# Rafi Ullah & Ors v. State Of U.P

- **Citation:** (2016) 5 ILRA 1526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-17
- **Bench:** Shashi Kant Gupta, Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rafi-ullah-ors-v-state-of-u-p-43783
- **Pages:** 15

## Headnote

The present criminal appeal was preferred against the judgment and order dated 02.08.1984 passed by the
Vth Additional Sessions Judge, Basti in Sessions Trial Nos. 157 of 1982 and 76 of 1983, whereby appellant
no.1 was convicted under Section 302 IPC and appellant nos. 2 to 4 were convicted under Section 302 read
5 All. Rafi Ullah & Ors. Vs State Of U.P.

1527
with Section 34 IPC and all were sentenced to imprisonment for life. The appeal remained pending for about
32 years and came up for final hearing in the year 2016. During pendency of the appeal, appellant no.3
Samiullah died and the appeal stood abated in his respect. The Court proceeded to hear the appeal on merits
qua the remaining appellants. After hearing learned counsel for the parties and reappreciating the entire
evidence on record, the Division Bench examined the legality, correctness and sustainability of the conviction
recorded by the Trial Court.

Procedure:
The case originated from an incident dated 17.11.1981, initially registered under Section 307 IPC at Police
Station Mahuli, District Basti on the written report allegedly lodged by the injured Mohammad Haroon. After
his death, the case was converted to one under Section 302 IPC. Investigation was conducted, inquest
proceedings were held, post-mortem was conducted and charge-sheet was submitted against the accused
persons. The Sessions Court framed charges and conducted trial in which ten prosecution witnesses and three
defence witnesses were examined. Upon conclusion of trial, the appellants were convicted and sentenced as
aforesaid, giving rise to the present appeal.

Penal Sections Involved:
Section 302 IPC
Section 302 read with Section 34 IPC
Section 307 IPC (initial stage)
Section 313 Cr.P.C.

Case Law:
Principles relating to appreciation of evidence of chance witnesses
Law relating to dying declaration under Section 32, Indian Evidence Act
Presumption under Section 114(g), Indian Evidence Act (non-examination of material witnesses)
Benefit of doubt in criminal jurisprudence

Head Notes:
Criminal Appeal-Murder-Firearm injury-FIR alleged to be dying declaration-Capability of injured to
speak-Medical evidence contradicting prosecution version-Non-examination of scribe and material
witnesses-Delayed recording of statements-Chance witnesses-Benefit of doubt.
Where medical evidence establishes that the deceased had sustained multiple firearm injuries causing
extensive damage to internal organs and rendering him incapable of speech, the prosecution version that the
FIR was dictated by the deceased cannot be accepted. A long, detailed FIR allegedly lodged by the injured in
such a critical condition lacks credibility, particularly when the scribe of the FIR and accompanying police
personnel are not examined. Testimony of chance witnesses, whose presence at the place of occurrence
appears unnatural and doubtful, requires strict scrutiny. Delay in

## Text

_Characters 0–39,709 of 45,925. This is a partial read: ask again with offset=39709 for what follows._

1526 INDIAN LAW REPORTS ALLAHABAD SERIES
finding of conviction. On the contrary, we have every reason to confirm the finding of conviction
recorded by the trial court. In cases, where the testimony of eye witness appears to be reliable,
clinching and complete in material particulars like the present case, then the same has to be
believed and acted upon and any finding recorded upon such testimony shall be taken to be fair
enough for recording conviction of an offender against whom the testimony is forthcoming.

42. In view of above discussion, it is obvious that the grounds urged and contention raised
in support of this appeal are devoid of force. The judgment and order dated 19.05.1986 passed by
the Sessions Judge, Basti, in Session Trial No.96 of 1985 arising out of Case Crime No.103 of
1984, under Section 302/34 IPC, Police Station Kalwari, District Basti is upheld.

43. Accordingly, the appeal is dismissed.

44. In this case, all the three surviving appellants namely Ram Shanker, Daya Shanker and
Dudh Nath are on bail. Their personal bonds and bail bonds are cancelled and sureties discharged.
They be taken into custody forthwith to serve out the remaining part of their sentences imposed
upon them in the aforesaid sessions trial.

45. Let a copy of this judgment be certified to trial court for information and necessary
follow up action.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE KAUSHAL JAYENDRA THAKER, J.

Criminal Appeal No.- 2129 Of 1984

Rafi Ullah & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for the Appellants:
G.P. Mathur, G.S. Chaturvedi, Kartikeya Saran, Mukhtar Alam, S.N. Singh, S.U. Khan

Counsel for the Respondent:
D.G.A., H.D. Verma, V.P. Mathur

Proceedings:
The present criminal appeal was preferred against the judgment and order dated 02.08.1984 passed by the
Vth Additional Sessions Judge, Basti in Sessions Trial Nos. 157 of 1982 and 76 of 1983, whereby appellant
no.1 was convicted under Section 302 IPC and appellant nos. 2 to 4 were convicted under Section 302 read
5 All. Rafi Ullah & Ors. Vs State Of U.P.

