Mohammad Mian v. State of U.P.
HARJIT SINGH BEDI, J. 1. This judgment will dispose
of Criminal Appeal Nos.310 of 2006 and 282 of 2006. They F,
arise out of the following facts:
2. Mohammad Mian, one of the appellants herein, was ·
running a fair price shop in the outer portion of his house
situated in village Ferozpur, District Bareilly. At about 7 a.m. G
on the 20th of April 1980 lqrar Mohammad son of Firasat
Husain PW-2 went to the fair price shop to buy sugar but
instead of supplying 2 kgs. of sugar as per the ration card,
Mohammad Mian gave only 1 Kg. Firasat Husain then went to
Mohammad Mian's shop and remonstrated with him and asked
A him as to why he had supplied only half the quantity of sugar
that was due on his card. Mohammad Mian, however, abused
him and told him that he would give only that quantity and he
could take it or leave it as he wished. Mohammad Mian
immediately thereafter fired a shot at Firasat Husain with his
B gl.111 hitting him on his thigh and as he turned backwards
Mohammad Mian's son, Zamir Mian, fired at him with a country
made pistol hitting him on the upper right gluteal region on
which Firasat Husain fell down on the ground. On hearing the
sound of the firing, K1yasat Husain, father of Firasat Hussain
c went out of his house and moved in that direction and on seeing
his son lying injured, he questioned Mohammad Mian which
resulted in a quarrel between them. Mohammad Mian thereupon
asked his sons Ahmad Mian and Shamim Mian to kill Riyasat
Husain on which Ahmed M(an picked up a gun and Shamim
0 Mian a country made pi~tb\and rushed to.the roof of their house
and as Riyasat Husain'turnecl to move away, each of them fired
a shot at him in quick succession on which he fell down. On
hearing the sound of the firing, Sharafat Husain, PW-1 too left
his house and proceeded towards the scene of occurrence. The
E incident was also witnessed by Sabir Husain, Mohd. Aslam,
Rahat Husain and Summeri PW-3, who too were going to the
shop for purchasing sugar. Sharafat Husain immediately went
to his father who was lying in a precarious condition and
gasping for breath and removed him to his house but he
succumbed to his injuries within a short time. Firasat Husain,
F the injured was also brought from the place where he lay.
Leaving his father's dead body and his injured brother in the
family home, Sharafat Husain left for Police Station, Shahi at
a distance of about 4 miles from village Ferozpur and lodged
the FIR at 9.10 a.m. It is the case of the defence that the special
G report was delivered to the Magistrate the next day i.e. the 25th
April, 1980. After receiving the information of the murder, Sub-
1 nspector Sri Nivas Sharma immediately reached village
Ferozpur and made the necessary inquiries and drew the
MOHAMMAD MIAN v. STATE OF U.P. 1297
[HARJIT SINGH BEDI, J.]
inquest report. He also dispatched the dead body for the post- A
mortem examination. Firasat Husain was also sent to the
District Hospital for treatment. The police officer also prepared
the site plan and also collected blood stained earth from two
places, one portion from the scene of occurrence and another
from the house of the deceased where the dead body had been B
brought. Firasat Husain was medically examined by Dr. J.N.
Bhargava at the District Hospital, Bareilly at 12.25 p.m. on the
2~th April, 1980 with two injuries, one being· a gun shot wound
entry and the other its exit. Riyasat Husain's body was. also
subjected to a post-mortem examination at 2.30 p.m. on the c
25th April, 1980, and nine injuries were found thereon, four gun
shot wounds of entry and four of exit whereas the 9th was an
abrasion. On an internal examination on the body, the humerus
and a rib were found to be fractured on account of the gun shot
injury. On the completion of the investigation, the accused i.e. 0 Mohammad Mian and his sons Ahmad Mian, Shamim Mian and
Zamir Mian were committed to the Court of Sessions for
offences punishable under Section 302 and 307 of the IPC and
as they pleaded not guilty, they were brought to trial..
