The State of Uttar Pradesh Home Department Secretary vs Wasif Haider

CRIMINAL APPEAL No.1702­1706 OF 2014

STATE OF UTTAR PRADESH … APPELLANT

VERSUS

WASIF HAIDER ETC. … RESPONDENTS

JUDGMENT

N.V. RAMANA, J.

1. These appeals by special leave arise out of the common

impugned judgment dated 29.05.2009, passed by the High Court

of Allahabad in Criminal Appeal Nos. 1419, 1430, 1518 and 898

of 2004, whereby the High Court has reversed the judgment of

conviction passed by the Additional Sessions Judge, Kanpur in Signature Not Verified

Sessions Trial No. 164/2002 dated 22.01.2004 under Sections Digitally signed by SATISH KUMAR YADAV Date: 2018.12.10 14:54:14 IST Reason:

302 read with 149, 307 read with 149, 148 IPC and Section 7 of

1 Criminal Law Amendment Act, 1932. Whereas the High Court in

Government Appeal no. 5270 of 2005 preferred by the appellant­

State, has dismissed the appeal against the acquittal of accused

no.1­respondent (Wasif Haider) for offences under Sections 25

and 27 of Arms Act, 1959 and Sections 4 and 15 of Explosive

Substances Act, 1908, while affirming the judgment dated

3.8.2005 passed by the Additional Sessions judge, Kanpur

acquitting the accused no.1­respondent (Wasif Haider) in

Sessions Trial No. 143 and 144 of 2002.

2. Brief facts as unfolded from the prosecution story are

that, while the complainant (P.W.2­ S.O., P.S. Moolganj, Kanpur)

along with other police personnel was on duty at the parade

crossing, he came to know that a crowd of around 200­300 rioters

were causing rampage and destruction at the Chaubey Gola

Temple. Immediately, the complainant accompanied by the police

force and A.D.M (Finance and Revenue)­Sri Chandra Prakash

Pathak (hereinafter referred as “the deceased”), and half a

section of Provincial Armed Constabulary [“PAC”] proceeded

towards scene of occurrence. Admittedly, when the deceased

along with police personnel were at a distance of around 100­150

paces from Sunehri Mosque on the Nai Sarak, rioters started

2 firing upon them resultantly injuring the deceased and his

orderly, Ram Chandra. In order to control the law and order

situation, the police were compelled to fire in their defense. When

the police party reached the mosque, the rioters had already fled

away. Subsequently, when the police party reached Chaubey Gola

Temple where rioters had already looted some houses and had

also committed arson. In the meanwhile, the police also received

the information that the deceased had succumbed to the gunshot

injuries in the hospital. Finally, the F.I.R., Case Crime No. 7 of

2001 came to be registered at 8.05P.M. on 16.03.2001 against

200­300 unknown rioters.

3. On the same night, after conducting the inquest

proceedings, the dead body was sent for post mortem

examination and the investigation commenced. The investigation

officer after recording the statement of witnesses, inspected the

place of occurrence and prepared Site Plan ext. Ka­6. A bullet

which was recovered from the ashes of deceased was sent for

Forensic examination.

4. On 02.08.2001 accused no. 2­respondent (Mumtaz

alias Maulana) was brought to Kanpur by the Delhi police. On

04.08.2001, accused no. 1­respondent (Wasif Haider) was

3 arrested. Accused no. 3­respondent (Hazi Atiq) and accused no.

4­respondent (Safat Rasool) were arrested on 17.09.2001 and

18.09.2001 respectively and thereafter the Test Identification

Parade (hereinafter referred to as “TIP”) was held on 27.09.2001

at District Jail, Kanpur. Subsequent to the completion of

investigation, the charge­sheet was submitted.

5. The accused pleaded not guilty and claimed to be tried.

It is pertinent to note that in the statements made by the accused

under Section 313 of Cr.P.C. They claimed that there existed an

inordinate delay in conducting the TIP, as this time period was

used by the prosecution witnesses to see them at their homes or

places of work to mark them carefully for the subsequent

identification. They stressed on the fact that they were not kept

concealed in a veil (baparda). The accused­respondents have

further stated that, prior to the TIP, the police had taken their

photographs and had shown it to the other witnesses. This

creates a considerable doubt about the genuineness of the TIP.

Further, the accused­respondents have alleged that, they were

wrongfully roped in the case when the police failed to trace the

real culprits. The accused respondents have also put forth that,

although they had clear antecedents, but they were implicated in

4 the crime falsely.

6. By order dated 22.01.2004, the trial court, while

relying upon the prosecution version, rejected the defence story

and convicted the accused persons as under,

ACCUSED CHARGES CONVICTION

S. 302/ 149 IPC Life Imprisonment

[1]. Wasif Haider S. 307/ 149 IPC RI for 5 years

[A­1] [2]. Mumtaz alias S. 148 RI for 1 year

Maulana [A­2] [3]. Hazi Atiq [A­3] S. 7 Criminal Law RI for 3 months [4]. Safat Rasool Amendment Act [A­4] All of them were acquitted for the charges under Sections 395, 397, 436 and 153A IPC.

