The Allahabad High Court has acquitted a convict of the incident that happened 41 years ago in Handia police station of Prayagraj.
The Division Bench of Justice Manoj Misra and Justice Sameer Jain passed this order while hearing a Criminal Appeal filed by Gulab And Another.
The appeal has been filed by two appellants, Gulab and Nanku @ Nanhu. The appeal of Nanku @ Nanhu has abated, on account of his death, order dated December 8, 2021.
Appellant Gulab and three others were convicted by the trial court under Section 302 IPC read with Section 34 IPC and awarded life imprisonment order dated September 10, 1985.
The other convicted accused, Ram Awadh and Ram Kripal, filed a separate appeal that has already been abated on account of their death, order dated September 10, 2018.
The prosecution case was instituted on an FIR which was lodged on September 4, 1980, at about 11:15 pm by Nabi Baksh against the appellant Gulab and three others, under Section 302 IPC, at P.S Handia, District Allahabad.
As per FIR, Nabi Baksh was the munshi of Sheikh Mohammad Naqi (deceased) who was an ex-landlord (Zamindar) having agricultural holdings at Birapur. In respect of illegal occupation of his holdings by Mangal Yadav and his pattidars (associates), Naqi had filed a civil suit. Deceased had won a case up to the stage of the High Court but another case was pending. As a result, Mangal Yadav and his collaterals used to threaten him.
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It is alleged that a day before the incident, when the informant (Nabi Baksh) had gone to Allahabad in ‘pairvi’ of a case, Mangal Yadav told Nabi Baksh that it be conveyed to Naqi that he will have to face consequences for cases filed against him.
It is alleged that on 04.09.1980 due to some household work, informant could not go to Birapur, therefore, he sent his son Nurul Islam to Birapur with Naqi, who used to go to Birapur on a daily basis.
It is alleged that while the Naqi was returning back with Nurul Islam, near village Derha, around sunset, Nurul Islam stopped to urinate whereas Naqi moved ahead; soon thereafter, Nurul Islam heard shrieks and saw that accused Ram Awadh, Gulab, Kripal and Nanhu, who were having enmity with Naqi, forcibly lifted him and took him to a field where there was standing jowar crop. Fearing he would be attacked as well, Nurul Islam ran away and, at about 8 pm, he gave information to the informant about the incident, and when the informant and others arrived at the spot, they found Naqi lying dead.
After lodging the FIR, the investigation started and police arrived at the spot. The Investigating Officer lifted blood stained- and plain soil from the spot and prepared a recovery memo and also recovered one spectacle, an umbrella and a stick (belonging to the deceased) from near the spot and prepared a seizure memo.
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Thereafter, an inquest report was prepared and the body was sent for post mortem. On 5.9.1980, at about 3 pm, a post-mortem was conducted of which a post-mortem report was prepared and, after investigation, a charge sheet was submitted against appellant Gulab and other accused persons under Section 302 IPC.
After taking cognizance on the charge-sheet, the case was committed to the court of session and, on 16.7.1981, charges were framed against the Gulab and other accused persons under Section 302 IPC read with Section 34 IPC. The accused including Gulab denied the charge and claimed trial.
Veeresh Mishra, the counsel for Gulab, submitted that prosecution failed to prove its case beyond reasonable doubt and on the basis of sole eye-witness testimony, conviction of the appellant is not justified. He submitted that the FIR of the case was lodged at about 11:15 pm i.e after more than 5 hours and prosecution failed to explain the delay in lodging the first information report.
He further contended that the FIR was lodged by Nabi Baksh, who is not an eye-witness, whereas, his son Nurul Islam who is stated to be an eye-witness did not lodge the report, despite opportunity, this itself creates doubt as to whether Nurul Islam was an eye-witness.
Mishra further submitted that there are material omissions and contradictions between the version of the FIR and in the statement of prosecution witnesses.
He contended that medical evidence also does not support the ocular evidence and from the perusal of the entire evidence on record, it appears, the alleged eye-witness Nurul Islam did not witness the incident and that, after due deliberations, the accused including the surviving appellant Gulab were implicated due to previous enmity with Sheikh Mohammad Naqi.
Mishra also submitted that the trial court failed to properly appreciate the evidence on record and has wrongly convicted the appellant, therefore, the order of conviction is liable to be set aside.
Additional Government Advocate contended that from the testimony of Nurul Islam, it is proved that the appellant Gulab along with other accused persons committed the murder of Sheikh Mohammad Naqi.
He submitted that there is no material contradiction between the FIR and the statement of prosecution witnesses. From the statement of Nurul Islam, it is clear that he witnessed the incident and saw the appellant Gulab having a ‘gandasa’ in his hand.
