IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.17021706 OF 2014
STATE OF UTTAR PRADESH … APPELLANT
VERSUS
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 the common
impugned judgment dated 29.05.2009, passed by the High Court
of Allahabad in Criminal Appeal Nos. 1419, 1430, 1518 and 898
of 2004, whereby the High Court has reversed the judgment of
conviction passed by the Additional Sessions Judge, Kanpur in
Sessions Trial No. 164/2002 dated 22.01.2004 under Sections
302 read with 149, 307 read with 149, 148 IPC and Section 7 of
REPORTABLE
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Criminal Law Amendment Act, 1932. Whereas the High Court in
Government Appeal no. 5270 of 2005 preferred by the appellantState, has dismissed the appeal against the acquittal of accused
no.1respondent (Wasif Haider) for offences under Sections 25
and 27 of Arms Act, 1959 and Sections 4 and 15 of Explosive
Substances Act, 1908, while affirming the judgment dated
3.8.2005 passed by the Additional Sessions judge, Kanpur
acquitting the accused no.1respondent (Wasif Haider) in
Sessions Trial No. 143 and 144 of 2002.
2. Brief facts as unfolded from the prosecution story are
that, while the complainant (P.W.2 S.O., P.S. Moolganj, Kanpur)
along with other police personnel was on duty at the parade
crossing, he came to know that a crowd of around 200300 rioters
were causing rampage and destruction at the Chaubey Gola
Temple. Immediately, the complainant accompanied by the police
force and A.D.M (Finance and Revenue)Sri Chandra Prakash
Pathak (hereinafter referred as “the deceased”), and half a
section of Provincial Armed Constabulary [“PAC”] proceeded
towards scene of occurrence. Admittedly, when the deceased
along with police personnel were at a distance of around 100150
paces from Sunehri Mosque on the Nai Sarak, rioters started
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firing upon them resultantly injuring the deceased and his
orderly, Ram Chandra. In order to control the law and order
situation, the police were compelled to fire in their defense. When
the police party reached the mosque, the rioters had already fled
away. Subsequently, when the police party reached Chaubey Gola
Temple where rioters had already looted some houses and had
also committed arson. In the meanwhile, the police also received
the information that the deceased had succumbed to the gunshot
injuries in the hospital. Finally, the F.I.R., Case Crime No. 7 of
2001 came to be registered at 8.05P.M. on 16.03.2001 against
200300 unknown rioters.
3. On the same night, after conducting the inquest
proceedings, the dead body was sent for post mortem
examination and the investigation commenced. The investigation
officer after recording the statement of witnesses, inspected the
place of occurrence and prepared Site Plan ext. Ka6. A bullet
which was recovered from the ashes of deceased was sent for
Forensic examination.
4. On 02.08.2001 accused no. 2respondent (Mumtaz
alias Maulana) was brought to Kanpur by the Delhi police. On
04.08.2001, accused no. 1respondent (Wasif Haider) was
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arrested. Accused no. 3respondent (Hazi Atiq) and accused no.
4respondent (Safat Rasool) were arrested on 17.09.2001 and
18.09.2001 respectively and thereafter the Test Identification
Parade (hereinafter referred to as “TIP”) was held on 27.09.2001
at District Jail, Kanpur. Subsequent to the completion of
investigation, the chargesheet was submitted.
5. The accused pleaded not guilty and claimed to be tried.
It is pertinent to note that in the statements made by the accused
under Section 313 of Cr.P.C. They claimed that there existed an
inordinate delay in conducting the TIP, as this time period was
used by the prosecution witnesses to see them at their homes or
places of work to mark them carefully for the subsequent
identification. They stressed on the fact that they were not kept
concealed in a veil (baparda). The accusedrespondents have
further stated that, prior to the TIP, the police had taken their
photographs and had shown it to the other witnesses. This
creates a considerable doubt about the genuineness of the TIP.
Further, the accusedrespondents have alleged that, they were
wrongfully roped in the case when the police failed to trace the
real culprits. The accused respondents have also put forth that,
although they had clear antecedents, but they were implicated in
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the crime falsely.
6. By order dated 22.01.2004, the trial court, while
relying upon the prosecution version, rejected the defence story
and convicted the accused persons as under,
ACCUSED CHARGES CONVICTION
[1]. Wasif Haider
[A1]
[2]. Mumtaz alias
Maulana [A2]
[3]. Hazi Atiq [A3]
[4]. Safat Rasool
[A4]
S. 302/ 149 IPC Life Imprisonment
S. 307/ 149 IPC RI for 5 years
S. 148 RI for 1 year
S. 7 Criminal Law
Amendment Act
RI for 3 months
All of them were acquitted for the charges
under Sections 395, 397, 436 and 153A IPC.
Wasif Haider [A1]
Acquitted for charges under Sections 25 and
27 of Arms Act, 1959 and Sections 4 and 15
of Explosive Substances Act, 1908.
