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2015 Supreme(All) 3963
ALLAHABAD HIGH COURT
Shashi Kant Gupta, Om Prakash-VII, JJ.
Mobin & Others - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 3280 of 1985
Decided On : 20-07-2015
For the Appellant :- Daya Shankar Mishra, Mukhtar Alam, Km. Ifra Islam, Raj Kumar, V. Saran, S.P.S. Raghav, Sami Ullah Khan
For the Respondent:- A.G.A., S.P.S. Raghav, Shailendra Awasthi, Sunil Kumar Singh and Rajiv Kumar.
The court reiterated the principles of evidence evaluation, including the consideration of ocular and medical evidence, the assessment of contradictions and improvements in witness statements, and the determination of the presence of an unlawful assembly and its common object.
Headnote:
CRIMINAL APPEAL - [KEYWORD] - [SUBJECT] - [ACT SECTION LIST] - [SUMMARY]
Fact of the Case:
The case involves a criminal appeal challenging the conviction and sentencing of several accused appellants for offenses under Sections 302, 307, and 148 of the Indian Penal Code (IPC). The prosecution alleged that the appellants, along with others, formed an unlawful assembly and committed murder, attempted murder, and rioting. The appellants denied the allegations and claimed false implication.
Finding of the Court:
The court analyzed the evidence presented by the prosecution and the defense, including witness testimonies, medical reports, and police records. The court found that the prosecution had successfully established the guilt of the appellants beyond reasonable doubt. The court held that the appellants had actively participated in the unlawful assembly and had committed the offenses in furtherance of its common object.
Issues: 1. Whether the prosecution had proved the charges against the appellants beyond reasonable doubt. 2. Whether the FIR was hit by the provisions of Section 162 of the Code of Criminal Procedure (CrPC). 3. Whether there was a delay in lodging the FIR and sending the special report. 4. Whether the medical evidence supported the prosecution case. 5. Whether the presence of the eyewitnesses at the scene of the occurrence was established. 6. Whether the contradictions and improvements in the statements of the eyewitnesses were fatal to the prosecution case.
Ratio Decidendi: 1. The court held that the prosecution had proved the charges against the appellants beyond reasonable doubt based on the ocular and medical evidence, which was corroborated by other reliable evidence. 2. The court held that the FIR was not hit by the provisions of Section 162 of the CrPC as it was not a second FIR but the formal FIR in the case. 3. The court held that the delay in lodging the FIR and sending the special report was not sufficient to discard the ocular testimony and other reliable evidence. 4. The court held that the medical evidence supported the prosecution case as the injuries found on the deceased and the injured witnesses were consistent with the time and manner of the incident. 5. The court held that the presence of the eyewitnesses at the scene of the occurrence was established from the prosecution evidence and that the contradictions and improvements in their statements were not fatal to the prosecution case.
Final Decision: The court dismissed the criminal appeal and upheld the conviction and sentence imposed upon the accused appellants by the trial court. The court directed the appellants to surrender and serve out the remaining sentence.
JUDGMENT
Om Prakash-VII, J.
1. This criminal appeal has been preferred by the accused appellants against the judgement and order dated 5.12.1985 passed by the VIIth Additional District & Sessions Judge, Ghaziabad in Session Trial No. 414 of 1983 (State of U.P. vs. Mobin and others) convicting and sentencing the appellants for the offence punishable under Section 302 IPC read with Section 149 IPC to undergo life imprisonment, for the offence under Section 307 IPC read with Section 149 IPC to undergo three years rigorous imprisonment and for the offence under Section 148 IPC to undergo two years rigorous imprisonment. All the sentences have been directed to run concurrently.
2. At the outset, it is relevant to mention here that during pendency of this appeal, the appellant no.1 - Mobin @ Momin, appellant no.2 Kalwa, appellant no.7 Firasat, appellant no.8 Intzar and appellant no.9 Sadaqat Ali have died. Accordingly, vide orders dated 10-03-2015, this Court has abated the appeal in respect of the appellant no.1 - Mobin @ Momin, appellant no.2 Kalwa, appellant no.7 Firasat, appellant no.8 Intezar and appellant no.9 Sadaqat Ali.
3. Now, we are proceeding to consider the present appeal in respect of rest of the appellants i.e. Akidat, Tasreef, Anis, Ali Murtaza and Inshad.
4. The facts of the case, as unfolded by the informant Shakil Ahmad son of Zarif Ahmad in the First Information Report (in short 'FIR'), are that in the morning of 13.7.1983 at 7.00 a.m. his uncle Riyasat was coming from the fields. When he reached near a culvert on the chak-road, Mobin, Kalwa son of Fida Husain and Tahir @ Chunna surrounded him and caused injuries with LATHI and DANDA and fell down to the ground. Information about the incident was given to the informant by Shaukin son of Ahsan, informant alongwith his brother Kalwa and cousin Sabir rushed to the place of incident and found Riyasat lying injured on the ground. The miscreants fled away from the scene to settle all the litigations. The informant and his brother took Riyasat to their house. Zarif and Munazar, who were also sitting there at that time, advised them to arrange for some carriage and to go to the police station to lodge a report. At that time, villagers, namely, Abid son of Mohd. Shafi, Mukarib son of A. Rahim, Umed son of A. Ghani, and Irshad son of Azam Ali had also reached at 'Baithak' after receiving information about the incident. When conversation was going-on, the accused Mobin son of Bundu, Kalwa son of Fida Hussain, Tasreef son of Jamshed, Anis Ahmad @ Shah Alam son of Mobin, Fida Hussain son of Amir Hussain, Tahir son of Ali Hussain, Sadaqat son of Naseer, Ali Murtaza son of Kale, Akidat son of Mansab armed with guns and Intezar son of A. Ghani , Firasat son of Intezar and Inshad, brother-in-law of Firasat, armed with country made pistols reached there at 7.30 a.m.. On exhortation of Mobin and Akidat to kill them, all the accused opened fire on all the persons who were present in the 'Baithak' with the intention to kill them. The informant, his brother Abid, Mukarib, Umed, Irshad Ali and the aunt of the informant rushed inside the house and hiding themselves behind the walls of the house and the roof, saw the incident through a hole in the wall. They saw that the accused were firing inside the Baithak of the Zarif through the eastern and western side windows of the Baithak. Accused Mobin was shouting that none should be spared. Due to the indiscriminate firing, Zarif sustained injuries and he tried to escape from that place by running away getting out from the Baithak. However, while he was trying to run away, the accused Mobin, Kalwa and Aqidat fired at him from the hay-stack lying near the door of the house of Zarif. On receiving the shots, Zarif fell down on the ground and died on the spot. Riyasat and Munazar also received fire-arm injuries and were not in a condition to speak. They were taken to the hospital by the villagers and the informant went to the police station to lod
