[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 310 OF 2006

MOHAMMAD MIAN                                  .…APPELLANT

VERSUS

STATE OF U.P.                                      ....RESPONDENT

WITH  

CRL.APEAL NO. 282 OF 2006

J U D G M E N T

HARJIT SINGH BEDI,J.

1. This judgment will dispose of Criminal Appeal Nos.310 of  

2006 and 282 of 2006.  They arise out of the following facts:

2. Mohammad  Mian,  one  of  the  appellants  herein,  was  

running a fair  price shop in the outer portion of his house  

situated in village Ferozpur, District Bareilly.  At about 7 a.m.  

on  the  20th of  April  1980  Iqrar  Mohammad  son  of  Firasat  

Husain PW-2 went  to  the  fair  price  shop to buy sugar  but

instead  of  supplying  

2 kgs. of sugar as per the ration card,  Mohammad Mian gave  

only 1 Kg.  Firasat Husain then went to Mohammad Mian’s  

shop and remonstrated with him and asked him as to why he  

had supplied only half the quantity of sugar that was due on  

his card.   Mohammad Mian, however,  abused him and told  

him that he would give only that quantity and he could take it  

or  leave  it  as  he  wished.   Mohammad  Mian  immediately  

thereafter fired a shot at Firasat Husain with his gun hitting  

him on his  thigh and as  he turned backwards  Mohammad  

Mian’s  son,  Zamir  Mian,  fired at  him with a  country  made  

pistol hitting him on the upper right gluteal region on which  

Firasat  Husain  fell  down  on  the  ground.   On  hearing  the  

sound of the firing, Riyasat Husain, father of Firasat Hussain  

went  out  of  his  house and moved in that  direction  and on  

seeing his son lying injured, he questioned Mohammad Mian  

which resulted in a quarrel between them.  Mohammad Mian  

thereupon asked his sons Ahmad Mian and Shamim Mian to  

kill  Riyasat Husain on which Ahmed Mian picked up a gun  

and Shamim Mian a country made pistol and rushed to the  

Crl.Appeal No.310/2006 etc.

2

roof  of  their  house  

and as Riyasat Husain turned to move away,  each of  them  

fired a shot at him in quick succession on which he fell down.  

On hearing the sound of the firing, Sharafat Husain, PW-1 too  

left his house and proceeded towards the scene of occurrence.  

The  incident  was  also  witnessed  by  Sabir  Husain,  Mohd.  

Aslam, Rahat Husain and Summeri PW-3, who too were going  

to  the  shop  for  purchasing  sugar.   Sharafat  Husain  

immediately went to his father who was lying in a precarious  

condition  and  gasping  for  breath  and  removed  him  to  his  

house but he succumbed to his injuries within a short time.  

Firasat Husain, the injured was also brought from the place  

where he lay.   Leaving his father’s dead body and his injured  

brother  in  the  family  home,  Sharafat  Husain  left  for  Police  

Station,  Shahi  at  a  distance  of  about  4  miles  from  village  

Ferozpur and lodged the FIR at 9.10 a.m.  It is the case of the  

defence that the special report was delivered to the Magistrate  

the  next  day  i.e.  the  25th April,  1980.   After  receiving  the  

information of  the  murder,  Sub-Inspector  Sri  Nivas Sharma  

immediately reached village Ferozpur and made the necessary  

Crl.Appeal No.310/2006 etc.

