The Allahabad High Court has acquitted a petitioner and his brother and set aside the decision of the lower court in in a murder case registered under district Bulandshahr’s Gulawadi police station.
The Division Bench of Justice Manoj Kumar Gupta and Justice Om Prakash Tripathi passed this order while hearing a Criminal Appeal filed by Mohd. Afzal @ Guddu And Another.
The appellants have preferred the criminal appeal aggrieved by the order dated September 4, 2010 passed by the Special Judge (Gangster Act)/ Additional Sessions Judge, Bulandshahr in Special Trial, under Section 302/34 IPC, State vs Mohd Afzal @ Guddu and others, Police Station Gulawadi, District Bulandshahr, convicting and sentencing the appellants to undergo life imprisonment under Section 302/34 of IPC with a fine of Rs 10,000/- each, in default thereof, to undergo three months additional rigorous imprisonment.
Also read: Supreme Court to take up pleas related to Pegasus snooping on Friday
The prosecution case is as follows:
The deceased, Shafaqat Ali, was sleeping in his baithak situated in the Village Chandpur, P.S Gulawadi, District Bulandshahr in the intervening night of 31-1/1-2-2007. At about 3 am, on the basis of hearing the gunshot fire and hue and cry, the neighbours reached the spot and found that the father of the first informant Shafaqat Ali received a gunshot injury, complainant immediately rushed to him and proceeded to the District Hospital for treatment along with his brother Hasmat and his uncle Shahid and Rahat but he has succumbed to death in the way.
On the basis of the written report, the police registered a case as Crime under Section 302 IPC and an entry about registration of the case was made in the General Diary on February 1, 2007. Investigation of the case was taken over by the Sub-Inspector Samay Singh.
During the investigation, the Investigating Officer recorded the statements of the witnesses. After completing all formalities of investigation, he submitted the charge sheet against the appellants in the Court of Special Judge (Gangster Act), Bulandshahr, under Section 302 IPC and cognizance of offence was taken by the Court concerned.
Also read: Supreme Court agrees to hear plea seeking alternative to offline board exams on February 23
Charge under Section 302/34 IPC and section 2/3 of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 was framed by the Special Judge on July 01, 2008.
Charge sheet against Mohd Afzal under Section 25/27 of Arms Act has been submitted before Chief Judicial Magistrate, Bulandshahr, cognizance taken by the Magistrate concerned, committed to the Court of Sessions Judge and thereafter transferred to the Court of Special Judge, (Gangster Act).
Charge under Section 25/27 of Arms Act was framed against the accused Mohd Afzal on July 01, 2008 by Special Judge, (Gangster Act), Bulandshahr. The accused-appellants pleaded not guilty and claimed to be tried.
The Court noted that,
In the statement recorded under Section 313 CrPC, the accused appellants have stated that they have been falsely implicated in the case due to enmity of Pradhani and recovery was false and in defence no evidence has been adduced by the accused.
So far as the FIR is concerned, as per the prosecution case, the incident took place in the intervening night of 31.1/01.02 of 2007. FIR was lodged on February 01, 2007 at 10:00 am Police Station is about 10 km far from the place of the occurrence. Complaint is an Advocate, he tried his best for the treatment of his father but on the way, he died. He along with others returned back to the home and an FIR was lodged after seven hours from the time of the incident against unknown accused. It means that at the time of lodging of the FIR, entire facts were not in the knowledge of the complainant. The complainant has no suspicion against the accused at the time of lodging of the FIR. Thus from the facts and circumstances, it is clear that FIR has been lodged promptly without consultation and the complainant had full opportunity to name the accused at the time of the lodging of the FIR but has not done so, which shows his bona fide.
The Court further noted that the circumstance relied by the trial Court is that accused Afzal is a jhola chhap doctor. His shop is in front of the baithak of Shafaqat Ali. Rahat Ali is the brother of the deceased. His wife was ill and accused Afzal of teasing Sultana, daughter of Rahat Ali. Shafaqat Ali opposed this. There was an altercation between Afzal and deceased Shafaqat Ali, prior four days of the incident. Afzal threatened Shafaqat Ali to kill him. It relates to motive.
