# Mohd. Azam (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 422
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-03-29
- **Case number:** Criminal Appeal No. 1263 of 2015
- **Bench:** Bala Krishna Narayana, Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-azam-in-jail-v-state-of-u-p-44356
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 154- Ante-Timed
First Information Report-Two written reports of
the incident were given at the police station one
by P. W. 1 and the other by P. W. 2 , which was
given at the police station after the inquest
proceedings had concluded- Strangely instead of
registering the case on the basis of the written
report given by P. W. 1 at the police station, the
case was registered on the written report of the
occurrence allegedly given by P. W. 2- The fact
that the FIR of the incident which had taken
place on 28.12.1995 at 10:00 A.M. was
registered on the same day at the same time is
in itself an impossible feat-The inquest report
does not mention the number of the case crime
and that the name of the person on whose
information
the
inquest
proceedings
had
commenced has been shown as P. W. 1 and
6 All. Mohd. Azam Vs. State of U.P.
423
not P. W. 2. Since the FIR in this case itself
appears to be a devious, bogus and fictitious
document, hence no reliance on the prosecution
story as spelt out therein can be placed.
Where the First Information Report is apparently
a
suspicious
document
and
finds
no
corroboration from the Inquest report, then no
reliance can be placed on the story of the
prosecution as alleged therein.

B. Evidence Law - Indian Evidence Act,
1872- Section 114(g) - Adverse Inference
against the prosecution-The Head Constable /
Head Moharrir who had prepared the chek FIR
was
deliberately
not
examined
by
the
prosecution with oblique motive. He having not
been produced as a witness, the defence was
deprived of the opportunity to cross-examine
him.
Where
the
First
Information
Report
is
questionable and doubtful, the withholding of
the Head Constable / Head Moharrir by the
prosecution would lead the Court to take an
adverse inference against the case of the
Prosecution.

C. Evidence Law - Indian Evidence Act,
1872-
Section
45-
Forensic
Evidence-
Insufficiency of- Admittedly the firearm weapons
which were allegedly used by the accusedappellants for committing the murder of the
deceased
were
never
recovered
during
investigation. We are absolutely in the dark
about the kind of weapons which were used by
the culprits. The report of forensic expert vis-avis the bullet and the pellet which were
recovered from the body of the deceased,
Imamuddin @ Buggu, plain and bloodstained
earth recovered from the place of occurrence
and the clothes of the deceased Ext. Ka12
merely states that the blood was found on the
bloodstained earth and other articles sent for
forensic examination but the same were either
totally
disintegrated
or
not
capable
of
classification. We are afraid that the forensic
evidence on record is not at all sufficient to link
the appellants with the offence for which they
have been convicted.
The absence of recovery of any fire arms from
the accused coupled with the fact that the blood
stains were either

## Text

422 INDIAN LAW REPORTS ALLAHABAD SERIES
free agent and has been tutored at all
stages by someone or the other".

30. Thus, upon a careful appraisal and
appreciation of the evidence of P. W. 3
Ritik Yadav, child witness in this case, we
find that his evidence came after eleven
days of the incident and during this period,
he had remained with his maternal grand
parents. Considering his tender age on the
date of occurrence, the possibility of his
being tutored and influenced by his
maternal grand father, cannot be ruled out.
The unusual conduct of P. W. 3 Ritik
Yadav immediately after alleged murder by
his father, is another circumstance, which
creates a doubt about the credibility of his
evidence.

31. C. D. R. of the appellant's cell
phone brought on record by the prosecution
to prove that the appellant was present in
Vrindawan are wholly inadmissible in
evidence on account of the fact that the
same were not accompanied with necessary
certificate as required under Section 65 B
(4) of the Indian Evidence Act.

32.

Upon
a
wholesome
consideration of the facts of the case,
attending
circumstances
and
the
evidence on record, we are of the view
that neither the recoded conviction of
the appellant nor the sentence awarded
to him, can be sustained and is liable to
be set aside.

33. Thus, the appeal succeeds and
is allowed and the impugned judgement
and order dated 7.2.2013 passed by the
Additional Sessions Judge, Court No. 1,
Hathras is set-aside and the appellant is
acquitted of all the charges framed
against him. Since he is in jail, he shall
be released forthwith unless he is
wanted in some other case subject to his
complying
with
the
mandatory
requirement of Section 437-A Cr. P. C.

----------
(2020)06ILR A422
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2018

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA,
J.
THE HON'BLE IRSHAD ALI, J.

