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2001 (2) JLJ 328
Bhawani Singh, C.J. and A.K. Mishra, J.
Mohd. Shafique Pahalwan and others v. State of M.P.
Cr. Appeal No. 479 of 1997; against the judgment passed by
IV Addl. Sessions Judge. Bhopal in Sessions Trial No. 62 of 1988;
Decided on 21.8.2000.
(2) Evidence Act, 1872 -- S. 60-- eye witness -- deepd`rooted enmity proved by evidence -- interested and partisan witness n contradicting himself in material particulars -- evidence belied by medical evidence -- version changed from time to time -- witness is not reliable. AIR 1957 SC 614, AIR 1973 SC 2622, AIR 1976 SC 560, AIR 1979 SC 1408, AIR 1981 SC 1230 and AIR 1990 SC 1628 followed. [Paras 19 & 20
(3) Criminal P.C., 1973 -- Ss. 154, 161 and 162 -- FIR -- hospital record completely eliminating presence of Inspector -- eye witness specifically denying giving statements recorded by Inspector -- FIR is hit by S. 162 -- first information given by constable overtelephone on which investigation commenced should be FR-- alternatively, information over telephone from hospital can be FIR.
It is abundantly clear that FIR was ante-timed with a view to discard reports received at the Police Station against the roznamcha sanha Nos. 690 and 700, since they did not make mention of the accused and the Police mentioned their names in the dehati nalishi. It is, therefore, concocted and undependable. The result is that the first information received at 11.15 a.m. against roznwncha sanha No. 690, on which investigation commenced, should be first information report. Alternatively, after holding that the FIR (Ex. P-4) is ante-timed to 12.15 noon, roznamcha sanha No. 700 can be taken to FIR in the case and Ex. P-4 is hit by section 162 of the Code of Criminal Procedure. AIR 1997 SC 940, 1977 CrLJ 107, 1995 CrLJ 457, 1976 CrLJ 132, AIR 1959 Cal. 342,1989 CrLJ 1350, 1980 CrLJ 1397, JT 1994 (1) SC 33 and AIR 1980 SC 638 followed. [Para 26
(4) Criminal P.C., 1973 -- S. 157 -- delay in sending report to Magistrate not explained -- record of despatch destroyed -- serious doubts created as to credibility of FIR [Para 27
(5) Evidence Act, 1872 -- Ss. 45, 60 and 52 -- medical evidence contrary to statement of eye-witness -- recovery of weapons not supported by witnesses -- ballistics experts report not submitted -- use of alleged weapon by accused not established. AIR 1975 SC 1727 and AIR 1995 SC 1601 followed. [Para 30
¼1½ lk{; vf/kfu;e] 1872&/kkjk 154&i{knzksgh lk{kh&vfHkkstu i{kdFku ds rkfRod vkSj lkjoku~ Hkkxksa ds ckjs esa Hkkjh ijLij fojks/k&vfHkkstu }kjk voyafcr dFku Lora= lkf{k;ksa }kjk lefFkZr ugha&vfHkkstu i{kdFku dks xaHkhj uqdlku gksrk gSA ¿iSjk 16
¼2½ lk{; vf/kfu;e] 1872&/kkjk 60&çR;{kn‘khZ lk{kh&lk{; }kjk xgjh ‘k=qrk lkfcr&fgrc) vkSj i{kikrh lk{kh&lkjoku~ fof‘kf"V;ksa ij Lo;a dk [kaMu & lk{;] fpfdRlh; lk{; }kjk >qByk;k x;k & le;≤ ij o.kZu ifjofrZr & lk{kh voyacuh; ughaA , vkb vkj 1957 ,l lh 614] , vkb vkj 1973 ,l lh 2622] , vkb vkj 1976 ,l lh 560] , vkb vkj 1979 ,l lh 1408] , vkb vkj 1981 ,l lh 1230 rFkk , vkb vkj 1990 ,l lh 1628 vuqlfjrA
¿iSjk 19 ,oa 20
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;g vfr‘k; Li"V gS fd jkstukepk lUgk Ø- 690 rFkk 700 esa iqfyl Fkkus esa çkIr fjiksVZ Qsdus dh n`f"V ls çFke bfÙkyk fjiksVZ iwoZ≤kafdr dh xbZ Fkh D;ksafd mu fjiksVks± esa vfHk;qDr dk mYys[k ugha Fkk vkSj iqfyl us nsgkrh ukfy‘kh esa vfHk;qDrksa ds ukeksa dk mYys[k fd;k FkkA blfy, og x<+h xbZ vkSj vfuHkZj.kh; gSA ifj.kke ;g gS fd jkstukepk lUgk Ø-690 esa 11-15 cts iwokZà dks çkIr çFke bfÙkyk] ftl ij ls vUos"k.k çkjaHk gqvk] çFke bfÙkyk fjiksVZ gksxhA vkuqdfYid :i ls] ;g vfHkfu/kkZfjr fd, tkus ds i‘pkr~ fd çFke bfÙkyk fjiksVZ ¼çn‘kZ ih&4½ 12-15 cts nksigj dh iwoZ≤kafdr Fkh vkSj naM çfØ;k lafgrk dh /kkjk 162 }kjk ckf/kr Fkh] ekeys esa jkstukepk lUgk Ø- 700 çFke bfÙkyk fjiksVZ dh Hkk¡fr xzg.k fd;k tk ldrk gSA , vkb vkj 1977 ,l lh 940] 1977 lhvkj ,y ts 107] 1995 lhvkj ,y ts 457] 1976 lhvkj ,y ts 132] , vkb vkj 1959 dydÙkk 342] 1989 lhvkj ,y ts 1350] 1980 lhvkj ,y ts 1397] ts Vh 1994¼1½ ,l lh 33 rFkk , vkb vkj 1980 ,l lh 638 vuqlfjrA ¿iSjk 26
¼4½ naM çfØ;k lafgrk] 1973&/kkjk 157&fjiksVZ eftLVªsV dks Hkstus esa foyac Li"VhÑr ugha&çs"k.k dh vfHkys[k u"V fd;k x;k&çFke bfÙkyk fjiksVZ dh fo‘oluh;rk ij xaHkhj lansg l`"VA ¿iSjk 27