1527
with Section 34 IPC and all were sentenced to imprisonment for life. The appeal remained pending for about
32 years and came up for final hearing in the year 2016. During pendency of the appeal, appellant no.3
Samiullah died and the appeal stood abated in his respect. The Court proceeded to hear the appeal on merits
qua the remaining appellants. After hearing learned counsel for the parties and reappreciating the entire
evidence on record, the Division Bench examined the legality, correctness and sustainability of the conviction
recorded by the Trial Court.

Procedure:
The case originated from an incident dated 17.11.1981, initially registered under Section 307 IPC at Police
Station Mahuli, District Basti on the written report allegedly lodged by the injured Mohammad Haroon. After
his death, the case was converted to one under Section 302 IPC. Investigation was conducted, inquest
proceedings were held, post-mortem was conducted and charge-sheet was submitted against the accused
persons. The Sessions Court framed charges and conducted trial in which ten prosecution witnesses and three
defence witnesses were examined. Upon conclusion of trial, the appellants were convicted and sentenced as
aforesaid, giving rise to the present appeal.

Penal Sections Involved:
Section 302 IPC
Section 302 read with Section 34 IPC
Section 307 IPC (initial stage)
Section 313 Cr.P.C.

Case Law:
Principles relating to appreciation of evidence of chance witnesses
Law relating to dying declaration under Section 32, Indian Evidence Act
Presumption under Section 114(g), Indian Evidence Act (non-examination of material witnesses)
Benefit of doubt in criminal jurisprudence

Head Notes:
Criminal Appeal-Murder-Firearm injury-FIR alleged to be dying declaration-Capability of injured to
speak-Medical evidence contradicting prosecution version-Non-examination of scribe and material
witnesses-Delayed recording of statements-Chance witnesses-Benefit of doubt.
Where medical evidence establishes that the deceased had sustained multiple firearm injuries causing
extensive damage to internal organs and rendering him incapable of speech, the prosecution version that the
FIR was dictated by the deceased cannot be accepted. A long, detailed FIR allegedly lodged by the injured in
such a critical condition lacks credibility, particularly when the scribe of the FIR and accompanying police
personnel are not examined. Testimony of chance witnesses, whose presence at the place of occurrence
appears unnatural and doubtful, requires strict scrutiny. Delay in recording statements of eyewitnesses
without explanation further weakens the prosecution case. In such circumstances, the accused are entitled to
benefit of doubt and conviction under Sections 302 and 302/34 IPC cannot be sustained.

Facts:
Deceased Mohammad Haroon had prior enmity with the accused due to earlier criminal litigation.
Incident occurred on 17.11.1981 at about 9:30 p.m. near Chhoti Masjid, village Chhitahi.
Accused allegedly fired at the deceased causing gunshot injuries to abdomen.
FIR was allegedly lodged by the injured himself at 10:50 p.m.
Injured was examined at PHC Nath Nagar and referred to District Hospital, Basti.
Deceased died on the way to hospital.
Post-mortem revealed multiple firearm injuries and extensive internal damage.
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
Contentions:

For the Appellants:
FIR could not have been dictated by the deceased due to grievous injuries.
Medical evidence contradicts prosecution story.
Eye witnesses are chance and interested witnesses.
Scribe of FIR and material witnesses not examined.
Delay in recording statements creates serious doubt.
Prosecution story is concocted due to prior enmity.

For the State:
FIR was promptly lodged and admissible as dying declaration.
Medical opinion suggests injured could speak for some time.
Motive clearly established.
Trial Court rightly convicted the accused.

Analysis:
Medical evidence clearly establishes severe internal injuries making speech improbable.
FIR is unusually detailed and inconsistent with physical condition of deceased.
Non-examination of FIR scribe and police escorts attracts adverse inference.
Conduct and presence of alleged eyewitnesses appears unnatural.
Delay in recording statements of witnesses remains unexplained.
Contradictions between prosecution witnesses and defence evidence are material.
Trial Court failed to appreciate material infirmities in prosecution case.

Conclusion:
The High Court held that the prosecution failed to establish its case beyond reasonable doubt. The theory that
the FIR was dictated by the deceased was found unreliable and contrary to medical evidence. Presence of
eyewitnesses was doubtful and investigation suffered from serious lapses. Granting benefit of doubt, the
conviction and sentence of the appellants under Sections 302 and 302/34 IPC were set aside. The appeal was
allowed and the appellants were acquitted of all charges. Their bail bonds were cancelled and sureties
discharged.

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. This appeal has been preferred by the accused-appellants against the judgment and order
dated 02.08.1984 passed by the Vth Additional Sessions Judge, Basti in Sessions Trial Nos. 157 of
1982 & 76 of 1983, under Sections 302, 302/34 IPC, Police Station Mahuli, District Basti whereby
the accused appellant no. 1 has been convicted and sentenced to undergo imprisonment for life for
the offence punishable under Section 302 IPC and the appellant nos. 2 to 4 have been convicted
and sentenced to undergo imprisonment for life for the offence punishable under Sections 302/34
IPC.

