MOHAMMAD MIANversusSTATE OF U.P.

                   [2010] 15 (ADDL.) S.C.R. 1288


A                         MOHAMMAD MIAN
                                    v.
                           STATE OF U.P.
                 (Criminal Appeal No. 310 of 2006)
                        DECEMBER 16, 2010
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.]

           Penal Code, 1860 - s.302 and s.307 rlw s.34 - Long
C   standing enmity between the parties - Quarrel leading to firing
    of gunshots by accused which ultimately led to death of PW-
     1's father and grievous injury to his brother, PW-2 - Conviction
     of accused-appellants - Justification of - Held: On facts,
    justified - Though there was apparent confusion in the time
D   factor with regard to the special report, the Police official, who
     testified regarding the dispatch of special report to Magistrate,
     was not even remotely cross-examined in this regard and,
    therefore, no advantage can be taken by defence on account
     of this discordance, if any - It must be taken as proved that
E    the special report had been delivered to the Magistrate the
    same day the incident occurred - PW-2 was gravely injured
    in the incident and his presence, therefore, cannot be doubted
    - Presence of PW-1, the author of the FIR, also cannot be
     doubted - Statement of the investigating officer, when 'fead
F   in the background of the site plan, made it clear that PW-1
     was indeed present at the crucial time - The house of the
    complainants was only 100 feet from the house of accused
    and the incident happened about 10 feet away from the house
    of the accused - Presence of all the witnesses was, therefore,
G   natural at the time when the incident happened - Statements
    of PW 1 and 2 that the firing was from a distance of 10 to 12
    steps (about 15 feet) clearly corresponded to the nature of the
    injuries found on the deceased - Trial court had acquitted the
    accused of the charge of murder primarily on the ground that

H                                 1288
          MOHAMMAD MIAN v. STATE OF U.P.                    1289


 the medical evidence did not support the ocular version of the      A
 incident - The reasons given by the trial court were not well
 considered - 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        B
 the projectiles could have been deflected from their true path
 by the bones or tissues that came along the way- Conviction,
 thus, upheld. •                                              ·

        Appellant no.1 owned a fair price shop in the outer
   portion of his house and supplied/sold various items C
   including sugar. The prosecution case was that pursuant
   to an argument over supply of sugar, appellant no.1 fired
   gunshots at PW-1 's brother (PW-2), which rendered him
   grievously injured; that thereafter PW-1 's father pick~d up
   a quarrel with appellant no.1, whereupon at the instance D
   of appellant no.1,. his sons picked up guns and rushed
   to their roof of their house and each of them fired a shot
   at PW-1 's father in quick succession which led to his
   death.
                                                                E
        The trial court held that the charge against the
   accused under s.302/34 could not be made out as the
   medical evidence did not correspond to the ocular
   version, thus, acquitted all the accused of such charge.
;, The trial court, however, held appellant no.1 guilty under F
   Section 307 IPC for having caused the gun shot injury on
   the person of PW-2 and sentenced him to 6 years R.I., but
   acquitted the other accused of that offence as well.

     Aggrieved, the State preferred an appeal assailing the
 acquittal of the accused whereas appellant no.1 filed a G
 separate appeal challenging his conviction and sentence
 under Section 307 IPC. The High Court set aside the
 acquittal orders of the trial Court, convicting all the
 accused under Section 302 IPC read with Section 34 IPC
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    1290 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A   and sentenced each of them to life imprisonment. The
    criminal appeal filed by appellant no.1 challenging his
    conviction under Section 307 IPC was also dismissed by
    the High Court.

       In the instant appeals, the appellants contended that
8
  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 it could not be said
  that the judgment of the trial court was so perverse
C r against the evidence that interference was called for.
  The appellants further pleaded that the FIR had not been
  lodged at its purported time but infact much later and then
  ante-timed in the light of the fact that the special report,
  as per the FIR itself, had been dispatched to the
  Magistrate a day after the incident. The appellants,
D accordingly, pleaded that this delay had been utilized by
  the prosecution to involve the entire family of appellant
  no.1 in a false case. The appellants also .emphasized that
  the medical evidence did not conform to the ocular
  testimony leading to the conclusion that the incident had
E not happened in the manner suggested by the
  prosecution.

