STATE OF UTTAR PRADESH versus WASIF HAIDER ETC. on 10 December 2018

[2018] 14 S.C.R. 1161

STATE OF UTTAR PRADESH

v.

WASIF HAIDER ETC.

(Criminal Appeal Nos. 1702-1706 of 2014)

DECEMBER 10, 2018

[N. V. RAMANA AND

MOHAN M. SHANTANAGOUDAR, JJ.]

Penal Code, 1860 – ss.302 and 307 r/w ss.149, 148 – Appealagainst acquittal – PW-2-Police Official got to know that a crowdof around 200-300 rioters was causing rampage and destructionat a temple – PW-2 accompanied by the police force and a seniorofficial proceeded towards scene of occurrence – Rioters startedfiring upon them, injuring the senior official, who later succumbedto the injuries – Respondents-accused persons arrested – Trial courtconvicted the respondents – High Court set aside the conviction –Held: In appeal against acquittal, the appellate court would interfereonly where there exists perversity of fact and law – Present case isridden with multiple investigative laches and flaws which go to theroot of the matter– Specific identification of the respondents, froma group of 200-300 rioters, with 100% perfection; without a mentionof any distinguishing marks seems highly improbable consideringthe distance of the witnesses from the place of occurrence– TestIdentification Parade (TIP) has to be conducted timely, if not, thenthe delay has to be explained – However, in the present case, notonly there was delay in conducting the TIP, but there was noexplanation for the same – This creates doubt about its genuineness– Further, although the charges were framed u/s.307,IPC, theprosecution failed to substantiate the charges by means of evidence– Trial Court erred in convicting the respondents for the aforesaidoffence, without any evidence – Prosecution failed to link the chainof circumstances to dispel the cloud of doubt about the culpabilityof the respondents – Suspicion, however grave cannot take placeof proof – Investigative lapses have fortified the presumption ofinnocence in favor of the respondents – Benefit of doubt arisingout of faulty investigation accrues in favor of the accused – Noperversity in the judgment of the High Court – Concurrent order of

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Aacquittal for offences under the Arms Act and Explosive SubstancesAct also not interfered with - Arms Act, 1959 – ss.25, 27 – ExplosiveSubstances Act, 1908 – ss.4, 15 – Criminal Law Amendment Act,1932.

Dismissing the appeals, the CourtB

HELD: 1.1 The present case is ridden with multipleinvestigative laches and flaws which goes to the root of the matter.Firstly, out of the seven eye witnesses who participated in theTIP, five of them identified the accused-respondents withoutcommitting any mistake. Accused no.3 has big protruding teeth,Cthe accused no.4 was suffering from polio hence, had permanentphysical disability, but surprisingly this fact was never mentionedeither in the F.I.R. or in the witness statements. The specificidentification of the four accused-respondents, from a group of200-300 rioters, with 100% perfection; without a mention of anydistinguishing marks seems highly improbable considering theDdistance of the witnesses from the place of occurrence. Moreover,there existed an inordinate delay of 55 days in conducting theTIP of the accused no.1 and 2. Although, the involvement ofaccused no.3 and 4 was brought to light on 03.08.2001 itself, theprosecution did not take any effort to arrest or interrogate themEfor 6 weeks. But no reasonable explanation was provided for theaforesaid inordinate delay. [Paras 13, 14][1168-D-H]

1.2 Furthermore, no documentary evidence has beenprovided to prove that the identity of the accused was keptconcealed. TIP has to be conducted timely, if not, then the delayFhas to be explained and such delay should not cause exposure ofthe accused. However, in the case at hand, not only there was adelay in conducting the TIP, but no explanation for the same hasbeen forthcoming from the prosecution. This creates aconsiderable doubt about the genuineness of the TIP.[Para 15][1169-A-D]G

1.3 Secondly, it is surprising that, although the post-mortemreport describes that there were only two wounds in the body ofthe deceased, one being the entry and the other being the exitwound, allegedly a bullet was still recovered from the ashes ofthe deceased. The recovery of bullet from the ashes of theHdeceased is irreconcilable with the post-mortem report which allegedly states an exit wound, implying that the bullet had alreadyleft the body. The aforesaid fact raises a suspicion on both thePost-Mortem report and the F.S.L. report as they are incompatiblewith each other. Thirdly, the prosecution has failed to establishthat the bullet allegedly recovered from the ashes of the deceased20 days later was indeed fired from the pistol recovered fromrespondent no.1. Even, the recovery of pistol is doubtful.[Paras 16, 17][1169-D-G]