1A. The present appeal was filed in the year 1984 against the impugned judgment
dated 02.08.1984 and it has come up for hearing before us after the lapse of a period of about
32 years.
5 All. Rafi Ullah & Ors. Vs State Of U.P.

1529
2. At the outset, it is pertinent to mention here that during the pendency of this appeal, the
appellant no. 3 namely Samiullah had died. Accordingly, vide order dated 20.04.2016, this Court
has abated the appeal in respect of the appellant no. 3 namely Samiullah.

3. Now, we are proceeding to consider the present appeal in respect of the remaining
appellants i.e. appellant nos. 1, 2 and 4 namely Rafi Ullah, Rafi Ahmad and Alimul Kadar alias
Dhil Dhil.

4. The factual scenario as described by the prosecution is essentially as follows:

The deceased Mohamad Haroon was nominated as an accused along with his brother
Baitullah and other companions for the murder of Nabi Rasool, the real brother of the accused Rafi
Ullah in the year 1972. The case culminated in acquittal of the deceased. Alimul Kadar alias Dhil
Dhil launched a prosecution under section 307 of the Indian Penal Code against the deceased which
was pending on the date of the occurrence. The accused were at logger-heads with the deceased on
account of his acquittal in the murder case because of the pendency of other criminal cases between
them, as such, they were looking for an opportunity to take revenge against him. On 17th
November, 1981 at about 9.30 p.m., while the deceased was returning home from Mahuli Bazar in
the company of Sirajul Haq and Jabbar (who were also the residents of village Chhitahi) and
reached near 'Chhoti Masjid' in village Chhitahi, the accused appellants Rafi Ullah, Alimul Kadar
alias Dhildhil, Rafi Ahmed and Sami Ullah, who lay in wait for the arrival of the deceased,
emerged from the west of the mosque, surrounded him challenged the deceased and Rafi Ullah
fired at him by means of Katta, which hit him in the abdomen. On an alarm being raised by the
deceased, many people of the locality arrived at the spot as a result thereof, all the four accused fled
away. The accused persons were recognized by his two companions and other villagers also in the
electric light which was burning near the Mosque.

5. A first information report of the incident, Ext. Ka 1 was lodged by the victim
Mohammad Haroon himself at the Police Station Mahuli under section 307 of the Indian Penal
Code at 22.50 PM on 17.11.1981 vide chick F.I.R. Ka 4 against the accused persons.

6. The injured was taken to the Primary Health Centre Nath Nagar where his injuries were
examined by the Medical Officer Sri A.K. Verma at 11.45 p.m. He found the following injuries on
the body of the injured Haroon.

(i) Four lacerated wound of .5 cm x .5 cm x skin deep each in the area of 4 cm x 3
cm on the left side of abdomen 1 cm. Lateral and below from umblicus. Bleeding present.

(ii) Lacerated wound of .5 cm x 5 cm x skin deep on right side of abdomen 7 cm
below and Lateral from umblicus. Bleeding present.

(iii) Lacerated wound of .5 cm x .5 cm x skin deep on anterior iliac spine of left iliac
fossa. Bleeding present.
1530 INDIAN LAW REPORTS ALLAHABAD SERIES

Injuries are caused by fire arm weapon and are kept under observation till X-ray
from District Hospital, Basti. Duration about fresh.

7. While the accused was being carried to the District Hospital for X-ray and further
treatment, he succumbed to his injuries on the way to the hospital. Sri Vijay Shanker Pandey, an
accompanying Police Constable, informed the Police Station Kotwali Basti regarding the death of
the deceased by his letter dated 18.11.1981. An entry in the General Diary was made in this regard
by the Police Kotwali, vide Ext. Ka 7. Sri Radhey Shyam Dwivedi, a Sub Inspector posted at P.S.
Kotwali conducted the inquest on the dead body of the deceased and prepared Panchayatnama
memo of the dead body at the Police Station Kotwali where the dead body was carried by the
Police Constable Vijay Shanker after the death of the deceased. He sent the dead body in a sealed
condition to the mortuary for post-mortem. The letter for post mortem, the Challan Nash, the
photonash and the Police Form No. 33, prepared by Sri Radhey Shyman Dwivedi have been
exhibited as Exts. Ka 8, Ka 9, Ka 10 and Ka 11 respectively on the record.

8. After the death of the injured, the case registered against the accused persons under
section 307 I.P.C. was converted into section 302 of the Indian Penal Code on 18.11.1981 at 21.15
at Rapat No. 26, vide extract of the G.D. Ext. Ka 6.

9. The Dr. Kuber Nath, a Medical Officer at District Hospital, Basti performed the autopsy
of the dead body on 18.11.1981 at 3 p.m., vide Ext. Ka 12. The doctor found the deceased of an
average built, mouth half opened, eyes closed and rigor mortis present in both upper and lower
limbs. He found the following ante-mortem injuries on the body.