        Dismissing the appeals, the Court

F      HELD: 1. The trial 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
G of 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. [Para 8) [1300-F-G]

      2. The prompt lodging of the FIR is a very significant
H factor in any criminal prosecution. There are several
        MOHAMMAD MIAN v. STATE OF U.P.                1291


paramelters by which the spontaneity of a F.l.R. and the A
prosecu1tion's story as to the time at which it had been
lodged .has to be adjudged, and one of the primary
factors iis the time of the delivery of the special report to
the Magistrate, as it is expected that he being
unconm~cted in any manner with the investigation or the B
prosecution would be an independent person to endorse
as to th1~ time that a copy of the FIR had been received
by him. It has come in the evidence that the incident had
happened at 7 a,m. on the 24th April of 1980. The FIR
I
(purporte·dly) had been lodged at Police Station, about 4 C
km. away at 9.10 a.m. and as per the column in the
statutory form dealing wlth F.l.R's, the copy of the special
report ha1d been dispatched from the Police Station on
the 25th April, 1980 to the Magistrate at Bareilly at a
distance of 39 Kms. 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
prosecu1tion story as well. However, PW-7-Head
Constabl,e, categorically stated that the copy of the
special report had been dispatched from the Police
Station 011 the 24th April, 1980 through a Constable and E
the said Constable had returned to the police station at
9:15 p.m. on the same day after delivering the special
report ancl that both the departure and arrival reports had
been reccirded in the daily diary of the Police Station.
Though tl1e appellant's counsel emphasized that the F
statement of PW-7 was at variance with the entry made
in the FIR and as such was· an after thought, but PW-7
was not even remotely cross-examined on the apparent
confusioni in the time factor with regard to the special
report. T'herefore, no advantage can be taken by the G
defence 1:>n account of this discordance, if any. It must
be take11 as proved that the incident had indeed
h_appener:J at 7 a.m., the FIR had been recorded at 9.10 a.m.
and the special report had been delivered to the
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    1292 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   Magistrate the same day. [Para 9] [1300-H; 1301 ·A·H]

         3. PW-2 was gravely injured in the incident. His
    presence, therefore, cannot be doubted. The medical
    evidence with respect to his injuries reveal five gun shot
    wounds of entry on the spine with a corresponding
8
    wound of exit over the right buttock. The doctor had
    examined PW-2 at 12.25 p.m. on 24th April, 1980 and
    opined that the injuries could have been suffered within
    six hours. This corresponds fully with the prosecution
C   story. It is this injury which has led to the conviction of
    appellant no.1 under Section 307 IPC. The presence of
    PW-1, the author of the FIR, can also not be doubted. It
    is true that in the FIR recorded at his instance, he does
    not speeifically allude to his pre$ence at the spot. A
    perusal of the FIR, however, reveals that read as a whole,
D   it makes out that he was indeed an eye witness. PW-6,
    one of the investigating officers, who had prepared the
    site plan and had also carried out the preliminary
    investigations at the site, deposed in his examination-in-
    chief that he had also recorded the statement of PW-1 at
E   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 PW-1 was indeed p-:esent at the
F   crucial time. [Para 10] [1302-A-F]

      4. The evidence of PW-3, the third eye witne1ss, is said
  to be a totally independent one. It is seen from the site
  plan that the presence of PW-3 also figures as having
G seen the murder from outside the house of 'IC', a very
  short distance away. Therefore, 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 fi:tct in his
  cross-examination. One cannot, however, ignoru the sad
H
         MOHAMMAD MIAN v. STATE OF U.P.               1293


  but basic truth that so-called independent witnesses tend A
  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, the house of the complainants B
  was only 100 feet from the ttouse of accused and the
  incident happened about 10feet away from the house of
  the acc'used. The presence of .all the witnesses was,
  therefore, natural at the time when the incident happened
  and that in any case PW-2 was· a stamped witness, c
  against whom no suspicion could be raised. [Para 10]
· [1302-F-H; 1303-A-D]