¼5½ lk{; vf/kfu;e] 1872&/kkjk 45] 60 rFkk 52&fpfdRlh lk{;] çR;{kn‘khZ lk{kh ds dFku ds foijhr&vL=ksa dk vfHkxzg.k lk{khx.k }kjk lefFkZr ugha&çk{ksfidh foKkuh dh fjiksVZ is‘k ugha dh xbZ&vfHkdfFkr vL= vfHk;qDr }kjk ç;qDr fd, tkuk LFkkfir ughaA , vkb vkj 1975 ,l lh 1727 rFkk , vkb vkj 1995 ,l lh 1601 vuqlfjrA ¿iSjk 30
Singh, C.J.-- 1. This appeal is directed against the judgment dated February 20, 1997, passed by Additional Sessions Judge (IV), Bhopal, in Sessions Trial No. 62/88., The appellant No.1 Mohammed Shafique Pahalwan has been convicted for offence under section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs. 1,000/-, and in default of payment of fine, to undergo simple imprisonment for three months. He has also been convicted under section 307 of the Indian Penal Code and sentenced to rigorous imprisonment for five years and fine of Rs. 500/-, and in default of payment of fine, to undergo simple imprisonment for one month. The appellants No. 2 and 3, namely, Hafiz Pahalwan and Irphan, have been convicted for offence under section 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs. 1,000/- each, and in default of payment of fine, to undergo simple imprisonment for three months each. The appellant No. 2 Hafiz Pahalwan has also, been convicted under section 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and fine of Rs. 500/- and in default of payment of fine, to undergo simple imprisonment for one month. The appellant No.3. Irphan has also been convicted under section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and fine of Rs. 500/-, and in default of payment of fine, to undergo simple imprisonment for one month The narration of material facts may now be made.
2. Raffoo alias Rafique Pahalwan, brother of accused Mohd. Shafique and accused Hafiz Pahalwan was murdered at Bhopal on 25.7.1986. First information report of the said incident was lodged by accused Shafique at Police station Hanumanganj, on which Crime No. 647/86 was registered. Iftedar (PW 4) and Kazi Sirajuddin (deceased in the present case) were accused in that case.
3. The prosecution case is that the murder trial of Raffoo alias Rafique Pahalwan's case was fixed on 8,6.1987 in the Court of Additional Sessions Judge, Bhopal. The deceased Kazi Sirajuddin came to the Court to attend the case along with his son Iftedar (PW 4), brothers-in-law Umar Farooque Sadi (PW 10) and A.S. Bilgrami (PW 27) and the nephew Rais Wali (PW 8). The case was adjourned since the Presiding Officer was on leave. When these persons proceeded towards main gate, the accused Mohd. Shafique fired at Kazi Sirajuddin, which hit in his chest and another shot by accused Irphan hit Iftedar (PW 4). It is also alleged that other shots fired hit Kunjilal (PW 7) and Balram (PW 31). Accused Sanna alias Sageer Ahmed stands acquitted while accused Seharyar Ali Madni died during the course of trial.
4. During the course of investigation sequel to registration of first information report, dead body of Kazi Sirajuddin was subjected to autopsy, statements of witnesses recorded and simple soil taken into possession, apart from that which was smeared with blood.
5. Accused Mohd. Shafique and Irphan were arrested on 9.6.1987 while accused Hafiz Pahalwan was arrested on 23.6.1987 and accused Sanna alias Sageer was arrested on 6.9.1987. At the time of-arrest, revolver and six rounds of cartridges were seized from the possession of accused Mohd. Shafique. Statements of Iftedar (PW 4), Umar Farooque (PW 10) and A.S. Bilgrami (PW 27) were recorded under section 164 of the Code of Criminal Procedure, 1973.
6. After completion of investigation, challan was presented against the accused in the Court of Chie (Judicial Magistrate, 1st Class, Bhopal. It was committed to the Court of Sessions Judge, Bhopal, who transferred the same to the Court of Additional Sessions Judge (IV), Bhopal, for trial.
7. The accused denied the commission of crime. Accused Mohd. Shafique and Irphan stated that they are innocent and have been implicated falsely. Accused Hafiz Pahalwan stated that he was suffering from heart disease before the occurrence. On the date of oc
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