Criminal Appeal No. 1263 of 2015
connected with
Criminal Appeal No. 745 of 2015

Mohd. Azam ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Hemant Kumar, Sri Anoop Trivedi, Sri
Dileep Kumar, Sri Kamal Krishna, Sri
Rajrshi Gupta, Sri Vivek Prakash Mishra

Counsel for the Opposite Party:
A.G.A., Sri Vijay Kumar Pandey

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 154- Ante-Timed
First Information Report-Two written reports of
the incident were given at the police station one
by P. W. 1 and the other by P. W. 2 , which was
given at the police station after the inquest
proceedings had concluded- Strangely instead of
registering the case on the basis of the written
report given by P. W. 1 at the police station, the
case was registered on the written report of the
occurrence allegedly given by P. W. 2- The fact
that the FIR of the incident which had taken
place on 28.12.1995 at 10:00 A.M. was
registered on the same day at the same time is
in itself an impossible feat-The inquest report
does not mention the number of the case crime
and that the name of the person on whose
information
the
inquest
proceedings
had
commenced has been shown as P. W. 1 and
6 All. Mohd. Azam Vs. State of U.P.
423
not P. W. 2. Since the FIR in this case itself
appears to be a devious, bogus and fictitious
document, hence no reliance on the prosecution
story as spelt out therein can be placed.
Where the First Information Report is apparently
a
suspicious
document
and
finds
no
corroboration from the Inquest report, then no
reliance can be placed on the story of the
prosecution as alleged therein.

B. Evidence Law - Indian Evidence Act,
1872- Section 114(g) - Adverse Inference
against the prosecution-The Head Constable /
Head Moharrir who had prepared the chek FIR
was
deliberately
not
examined
by
the
prosecution with oblique motive. He having not
been produced as a witness, the defence was
deprived of the opportunity to cross-examine
him.
Where
the
First
Information
Report
is
questionable and doubtful, the withholding of
the Head Constable / Head Moharrir by the
prosecution would lead the Court to take an
adverse inference against the case of the
Prosecution.

C. Evidence Law - Indian Evidence Act,
1872-
Section
45-
Forensic
Evidence-
Insufficiency of- Admittedly the firearm weapons
which were allegedly used by the accusedappellants for committing the murder of the
deceased
were
never
recovered
during
investigation. We are absolutely in the dark
about the kind of weapons which were used by
the culprits. The report of forensic expert vis-avis the bullet and the pellet which were
recovered from the body of the deceased,
Imamuddin @ Buggu, plain and bloodstained
earth recovered from the place of occurrence
and the clothes of the deceased Ext. Ka12
merely states that the blood was found on the
bloodstained earth and other articles sent for
forensic examination but the same were either
totally
disintegrated
or
not
capable
of
classification. We are afraid that the forensic
evidence on record is not at all sufficient to link
the appellants with the offence for which they
have been convicted.
The absence of recovery of any fire arms from
the accused coupled with the fact that the blood
stains were either totally disintegrated or not
capable of any classification in the report of the
serologist would render the forensic evidence
insufficient to link the accused with the
commission of the alleged offence.

D. Evidence Law - Indian Evidence Act,
1872- Section 3- Conflict between ocular and
medical evidence - It is the duty of the Court to
separate the chaff from the grain- The manner
of assault as described in the FIR and later
testified by the three witnesses of fact produced
during the trial by the prosecution does not find
corroboration from the medical evidence on
record which puts a big question mark against
their claim of being eye-witnesses of the
occurrence.
Considering
the
material
contradictions in their testimonies inter alia on
the point of time and the identity of the person
who had lodged the FIR of the occurrence and
the irreconcilable conflict between the ocular
version and the medical evidence with regard to
the number of shots fired at the deceased by
the accused-appellants, it cannot be said that
the three witnesses of fact have given cogent
and correct description of the occurrence and
that their evidence is wholly reliable and
trustworthy.
The irreconcilable conflict between the ocular
and medical evidence as well as the material
contradictions in the testimonies of the eye
witnesses would render the testimonies of the
witnesses unreliable and untrustworthy.
The prosecution has miserably failed to prove its
case
against
the
appellants
beyond
all
reasonable doubts. Hence neither the recorded
conviction of the appellants nor the sentences
awarded to them can be sustained and are
liable to be set aside. (Para 17,18,19,22,24)

Criminal Appeal Allowed. (E-3)

(Delivered by Hon'ble Bala Krishna
Narayana, J.)