3. The prosecution in support of its case, examined three E
eye witnesses, Sharafat Husain PW-1, Firasat Husain PW-2
and Summeri PW-3, Dr. J.N. Bhargava, PW-4 who had
examined Firasat Husain for his injuries, Dr. K.S. Tiwari, PW-
5 who had conducted the autopsy on the dead body, PW-6 Sub
Inspector Srinivas Sharma the main investigating officer and F
PW-7 Head Constable Raghvendra Pal Singh who had
recorded the F.l.R. and dispatched the special report to the
Magistrate. The accused denied the allegations leveled against
them and pleaded that they had been implicated in a false case.
G 4. The trial court on a consideration of the evidence (and
while believing most of the prosecution story) held that the
· charge against the accused under Section 302/34 could not be
made out as the medical evidence did not correspond to the
ocular version. All the accused were acquitted of this charge. H
A The trial court, however, held Mohammad Mian guilty for the
offence punishable under Section 307 of the IPC for having
caused the gun shot injury on the person of Firasat Husain and
sentenced him to 6 years R.I., but acquitted the other accused
of that offenc~ as well.
B 5. Aggrieved by the judgment aforesaid, the State
preferred an appeal assailing the acquittal of the accused
·whernas the Mohammad Mian filed ·a separate appeal
cha1'1:mging his conviction and sentence under Section 307 of
C the IPC. The High Court acutely conscious of the fact that it was
largely dealing with an appeal against acquittal and the
limitations that went with it, re-appraised the evidence and
observed that the three eye witnesses, particularly the injured
Firasat Husain, could not be disbelieved. The Court noted that
though in the FIR Sharafat Husain had not stated that he had
D witnessed the murder of his father, but the fact that the site plan
had been prepared at his instance showing that he had
witnessed the occurrence from near the 'baithak' of Chhotey
Pradhan, he was indeed an eye witness to the murder. The
Court observed that the distance between the house of the
E complainant party and the accused was only 60 or 70 paces
(which would make it about 100 feet) and this short distance
and the sequence of events that preceded the firing made it
clear that Sharafat Husain too had witnessed the incident. The
Court also found that after receiving the firearm injury, Firasat
F Husain had fallen at a distance of 10 feet from the fair price
shop of Mohammad Mian and he was, therefore, in an apparent
position to witness the fatal assault on his father. Likewise, the
Court observed that PW-3 Summeri was a trust worthy witness
as he too had se~n the incident from the 'baithak' of Chhotey
G Pradhan after being attracted by the altercation between Firasat
Husain and Mohammad Mian. The Court finally concluded that
the eye witness account could not be faulted in any manner. The
High Court then dealt with the medical evidence vis-a-vis the
ocular evidence and observed that as per the prosecution story
MOHAMMAD MIAN v. STATE OF U.P. 1299
[HARJIT SINGH BEDI, J.]
the fatal shots had been fired at the deceased by Ahmad Mian A
and Shamim Mian from the roof of the house which was about
1 O feet '.n height. The Court observed that merely because the
wounds of entry and exit were either parallel to each other or
in one case the exit wound was slightly higher than the wound
of entry would not detract from the other evidence as it could B
not be said with certainty as to the posture which the deceased
and the assailants were applying when the shots had been fired.
The Court also observed that the FIR had been lodged promptly
and. the special report also delivered within a reasonable time
which testified to the truthfulness of the prosecution story. The c
Court, accordingly, set aside the order of the trial court
acquitting Mohammad Mian, Ahmad Mian and Shamim Mian
for the offence punishable under Section 302 read with Sec
tion 34 of the IPC and sentenced each of them to imprisonment
for life. The Criminal Appeal filed by Mohammad Mian 0 challenging his conviction under Section 307 was also
dismissed. It was also directed that the sentence of the
accused were to run concurrently. The two appeals mentioned
above have been filed impugning the judgment of the High'
Court. E
6. Mr. Ranjit Kumar, the learned senior counsel for the
appellants, has raised several arguments during the course of
hearing. He has pointed out that the High Court had ignored
the basic fact that it was dealing with an appeal against
acquittal in so far as the charge of murder was concerned and F
it could not be said that the judgment-of the Trial Court was so
perverse or against the evidence that interference was called
for. He has further pleaded that the FIR had not been lodged
at its purported time but intact much later and then ante-timed
in the light of the fact that the special report, as per the FIR itself, G .