7. Aggrieved by the abovementioned order of conviction
and sentence, the accusedrespondents appealed before the High
Court. The High Court on analysis of evidence found that, not
only there exists various contradictions in the testimonies of the
prosecution witnesses but there exists lack of corroboration of the
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same. While passing the order of acquittal the High Court
observed that the case of prosecution was ridden with flaws in
investigation, most importantly the identification of the accused
was highly suspicious and the TIP was held to be “too good to be
believed”. Accordingly, the High Court through the impugned
judgment acquitted the accusedrespondents and set aside the
aforesaid order of conviction as the prosecution failed to prove its
case beyond reasonable doubt.
8. Aggrieved by the impugned order passed by the High
Court acquitting all the accused, the State of Uttar Pradesh has
preferred these appeals.
9. The learned Counsel, Mr. Dinesh Kumar Goswami, on
behalf of the appellantState while supporting the prosecution’s
case, submitted that pursuant to the arrest of the accusedrespondents their identification was properly done after taking
due precautions and following the procedure. Moreover, the
prosecution witnesses had clearly identified the accused persons
in the identification parade and in the court as well. On the issue
of delay caused in conducting the TIP, the counsel also
vehemently submitted that, there was no inordinate delay in
conducting the TIP as canvassed by the counsels for the accused6
respondents. The High Court has committed a grave error by not
placing reliance on the TIP as there is nothing on record to vitiate
the results of the same. Lastly, the learned counsel submitted
that since there existed sufficient evidence to prove the culpability
of the accusedrespondents, the Sessions Judge had correctly
passed the order of conviction against them and therefore prayed
for setting aside the impugned order.
10. On the other hand, the learned Counsel, Ms. Kamini
Jaiswal, appearing on behalf of the accusedrespondents no. 1, 3
and 4, while supporting the order of acquittal rendered by the
High Court, submitted that, the entire prosecution story hinges
on the identification of the accusedrespondents, the genuineness
of which in itself is questionable. It was further argued that, when
admittedly the witnesses were at a great distance from the place
of occurrence, it was not plausible to identify specifically the
accusedrespondents, that too in the absence of any particular
hulia or distinguishing marks from amongst a crowd of 200300
rioters. Further, there was inordinate delay in conducting the TIP
which was fatal for the prosecution.
11. Further, the learned Counsel, Mr. Siddhartha Dave, on
behalf of accusedrespondent no. 2 submitted that accused7
respondent no. 2 has been dragged into the matter only on
account of confessional statement of the coaccused which has
not been corroborated, and no other incriminating evidence is
available on record.
12. Heard learned counsels for the parties. At the outset,
we would like to state that in an appeal against acquittal, the
appellate court would interfere only where there exists perversity
of fact and law [See Bannareddy and Ors. v. State of
Karnataka and Ors., (2018) 5 SCC 790]. Further, the
presumption of innocence is further reinforced against the
acquittedaccused by having a judgment in his favor [See
Rabindra Kumar Pal @ Dara Singh v. Republic of India,
(2011) 2 SCC 490 in para. 94].
13. We concur with the aforesaid order of acquittal
rendered by the High Court, as the present case is ridden with
multiple investigative laches and flaws which goes to the root of
the matter. We shall be addressing the same in seriatim.
14. Firstly, it is apt to note that out of the seven eye
witnesses who participated in the TIP, five of them identified the
accused without committing any mistake. As observed by the
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accused no.3respondent, Hazi Atiq has big protruding teeth, the
accused no.4respondent Safat Rasool was suffering from polio
hence had permanent physical disability, but surprisingly this
fact was never mentioned either in the F.I.R. or in the witness
statements. The specific identification of the four accusedrespondents, from a group of 200300 rioters, with 100%
perfection; without a mention of any distinguishing marks seems
highly improbable considering the distance of the witnesses from
the place of occurrence. Moreover, there existed an inordinate
delay of 55 days in conducting the TIP of the accused no.1 and 2.
Although, the involvement of accused no.3 and 4 was brought to
light on 03.08.2001 itself, the prosecution did not take any effort
to arrest or interrogate them for 6 weeks. But no reasonable
explanation was provided for the aforesaid inordinate delay.
15. Furthermore, no documentary evidence has been
provided to proof that the identity of the accused was kept
concealed. On the contrary, D.W.3, Mohd. Shamim Siddique,
Record Keeper in the Police Office stated that the general diary
does not mention that the accused no.2respondent Mumtaz alias
Maulana was kept baparda. The defence also pleaded that, the
aforesaid inordinate delay was used by the prosecution witnesses
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to see the accusedrespondents at their homes or places of work
to mark them carefully for the subsequent identification.
Additionally, accused no.1respondent Wasif Haider, in his
statement under Section 313 Cr.P.C. went to the extent of saying
that, prior to the TIP he was shown to the witnesses and his
photographs and videotapes were prepared. In Mulla v. State of
U.P., (2010) 3 SCC 508 para 55, this court laid down that a TIP
has to be conducted timely, if not, then the delay has to be
explained and such delay should not cause exposure of the
accused. However, in the case at hand, not only there was a delay
in conducting the TIP, but no explanation for the same has been
forthcoming from the prosecution. This creates a considerable
doubt about the genuineness of the TIP.
