12 Accused Allegedly Fired, But Just 3 Gunshot Wounds Found: Allahabad High Court Acquits 3 Men In 1981 Murder Case

Taking note of this discrepancy along with serious infirmities in the prosecution's case, a Bench of Justice Siddharth and Justice Vinai Kumar Dwivedi set aside the trial court's 1984 judgment, describing it as 'perverse'.

Case in brief

As per the prosecution's case, the incident occurred on September 19, 1981, when the deceased (Sarfaraz) was ploughing a field on his tractor. 12 accused persons, allegedly armed with licensed rifles and stolen guns, arrived at the spot.

The FIR alleged that upon the exhortation of one of the accused (Kammu), all 12 men simultaneously fired upon the deceased with the intention of causing his death.

In August 1984, the Sessions Court in Fatehpur convicted all 12 accused under Sections 148, 302/149, 379, and 404 of the IPC, and sentenced them to life imprisonment.

They all moved the High Court challenging their conviction in 1984 itself. During the pendency of the appeal, 9 of the appellants passed away and their appeals stood abated.

The Court was left with the appeals of three surviving appellants: Ghulam, Hidayatullah, and Azizullah.

High Court's Observations

Considering the evidence on record as well as the trial court's judgment, the High Court pointed out a major and material contradiction between the medical and ocular evidence regarding the simultaneous shooting by all 12 accused

“…if 12 accused persons will target and fire simultaneously upon the deceased, Sarfaraz, then in this condition, more than 12 and minimum 12 gun-shot injuries must be present at the body of the deceased, Sarfaraz. However…we find that according to the post mortem report, Exhibit Ka-4, only three entry wound of gun-shot injuries are found on the body of the deceased, Sarfaraz, and one injury of exit wound of the gun-shot...”.

In view of this contradiction between the ocular and medical evidence, the bench referred to the Supreme Court's judgment in Khambam Raja Reddy and another v. Public Prosecutor, High Court of Andhra Pradesh 2006.

Applying the principles laid down by the Top Court, the High Court observed that if the testimony of ocular witnesses is found to be suspicious and surrounded by doubtful circumstances and facts, then the ocular evidence of the prosecution cannot be believed in support of the prosecution's case.

The Court thus found the discrepancy regarding the shots fired and wounds found to be creating major and material contradictions in the prosecution's case, creating a severe dent in its reliability.

The High Court also flagged that while 12 accused persons allegedly fired simultaneously targeting the deceased, still there were no pellets, bullets, tiklis or cartridges lying found at the place of occurrence.

The bench also doubted the presence of the supposed eyewitnesses, particularly Shabbir (PW-3), at the place of the incident. According to the prosecution, an accused quietly snatched Shabbir's licensed double-barrel gun and cartridge belt during the incident.

However, the Court noted his conduct was “highly unnatural and doubtful” as he never resisted, uttered a single word, or lodged an independent FIR to recover his weapon.

The High Court also criticized the Trial Court for giving a finding of guilt without appreciating the prosecution's evidence in a legal and proper manner, and merely relying on the alleged enmity and rivalry between the two factions

Thus, concluding that suspicion, no matter how strong, cannot take the place of proof, the High Court held that the prosecution had concocted and fabricated the story as an afterthought.

Consequently, the Court allowed the appeal and set aside the 1984 Trial Court judgment. The Court thus acquitted the 3 surviving appellants of all charges.