Result of U.P. Higher Judicial Service (Main Written) Examination, 2014 Direct Recruitment to U.P. Higher Judicial Service held on 14th, 15th and 16th November, 2014 has been declared. High Court of Madhya Pradesh, Jabalpur notified Advertisement for recruitment additional district judges through M.P. Higher Judicial Service (Entry Level) Direct Recruitment for BAR, Exam 2015 Haryana Judicial Services Examination 2014-Pre is conducted on 10th of Jan 2015. The result is awaited. THE HIGH COURT OF DELHI will hold examination for direct recruitment against 14 vacancies to Delhi Higher Judicial Service on Sunday, the 06th April,2014-Last Date 06.02.2014 13/11/2013: While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a Mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C .- SUPREME COURT.
HIGH COURT JUDGEMENT
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  Date 7/29/2009 12:00:00 AM
  Court Allahabad High Court
  Parties Sahim Vs. State Of U.P.
  Appeal Criminal Appeal - 1169/2006
  Act Indian Penal Code - 302
  Judgement
  The accused appellant in his statement, under Section 313 Cr.P.C., denied the incriminating circumstances appearing against him in the prosecution evidence and took the defence of false implication and manufactured FIR against him. In his defence, the appellant accused, had examined three defence witnesses, namely, Sakib Ali D.W.1, Mohd. Sufiyan D.W.2 and Sada Nand D.W.3. Sakib Ali, DW1, in his deposition before the court stated that Sufiyan, father of appellant Sahim, had a cement and hardware shop in Rani Ki Sarai market. The appellant use to realize shops sale proceeds. Rustam is a resident of his village and when his house was being constructed then iron bars and the cements were purchased from the shop of Mohd. Sufiyan and Rs.30000/- of the sale proceeds were due on Rustam, informant. Appellant used to visit Rustam for realization of the remaining balance amount on which Rustam had threatened to implicated the appellant in a false case. He had further deposed that the deceased was a history sheeter and being tired of repay demand that the appellant had been falsely implicated by the informant. He had admitted that he had not disclosed these facts earlier to any body, he had given evidence for the first time in the court without any summons etc. and appellant had called him for giving evidence. He had further stated that he was an eyewitness of the supplies of 30/40 bags of cement to Rustam. He had not seen the ledger or register of Sufiyans shop and admitted that he belongs to the family tree of the appellant but denied that he was deposing falsely because of the aforesaid reason to save the appellant. Mohd. Sofiyan, DW2, father of the appellant, had also made a similar statement as that of D.W.1 in his examination-in-chief and had further deposed that but for Rustam, as mentioned above, no sale proceed was due to any other person and he had not made any complaint to authorities regarding false implication of the appellant. Sada Nand, DW 3, had proved the criminal history report of the deceased as Ext. Kha-1, which was prepared by the Raj Nath Singh. He had pleaded no personal knowledge as to whether deceased Aftab was a history sheeter or not. In Sessions Trail No. 646 of 2008, under Section 25 Arms Act, charge was framed on 8.1.2002 on the appellant. S.I. Gayasuddin was examined as P.W. 1, who was I.O. of the relevant crime no. 281 of 2008. Gayasuddin P.W. 1, testified that he had commenced the investigation on 25.9.2001 and had copied chik FIR, GD etc., recorded statements of Rajendra Kumar Singh, informant, S.I. Kashi Nath Singh constable, Chandra Deo constable, Gyanendra Ram. On 27.9.2001,he conducted spot inspection, and prepared site plan Ext. Ka 1. Next day he recorded statements of accused persons, and then submitted charge sheets Ext. Ka-2 and Ext. Ka-3 against appellant Sahim and deceased accused Ismail respectively. He has further deposed that he had not examined any independent witness nor there was such a witness of recovery. In recall examinations, he had proved sanction order Ext. Ka-4 granted by the District Magistrate, R.N. Tripathi. The trial Judge after looking to the oral and documentary evidences led by the prosecution and the defence in both the trials came to the conclusion that the prosecution had successfully brought the guilt of the appellant home and therefore, convicted him in both the offences under Section 302/34 I.P.C. and 25 Arms Act and sentenced him to life imprisonment with a fine of Rs.1000/- for the charge of murder and one year rigorous imprisonment and a fine of Rs.500/- under 25 Arms Act and in default of payment of fine to undergo two years further simple imprisonment vide his impugned judgement and order dated 25.2.2006. Hence this appeal. We have heard Sri B.B. Paul, learned senior advocate assisted by Sri A.P. Paul on behalf of appellant and Mrs. Raj Laxmi Sinha, learned AGA, on behalf of the State. We have, also gone through the entire record of this Criminal Appeal.