Also read: Delhi High Court issues notice to Delhi Police on unmanned barricades in Kalkaji-CR Park area
The Court held that,
It is a case of circumstantial evidence. There is no eye witness of the alleged incident. Later on, prosecution had developed a motive for the incident that Afzal was a jhola chhap doctor and was treating the wife of Rahat Ali. Rahat Ali has a daughter, named Sultana aged about 22 years old and with her he developed a relationship or he began to tease Sultana as stated by Wahid Ali ( the brother of the deceased ) and Munfat Ali but no report regarding teasing Sultana has been filed by her father, Rahat Ali, his wife and his daughter against the appellant accused Afzal. Rahat Ali, his wife and his daughter Sultana are the best witnesses for proving the motive but the prosecution had not examined any of them to prove the motive.
Thus, in the absence of best witnesses, it will be deemed that prosecution had failed to prove the motive of the incident.
It is also alleged that there was hot talk between Safaqat Ali and Afzal prior to 4 days from the incident in which Afzal Ali had threatened Safaqat Ali to kill but no FIR has been lodged on this aspect and even this fact has not come in the knowledge of the complainant at the time of the lodging of the FIR. Although, he was an advocate. It is very common that in the night when Advocate was present in the home, such sort of threatening incident, would normally be communicated to him but the threatening by the accused to father of the complainant is not in the knowledge of the complainant, which also shows that there was no threatening and no teasing by the accused appellants.
The Court said that, in case of circumstantial evidence, the motive plays a very important role. It is also pertinent to mention here that in the statement recorded under Section 161 CrPC, the complainant had also not given such a statement that accused Afzal has an illicit relationship with Sultana and also not stated that Munfat Ali and Parvez had told about this. This fact has not been told by him that the accused has given threatening to kill Safaqat Ali prior four days from the date of incident. This fact was stated in the statement of the Investigating Officer at his cross examination. The factum of the motive has not been stated in the written report.
Also read: AG Venugopal grants consent for criminal contempt proceedings against Ajeet Bharti
The Court further held that,
It is also stated that the complainant generally lives in the city and occasionally lives in the village so he was not aware of the motive. This submission is not tenable because the appellant Afzal is an Advocate and he is much aware about his family and village.
Thus, the evidence on the point of motive by Mukeet Ali (son of the deceased) is an improvement on the basis of evidence of Wahid Ali and Munfat Ali, whereas the best witness of motive has not been produced. Although, they were present and also closely related to the complainant. This fact will be against the prosecution. Thus, the prosecution has failed to prove motive beyond all reasonable doubt against the accused appellants. Thus, the circumstance relied upon by the trial Court is not proved.
No doubt the death of the deceased Shafaqat Ali took place in a most unfortunate manner by firearm head injury, but that itself is not sufficient. The prosecution has to establish beyond reasonable doubt that the person being prosecuted is guilty of the crime, the Court said.
“From the evidence on record, it is apparent that appellants are not named in the FIR but the name of the appellants came to light through the evidence of chance witnesses. The evidence of Mukeet Ali, Wahid Ali and Munfat Ali is not fully reliable for the aforementioned reasons. Their evidence would not lead us to believe that appellants could be only perpetrators of crime. The chain of circumstantial evidence is not complete and do not lead to the conclusion that in all human probability, the murder must have been committed by the appellants only.
Also Read: Supreme Court denounces indefinite delay in hearing pre-arrest bail plea by High Courts
Thus, prosecution has failed to prove its case beyond all reasonable doubts that accused Afzal @ Guddu and Iqbal had committed the murder of Shafaqat Ali at the time, place and in the manner as alleged by the prosecution. It would indeed be unsafe to convict the appellants based on the testimony of circumstantial evidence. They would certainly be entitled to the benefit of doubt which is created by the very circumstances which we have referred to.
Appellants Afzal @ Guddu and Iqbal are acquitted by the trial Court for the charge under Section 3 (1) of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act. Accused Afzal @ Guddu is also acquitted under Section 25/27 of Arms Act by the trial Court”, the Court observed.
“For the aforementioned reasons, the appeal is allowed and the order dated September 04, 2010 passed by the Special Judge (Gangster Act)/ Additional Sessions Judge, Bulandshahr in Special Trial under Section 302/34 IPC, State vs Mohd Afzal @ Guddu and others, Police Station Gulawadi, District Bulandshahr for convicting and sentencing the appellants to undergo life imprisonment under Section 302/34 of IPC, is hereby set aside.
The appellants Afzal @ Guddu and Iqbal are acquitted for the charges under Section 302/34 IPC. They shall be set at liberty forthwith, if not required in any other case,”
-the Court ordered.