1.4 Fourthly, as regards to the place of incident, theprosecution failed to ascertain the same with precision. Fifthly,the prosecution failed to examine the orderly of the deceasedwho was also injured in the same incident and had suffered agunshot injury. Sixthly, the prosecution has also failed to adduceany independent witness. Even though it is wrong to disbelievethe evidence adduced from the official witnesses, but prudencedemands that their evidence needs to be tested on the altar ofstrict scrutiny. Considering the aforesaid facts and circumstances,the evidences adduced by the prosecution witnesses do not inspirethe confidence of this Court. Lastly, it is surprising that althoughthe charges have been framed under Section 307 of IPC, theprosecution has absolutely failed to substantiate the charges bymeans of evidence. The trial court has erred in convicting therespondents for the aforesaid offence, without any evidence toprove the same. [Paras 19-21][1170-A-F]

1.5 The prosecution has failed to link the chain ofcircumstances so as to dispel the cloud of doubt about theculpability of the respondents. A suspicion, however grave itcannot take place of proof, i.e., there is a long distance between“may be” and “must be”, which must be traversed by theprosecution to prove its case beyond reasonable doubt. In thepresent case, the cumulative effect of the aforesaid investigativelapses has fortified the presumption of innocence in favor of theaccused-respondents. In such cases, the benefit of doubt arisingout of a faulty investigation accrues in favor of the accused. Thereexists no perversity in the judgment of the High Court. Theconcurrent order of acquittal for offences committed under theArms Act and Explosive Substances Act is also not interferedwith. [Paras 22, 24, 26 and 27][1170-F-G; 1171-B-F]

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ABannareddy and Ors. v. State of Karnataka and Ors.(2018) 5 SCC 790 ; RabindraKumar Pal @ DaraSingh v. Republic of India (2011) 2 SCC 490 : [2011] 1SCR 929 ; Mulla v. State of UP (2010) 3 SCC 508 ;Kailash Gour and Ors. v. State of Assam (2012) 2 SCC34 – relied on.B

Narendra Singh v. State of MP (2004) 10 SCC 699 –referred to.

From the Judgment and Order dated 29.05.2009 of the High Courtof Judicature at Allahabad in Criminal Appeal Nos. 1419, 1430, 1518,E898 of 2004 and Government Appeal No. 5270 of 2005.

Dinesh Kr. Goswami, Ankur Prakash, K. Luikang Michael,Sushil Tomar, Ashutosh K. Sharma, Garvesh Kabra, T. Mahipal,Ms. Kamini Jaiswal, Mohd. Irshad Hanif, Arif Ali Khan, Adeel Siddiqui,Rizwan Ahmad, Sheik Moulali Basha, Aamir Naseem, Naeem Ilyas,FRam Mishra, Jatinderpal Singh, Siddhartha Dave, Farrukh Rasheed,Abu Bakr Sabbaq, Ms. Jemtiben AO, Advs. for the appearing parties.

The Judgment of the Court was delivered by

N. V. RAMANA, J.

1. These appeals by special leave arise out of the commonGimpugned judgment dated 29.05.2009, passed by the High Court ofAllahabad in Criminal Appeal Nos. 1419, 1430, 1518 and 898 of 2004,whereby the High Court has reversed the judgment of conviction passedby the Additional Sessions Judge, Kanpur in Sessions Trial No. 164/2002dated 22.01.2004 under Sections 302 read with 149, 307 read with 149,H148 IPC and Section 7 of Criminal Law Amendment Act, 1932. Whereas the High Court in Government Appeal no. 5270 of 2005 preferred by theappellant-State, has dismissed the appeal against the acquittal of accusedno.1-respondent (Wasif Haider) for offences under Sections 25 and 27of Arms Act, 1959 and Sections 4 and 15 of Explosive Substances Act,1908, while affirming the judgment dated 3.8.2005 passed by the AdditionalSessions judge, Kanpur acquitting the accused no.1-respondent (WasifHaider) in Sessions Trial No. 143 and 144 of 2002.

