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2018 Supreme(All) 928
ALLAHABAD HIGH COURT
BEFORE : VIPIN SINHA AND IFAQAT ALI KHAN, JJ.
STATE OF U.P. ....Appellant
Versus
PEERA @ MAVALI AND OTHERS ....Respondents
(Government Appeal No. 2025 of 1988, decided on 20th August, 2018)
Counsel :
A.G.A. for the Appellant; Arvind Srivastava, Hare Ram Tripathi, Nazrul Islam Jafri, Rajrishi Gupta, Dileep Kumar and Muktesh Singh for the Respondents.
Headnote:(A) Criminal Procedure Code, 1973 – Section 154 – FIR – Ante-timed – Murder – FIR registered within 20 minutes of incident however it is long narration of fact and its dictation would have itself taken more than 20 minutes – After preparation of such a long FIR informant could not have reached police station at mentioned time – Nowhere it is stated that how he reached police station neither in F.I.R nor in his statement – Hence it was prepared after appreciable delay and was product of undue deliberations and consultations – Neither scribe of FIR nor Constable concerned who prepared chick examined – Held FIR was anti-timed. [Paras 21 and 22]
(B) (Indian) Penal Code, 1860 – Section 300 – Murder – Proof – Presence of eye-witness at time and place of occurrence – Two eye-witnesses stated to have seen incident – However one of them is chance as well as interested witnesses – He could not give correct description of accused – His statement could not be relied – Other witness’s conduct who is complainant is highly unnatural – Further his non-examination by I.O. at police station as well as on spot also showing that complainant was not present on place of occurrence – Held conviction based on testimony of such eye-witnesses liable to be set aside. [Paras 23 to 29]
(C) (Indian) Penal Code, 1860 – Section 300 – Murder – Motive – Proof – In respect of motive most important witness not examined without any reason – Held prosecution failed to prove motive due to withholding best evidence. [Para 31]
(D) (Indian) Penal Code, 1860 – Section 300 – Murder – Proof – Non-explanation of injuries of accused – Held, prosecution case doubtful. [Para 32]
Hon’ble Ifaqat Ali Khan, J.—Heard Sri Rahul Srivastava appearing for the State of U.P., Sri Nazrul Islam Jafri, Shri Rajrishi Gupta1 and Shri Hare Ram Tripathi for learned counsel for the respondents.
2. This Government Appeal No. 2025 of 1988 (State v. Peera and others) is filed by the State to set aside the judgment and order dated 11.5.1988 passed by Sessions Judge Sahjahanpur in Sessions Trial No. 118 of 1986 (State v. Peera and others) by this impugned judgment dated 11.5.1988 all the accused namely Peera, Mod. Ali and Asif were acquitted of the charges under Sections 307/34 IPC and 302/34 IPC. Respondent Mohd. Ali has expired during the pendency of this appeal.
3. This appeal is preferred against the impugned judgment on the grounds that order of acquittal is wholly erroneous and illegal against the weight of evidence on record. There was nothing suspicious about the FIR and the Court below has erred in law by doubting the genuineness of F.I.R. Witness examined by prosecution are independent and reliable, contrary view taken by the Trial Court is erroneous. FIR was not Ante-time and the Court’s view is against the record, the Court below has erred in law by holding that the defence version was more probable. Presence of witness on the spot was fully established and proved and the contrary view is erroneous. Motive of committing the murder of Rajendra was fully established and proved and contrary view taken by the Trial Court is against the record. There was nothing suspicious about inquest report and contrary view is erroneous. The defence version including the alleged alibi was an after thought. The Court below has erred in law by holding the defence version more probable.
4. The prosecution case as disclosed by its evidence and FIR is that Raj Kumar is a nephew of complainant P.W. -1 Subedar and deceased Rajendra was the son of complainant Subedar at about 13 months before the present incident Shahid and Jamil had fired at Raj Kumar with an intention to murder him. In that incident Raj Kumar was injured and a case under Section 307 IPC was proceeding in the Court against Jamil and Shahid. In that case accused Peera, Mohd. Ali and Asif were doing paravi of accused Sahid. In this connection accused Peera, Mohd. Ali and Asif pressurized Raj Kumar not to give evidence against Shahid they also asked him to stop the witnesses of fact from giving evidence. Raj Kumar did not agree to this proposal, therefore, all the three accused became inimical with Raj Kumar and they went away intimidating Raj Kumar with dire consequences. On 29.10.1985 at about 3:00 p.m. in Village Aithapur within the circle of Police Station Sehramau South, District Sahajahanpur when P.W.1 Subedar his deceased Son Rajendra, Nephew Raj Kumar, P.W.2 Bhagwan Baksh Singh, Brij Mohan, Ram Avtar and Janjali Ram were going to Village Aithapur in order to negotiate the sale of She-Bufallow belonging to Rajesh they were proceeding on kacchi patri of road on right side near village Aithapur at that place a truck coming from the side of Shahbad arrived and stopped there and accused/respondents Mohd. Ali armed with gun, accused Peera armed with country made pistol and accused Asif Ali armed with lathi got down from the truck. Accused Peera and Mod. Ali are the real brothers and accused Asif is their friend. Getting down from the truck all the three accused challenged Raj Kumar saying that they would not spare his life and they will not leave him to fight the case. Asif exerted accused Mohd. Ali and Peera to kill shot Raj Kumar accused/respondent Peera fired at Raj Kumar with his country made pistol but Raj Kuamr escaped. In the meantime deceased Rajendra challenged accused persons on it accused Mod. Ali fired with his gun at Rajendra, on being hit by gun shot Rajendra fell down on the ground, after it all the three accused got seated in truck and moved towards Sahajahanpur but none of the witness present there could not see the number of truck. Subedar entrus