1. These two connected appeals were
heard by us on 29.3.2018 on which date we
had passed the following order :

"Heard
Sri
Dileep
Kumar,
Advocate assisted by Sri Rajrshi Gupta,
learned counsel appearing on behalf of the
appellant,
Sri
Vijay
Kumar
Pandey,
424 INDIAN LAW REPORTS ALLAHABAD SERIES
learned counsel for the complainant and
Sri J.K. Upadhyay, learned AGA for the
State.

We will give reasons later. But
we are making the operative order here
and now.

Since both the aforesaid appeals
arise out of one and the same judgment
and order dated 18.02.2005 passed by
learned Additional Sessions Judge, Court
No. 8, Azamgarh, therefore, both the
appeals are being decided of by way of a
common judgment.

Both the criminal appeals are
allowed. The impugned judgment and
order dated 18.02.2015 passed by learned
Additional Sessions Judge, Court No. 8,
Azamgarh in S.T. No. 341 of 1996 (State
Versus Mohd. Azam and others) by which
the appellant-Mohd. Azam in Criminal
Appeal No. 1263 of 2015 has been
convicted and sentenced to imprisonment
for life with fine of Rs. 30,000/- under
Section 302 IPC and in default of payment
of fine six months additional rigorous
imprisonment while appellants-Liaqat and
Alauddin in Criminal Appeal No. 745 of
2015 have been convicted and sentenced to
imprisonment for life with fine of Rs.
30,000/-each and in default of payment of
fine
six
months
additional
rigorous
imprisonment each, are hereby set aside.

The
appellants
in
both
the
aforesaid appeals are acquitted of all the
charges framed against them. AppellantMohd. Azam in Criminal Appeal No. 1263
of 2015 is in jail. He shall be released
forthwith unless he is wanted in any other
criminal case while appellants-Liaqat and
Alauddin in Criminal Appeal No. 745 of
2015 are on bail. They need not surrender.
Their bail bonds are cancelled and the
sureties are discharged. The appellants
shall comply with Section 437A of Cr.P.C.
within three weeks."

We are now giving reasons :

1. These two criminal appeals
namely, criminal appeal nos. 1263 of 2015
and 745 of 2015 have been preferred by
Mohd. Azam, appellant in criminal appeal
no. 1263 of 2015 and Liaqat and Alauddin,
appellants in criminal appeal no. 745 of
2015 against the judgment and order dated
18.2.2015 passed by Additional District
and
Sessions
Judge,
Court
No.
8,
Azamgarh in S.T. No. 341 of 1996 (State
Versus Mohd. Azam and others) by which
the appellant-Mohd. Azam in Criminal
Appeal No. 1263 of 2015 has been
convicted and sentenced to imprisonment
for life with fine of Rs. 30,000/- under
Section 302 IPC and in default of payment
of fine six months additional rigorous
imprisonment while appellants-Liaqat and
Alauddin in Criminal Appeal No. 745 of
2015 have been convicted and sentenced to
imprisonment for life with fine of Rs.
30,000/- each and in default of payment of
fine
six
months
additional
rigorous
imprisonment each u/s 302 IPC.

2. Briefly stated the facts of this case
are that P. W. 2 Ashahad gave a written
report Ext. Ka1 at Police Station Devgaon,
District Azamgarh on 28.12.1995 stating
therein that he is a resident of Katauli
Khurd, Police Station Devgaon, Distrcit
Azamgarh.
On
28.12.1995
while
Imamuddin @ Buggu was coming to him
to bring the key of his vehicle he met
accused, Azam son of Ali Hasan, Liaqat
son of Haji Tauheed, Alauddin son of Rauf
and Ajaz son of Mannan in the lane and on
seeing them, they taunted him for filing a
case against them and started chasing them
on which they ran towards the east of the
lane, Azam shot at Imamuddin @ Buggu
with his firearm. Thereafter, Ajaz (nonappellant) also shot Imamuddin @ Buggu
6 All. Mohd. Azam Vs. State of U.P.
425
who died on the spot and on hearing the
sounds of gun shots Javed Khan son of
Aslam Khan and Abdul Kalam son of
Ayyub also reached the place of occurrence
and witnessed the incident which had taken
place at about 10 A.M.

3. On the basis of the aforesaid
written report Ext. Ka1, case crime no. 295
of 1995, under Section 302 IPC was
registered against the appellants and one
Ajza Ahmad, chek FIR Ext. Ka13 and
corresponding G.D. entry Ext. Ka14 were
prepared by P. W. 4 Asharafi Lal.