had been dispatched to the Magistrate on the 25th of April,
1980 i.e. a day after the incident. He has, accordingly, pleaded
that this delay had been utilized by the prosecution to involve
the entire family of Mohammad Mian in a false case, though
the circumstances showed that neither PW-1 nor PW-3 had H
A been present at the spot. It has also been emphasized that the
medical evidence did not conform to the ocular testimony
leading to the conclusion that the incident had not happened
in the manner suggested by the prosecution.
8 7. Mr. Pramod Swarup, the learned senior counsel
· representing the State of Uttar Pradesh, has, however,
controverted these submissions and has pointed out that the
distance between·the house of the deceased and the shop and
house of ' 1e accused was only 70 paces or 100 feet and on
C account of this very short distance and the time of the incident
being 7 a.m., the presence of the eye witnesses at home was
to be expected. It has also been pleaded that the presence of
Firasat Hussain who had been grievously injured with a firearm
could not, in any case, be disbelieved and in the light of this
fact even assuming there was some discrepancy in the medical
D evidence vis-a-vis the ocular one, the same could be ignored.
It has, further, been submitted that there was no delay in the
lodging of the FIR or the delivery of the special report in the
light of the statement of Head Constable Raghvendra Prasad
Singh PW-7 who had deposed that the special report had been
E dispatched to the Magistrate within a very short time, with the
result that there was no time to cook up a false story.
8. We have considered the arguments advanced by the
learned counsel for the parties. It will be noticed that the trial
F court had given findings in favour of the prosecution on virtually
all aspects, but had ultimately acquitted the accused of the
charge of murder almost exclusively on the ground that the
medical evidence did not conform to or support the ocular
version. The High Court has, merely, reversed this aspect of
G the trial court judgment and held that a case of murder was also
made out against three of the accused, that is the present
appellants. It is in this background that the entire matter would
have to be examined by us.
9. Undoubtedly, the prompt lodging of the FIR is a very
MOHAMMAD MIAN v. STATE OF U.P. 1301
[HARJIT SINGH BEDI, J.]
significant factor in any criminal prosecution. There are several A
parameters by which the spontaneity of a F. I. R. and the
prosecution's story as to the time at which it had been lodged
has to be adjudged; and one of the primary factors is the time
of the delivery of the special report to the Magistrate, as it is
expected that he being unconnected in ahy manner with the B
investigation or the prosecution would be an independent
person to endorse as to the time that a copy of the FIR had
been received by him. It has come' in the evidence that the
incident had happened in village Ferozpur at 7 a.m. on the 24th
April of 1980. The FIR (purportedly) had been lodged at Police c
Station, Shahi, about 4 km. away at 9.10 a.m. and as per the /
column in the statuto1y form dealing with F.l.R's, the copy of the
special report had been dispatched from the Police Station on
the 25th April, 1980 to the Magistrate at Bareilly at a distance
of 39 Kms .. Undoubtedly, this date, if accurate, would arouse 0 great suspicion about the time that the FIR had been lodged