  It is contended by learned Sr. counsel for the appellant that the prosecution has failed to establish the charge and guilt of the appellant on the evidences led by it. The informant had not dictated or scribed the first information report, which is the out come of concoction and manipulation at the police station itself in connivance with the informant and the I.O. It was further contended that the post-mortem examination report does not support the ocular testimony and in fact it contradicts it. Neither the first informant was present at the time of the incident nor his testimony inspires confidence nor it is a reliable testimony. Other eye witnesses of the fact, did not support the prosecution case and have completely exonerated the appellant. Investigation of the crime is tainted, full of anmolies and does not establish the case against the appellant at all. It was further submitted that the recovery witnesses have disowned factum of recovery being made in their presence and hence recovery and seizure memos are sham documents. FIR, the first version of the informant, being outcome of manipulation destroyed credibility of witnesses and resultantly,the whole of the prosecution story falls flat on the ground. Further it was contended that the informants testimony is full of contradictions on the material aspects of the matter and he has been contradicted by other witnesses on every single aspect of the prosecution story and, therefore, the prosecution has failed to establish its case against the appellant. It is, next argued, that looking to the post-mortem examination report, it seems, that the crime was committed by a single accused and the appellant has been falsely implicated for the reasons mentioned by him in his statement under Section 313 Cr.P.C. Had the prosecution version being correct, the recovery of empty and live cartridges from the spot would have been an impossibility. It was further submitted that there was no motive for the appellant to commit the murder and the prosecution has miserably failed to establish motive of theft of motorcycle and keeping of the same in the house of the appellant. It was further argued that Guddu, who was the best witness of the alleged motive, had been withheld by the prosecution intentionally and deliberately and, therefore, adverse inference of absence of motive should be drawn against the prosecution. It is contended that though the motive relegates into the background when there are eye witnesses account but when the motive alleged by the prosecution is false, it certainly dents the credibility of the prosecutions story and of its witnesses. Under such grave error, the prosecution had failed to establish the charge against the appellant to the hilt. Drawing curtain of his argument, learned Senior counsel pleaded that conviction of the appellant, on both the counts, through the impugned judgement and order, cannot be sustained and the appellant deserves acquittal by allowing his appeal. Learned AGA refuting the arguments of learned Senior Counsel contended that it is a day light incident and there are eye witnesses account. The prosecution version has been well supported by the medical evidence and the testimony of P.W. 3, who is real brother of the deceased, cannot be brushed aside who had no motive to depose falsely against the appellant. Other witnesses of facts, though have endeavoured to exonerate the present appellant had on all material aspects of the matter have supported the prosecution version in respect of time, place and manner of incident mentioned in the FIR. Concludingly, it was submitted that the prosecution has successfully brought home the guilt of the appellant. The appeal is bereft of merits and deserves to be dismissed and appellants convictions and
  sentences deserves to be sustained. Cogitating over the facts we find that, according to the prosecution case, genesis of the incident started when the informant had gone to the market to purchase bulbs accompanied by the deceased, who had gone there for the purposes of getting himself shaved. Accused persons were already present since before in the market. Informants deposition indicates that he had purchased five bulbs from the shop of PW 6, Mohd Bashir @ Pappu, while the deceased entered in the next barber kiosk of PW 4 Jalalludddin for shaving. However PW 6, in his deposition, contradicted the version of the informant, by deposing that his shop was closed on the day and at the time of the incident. On this aspect, the prosecution has not declared him hostile nor it even endeavoured to get its allegations elicited from him. Defence, however, further got it elicited from him that he had returned from his in-laws house following day of the incident. Further, informant could not retain the bulbs with him and got it lost/dropped some where. It is the case of the informant that he had gone to the market to purchase bulbs only and he