2. Brief facts as unfolded from the prosecution story are that,while the complainant (P.W.2- S.O., P.S. Moolganj, Kanpur) along withother police personnel was on duty at the parade crossing, he came toknow that a crowd of around 200-300 rioters were causing rampageand destruction at the Chaubey Gola Temple. Immediately, thecomplainant accompanied by the police force and A.D.M (Finance andRevenue)-Sri Chandra Prakash Pathak (hereinafter referred as “thedeceased”), and half a section of Provincial Armed Constabulary[“PAC”] proceeded towards scene of occurrence. Admittedly, whenthe deceased along with police personnel were at a distance of around100-150 paces from Sunehri Mosque on the Nai Sarak, rioters startedfiring upon them resultantly injuring the deceased and his orderly, RamChandra. In order to control the law and order situation, the police werecompelled to fire in their defense. When the police party reached themosque, the rioters had already fled away. Subsequently, when the policeparty reached Chaubey Gola Temple where rioters had already lootedsome houses and had also committed arson. In the meanwhile, the policealso received the information that the deceased had succumbed to thegunshot injuries in the hospital. Finally, the F.I.R., Case Crime No. 7 of2001 came to be registered at 8.05P.M. on 16.03.2001 against 200-300unknown rioters.

3. On the same night, after conducting the inquest proceedings,the dead body was sent for post mortem examination and the investigationcommenced. The investigation officer after recording the statement ofwitnesses, inspected the place of occurrence and prepared Site Planext. Ka-6. A bullet which was recovered from the ashes of deceasedwas sent for Forensic examination.

4. On 02.08.2001 accused no. 2-respondent (Mumtaz aliasMaulana) was brought to Kanpur by the Delhi police. On 04.08.2001,accused no. 1-respondent (Wasif Haider) was arrested. Accused no. 3-respondent (Hazi Atiq) and accused no. 4-respondent (Safat Rasool)

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Awere arrested on 17.09.2001 and 18.09.2001 respectively and thereafterthe Test Identification Parade (hereinafter referred to as “TIP”) washeld on 27.09.2001 at District Jail, Kanpur. Subsequent to the completionof investigation, the charge-sheet was submitted.

5. The accused pleaded not guilty and claimed to be tried. It isBpertinent to note that in the statements made by the accused under Section313 of Cr.P.C. They claimed that there existed an inordinate delay inconducting the TIP, as this time period was used by the prosecutionwitnesses to see them at their homes or places of work to mark themcarefully for the subsequent identification. They stressed on the factthat they were not kept concealed in a veil (baparda). The accused-Crespondents have further stated that, prior to the TIP, the police hadtaken their photographs and had shown it to the other witnesses. Thiscreates a considerable doubt about the genuineness of the TIP. Further,the accused-respondents have alleged that, they were wrongfully ropedin the case when the police failed to trace the real culprits. The accusedDrespondents have also put forth that, although they had clear antecedents,but they were implicated in the crime falsely.6. By order dated 22.01.2004, the trial court, while relying uponthe prosecution version, rejected the defence story and convicted theaccused persons as under, ECONVICTIONCHARGESACCUSEDS. 302/ 149 IPC Life Imprisonment [1]. Wasif Haider [A-S. 307/ 149 IPC RI for 5 years 1] F[2]. Mumtaz alias S. 148 RI for 1 year Maulana [A-2] S. 7 Criminal Law RI for 3 months [3]. Hazi Atiq [A-3] Amendment Act [4]. Safat Rasool [A-All of them were acquitted for the charges under 4] GSections 395, 397, 436 and 153A IPC. Acquitted for charges under Sections 25 and 27 of Arms Act, 1959 and Sections 4 and 15 of Explosive Wasif Haider [A-1] Substances Act, 1908. H

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7. Aggrieved by the abovementioned order of conviction andsentence, the accused-respondents appealed before the High Court. TheHigh Court on analysis of evidence found that, not only there existsvarious contradictions in the testimonies of the prosecution witnessesbut there exists lack of corroboration of the same. While passing theorder of acquittal the High Court observed that the case of prosecutionwas ridden with flaws in investigation, most importantly the identificationof the accused was highly suspicious and the TIP was held to be “toogood to be believed”. Accordingly, the High Court through the impugnedjudgment acquitted the accused-respondents and set aside the aforesaidorder of conviction as the prosecution failed to prove its case beyondreasonable doubt.

8. Aggrieved by the impugned order passed by the High Courtacquitting all the accused, the State of Uttar Pradesh has preferred theseappeals.