16. Secondly, it is surprising that, although the postmortem report describes that there were only two wounds in the
body of the deceased, one being the entry and the other being the
exit wound, allegedly a bullet was still recovered from the ashes of
the deceased. The F.S.L. report shows that this bullet was
charred and blistered. This recovery of bullet from the ashes of
the deceased is irreconcilable with the postmortem report which
allegedly states an exit wound, implying that the bullet had
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already left the body. The aforesaid fact raises a suspicion on
both the PostMortem report and the F.S.L. report as they are
incompatible with each other.
17. Thirdly, the prosecution has failed to establish that the
bullet allegedly recovered from the ashes of the deceased 20 days
later was indeed fired from the pistol recovered from accusedrespondent Wasif Haider. Even, the recovery of pistol is doubtful.
While, the prosecution case reveals that one .380 bore pistol colt
was recovered from the possession of the accusedrespondent
Wasif Haider, on the contrary, the evidence of P.W.2S.O.,
Rajendra Dhar Dwivedi reveals that one .320 bore pistol colt was
recovered pursuant to his arrest. Additional contradiction can be
seen in the sanction order wherein two pistols of .380 bore were
shown to be recovered from the possession of the accusedrespondent Wasif Haider.
18. Fourthly, as regards to the place of incident, the
prosecution failed to ascertain the same with precision. While the
F.I.R. reveals the place of occurrence to be in front of Sunehri
Masjid, P.W.2, the complainant later improved over his earlier
statement and stated that, the incident actually took place in
Noorani Masjid. On the contrary, the two site plans show the
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place of incident to be Noorani Masjid.
19. Fifthly, the prosecution failed to examine Ram
Chandra, the orderly of the deceased who was also injured in the
same incident and had suffered a gunshot injury. The
prosecution was also unable to prove the injury report of the
above victim. Such a failure is fatal to the prosecution case as his
presence in the place of occurrence is beyond doubt. It has been
placed on record that, despite RamChandra attending the
proceedings of the trial regularly he was not examined by the
prosecution.
20. Sixthly, the prosecution has also failed to adduce any
independent witness. Even though it is wrong to disbelieve the
evidence adduced from the official witnesses, but prudence
demands that their evidence needs to tested on the altar of strict
scrutiny. Considering the aforesaid facts and circumstances, the
evidences adduced by the prosecution witnesses do not inspire
the confidence of this Court.
21. Lastly, it is surprising that although the charges have
been framed under Section 307 of IPC, the prosecution has
absolutely failed to substantiate the charges by means of
evidence. It is rather unfortunate that the courts below have
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failed to take note of the same. The trial court has erred in
convicting the respondents for the aforesaid offence, without any
evidence to prove the same.
22. In the instant appeals before us, the prosecution has
failed to link the chain of circumstances so as to dispel the cloud
of doubt about the culpability of the accusedrespondents. It is a
well settled principle that a suspicion, however grave it may be
cannot take place of proof, i.e., there is a long distance between
“may be” and “must be”, which must be traversed by the
prosecution to prove its case beyond 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 held that,
“44. The prosecution, it is axiomatic,
must establish its case against the
accused by leading evidence that is
accepted by the standards that are
known to criminal jurisprudence
regardless whether the crime is
committed in the course of communal
disturbances or otherwise. In short, there
can only be one set of rules and standards
when it comes to trials and judgment in
criminal cases unless the statute provides for
anything specially applicable to a particular
case or class of cases…”
(emphasis supplied)
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24. In the present case, the cumulative effect of the
aforesaid investigative lapses has fortified the presumption of
innocence in favor of the accusedrespondents. In such cases, the
benefit of doubt arising out of a faulty investigation accrues in
favor of the accused.
25. Although we acknowledge the gravity of the offence
alleged against the accusedrespondents and the unfortunate fact
of a senior official losing his life in furtherance of his duty we
cannot overlook the fact that the lapses in the investigation have
disabled the prosecution to prove the culpability of the accused.
The accused cannot be expected to relinquish his innocence at
the hands of an inefficacious prosecution, which is ridden with
investigative deficiencies. The benefit of doubt arising out of such
inefficient investigation, must be bestowed upon the accused.
26. In our opinion, there exists no perversity in the
judgment of the High Court. Further, in the absence of compelling
reasons, this Court is not keen to entertain these appeals
challenging the order of acquittal.
27. We are also not inclined to interfere with the
concurrent order of acquittal for offences committed under the
Arms Act and Explosive Substances Act presently before us in
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Criminal Appeal no. 1706 of 2014.
28. The appeals are accordingly dismissed. Pending
applications, if any, shall also stand disposed of.
……………………………..J.
(N. V. Ramana)
……………………………..J.
(Mohan M. Shantanagoudar)
NEW DELHI,
DECEMBER 10, 2018.
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