had no other work. Thus the only evidence which could have probablised the presence of the informant at the time of the incident is absent. Further on this aspect of the matter the evidence of informant and that of the I.O. contradicts each other. Informant deposed that he had informed the I.O. for loosing of bulb but the I.O. denied to have examined him on this aspect of the matter. Although an explanation has been offered for such a lapse by learned AGA, making submissions that after the incident of murder, loosing of bulbs is not a very material circumstance, but the fact remains is that purchase of bulbs by the informant itself remains disproved by closer of the shop from where he had alleged to have purchased the bulbs. Non disclosure to the I.O. regarding absence of factum of loosing of said bulbs further erodes the truthfulness of this allegation by the informant and, therefore, these facts dent the prosecutions story to a great extent making the presence of the first informant, at the scene of the incident, suspect and doubtful. Defence suggestion, on such evidence, that informant was not present at the time when the incident occurred and subsequently he was summoned and a false case was cooked up, therefore, cannot be taken to be improbable and in fact we find it more probable than the prosecution evidence. Further on this aspect rest of the witnesses of facts P.W. 4 to P.W. 6 have not stated any thing. Their conspicuous silence on this aspect of the matter makes informants allegation untruthful and resultantly his presence on the spot doubtful. Moreover presence of first informant at the time of the incident is also improbablised from his description of the incident. According to the site plan, A is the place inside kiosk where the deceased was getting himself shaved facing towards east. He was shot at from place F which was towards his back. Shot from place F will not hit the deceased in the chest, as was deposed by the informant, and ostensibly, for this reason he changed his stand by stating that while his brother was trying to come out from the kiosk, he was shot at in his chest. This statement of the informant is contradicted by site plan, prepared by the I.O. PW 9, at his instance. In fact place A where the deceased was sitting/ standing will not be visible from place 9, from where the informant saw the incident and where he was alleged to have been present. Further, sprinting of the deceased to 60 paces (Place C in the site plan), with out trickling of blood on the earth, makes the story of running away by him after sustaining four gun shot injuries,(two entry and two exit wounds), as stated by the informant, doubtful and indicates that, probably, he was not present at the scene of the incident. This opinion we have formed, also because, at the time of the incident deceased was wearing only a shirt and a pant (See autopsy report) and looking to the extensive damage caused by four wounds, soaking of blood inside the clothes is a remote possibility. Blood did oozed out from his injuries as the same was alleged to have been collected by the I.O. Absence of blood to a distance of sixty paces, therefore, damages informants version irreparably and makes his presence at the scene of the incident doubtful. Yet another aspect is that , according to the informant, three assailants had shot at the deceased. First fire was made by the present appellant and rest of the two fires were made by other murderers, while the deceased was escaping for his life. However, deceased sustained only two gun shot injuries from a very close range with their respective exit wounds. Both entry wounds had blackening and charring present in them. All the three assailants had shot at him from place F in the site plan and therefore the autopsy report contradicts informants version of firing made by three accused. Because of aforesaid contradiction, in the later part of his deposition, informant, PW 3, had to admit that only two fires were made during the occurrence and he had heard only two gun fire shots. This ostensibly was done by him to make his story consistent with that of the medical evidence and autopsy report. Thus manner of actual incident, as stated by the informant, gets contradicted by medical evidence, indicating informants absence at the time of the incident and his deposition in court suspect. No blood was found on the clothes of this witness, albeit, he had deposed that his clothes and body were stained with blood in the process of lifting and carrying the deceased to the hospital. It will be very surreal for us to accept informants statement that though he had reached police station in day light and had alighted and reloaded the corpse from tempo to jeep, yet the I.O. could not see blood on his clothes. In this respect Ist Investigation Officers deposition that he did not inquire about the blood stained clothes, while admitting that such a step is a