9. The learned Counsel, Mr. Dinesh Kumar Goswami, on behalfof the appellant-State while supporting the prosecution’s case, submittedthat pursuant to the arrest of the accused-respondents their identificationwas properly done after taking due precautions and following theprocedure. Moreover, the prosecution witnesses had clearly identifiedthe accused persons in the identification parade and in the court as well.On the issue of delay caused in conducting the TIP, the counsel alsovehemently submitted that, there was no inordinate delay in conductingthe TIP as canvassed by the counsels for the accused-respondents. TheHigh Court has committed a grave error by not placing reliance on theTIP as there is nothing on record to vitiate the results of the same.Lastly, the learned counsel submitted that since there existed sufficientevidence to prove the culpability of the accused-respondents, the SessionsJudge had correctly passed the order of conviction against them andtherefore prayed for setting aside the impugned order.

10. On the other hand, the learned Counsel, Ms. Kamini Jaiswal,appearing on behalf of the accused-respondents no. 1, 3 and 4, whilesupporting the order of acquittal rendered by the High Court, submittedthat, the entire prosecution story hinges on the identification of theaccused-respondents, the genuineness of which in itself is questionable.It was further argued that, when admittedly the witnesses were at agreat distance from the place of occurrence, it was not plausible to identify AB

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Aspecifically the accused-respondents, that too in the absence of anyparticular hulia or distinguishing marks from amongst a crowd of 200-300 rioters. Further, there was inordinate delay in conducting the TIPwhich was fatal for the prosecution.

11. Further, the learned Counsel, Mr. Siddhartha Dave, on behalfBof accused-respondent no. 2 submitted that accused-respondent no. 2has been dragged into the matter only on account of confessionalstatement of the co-accused which has not been corroborated, and noother incriminating evidence is available on record.

12. Heard learned counsels for the parties. At the outset, we wouldClike to state that in an appeal against acquittal, the appellate court wouldinterfere only where there exists perversity of fact and law [SeeBannareddy and Ors. v. State of Karnataka and Ors., (2018) 5 SCC790]. Further, the presumption of innocence is further reinforced againstthe acquitted-accused by having a judgment in his favor [See RabindraKumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490 inDpara. 94].

13. We concur with the aforesaid order of acquittal rendered bythe High Court, as the present case is ridden with multiple investigativelaches and flaws which goes to the root of the matter. We shall beaddressing the same in seriatim.E

14. Firstly, it is apt to note that out of the seven eye witnesseswho participated in the TIP, five of them identified the accused withoutcommitting any mistake. As observed by the accused no.3-respondent,Hazi Atiq has big protruding teeth, the accused no.4-respondent SafatRasool was suffering from polio hence had permanent physical disability,Fbut surprisingly this fact was never mentioned either in the F.I.R. or inthe witness statements. The specific identification of the four accused-respondents, from a group of 200-300 rioters, with 100% perfection;without a mention of any distinguishing marks seems highly improbableconsidering the distance of the witnesses from the place of occurrence.GMoreover, there existed an inordinate delay of 55 days in conducting theTIP of the accused no.1 and 2. Although, the involvement of accusedno.3 and 4 was brought to light on 03.08.2001 itself, the prosecution didnot take any effort to arrest or interrogate them for 6 weeks. But noreasonable explanation was provided for the aforesaid inordinate delay.

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15. Furthermore, no documentary evidence has been provided toproof that the identity of the accused was kept concealed. On the contrary,D.W.3, Mohd. Shamim Siddique, Record Keeper in the Police Officestated that the general diary does not mention that the accused no.2-respondent Mumtaz alias Maulana was kept baparda. The defencealso pleaded that, the aforesaid inordinate delay was used by theprosecution witnesses to see the accused-respondents at their homes orplaces of work to mark them carefully for the subsequent identification.Additionally, accused no.1-respondent Wasif Haider, in his statementunder Section 313 Cr.P.C. went to the extent of saying that, prior to theTIP he was shown to the witnesses and his photographs and videotapeswere prepared. In Mulla v. State of U.P., (2010) 3 SCC 508 para 55,this court laid down that a TIP has to be conducted timely, if not, then thedelay has to be explained and such delay should not cause exposure ofthe accused. However, in the case at hand, not only there was a delay inconducting the TIP, but no explanation for the same has been forthcomingfrom the prosecution. This creates a considerable doubt about thegenuineness of the TIP.

16. Secondly, it is surprising that, although the post-mortem reportdescribes that there were only two wounds in the body of the deceased,one being the entry and the other being the exit wound, allegedly a bulletwas still recovered from the ashes of the deceased. The F.S.L. reportshows that this bullet was charred and blistered. This recovery of bulletfrom the ashes of the deceased is irreconcilable with the post-mortemreport which allegedly states an exit wound, implying that the bullet hadalready left the body. The aforesaid fact raises a suspicion on both thePost-Mortem report and the F.S.L. report as they are incompatible witheach other.