3

inquiries  and  drew  

the inquest report.  He also dispatched the dead body for the  

post-mortem examination.   Firasat  Husain was also sent  to  

the  District  Hospital  for  treatment.   The  police  officer  also  

prepared the site plan and also collected blood stained earth  

from two places, one portion from the scene of occurrence and  

another from the house of the deceased where the dead body  

had been brought.  Firasat Husain was medically examined by  

Dr. J.N. Bhargava at the District Hospital,  Bareilly at 12.25  

p.m. on the 24th April, 1980 with two injuries, one being a gun  

shot wound entry and the other its exit.    Riyasat Husain’s  

body was also subjected to a post-mortem examination at 2.30  

p.m.  on the  25th April,  1980,  and nine  injuries  were  found  

thereon,  four  gun  shot  wounds  of  entry  and  four  of  exit  

whereas the 9th was an abrasion.  On an internal examination  

on the body, the humerus and a rib were found to be fractured  

on account of the gun shot injury.  On the completion of the  

investigation, the accused i.e. Mohammad Mian and his sons  

Ahmad Mian,  Shamim Mian and Zamir Mian were committed  

to the Court of Sessions for offences punishable under Section  

Crl.Appeal No.310/2006 etc.

4

302 and  307  of  the  

IPC and as they pleaded not guilty, they were brought to trial.  

3. The prosecution in support of its case, examined three  

eye witnesses,  Sharafat  Husain PW-1,  Firasat  Husain PW-2  

and  Summeri  PW-3,  Dr.  J.N.  Bhargava,  PW-4  who  had  

examined Firasat Husain for his injuries, Dr. K.S. Tiwari, PW-

5 who had conducted the autopsy on the dead body,  PW-6  

Sub-Inspector Srinivas Sharma the main investigating officer  

and  PW-7  Head  Constable  Raghvendra  Pal  Singh  who  had  

recorded the F.I.R. and dispatched the special  report to the  

Magistrate.  The accused denied the allegations leveled against  

them and pleaded that  they had been implicated in a false  

case.   

4. The trial court on a consideration of the evidence (and  

while  believing most  of  the prosecution story)  held that the  

charge against the accused under Section 302/34 could not  

be made out as the medical evidence did not correspond to the  

ocular version.    All the accused were acquitted of this charge.  

The trial court, however, held Mohammad Mian guilty for the  

Crl.Appeal No.310/2006 etc.

5

offence  punishable  

under Section 307 of the IPC for having caused the gun shot  

injury on the person of Firasat Husain and sentenced him to 6  

years R.I., but acquitted the other accused of that offence as  

well.

5. Aggrieved by the judgment aforesaid, the State preferred  

an appeal assailing the acquittal of the accused whereas the  

Mohammad  Mian  filed  a  separate  appeal  challenging  his  

conviction and sentence under Section 307 of the IPC.  The  

High Court  acutely  conscious of the fact that it  was largely  

dealing with an appeal against acquittal  and the limitations  

that went with it, re-appraised the evidence and observed that  

the  three  eye  witnesses,  particularly  the  injured  Firasat  

Husain,  could  not  be  disbelieved.   The  Court  noted  that  

though in the FIR Sharafat Husain had not stated that he had  

witnessed the murder of his father, but the fact that the site  

plan had been prepared at his instance showing that he had  

witnessed the occurrence from near the ‘baithak’ of Chhotey  

Crl.Appeal No.310/2006 etc.

6

Pradhan,  he  was  

indeed an eye witness to the murder.  The Court observed that  

the distance between the house of the complainant party and  

the accused was only 60 or 70 paces (which would make it  

about 100 feet) and this short distance and the sequence of  

events  that  preceded the  firing  made  it  clear  that  Sharafat  

Husain too had witnessed the incident.  The Court also found  

that  after  receiving  the  firearm  injury,  Firasat  Husain  had  

fallen  at  a  distance  of  10  feet  from  the  fair  price  shop  of  

Mohammad  Mian  and  he  was,  therefore,  in  an  apparent  

position to witness the fatal assault on his father.  Likewise,  

the Court  observed that PW-3 Summeri was a trust  worthy  

witness as he too had seen the incident from the ‘baithak’ of  

Chhotey  Pradhan  after  being  attracted  by  the  altercation  

between  Firasat  Husain  and  Mohammad Mian.   The  Court  

finally concluded that the eye witness account could not be  

faulted in any manner.  The High Court then dealt with the  

medical  evidence vis-a-vis  the ocular evidence and observed  

that as per the prosecution story the fatal shots had been fired  

at the deceased by Ahmad Mian and Shamim Mian from the  

Crl.Appeal No.310/2006 etc.