part of investigation, makes the presence of informant suspicious and lend credence to the defence suggestion that he had not transported the corpse to the police station nor his clothes were soaked with blood. For recording a conviction, intrinsic merit of the witnesses deposition should be beyond reasonable doubt, which is missing in case of the informant. From the above discussion, we conclude that prosecution has failed to establish the presence of the first informant at the time and place of the incident beyond doubt. Coming to the motive part of the argument, although we are oblivious of the fact that motive relegates into the back ground in a case of direct ocular testimony and is not of much significance, but where the motive is false and cooked up, then it assumes importance to test the veracity or other wise of the prosecution witnesses. From the evidence, we find that the motive of motor cycle theft is also a dicey piece of evidence. Firstly, identity of Guddu, whose motor cycle was alleged to have been stolen, has not been disclosed by the prosecution. No where it has come as to who this person was. Secondly, there is no documentary evidence on record to substantiate that motive. Guddu himself did not made any complaint about it nor there is any evidence to that effect. Thirdly, Guddu was not interrogated by the I.O. regarding alleged motive nor he was made a witness of the charge sheet. Fourthly, neither, make nor any description of the said motor cycle has been disclosed by the informant and lastly, but for the ipse dixit, of a single witness, informant PW 3, no other witness of fact had come forward to support this allegation. In absence of convincing material before us, we find it difficult to accept this allegation that there was any motor cycle theft, which was got recovered from the house of the appellant. Considering next argument that FIR, annexure no.1 and Chik FIR, annexure no.7 are manufactured and cooked up documents, we find that there was no scribe of the FIR mentioned in the written report, annexure no. 1, indicating that it was the informant himself who had scribed it on his own. How ever when examined during trial , informant PW 3, had to admit that he had not scribed annexure no.1, but had dictated it to a person sitting behind a table inside the police station, near the I.O., after getting a paper from the office of the police station itself. In the normal course of conduct, we can safely conclude that this person can be none other than the Head Moharrir of the police station. It seems that it is because of this reason that the name of the scribe is not mentioned in Ext. Ka-1, the written report. It was also deposed by P.W.3 that I.O. was present at that time of dictation of the FIR and it was he ( I.O.), who had directed the informant to lodge a written report. The most significant knock out blow to the prosecution case has been given by deposition of informant P.W. 3 that he had transported the corpse in a tempo to the police station where he had met with the I.O. at 4.30 p.m. I.O. asked him to give a written report on which he lodged a written report. While he was dictating the report corpse was not brought down from tempo and kept on the ground. Thereafter it was alighted from tempo and reloaded in another jeep at 4.30 p.m. They waited at the police station for five minutes and then proceeded along with the corpse and got it kept in the mortuary in district hospital. Informant had carried the dead body into the tempo and it was he who had alighted and reloaded it in the jeep and in that process his clothes were soaked with blood. After depositing the body he again returned to police station and waited there till half an hour and thereafter he was dropped by the I.O. at his house. The above is not the case in FIR and examination-in-chief which indicates that FIR is made ante time and is cooked up. The deceased had already died in the incident and it was his dead body which was transported in a tempo to the police station first and then to the hospital to be deposited in the mortuary. FIR version is otherwise where it was mentioned that deceased was alive when transported to the hospital and it was in the hospital that the doctor had declared him dead and after depositing the body in the mortuary that the informant came to the police station to lodge the FIR. Such depositions by the informant creates a reasonable doubt that the FIR was cooked up at the police station in the presence of the I.O. and therefore it losses its significance and corroborative value. Lodging of FIR at the first instance at 4.30 p.m. when chik FIR shows time as 6.40 p.m. makes it a sham document, especially when the deceased was already dead. It is recalled here that the appellants had suggested that a false FIR was cooked up at the police station by the informant in connivance with the I.O. Further we find that inquest on the dead body was