IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1702 1706 OF 2014
STATE OF UTTAR PRADESH … APPELLANT
WASIF HAIDER ETC. … RESPONDENTS
J U D G M E N T
N.V. RAMANA, J.
1. These appeals by special leave arise out of a common impugned visualisation antiquated 29.05.2009, upheld by a High Court of Allahabad in Criminal Appeal Nos. 1419, 1430, 1518 and 898 of 2004, whereby a High Court has topsy-turvy a visualisation of self-assurance upheld by a Additional Sessions Judge, Kanpur in Sessions Trial No. 164/2002 antiquated 22.01.2004 underneath Sections 302 review with 149, 307 review with 149, 148 IPC and Section 7 of Criminal Law Amendment Act, 1932. Whereas a High Court in Government Appeal no. 5270 of 2005 elite by a appellantState, has discharged a interest opposite a exculpation of indicted no.1 respondent (Wasif Haider) for offences underneath Sections 25 and 27 of Arms Act, 1959 and Sections 4 and 15 of Explosive Substances Act, 1908, while affirming a visualisation antiquated 3.8.2005 upheld by a Additional Sessions judge, Kanpur acquitting a indicted no.1respondent (Wasif Haider) in Sessions Trial No. 143 and 144 of 2002.
2. Brief contribution as unfolded from a charge story are that, while a complainant (P.W.2 S.O., P.S. Moolganj, Kanpur) along with other military crew was on avocation during a march crossing, he came to know that a throng of around 200300 rioters were causing uproar and drop during a Chaubey Gola Temple. Immediately, a complainant accompanied by a military force and A.D.M (Finance and Revenue)Sri Chandra Prakash Pathak (hereinafter referred as “the deceased”), and half a territory of Provincial Armed Constabulary [“PAC”] proceeded towards stage of occurrence. Admittedly, when a defunct along with military crew were during a stretch of around 100150 paces from Sunehri Mosque on a Nai Sarak, rioters started banishment on them resultantly injuring a defunct and his orderly, Ram Chandra. In sequence to control a law and sequence situation, a military were compelled to glow in their defense. When a military celebration reached a mosque, a rioters had already fled away. Subsequently, when a military celebration reached Chaubey Gola Temple where rioters had already looted some houses and had also committed arson. In a meanwhile, a military also perceived a information that a defunct had succumbed to a gunshot injuries in a hospital. Finally, a F.I.R., Case Crime No. 7 of 2001 came to be purebred during 8.05P.M. on 16.03.2001 opposite 200300 different rioters.
3. On a same night, after conducting a inquisition proceedings, a upheld physique was sent for post mortem hearing and a review commenced. The review officer after recording a matter of witnesses, legalised a place of occurrence and prepared Site Plan ext. Ka6. A bullet that was recovered from a remains of defunct was sent for Forensic examination.
4. On 02.08.2001 indicted no. 2respondent (Mumtaz alias Maulana) was brought to Kanpur by a Delhi police. On 04.08.2001, indicted no. 1respondent (Wasif Haider) was arrested. Accused no. 3respondent (Hazi Atiq) and indicted no. 4respondent (Safat Rasool) were arrested on 17.09.2001 and 18.09.2001 respectively and afterward a Test Identification Parade (hereinafter referred to as “TIP”) was hold on 27.09.2001 during District Jail, Kanpur. Subsequent to a execution of investigation, a chargesheet was submitted.
5. The indicted pleaded not guilty and claimed to be tried. It is impending to note that in a statements finished by a indicted underneath Section 313 of Cr.P.C. They claimed that there existed an lavish check in conducting a TIP, as this time duration was used by a charge witnesses to see them during their homes or places of work to symbol them delicately for a successive identification. They stressed on a fact that they were not kept secluded in a deceive (baparda). The accusedrespondents have serve staid that, before to a TIP, a military had taken their photographs and had shown it to a other witnesses. This creates a substantial doubt about a genuineness of a TIP. Further, a accusedrespondents have purported that, they were wrongfully roped in a box when a military unsuccessful to snippet a genuine culprits. The indicted respondents have also put onward that, nonetheless they had transparent antecedents, yet they were concerned in a crime falsely.
6. By sequence antiquated 22.01.2004, a hearing court, while relying on a charge version, deserted a counterclaim story and convicted a indicted persons as under,
ACCUSED CHARGES CONVICTION
. Wasif Haider
. Mumtaz aliasMaulana [A2]
. Hazi Atiq [A3]
. Safat Rasool
S. 302/ 149 IPC Life Imprisonment
S. 307/ 149 IPC RI for 5 years
S. 148 RI for 1 year
S. 7 Criminal Law
RI for 3 months
All of them were clear for a charges underneath Sections 395, 397, 436 and 153A IPC. Wasif Haider [A1] Acquitted for charges underneath Sections 25 and 27 of Arms Act, 1959 and Sections 4 and 15 of Explosive Substances Act, 1908.
