State of U.P. Vs.
Mutahir Mian  INSC 1640 (25 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1053 OF 2002 State
of U.P. ...Appellant Versus Mutahir Mian ...Respondent
Dr. ARIJIT PASAYAT,J.
Heard learned counsel
for the parties.
Challenge in this
appeal is to the judgment of a Division Bench of the Allahabad High Court
directing acquittal of the respondent who faced trial for alleged commission of
offence punishable under Section 302 of the Indian Penal Code, 1860 (in short
`the Act'). The learned Sessions Judge, Rampur in S.T. No.30 of 1980 found him
guilty and convicted him for offence punishable under Section 302 IPC and
sentenced him to suffer imprisonment for life.
In appeal, the High
Court found certain vital discrepancies in the prosecution version and directed
-2- The prosecution
version, as unfolded during trial is as follows.
On 04.11.1979 at
about 9.30 A.M. when the informant Zahidullah along with his brother Sajidullah
(hereinafter reeferred to as `deceased') and Shakirullah were returning via
triangular crossing at Majar Khurmewali, they were accosted at that crossing by
accused Mutahir Mian, who challenged them by saying "Bahadur Aa rahe
hain". On this the deceased questioned him. Immediately thereon, he was
stabbed thrice by the accused. His brother Zahidullah, in order to save his
brother from any further assault, attacked the accused with a knife, resulting
in several injuries on the person of accused. Finding the condition of the
injured grave, leaving him in the custody of his brother-in-law Yakub Khan and
younger brother Shakirullah with the instruction to carry him to the hospital,
Zahidullah immediately proceeded to the police station for reporting the matter.
The report was got scribed from Rajendra Prakash Saxena (PW-9) and the same was
lodged by him at the police station Kotwali, Rampur, at about 10.15 A.M. The
FIR was marked as Ext.Ka.1.
The chick report is
Ext. Ka-3 and copy of the G.D entry was marked as Ext.Ka.4.
The investigation of
the case was taken over by S.I. Iqtadar Hussain Rizvi (PW-8).
-3- After completion
of the investigation, charge sheet was filed and the accused faced trial. The
Trial Court, as noted above, found the prosecution version to be cogent and
recorded conviction. In appeal, the High Court directed acquittal on three
grounds. Firstly, it was held that the prosecution version that the first
information report was lodged at 10.15 A.M., has not been proved. Secondly, the
memo which was stated to have been received from the Civil Hospital was not
brought on record. It was found that the existence of the FIR at 10.15 A.M. is
beliedby the fact that after about six hours, the copy of the FIR was reached
to the Doctor who has conducted the post mortem. Apart from that, thirdly, the
so called eye- witnesses were not believable. It was also noticed that serious
injuries on the accused were not explained.
Learned counsel for
the appellant - State submitted that the conclusions of the High Court to
direct acquittal are not sustainable. Great emphasis is laid on the evidence of
PW-7, the Head Constable, who is stated to have recorded the original FIR.
According to him, based on the written report Ext.Ka.1, the FIR was registered
in relation to offence punishable under Section 307 IPC. Subsequently, on
receipt of the memo from the hospital, it was altered to Section 302 IPC. It
was also submitted that merely because there was some delay in sending copy of
the FIR to the -4- Doctor, i.e. for about six hours, that cannot be a ground
for acquittal. Finally, it was submitted that the evidence of the witnesses was
clear and cogent.
We find that the High
Court has analysed the evidence in great detail to conclude about the non
acceptability of the prosecution version. The conclusions of the High Court
cannot be termed as irrational or perverse. The view expressed by the High
Court is a possible view. The cumulative effect of the infirmities pointed out,
probabilise the defence version.
We find nothing
infirm in the conclusions of the High Court to warrant interference. The appeal
fails and is dismissed.
(Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)
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