examined following prosecution five witnesses:- (i) P.W.-1-Mohd. Hanif, who is injured witness (ii) P.W.-2-Jamuni Khatoon, who is first informant/wife of the injured- Mohd. Hanif. (iii) P.W.-3-Krishna Kumar Awasthi, who is prosecution witness and Pharmacist of District Hospital Raebareli. As per versions of P.W.-3 Krishna Kumar Awasthi, Pharmacist of District Hospital Raebareli and he stated as secondary evidence that injury report of Mohd. Hanif was prepared by Dr. R.K Dixit. He stated before the court that he is well conversant with the signature and writing of the Dr. R.K. Dixit. As per injury report following injury was found on the body of the injured- Hanif. (a) Lacerated wound 5 c.m.x 2 c.m. on the left side of the face. Blackening was present on the nose. Fresh blood was oozing. Injury was kept under observation. X-ray was also advised. (b) Multiple fire arm wound area 13 c.m. x 11 c.m. was present on lift side of the chest below the neck and 45 in numbers. (a) Lacerated wound 5 c.m.x 2 c.m. on the left side of the face. Blackening was present on the nose. Fresh blood was oozing. Injury was kept under observation. X-ray was also advised. (b) Multiple fire arm wound area 13 c.m. x 11 c.m. was present on lift side of the chest below the neck and 45 in numbers. Area is measuring about 0.25 c.m. On the some portion blackening was present. Injury was kept under observation. X-ray was also advised. At that time the injured was serious and he was admitted in emergency and doctor opined that this fire arm injury was fatal and fresh in nature, which was caused by fire arm. P.W.-3-Krishna Kumar Awasthi proved the xerox copy of injury report on the basis of injury register as secondary evidence Exbt Ka-2. (iv) P.W.-4-Constable Badri Prasad Mishra, who proved chik F.I.R. as Exbt- Ka-3 and G.D. as Exbt Ka-4. (v) P.W.-5-Constable Badri Prasad Mishra has stated that he is well conversant with the signature and handwriting of Investigating Officer Raj Kumar Awasthi, therefore, he proved the charge sheet against the Ishtiyaq and Armani as Exbt. Ka-5 and site plan as Exbt. Ka-6. Recovery memo broken teeth as Exbt. Ka-7, Recovery memo tikli and pellets as Exbt. Ka-7 and as Exbt. Ka-8. Recovery memo of blood stained cloth as Exbt. Ka-9 and charge sheet of Riyasat as Exbt. Ka-10. Thus, in order to prove its case, the prosecution relies upon oral testimony of P.W.-1 to P.W.-5 and documentary evidence as Exbt. Ka1 to Exbt. Ka-10. 8. Subsequent to conclusion of trial, statements of the accused persons and appellant were recorded under Section 313 Cr.P.C. by the trial court in which the accused persons and appellants denied the prosecution story in toto and it was stated to be wrong and concocted. However, in his defence the appellant file before the trial court Paper nos. 117 Ka and 120-Ka was produced by the appellant side. 9. Learned trial court after hearing learned counsel for the parties and appreciating the entire oral evidence as well as documentary evidence the trial court acquitted Smt. Armani and Riyasat and convicted Ishtiyaq Khan only as aforesaid. 10. Being aggrieved and dissatisfied with the judgment of the trial court, the appellant has preferred the instant appeal. 11. 9. Learned trial court after hearing learned counsel for the parties and appreciating the entire oral evidence as well as documentary evidence the trial court acquitted Smt. Armani and Riyasat and convicted Ishtiyaq Khan only as aforesaid. 10. Being aggrieved and dissatisfied with the judgment of the trial court, the appellant has preferred the instant appeal. 11. Learned counsel for the appellant submits that there are several contradictions in the statements of witnesses of fact Mohd. Hanif and Smt. Jamuni Khatoon. Incident was taken place on 22.1.1993 at about 12:00 a.m. when some miscreants entered into the house of the complainant and injured and opened fire upon Hanif. The miscreants inflicted fire arm injuries on the chest and mouth of the injured-Hanif. He further submitted that the appellant has been falsely implicated due to enmity between real mother-in-law of the appellant, Armani and step mother-in-law Jamuni Khatoon, wife of Hanif. The F.I.R. of the present case has been lodged with a delay of seven days but there is no plausible explanation of such delay. He further submitted that role of catching hold has been assigned to the co-accused Armani and Riyasat and they have been acquitted by the trial court. He submitted that the Investigating Officer has not collected evidence in which it has been shown that the appellant was referred to Lucknow for better treatment. The injuries of the appellant was also advised for X-ray but the Investigating Officer failed to collect the X-ray report as advised by the doctor and no supplementary report of the injury of the injured-Hanif was obtained. He further submitted role of catching hold has been assigned to the co-accused Armani and Riyasat and they have been acquitted by the trial court but the appellant has been convicted in the present only on the basis of surmises and conjunctures, therefore, the appellant is liable to be acquitted. Learned counsel for the appellant submitted that prosecution case is itself doubtful, as if the injured-Hanif was caught hold by two persons then it was inevitable that those persons, who caught hold the injured, must have got injury but in the present case apart from injured no other persons have got any injury so the prosecution story shall be demolish on this aspect only. There are several material contradiction and improvements in the statements of the witnesses, as at the time of incident and at dark night there was no source of light, therefore, identification of the appellant by the witnesses is also doubtful. Thus, the learned trial court without appreciating the evidence and material available on record convicted the appellant and therefore, the appellant is liable to be acquitted. 