Mohd. Muslim vs State of Uttar Pradesh (Now Uttarakhand)

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1089 OF 2011

MOHD. MUSLIM …APPELLANT

VERSUS

STATE OF UTTAR PRADESH (NOW UTTARAKHAND) …RESPONDENT

JUDGMENT

PANKAJ MITHAL, J.

1. Heard Mr. Prafulla Kumar Behera, learned advocate appearing for

the appellant and Mr. Jatinder Kumar Bhatia, learned Advocate-

on-Record appearing for the respondent.

2. The two accused appellants, father and son, have preferred this

Criminal Appeal against their conviction for an offence under

Section 302 of the Indian Penal Code, 1860 (in short “IPC”)

whereby and whereunder, they have been sentenced to undergo

life imprisonment and fine of Rs.20,000/- each. In default of

payment of fine, they have been ordered to undergo further six

Signature Not Verified months of rigorous imprisonment. Digitally signed by NIRMALA NEGI Date: 2023.06.15

3. The incident is of 4th August, 1995 which allegedly took place at 17:07:32 IST Reason:

09:00 AM within the jurisdiction of Police Station Mangalore. It is 2

said that deceased Altaf Hussain, the father of the informant Salim

Ahmad (PW-1), had some land dispute with the accused

appellants. They as such had a grudge against deceased Altaf

Hussain. In connection with the said land dispute, proceedings

were pending before the Consolidation Officer. On the fateful day,

deceased Altaf Hussain was going to Roorkee for attending the said

proceedings, he was on his bicycle and his son – the informant

(PW-1) and his nephew – Irshad (PW-2) were little behind on their

cycles and were following him. When deceased Altaf Hussain

reached near Bajari Plant on G.T. Road from where Roorkee was

only at a short distance of 5 kms, the accused persons armed with

“tabal” and “axe” assaulted him. Upon raising an alarm, one Tahir,

son of Md. Saddiq and one Md. Afzal (PW-3), son of Niyaz Ahmad

came from behind and tried to get hold of the accused persons but

they escaped towards the jungle leaving behind their ‘loi’ (blanket)

and cycle at the place of occurrence.

4. On the basis of the written complaint submitted by the informant

(PW-1) at around 09:50 AM on 04.08.1995 itself (Exh. Ka-1), a

chick FIR (Exh. Ka-8) was registered. The Investigating Officer

(PW-7) – Anil Kumar prepared the inquest report (Exh. Ka-4), the

site plan (Exh. Ka-13) and took into his possession, one pair of

rubber shoes, one pair of slippers, a ‘loi’ (blanket) and the cycle.

The ‘loi’ and the cycle were alleged to be that of the accused 3

persons and were marked as Exh. Ka-10 and Exh. Ka-11

respectively.

5. Sub-inspector (PW- 5) – Om Veer Singh prepared a letter (Exh. Ka-

5) addressed to the Chief Medical Officer for the purpose of post-

mortem. The post-mortem was conducted by Dr. Sudhir Kumar

Dhaundhiyal on the next day, i.e., 05.08.1995. The post-mortem

report (Exh. Ka-3) was proved by Dr. O.P. Sharma (PW-4) as Dr.

Sudhir Kumar Dhaundhiyal who conducted the post-mortem, had

died in the meantime.

6. Both the accused persons were arrested by the Investigating

Officer on 07.08.1995 and on their pointing out the weapons of

crime, i.e., the axe and the “tabal” were recovered and taken into

possession vide possession memo (Exh. Ka-14).

7. The Police submitted a chargesheet under Section 302 IPC against

the accused persons, i.e., Mohd. Muslim and Shamshad in the

Court of Judicial Magistrate, Roorkee. The case was committed to

the Sessions Court on 26.10.1995 for trial.

8. The accused appellants were examined under Section 313 of the

Code of Criminal Procedure, 1973 (in short “CrPC”) and they

denied their involvement in the crime rather alleged that no such

incident had taken place and that they have been unnecessarily

framed as they are new to the village.

4

9. The Sessions trial ended in the conviction/sentencing of the

accused appellants vide judgment and order dated 25.04.1998.

The High Court on appeal upheld and confirmed the same. Thus,

the present appeal.

10. It may be worth noting that the appeal stood abated against the

accused appellant No.2 vide order of this Court dated 16.08.2021.

Accused appellant No.1 is now aged about 79 years and has

undergone six years of incarceration. He is on bail since 2013.

11. The main plank of the argument from the side of the accused

appellant is that there is interpolation in the FIR and that it has

been ante-timed. Actually, the complaint / FIR was lodged at 1:50

PM on 04.08.1995 and by overwriting, it has been changed to 9:00

AM. The deceased was accompanied by his son and his nephew,

who were following him on their own cycle and were little behind

him. None of these two persons tried to save the deceased from the

assault of the accused appellants nor took any steps to provide

him with any medical aid instead they rushed for the lodging of

the complaint which is highly unnatural. There is no independent

eye-witness to the incident and that one of the independent

witnesses named, i.e., Tahir was not examined. The evidence of

another independent witness, i.e., Md. Afzal (PW-3) is

contradictory and does not support the case of the prosecution. 5

12. The FIR (Exh. Ka-8) dated 04.08.1995 is stated to have been

lodged at 9:00 AM. The submission of accused appellant is that,

in fact, the FIR was lodged at 1:50 PM and it has been ante-timed.

