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State Of U.P. v. Guddu @ Furkaan - GOVERNMENT APPEAL No. 2544 of 1997 [2005] RD-AH 1954 (16 August 2005)


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Government Appeal No.2544 of 1997

State of U.P..........................................................Appellant


Guddu @ Furkan...................................................Accused


Hon'ble M.C. Jain, J.

Hon'ble  M.Chaudhary, J.

( Delivered by Hon'ble M. Chaudhary, J.)

This  Government appeal  has been filed on behalf of the State  from the judgment and  order dated  2nd of April, 1997 passed by VII Additional Sessions Judge, Kanpur Nagar in Sessions Trial  No. 1098 of 1995 State vs. Guddu @ Furkan acquitting the accused of the charge levelled against him under section 302 IPC.

Brief facts giving rise to this appeal are that at  7:15 p.m. on 5th  of March, 1995 Rashid Ali, brother of  injured  Mumtaz Husain lodged  an FIR at police station Bekanganj situate at  a distance 2 ½ Furlongs  from  Penchbagh  alleging that Sajid  Husain, father of the victim was  in occupation of house no. 94/106, Penchbagh as tenant  of one Mahavir Prasad. Guddu @ Furkan  residing in  Roti wali  gali  within the  limit of  police station Moolganj  wanted to  get the said house vacated  forcibly. On 26th of March, 1994 the accused  taking some ruffians  came to  the house of Sajid Husain and  threatened  him to vacate  the accommodation in his occupation and Mumtaz Husain lodged the FIR of that incident   at police station Bekanganj.  On 26th of November,1994 the accused  hurled   handgranade  at his son Rashid Ali and an FIR of that  occurrence was  also lodged by Mumtaz Husain at  the police station.  That case was pending in the court of Session and Mumtaz  Husain was an eye witness of that  occurrence.  In the evening  of 5th of March, 1995 Rashid Ali and his father  Sajid  Husain were sitting  at their dental clinic. Mumtaz Husain,  younger brother  of Rashid Ali aged about 15-16 years  was drawing water from the  hand pump situate  across  the road in front of the  clinic.  In the meanwhile Guddu @ Furkan came from the side of Penchbagh hurling abuses and as he reached near the hand pump he fired  at Mumtaz Husain  with countrymade pistol.  Sustaining firearm injury Mumtaz  Husain fell down and on hearing the sound of  shot fired  Sajid Husain, Rashid Ali and few  others rushed to the scene of occurrence and  Guddu, the assailant fled away threatening them.  Immediately the  injured  was rushed  to  Ursala Hospital for treatment by his father Sajid Ali and brother  Liyakat Husain. The police registered  a crime  against the accused  under section 307 IPC and made entry regarding  registration  of the crime in GD  (Exts Ka 11 &  Ka 12).  Station Officer Brijvir Singh  who took up  investigation of the crime  in his hand went to the scene of occurrence, inspected  the site and prepared its site plan  map (Ext Ka 3).  He also recorded statements of the witnesses.

Since  condition of injured Mumtaz Husain was serious he was referred to LLR Hospital, Kanpur where he was admitted  at 7:40 p.m. the same evening  but  he succumbed to the injuries sustained  by him in the said incident the same night at  9:30 p.m.  On receiving  information on telephone  on  6th March, 1995 at 10:00 a.m. from police station  Swaroop Nagar regarding death of  Mumtaz Husain in LLR Hospital last evening  the police  altered  the crime under section 302 IPC vide GD entry no. 24 (Ext. Ka10).  Then Station  Officer  Brijvir Singh  went  to LLR Hospital and  drew inquest  proceedings on the dead body of Mumtaz Husain.  He prepared the inquest  report (Ext  Ka 4) and other necessary papers ( Ext Ka 5  to Ka 8) and handed over the  dead body in a sealed cover alongwith necessary papers  to Constables Jahan Singh and Sunil Kumar for  its  post mortem.  He also recorded  statement of  Sajid Husain, father of the deceased.

Autopsy conducted on the dead body  by Dr.  N.K. Jaiswal, Radiologist, Ursala Hospital on 6th of March, 1995 at  2:10 p.m. revealed below noted  ante mortem injuries on the dead body:

1. Firearm wound  of entry 1 cm x 1cm x   cavity deep  on left  lower  chest  13 cm below  left  nipple and 12 cm from umbilicus  with margins inverted .  Blackening  collar present round the  wound .