7

roof  of  the  house  

which was about 10 feet in height.  The Court observed that  

merely  because  the  wounds  of  entry  and  exit  were  either  

parallel  to  each  other  or  in  one  case  the  exit  wound  was  

slightly higher than the wound of entry would not detract from  

the other evidence as it could not be said with certainty as to  

the  posture  which  the  deceased  and  the  assailants were  

applying  when  the  shots  had  been  fired.   The  Court  also  

observed  that  the  FIR  had  been  lodged  promptly  and  the  

special  report also delivered within a reasonable time which  

testified  to  the  truthfulness  of  the  prosecution  story.   The  

Court,  accordingly,  set  aside  the  order  of  the  trial  court  

acquitting Mohammad Mian,  Ahmad Mian and Shamim Mian  

for  the  offence  punishable  under  Section  302  read  with  

Section  34  of  the  IPC  and  sentenced  each  of  them  to  

imprisonment  for  life.   The  Criminal  Appeal  filed  by  

Mohammad  Mian  challenging  his  conviction  under  Section  

307 was also dismissed.  It was also directed that the sentence  

of  the  accused were  to  run concurrently.   The two appeals  

Crl.Appeal No.310/2006 etc.

8

mentioned  above  

have been filed impugning the judgment of  the High Court.

6. Mr.  Ranjit  Kumar,  the  learned  senior  counsel  for  the  

appellants, has raised several arguments during the course of  

hearing.  He has pointed out that the High Court had ignored  

the  basic  fact  that  it  was  dealing  with  an  appeal  against  

acquittal in so far as the charge  of murder was concerned and  

it could not be said that the judgment of the Trial Court was  

so  perverse  or  against  the  evidence  that  interference  was  

called for.  He has further pleaded that the FIR had not been  

lodged at its purported time but infact much later and then  

ante-timed in the light of the fact that the special report, as  

per the FIR itself, had been dispatched to the Magistrate on  

the 25th of April,  1980 i.e. a day after the incident. He has,  

accordingly, pleaded that this delay had been utilized by the  

prosecution to involve the entire family of Mohammad Mian in  

a false case,  though the circumstances showed that neither  

PW-1 nor PW-3 had been present at the spot.  It has also been  

emphasized that the medical evidence did not conform to the  

Crl.Appeal No.310/2006 etc.

9

ocular  testimony  

leading to the conclusion that the incident had not happened  

in the manner suggested by the prosecution.

7. Mr.  Pramod  Swarup,  the  learned  senior  counsel  

representing  the  State  of  Uttar  Pradesh,  has,  however,  

controverted these submissions and has pointed out that the  

distance between the house of the deceased and the shop and  

house of the accused was only 70 paces or 100 feet and on  

account of this very short distance and the time of the incident  

being 7 a.m., the presence of the eye witnesses at home was to  

be expected.  It  has also been pleaded that the presence of  

Firasat  Hussain  who  had  been  grievously  injured  with  a  

firearm could not, in any case, be disbelieved and in the light  

of this fact even assuming there was some discrepancy in the  

medical evidence vis-à-vis the ocular one, the same could be  

ignored.   It  has, further,  been submitted that there was no  

delay in the lodging of the FIR or the delivery of the special  

report  in  the  light  of  the  statement  of  Head  Constable  

Raghvendra  Prasad  Singh  PW-7 who had  deposed  that  the  

special report had been dispatched to the Magistrate within a  

Crl.Appeal No.310/2006 etc.

10

very short time, with  

the result that there was no time to cook up a false story.   

