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IN THE HIGH COURT OF ALLAHABAD
BEFORE : RAM SURAT RAM (MAURYA) AND UMESH CHANDRA TRIPATHI, JJ.
NANNHA @ RAIS AND ANOTHER ....Appellants
Versus
STATE OF U.P. ....Respondent
(Criminal Appeal Nos. 3676 and 3745 of 2006, decided on 24th August, 2018)
(B) (Indian) Penal Code, 1860 – Section 302 – Murder – Appreciation of Evidence – Contradictions – On basis of minor contradictions whole prosecution version cannot be discarded. [Para 25]
(C) Criminal Procedure Code, 1973 – Section 154 – FIR – Reliability and Validity of FIR – Only because First Information Report lodged at police station with due deliberation whole prosecution version cannot be discarded. [Para 28]
(D) (Indian) Penal Code, 1860 – Section 302 – Murder – Witnesses – No independent witness – Occurrence taken place in night where family members of deceased were irrigating their paddy crop – There was no possibility of presence of independent witnesses on spot – There was no any reason for father of deceased to screen real culprits and falsely implicate appellant – Hence no independent witness not supporting prosecution will have no effect. [Para 32]
(E) Murder – Identification of accused – Sufficiency of light – Witnesses of fact and deceased were residence of same vicinity – Hence witnesses may easily identify accused even in dark night. [Para 33]
(F) Murder – Motive – If offence is proved prosecution version cannot be doubted on ground that it has failed to prove motive of accused to commit offence. [Para 38]
(G) (Indian) Penal Code, 1860 – Section 302 – Murder – Incident taken place in night where family members of deceased were irrigating their paddy crop – There was no any reason for father of deceased to screen real culprits and falsely implicate appellant – Ocular evidence supported by medical evidence proving beyond reasonable doubt that accused-appellant fired on deceased due to which he sustained injuries and died at once – He held liable to be convicted for murder. [Para 39]
(H) (Indian) Penal Code, 1860 – Section 302 – Murder – Proof – Benefit of Doubt – Witness stating in his examination in chief that appellants/accused were armed with ‘patal’ however in his cross-examination he specifically stated that they were not armed with any weapon – No active role attributed to appellants/accused – Hence possibility of falsely implicating appellants/accused who are related to real accused in offence cannot be ruled out – Appellants/accused given benefit of doubt. [Para 40]
Result; Order Accordingly.
Hon’ble Umesh Chandra Tripathi, J.—Heard Sri Saghir Ahmad alongwith Sri Brijesh Kumar Pandey, counsels for the appellants and Sri Anil Kumar Kushwaha, A.G.A., for the State of U.P.
2. These two appeals are directed against the common judgment and order dated 8.6.2006 passed by learned Additional Sessions Judge, Court No. 1, Rampur in S.T. No. 488 of 1999 (State v. Nanha @ Rais and others) arising out of case crime No. 139 of 1997 whereby the accused-appellants Nanha @ Rais, Basheer Ahmed and Suleman were convicted and sentenced as follows: (a) Life imprisonment alongwith fine of Rs. 2000/- each under Section 302/34 Indian Penal Code (hereinafter referred to as “IPC”) and (b) Ten years rigorous imprisonment alongwith fine of Rs. 2000/- each under Section 307/34 IPC. In case of default in payment of fine, all the appellants shall undergo simple imprisonment for further six months.
3. Both the sentences were directed to run concurrently.
4. The brief facts of the prosecution case are that a First Information Report was lodged on information of informant Shabir PW-1 on 9.8.1997 at 1:30 a.m. at Police Station Azeem Nagar, District Rampur as Case Crime No. 139 of 1999 under Sections 304, 324 IPC. As per the First Information Report, the house of informant Shabir was parallel to the houses of accused/appellants Nanha @ Rais Ahmed, Basheer Ahmed and Suleman in the same lane. Accused/appellants used to tie their bulls and park their bullock cart on the way of the houses. For this issue, usually verbal spat was going on between informant and accused/appellants. In the night of 8.8.1997 informant Shabir, his nephew Shakirnoor and his brother Mohd. Noor were irrigating their paddy field near the village Dokpuri where a lantern was burning. At about 11:00 p.m. in the night, while informant’s nephew Shakirnoor was sleeping, appellants Nanha @ Rais Ahmed, Basheer Ahmed and Suleman reached there and started abusing the informant. When the informant objected the appellants not to abuse, appellant Nanha @ Rais Ahmed made fire upon the informant’s nephew Shakirnoor, who was sleeping on the cot. The said fire hit on left side of his head. On hearing hue and cry of informant as well as sound of fire, Maksood and Mohd. Noor of Village Dokpuri, who were irrigating their field, came on the spot alongwith torch. On seeing them, accused/appellants fled in the west direction by making fire. Informant’s brother sustained injuries of pellets in the right hand as well as on other several parts of the body. Shakirnoor died at once. Informant took his injured brother to the police station by vehicle and informed the police about the incident.
5. Injured Mohd. Noor was examined by PW-4 Dr Satish Chandra on 9.8.1997 at 2:10 a.m. at District Hospital, Rampur, who prepared injury report Ex. Ka-2 and noted the following injuries on his person :
“(i) Fire-arm wound 0.5 cm x 0.5 cm on the top of skull. A bullet was found inside the wound and some part of the bullet was outside the skull. No blackening and scorching. X-ray advised for skull.
(ii) Lacerated wound 6 cm x 6 cm x bone deep on dorsal side of right hand. Bleeding oozing from wound present. No blackening was present around the wound. X-ray advised for right hand.”
In the opinion of doctor, both the injuries were fresh and caused by fire-arm.
In supervision of PW-5 Akhilesh Kumar, X-ray of head and of right hand of injured Mohd. Noor was conducted and X-ray plate material Ex-1, material Ex-2 and report Ex-K-3 were prepared. Accordingly, second meta carpal bone of right hand of injured was fractured. In skull no radio opaque shadow was detected.
6. The post-mortem of dead body of Shakirnoor was conducted by (PW-6) Dr Ved Prakash on 9.8.1997 at 12:30 p.m., who prepared post-mortem report Ex.K-4. As per post-mortem report and statement of (PW-6) Dr Ved Prakash, following ante-mortem injury was found on the body of deceased Shakirnoor :
“A fire-arm wound of entry 2.5 cm x 2.5 cm x brain cavity deep on l
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