We have perused the original of the FIR dated 04.08.1995 from the

trial Court record. A bare pursual of the aforesaid FIR clearly

shows that there is some interpolation in the time of its lodging

mentioned therein. It is evident from naked eye that ‘1’ has been

converted into ‘9’ and ‘5’ has been rounded off to make ‘0’ whereas

‘PM’ has been converted into ‘AM’. In other words, 1:50 PM has

been changed to 9:00 AM. This is abundantly clear from the FIR

and there cannot be two opinions on that. The trial Court is not

correct in saying that there is no interpolation and that since ‘AM’

has been used, it means that the FIR has been lodged in the

morning. The Trial Court completely lost sight of the fact that not

only the time has been changed but the word ‘PM’ has also been

interpolated and converted into ‘AM’. Thus, in our opinion, the FIR

has been ante-timed from 1:50 PM to 9:00 AM.

13. The chick FIR report was sent to the Court on 08.08.1995 with the

delay of about 4 days. It is worth mentioning that FIR in a criminal

case and particularly in a murder case is a vital and a valuable

piece of evidence especially for the purpose of appreciating the

evidence adduced at the trial. It is for this reason that the

infirmities, if any, in the FIR casts a doubt on its authenticity. The 6

FIR in such cases may also lose its evidentiary value. In Meharaj

Singh and Ors. Vs. State of U.P. and Ors.1, it has been opined

that on account of the infirmities such an ante-timing of the FIR

loses its evidentiary value. Thus, this entitles the accused to be

given the benefit of doubt.

14. The reason for ante-timing the FIR is not difficult to comprehend.

The prosecution case is that deceased Altaf Hussain was going to

the consolidation Court for attending the land dispute. Obviously,

if he was going to the Court, it would have been early in the

morning before the start of the Court rather than in the afternoon

that too in the post-lunch session. In order to justify that deceased

Altaf Hussain was going to the Court in the morning, the timing of

the FIR has been changed to 9:00 AM. Had the incident occurred

in the morning before 9:00 AM, and the police had arrived at the

spot at 10:00 AM, the dead body would have been sent to the

mortuary immediately thereafter by the afternoon but this has not

happened and the dead body of the deceased Altaf Hussain was

sent to the mortuary late in the evening by which time it was too

late to conduct the post-mortem which had to be postponed for the

next day.

15. The post-mortem was conducted on the next day as the corpse was

received in the mortuary late in the evening. The reason of

1 (1994) 5 SCC 188 7

receiving the dead body late in the evening itself indicates that the

incident must have taken place in the afternoon and not in the

morning.

16. It has come on record that the accused appellants on being chased

had run away towards the jungle leaving behind their ‘loi’ (blanket)

and cycle. Both these items were recovered by the Investigating

Officer and were marked as Exh. Ka-10 and Exh. Ka-11

respectively. None of these two items were produced before the

Court and were got identified by the accused appellants. There is

no evidence on record which may establish that in fact the said loi

and the cycle belonged to the accused appellants. This gives

strength to the defence of the accused appellants that they have

been unnecessarily roped into the offence and that they were not

even present at the site. The presence of the accused appellants

could have been easily proved by the prosecution, had the above

two items recovered from the spot were produced and established

to be that of the accused appellants. There is no reason or

explanation for not producing the above things in Court or for

withholding the same.

17. The deposition of Salim Ahmad (PW-1) reveals that he was at a

distance of 20 steps from his father but even then he could not

rush to save his father from the assault and could not even caught-

hold of any of the accused appellants who conveniently escaped 8

through the jungle. It is an admitted fact that immediately on the

occurrence of the incident, large number of people have assembled

and even then the prosecution was not successful in finding a

proper eye witness or any other independent person who could

have narrated the entire incident. Salim Ahmad (PW-1), the son of

the deceased Altaf Hussain, has stated that the incident had

occurred at 9:00 AM and he reached the police station at 9:50 AM

and the police came and took away the dead body at 10:00 AM. If

he had reached the police station at 9:50 AM, there is no possibility

of the written FIR being submitted and registered at 9:00 AM.

18. It is important to refer to the deposition of Irshad (PW-2), the

nephew of the deceased Altaf Hussain. He had stated that the

police had arrived at the place of incident at 9:30 AM which is

contradictory to the statement of Salim Ahmad (PW-1) who has

stated that the police had arrived at 10:00 AM. He further states

that the Daroga Ji did not enquire anything from him nor recorded

his statement whereas the Investigation Officer (I.O.) Anil Kumar

(PW-7) has recorded that when he reached the place of the

occurrence, he met the complainant i.e. Salim Ahmad (PW-1) and

two of the eye witnesses i.e. Md. Afzal (PW-3) and Tahir. He

categorically stated he had not met Irshad (PW-2) who was one of

the witnesses in the FIR. His statement was recorded by the I.O.

after a week on 11.08.1995.