4. The investigation of the case was
taken over by P. W. 4 Asharfi Lal who at
the relevant point of time was posted at
Police
Station
Devgaon,
District
Azamgarh.
He
after
receiving
the
information tendered to him by P. W. 1
Abdul Kalam son of Ayyub who was
accompanied with 4 to 5 persons, at Police
Station Devgaon, District Azamgarh on
28.12.1995 at 10 A.M. that Imamuddin @
Buggu resident of village Katauli Khurd
had been shot dead, reached the place of
incident and after nominating the inquest
witnesses,
he
conducted
the
inquest
proceedings on the body of the deceased at
11:00 A.M. and after completing the
inquest, prepared the inquest report of the
deceased along with other related papers
namely police form no. 13, photo nash,
report addressed to R.I. Ext. Ka4 to Ext.
Ka7 and report addressed to C.M.O. Ext.
Ka8. Thereafter, he got the dead body of
the deceased, Imamuddin @ Guggu sealed
and dispatched to the District Hospital
Azamgarh for conducting postmortem. The
postmortem on the body of the deceased
was conducted by late Dr. J.S. Govind on
29.12.1995 at about 12:15 P.M. which was
proved by P. W. 3 Dr. Rajendra Prasad,
Chief Pharmacist, Police Hospital, District
Azamgarh. The postmortem report Ext.
Ka3 indicated following ante mortem
injuries on the deceased's body :

(i) Firearm wound of entry 1 cm x
1 cm bone deep on the left side face over left
ear triangular margins lacerated invented
under laying bone fracture.

(ii) Firearm wound of exit 2.50 cm
x 2 cm x bone deep and communication to
injury no. 1 margin lacerated invented under
laying bone fracture.

(iii) Firearm wound of entry 2 cm x
2.50 cm x muscle deep on the outer aspect of
right upper arm 16 cm below right shoulder
joint margin invent.

(iv) Firearm wound of exit 3 cm x
2.50 cm x muscle deep on right upper arm
inner aspect 18 cm below right shoulder
and it is communicating with injury no. 3.

(v) Firearm wound of entry 3 cm
x 2.50 cm x chest cavity deep on the right
side of chest 6 cm from axilla margin
invented and irregular.

(vi) Firearm wound exit 4 cm x
2.75 cm x abdomin and chest cavity deep
on left side abdomin upper part near right
side with axillary line margin invented
lacerated injury is communicating to injury
no. 5 recovered one plastic piece and corte.

According to the postmortem report of
the deceased, cause of death was shock and
hemorrhage due to ante mortem injuries.

5. P. W. 4 Asharfi Lal, the
Investigating Officer of the case after
completing the investigation filed chargesheet against all the accused including the
appellants under Section 302 IPC before
C.J.M. Azamgarh who by his committal
order order dated 24.7.1996 committed the
accused for trial to the Court of Sessions
Judge, Azamgarh where the case was
registered as S.T. No. 341 of 1996 and
426 INDIAN LAW REPORTS ALLAHABAD SERIES
made over from there for trial to the Court
of Additional District and Sessions Judge,
Court No. 8, Azamgarh who on the basis
of
the
material
collected
during
investigation
and
after
hearing
the
prosecution as well as the accused on the
point of charge, framed charge on
8.1.1999 under Section 302 IPC against
accused-appellant, Mohd. Azam and under
Section 302/34 IPC against the other
accused-appellants Liaqat and Alauddin.
The accused-appellants abjured the charge
and claimed trial.

6. The prosecution in order to prove its
case examined as many as five witnesses of
whom P. W. 1 Abdul Kalam, P. W. 2,
informant, Ashahad and P. W. 5 Javed Khan
were produced as witnesses of fact while P. W.
3 Dr. Rajendra Prasad, Chief Pharmacist who
proved the photo stat copy of the postmortem
report of the deceased as Ext. Ka2. P. W. 4 S.I.
Asharfi Lal, Investigating Officer of the case
who had prepared and proved the inquest report
Ext. Ka4, police form no. 13 Ext. Ka5, photo
nash Ext. Ka6, R.I. report Ext. Ka7, C.M.O.
report Ext. Ka8, site plan of the incident Ext.
Ka9, recovery memo of bloodstained and
simple earth from the place of occurrence Ext.
Ka10, charge-sheet Ext. Ka11, report of the
forensic expert of the bullet recovered from the
dead body of the deceased Ext. Ka12, chek FIR
Ext.
Ka13
and
carbon
copy
of
the
corresponding G.D. entry Ext. Ka14, were
produced as formal witnesses.