8. We  have  considered  the  arguments  advanced  by  the  

learned counsel for the parties.  It will be noticed that the trial  

court  had  given  findings  in  favour  of  the  prosecution  on  

virtually all aspects, but had ultimately acquitted the accused  

of the charge of murder almost exclusively on the ground that  

the medical evidence did not conform to or support the ocular  

version.  The High Court has, merely, reversed this aspect of  

the trial court judgment and held that a case of murder was  

also made out against three of the accused, that is the present  

appellants.   It  is  in this  background that  the  entire  matter  

would have to be examined by us.

9. Undoubtedly,  the  prompt  lodging  of  the  FIR  is  a  very  

significant  factor  in  any  criminal  prosecution.   There  are  

several parameters by which the spontaneity of a F.I.R. and  

the prosecution’s  story as to the time at which it  had been  

lodged has to be adjudged, and one of the primary factors is  

the time of the delivery of the special report to the Magistrate,  

Crl.Appeal No.310/2006 etc.

11

as it is expected that  

he being unconnected in any manner with the investigation or  

the prosecution would be an independent person to endorse as  

to the time that a copy of the FIR had been received by him.  It  

has come in the evidence that the incident had happened in  

village Ferozpur at 7 a.m. on the 24th April of 1980.  The FIR  

(purportedly) had been lodged at Police Station, Shahi, about 4  

km. away at 9.10 a.m. and as per the column in the statutory  

form dealing with F.I.R’s, the copy of the special report had  

been dispatched from the Police Station on the 25th April, 1980  

to  the  Magistrate  at  Bareilly  at  a  distance  of  39  Kms..  

Undoubtedly,  this  date,  if  accurate,  would  arouse  great  

suspicion about the time that the FIR had been lodged and  

ipso facto some suspicion about the prosecution story as well.  

We have, however, gone through the evidence of PW-7 Head  

Constable  Raghvendra  Prasad  Singh.   This  police  official  

categorically  stated  that  the  copy  of  the  special  report  had  

been dispatched from the Police Station on the 24th April, 1980  

through  Constable  Mahesh  and  the  said  Constable  had  

returned to the police station at 9:15 p.m. on the same day  

Crl.Appeal No.310/2006 etc.

12

after  delivering  the  

special report and that both the departure and arrival reports  

had been recorded in the daily diary of the Police Station.  Mr.  

Ranjit Kumar has, however, emphasized that the statement of  

PW-7 was at  variance  with  the  entry  made  in  the  FIR,  (as  

noted above) and as such was an after thought.  It is extremely  

significant, however, that PW-7 was not even remotely cross-

examined on the apparent confusion in the time factor with  

regard to the special report.  We are, therefore, of the opinion  

that no advantage can be taken by the defence on account of  

this discordance, if any.  We must therefore take it as proved  

that the incident had indeed happened at 7 a.m., the FIR had  

been recorded at 9.10 a.m. and the special report had been  

delivered to the Magistrate the same day.

10. We  now  examine  the  other  evidence  in  the  above  

background.  It  bears notice that PW-2 Firasat Husain was  

gravely  injured  in  the  incident.   His  presence,  therefore,  

cannot  be  doubted.   We  have  gone  through  the  medical  

evidence with respect to his injuries and find five gun shot  

Crl.Appeal No.310/2006 etc.

13

wounds  of  entry  on  

the spine with a corresponding wound of exit over the right  

buttock.  The doctor had examined Firasat at 12.25 p.m. on  

the 24th April, 1980 and opined that the injuries could have  

been suffered within six hours.  This corresponds fully with  

the prosecution story.  It is this injury which has led to the  

conviction of Mohammad Mian under Section 307 of the IPC.  

