Judgment date: 15 June 2023
Citation Criminal appeal No. 1089 of 2011
Bench: V. Ramasubramanian, Pankaj Mithal
MOHD.MUSLIM …………………………………………………APPELLANT
STATE OF UTTAR PRADESH (NOW UTTARAKHAND) ……RESPONDENT
Mr. Prafulla Kumar Behera, ……… learned advocate for APPELLANT
Mr. Jatinder Kumar Bhatia, ……… learned Advocate-on-Record for RESPONDENT.
Statutes & Provisions referred –
- Indian Penal Code: (S. 302) – Punishment for Murder
- The criminal procedure code, 1973: (S. 313) – Court has the power to examine the accused.
Introduction:
In the murder case of Altaf Hussain conviction happened of the Father and the Son, for the offence of murder under section 302 of IPC 1860. They were sentenced to life imprisonment and a fine of 20,000/- each, for their involvement in the assault and subsequent death of Altaf Hussain, and in default of payment of the amount they have been ordered to go for a further six Signature not verified months of rigorous imprisonment. This incident occurred in 1995 within the jurisdiction of police station Mangalore.
Issue:
- Whether the accused convicted for the murder under section 302 of IPC 1860?
- Whether the evidence that has been shown before the Hon’ble Court is credible?
- Whether the FIR lodged against the convicted father and son was authenticated?
- What did post mortem report say?
Facts:
- Incident occurred on 4/8/1995, within the jurisdiction of police station Mangalore.
- The Deceased Altaf Hussain father of Salim Ahmad, had a land dispute with the accused-appellants, and there was animosity between them.
- The proceeding related to the said land dispute was already pending before the Consolidation officer.
- Altaf Hussain was on his way to attend proceedings pending before the Consolidated officer related to the land dispute when he was attacked by the accused appellants with a tabal and axe.
- The deceased raised an alarm, and two individuals Tahir, son of Md. Saddiq and Md. Afzal son of Niyaz Ahmad, came from behind and tried to apprehend the accused, but they managed to escape.
- The accused left behind a blanket and a cycle at the scene of the crime.
- The FIR was lodged by the deceased’s son, Salim Ahmad, around 9:50 Am on August 4, 1995.
- The investigating officer – Anil Kumar prepared the inquest report, site plan, one pair of rubber shoes, slipper, blanket, and cycle.
- Sub-inspector- Om Veer Singh, prepared a letter to the chief medical officer for post-mortem report.
- Dr, Sudhir Kumar Dhaundhiyal, who conducted the post-mortem report died in the meantime.
- But there were allegations of interpolation and ante-timing in the FIR. The original FIR showed clear signs of alteration, with the time changes from 1:50 PM to 9:00 AM and PM converted to AM. The Defence argued that this alteration raised doubt about the authenticity of the FIR.
- The court noted that the FIR is crucial evidence in a criminal case, especially in a murder case. The interpolation and ante-timing of the Fir cast doubt on its authenticity and weaken its evidentiary value. Citing a previous case, the court stated that such infirmities in the FIR can lead to the loss of its evidentiary value and entitle the accused to the benefit of the doubt.
- The court also highlighted other discrepancies and contradictions in the evidence and testimonies. The conduct of the deceased’s son and nephew was deemed unnatural, as they did not attempt to save their father or provide medical aid. They rushed to lodge the FIR instead.
- Additionally, there were no credible eyewitnesses to the incident, and the alleged belongings of the accused-appellants found at the scene were not produced before the court.
Contentions
- The accused appellants, father, and son, were convicted for an offense under section 302 of IPC and sentenced to life imprisonment.
- The Jurisdiction of the incident is Police Station Mangalore
- The deceased, Altaf Hussain, had a land Dispute with the accused-appellant and they allegedly assaulted him with a tabal. And axe while he was on his bicycle.
- The accused-appellants fled the scene, leaving behind their blanket and cycle.
- The Informant, Salim Ahmad, filed a written complaint and a First Information Was Registration based on the complaint.
Arguments
Appellant’s Side:
- The learned advocate argued that the FIR had been ante-timed and there was interpolation in it.