7. The accused-appellants in their
examinations under Section 313 Cr.P.C.
denied the prosecution case as false and
claimed themselves to be innocent and
examined D.W. 1 Mohd. Ikhlaq as defence
witness.

8. The learned Trial Judge after
considering the submissions advanced
before him by the learned counsel for the
parties and scrutinizing the evidence on
record, both oral as well as documentary,
convicted the appellants under the aforesaid
sections and sentenced them to life
imprisonment together with fine.

9. Hence this appeal.

10. Sri Dileep Kumar, learned counsel
appearing for the appellants has submitted
that the FIR in this case is ante-timed. The
written report of the incident which was
signed and given by P. W. 2 Ashahad at
Police Station Devgaon, District Azamgarh
was suppressed and the same did not see
the light of the day and the report which
was signed and given by P. W. 1 Abdul
Kalam at the police station as is evident
from the perusal of the chek FIR and the
corresponding G.D. entry Ext. Ka13 and
Ext. Ka14 was not the first information
report of the incident but the same was
prepared on the advice of the police
personnel as is evident from the evidence
of P. W. 4 Asharfi Lal, the Investigating
Officer of the case itself. He next submitted
that none of the so called eye witnesses had
seen the occurrence. This fact is self
evident in view of the irreconcilable
conflicts vis-a-vis the ocular version and
the medical evidence on record. The
prosecution case as spelt out in the FIR
which was lodged by P. W. 1 Abdul Kalam
claiming himself to be an eye witness of
the occurrence was that the deceased had
received one gun shot each from the
appellant, Mohd. Azam and non-appellant,
Ajaz whereas the postmortem report of the
deceased Ext. Ka3 indicated as many as
three firearm wounds of entry with
corresponding firearm wounds of exit. The
eye witness account in this case does not
inspire confidence and false implication of
the appellants in the present case is writ
6 All. Mohd. Azam Vs. State of U.P.
427
large on the face of the record. Neither the
recorded conviction of the appellants nor
the sentence of life imprisonment awarded
to them can be sustained and the same are
liable to be set aside.

11. Per contra Sri J.K. Upadhyay,
learned counsel appearing for the State
submitted that the prosecution having
succeeded in establishing the charge
framed against the appellants by leading
cogent and reliable evidence, the recorded
conviction of the appellants by the trial
court is not liable to be interfered with on
account of there being some minor
inconsistencies
vis-a-vis
the
medical
evidence and the ocular version. The FIR in
this case is not ante-timed. The three
witnesses
of
fact
examined
by
the
prosecution during the trial to prove the
charge framed against the appellants have
consistently supported the prosecution case
on all material aspects of the incident and
their evidence is not liable to be discarded
merely on account of there being some
minor contradictions in their evidence
which are wholly immaterial and do not
affect the core of the prosecution case. This
appeal lacks merit and is liable to be
dismissed.

12. The only question which arises for
our consideration in this appeal is that
whether the prosecution has been able to
prove its case against the accusedappellants beyond all reasonable doubts or
not.

13. Record shows that the incident
had taken place at about 10 A.M. on
28.12.1995 within the limits of village
Katauli Khurd, District Azamgarh. The
written report of the incident Ext. Ka1 is
said to have been given by P. W. 2
Ashahad, brother of the deceased at Police
Station Devgaon, District Azamgarh on the
same day at about 10 A.M. as deposed by
P. W. 4 Asharfi Lal, the Investigating
Officer of the case in his examination-inchief on page 32 of the paper book. The
distance between the police station and the
place of occurrence as mentioned in the
chek FIR Ext. Ka13 is about 3 km. P. W. 1
Abdul Kalam, the real brother of the
deceased on page 17 and 18 of the paper
book in his cross-examination twice
deposed that the report of the incident was
lodged by him, although on page 19 of the
paper book he corrected himself by saying
that the FIR was lodged by his brother
Ashahad P. W. 2 and he and Javed had
accompanied him to the police station and
on the same page he stated that they had
gone to the police station on their
motorcycle and had reached the police
station some time between 3 P.M. to 4 P.M.
The FIR was scribed at the police station
and given to Daroga Ji of Police Station
Devgaon.