Acquitted for charges under Sections 25 and Wasif Haider [A­1] 27 of Arms Act, 1959 and Sections 4 and 15 of Explosive Substances Act, 1908.

7. Aggrieved by the abovementioned order of conviction

and sentence, the accused­respondents appealed before the High

Court. The High Court on analysis of evidence found that, not

only there exists various contradictions in the testimonies of the

prosecution witnesses but there exists lack of corroboration of the

5 same. While passing the order of acquittal the High Court

observed that the case of prosecution was ridden with flaws in

investigation, most importantly the identification of the accused

was highly suspicious and the TIP was held to be “too good to be

believed”. Accordingly, the High Court through the impugned

judgment acquitted the accused­respondents and set aside the

aforesaid order of conviction as the prosecution failed to prove its

case beyond reasonable doubt.

8. Aggrieved by the impugned order passed by the High

Court acquitting all the accused, the State of Uttar Pradesh has

preferred these appeals.

9. The learned Counsel, Mr. Dinesh Kumar Goswami, on

behalf of the appellant­State while supporting the prosecution’s

case, submitted that pursuant to the arrest of the accused­

respondents their identification was properly done after taking

due precautions and following the procedure. Moreover, the

prosecution witnesses had clearly identified the accused persons

in the identification parade and in the court as well. On the issue

of delay caused in conducting the TIP, the counsel also

vehemently submitted that, there was no inordinate delay in

conducting the TIP as canvassed by the counsels for the accused­

6 respondents. The High Court has committed a grave error by not

placing reliance on the TIP as there is nothing on record to vitiate

the results of the same. Lastly, the learned counsel submitted

that since there existed sufficient evidence to prove the culpability

of the accused­respondents, the Sessions Judge had correctly

passed the order of conviction against them and therefore prayed

for setting aside the impugned order.

10. On the other hand, the learned Counsel, Ms. Kamini

Jaiswal, appearing on behalf of the accused­respondents no. 1, 3

and 4, while supporting the order of acquittal rendered by the

High Court, submitted that, the entire prosecution story hinges

on the identification of the accused­respondents, the genuineness

of which in itself is questionable. It was further argued that, when

admittedly the witnesses were at a great distance from the place

of occurrence, it was not plausible to identify specifically the

accused­respondents, that too in the absence of any particular

hulia or distinguishing marks from amongst a crowd of 200­300

rioters. Further, there was inordinate delay in conducting the TIP

which was fatal for the prosecution.

11. Further, the learned Counsel, Mr. Siddhartha Dave, on

behalf of accused­respondent no. 2 submitted that accused­

7 respondent no. 2 has been dragged into the matter only on

account of confessional statement of the co­accused which has

not been corroborated, and no other incriminating evidence is

available on record.

12. Heard learned counsels for the parties. At the outset,

we would like to state that in an appeal against acquittal, the

appellate court would interfere only where there exists perversity

of fact and law [See Bannareddy and Ors. v. State of

Karnataka and Ors., (2018) 5 SCC 790]. Further, the

presumption of innocence is further reinforced against the

acquitted­accused by having a judgment in his favor [See

Rabindra Kumar Pal @ Dara Singh v. Republic of India,

(2011) 2 SCC 490 in para. 94].

13. We concur with the aforesaid order of acquittal

rendered by the High Court, as the present case is ridden with

multiple investigative laches and flaws which goes to the root of

the matter. We shall be addressing the same in seriatim.

14. Firstly, it is apt to note that out of the seven eye

witnesses who participated in the TIP, five of them identified the

accused without committing any mistake. As observed by the

8 accused no.3­respondent, Hazi Atiq has big protruding teeth, the

accused no.4­respondent Safat Rasool was suffering from polio

hence had permanent physical disability, but surprisingly this

fact was never mentioned either in the F.I.R. or in the witness

statements. The specific identification of the four accused­

respondents, from a group of 200­300 rioters, with 100%

perfection; without a mention of any distinguishing marks seems

highly improbable considering the distance of the witnesses from

the place of occurrence. Moreover, there existed an inordinate

delay of 55 days in conducting the TIP of the accused no.1 and 2.

Although, the involvement of accused no.3 and 4 was brought to

light on 03.08.2001 itself, the prosecution did not take any effort

to arrest or interrogate them for 6 weeks. But no reasonable

explanation was provided for the aforesaid inordinate delay.

15. Furthermore, no documentary evidence has been

provided to proof that the identity of the accused was kept

concealed. On the contrary, D.W.3, Mohd. Shamim Siddique,

Record Keeper in the Police Office stated that the general diary

does not mention that the accused no.2­respondent Mumtaz alias

Maulana was kept baparda. The defence also pleaded that, the

aforesaid inordinate delay was used by the prosecution witnesses

9 to see the accused­respondents at their homes or places of work

to mark them carefully for the subsequent identification.