Ante-mortem injuries

(1) Gun shot wound (wound of entry) five in number in an area of 9 cm x 8 cm on
the front and lower part of abdomen, just below umblicus, each measuring 1 cm x 1 cm x
abdominal cavity deep. Margins inverted, blackening and charring present around the wound.
Directions - From right to left and slightly downward.

On Opening

(a) Peritoneum punctured at multiple places.

(b) Large and small intestine punctured at multiple places through and through.

(c) Left side iliac bone broken into multiple places.

Five large metallic pellets recovered from the left side and lateral part of lower
abdominal wall.
5 All. Rafi Ullah & Ors. Vs State Of U.P.

1531

One sealed pocket containing five large metallic pellets handed over to Police
Constable accompanying abdomen cavity - containing fluid and clotted blood 2 oz.

Clothes- One Bandi, One Kameez, One Kacchi, One chadar- Total five, handed over
to the Police Constable accompanying. Cause of death- Death due to shock and hemorrhage as a
result of ante-mortem gun shot wound.

10. Sri Dinesh Prasad Chaturverdi, a Sub Inspector Police posted at Mahuli took up the
investigation on 17.11.1981, the day of the incident. He allegedly recorded the statement of injured
Haroon and witness Jabbar on the same date. The statement of Mohammad Hayat was recorded on
19.11.1981. Constable Vijay Shanker Pandey was also interrogated on 19.11.1981. On the receipt
of the post mortem report on 19.11.1981 Sirajul Haq and Jabbar, witnesses cited in the F.I.R. were
interrogated and a site-plan of the place of occurrence was prepared on their pointing out ( Ext. Ka
14).

11. The I.O. recovered empty cartridges from the place of occurrence on 19.11.1981 (after
two days of the incident) when he visited the spot. He prepared Fard Memo, Ext. Ka 15 after
sealing it in a tin box. Statements of the other witnesses, under section 161 Cr. P. C. and of the
accused were recorded by the I.O., and thereafter, submitted charge-sheet Ext. Ka 16 against all the
accused.

12. The prosecution examined as many as ten witnesses in support of the prosecution case.
Out of these witnesses P.W. 1 Sirajul Haq and P.W. 2 Jabbar were the alleged eye witnesses who
were accompanying the deceased when he was fired from the pistol. P.W. 3 Uma Shanker Dubey
was the Incharge of the Police Out post Gandhi Nagar.

13. P.W. 4 Jayanti Lal was a Head Constable Moharrir posted at P.S. Mahuli on 7.11.1981
when a written F.I.R. Ext. Ka 1, relating to the incident in question was submitted before him who
had prepared chick F.I.R. Ext. Ka 4 under his hand and had made an entry in the general diary at
Rapat No. 29 registering a case under section 307 of the Indian Penal Code against the accused,
vide Ext. Ka 5, an extract of the general diary. He had proved the alteration of the case after the
death of the deceased under section 307 of the Indian Penal Code into one for punishable under
section 302 I.P.C. The entry regarding the alteration was made at Rapat No. 26 in the general diary
at 21.15 PM on 18.11.1981 by Virendra Singh, a Constable Moharrir who was posted with him at
that time.

14. Prahald Mishra, S.O. Kotwali was examined as P.W. 5 on 20.10.1981. He deposed that
he had detained Talukar, Mujib Ullah and Mustaq residents of village Chhitahi on 20.10.1981 on a
statement by Uma Shanker Dube, In-charge Police Outpost, Gandhi Nagar that they were
attempting to get a false alibi prepared by getting them challanned in some criminal case. The S.O.
captured them at the crossing of Gandhi Nagar when they were pretending to fight and making
imputations and counter imputations against each other in order to get themselves arrested.
1532 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Radhey Shyam Dwivedi, a Sub Inspector of Police posted at Police Station Kotwali
was examined as P.W. 6 in the case. He conducted inquest on the dead body of the deceased and
prepared inquest memo, photonash, challan nash. After sealing the dead body, he had sent it for
post mortem to the District Hospital, Basti. The panchnama, the photo nash, the challan nash and
the letter for post mortem, addressed to the doctor were all proved by this witness as discussed
above.

16. Dr. Kuber Nath Pandey was posted as a Medical Officer in District Hospital, Basti on
18.11.1981 who had performed the autopsy of the deceased at 3 p.m. On 18.11.1981 was examined
as P.W. 7. He had proved the post mortem report as Ext. Ka 12. The metallic pellets, which were
taken out from the body of the deceased at the time of the post mortem by him, were marked as
Ext. 1. The clothes removed from the dead body during autopsy by the doctor were marked as Ext.
2, Ext. 3, Ext. 4, Ext. 5 and Ext. 6.

17. In the opinion of the doctor, the deceased died of fire arm injury and the death could
have taken place on 18.11.1981 at 3 a.m. Blackening and charring was present around the wounds.

18. Dr. A.K. Verma, a Medical Officer at Primary Health Centre, Nath Nagar, who
examined the injuries of the victim before he (deceased) died in the way to hospital, was examined
as P.W. 8. He stated that he had examined him on 17.11.1981 at 11.45 p.m. and had noted his
injuries (Ext. Ka 13) under his hand at the time of his examination. In his opinion the injuries could
have been caused on 17.11.1981 at 9.30 p.m. by a fire arm.