9

19. The son and the nephew of the deceased Altaf Ahmed were

following him on their own cycle but the defence has doubted their

presence. The conduct and behaviour of both of them appear to be

unnatural inasmuch as, had their father been assaulted in the

manner alleged, they would have been the first person to intervene

so as to save him, but there is no evidence to indicate that upon

seeing the accused appellants assaulting deceased Altaf Hussain

they had rushed to the spot which was hardly at some distance

from them rather two other persons came on the spot and tried to

save deceased Altaf Hussain upon hearing the alarm raised by

them. The son and nephew of deceased Altaf Hussain did not even

care to take him to the hospital though one of them went to lodge

an FIR, the other did not even feel like staying with the deceased

and instead went away to the village. Therefore, the conduct of

these two persons amply supports the defence version that they

may not be present at the place of event.

20. Md. Afzal (PW-3) simply stated that he and Tahir were on one

scooter and saw two persons assaulting a person. They upon

hearing the alarm raised by Salim Ahmad (PW-1), Irshad (PW-2)

tried to save and catch-hold of the culprits. In the same breath he

states that the accused appellants escaped and that when they

reached the spot, they saw the deceased Altaf Hussain lying on the

road and was not breathing. They made no effort to touch him and 10

to find out if he is dead or alive or even to turn him upside down.

The above statement, if not self-contradictory, casts the doubt on

the version of the said witness inasmuch as at one place he says

upon hearing the alarm they tried to save the deceased Altaf

Hussain and catch-hold the accused appellants but then states

that when they reached the spot the deceased Altaf Hussain was

already lying on the road dead.

21. Apart from the above two persons, there is no independent witness

to the incident. The other eye witness to the incident was Tahir,

who came on the spot and tried to save deceased Altaf Hussain but

he was not asked to come into the witness box and depose about

the incident. Md. Afzal (PW-3) who was accompanying Tahir

though examined as an eye witness but failed to divulge anything

material regarding the alleged assault or that the accused

appellants were the persons who assaulted the deceased Altaf

Hussain.

22. In view of all that has been said above, we are of the view that the

prosecution failed to prove to the hilt that the accused appellants

were the persons involved in the assault and death of the deceased

Altaf Hussain.

23. The totality of the facts and circumstances especially the

unnatural behaviour and conduct of the son and nephew of the

deceased Altaf Hussain, ante-timing of the FIR and that the ‘loi’ 11

(blanket) and the cycle (Exh. Ka-10 and Exh. Ka-11) alleged to be

that of the accused appellants left behind at the site of the incident

were not produced before the Court, compels us to doubt the

presence of the son and nephew of the deceased Altaf Hussain at

the site. Thus, in the absence of any credible eye witness to the

incident and the fact that the presence of the accused appellants

at the place of incident is also not well established, we are

constrained to accord benefit of doubt to both the accused

appellants.

24. Even if we ignore certain other minor discrepancies in the oral

evidence, the delay in conducting the post-mortem, the difference

in the name of the weapons of crime, i.e., “tabal” or “palkati” which

are more or less similar types of instruments for cutting crops, etc.,

it is a case where the prosecution has miserably failed to prove

that the accused appellants have committed the offence beyond

any reasonable doubt.

25. In view of the above, the judgment and orders of the Courts below

i.e. Addl. Sessions Judge, Roorkee dated 25.04.1998 and High

Court of Uttarakhand dated 10.09.2010 are accordingly set aside

and the accused appellant No.1 is acquitted by giving the benefit

of doubt.

12

26. The appeal is allowed.

……………………………….. J.

(V. RAMASUBRAMANIAN)

……………………………….. J.

(PANKAJ MITHAL) NEW DELHI;

JUNE 15, 2023.

13

ITEM NO.1503 COURT NO.7 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s).1089/2011

MOHD.MUSLIM Appellant(s)

VERSUS

STATE OF UTTAR PRADESH(NOW UTTARAKHAND) Respondent(s)

Date : 15-06-2023 This appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. Prafulla Kumar Behera, Adv.

Mr. S. S. Nehra, AOR Mr. Vikrant Nehra, Adv.

Ms. Mamta Bhola, Adv.

For Respondent(s) Mr. Ashutosh Kumar Sharma, Adv.

Mr. Jatinder Kumar Bhatia, AOR

Hon’ble Mr. Justice Pankaj Mithal pronounced the judgment of

the Bench comprising Hon’ble Mr. Justice V. Ramasubramanian and His

Lordship.

The appeal is allowed in terms of the signed non-reportable

judgment. The operative portion of the judgment reads as follows:

“...In view of the above, the judgment and orders of the Courts below i.e. Addl. Sessions Judge, Roorkee dated 25.04.1998 and High Court of Uttarakhand dated 10.09.2010 are accordingly set aside and the accused appellant No.1 is acquitted by giving the benefit of doubt...”

Pending application(s), if any, shall stand disposed of.

(RADHA SHARMA) (RENU BALA GAMBHIR) COURT MASTER (SH) COURT MASTER (NSH)

(Signed Non-Reportable Judgment is placed on the file)