2. Firearm wound of  exit  on right side  chest  lower part  lateral ( upper abdomen)  8 cm above right  iliac  crest and 20 cm below  auxillary fold with  margins everted.

On internal examination 10th  rib   on left side was found fractured.  Abdominal  membranes, peritoneum, stomach and lever were found  lacerated.  Abdominal cavity contained 1 ½  litres of blood.  Stomach contained  semi-digested  food with  blood clots 6 oz.  The doctor opined  that the death was caused due to shock and  haemorrhage (syncope) as a result of ante mortem injury.

After  completing investigation  the police submitted chargesheet  against the accused.

After framing of the charge against the accused the prosecution  examined  Sajid Husain (PW 1) and  Rashid Ali (PW 2) as eye witnesses of the occurrence.  PW 3 Dr. N.K. Jaiswal, Radiologist, Ursala Hospital who conducted  autopsy on the dead body  on 6th March, 1995 at 2:10 p.m.  has proved the post mortem report (Ext  Ka 2).  PW5 constable Krishan Avtar who made  GD entry  regarding registration of  crime on 5th of March, 1995 and altered the  crime under section 302 IPC on 6th March, 1995 at  10:00 a.m. has proved  GD entries  (Ext ka 12 &  ka 10).  PW 4 Station Office Brijvir Singh who investigated the crime and  after completing  investigation   submitted   chargesheet against the accused as absconder has proved  the police  papers.

A perusal of the record goes to show that since  the accused was  absconding proceedings under section 82  & 83 of  the Code of Criminal  Procedure   had to be  resorted  to procure his presence.  Subsequently the accused  surrendered  in the court of Magistrate concerned   on 13th of May, 1995.

The accused  denied  the alleged occurrence altogether stating that  he was implicated in the case falsely on account of enmity.  He  did not adduce any evidence in his  defence.

On an  appraisal of evidence and other material on  the record the learned  Additional Sessions Judge  disbelieved  the prosecution case  and evidence observing that the FIR was  ante-timed as it was  lodged after the death of Mumtaz Husain next day after  consultation and  confabulation, and  the accused was  named therein as the  assailant on account of enmity.  He   held the accused not guilty of the  charge levelled against him resulting in his acquittal.

Feeling dissatisfied  by the  impugned judgment and order the  State preferred this appeal assailing   acquittal of the accused respondent.  

We have heard learned AGA for the State appellant and Sri Sanjai Kumar learned counsel for the accused respondent and gone through  the record.

Learned AGA for the State appellant vehemently argued that  since the impugned judgment  is perverse and unreasonable  as it is based on  faulty appreciation of evidence and  convincing  evidence  and material have been unjustifiably  eliminated, evidence has to be  reappreciated for the purpose of ascertaining   if the accused really committed  the offence or not.  On the other hand, learned counsel for the  accused respondent  argued that since  learned trial judge has given cogent  and convincing  reasons for finding  the accused not guilty of the charge levelled   against  him the judgment of the lower court   does not call for any interference therewith.

After going through  the record  we are of the view that  findings recorded by the  trial judge  are manifestly erroneous and   contrary to evidence.  The finding recorded  by the court below is that since  according to the prosecution  case Mumtaz Husain succumbed  to injuries  allegedly sustained by him in LLR Hospital at about 9:30 p.m. and  at that time  the investigating officer  was present  in the hospital  the crime should have been altered under section 302 IPC the same night but it was  altered under section 302 IPC  next morning  at 10:00 a.m. on receiving information on  telephone from the Hospital  next day the FIR is antetimed.  He also  observed  that since  the investigating officer  did not find  any  blood at the   scene of occurrence  it all goes to show that  the incident did not  take place at the time, place and  in the manner alleged by the prosecution.