conducted by S.I. A.P. Maurya. Prosecution has not examined him in the trial . His hand writing has been proved by the PW 11, CP No. 701, Sadanand Singh. According to his deposition the said S.I. had prepared the inquest report, challan lash, Letters to R.I. and to the C.M.O., photo lash, etc., which papers had been proved by him as Ext. Ka 9 to Ka 13. Since accused had not disputed the genuineness of these exhibits, their contents can be taken into consideration to examine the whole prosecution case for its truthfulness. If the FIR was in existence at 6:40 pm., why the police of P.S. Rani Ki Sarai did not conduct the inquest on the dead body within a reasonable period of time and allowed it to be conducted next day by S.I., A.P. Maurya. It is also significant to note that the informant was the first witness of the inquest, which had commenced at 11:30 a.m. next day of the incident. Columns in police Form No. 13 are left blank, and the time of lodging of FIR in it is mentioned as 19:30 (7:30 p.m.) which is not the time mentioned in the chik FIR. It is recorded here that, at the time of inquest, informant had informed the S.I. that he had lodged the FIR under 302 I.P.C. at the police station Rani Ki Sarai and therefore there was no reason for mentioning a wrong time in the said document and this fact shows that, in fact, FIR was later on cooked up, after the inquest was over and it was made ante timed. We find support in our view from the deposition of P.W. 3 himself where he had stated that he had reached the police station along with the dead body at 4.30 p.m. and at that time, on the instructions of the I.O., had lodged the FIR but the prosecution came out with a contradictory case of registering the FIR at 6.40 p.m. Thus FIR and its contents are suspect , doubtful, which crumbles prosecution case in its entirely. Another worrying aspect of the FIR is that informant was familiar and he could sign only in Urdu script and therefore, Ext.Ka 1, could not have been prepared by him in his own handwriting in Hindi script. This fact makes the genuineness of the FIR suspect. Last portion of Ext. Ka 1, in conjunction with the evidence of PW 3, probablises defence suggestion that FIR is a sham document. We also find that P.W. 4, 5 and 6 were not declared hostile by the prosecution. Their depositions do not at all support the allegations against the appellant. Their evidences regarding the time and manner of assault are hearsay, which is not admissible at all. Their evidences cannot be utilized for any purpose at all regarding the incident. An inadmissible evidence cannot be admitted for any purpose at all, not even for corroboration. An inadmissible evidence is an inadmissible and we say no more. Genesis of the incident started in the shop of Jalalluddin P.W. 4 which has not been spelt out by him at all. According to his evidence incident occurred 45 minutes later than as alleged by the prosecution, and place of murder was 100-150 paces away from his shop. He had not deposed regarding shooting being made in his shop or presence of blood there. He was the best witness but prosecution has failed to establish the charge through his evidence. His testimony in conjunction with the testimonies of other two witnesses, P.W. 5 and P.W. 6 shattered the prosecution case. We, also find that neither the informant nor any other witnesses was present at the time when the incident occurred. closure of bulb shop of Mohd. Bashir @ Pappu, P.W. 6, absence of bulb, absence of blood on the clothes of the informant, absence of identity of Guddu, whose motorcycle was alleged to have been picked up, contradictory and unnatural statements by informant, lodging of concocted FIR after making the same ante timed etc., all these facts makes informant a wholly unreliable and untrustworthy witness. It is culled out from his deposition that number of injuries is not commensurate with number of accused which is less and therefore participation of three persons in the shooting spree is not a proved fact. Appellant did not participate in the murder is also probablised from the fact that other eye witnesses, PW 4, 5 and 6 did not depose against the appellant by admissible evidence. PW 4, Jalalluddin, was the owner of the barber kiosk,where the incident was alleged to have started and Mohd. Bashir @ Pappu, PW6, was the shop owner at whose shop, informant was alleged to have gone to purchase the bulbs at the time of the incident. Another disquite feature of this appeal is the investigation, which is full of pitfalls and is not above board. Investigating officer had left much to be desired from the very inception. He did not record the statement of the informant at the police station itself soon after lodging of the FIR, although he did only that for the whole of the night after reaching at the spot. He did not even organised raids to apprehend the murderers during the whole night, even though they