We also see that the presence of PW-1 Sharafat Husain, the  

author of the FIR, can also not be doubted.  It is true that in  

the  FIR  recorded  at  his  instance,  he  does  not  specifically  

allude  to  his  presence  at  the  spot.   A  perusal  of  the  FIR,  

however, reveals that read as a whole, it makes out that he  

was indeed an eye witness.  We have examined the evidence of  

PW-6 Shri Nivas Sharma, one of the investigating officers, who  

had  prepared  the  site  plan  and  had  also  carried  out  the  

preliminary  investigations  at  the  site.   He  deposed  in  his  

examination-in-chief that he had also recorded the statement  

of Sharafat Husain at the spot and had prepared the site plan  

on his instructions and had also shown (in the site plan) the  

place  from  where  he  had  seen  the  incident.   When  the  

Crl.Appeal No.310/2006 etc.

14

statement  of  this  

witness is read in the background of the site plan, it is clear  

that Sharafat Husain was indeed present at the crucial time.  

Mr. Ranjit Kumar has also drawn our attention to the evidence  

of Summeri PW-3, the third eye witness, who is said to be a  

totally  independent  one.   He  has  referred  us  to  his  cross-

examination  where  he  says  that  he  had  not  made  any  

statement to the Darogaji under Section 161 of the Cr.P.C.  To  

our mind, this appears to be an attempt to help the defence as  

the Darogaji referred to i.e. PW-6 categorically stated that he  

had recorded his statement on the date of the murder.  We  

also  see from the site  plan that  the  presence  of  PW-3 also  

figures as having seen the murder from outside the house of  

Chhotey Pradhan, a very short distance away.  To our mind,  

therefore,  the  presence  of  this  witness  can  also  not  be  

doubted.  Concededly, PW-6 did not record the statement of  

any  of  the  persons  of  the  immediate  neighbourhood.   He  

admitted to this  fact  in his  cross-examination.   We cannot,  

however,  ignore  the  sad  but  basic  truth  that  so-called  

independent  witnesses  tend  to  stay  far  away  and  are  not  

Crl.Appeal No.310/2006 etc.

15

willing to come forth  

as they often face grave consequences.  The prosecution has  

therefore, perforce, to fall back on the testimonies of witnesses  

who  are  friends  or  family  members  of  the  victim.   In  the  

present case, we find that the house of the complainants was  

only  100  feet  from the  house  of  accused  and  the  incident  

happened about 10 feet away from the house of the accused.  

As already mentioned above, the presence of all the witnesses  

was,  therefore,  natural  at  the  time  when  the  incident  

happened and that in any case Firasat Husain was a stamped  

witness, against whom no suspicion could be raised.

11. We have also gone through the depositions of the three  

eye-witnesses.  They have categorically stated that there was  

enmity between the parties since long.   It appears that the  

dispute  with  regard  to  the  1  Kg.  sugar  had  merely  

precipitated the festering animosity.  All the witnesses have  

stated as to the manner in which first Mohammad Mian had  

shot Firasat Husain and when his father had come forward to  

see what had happened, he had been shot dead by the other  

Crl.Appeal No.310/2006 etc.

16

two  accused  from  

the roof of their residential house.  The learned counsel for the  

appellants has, however, referred us to some inconsistencies  

inter se the statements of these three witnesses.  To our mind,  

they  are  so  insignificant  that  they  call  for  no  serious  

discussion as they are bound to appear in the statement of  

any witness.     

12. The trial court had acquitted the accused of the charge of  

murder primarily on the ground that the medical evidence did  

not support the ocular version of the incident.  To our mind,  

the reasons given by the trial court were not well considered.  

It has been observed by the Trial Court thus:

“Moreover, the medical evidence also does not  fit in the prosecution story in this case even if it is  presumed although reluctantly that the fatal shots  were fired from the roof top by the accused Ahmad  Mian  and  Shamin  Mian.   According  to  Dr.  K.S.Tiwari  who  conducted  the  post  mortem  examination of  the deady body of  Riasat  Husain  there were four gun shot wounds of entry on the  back of chest of the deceased which are injuries  no.1 to 4 in the post mortem examination report  Ex. Ka-3.  Their corresponding wounds of exit are  injuries no.5,6,7 and 8 respectively. According to  PW5 Dr. K.S. Tiwari the exit wounds of injury No.1  is slightly higher than the wound of entry.  This  particular injury cannot be caused from roof top.  