and ipso facto some suspicion about the prosecution story as
well. We have, however, gone through the evidence of PW-7
r Head Constable Raghvendra Prasad Singh. This police official
categorically stated that the copy of the special report had been
dispatched from the Police Station on the 24th April, 1980 E
through Constable Mahesh and the said Constable had
returned to the police station at 9:15 p.m. on the same day after
delivering the special report and that both the departure and
arrival reports had been recorded in the daily diary of the Police
Station. Mr. Ranjit Kumar has, however, emphasized that the F
_statement of PW-7 was at variance with the entry made in the
FIR,, (as noted above) and as such was an after thought. It is
extremely significant, however, that PW-7 was not even
remotely cross-examined on the apparent confusion in the time
factor with regard to the special report. We are, therefore, of G
the opinion that no advantage can be taken by the defence on
account of this discordance, if any. We must therefore take it
as proved that the incident had indeed happened at 7 a.m., the
FIR had been recorded at 9.10 a.m. and the special report had
been delivered to the Magistrate the same day. H
1302 SUPREME COURT REPORTS [201J) 15 (ADDL.) S.C.R.
10. We now examine the other evidence in the above
background. It bears notice that PW-2 Firasat Husain was
gravely injured in the incident. His presence, therefore, cannot
be doubted. We have gone through the medical evidence with
respect to his injuries and find five gun shot wounds of entry
B on the spine with a corresponding wound of exit over the right
buttock. The doctor had examined Firasat at 12.25 p.m. on the
24th April, 1980 and opined that the injuries could have been
suffered within six hours. This corresponds fully with the
prosecution story. It is this injury which has led to the conviction
c of Mohammad Mian under Section 307 of the IPC. We also
see that the presence of PW-1 Sharafat Husain, the author of
the FIR, can also not be doubted. It is true that in the FIR
recorded at his instance, ~ does not specifically allude to his
presence at the spot. A perusal of the FIR, however, reveals
0 that read as a whole, it makes out that he was indeed an eye
witness. We have examined the evidence of PW-6 Shri Nivas
Sharma, one of the investigating officers, who had prepared
the site plan and had also carried out the preliminary
investigations at the site. He deposed in his examination-in
chief that he had also recorded the statement of Sharafat E Husain at the spot and had prepared the site plan on his
instructions and had also shown (in the site plan) the place from
where he had seen the incident. When the statement of this
witness is read in the background of the site plan, it is clear
that Sharafat Husain wa:; indeed present at the crucial time.
F Mr. Ranjit Kumar has also drawn our attention to the evidence
of Summeri PW-3, the third eye witness, who is said to be a
totally independent one. He has referred us to his cross
examination where he says that he had not made any statement
to the Darogaji under Section 161 of the Cr.P.C. To our mind,
G this appears to be an attempt to help the defence as the
Darogaji referred to i.e. PW-6 categorically stated that he had
recorded his statement on the date of the murder. We also see
from the site plan that the presence of PW-3 also figures as
having seen the murder from outside the house of Chhotey
MOHAMMAD MIAN v. STATE OF U.P. 1303
[HARJIT SINGH BED!, J.]
Pradhan, a very short distance away. To our mind, therefore, A, .
the presence of this witness can also not be doubted.
Concededly, PW-6 did not record the statement of any of the
persons of the immediate neighbourhood. He admitted to this
fact in his cross-examination. We cannot, however, ignore the
sad but basic truth that so-called independent witnesses tend . B
to stay far away and are not willing to come forth as they often
face grave consequences. The prosecution has therefore,
perforce, to'fall back on the testimonies of witnesses who are
friends or family members of the victim. In the present case,
we find that the house of the complainants was only 100 feet c
from the house of accused and the incident happened about
10 feet away from the house of the accused. As already
mentioned above, the presence of all the witnesses was,
therefore, natural at the time when the incident happened and
··that in any case Firasat Husain was a stamped witness, D
against whom no suspicion could be raised.
