Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 102

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
MANOJ KUMAR GUPTA, OM PRAKASH TRIPATHI, JJ.
Mohd. Afzal @ Guddu and Another – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No. 6167 of 2010
Decided On : 21-02-2022

Advocates:
Advocate Appeared:
For the Appellants : S.M.G. Asghar, C.P. Mishra, D.K. Mishra, M.S. Akhtar, Mewa Lal Shukla, Mohd. Israr, O.P. Mishra, Prahlad Kumar Khare, V.M. Zaidi.
For the Respondents: I.M. Khan, S.A. Imam.

Point of Law - It is crystal clear in the catena of judgement that statement of witness recorded under Section 161 Cr.P.C. does not fall within the ambit of evidence. Such evidence is only for confrontation in cross-examination. The statement of witness recorded under Section 161 Cr.P.C., being wholly, inadmissible in evidence, cannot be taken into consideration. An investigation is not a judicial proceeding.

Headnote:
Indian Penal Code, 1860 - Section 302/34 - Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 - section 2/3, 3 (1) – Criminal Procedure Code, 1973 - Section 161, 313 - Arms Act, 1959 - Section 25/27 - Indian Evidence Act, 1872 – Section 27, 33 – Offence of Murder – Examination of witnesses by police - Deceased was sleeping in his baithak situated in Village, P.S, District in intervening night - Basis of hearing gun shot fire and hue and cry neighbours reached on spot and found that father of first informant received a gun shot injury, complainant immediately rushed to him and proceeded to District Hospital for treatment along with his brother and his uncle but he has succumbed to death in way.
Findings of the Court - No doubt death of deceased took place in a most unfortunate manner by fire arm head injury, but that itself is not sufficient - Prosecution has to establish beyond reasonable doubt person being prosecuted is guilty of crime - From evidence on record, it is apparent that appellants are not named in FIR but name of appellants came in light through evidence of chance witnesses - Evidence of P.W.-1, P.W.-2 and P.W.-4 is not fully reliable on aforesaid reasons - Their evidence would not lead us to believe that appellants could be only perpetrators of crime - chain of circumstantial evidence is not complete and do not lead to conclusion that in all human probability, murder must have been committed by appellants only - Thus, prosecution has failed to prove its case beyond all reasonable doubts that accused had committed murder of deceased at time, place and in manner as alleged by prosecution - It would indeed be unsafe to convict appellants based on testimony of circumstantial evidence - They would certainly be entitled to be benefit of doubt which is created by very circumstances which we have referred.
Result - Appeal is allowed.

JUDGMENT :

OM PRAKASH TRIPATHI, J.

1. Heard Sri. Mewa Lal Shukla, learned counsel for the appellants, Sri. A.N. Mulla, Additional Government Advocate on behalf of the State and perused the material on record.

2. The appellants have preferred the present criminal appeal aggrieved by the judgment and order dated 04.09.2010 passed by the learned Special Judge (Gangster Act)/Additional Sessions Judge, Court No. 5, Bulandshahr in Special Trial No. 683/2007, under Section 302/34 IPC, State vs. Mohd. Afzal @ Guddu and others, Police Station Gulawadi, District Bulandshahr, convicting and sentencing the appellants to undergo life imprisonment under Section 302/34 of IPC with a fine of Rs. 10,000/- each in default thereof, to undergo three months additional rigorous imprisonment.

3. The prosecution case is as follows:

The deceased Shafaqat Ali was sleeping in his baithak situated in the Village Chandpur, P.S. Gulawadi, District Bulandshahr in the intervening night of 31-1/1-2-2007. At about 3:00 a.m. on the basis of hearing the gun shot fire and hue and cry the neighbours reached on the spot and found that the father of the first informant Shafaqat Ali received a gun shot injury, complainant immediately rushed to him and proceeded to the District Hospital for treatment along with his brother Hasmat and his uncle Shahid and Rahat but he has succumbed to death in the way.

4. On the basis of the written report, the police registered a case as Crime No. 30/2007, under Section 302 IPC and entry about registration of the case was made in the General Diary on 01.02.2007. Investigation of the case was taken over by the Sub-Inspector Samay Singh. He rushed to the spot and recorded the statement of the complainant Mukeet Ali and prepared the site plan.

5. During investigation, the Investigating Officer recorded the statements of the witnesses. After completing all formalities of investigation, he submitted the charge sheet (Exhibit Ka-16) against the appellants in the Court of Special Judge (Gangster Act), Bulandshahr, under Section 302 IPC and cognizance of offence was taken by the Court concerned.

6. Charge under Section 302/34 IPC and section 2/3 of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 was framed by the Special Judge on 01.07.2008.

7. Charge sheet against Mohd. Afzal under Section 25/27 of Arms Act has been submitted before Chief Judicial Magistrate, Bulandshahr, cognizance taken by the Magistrate concerned, committed to the Court of Sessions Judge and thereafter transferred to the Court of Special Judge, (Gangster Act).

8. Charge under Section 25/27 of Arms Act has been framed against the accused Mohd. Afzal on 01.07.2008 by Special Judge, (Gangster Act), Bulandshahr. The accused-appellants pleaded not guilty and claimed to be tried. Special Trial No. 639/2007 was consolidated and tried together with leading file Special Case No. 683 of 2007.

9. In order to prove the charges framed against the appellants, the prosecution has examined the complainant Mukeet Ali, son of the deceased (PW-1), Wahid Ali, the brother of the deceased (PW-2), Dr. B.P.S. Kalyani (PW-3), Munfat Ali (PW-4), Shyam Singh, Sub-Inspector Reader (PW-5), Dariyab Singh (PW-6), Harish Chand Josi (PW-7), Sub-Inspector Samay Singh (PW-8), Sub Inspector Ashok Kumar (PW-9) and Sub Inspector Kunwar Singh (PW-10).

10. In documentary evidence, the prosecution has proved written report (Exhibit Ka-1), chik FIR (Exhibit Ka-2), gang chart (Exhibit Ka-9), spot map (Exhibit Ka-4), recovery memo (Exhibits Ka-5 and Ka-6), post mortem (Exhibit Ka-3), panchayatnama (Exhibit Ka-15), photo naash (Exhibit Ka- 19), letter of R.I. (Exhibit Ka-15), letter of CMO (Exhibit Ka-17) sample seal (Exhibit Ka-18), charge sheet under section 302 IPC (Exhibits Ka-13 and Ka-14), recovery memo under Section 25 of Arms Act (Exhibit ka-7), chik FIR under Section 25 of Arms Act (Exhibit Ka-8), spot map under Section 25 of Arms Act (Exhibit Ka-2) general diary (Exhibit Ka-14), prosecution s