14. P. W. 2 Ashahad on page 26 of
the paper book in his examination-in-chief
deposed
that
he
and
his
maternal
grandfather, Mohd. Zakariya had gone to
the police station along with Atahar to
lodge the FIR of the incident on one
motorcycle along with Javed Khan P. W. 5
who was on another motorcycle and the
FIR was scribed on the paper which was
brought by P. W. 5 Javed Khan from the
market, he had signed the report after the
same had been read over to him. He proved
the written report which was given by him
at Police Station Devgaon. He further
deposed on page 27 of the paper book that
he along with his maternal grand-father
(Nana) who accompanied with Atahar had
gone to the police station and given Ext.
Ka1 at the Police Station Devgaon. He was
given a copy of the report and thereafter,
428 INDIAN LAW REPORTS ALLAHABAD SERIES
they along with the Daroga Ji had returned
to the place of occurrence where his
statement
was
recorded
after
the
completion of inquest proceedings. On
page 29 of the paper book, he in his crossexamination denied the suggestions given
to him that on the date and at the time of
the incident he was not present in
Azamgarh and he had reached the crime
scene after the completion of inquest
proceedings. On the same page where it
was suggested to him by the defence
counsel that his brother Abdul Kalam had
given a written report against the Jaipuriya
people on the basis of which inquest was
conducted, he did not specifically deny the
same and feigned ignorance.

15. P. W. 2 Ashahad has neither
disclosed the time at which he had left the
place of occurrence for the police station
nor the time at which he reached thereon.

16. P. W. 5 Javed Khan also has not
disclosed in his evidence the time at which
he and the informant P. W. 2 Ashahad and
the other persons accompanying them had
reached the police station. He denied the
suggestion given to him that the first
information report of the incident was
given at the police station against unknown
persons and on the basis of which inquest
proceedings were conducted.

17. We now proceed to evaluate the
evidence of P. W. 4 Asharfi Lal on the
aforesaid aspect of the matter. P. W. 4 Asharfi
Lal in his examination-in-chief on page 32 of
the paper book has deposed that he was posted
as Officer-In-Charge of Police Station Devgaon
on 28.12.1995. On that day at about 10 A.M., P.
W. 1 Abdul Kalam son of Mohd. Islam along
with his 4 or 5 companions had come to the
police station at about 10 A.M. On the
information given to him by P. W. 1 Abdul
Kalam that one Imamuddin @ Buggu resident
of Village Katauli Khurd had been shot dead,
he after issuing the necessary directions to
register the case, reached the place of
occurrence along with his force in a
government jeep in village katauli Khurd and
on reaching there he saw a dead body lying on
cot. He after nominating the inquest witnesses
commenced the inquest proceedings at 11 A.M.
The inquest report which is on record as Ext.
Ka4 also indicates that inquest proceedings had
commenced pursuant to the information given
at the police station by Abdul Kalam son of
Mohd. Islam that Imamuddin @ Buggu had
been shot dead. The inquest report Ext. Ka4
neither mentions the case crime number nor the
names of the accused. P. W. 4 Asharfi Lal was
re-examined and he in his re-examination on
page 37 of the paper book deposed that the FIR
of the incident which was on the record of the
case was prepared on the basis of the written
complaint given by Mohd. Ashahad son of
Ayyub Ahmad on 28.12.1995 which is on
record as Ext. Ka1. He further deposed before
the Court that he was not aware about the fact
whether there was any other person in village
Katauli Khurd called Abdul Kalam son of
Islam or not. He was also not aware whether the
name of the father of Abdul Kalam is Ayyub or
not. Chek FIR was not prepared on the basis of
the written report given to him at the place of
occurrence at the time when he had gone there
to conduct inquest proceedings. He had
received the written report of the occurrence
when he had returned to the police station after
completing the inquest proceedings which was
signed by P. W. 2 Ashahad. The written report
signed by Ashahad was received by him after 4
hours. He had scolded the Munshi for his
having not prepared the chek FIR after
receiving the written complaint of Abdul
Kalam.