We have given our anxious consideration to the  evidence adduced by the prosecution and we are of the opinion that the findings recorded by the trial court are based on faulty appreciation of evidence resulting in miscarriage of justice.  PW1  Sajid Husain, father of the  deceased  and PW2  Rashid Ali, brother of the deceased  and the first informant   both  have consistently deposed that  at about 6:30 p.m.  they were sitting at their  dental clinic  and Mumtaz  Husain was  drawing  water   from the hand pump; that accused Guddu @ Furkan came from the side of  Penchbagh hurling abuses and  whipped out the countrymade pistol and fired at Mumtaz Husain hitting him at his abdomen and  ran away towards  Penchbagh and immediately both of them rushed  there and  Rashid Ali  took his injured  brother on his shoulder; that in the meanwhile his brother  Liyakat  reached  the scene of occurrence from  his house   on the first floor situate  just opposite  the dental clinic and  Sajid Husain  took a rickshaw  and that then Sajid Husain and Liyakat took   injured  Mumtaz Husain to Ursala Hospital. PW2  Rashid  Ali  further deposed that immediately he scribed  report of the incident in his hand and went to the police station Bekanganj situate at a distance of some 2 ½  furlongs  therefrom and  handed over written report of the occurrence  to the police there ( Ext ka 1) where  check report was prepared on the basis of the  written report handed over to the police by  the HM and entry regarding  registration of the crime  made in the GD ( Ext ka 11 & ka 12). Both these witnesses were subjected to   searching and gruelling  cross-examination but nothing  tangible to discredit  the testimony  of any of the witnesses  could be brought on the record.    No doubt these witnesses are close relatives of the victim being father and  brother of the deceased  but on that score alone  their  sworn testimony can not be  thrown over board.  Close relatives of the victim  would be the  last persons  to  screen the  real culprit and  falsely implicate  innocent person; and hence the  mere fact  of  near relationship far from being  the foundation of criticism of the  evidence  is often  a sure guarantee of  truth.  Further  medical evidence  has lent support to the sworn  testimony of the two eye  witnesses.  Medical evidence leaves no  room for doubt as to the  factum of the occurrence as alleged  by the  prosecution  and weapon used in the assault  also receives corroboration  from it.  It is true  that the investigating officer did not find any blood  at the scene of  occurrence  but it has come in evidence that since Rashid Ali who was sitting at the dental clinic situate just across the road and he immediately rushed and  took his injured brother at his shoulder  much blood  would not  have fallen on the ground  because the blood oozed from the wound was first soaked  by the clothes put on by the injured and when his brother Rashid Ali  took him at his shoulder his clothes   got  bloodstained.  Besides,  a perusal of the postmortem report  goes to show that on internal examination  abdominal  membranes, peritoneum, stomach and lever were found lacerated and  abdominal  cavity contained 1 ½ litres of blood.  In the circumstances  if the blood oozed  from the  injury would have fallen down at the  scene of occurrence near the hand pump it would  have been very meagre  in quantity and  might have disappeared  with the water  drawn from  the  hand pump.  Shorn  of few contradictions  or discrepancies  which are of  trivial and  insignificant nature and  immaterial, the evidence of  both  eye witnesses is consistent with  medical evidence and stands corroborated by FIR of the occurrence lodged promptly by Rashid Ali, brother of the injured.

Learned counsel for the appellant  laid much emphasis  upon the fact that  PW 2  Rashid Ali stated that  the  shot fired  hit Mumtaz Husain  on right side of his  abdomen whereas the medical evidence goes to show that he received firearm wound of entry  on left side of his chest.  In our  opinion there is no real inconsistency between  the medical  evidence and  the ocular testimony of  Rashid Ali as autopsy   conducted  on the dead body revealed firearm  wound of entry  1 cm x 1 cm x cavity deep  on left  lower chest  13 cm below   the left  nipple and 12 cm from  umbilicus   with margins inverted having the communicating  exit  wound  on right  side  lower part  lateral  upper abdomen.  On reaching near the hand pump accused Guddu @ Furkan fired at Mumtaz Husain with countrymade pistol  and ran away and thus the  incident would  have  taken  hardly  a minute or so and  seeing the incident Rashid Ali who rushed  crossing the  road for his  care must have   got confounded  and  shocked and immediately he took his injured brother on his shoulder and  at that moment  he might not have observed and  perceived with perfect exactitude as to on which side the shot hit his brother.  The fact remains  that  the injured received  fatal firearm injury at his abdomen as  medical evidence also reveals that his abdominal membranes, peritoneum, stomach and lever were found lacerated  and  abdominal  cavity contained   ½ litres blood.