19. P.W. 9, Dinesh Prasad Chaturvedi was Sub Inspector of Police at the Police Station
Mahuli. He had been entrusted the task of investigating the defence. He had proved the site-plan
Ext. Ka 14, Fard recovery relating to the taking in possession of the 'Tiklies' from the place of
occurrence, the alleged statement of the injured (before its death) recorded under section 161 Cr. P.
C. as Ext. Ka 17 and the charge sheet Ext. Ka 16.

20. Sri Ram Jiwan, a Home Guard to whom the dead body was handed over for post
mortem along with Sri Vijay Shanker Pandey after its Panchayatnama by the Sub-Inspector
Kotwali Sri Radhey Shyam Dwivedi, was examined as P.W. 10. He stated that he did not permit
anyone to tamper with the dead body so long as it was in his possession before the post mortem by
the doctor to whom it was produced by them in a sealed state.

21. The accused denied their complicity in the crime in their statements under section 313
of the Criminal Procedure Code and stated that they have been falsely implicated on account of
enmity. The accused, also produced three witnesses in defence before the Trial Court.

22. D.W. 1 Safik Ahmad was the Jeep driver who drove the injured from his house with the
help of Rashid and Naviyash to the Police Station Mahuli and thereafter to the P.H.C. Nath Nagar
and District Hospital, Basti. He stated that the injured was in a very precarious condition and was
not in a position to speak at the time when he drove him in his jeep to the police station.
5 All. Rafi Ullah & Ors. Vs State Of U.P.

1533
23. D.W. 2 Miraz Ahmed was examined by the defence to prove the relationship of P.W. 1
Sirajul Haq with the deceased, Mohammed Haroon. He was married to Rait Ullah, the real sister of
the deceased Mohammad Haroon.

24. D.W. 3 Menhi Hasan was also examined to prove the relationship of Jabbar with
Anwar. He stated that the mother of Jabbar belonged to Chhitahi and not to village Bhagwatipur
where the deponent resided.

25. The Trial court after hearing the learned counsel for the parties and going through the
record found that the prosecution has fully succeeded in bringing home the charges against the
appellants beyond reasonable doubt and vide impugned judgment and order dated 02.08.1984
convicted and sentenced the accused appellants, hence the present appeal.

26. Shri G.S. Chaturvedi, learned counsel for the appellants has stated that the entire story
has been cooked up by the prosecution and the appellants have been falsely implicated in the case.
He further submitted that the post mortem report clearly suggests that the deceased after receiving
such serious and grievous injuries damaging his internal organs would not have been in a position
to speak anything. False story was set up by the prosecution after due deliberation and consultation
that the injured himself had dictated the first information report immediately after the incident. He
further submitted that both the eye witnesses i.e. P.W. 1- Sirujul Haq and P.W. 2- Jabbar are the
chance witnesses and they have been set up by the prosecution at the scene of occurrence to give
credibility to the prosecution story. He further submitted that the evidence on record clearly shows
that there was bitter enmity between the accused side and the complainant side, as such, the alleged
eye witness namely Sirujul Haq and Jabbar accompanying the deceased would not have been
spared by the assailants had they been present on the spot along with the deceased Mohd. Haroon.
He further submitted that D.W. 1- Safiq Ahmad, who was the driver of the alleged Jeep by which
the deceased was taken to the Hospital, had clearly stated in his testimony that the deceased after
receiving such a grievous and serious multiple external injuries and injuries to his internal organs
would not have been in a position to speak anything. It was further submitted that the prosecution
witnesses were interested persons, as such it is very risky to rely on their evidence for holding the
accused persons guilty. He further submitted that the scribe of the first information report had not
been produced, as such, a presumption should have been drawn against the prosecution case. He
further submitted that the General Diary (G.D) prepared on the fateful night with regard to the
commission of the crime clearly shows that neither P.W. 1 nor any witness of fact or a scribe of the
FIR was present at the police station. He further submitted that the time of death of the deceased is
also disputed. The timing of death mentioned in the Form 13 is also on hearsay basis. He further
submitted that the incident had allegedly taken place in the night of 17.11.1981, as such, the
statement of the witnesses should have been recorded either on 17.11.1981 or at the most on the
next date i.e. 18.11.1981 but the statement of eye witnesses were recorded belatedly after two days
i.e. on 19.11.1981, as such, it cast cloud of deep suspicion on the prosecution story. He further
submitted that neither the scribe of the FIR nor the constable who allegedly took the deceased to
the Primary Health Centre and later on to the Hospital and thereafter to the Police Station after his
death, were produced by the prosecution to prove the time of death and signature of the deceased
1534 INDIAN LAW REPORTS ALLAHABAD SERIES
on the alleged FIR which was allegedly made at the bottom of the FIR, much below the name of
the author (deceased's name) of FIR as such there was some space between the last writing and his
alleged signature. This factor also casts suspicion on the veracity of the prosecution story that FIR
was lodged by the deceased himself.