He also submitted that there is no conflict between the medical evidence and the ocular evidence and the testimony of Nurul Islam stands corroborated by the testimony of Abdul Wahid who saw the surviving appellant (Gulab) at the time of incident with other accused persons when they, with their respective weapons, were coming out from the Millet (Jwar) field. Thus, the conviction of the appellant- Gulab in the case is justified and the appeal is liable to be dismissed.
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The Court noted that,
“In the case, Nabi Baksh is the informant of the case, whereas, Nurul Islam is the eye witness. The eye witness, who witnessed the incident at about 6:00 pm did not lodge the report, and Nabi Baksh, who was informed about the incident at about 8:00 pm did not lodge the FIR till 11:15 pm when the distance between the place of occurrence and the police station is just 2 miles. This delay of about five hours in lodging the FIR from the time of the incident, casts a doubt on the prosecution case, especially when the police station was hardly two miles from the place of incident.
Further, from the testimony of Investigating Officers and Jadunath and the omission of case details in the inquest report a strong possibility arises that the FIR of the case was not lodged on 04.09.1980 at 11.15 PM, as alleged by the prosecution, but later and, therefore, could be ante-timed.
Further, there appears inconsistency between the Inquest Report and the post mortem report in respect of the injuries noticed on the body of the deceased. In the inquest report dated 05.09.1980, the deceased had sustained as many as 15 injuries and that the head of the deceased was compressed. This condition of the body, as noticed in inquest report, finds support in the testimony of Nabi Baksh, Nurul Islam and Ameer Ali, but this fact is denied by the doctor who conducted the post-mortem, by stating in his cross examination that if such injuries existed, he would have noticed the same.”
The Court held,
“Although, ordinarily, where there is inconsistency in respect of the injuries mentioned in the inquest report with those in the post-mortem report then the opinion of the doctor would prevail. But, in the case, the number of injuries mentioned in the inquest report are 15 in number while in the post-mortem report only five injuries were noted by the doctor. There is a huge difference in the number of injuries mentioned in the inquest report and post-mortem report. Importantly, the ocular evidence also shows that the head of the deceased was flattened i.e compressed, which is totally denied by doctor Imam, who conducted the post-mortem. When we notice this inconsistency as also that details of case were not mentioned in the inquest report, while keeping in mind the statement of police witnesses that initially they had no clue that there existed a witness and that a dog squad was called for, it gives us a feeling that the prosecution has not come out with clean hands and that the case has been built on strong suspicion than evidence.”
“Now, we come to the testimony of Abdul Wahid. Although, he is not an eye-witness but he stated that he witnessed the accused persons including the surviving appellant (Gulab) near the spot when they were coming out from the Millet field (Jowar) on 04.09.1980 at or about the time of sunset while Abdul Wahid was going towards Birapur with his friend Adbul Moin (not examined) to visit his niece, who was sick. This witness stated that he did not see Nurul Islam at that time. Nurul Islam also stated that he did not see Abdul Wahid and Abdul Moin at the time of incident near the place of incident. As this witness is a chance witness, his testimony would have to be scrutinized carefully before acceptance.”
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The Court further held that,
“When the court analysed the testimony of Abdul Wahid , who is a chance witness, the court found that his testimony does not inspire confidence. Although he tried to explain his presence at the spot with the explanation that he was going to Birapur to see his niece, namely, Bibbi, who was ill, but prosecution failed to produce Bibbi or any other witness in this regard, who could corroborate whether Abdul Wahid visited Birapur on 04.09.1980 at or about 6 to 6.30 PM. Even Abdul Moin, who accompanied Abdul Wahid to Birapur has not been examined by the prosecution. Otherwise also, the testimony of Abdul Wahid does not inspire confidence because in ordinary course if he would notice men with arms emerging from a field, after they had left, the natural reaction would be to check the spot from where they had emerged.”
“The upshot of the discussion made above, it appears to us that there was grave enmity between Sheikh Mohd Naqi (deceased) and co-accused Ram Awadh and Ram Kripal, therefore, accused including the surviving appellant (Gulab) were implicated. Though, we are conscious of the law that merely on ground of enmity, the testimony of an eye witness cannot be discarded, if there is a ring of truth about it, but, in the case, the entire prosecution case rests solely on the testimony of Nurul Islam who we find not wholly reliable. Therefore, in our considered view, the prosecution has failed to prove its case against the surviving appellant (Gulab) beyond reasonable doubt,” the Court observed while allowing the appeal.
“The judgment and order of conviction as well as sentence recorded by the trial court order dated 10.09.1985 passed by Special Judge / Additional Sessions Judge, Allahabad in Sessions Trial under Sections 302/34 IPC as against the surviving appellant (Gulab) is set aside. The appellant (Gulab) is acquitted of all the charges for which he has been tried. The appellant (Gulab) is reported to be on bail. He need not surrender, subject to compliance of provisions of Section 437-A CrPC to the satisfaction of the trial court concerned at the earliest,” the Court ordered.