12. Learned A.G.A. submitted that the main role for inflicting gun shot injury is assigned to the appellant. The appellant with intention to murder of Hanif opened fired upon the appellant. He submitted that although no supplementary injury report was collected by the Investigating Officer and there is also certain defects in the investigation but on the basis of lapses of the Investigating Officer benefit could not be given to the accused-appellant. He further submitted that if any co-accused is exonerated by the trial court then only on this ground the appellant could not be exonerated. He further submitted that although there is contradictions in the statements of the witnesses examined before the court but merely on the basis of contradictions in the statements, the whole prosecution story will not be improbable. Lastly, learned A.G.A. submitted that thus, the trial court after considering the facts and circumstances of the present case and considering the material available on record rightly convicted the appellant, therefore, the appeal is liable to dismissed. 13. After hearing learned counsel for the parties and perused the record, I am of the view that as in this matter only two witnesses have been examined i.e. P.W.-1 Hanif, who is injured and P.W.-2 Jamuni Khatoon, who is complaint and wife of the Hanif were also examined. On the perusal of the statement of the P.W.-1 it indicates P.W.-1 was firstly examined on 29.5.2000 i.e. after seven years of the alleged incident. During examination, P.W.-1-Hanif stated that he was unable to identify the main accused/appellant-Ishtiyaq, who is his son-in-law, which is highly improbable. During examination, the acquitted co-accused submitted before the trial court concerned that at the time of incident, this injured -Hanif was sleeping with her wife-Jamuni Khatoon and children. It is further submitted that Hanif has got divorced from Armani and due to this reason she has enmity and her behaviour was tumultuous. Armani was residing in one portion of the house of the Hanif. It is further submitted that Hanif has got divorced from Armani and due to this reason she has enmity and her behaviour was tumultuous. Armani was residing in one portion of the house of the Hanif. Hanif stated that Ishtiyaq opened three fires upon Him and at that time Armani and Riyasat caught hold him. He further submitted that her wife identified assailants, namely, Ishtiyaq (appellant), Armani and Riyasat. He further submitted that the incident was also witnesses by Dilsher and Paltu. He further submitted that his first wife-Armani wanted to grab the whole house, therefore, this incident of his murder was happened. Lastly, he stated that he clearly identified all the accused persons. He submitted that Armani is his first wife aged about 50 years old. The union of Hanif and Armani three daughter and one son-Salim were born. He further submitted that his marriage with Armani was solemnized in the year, 1980. 14. In cross examination he stated that Armani was residing with Salim. He further submitted that at the time of incident, there was no light at the place of occurrence and he was sleeping in veranda. In veranda, no body was present. He further submitted that his wife-Jamuni Khatoon was sleeping inside the house. At the time incident his age was 70 years and age of Armani was 72-75 years but he does not know the age of Riyasat. He further submitted that on the date of the incident Salim was present in the house and Salim has actively participated in the occurrence. Salim was named by him but the police stuck out the name of Salim. He further submitted that when this occurrence was happened he was sleeping and in the state of sleeping accused persons opened fire upon him. He further submitted that at the time of incident there was no light at the place of occurrence and he enshrouded himself with quilt. In cross examination, this witness clearly admitted that at the hospital he stated that he could not identify the assailants, who opened fire upon him because he was sleeping. 15. Jamuni Khatoon, who is eye-witness of the incident, clearly stated that torch by which she identified the assailants, which was shown, was not recovered by the Investigating Officer. The Investigating Officer prepared the recovery memo. 16. 15. Jamuni Khatoon, who is eye-witness of the incident, clearly stated that torch by which she identified the assailants, which was shown, was not recovered by the Investigating Officer. The Investigating Officer prepared the recovery memo. 16. On the perusal of the statements of the both the witnesses it appears that there are several material contradiction in the statements of the both the witnesses for identifying the assailants and for place of sleeping. F.I.R. of the alleged incident was also lodged with a delay of seven days, which itself shows that F.I.R. was lodged after due deliberation and consultation. Before the doctor, the witnesses P.W-1 stated that due to night he could not identify the assailants. As per statement of Hanif it appears that at the time of incident, the injured was sleeping outside the room and his wife was sleeping inside the room. The role of catching hold has been assigned to Armani, who is aged about 70 years and Riyasat, who is aged about 80 years, which is impossible. He stated that Ishtiyaq opened three fires upon Hanif but two other co-accused Armani and Riyasat, who were catching hold Hanif have got no injury, which is also impossible. Thus, the whole prosecution story is highly improbable. 