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2018 Supreme(All) 117
ALLAHABAD HIGH COURT
BEFORE : SHASHI KANT GUPTA AND RAJEEV MISRA, JJ.
SAGHEER AND OTHERS ....Appellants
Versus
STATE OF U.P. ....Respondent
(Criminal Appeal No. 2443 of 1987, decided on 9th February, 2018)
A.M. Tripathi and Zafar Abbas for the Appellants; A.G.A. for the Respondent.
Headnote:(Indian) Penal Code, 1860 – Sections 449 and 302/34 – Evidence Act, 1872 – Section 145 – Criminal Procedure Code, 1973 – Section 294 – General Rules Criminal – Rule 77 – Murder – Conviction – Sustainability of – Whether Court below was right in convicting the accussed-appellants by accepting the prosecution story as probable? – (No) – Reliability of prosecution witnesses, i.e., PW-1-the first informant and PW-2-widow of deceased – Manner of evaluation of eye-witness account and medical evidence i.e., post-mortem report – PW 1 and PW 2 are related witnesses – Evidence of such witnesses has to be examined with caution and circumspection – PW 1 and PW 2 deposed that accused persons were armed with Chaku, Suja and Kutta and inflicted blows with weapons in hands on deceased – Prosecution story as stated in F.I.R. does not inspire confidence – Also not possible to believe that PW 2, wife of deceased was sleeping alongwith her Jeth and others in Courtyard where incident took place – Incised wounds have not been proved to be caused by knife as no medical expert evidence supporting the same was adduced – Prosecution also failed to explain anomaly regarding time of lodging of the F.I.R. – Court below held erred in convicting accused-appellants by simply believing testimony of PW-1 and PW-2 as reliable – Impugned conviction set aside. [Paras 29 to 62]
Result; Appeal Allowed.
Hon’ble Rajeev Misra, J.—The short question involved in the present criminal appeal is whether the Court below was right in convicting the accussed-appellants by accepting the prosecution case as probable.
2. Mr. Zafar Abbas, learned counsel for the accused appellants and Mr. Ajit Ray, the learned A.G.A. have been heard at length, in support of and in opposition to the appeal.
3. Feeling aggrieved by the judgement and order dated 12.10.1987 passed by the Ist Additional Sessions Judge, Rampur, in Sessions Trial No. 254 of 1986 (State v. Sagheer and others) whereby, the accused appellants have been convicted under Section 449 and 302/34 IPC and further sentenced to undergo two years rigorous imprisonment under Sections 449 IPC and Life imprisonment under Section 302/34 IPC, the accused appellants have filed the present criminal appeal.
4. The instant appeal was filed on 13.10.1987 in this Court. vide order dated 13.10.1987, the accused appellant No. 2 Ikrar and the accused appellant No. 3 Ram Charan were released on bail. The appellant No. 1 was released on bail vide order dated 14.1.1988. During the pendency of the instant appeal, the accused appellant No. 3 Ram Charan died. Consequently, vide order dated 11.1.2017, passed in the present criminal appeal, the appeal was abated against the accused appellant No. 3 Ram Charan.
5. From the record, it transpires that an incident occurred in the night of 12/13.8.1986, at around 1 pm in the house of Karamat Shah in which Salamat Shah the brother of Karamat Shah is alleged to have been murdered.
6. An F.I.R. dated 13.8.1986 (Ext. Ka-12) is reported to have been lodged by the first informant Karmat Shah at Police Station Azimnagar, Rampur, naming the accused appellants therein. On the basis of the aforesaid F.I.R., Case Crime No. 103 of 1986, under Sections 452, 302 IPC, P.S. Azimnagar, District Rampur came into existence. According to the check F.I.R. the same is reported to have been lodged on 13.8.1986 at 6:55 am.
7. The prosecution story as unfolded in the F.I.R. is to the following effect.
8. That in the night of 12-13.8.1986 Karamat Shah, his younger brother Salamat Shah, Kubra wife of Salamat Shah and Aslam cousin brother of Karamat Shah were sleeping in the Courtyard (Angan) of the house. A dibiya (home made lantern) was burning on the Takh (a place carved out in the wall for keeping things). Around 1:00 pm the tatiya (bamboo fence) was removed and due to the sound generated by the removal of the same, the first informant Karamat Shah as well as others woke up. The first informant then saw that Sagheer son of Mohammad Ahmad Khan, armed with Chaku (knife) Ram Charan son of Bhim Gadariaya armed with kutta (small axe) and Ikrar son of Mohammad Hussain armed with Suja (a spear like weapon which is triangular in shape at the base and gradually points at the top with a pointed edge) have entered the home. Thereafter Sagheer rebuked that today revenge shall be taken of the old enmity with Salamat Shah and he be done to death. Consequently, Salamat Shah who was sleeping on the cot was assaulted by above named accused persons. Upon alarm being raised Mohammad Zamir son of Amir Ahmad and Asghar son of Dilwar Shah armed with torch and Danda came running to the house then the accused persons ran out of the house. The first informant, the residents of the house and the witnesses saw the accused persons in the light of the dibiya and torch and recognized them. The accused persons were chased but they ran away. The first informant went near the cot and saw that Salamat Shah was dead. On account of the old enmity, the first informant out of fear could not come to the police station to lodge the F.I.R.
9. According to the prosecution case, the incident in question was witnessed by Karamat Shah, the first informant, Smt. Kubra widow of Salamat Shah, Aslam the cousin brother of the fi