      5. The three eye-witnesses have categorically stated
 that there was enmity between the parties since long. It
 appears that the dispute with regard to the 1 Kg. sugar D
 had merely precipitated the festering animosity. All the
 witnesses have stated as to the manner in which first
 appellant 110.1. had shot PW-2 and when his fathet:' had
 come forward. to see what had happened, he had been
 shot dead by the other two.accused from the roof of their E
 residential house. [Para 11] [1303-E-F]

      6. 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 F
 incident. The reasons given by the trial court were not
 well considered. These observations of the trial court are
 meaningless in the light of the ocular evidence when read
 in the context of incident as it happened. The post-
 mortem examination of the dead body was conducted by G
 PW-5 who opined that the exit of injury No.1 was at a
 marginally higher level tha11 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
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    1294 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.

A doctor also opined that there were fractures of the left
  humerus bone, the 5th rib on the right side and the 7th
  costal cartilage. Country made weapons had been used
  and the performance of these weapons being
  unpredictable and uncertain, the trajectory of the bullet
B alone would not be a safe basis for assessing the entire
  evidence more particularly as the projectiles could have
  been deflected from their true path by the bones or
  tissues that came along the way. [Paras 12, 13 and 14)
  [1303-G-H; 1304-A; 1305-D; 1306-E-H]
c        Modi's Medical Jurisprudence and Toxicology, Twenty-
    third Edition at page 724 - referred to.

       7. There is yet another circumstance which is
  extremely relevant. It is the case of the prosecution that
D the gun shots had been fired from the roof of the house
  of appellant no.1 which was 10 or 12 feet high. It has
  come in the statements of PW nos.1 and 2 that the firing
  was from a distance of 10 to 12 steps which would mean
  15 feet. This clearly corresponds to the nature of the
E injuries found on the dead body. The trial court seems
  to have been greatly influenced by the fact that the
  prosecution story that the shots had been fired from the
  roof was deliberately created by the prosecution as
  otherwise appellant no.1 's house would not have been
F in their direct line of sight. PW-1 candidly admitted that
  the shop of appellant no.1 was not visible from their
  house as there was a mosque in between but after 10 feet
    or so beyond the grave located near the gate, the shop
  of the accused could be seen. In this situation, the normal
G tendency of a witness who had heard the sound of
  repeated gun shots close to his house would be to move
  in that direction. This is what PW-1 apparently did as after
  hearing the sound of the first shot fired at PW-2, both the
  deceased and PW-1 had been attracted towards that way
H leading to the murder. It is also seen from the site plan
        MOHAMMAD MIAN v. STATE OF U.P.                  1295


which had been prepared contemporaneously that the A
gun shots had 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.
Therefore, no fault can be found with the judgment of the B
High Court. [Para 14] [1307-D-H; 1308-A-B]

    CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 310 of 2006.

     From the Judgment & Order dated 7.10.2005 of the High C
Court of Judicature, Allahabad at Allahabad in Criminal Appeal
No. 2731 of 1981 and in Government Appeal No. 907of 1982.

                            WITH

Crl. Appeal No. 282 of 2006.                                    D
                                                  ,,    .


     Ranjit Kumar, Abhay Kumar, Rajesh       Anari~. Tenzing
Tsering, Madhusmita Singh for the Appellant.

    Pramod Swarup, Ameet Singh, Alka Sinha, Anuvrat             E
Sharma for the Respondent.

    The Judgment of the Court was delivered by

     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
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    1296 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

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-
  1nspector Sri Nivas Sharma immediately reached village
  Ferozpur and made the necessary inquiries and drew the

H
          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
    1298 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


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
   cha 1'1: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
H
          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
1Ofeet '.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
    1300 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

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
H
          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.


A      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
H
          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

                                                                     H
    1304 SUPREME COURT REPORTS [2010] 15 (ADDL) S.C.R.

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
B
         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
c        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.
D        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
E        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
F      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
G        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
H
         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
                                                                  c
     to be at the roof top and first alleged to have fired at Riasat
     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:
                                                                  E
           "(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.

                                                                  H
    1306 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A             (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.
B
              (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.

c             (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
D       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:

H
          MOHAMMAD MIAN .V. STATE OF U.P.                     1307
              [HARJIT SINGH BEDI, J.]

     Direction from which the Weapon was fired.                         A

            "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