Crl.Appeal No.310/2006 etc.

17

The  witness  PW.1  Sharafat  Husain   stated  that  the  height  of  the  roof  from  where the fatal shots were fired is about 10’ and  there is also a Mundair thereon about 1 ½’ or 2’  high.  This witness also stated that the deceased  Riasat Husain  was at a distance of 6 or 7 stops  from the door of the shop from the roof of which  the accused Shamim Mian and Ahmad Mian fired  the shots. This topography makes it  certain that  injury  No.1  corresponding  to  its  wound  of  exit  injury  no.5 cannot be caused from the roof  top.  The witness PW5 Dr. K.S.Tiwari further stated that  injury No.2 and injury No.4 have their exit wound  at the same level. This witness further says that  the exit wound of injury No.3 is slightly on a lower  plan. Thus the position of the wounds of entry and  exit is such that it is difficult to believe that the  firing in which Riasat Husain (illegible)was caused  from the roof top as alleged by the prosecution. It  appears that the firing actually took place from the  shop itself and the two accused Ahmad Mian and  Shamim Mian were elevated to the roof top simply  to be seen by the witnesses from point ‘F’ and in  this  process  the  prosecution  evidence  lost  its  credibility  and led the court only to a confusion  which was aggravated all the more by the contents  of the FIR Ex.Ka01.  It became and doubtful under  these circumstances to ascertain which of the two  sets  of  accused  fired  the  fatal  shot.  The  court  cannot  presume  that  it  were  the  accused  Mohammad Mian and Zamir Mian standing at the  shop  fired  the  fatal  shots  because  they  are  not  stated by the witnesses to have fired any shot at  Riasat Husain deceased. The other set of the two  accused  Ahmad  Mian  and  Shamim  Mian  are  unautmously alleged to be at the roof top and first  alleged to have fired at Riasat Husain at his chest  and then at his back but by medical evidence it is  

Crl.Appeal No.310/2006 etc.

18

not  probable  that  the  fatal  shots were at all fired from the roof top.”

13. To our mind, these observations are meaningless in the  

light  of  the  ocular  evidence  when  read  in  the  context  of  

incident as it happened.  The post-mortem examination of the  

dead body was conducted by PW-5 Dr. K.S.Tiwari on the 25th  

April, 1980 at 2.30 p.m.  He had found the following injuries  

thereon :

“(1) Gun Shot wound of entry 1 cm x 1 cm x  chest cavity deep on back of scapula lateral end,  margins  inverted  and  ragged.  No  blackening  or  tattooing present. Under the injury humerus bone  was fractured on upper part.

(2) Gun shot wound of entry 1 cm x 1 cm x  cavity deep on left side back of chest 5 cm below  injury  No.1.  Margins  inverted  and  ragged.  No  blackening or tattooing present.

(3) Gun shot wound of entry 1 cm x 1 cm x  cavity deep on left side back of chest 8 cm away  from middle and 19 cm below root neck. Margins  inverted  and  ragged.  No  blackening  or  tattooing  present.

(4) Gun shot wound of entry 1 cm x 1 cm x  caity  deep on left  side back 10 cm below injury  No.3.

(5) Gun shot wound of exit 1.2 cm x 1 cm on  the  front  of  left  shoulder  2  cm  below  top  of  shoulder  corresponding  to  injury  No.1,  margins  everted.

Crl.Appeal No.310/2006 etc.

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(6)  Gun  shot  wound  of  exit 1.2 cm x 1.1.  cm on front of chest left  side  upper part 4 cm above left nipple corresponding to  injury No.2 margins everted.