27. Per contra, Shri Rajeev Gupta, learned AGA submitted that there was a dagger drawn
enmity between the accused side and the complainant side and a number of litigation were going on
between them, as such, there was a strong motive for the accused appellants to commit the alleged
crime. He further submitted that the first information report was lodged with utmost promptness
without any chance of deliberation and consultations and the FIR was scribed at the dictation of the
deceased who has stated about the cause and circumstances behind the occurrence which led to the
incident. Hence, the FIR was admissible as dying declaration under Section 32 of the Evidence Act.
In support of his contention, he relied upon the deposition of the concerned Doctor, who performed
the autopsy of the dead body, who has stated in his cross examination that the deceased could have
spoken for two or three hours before his death. He further relied upon the statement of the
Investigation Officer, who appeared as P.W. 9 and has stated that he had recorded the statement of
the deceased when he reached the Police Station Mahuli and submitted his FIR. He further
submitted that the prosecution has successfully proved the guilt of the accused appellants and the
defence has miserably failed to create any substantial dent in the prosecution story.

28. Heard Shri G.S. Chaturvedi, learned Senior Advocate assisted by Shri Samit Gopal and
Shri S.U. Khan, learned counsel for the appellants and Shri Rajeev Gupta, learned AGA appearing
on behalf of the State.

29. Perusal of the first information report as well as the testimonies of the P.W.1 Sirajul
Haq and P.W. 2- Jabbar indicates that the accused persons were having bitter enmity with the
deceased Haroon as well as P.W. 1 and P.W. 2 and number of criminal cases including the civil
case were going on between the parties. This fact has not been denied by the learned AGA. The
detailed facts of the case have been stated in the earlier part of the judgment, we need not repeat
them at length.

30. The first and foremost submission of the learned counsel for the appellants is that since
the deceased had suffered serious and grievous injuries, damaging his internal organs, he would not
have been in a position to speak anything let alone dictating the long detailed report to the alleged
scribe (Jabbad Khan) of the FIR immediately after the alleged incident. In order to substantiate his
argument learned counsel for the appellants has referred to the ante mortem injuries of the deceased
as contained in the post mortem report. For ready reference the injuries are extracted herein below:-

Ante-mortem injuries

(1) Gun shot wound (wound of entry) five in number in an area of 9 cm x 8 cm on
the front and lower part of abdomen, just below umblicus, each measuring 1 cm x 1 cm x
5 All. Rafi Ullah & Ors. Vs State Of U.P.

1535
abdominal cavity deep. Margins inverted, blackening and charring present around the wound.
Directions - From right to left and slightly downward.

On Opening

(a) Peritoneum punctured at multiple places.

(b) Large and small intestine punctured at multiple places through and through.

(c) Left side iliac bone broken into multiple places.

Five large metallic pellets recovered from the left side and lateral part of lower
abdominal wall.

31. At this stage, it would be also useful to quote the relevant portion of the statement of
the Doctor, who conducted the post mortem of the deceased, which reads as under:-

"मृत्यु का समय जो मैंिे डलिा है उसमे ३-४ घंर्े का अंतर हो सकता है, १ बजे राडत्र से लेकर करीब साढ़े र्ार या
पांर् बजे सुबह के बीर् मृत्यु संभाडवत है, स्टैण्डिग वेपि से झुलसि करीब १ फुर् के अंदर आ सकती है, weapon के फ्लेम्स? बारे में
डवडशर् ज्ञाि िहीं है, अंतडड़यों में पेर् के साथ बड़ी बड़ी रक्त वहिीय र्लती है, उसमे छेद हो गया था, डकतिी र्ोर् लगिे पर कोई
आदमी बोल पाएगा इसकी िाप िहीं है, इस केस मैं २/३ घंर्े तक मृतक बोल सकता था कुछ ि कुछ, उस समय की कंिीशि देििे
वाला ही बता सकता है डक डकतिा बोल सकता था, िामगल (sic) िहीं रहेगा।"

32. Learned counsel for the appellant in order to further fortify his argument has referred to
the testimony of the D.W. 1- Safiq, who admittedly was a driver of the Jeep and had taken the
deceased in his Jeep to the Police Station as well as thereafter to the Hospital at Basti. In the light
of the aforesaid facts stated herein above, this Court has to examine whether the deceased was in a
position to dictate the FIR to the alleged scribe.

33. Perusal of the ante mortem injuries as mentioned in the post mortem report clearly goes
to show that the deceased had sustained gun shot wound five in number in an area of 9 cms X 8
cms on the front and lower part of abdomen just below unblicus, each measuring 1 cm X 1 cm X
abdominal cavity deep. Blackening and charring was present around the wound. Ante mortem
injuries of the deceased further reveals that peritoneum was punctured at multiple places. Large and
small intestine punctured at multiple places through and through. Left side iliac bone was broken
into multiple places. Five large metallic pellets recovered from the left side and lateral part of lower
abdominal wall.