17. The first question arises that the F.I.R. has been lodged with a delay of seven days of the alleged occurrence. On the perusal of entire F.I.R. it appears that injured was examined on the same date i.e. on 23.1.1993. Injured was brought to the hospital by his younger brother-Kallu. Doctor advised for X-ray but neither the Investigating Officer was examined nor the supplementary affidavit or X-ray report was collected by the Investigating Officer. Even the doctor who advised for X-ray and prepared the Exbt-Ka-2 was also not examined. Original injury report was also not brought on record and no supplementary report was collected, which itself shows that the whole prosecution story is doubtful on this aspect also. 18. F.I.R. of the alleged incident was lodged after seven days of the incident. Although undue and unnecessary delay in lodging in F.I.R. is inevitable common, which puts the court on guard to look into the possible motive and the explanation for the delay and consider its fact on the trustworthiness or otherwise of the prosecution version. 18. F.I.R. of the alleged incident was lodged after seven days of the incident. Although undue and unnecessary delay in lodging in F.I.R. is inevitable common, which puts the court on guard to look into the possible motive and the explanation for the delay and consider its fact on the trustworthiness or otherwise of the prosecution version. Although there is no duration of time fixed either by the legislature or by judiciary for giving information of a crime to the police station. However, it is observed by the several judgments by the Hon'ble Apex Court that F.I.R. has to be lodged within reasonable time. The question of reasonable time shall also be determined in the facts and circumstances of each and every cases. Merely delay in lodging the F.I.R. is, therefore, not necessarily, as a matter of law, fatal to prosecution version thus, the delay in doing so in the light of the plausibility of the explanation forthcoming with such delay, accordingly, must fall for consideration in all the facts and circumstances of the given case. If there is no explanation in delay in lodging the F.I.R., then it always for fatal for prosecution case. In the present case, F.I.R. is delayed by seven days without any plausible explanation. Thus, the trial court failed to consider this aspect i.e. failed that the F.I.R. of the present case has been lodged with a delay of seven days but there is no plausible explanation of such delay. Thus, , it can be said that the F.I.R. has been lodged after due deliberation and consultation, therefore, no reliance can be place on the contents of the F.I.R. of the present case. 19. Although, one of the arguments raised by the learned counsel for the appellant is that there is major contradictions in the statement of the injured witness-P.W.-1, Hanif and statement of the P.W.-2-Jamuni Khatoon and in the F.I.R. As per version of the F.I.R. it appears that P.W.-1 Hanif has stated that he identified the appellant and Riyasat in the flesh light of the torch of Riyasat and Armani. In the flesh light of the torch, the appellant inflicted gun shot injury. P.W.-2-Jamuni Khatoon identified the accused persons in the light of the bulb while P.W.-1 stated that at the time of incident there was no light. In the flesh light of the torch, the appellant inflicted gun shot injury. P.W.-2-Jamuni Khatoon identified the accused persons in the light of the bulb while P.W.-1 stated that at the time of incident there was no light. In cross examination P.W.-2 stated that she identified the appellant and other accused persons in the flesh light of torch. P.W.-1 stated that at the time of incident, he was covered with quilt then suddenly gun shot injury was inflicted to him. Therefore, the version of the P.W.-1 regarding identification of the appellant is also doubtful, as there are major contradiction in his statement in this regard. 20. In the case of Krishnegowda & Ors vs State Of Karnataka (CRIMINAL APPEAL NO. 635 OF 2006), which has been decided on 28.3.2017 by the Hon'ble Supreme Court in which it has been held that generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the Court, but if these contradictions create such serious doubt in the mind of the Court about the truthfulness of the witnesses and it appears to the Court that there is clear improvement, then it is not safe to rely on such evidence. In the case on hand, the evidence of eyewitnesses is only consistent on the aspect of injuries inflicted on the deceased but on all other factors there are lot of contradictions which go to the root of the matter. 21. In view of the facts and circumstances of the present case and after relying the law laid by the Hon'ble Supreme Court in the case of Krishnegowda & Ors vs State Of Karnataka (Supra), this Court is of the view that there are material contradictions in the statement of the P.W.-1 and P.W. -2, which goes to the root of the matter and creates doubt about the truthfulness of versions of the witnesses and prosecution story as well. 22. In this matter, the identification of the appellant is also doubtful, as no source of light at the place of occurrence has been proved by the prosecution witnesses. 22. In this matter, the identification of the appellant is also doubtful, as no source of light at the place of occurrence has been proved by the prosecution witnesses. Thus, considering the overall aspects and appreciation of the evidence, I am of the view that the prosecution miserably failed to prove its case beyond shadow of doubts, therefore, in my considered opinion, the appellant is liable to be acquitted. 23. The appeal is allowed. The appellant-Ishtiyaq Khan is acquitted under Sections 307 I.P.C. and 452 I.P.C. in Sessions Trial No. 253/1996 in case crime no. 11/1993 (State of U.P. Vs. Ishtiyaq Khan and others), Police Station-Mohanganj, District-Raebareli. As the appellant is already on bail then he need not to be surrender but his personal and surety bonds shall be discharged. 24. Let a copy of this order be communicated to the learned trial court concerned for intimation and necessary compliance.