Tuesday, 25 December 2018

Whether absence of bullet holes on clothes of deceased raises a doubt about gunshot injury?

 The High Court has also referred to the submission of the
counsel who appeared for the accused which in our considered
view is relevant. As pointed out earlier, the deceased-Shabu
sustained gunshot wound on the chest with chest cavity deep.
Dr. P.K. Chaturvedi (PW-3) in his evidence as pointed out that
there was not a single hole either in the vest, kurta and
tehmad which were sent along with the dead body for
examination. Even the Inquest Report does not mention any
bullet hole in the clothes of the deceased-Shabu. When the
deceased-Shabu sustained gunshot injury on the chest with chest
cavity deep, in the normal course one would expect holes on the
clothes worn by the deceased, namely, western kurta. Absence
of bullet holes on the clothes of the deceased creates a doubt
about the case of the prosecution and the time and manner
alleged. Raising doubts about the case of the prosecution, the
High Court has extended the benefit of doubt to the
respondents-accused to reverse the conviction.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No(s). 396-398 OF 2015

THE STATE OF UTTAR PRADESH  Vs RAJA ETC. 

R. BANUMATHI, J.:

Citation:2018 (4) RCR (Criminal) 250 : 2018 (11) Scale 265
Dated:AUGUST 30, 2018.


(1) These appeals arise out of judgment and order dated 29th
May, 2009 passed by the High Court of Judicature at Allahabad
in Criminal Appeal NO.568 of 2002, Criminal Appeal No.231 of
2002 and Criminal Appeal NO.250 of 2002 in which the High Court
reversed the verdict of the conviction and also the sentence
and acquitted the respondents.
(2) The facts of the case in a nutshell are as follows. On
13th June, 1995 at 9.00 a.m. deceased-Shabu along with
Riyazuddin (PW-2) was taking their buffaloes for grazing in the
jungle. Complainant, Imamuddin (PW-1) and Hafiz were following
them. The case of the prosecution is that when deceased-Shabu
and Riyazuddin (PW-2) were so proceeding to the jungle, accused
Raja (A-1) exhorted the other accused that they have an
opportunity to kill both the brothers, namely, deceased-Shabu
and Riyazuddin (PW-2). Raju (A-2) and Aas Mohammad (A-3)
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(since acquitted) who were armed with rifles fired at Shabu and
also on Riyazuddin (PW-2). Shabu sustained gunshot injuries on
his chest and died on the spot. Injured Riyazuddin (PW-2)
received injuries on his right forearm. On seeing Imamuddin
(PW-1) and other villagers coming towards them, all the accused
ran away. On the complaint lodged by Imamuddin (PW-1), law was
set in motion. Dr. P.K. Chaturvedi (PW-3) conducted postmortem
on dead-body of the deceased-Shabu and noted the
following injuries:
“1. Gunshot wound 1 cm. x 1 cm x chest cavity deep on
right side of front of chest 2 cm. Below right nipple
at 4 O’clock position margins inverted and lacerated.
No blackening and no charring (external wound)
detected medially backwards towards left scapula”
(3) Based upon the evidence of Imamuddin (PW-1) and Riyazuddin
(PW-2), injured witness, the trial court convicted Raja (A-1)
(since dead) Raju (A-2) and also Aas Mohammad (A-3) under
Section 302 I.P.C. read with 34 I.P.C. Fourth accused Sarfaraj
was acquitted by the trial court from all the charges. In the
appeal preferred by the accused, the High Court set aside the
conviction and acquitted the accused from all the charges.
Being aggrieved, the State is before us.
(4) We have heard Mr. V.V.V. Pattabhiram, learned counsel
appearing for the appellant-State and Mr. Yunus Malik, learned
counsel appearing for the respondent(s) and also perused the
impugned judgment of the High Court and the evidence/materials
on record.
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(5) Though the trial court held that Imamuddin (PW-1) is a
trustworthy witness, the High Court doubted the presence of
Imamuddin (PW-1) at the time and place of occurrence and also
trustworthiness of his evidence. It is brought on record that
Imamuddin (PW-1) is an advocate having good practice at the
Bar. Imamuddin (PW-1) was also then a member of the Nagar
Palika. In his evidence Imamuddin (PW-1) has admitted that
normally he used to give hearing to the public in the morning
time at the Nagar Palika. As observed by the High court that
audience to the public by Imamuddin (PW-1) could have been only
before the commencement of court hours and thereafter he would
go to the court. Occurrence happened on 13th June, 1995 at 9.30
a.m. It is brought on record that 13th June, 1995 was a working
day. Imamuddin (PW-1) being a lawyer having good practice and
also a member of the Nagar Palika giving audience to the public
in the morning, the High Court rightly doubted his presence at
the place of occurrence at 9.30 a.m. on the said day. The High
Court also doubted the evidence of Imamuddin (PW-1) as to why
an advocate like Imamuddin (PW-1) instead of going to the court
would follow his deceased brother-Shabu who was taking the
cattle for grazing in the jungle and PW-1-Imamuddin’s conduct
in following his brother being unnatural and we find it
difficult to take a different view.
(6) In his evidence, Imamuddin (PW-1) stated that after the
occurrence he went to the court to write down the complaint
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first. Here again, the High Court observed that the conduct of
Imamuddin (PW-1) is quite unnatural in the sense that when one
of his brothers, Shabu, was killed and another brother,
Riyazuddin (PW-2), sustained injuries in his arm, instead of
taking the injured brother to a hospital or going to the police
station, Imamuddin (PW-1) had gone all the way to the Court
only to write down the complaint. Here again, the conduct of
Imamuddin (PW-1), as observed by the High Court appears to be
strange and unnatural.
(7) The High Court has also referred to the submission of the
counsel who appeared for the accused which in our considered
view is relevant. As pointed out earlier, the deceased-Shabu
sustained gunshot wound on the chest with chest cavity deep.
Dr. P.K. Chaturvedi (PW-3) in his evidence as pointed out that
there was not a single hole either in the vest, kurta and
tehmad which were sent along with the dead body for
examination. Even the Inquest Report does not mention any
bullet hole in the clothes of the deceased-Shabu. When the
deceased-Shabu sustained gunshot injury on the chest with chest
cavity deep, in the normal course one would expect holes on the
clothes worn by the deceased, namely, western kurta. Absence
of bullet holes on the clothes of the deceased creates a doubt
about the case of the prosecution and the time and manner
alleged. Raising doubts about the case of the prosecution, the
High Court has extended the benefit of doubt to the
respondents-accused to reverse the conviction.

(8) For the foregoing reasons, it cannot be said that the view
taken by the High Court suffers from any serious and
substantial error warranting interference by this Court.
(9) In the result, the appeals are dismissed.
..........................J.
(R. BANUMATHI)
..........................J.
(VINEET SARAN)
NEW DELHI,
AUGUST 30, 2018.
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