34. The Doctor, who conducted the post mortem of the deceased in his testimony has
deposed (as extracted herein above) that in the internal organ of the abdomen number of blood
veins were perforated and further stated that after the incident the injured could have spoken a little
bit for 2-3 hours. The FIR contains graphic details of the entire occurrence and care has been taken
not to omit even the minutes detail. Perusal of the FIR shows that it was a long detailed FIR stating
1536 INDIAN LAW REPORTS ALLAHABAD SERIES
the names and addresses of the accused persons as well as about the previous enmity between the
rival parties including the details of the criminal cases filed against each other. He thereafter gave
details and circumstances of the incident, and the manner of assault as well as the place and the
exact time of the incident. He did not also forget to mention that electric bulb was burning near the
"Choti Masjid". In view of the aforesaid, we are of the opinion that after receiving so grave and
serious injuries in his internal organ fired at him from a point blank range, the deceased would not
have been in a position to speak let alone dictating the long detailed FIR.

35. We are also fortified in our view by the fact that D.W. 1 Safiq, who allegedly was a
driver of the Jeep, categorically sated in his deposition that the deceased was not at all in a position
to speak anything after the incident and this statement of the D.W.1, Jeep Driver, was not
challenged by the prosecution during his cross examination.

36. It is also very pertinent to note that one most material witness i.e. Jabbad Khan scribe
was not produced by the prosecution and no reason whatsoever has been given by the prosecution
for withholding this material witness from the Court. Non examination of the witnesses, scribe and
the police personnel (who accompanied the deceased to the hospital and after his death to the police
station) without any explanation by the prosecution give rise to an adverse inference under Section
114(g) of the Evidence Act against the prosecution that had they been examined, their evidence
would have been unfavorable to the prosecution.

37. As per the medical report the intestine and the other internal organ of the deceased were
badly damaged due to gun shot injury. The theory that the FIR was scribed on the oral dictation of
the deceased does not inspire confidence and even prima facie satisfaction of the Court is not made
out and the same appears to be a concocted one. Our view also stands substantiated by the
deposition of the Driver D.W. 1- Safiq Ahmad (who had carried the injured from his house to the
police station and thereafter to the Primary Health Centre) that the injured was not in a position to
speak at the time when he carried him on his Jeep to the Police Station.

38. The so called witness P.W. 2 Jabbar admittedly did not accompany the deceased and
according to him immediately after the incident he fled away to his house and remained there till
the next day. Thus, we come to the conclusion that the deceased would not have been in a position
to speak after the incident let alone dictating a long detailed FIR and the story of the prosecution
that the FIR was dictated by the deceased in such a critical condition becomes very doubtful.

39. The next question we have to examine as to whether P.W. 1 Sirajul Haq and P.W. 2
Jabbar were present at the spot at the time of incident. Perusal of the testimonies of the P.W. 1 and
P.W. 2 shows that they were the chance witnesses. According to P.W. 1 on the fateful night he had
gone to the market at Mahuli on cycle to purchase clothes for his wife but hardly after visiting one
shop he went to the shop of the deceased on cycle and stayed there up to 9 PM and in between the
P.W. 2 Jabbar also arrived at the shop of the Haroon (deceased) and proceeded on foot in the night
hours towards his home in the company of P.W. 2 Jabbar and the deceased and leaving behind his
cycle. The aforesaid conduct of the P.W. 1 Sirajul Haq further creates doubt about the veracity of
5 All. Rafi Ullah & Ors. Vs State Of U.P.

1537
the statement of the P.w. 1 that he accompanied the deceased at the time of occurrence. It appears
that the aforesaid story has been concocted by the prosecution to justify his presence on the spot
and create an eye witness of the incident. It does not appeal to us that P.w. 1 Sirajul Haq would
leave his cycle at somebody's place and walk back with the deceased and P.W. 2 to his house in the
night hours especially when they had apprehension of danger to their life.

40. It is also very pertinent to note that admittedly P.W. 1 and P.W. 2 were also having
bitter enmity with the accused, however no justification has been given by the prosecution as to
why P.W.1 and P.W. 2 were spared by the accused persons who were four in number. This
important aspect of the case further deepens the suspicion with regard to the credibility of the
prosecution story with regard to the presence of the eye witness on the spot.

41. It may be further noticed that the incident had taken place in the night of 17.11.1981
and therefore the statement of the witnesses in normal course should have been recorded either on
17.11.1981 or on the next date i.e. 18.11.1981 but the statement of the alleged eye witnesses was
recorded on 19.11.1981. In this regard no explanation has been given by the Investigating Officer
as to why such inordinate delay was made by him in recording the statement of the witnesses. The
aforesaid fact also creates a deep dent in the prosecution story.