Further, it has come in evidence that Penchbagh  in which the incident   took place  is not thickly populated area as there are few residential houses and  few commercial shops.  It has come in evidence that on 5th of March, 1995 it  was   Sunday and on that  account   all the shops  of general and sundry nature were closed and  on hearing the sound of  shot fired and  hue and cry  only 3-4 persons rushed to the  scene of occurrence.  Since Mumtaz Husain  received  firearm injury    at his  abdomen, his father and  brothers were  anxious  to take him to the Hospital at the earliest and   without losing  any time they  rushed him  in a rickshaw  to Ursala Hospital.  It is  a matter of common  knowledge  that  generally   persons  who witness  the occurrence remain reluctant in appearing  in  courts  to depose   against  wrongdoers as they do not want to invite trouble for themselves unless compelled  otherwise to appear in  courts.  Both the eye witnesses have given a truthful and honest  account of the occurrence witnessed by them. And  once the testimony of these two eye witnesses is believed  non-examination  of independent witness  would not come  to  demolish  or  introduce  any ripple in the  prosecution case.  

Further, PW4 SI Brijvir Singh, the investigating officer nowhere deposed in his statement  that on 5th of March, 1995 he went to LLR Hospital.  He stated  only this much in his  examination-in-chief that that day after registration of the crime at the police station he alongwith  the  police force and  Rashid Ali,  the first informant went to  Ursala Hospital but the injured alongwith his father and brothers  in a tempo  met him on the way going to  LLR Hospital and then after  talking to the  injured for a little while  he went  to the scene of occurrence,  inspected the site and prepared its site plan map and  thereafter searched for the accused.  He also deposed  that next day on receiving  information on telephone from   LLR Hospital that  Mumtaz  Husain  had succumbed to  the  injuries last night the crime  was altered  under section 302 IPC and that  it was thereafter that he went to LLR Hospital for inquest  proceedings.  He was not  given a suggestion  even in  his cross-examination  by the  defence counsel that when injured  Mumtaz  died in the LLR  Hospital he was  present there and that inspite of having knowledge regarding death of  Mumtaz at that very night  in the Hospital the crime was not altered under section 302 IPC that very night  at the police station.  In view of  these facts without cross-examining  the  investigating officer on the point  the argument that  in spite of the fact that investigating  officer being present in the LLR Hospital at the time of death of injured Mumtaz  the crime was not altered under section 302  IPC the same night and hence it should be presumed that FIR  was not  in existence at that time  is not available to the learned counsel for the accused respondent.

Further  there  is  presumption of genuineness  of the  check report and GD entry  regarding registration of the crime  (Ext ka 11 and ka 12) prepared by the police officials in the  discharge of their  official duties  though rebuttable.  We see no  reason to doubt the  veracity of the  GD entry and the time of  lodging FIR mentioned in the check report.  Thus  the said contentions of the learned counsel for the accused  respondent  that the FIR is antetimed  and since the investigating officer did not find  blood at the scene of occurrence the incident did not take  place  at the time, place  and in the manner  alleged  by the prosecution  have got no substance and are repelled.

Learned counsel for the accused respondent further argued that the  accused  had no motive to fire  at Mumtaz Husain.  It has come  in evidence that prior to this incident the accused had  hurled hand grenade  at Rashid Ali and  FIR of that incident  was lodged by Mumtaz Husain at  the police station and that case was pending in the court of Session and Mumtaz Husain  was the eye witness  of that incident. That constituted  sufficient motive  for the   said  crime by the accused.  Otherwise too, motive  becomes insignificant in a case of  direct evidence like the   present one. The said argument   advanced by the learned counsel for the accused  appellant has got no  life and falls to the ground.

On a conspectus of the evidence on record with  the  circumstances  attending  the case  and  after giving our anxious consideration to all the relevant aspects thereof we are of the view that   the findings recorded by the learned trial judge are based on surmises and conjectures and on faulty appreciation of  evidence and the grounds  on which the order of  acquittal is based  are erroneous and therefore  it cannot be sustained in law. Since  the injuries  sustained by the  victim were sufficient  to  cause his  death in ordinary course of  nature we find that  accused Guddu @ Furkan is guilty of the offence punishable under section 302 IPC.

The appeal is allowed and the impugned  judgment and order are  hereby set aside.  Accused Guddu @ Furkan  is  convicted for the   murder of Mumtaz Husain under section 302 IPC and sentenced to imprisonment  for life thereunder.  The accused is  reportedly in jail. The CMM, Kanpur Nagar  shall ensure  it  so that  he serves out the  sentence  imposed upon him.

Office  is directed to  send certified copy of the judgment  alongwith record of the case  to the   Court concerned immediately  to ensure compliance  under  intimation to this Court within two months  from today.

Dt: 16th of August, 2005



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