were resident of the same village where the murder occurred. I.O., even allowed the inquest to be delayed and to be performed by S.I., A.P. Maurya, next day at 11.30 am. Informant was a witness of inquest yet actual time of lodging of FIR is not mentioned in it. In police Form No. 13 columns are left blank , which, in the normal circumstances,where the FIR was already registered, should have been filled up. No attempt was made to obtain ballastic expert reports regarding recovered empties and seized country made pistols. From inside kiosk, no attempt was made to collect signs of firing and bullets , wads etc. although both entry wounds had their exits. No attempt was made by the I.O. to investigate the allegated motive part. No evidence has been spelt out by him as to at what time and date special report under section 157 was dispatched to the concerned Magistrate. An over all picture of the investigation indicates that endeavour to decipher the real truth of the murder was left un-investigated. Lacklustre and intentional delay in performing un-eshewable steps of investigation appallingly erodes the credibility of the statements of the two investing officers PW 8 and PW 9. PW 1, Mushtaq Ahmad and PW 2, Badri, disowned recoveries being made in their presence but the prosecution failed to declare PW 1 hostile, leaving for us two contradictory statements by the same witness. Both PW 1 and PW 2 were categorical in their depositions that no recoveries, neither of the cartridges nor of the blood, were made by the I.O., PW 9, Kashi Nath Singh, in their presence, from any place including kiosk. Another dicey feature of the recoveries is that, according to the deposition of the informant,PW3, he had heard only two shots being fired in the incident. No empties were thrown at the scene by the assailants. How come so many empties and even live cartridges were found at different places on and around the alleged place of shooting remains unexplained. Prosecution did not got proved Ext. Ka 1/Ext. Ka 11 recovery memo, to establish the recovery of country made pistol at the discloser made by the appellant from P.W. 8, who had dictated the same, to establish the charge under section 25 Arms Act. No independent witness was attached with the said recovery. Recovered pistol was not got checked from the ballistic expert for its use in the crime. P.W. 8 and 9 did not know the boundaries of the place of recovery. The recovery was made from an open place assessable to all and sundry from near a road and hence cannot be said to be in personal knowledge of the appellant. It is highly unsafe to base a conviction on such evidences by which the prosecution has failed to proved the charge to the hilt. Having gone through the evidences, chances of planting the weapon can not be ruled out. Autopsy report contradicted ocular testimony of eye witnesses of firing being made by three persons. The two entry wounds had blackening and charring in them, which indicated shooting from a close proximity, probably from point blank range, and therefore, at the worst, only two persons can be attributed the role of shooting down the deceased. When the informant was faced with such difficult question, in an attempt to make his version consistent with the autopsy report, he quickly adjusted the case and deposed that he had heard only two shots which were fired in the incident. This diminishes prosecution allegation of participation by three accused and firing resorted to by three persons. Since the accused who had been falsely implicated is not known, the benefit of doubt had to given to each one of them. Critically appreciating over all picture presented by the prosecution as has been discussed above, the in-escapable conclusion is that the prosecution has failed to discharge its initial burden of proof by cementing appellants guilt to the hilt on both the counts for which he was charged. Forming such an opinion, it is wholly un-necessary for us to discuss defence witnesses and the defence plea set up by the appellant. Closing our discussion,we sum up, that prosecution has failed to bring home the guilt of the appellant home and therefore he deserves acquittal. This Appeal is allowed. Convictions and sentences of the appellant on both the charges, under section 302/34 I.P.C. And 25 Arms Act, recorded by Additional District & Sessions Judge/Fast Track Court No.1, Azamgarh vide his impugned judgement and order dated 25.2.2006, rendered in Sessions Trial No.645 of 2001, State Vs. Sahim and others, (under section 302/34 I.P.C.) and S.T.No. 646 of 2001 State versus Sahim, (under section 25 Arms Act), both relating to police station Rani Ki Sarai, District Azamgarh, are hereby set aside and the Appellant is acquitted of those charges. He shall be released from jail forthwith unless he is incarcerated in other case. Let this judgement be notified to the trial court for its intimation and further action.