THE STATE OF UTTAR PRADESH versus RAJA ETC. on 30 August 2018

THE STATE OF UTTAR PRADESH

v.

RAJA ETC.

(Criminal Appeal Nos. 396-398 of 2015)

AUGUST 30, 2018

[R. BANUMATHI AND VINEET SARAN, JJ.]

Penal Code, 1860 – s.302 r/w s.34 – Gun shot – Murder ofvictim-deceased and injuries to his brother – Conviction by trialcourt on evidence of eye-witness who was victim’s lawyer-brother-PW1 – High Court set aside conviction doubting the presence ofPW1 at the time and place of occurrence – State’s appeal againstacquittal – Held: PW-1 being a lawyer having good practice andalso a member of the Nagar Palika giving audience to the public inthe morning, the High Court rightly doubted his presence at theplace of occurrence at 9.30 a.m. on the day of incident – HighCourt also doubted the evidence of PW-1 as to why an advocatelike PW-1 instead of going to the court would follow his brotherwho was taking the cattle for grazing in the jungle – Absence ofbullet holes on the clothes of the deceased also created a doubtabout the case of the prosecution and the time and manner alleged– Raising doubts about the case of the prosecution, the High Courtextended the benefit of doubt to the respondents-accused to reversethe conviction – The view taken by High Court did not suffer fromany serious and substantial error warranting interference – Noreason to take a different view.

Dismissing the appeals, the Court

HELD: 1. The records showed that PW-1 was an advocatehaving good practice at the Bar. PW-1 was also then a member ofthe Nagar Palika. In his evidence PW-1 admitted that normallyhe used to give hearing to the public in the morning time at theNagar Palika. As observed by the High court that audience tothe public by PW-1 could have been only before thecommencement of court hours and thereafter he would go to thecourt. Occurrence happened on 13th June, 1995 at 9.30 a.m. Itwas brought on record that 13th June, 1995 was a working day.

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APW-1 being a lawyer having good practice and also a member ofthe Nagar Palika giving audience to the public in the morning,the High Court rightly doubted his presence at the place ofoccurrence at 9.30 a.m. on the said day. The High Court alsodoubted the evidence of PW-1 as to why an advocate like PW-1instead of going to the court would follow his deceased brotherBwho was taking the cattle for grazing in the jungle and PW-1’sconduct in following his brother being unnatural. [Para 5][26-C-F]

2. In his evidence, PW-1 stated that after the occurrencehe went to the court to write down the complaint first. Here again,the High Court observed that the conduct of PW-1 was quiteCunnatural in the sense that when one of his brothers, the deceasedwas killed and another brother, PW-2 sustained injuries in hisarm, instead of taking the injured brother to a hospital or goingto the police station, PW-1 had gone all the way to the Court onlyto write down the complaint. Here again, the conduct of PW-1, asDobserved by the High Court appeared to be strange and unnatural.[Para 6][26-F-H]

3. The deceased sustained gunshot wound on the chest withchest cavity deep. The doctor (PW-3) in his evidence pointed outthat there was not a single hole either in the vest, kurta andEtehmad which were sent along with the dead body for examination.Even the Inquest Report did not mention any bullet hole in theclothes of the deceased. When the deceased sustained gunshotinjury on the chest with chest cavity deep, in the normal courseone would expect holes on the clothes worn by the deceased,namely, western kurta. Raising doubts about the case of theFprosecution, the High Court has extended the benefit of doubtto the respondents-accused to reverse the conviction. It cannotbe said that the view taken by the High Court suffered from anyserious and substantial error warranting interference by thisCourt. [Paras 7, 8][27-B-D]

GCRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 396-398 of 2015.

From the Judgment and Order dated 29.05.2009 of the High Courtof Judicature at Allahabad in Criminal Appeal Nos. 568, 231 and 250 of2002.

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V. V. V. Pattabhiram, Ms. Priyanka, Sanjay Kumar Tyagi, AbhisthKumar, Yunus Malik, Prashant Chaudhary, Ajay Kumar Singh, Advs.for the appearing parties.

The Judgment of the Court was delivered by

R. BANUMATHI, J.: 1. These appeals arise out of judgmentand order dated 29[th] May, 2009 passed by the High Court of Judicatureat Allahabad in Criminal Appeal NO.568 of 2002, Criminal Appeal No.231of 2002 and Criminal Appeal NO.250 of 2002 in which the High Courtreversed the verdict of the conviction and also the sentence and acquittedthe respondents.