11. We have also gone through the depositions of the three
eye-witnesses. They have categorically stated that there was
enmity between the parties since long. It appears that the
dispute with regard to the 1 Kg. sugar had merely precipitated E
the festering animosity. All the witnesses have stated as to the
manner in which first Mohammad Mian had shot Firasat Husain
and when his father had come forward to see what had
. .happened, he had been shot dead by the other two accused
from the roof of their residential house. The learned counsel for F
the appellants has, however, referred us to some
inconsistencies inter se the statements of these three
witnesses. To our mind, they are so·insignificant that they call
for no serious discussion as they are bound to appear in the
statement of any witness. G
12. The trial court had acquitted the accused of the charge
of murder primarily on the ground that the medical evidence did
not support the ocular version of the incident. To our mind, the
A reasons given by the trial court were not well considered. It has
been observed by the Trial Court thus:
"Moreover, the medical evidence also does not fit in
the prosecution story in this case even if it is presumed
although reluctantly that the fatal shots were fired from the
roof top by the accused Ahmad Mian and Shamin Mian.
According to Dr. K.S.Tiwari who conducted the post
mortem examination of the deady body of Riasat Husain
there were four gun shot wounds of entry on the back of
chest of the deceased which are injuries no.1 to 4 in the
post mortem examination report Ex. Ka-3. Their
corresponding wounds of exit are injuries no.5,6,7 and 8
respectively. According to PW5 Dr. K.S. Tiwari the exit
wounds of injury No.1 is slightly higher than the wound of
entry. This particular injury cannot be caused from roof top.
The witne~s PW.1 Sharafat Husain stated that the height
of the roof from where the fatal shots were fired is about
10' and there is also a Mundair thereon about 1 Yi' or 2'
high. This witness also stated that the deceased Riasat
Husain was at a distance of 6 or 7 stops from the door of
the shop from the roof of which the accused Shamim Mian
and Ahmad Mian fired the shots. This topography makes
it certain that injury No.1 torresponding to its wound of exit
injury no.5 cannot be caused from the roof top. The witness
. PW5 Dr. K.S.Tiwari further stated that injury No.2 and injury
No.4 have their exit wound at the same level. This witness
further says that the exit wound of injury No.3 is slightly on
a lower plan. Thus the position of the wounds of entry and
exit is such that it is difficult to believe that the firing in which
Riasat Husain (illegible)was caused from the roof top as
alleged by the prosecution. It appears that the firing actually
took place from the shop itself and the two accused Ahmad
Mian and Shamim Mian were elevated to the roof top
simpfy to b~ seen by the witnesses from point 'F' and in
this process the prosecution evidence lost its credibility
MOHAMMAD MIAN v. STATE OF U.P. 1305
. [HARJIT SINGH BEDI, J.]
and led the court only to a confusion which was A
~ggravati:id all the more by the contents of the FIR
Ex.Ka01. It became and doubtful under these
circumstances to ascertain which of the two sets of
accused fired the fatal shot. The court cannot presume that
it were the accused Mohammad Mian and Zamir Mian B
standing at the shop fired the fatal shots because they are
not stated by the witnesses to have fired any shot at Riasat
Husain deceased. The other set of the two accused
Ahmad Mian and Shamim Mian are unautmously alleged
to be at the roof top and first alleged to have fired at Riasat c
Husain at his chest and then at his back but by medical
evidence it is not probable that the fatal shots were at all.
fired from the roof top."
13. To our mind, these observations are meaningless in
the light of the ocular evidence when read in the context of D
·incident as it happened. The post-mortem examination of the
dead body was conducted by PW-5 Dr. K.S.Tiwari on the 25th
April, 1980 at 2.30 p.m. He had found the following injuries
thereon:
"(1) Gun Shot wound of entry 1 cm x 1 cm x chest
cavity deep on back of scapula lateral end, margins
inverted and ragged. No blackening or tattooing present.
Under the injury humerus bone was fractured on upper part.
'
(2) Gun sh6t wound of entry 1 cm x 1 cm x cavity F
deep on left side back of chest 5 cm below injury No.1.
Margins inverted and ragged. No blackening or tattooing
present.
(3) Gun shdt wound of entry 1 cm x 1 cm x cavity G....
deep on left side back of chest 8 cm away from middle
• and 19 cm below root neck. Margins inverted and ragged.
No blackening or tattooing present.