18. Thus, upon perusing the evidence
of P. W. 1 Abdul Kalam, P. W. 2 Ashahad,
6 All. Mohd. Azam Vs. State of U.P.
429
P. W. 5. Javed Khan, the eye-witnesses of
the occurrence and P. W. 4 Asharfi Lal,
investigating officer of the case, we have
no hesitation in holding that the FIR in this
case is ante-timed. It is proved from the
evidence of P. W. 1, P. W. 2 and P. W. 4
that two written reports of the incident were
given at the police station one by Abdul
Kalam P. W. 1 and the other by P. W. 2
Ashahad, which was given at the police
station after the inquest proceedings had
concluded. The report given by P. W. 1
Abdul Kalam was anterior in point of time
is proved from the evidence of P. W. 4
Asharfi Lal and also recitals contained in
the inquest report which described the
informant as Abdul Kalam P. W. 1 but
strangely instead of registering the case on
the basis of the written report given by P.
W. 1 Abdul Kalam at the police station, the
case was registered on the written report of
the occurrence allegedly given by P. W. 2
Ashahad at Police Station Devgaon 4 to 5
hours after the occurrence which was
apparently prepared after due deliberations
and consultations falsely implicating the
appellants due to admitted previous enmity
between the parties. The Head Constable /
Head Moharrir who had prepared the chek
FIR was deliberately not examined by the
prosecution with oblique motive. He
having not been produced as a witness, the
defence was deprived of the opportunity to
cross-examine him. Moreover, the fact that
the FIR of the incident which had taken
place on 28.12.1995 at 10:00 A.M. was
registered on the same day at the same time
is
in
itself
an
impossible
feat
notwithstanding the fact that the distance
between the police station and the place of
occurrence is only 3 km and the informant's
claim is that he had gone to the police
station to lodge the FIR on a motorcycle,
because as a normal human reaction after
the incident, sometime must have been lost
in grieving over the death of Imamuddin @
Buggu and procuring the piece of paper
from the market on which written report
was scribed by P. W. 5 Javed Khan on the
dictation of P. W. 2 Ashahad. Moreover,
there are other attendant circumstances
which indicate that the FIR in this case is
ante-timed and the information of the
incident was not given by P. W. 2 Ashahad
but P. W. 1 Abdul Kalam and the FIR of
the incident which was lodged by P. W. 2
Ashahad was not in existence at the time of
holding of the inquest, inter alia that the
inquest report Ext. Ka4 does not mention
the number of the case crime ; and that the
name of the person on whose information
the inquest proceedings had commenced
has been shown as P. W. 1 Abdul Kalam
and not P. W. 2 Ashahad.

19. Thus, the credibility of the FIR in
this case stands totally shattered in view of
the evidence on record. Since the FIR in
this case itself appears to be a devious,
bogus and fictitious document, hence no
reliance on the prosecution story as spelt
out therein can be placed.

20. The veracity of the evidence of
the three eye-witnesses produced by the
prosecution during the trial has been
castigated by the learned counsel for the
appellants on the ground that ocular
testimony in this case is contrary to the
medical evidence. It has been held by the
Apex Court in a catena of decisions that
where there is direct evidence on record
minor variance between the direct evidence
and the medical evidence or inconsistency
in the direct evidence vis-a-vis medical
evidence, it is the duty of the Court to
remove the chaff from grain and ascertain
the
truth.
In
the
instant
case,
the
prosecution has come up with a categorical
case that appellant, Mohd. Azam and non-
430 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant, Ajaz had each fired a single shot
at the deceased, Imamuddin @ Buggu. All
the three witnesses of fact, P. W. 1 Abdul
Kalam, P. W. 2 Ashahad as well as P. W. 5
Javed Khan have consistently deposed
before the trial Court in the same voice.
However, the postmortem report of the
deceased which was prepared by Dr. J.S.
Govind on 29.12.1995 at about 12:15 P.M.
and proved by P. W. 3 Dr. Rajendra Prasad,
Chief Pharmacist, Police Hospital, District
Azamgarh
as
Dr.
J.S.
Govind
had
unfortunately expired clearly indicates that
the deceased had received three firearm
wounds of entry namely (i) firearm wound
of entry 1cm x 1cm bone deep on the left
side face over left ear triangular margins
lacerated invented under laying bone
fracture, (ii) firearm wound of exit 2.50 cm
x 2 cm x bone deep and communication to
injury no. 1 margin lacerated invented
under laying bone fracture, (iii) Firearm
wound of entry 2 cm x 2.50 cm x muscle
deep on the outer aspect of right upper arm
16 cm below right shoulder joint margin
invent.

21. We have very carefully scanned
the evidence of P. W. 3 Rajendra Prasad,
Chief Pharmacist, Police Hospital, District
Azamgarh who was examined by the
prosecution during the trial to prove the
postmortem report of the deceased but we
have not found anything in his evidence
which may indicate that the three ante
mortem firearm wounds of entry found on
the dead body of Imamuddin @ Buggu
could be result of two shots. Infact the
testimony of P. W. 3 Dr. Rajendra Prasad is
wholly silent on the aforesaid aspect of the
matter.