2. The facts of the case in a nutshell are as follows. On 13[th] June,1995 at 9.00 a.m. deceased-Shabu along with Riyazuddin (PW-2) wastaking their buffaloes for grazing in the jungle. Complainant, Imamuddin(PW-1) and Hafiz were following them. The case of the prosecution isthat when deceased-Shabu and Riyazuddin (PW-2) were so proceedingto the jungle, accused Raja (A-1) exhorted the other accused that theyhave an opportunity to kill both the brothers, namely, deceased-Shabuand Riyazuddin (PW-2). Raju (A-2) and Aas Mohammad (A-3) (sinceacquitted) who were armed with rifles fired at Shabu and also onRiyazuddin (PW-2). Shabu sustained gunshot injuries on his chest anddied on the spot. Injured Riyazuddin (PW-2) received injuries on hisright forearm. On seeing Imamuddin (PW-1) and other villagers comingtowards them, all the accused ran away. On the complaint lodged byImamuddin (PW-1), law was set in motion. Dr. P.K. Chaturvedi (PW-3) conducted post-mortem on dead-body of the deceased-Shabu andnoted the following injuries:

“1. Gunshot wound 1 cm. x 1 cm x chest cavity deep on right sideof front of chest 2 cm. Below right nipple at 4 O’clock positionmargins inverted and lacerated. No blackening and no charring(external wound) detected medially backwards towards leftscapula”

3. Based upon the evidence of Imamuddin (PW-1) and Riyazuddin(PW-2), injured witness, the trial court convicted Raja (A-1) (since dead)Raju (A-2) and also Aas Mohammad (A-3) under Section 302 I.P.C.read with 34 I.P.C. Fourth accused Sarfaraj was acquitted by the trialcourt from all the charges. In the appeal preferred by the accused, the A

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AHigh Court set aside the conviction and acquitted the accused from allthe charges. Being aggrieved, the State is before us.

4. We have heard Mr. V.V.V. Pattabhiram, learned counselappearing for the appellant-State and Mr. Yunus Malik, learned counselappearing for the respondent(s) and also perused the impugned judgmentBof the High Court and the evidence/materials on record.

5. Though the trial court held that Imamuddin (PW-1) is atrustworthy witness, the High Court doubted the presence of Imamuddin(PW-1) at the time and place of occurrence and also trustworthiness ofhis evidence. It is brought on record that Imamuddin (PW-1) is an advocateChaving good practice at the Bar. Imamuddin (PW-1) was also then amember of the Nagar Palika. In his evidence Imamuddin (PW-1) hasadmitted that normally he used to give hearing to the public in the morningtime at the Nagar Palika. As observed by the High court that audienceto the public by Imamuddin (PW-1) could have been only before thecommencement of court hours and thereafter he would go to the court.DOccurrence happened on 13[th] June, 1995 at 9.30 a.m. It is brought onrecord that 13[th] June, 1995 was a working day. Imamuddin (PW-1)being a lawyer having good practice and also a member of the NagarPalika giving audience to the public in the morning, the High Court rightlydoubted his presence at the place of occurrence at 9.30 a.m. on the saidEday. The High Court also doubted the evidence of Imamuddin (PW-1)as to why an advocate like Imamuddin (PW-1) instead of going to thecourt would follow his deceased brother-Shabu who was taking the cattlefor grazing in the jungle and PW-1-Imamuddin’s conduct in followinghis brother being unnatural and we find it difficult to take a differentview.F

6. In his evidence, Imamuddin (PW-1) stated that after theoccurrence he went to the court to write down the complaint first. Hereagain, the High Court observed that the conduct of Imamuddin (PW-1)is quite unnatural in the sense that when one of his brothers, Shabu, waskilled and another brother, Riyazuddin (PW-2), sustained injuries in hisGarm, instead of taking the injured brother to a hospital or going to thepolice station, Imamuddin (PW-1) had gone all the way to the Court onlyto write down the complaint. Here again, the conduct of Imamuddin(PW-1), as observed by the High Court appears to be strange andunnatural.

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THE STATE OF UTTAR PRADESH v. RAJA ETC.[R. BANUMATHI, J.]

7. The High Court has also referred to the submission of thecounsel who appeared for the accused which in our considered view isrelevant. As pointed out earlier, the deceased-Shabu sustained gunshotwound on the chest with chest cavity deep. Dr. P.K. Chaturvedi (PW-3)in his evidence as pointed out that there was not a single hole either inthe vest, kurta and tehmad which were sent along with the dead bodyfor examination. Even the Inquest Report does not mention any bullethole in the clothes of the deceased-Shabu. When the deceased-Shabusustained gunshot injury on the chest with chest cavity deep, in the normalcourse one would expect holes on the clothes worn by the deceased,namely, western kurta. Absence of bullet holes on the clothes of thedeceased creates a doubt about the case of the prosecution and the timeand manner alleged. Raising doubts about the case of the prosecution,the High Court has extended the benefit of doubt to the respondents-accused to reverse the conviction.

8. For the foregoing reasons, it cannot be said that the view takenby the High Court suffers from any serious and substantial errorwarranting interference by this Court.

9. In the result, the appeals are dismissed.

Devika Gujral

Appeals dismissed.

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