Additionally, accused no.1­respondent Wasif Haider, in his

statement under Section 313 Cr.P.C. went to the extent of saying

that, prior to the TIP he was shown to the witnesses and his

photographs and videotapes were prepared. In Mulla v. State of

U.P., (2010) 3 SCC 508 para 55, this court laid down that a TIP

has to be conducted timely, if not, then the delay has to be

explained and such delay should not cause exposure of the

accused. However, in the case at hand, not only there was a delay

in conducting the TIP, but no explanation for the same has been

forthcoming from the prosecution. This creates a considerable

doubt about the genuineness of the TIP.

16. Secondly, it is surprising that, although the post­

mortem report describes that there were only two wounds in the

body of the deceased, one being the entry and the other being the

exit wound, allegedly a bullet was still recovered from the ashes of

the deceased. The F.S.L. report shows that this bullet was

charred and blistered. This recovery of bullet from the ashes of

the deceased is irreconcilable with the post­mortem report which

allegedly states an exit wound, implying that the bullet had

10 already left the body. The aforesaid fact raises a suspicion on

both the Post­Mortem report and the F.S.L. report as they are

incompatible with each other.

17. Thirdly, the prosecution has failed to establish that the

bullet allegedly recovered from the ashes of the deceased 20 days

later was indeed fired from the pistol recovered from accused­

respondent Wasif Haider. Even, the recovery of pistol is doubtful.

While, the prosecution case reveals that one .380 bore pistol colt

was recovered from the possession of the accused­respondent

Wasif Haider, on the contrary, the evidence of P.W.2­S.O.,

Rajendra Dhar Dwivedi reveals that one .320 bore pistol colt was

recovered pursuant to his arrest. Additional contradiction can be

seen in the sanction order wherein two pistols of .380 bore were

shown to be recovered from the possession of the accused­

respondent Wasif Haider.

18. Fourthly, as regards to the place of incident, the

prosecution failed to ascertain the same with precision. While the

F.I.R. reveals the place of occurrence to be in front of Sunehri

Masjid, P.W.2, the complainant later improved over his earlier

statement and stated that, the incident actually took place in

Noorani Masjid. On the contrary, the two site plans show the

11 place of incident to be Noorani Masjid.

19. Fifthly, the prosecution failed to examine Ram

Chandra, the orderly of the deceased who was also injured in the

same incident and had suffered a gunshot injury. The

prosecution was also unable to prove the injury report of the

above victim. Such a failure is fatal to the prosecution case as his

presence in the place of occurrence is beyond doubt. It has been

placed on record that, despite Ram­Chandra attending the

proceedings of the trial regularly he was not examined by the

prosecution.

20. Sixthly, the prosecution has also failed to adduce any

independent witness. Even though it is wrong to disbelieve the

evidence adduced from the official witnesses, but prudence

demands that their evidence needs to tested on the altar of strict

scrutiny. Considering the aforesaid facts and circumstances, the

evidences adduced by the prosecution witnesses do not inspire

the confidence of this Court.

21. Lastly, it is surprising that although the charges have

been framed under Section 307 of IPC, the prosecution has

absolutely failed to substantiate the charges by means of

evidence. It is rather unfortunate that the courts below have

12 failed to take note of the same. The trial court has erred in

convicting the respondents for the aforesaid offence, without any

evidence to prove the same.

22. In the instant appeals before us, the prosecution has

failed to link the chain of circumstances so as to dispel the cloud

of doubt about the culpability of the accused­respondents. It is a

well settled principle that a suspicion, however grave it may be

cannot take place of proof, i.e., there is a long distance between

“may be” and “must be”, which must be traversed by the

prosecution to prove its case beyond reasonable doubt [See

Narendra Singh v. State of M.P., (2004)10 SCC 699].

23. This Court in Kailash Gour and Ors. v. State of

Assam, (2012) 2 SCC 34 has held that, “44. The prosecution, it is axiomatic, must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence regardless whether the crime is committed in the course of communal disturbances or otherwise. In short, there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for anything specially applicable to a particular case or class of cases…” (emphasis supplied) 13

24. In the present case, the cumulative effect of the

aforesaid investigative lapses has fortified the presumption of

innocence in favor of the accused­respondents. In such cases, the

benefit of doubt arising out of a faulty investigation accrues in

favor of the accused.

25. Although we acknowledge the gravity of the offence

alleged against the accused­respondents and the unfortunate fact

of a senior official losing his life in furtherance of his duty we

cannot overlook the fact that the lapses in the investigation have

disabled the prosecution to prove the culpability of the accused.

The accused cannot be expected to relinquish his innocence at

the hands of an inefficacious prosecution, which is ridden with

investigative deficiencies. The benefit of doubt arising out of such

inefficient investigation, must be bestowed upon the accused.

26. In our opinion, there exists no perversity in the

judgment of the High Court. Further, in the absence of compelling

reasons, this Court is not keen to entertain these appeals

challenging the order of acquittal.

27. We are also not inclined to interfere with the

concurrent order of acquittal for offences committed under the

Arms Act and Explosive Substances Act presently before us in

14 Criminal Appeal no. 1706 of 2014.

28. The appeals are accordingly dismissed. Pending

applications, if any, shall also stand disposed of.

……………………………..J. (N. V. Ramana)

……………………………..J. (Mohan M. Shantanagoudar) NEW DELHI, DECEMBER 10, 2018.

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