FACTS
The incident is of 4th August, 1995 which allegedly took place at 09:00 AM within the jurisdiction of Police Station Mangalore. It is 2 said that deceased Altaf Hussain, the father of the informant Salim Ahmad (PW-1), had some land dispute with the accused appellants. They as such had a grudge against deceased Altaf Hussain. In connection with the said land dispute, proceedings were pending before the Consolidation Officer. On the fateful day, deceased Altaf Hussain was going to Roorkee for attending the said proceedings, he was on his bicycle and his son – the informant (PW-1) and his nephew – Irshad (PW-2) were little behind on their cycles and were following him. When deceased Altaf Hussain reached near Bajari Plant on G.T. Road from where Roorkee was only at a short distance of 5 kms, the accused persons armed with “tabal” and “axe” assaulted him. Upon raising an alarm, one Tahir, son of Md. Saddiq and one Md. Afzal (PW-3), son of Niyaz Ahmad came from behind and tried to get hold of the accused persons but they escaped towards the jungle leaving behind their ‘loi’ (blanket) and cycle at the place of occurrence.
DELAY IN SENDING THE FIR
13. The chick FIR report was sent to the Court on 08.08.1995 with the delay of about 4 days. It is worth mentioning that FIR in a criminal case and particularly in a murder case is a vital and a valuable piece of evidence especially for the purpose of appreciating the evidence adduced at the trial. It is for this reason that the infirmities, if any, in the FIR casts a doubt on its authenticity. The FIR in such cases may also lose its evidentiary value. In Meharaj Singh and ors vs. State of U.P. and ors – (1994) 5 SCC 188, it has been opined that on account of the infirmities such an ante-timing of the FIR loses its evidentiary value. Thus, this entitles the accused to be given the benefit of doubt.
ANTI-TIMED FIR
14. The reason for ante-timing the FIR is not difficult to comprehend. The prosecution case is that deceased Altaf Hussain was going to the consolidation Court for attending the land dispute. Obviously, if he was going to the Court, it would have been early in the morning before the start of the Court rather than in the afternoon that too in the post-lunch session. In order to justify that deceased Altaf Hussain was going to the Court in the morning, the timing of the FIR has been changed to 9:00 AM. Had the incident occurred in the morning before 9:00 AM, and the police had arrived at the spot at 10:00 AM, the dead body would have been sent to the mortuary immediately thereafter by the afternoon but this has not happened and the dead body of the deceased Altaf Hussain was sent to the mortuary late in the evening by which time it was too late to conduct the post-mortem which had to be postponed for the next day.
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NO EXPLANATION TO WITHHOLDING OF THE ACCUSED CLOTHES AND CYCLE
16. It has come on record that the accused appellants on being chased had run away towards the jungle leaving behind their ‘loi’ (blanket) and cycle. Both these items were recovered by the Investigating Officer and were marked as Exh. Ka-10 and Exh. Ka-11 respectively. None of these two items were produced before the Court and were got identified by the accused appellants. There is no evidence on record which may establish that in fact the said loi and the cycle belonged to the accused appellants. This gives strength to the defence of the accused appellants that they have been unnecessarily roped into the offence and that they were not even present at the site. The presence of the accused appellants could have been easily proved by the prosecution, had the above two items recovered from the spot were produced and established to be that of the accused appellants. There is no reason or explanation for not producing the above things in Court or for withholding the same.
CIRCUMSTANCES AFFECTING TRIAL
Even if we ignore certain other minor discrepancies in the oral evidence, the delay in conducting the post-mortem, the difference in the name of the weapons of crime, i.e., “tabal” or “palkati” which are more or less similar types of instruments for cutting crops, etc., it is a case where the prosecution has miserably failed to prove that the accused appellants have committed the offence beyond any reasonable doubt.
Accused Acquitted.
PARTY: MOHD. MUSLIM vs. STATE OF UTTAR PRADESH (NOW UTTARAKHAND) – CRIMINAL APPEAL NO.1089 OF 2011 – JUNE 15, 2023.
https://main.sci.gov.in/supremecourt/2010/37374/37374_2010_7_1503_44711_Judgement_15-Jun-2023.pdf