1306 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
(4) Gun shot wound of entry 1 cm x 1 cm x caity deep
on left side back 10 cm below injury No.3.
(5) Gun shot wound of exit 1 .2 cm x 1 cm on the front
of left shoulder 2 cm below top of shoulder corresponding
to injury No.1, margins everted.
(6) Gun shot wound of exit 1.2 cm x 1.1. cm on front
of chest left side upper part 4 cm above left nipple
corresponding to injury No.2 margins everted.
(7) Gun shot wound of exit on left side chest 6.5 cm
below left nipple corresponding to injury No.3, margins
everted.
(8) Gun shot wound of exit 1.2 cm x 1 cm on front of
chest left side 2.1 cm from midline and 19 cm from
umbilicus corresponding to injury No.4, margins everted.
(9) Abrasion 2 cm x 2 cm on outer aspect of left
buttock 10 cm below anterior superior iliac spine."
E 14. The doctor opined that the exit of injury No.1 was at a
marginally higher level than the wound of entry, that the exit and
entry wounds of injury No.2 were at the same level whereas the
exit wound of Injury No.3 and 4 were at a slightly lower level than
the wounds of entry. The doctor also opined that there were
F fractures of the left humerus bone, the 5th rib on the right side
and the 7th costal cartilage. We must observe that country
made weapons had been used and the performance of these
weapons being unpredictable and uncertain, the trajectory of
the bullet alone would not be a safe basis for assessing the
entire evidence more particularly as the projectiles could have
G been deflected from their true path by the bones or tissues that
came along the way. This is what Dr. Modi has to say in Modi's
Medical Jurisprudence and Toxicology, Twenty-third Edition at
page 724:
MOHAMMAD MIAN .V. STATE OF U.P.
[HARJIT SINGH BEDI, J.]
Direction from which the Weapon was fired.
1307
"The question regarding the direction of fire, whether
from right to left or from front to back is of medico-legal
importance. To ascertain this, it is necessary to know the
position of the victim at the time of the discharge of the 8 bullet, when a straight line drawn between the entrance and
exit wounds and prolonged in front generally indicates the
line of direction. In· some cases, it is difficult to determine
the direction as the bullet is so often deflected by the
tissues that its course is very irregular, also when the bullet C
wobbles."
There is yet another circumstance which is extremely relevant.
It is the case of the prosecution that the gun shots had been
fired from the roof of the house of Mohammad Mian which was
10 or 1-2 feet high. It has come in the statements of Sharafat D
Husain and Firasat Husain that the firing was from a distance
of 10 to 12 steps which would mean 15 feet. This clearly
· co~responds to the nature of the injuries foµnd on the dead ,
body. The trial court seems to have been greatly influenced by
the fact that the prosecution story th~t th'e shots had been fired E
frem the roof was deliberately created by the p~osecution as
otherwise Mohammad Mian's house would not have been in
their direct line of sight. We have, however, considered this
aspect in the light of the statement of PW-1. He candidly
admitted that the sho~ of Mohammad Mian was not visible from F
their house as there was a mosque in between but after 10 feet
or so beyond the grave located nearthe gate, the shop of the
accused could be seen. In this situation, we find that the normal
tendency of a witness who had heard the sound of repeated
gun shots close to his house would be to move in that direction. G
This is what Sharafat Husain apparently did as after hearing
the sound of the first shot fired at Firasat Husain, both the
deceased and Sharafat had been attracted towards that way
leading to the murder. We also see from the site plan which
·.had been prepared contemporaneo.usly that the gun shots had
H.
-~ ~-
1308 SUPREME COURT REPORTS [2010) 1'5 (ADDL.) S.C.R.
A been fired on the deceased from the roof of the house. The
finding of the trial court, therefore, that the prosecution had
changed the location of the two accused to bring them on the
roof, was speculative. We are, therefore, of the opinion that no
fault can be found with the judgment of the High Court. The
.B appeals are, accordingly, dismissed.
B.B.B. Appeals dismissed.
<Ena of 201 o