(7) Gun shot wound of exit on left side chest  6.5 cm below left  nipple  corresponding to injury  No.3, margins everted.

(8) Gun shot wound of exit 1.2 cm x 1 cm on  front of chest left side 2.1 cm from midline and 19  cm from umbilicus corresponding to injury No.4,  margins everted.

(9) Abrasion 2 cm x 2 cm on outer aspect of  left  buttock  10  cm  below  anterior  superior  iliac  spine.”

14. The doctor opined that the exit of injury No.1 was at a  

marginally higher level than the wound of entry, that the exit  

and  entry  wounds  of  injury  No.2  were  at  the  same  level  

whereas the exit wound of Injury No.3 and 4 were at a slightly  

lower level than the wounds of entry. The doctor also opined  

that there were fractures of the left humerus bone, the 5th rib  

on the right side and the 7th costal cartilage.  We must observe  

that  country  made  weapons  had  been  used  and  the  

performance  of  these  weapons  being  unpredictable  and  

uncertain,  the trajectory of  the bullet  alone would not be a  

safe basis for assessing the entire evidence more particularly  

Crl.Appeal No.310/2006 etc.

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as  the  projectiles  

could have been deflected from their true path by the bones or  

tissues that came along the way.  This is what Dr. Modi has to  

say in Modi’s Medical Jurisprudence and Toxicology, Twenty-

third Edition at page 724: Direction  

from which the Weapon was fired.

“The question regarding the direction of fire,  whether from right to left or from front to back is  of medico-legal importance.  To ascertain this, it  is necessary to know the position of the victim at  the time of the discharge of the bullet,  when a  straight line drawn between the entrance and exit  wounds  and  prolonged  in  front  generally  indicates the line of direction.  In some cases, it  is difficult to determine the direction as the bullet  is so often deflected by the tissues that its course  is very irregular, also when the bullet wobbles.”

There  is  yet  another  circumstance  which  is  extremely  

relevant.  It is the case of the prosecution that the gun shots  

had been fired from the roof of the house of Mohammad Mian  

which was 10 or 12 feet high.  It has come in the statements of  

Sharafat Husain and Firasat Husain that the firing was from a  

distance of 10 to 12 steps which would mean 15 feet.  This  

clearly corresponds to the nature of the injuries found on the  

Crl.Appeal No.310/2006 etc.

21

dead body.  The trial  

court seems to have been greatly influenced by the fact that  

the prosecution story that the shots had been fired from the  

roof was deliberately created by the prosecution as otherwise  

Mohammad Mian’s house would not have been in their direct  

line of sight.  We have, however, considered this aspect in the  

light of the statement of PW-1.  He candidly admitted that the  

shop of Mohammad Mian was not visible from their house as  

there was a mosque in between but after 10 feet  or so beyond  

the grave located near the gate, the shop of the accused could  

be seen.  In this situation, we find that the normal tendency of  

a  witness  who had heard  the  sound of  repeated gun shots  

close to his house would be to move in that direction.  This is  

what  Sharafat  Husain  apparently  did  as  after  hearing  the  

sound  of  the  first  shot  fired  at  Firasat  Husain,  both  the  

deceased and Sharafat had been attracted towards that way  

leading to the murder.  We also see from the site plan which  

had been prepared contemporaneously that the gun shots had  

been fired on the deceased from the roof of the house.  The  

finding of the trial court, therefore, that the prosecution had  

Crl.Appeal No.310/2006 etc.

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changed the location  

of the two accused to bring them on the roof, was speculative.  

We are, therefore, of the opinion that no fault can be found  

with  the  judgment  of  the  High  Court.   The  appeals  are,  

accordingly, dismissed.

……………………………..J. (HARJIT SINGH BEDI)

……………………………..J. (CHANDRAMAULI KR. PRASAD)

DECEMBER 16, 2010 NEW DELHI.

Crl.Appeal No.310/2006 etc.

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