- The deceased was accompanied by his son and nephew, who were following him on his own cycle, and they were a little behind him but none of them tried to save the deceased from the assault neither they provide any medical care, instead they rush to lodge the FIR against accused-appellant.
- That the absence of independent eyewitnesses and the contradictory statements of witnesses raised doubt about the accused appellant’s involvement in the crime.
- Only Tahir was available there but he was not examined
- The statement of Afzal as an eye witness was contradictory.
They questioned the authenticity of the recovered items, the conduct of the son and nephew of the deceased, and the timing of the incident as stated in FIR.
Prosecution’s side:
- The land dispute between the deceased, Altaf Hussain, and the accused-appellants and that the accused harbored a grudge against the deceased due to this dispute.
- The prosecution presents the claim that the accused-appellants were present at the scene of the crime when Altaf Hussain was allegedly assaulted.
- The prosecution relies on the testimony of the deceased’s son and nephew, who were purportedly present at the scene.
- Prosecution presents the recovery of an axe and tabal from the accused-appellants, which they claim were the weapons used in the assault on the deceased.
- The prosecution argued that the accused-appellants had the motive to harm the deceased due to the land disputes
Defects of law
- Ante Timing of FIR but there were clear signs of interpolation in the mentioned timing in FIR
- Delay in sending the chick FIR report to the court
- Lack Of independent eyewitnesses weakens the case and created doubt about the accuracy of the events described.
- The body for received in the evening and that’s why the post-mortem was done in next morning.
- Different names of the weapons stated, no clarity about the weapons use in the assault.
- Non – Production of the recovered item i.e., Blanket and cycle which were allegedly left behind by accused-appellants were not produced before the court. This creates doubt about the connection between the accused and the prosecution’s case
- Contradictory Statements and unnatural Behaviour of the deceased Salim Ahmad’s nephew and the son
- One of the independent witnesses Tahir, who allegedly tried to save the deceased, was not examined in the court. This omission raises the question of the completeness of the investigation and the prosecution’s efforts to present all relevant evidence.
All the above defects of the law were not clear and created doubt on the Respondent’s reliability as a witness, the accuracy of the event due to no independent witness, and doubt on authenticity and accuracy of the FIR weakening the prosecution’s case.
Judgment
The Hon’ble Supreme Court while dealing with this murder case under section 302 of IPC 1860 considered that:
- There is interpolation in the FIR, with the time changes from 1:50 PM to 9:00 AM. This raised doubt about the authenticity of the FIR and its evidentiary value.
- There is a lack of credible eyewitnesses,
- There are Contradictory statements of witnesses and the conduct of the son and nephew of the deceased.
- The recovery of the alleged items belonging to the accused-appellants was not properly established as they were not produced in court or identified by the accused.
- Court also observes the unnatural behavior of the deceased’s relatives, and found insufficient evidence to establish the guilt of the accused-appellants.
Based on the overall observation, the court doubted the presence of the son and nephew of the deceased at the scene and found insufficient evidence to establish the guilt of the accused-appellants. And therefore, the court acquitted the accused-appellants, setting aside their conviction and sentence and the court has given the benefit of the doubt to the accused appellants.
Inference:
Based on the facts and arguments the following point has been observed:
- There was a dispute between accused- appellants regarding the land dispute that indicates the motive of the crime
- The deceased son and nephew didn’t attempt to save the deceased or provide medical aid but rushed to lodge FIR which was an unnatural act.
- The FIR filed by the deceased son was suspected due to interpolation and ante timing and casted doubt on its authenticity.
- There was no credible independent eyewitness except Tahir, but he was not examined.
- The contradictory statements given by the witnesses
- Failure to produce the belongings of the accused-appellants creates doubt about the connection between the accused and the prosecution’s case
- Sudden death of the doctor who did post mortem of the deceased
Based on the above inferences, it can be concluded that the court had doubts about the credibility and reliability of the prosecution’s case due to various discrepancies. Inconsistencies and shortcomings in the evidence and investigations. Therefore, the accused-appellants were acquitted due to insufficient evidence to establish their guilt beyond a reasonable doubt and so court gave them the benefit of the doubt.
ADV. SHAMIM SHAIKH. B.A.LLB
[1] India kanoon