17. Thirdly, the prosecution has failed to establish that the bulletallegedly recovered from the ashes of the deceased 20 days later wasindeed fired from the pistol recovered from accused-respondent WasifHaider. Even, the recovery of pistol is doubtful. While, the prosecutioncase reveals that one .380 bore pistol colt was recovered from thepossession of the accused-respondent Wasif Haider, on the contrary,the evidence of P.W.2-S.O., Rajendra Dhar Dwivedi reveals that one.320 bore pistol colt was recovered pursuant to his arrest. Additionalcontradiction can be seen in the sanction order wherein two pistols of.380 bore were shown to be recovered from the possession of theaccused-respondent Wasif Haider.

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A18. Fourthly, as regards to the place of incident, the prosecutionfailed to ascertain the same with precision. While the F.I.R. reveals theplace of occurrence to be in front of Sunehri Masjid, P.W.2, thecomplainant later improved over his earlier statement and stated that,the incident actually took place in Noorani Masjid. On the contrary, thetwo site plans show the place of incident to be Noorani Masjid.B

19. Fifthly, the prosecution failed to examine Ram Chandra, theorderly of the deceased who was also injured in the same incident andhad suffered a gunshot injury. The prosecution was also unable to provethe injury report of the above victim. Such a failure is fatal to theprosecution case as his presence in the place of occurrence is beyondCdoubt. It has been placed on record that, despite Ram-Chandra attendingthe proceedings of the trial regularly he was not examined by theprosecution.

20. Sixthly, the prosecution has also failed to adduce anyindependent witness. Even though it is wrong to disbelieve the evidenceDadduced from the official witnesses, but prudence demands that theirevidence needs to tested on the altar of strict scrutiny. Considering theaforesaid facts and circumstances, the evidences adduced by theprosecution witnesses do not inspire the confidence of this Court.

21. Lastly, it is surprising that although the charges have beenEframed under Section 307 of IPC, the prosecution has absolutely failedto substantiate the charges by means of evidence. It is rather unfortunatethat the courts below have failed to take note of the same. The trialcourt has erred in convicting the respondents for the aforesaid offence,without any evidence to prove the same.F

22. In the instant appeals before us, the prosecution has failed tolink the chain of circumstances so as to dispel the cloud of doubt aboutthe culpability of the accused-respondents. It is a well settled principlethat a suspicion, however grave it may be cannot take place of proof,i.e., there is a long distance between “may be” and “must be”, whichGmust be traversed by the prosecution to prove its case beyond reasonabledoubt [See Narendra Singh v. State of M.P., (2004)10 SCC 699].

23. This Court in Kailash Gour and Ors. v. State of Assam,(2012) 2 SCC 34 has held that, “44. The prosecution, it is axiomatic, must establish its caseHagainst the accused by leading evidence that is accepted by

the standards that are known to criminal jurisprudenceregardless whether the crime is committed in the course ofcommunal disturbances or otherwise.In short, there can onlybe one set of rules and standards when it comes to trials andjudgment in criminal cases unless the statute provides for anythingspecially applicable to a particular case or class of cases…”

(emphasis supplied)

24. In the present case, the cumulative effect of the aforesaidinvestigative lapses has fortified the presumption of innocence in favorof the accused-respondents. In such cases, the benefit of doubt arisingout of a faulty investigation accrues in favor of the accused.

25. Although we acknowledge the gravity of the offence allegedagainst the accused-respondents and the unfortunate fact of a seniorofficial losing his life in furtherance of his duty we cannot overlook thefact that the lapses in the investigation have disabled the prosecution toprove the culpability of the accused. The accused cannot be expected torelinquish his innocence at the hands of an inefficacious prosecution,which is ridden with investigative deficiencies. The benefit of doubt arisingout of such inefficient investigation, must be bestowed upon the accused.

26. In our opinion, there exists no perversity in the judgment ofthe High Court. Further, in the absence of compelling reasons, this Courtis not keen to entertain these appeals challenging the order of acquittal.

27. We are also not inclined to interfere with the concurrent orderof acquittal for offences committed under the Arms Act and ExplosiveSubstances Act presently before us in Criminal Appeal no. 1706 of 2014.

28. The appeals are accordingly dismissed. Pending applications,if any, shall also stand disposed of.

Divya Pandey

Appeals dismissed.

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