7. Aggrieved by a abovementioned sequence of self-assurance and sentence, a accusedrespondents appealed before a High Court. The High Court on research of justification found that, not usually there exists several contradictions in a testimonies of a charge witnesses yet there exists miss of certification of a same. While flitting a sequence of exculpation a High Court celebrated that a box of charge was ridden with flaws in investigation, many importantly a marker of a indicted was rarely controversial and a TIP was hold to be “too good to be believed”. Accordingly, a High Court by a impugned visualisation clear a accusedrespondents and set aside a aforesaid sequence of self-assurance as a charge unsuccessful to infer a box over reasonable doubt.
8. Aggrieved by a impugned sequence upheld by a High Court acquitting all a accused, a State of Uttar Pradesh has elite these appeals.
9. The schooled Counsel, Mr. Dinesh Kumar Goswami, on interest of a appellantState while ancillary a prosecution’s case, submitted that pursuant to a detain of a accusedrespondents their marker was scrupulously finished after holding due precautions and following a procedure. Moreover, a charge witnesses had clearly identified a indicted persons in a marker march and in a justice as well. On a emanate of check caused in conducting a TIP, a warn also vehemently submitted that, there was no lavish check in conducting a TIP as canvassed by a counsels for a accused6 respondents. The High Court has committed a grave blunder by not fixation faith on a TIP as there is zero on record to corrupt a formula of a same. Lastly, a schooled warn submitted that given there existed sufficient justification to infer a blame of a accusedrespondents, a Sessions Judge had rightly upheld a sequence of self-assurance opposite them and therefore prayed for environment aside a impugned order.
10. On a other hand, a schooled Counsel, Ms. Kamini Jaiswal, appearing on interest of a accusedrespondents no. 1, 3 and 4, while ancillary a sequence of exculpation rendered by a High Court, submitted that, a whole charge story hinges on a marker of a accusedrespondents, a genuineness of that in itself is questionable. It was serve argued that, when admittedly a witnesses were during a good stretch from a place of occurrence, it was not trustworthy to brand privately a accusedrespondents, that too in a deficiency of any sold hulia or specifying outlines from among a throng of 200300 rioters. Further, there was lavish check in conducting a TIP that was deadly for a prosecution.
11. Further, a schooled Counsel, Mr. Siddhartha Dave, on interest of accusedrespondent no. 2 submitted that accused7 respondent no. 2 has been dragged into a matter usually on comment of confessional matter of a coaccused that has not been corroborated, and no other damning justification is accessible on record.
12. Heard schooled counsels for a parties. At a outset, we would like to state that in an interest opposite acquittal, a appellate justice would meddle usually where there exists perversity of fact and law [See Bannareddy and Ors. v. State of Karnataka and Ors., (2018) 5 SCC 790]. Further, a hypothesis of ignorance is serve reinforced opposite a acquittedaccused by carrying a visualisation in his preference [See Rabindra Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490 in para. 94].
13. We grant with a aforesaid sequence of exculpation rendered by a High Court, as a benefaction box is ridden with mixed inquisitive laches and flaws that goes to a base of a matter. We shall be addressing a same in seriatim.
14. Firstly, it is good to note that out of a 7 eye witnesses who participated in a TIP, 5 of them identified a indicted yet committing any mistake. As celebrated by a indicted no.3respondent, Hazi Atiq has large extending teeth, a indicted no.4respondent Safat Rasool was pang from polio hence had permanent earthy disability, yet surprisingly this fact was never mentioned possibly in a F.I.R. or in a declare statements. The specific marker of a 4 accusedrespondents, from a organisation of 200300 rioters, with 100% perfection; yet a discuss of any specifying outlines seems rarely extraordinary deliberation a stretch of a witnesses from a place of occurrence. Moreover, there existed an lavish check of 55 days in conducting a TIP of a indicted no.1 and 2. Although, a impasse of indicted no.3 and 4 was brought to light on 03.08.2001 itself, a charge did not take any bid to detain or survey them for 6 weeks. But no reasonable reason was supposing for a aforesaid lavish delay.
15. Furthermore, no documentary justification has been supposing to reason that a temperament of a indicted was kept concealed. On a contrary, D.W.3, Mohd. Shamim Siddique, Record Keeper in a Police Office staid that a ubiquitous diary does not discuss that a indicted no.2respondent Mumtaz alias Maulana was kept baparda. The counterclaim also pleaded that, a aforesaid lavish check was used by a charge witnesses to see a accusedrespondents during their homes or places of work to symbol them delicately for a successive identification. Additionally, indicted no.1respondent Wasif Haider, in his matter underneath Section 313 Cr.P.C. went to a border of observant that, before to a TIP he was shown to a witnesses and his photographs and videotapes were prepared. In Mulla v. State of U.P., (2010) 3 SCC 508 para 55, this justice laid down that a TIP has to be conducted timely, if not, afterwards a check has to be explained and such check should not means bearing of a accused. However, in a box during hand, not usually there was a check in conducting a TIP, yet no reason for a same has been stirring from a prosecution. This creates a substantial doubt about a genuineness of a TIP.