22. Admittedly the firearm weapons
which were allegedly used by the accusedappellants for committing the murder of the
deceased were never recovered during
investigation. We are absolutely in the dark
about the kind of weapons which were used
by the culprits. The report of forensic
expert vis-a-vis the bullet and the pellet
which were recovered from the body of the
deceased, Imamuddin @ Buggu, plain and
bloodstained earth recovered from the place
of occurrence and the clothes of the
deceased Ext. Ka12 merely states that the
blood was found on the bloodstained earth
and other
articles
sent
for
forensic
examination but the same were either
totally disintegrated or not capable of
classification. We are afraid that the
forensic evidence on record is not at all
sufficient to link the appellants with the
offence
for
which
they
have
been
convicted. Moreover, neither there is any
evidence nor any suggestion which may
indicate as to which out of two accused,
Mohd. Azam and non-appellant, Ajaz had
shot at the deceased with the double barrel
gun. The three ante mortem injuries noted
by P. W. 3 Dr. Rajendra Prasad, Chief
Pharmacist,
Police
Hospital,
District
Azamgarh on the body of the deceased,
Imamuddin @ Buggu are on different parts
of his dead body, although, the three
witnesses of the occurrence have stated in
unison that the two shots were fired by the
appellants at the deceased.

23. In the instant case, the accusedappellants were neither apprehended on the
spot nor any firearm was recovered from
them or on their pointing out at any stage of
the investigation.

24. Thus, in the present case, we find
that the manner of assault as described in
the FIR and later testified by the three
witnesses of fact produced during the trial
by
the
prosecution
does
not
find
corroboration from the medical evidence on
6 All. Vijai & Anr. Vs. State of U.P.
431
record which puts a big question mark
against their claim of being eye-witnesses
of the occurrence. Moreover, all the three
witnesses of fact, two of them namely P.
W. 1 Abdul Kalam and P. W. 2 Ashahad
being the real brothers of the deceased
while P. W. 5 Javed Khan his cousin
brother, are highly interested witnesses. It
is true that the evidence of a witness cannot
be discarded merely on account of his
being a relative of the deceased if upon a
cautious appraisal of his evidence, the
Court comes to the conclusion that he has
given correct and cogent description of the
incident but considering the material
contradictions in their testimonies inter alia
on the point of time and the identity of the
person who had lodged the FIR of the
occurrence and the irreconcilable conflict
between the ocular version and the medical
evidence with regard to the number of shots
fired at the deceased by the accusedappellants, it cannot be said that the three
witnesses of fact have given cogent and
correct description of the occurrence and
that their evidence is wholly reliable and
trustworthy. The previous enmity between
the parties could be a very strong reason for
them to falsely implicate the appellants
after the dead body of the deceased was
found.

25. The motive for the accused-appellants
to commit the murder of the deceased as spelt
out in the FIR and as deposed by P. W. 1 Abdul
Kalam and P. W. 2 Ashahad in their evidence
tendered before the trial court is that on the date
of occurrence while Zakariya, the maternal
grand-father of the deceased was going to lodge
the FIR with regard to an occurrence which had
taken place one day before the date of
occurrence in which two persons Naushad and
Seraj had dealt a lathi blow to Zakariya, the
accused had shot the deceased in reaction.
There is no evidence on record showing that the
appellants had also participated in the earlier
incident or they were either relatives of
Naushad and Seraj or they had committed the
offence at their behest. No reason is
forthcoming as to why the appellants would
have shot the deceased Imamuddin @ Buggu
instead of shooting Zakariya, the maternal
grand-father of P. W. 1 Abdul Kalam and P. W.
2 Ashahd who according to the prosecution was
going to lodge the FIR of the incident which
had taken place on the date of occurrence at
about 7 A.M. if they had acted at the behest of
Naushad and Seraj.

26. The prosecution, in our opinion has
totally failed to prove the motive for the appellants
to commit the murder of the deceased.

27. Thus, upon a holistic view of the facts of
the case and a careful appraisal and evaluation of
the evidence on record, both oral as well as
documentary, we find that the prosecution has
miserably failed to prove its case against the
appellants beyond all reasonable doubts. Hence
neither the recorded conviction of the appellants
nor the sentences awarded to them can be
sustained and are liable to be set aside.

28. These are the reasons for which we had
allowed this criminal appeal.
----------

(2020)06ILR A431
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.02.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No. 1427 of 1981

Vijai & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent