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HIGH COURT OF ALLAHABAD
M.M. HUSAIN, S.C. MATHUR, JJ.
Jamal Ahmad - Appellant
Versus
State Of U.P. - Respondent
Cr. As. Nos. 664 and 796 of 1977
Decided on : Oct 03, 1978
CRIMINAL APPEAL - Murder - Conviction and sentence - Set aside - Prosecution case - Inherent infirmities - Lodging of FIR - Delay in recording statements of witnesses - Investigation - Tainted - Eye-witnesses - Testimony - Not reliable - Benefit of doubt - Accused entitled to.
Fact of the Case:
The appellants were convicted and sentenced for the murder of Fakhrul Hasan. The prosecution alleged that the appellants had killed Fakhrul Hasan because of a love affair between Fakhrul Hasan and Nasim, the daughter of appellant Aziz Ahmad. The appellants denied the charges and claimed that they were falsely implicated.
Finding of the Court:
The court found that the prosecution case was full of inherent infirmities. The court held that it was impossible to believe that the deceased would accompany appellant Jamal Ahmad to the place of occurrence without even asking him where he was going. The court also found that the lodging of the FIR at the time it was alleged to have been lodged was extremely doubtful. The court further found that the investigation was tainted and that the statements of the eye-witnesses were not reliable.
Issues: 1. Whether the prosecution case was inherently improbable? 2. Whether the investigation was tainted? 3. Whether the testimony of the eye-witnesses was reliable?
Ratio Decidendi: 1. The court held that the prosecution case was inherently improbable because it was impossible to believe that the deceased would accompany appellant Jamal Ahmad to the place of occurrence without even asking him where he was going. The court also found that the lodging of the FIR at the time it was alleged to have been lodged was extremely doubtful. 2. The court held that the investigation was tainted because there was a delay in recording the statements of the witnesses and because the Investigating Officer had made interpolations in the inquest report. 3. The court held that the testimony of the eye-witnesses was not reliable because they had made contradictory statements and because they had disappeared from the scene of occurrence before the arrival of the Investigating Officer.
Final Decision: The court allowed the appeal and set aside the conviction and sentence of the appellants. The court held that the appellants were entitled to the benefit of doubt.
S. C. Mathur, J.
1. THE present four appellants, viz., Jamal Ahmad, Sajjad Ahmad, Aziz Ahmad alias Lallu and Javed Ahmad Khan were tried along with Quresh Ahmad Khan,Razi Ahmad Khan and Babu Khan for the murder of Fakhrul Hasan alias Fakku son of Sri Izhar Alam alias Munna Miyan. The murder of Fakhrul Hasan alias Fakku was said to have been committed on 14-3-1976 at 3.30 PM. The father of Fakhrul Hasan, who lodged the first information report was alleged to have received the information of murder at about 5 PM at his Chakki and thereafter he was alleged to have lodged the first information report on that very day at 5.45 PM. The distance between the place of occurrence and PS Manikpur where the report was lodged was five miles. The report was alleged to have been scribed by Shah Parvez, the nephew of the informant. The informant claimed to have gone to the Police Station himself along with his nephew Israr Husain.
2. THE occurrence had taken place in village Oonchgaon which is also known as Mubarakpur within the circle of PS Manikpur, District Pratapgarh. The post-mortem on the body of the deceased was done by Dr. R. N. Katiyar (PW 9) on 15-3-1976 at 11.30 AM. The prosecution in support of its case examined 16 witnesses. On behalf of the defence Sri R. K. Sharma (DW 1) was produced. As indicated hereinbefore seven persons were accused before the learned court below. Out of these seven persons four were convicted by the learned Sessions Judge and the remaining three were acquitted. All the seven persons who were tried by the learned Sessions Judge belonged to the same family and their relationship with each other would be evident from the following pedigree;-
Quresh Ahmad Khan
Sajjad Ahmad Aziz Ahmad Razi Ahmad Babu Khan
Khan Khan Khan
Javed Ahmad
Khan Sm. Naseem Jamal Ahmad
All the persons shown in the; above pedigree except Smt. Naseem were accused before the learned Sessions; Judge. The appellant Sajjad and Jamal were convicted under Sections 302/149 IPC while appellant Aziz Ahmad alias; Lallu and appellant Javed Ahmad Khan were convicted under Section 302 IPC simplicitor. Apart from an appeal having been filed on behalf of the four convicted persons, the State has also filed an appeal in respect of the sentence; awarded against the persent appellants,, The State has not filed any appeal against the acquittal of Quresh Ahmad Khan, Razi Ahmad Khan and Babu Khan shown in the above pedigree. Appellant Sajjad Ahmad Khan was said to have been armed with lathi, while appellant Aziz Ahmad Khan was alleged to have been armed with a pistol. Javed Ahmad Khan was alleged to have been armed with a Gandasa like weapon and he was alleged to have severed the head of the deceased from the body.
3. THE occurrence which resulted in the death of Fakhrul Hasan was alleged to have been witnessed by two persons, viz., PW 1 Mirchoo and PW 2 Mohan. The post-mortem examination on the body of the deceased by Dr. R. N. Katiyar indicated the following external ante-mortem injuries:-
1. Third degree burn 1"- x 3/4" on the left flank 1-1/2" above iliac crest C blackening 1/2" around it.
2. Incised wound 1/2" x 1/4-' x muscle deep on the lower part of left side chest just below left nipple.
3. Gun shot wound of entry 1-1/10" x 1-1/10" x chest cavity deep on the front and middle of chest below nipple.
4. Gun shot wound of entry 2" x 1-1/2" on the front of right arm 3-1/2" below from the top of right shoulder gunshot wound of entry same 1" x 1" x chest cavity deep on in right side of chest frnt 4-1 /2" below top of right shoulder at She level of injury no. 4.
5. Gunshot 4/10" x 4/10" x bone deep on the front of chest 1/2" left to injury no. 3.
6. Incised wound 4-1 /2" x 5" x through whole of neck at the level left cirvical vertebrae at the base of neck. The neck and head is missing.
7. Incised wound 1-1/2" x 1" muscle deep in the left and upper part of chest with two abrasions 2"xl/2" on the left side of wound and abrasion 4" x 1/3" on th
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