42. It is also relevant to note the testimony of P.W. 4- Jayanti Lal, the Head Constable
posted at P.S. Mahuli, who prepared the chik report and recorded in the GD. Before examining and
analyzing his evidence it would be useful to reproduce the extract of his testimony, which reads as
follows:-

"तहरीर ररपोर्ग मेरे सामिे िहीं डलिी गई थी जो थािे पर दी गई थी।

डजस जीप पर हारुि आया था। उसके साथ आिे वालों का िाम मैंिे डलिा था उिसे पूाँछ कर डलिा था।

र्ालक सफीक अहमद व साथ में रशीद व िडबयास थे । और कोई िहीं था ।

मुक़दमे डलििे के बाद जीप भेज डदया था । कम से कम आिा घंर्ा लगा था।

हारुि के डर्ट्ठी मजरूबी बािी थी । हो सकता है, िॉक्टर रि डलए हो ।

डर्ट्ठी मजरूबी मैंिे बिाया था डजसका उल्लेि (G.D.) में है ।"

43. The aforesaid testimony of P.W. 4- Jayanti Lal, who had prepared the G.D clearly
shows that the alleged FIR, which was allegedly submitted in the Police Station, was not written in
his presence. He further deposed that the names of the persons accompanying Haroon on Jeep was
noted by him who on asking disclosed their names. He further stated that apart from D.W. 1- Safiq,
the driver of the Jeep, Rashid and Nabiyas, there was no one else in the Jeep at the time of lodging
FIR and he took around half an hour in registering the case. It is also notable that P.W. 1 in his
statement has very categorically stated that the deceased did not alight from the Jeep and they
1538 INDIAN LAW REPORTS ALLAHABAD SERIES
called the Head Moharrir at the Jeep and the copy of FIR, which was allegedly dictated orally
earlier to the scribe Jabbad, was handed over to him. For ready reference the extract of the
testimony of P.W. 1 in this regard is quoted below:-

"यह कहिा गलत है की िडबयास का घर हयात मोहम्मद की घर से एक फलाांग की दूरी पर है। जब मैं िडबयास के
यहााँ पहंर्ा तब वे जग रहे थे, 5 डमिर् के बाद मैं िडबयास के यहााँ से लौर् आया। िडबयास हारुि के पास करीब २० डमिर् बाद आये।
इस बीर् हारुि वही पर पड़े रहे, और उठकर बैठे थे। जब िडबयास आये, तब उन्हें वहां से उठाकर हम लोग र्क रोि पर ले जाकर
जीप पर बैठाए, मैं भी साथ साथ पकड़ कर जीप तक ले गया था, मेरे हाथ या कपिे में उिके पकड़िे से कोई िूि िहीं लगा। थािे पर
जीप से आकर में जीप से उतारा था, मेरा िाम डकसी डसपाही थािेदार या दीवाि िे जीप से उतारिे पर िहीं पूंछा, जीप में मेरे अलावा
रशीद, इश्हाक, जब्बार और िडबयास थे, इि लोगो का िाम भी थािे पर डकसी िे िहीं पूंछा। थािे पर हारुि जीप से िहीं उतारे, दीवाि
जी को बुलाकर डलखित ररपोर्ग जो जब्बार से डलिवाया था डदए, थोड़ी देर के बाद दरोगा जी िे एक पुडलस डदया, हम लोर् अस्पताल
गए। २०-२५ डमिर् जीप वहां रुकी थी, मैं यह िहीं बता सकता डक जीप २०-२५ डमिर् तक वहां क्ों रुकी रही, मैं िुद परेशाि था, मैं
दरोगा जी से कैसे पूाँछ सकता था, मैंिे दरोगा जी से कोई बातर्ीत िहीं डकया, जीप के अंदर के डकसी आदमी को दरोगा जी से बातर्ीत
करते िहीं देिा ।"

44. The aforesaid glaring facts as borne out from the statements of P.W. 1, P.W. 4 and
D.W. 1 clearly demolishes the case of the prosecution that the FIR was dictated by the deceased
himself and P.W. 1 was present at the Police Station along with the deceased at the time of lodging
of the FIR and further that the statements of the deceased as well as P.W. 1 were recorded by the
Investigating Officer in the Police Station after the deceased alighted from the Jeep. It is worth
noticing that the statement of the Investigating Officer is also contradictory and inconsistent with
the statements of of the witnesses P.W.1, P.W. 4 as well as D.W. 1 and this material contradiction
in testimonies of the witnesses further creates serious dent in the prosecution story that the P.W. 1
was either present on the spot or had accompanied the deceased to the Police Station.

45. It is also notable that according to P.W. 1 he did not go to Basti to get the deceased
admitted in the Hospital but he left the Jeep mid way and returned with his son to his village in
order to console the family members of the deceased. The conduct of the P.W. 1 in this regard
appears to be very unnatural as at that time the deceased was alive and he could not have left him in
a precarious condition and return to the village just to console the family members of the deceased
and therefore there was no justifiable reason for not having accompanied the deceased Haroon to
the hospital.

46. It is also pertinent to mention that in Form No. 13, it has been mentioned that the
deceased died at 3 O'clock in the night on the way before reaching the hospital. The evidence
available on the record shows that at 11.45 AM he was examined at the Primary Health Centre and
thereafter was referred to the District Hospital, Basti, which was hardly 30 Kms from the spot and
there was no reason as to why they took more three hours to reach the hospital.