16. Secondly, it is startling that, nonetheless a postmortem news describes that there were usually dual wounds in a physique of a deceased, one being a entrance and a other being a exit wound, allegedly a bullet was still recovered from a remains of a deceased. The F.S.L. news shows that this bullet was charred and blistered. This liberation of bullet from a remains of a defunct is unsuited with a postmortem news that allegedly states an exit wound, implying that a bullet had already left a body. The aforesaid fact raises a guess on both a PostMortem news and a F.S.L. news as they are exclusive with any other.
17. Thirdly, a charge has unsuccessful to settle that a bullet allegedly recovered from a remains of a defunct 20 days after was indeed discharged from a pistol recovered from accusedrespondent Wasif Haider. Even, a liberation of pistol is doubtful. While, a charge box reveals that one .380 gimlet pistol colt was recovered from a possession of a accusedrespondent Wasif Haider, on a contrary, a justification of P.W.2S.O., Rajendra Dhar Dwivedi reveals that one .320 gimlet pistol colt was recovered pursuant to his arrest. Additional counterbalance can be seen in a permit sequence wherein dual pistols of .380 gimlet were shown to be recovered from a possession of a accusedrespondent Wasif Haider.
18. Fourthly, as regards to a place of incident, a charge unsuccessful to discern a same with precision. While a F.I.R. reveals a place of occurrence to be in front of Sunehri Masjid, P.W.2, a complainant after softened over his progressing matter and staid that, a occurrence indeed took place in Noorani Masjid. On a contrary, a dual site skeleton uncover a place of occurrence to be Noorani Masjid.
19. Fifthly, a charge unsuccessful to inspect Ram Chandra, a nurse of a defunct who was also harmed in a same occurrence and had suffered a gunshot injury. The charge was also incompetent to infer a damage news of a above victim. Such a disaster is deadly to a charge box as his participation in a place of occurrence is over doubt. It has been placed on record that, notwithstanding RamChandra attending a record of a hearing frequently he was not examined by a prosecution.
20. Sixthly, a charge has also unsuccessful to cite any eccentric witness. Even yet it is wrong to mistrust a justification adduced from a central witnesses, yet anticipation final that their justification needs to tested on a tabernacle of despotic scrutiny. Considering a aforesaid contribution and circumstances, a evidences adduced by a charge witnesses do not enthuse a certainty of this Court.
21. Lastly, it is startling that nonetheless a charges have been framed underneath Section 307 of IPC, a charge has positively unsuccessful to justify a charges by means of evidence. It is rather hapless that a courts next have unsuccessful to take note of a same. The hearing justice has erred in convicting a respondents for a aforesaid offence, yet any justification to infer a same.
22. In a benefaction appeals before us, a charge has unsuccessful to couple a sequence of resources so as to diffuse a cloud of doubt about a blame of a accusedrespondents. It is a good staid element that a suspicion, however grave it might be can't take place of proof, i.e., there is a prolonged stretch between “may be” and “must be”, that contingency be traversed by a charge to infer a box over 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 hold that,
“44. The prosecution, it is axiomatic,
must settle a box opposite the
accused by heading justification that is
accepted by a standards that are
known to rapist jurisprudence
regardless either a crime is
committed in a march of communal
disturbances or otherwise. In short, there
can usually be one set of manners and standards
when it comes to trials and visualisation in
criminal cases unless a government provides for
anything specifically germane to a particular
case or category of cases…”
24. In a benefaction case, a accumulative outcome of a aforesaid inquisitive lapses has fortified a hypothesis of ignorance in preference of a accusedrespondents. In such cases, a advantage of doubt outset out of a inadequate review accrues in preference of a accused.
25. Although we acknowledge a sobriety of a corruption purported opposite a accusedrespondents and a hapless fact of a comparison central losing his life in avail of his avocation we can't disremember a fact that a lapses in a review have infirm a charge to infer a blame of a accused. The indicted can't be approaching to relinquish his ignorance during a hands of an inefficacious prosecution, that is ridden with inquisitive deficiencies. The advantage of doubt outset out of such emasculate investigation, contingency be bestowed on a accused.
26. In a opinion, there exists no perversity in a visualisation of a High Court. Further, in a deficiency of constrained reasons, this Court is not penetrating to perform these appeals severe a sequence of acquittal.
27. We are also not prone to meddle with a point sequence of exculpation for offences committed underneath a Arms Act and Explosive Substances Act currently before us in Criminal Appeal no. 1706 of 2014.
28. The appeals are accordingly dismissed. Pending applications, if any, shall also mount likely of.
(N. V. Ramana)
(Mohan M. Shantanagoudar)
DECEMBER 10, 2018.