Ali Hasan vs State Of U.P.
2011 Latest Caselaw 4255 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
RESERVED
 

 
Criminal Appeal No. 270 of 2008
 

 
Ali Hasan 						...	Appellant
 
								(In Jail)
 
Versus
 
State of U.P. 				        ....	Opposite party
 

 
******** 
 

 
Hon'ble Rajiv Sharma, J.

Hon'ble S.C. Chaurasia, J.

(Delivered by Hon'ble Rajiv Sharma, J.)

This appeal arises out of the Judgment and Order dated 7.12.2007 passed by the Additional Sessions Judge, Hardoi in Sessions Trial No. 239-A/94, whereby the appellant-Ali Hasan has been convicted under Section 148 IPC and sentenced to undergo R.I. for one year , under Sections 436/149 IPC to undergo ten years RI and a fine of Rs.1,000/-, failing which fifteen days' period of simple imprisonment. The appellant has further been convicted and sentenced to rigorous imprisonment for life under Section 302/149 IPC and a fine of Rs.1000/-, failing which, fifteen days additional simple imprisonment. All these sentences have been directed to run concurrently. However, it may be pointed out that trial Court has acquitted the appellant under Section 307/149 IPC and Section 364/149 IPC.

At the outset, it is relevant to mention that there were several accused persons, who were earlier convicted and sentenced by the trial Court, vide its judgment and order dated 17.8.2000. Five accused persons, who were involved in the incident, were sentenced to death by the Trial Court and their reference was registered as Capital Sentence Reference No. 6 of 2000. Other accused persons, who were also convicted preferred criminal appeals before this Court. This Court, vide judgment and order dated 26.9.2003, decided the appeals and reference finally by a common order acquitting some of the accused persons and converting capital sentence to life imprisonment of other accused persons.

In short, the prosecution case is that informant Mussu (P.W.5) lodged a written report (Ext. Ka 9) at the police station Sursa with the allegation that on 3.3.1994 at about 5.45 P.M., Lallan, Babu, Farooque, Rafique, sons of Jaffu, village Odra Newalia, Police Station Sursa and Noor Mohammad, son of Babu Fakir, Naushad son of Nawab Ali, Fakir, village Kudrauli, P.S. Sandi, Smt Sundara and Smt. Rajanna, daughter of Jaffu, Ali Sahab son of Babu, Anil Kumar Singh son of Kalyan Singh, Farooque son of Babu, Kallu son of Barat Ali, Azad son of Nawab Ali, Bhayanu son of Mannu, Asfaque son of Ali Hasan, Gauhar son of Fakire, Mohd. Navi son of Gauhar, Dullu son of Gauhar and three others attacked the inmates of his house with fire arms, Kanta and lathis. On hearing gunshots, hue and cry of the members of family, Auni, Dhanna Kumahar and villagers came at his house. Thereafter, accused Smt. Rajana and Smt. Sundera set his house to fire with kerosene oil and petrol, as a result of which as many as 12 persons were fatally injured, out of which Km. Najma, Km. Qaiser Jahan, Smt. Mosiya, Guddu, Chhotkanney, Nawab Ali, Pappu, Smt. Amezan, Smt. Gulsuman, Nabi Gaus and Smt. Rukhsana died on the spot. His sister's son Wahid was not traceable and his brother's wife Smt. Shaukina was seriously wounded. It may be added that in the impugned judgment of the trial court, the injuries sustained by the victims have been mentioned in detail and as such, it is not necessary to give detail version of the prosecution case.

On the basis of the aforesaid written report, a case on crime No. 20 of 1994 under Sections 147, 148, 149, 302, 307, 364, 323, 436 IPC was registered at police station Sursa on 3.3.1994 at about 18.30 hours.

The investigation was taken up by the Investigating Officer and he inspected the spot and prepared site plan and recorded the statement of the witnesses. After investigation, sufficient evidence was found against accused-appellant Ali Hasan and eighteen others and as such, a charge-sheet under Sections 147, 148, 149, 302, 307, 364, 323, 436 IPC was forwarded to the Court concerned. The appellant and other accused persons were put to trial, where they pleaded not guilty of the charges levelled against them and claimed to be tried. However, during the pendency of the trial, the appellant absconded and as such, his trial was separated and registered as Sessions Trial No. 239-A of 1994. After the arrest of the appellant, his trial again commenced.

In order to prove its case, the prosecution examined Dr. Suresh Chandra Singh (P.W.-1), who was posted as in charge Medical Officer, P.H.C., Sursa and had medically examined Smt. Sakina on 3.3.1994. Jhunni (P.W.-2), Dhanna (P.W-3), Mussu (P.W.5) and Wahid (P.W.6) and Raisuddin (P.W.18) are witnesses of fact. (P.W.7) Raj Narain proved the 'Fard' prepared regarding taking of blood stained soil from the place of occurrence and on which his signature was also obtained. (P.W.8) Ram Bhajan, (P.W.10) Shridhar and Sobaran (P.W.12) stated that in his presence, the Investigating Officer had prepared the Panchanama of dead bodies and their thumb impression was also taken. Vijay Kumar (P.W.9) proved his signatures on the 'fard' prepared for taking burnt clothes and ashes from the place of occurrence. (P.W.11) Ram Bhajan stated that on the day of occurrence, he took wife of Pappu in burnt condition to the hospital by his tractor and while on the way the said injured lady has told that family members of Ali Hasan and Lallan had assaulted and burnt her. Apart from above, the prosecution examined various other witnesses, who are formal witnesses.

The learned Trial Court after taking into consideration and appreciating the evidence on record, found the appellant guilty of the charges levelled against him and accordingly, convicted and sentenced the appellant, as stated above.

Learned Counsel for the appellant has vehemently argued that the learned trial court has fell into error in not appreciating the material on record in its correct perspective. As a matter of fact, the appellant was not named in the FIR and no role has been assigned to him. It has come in evidence that there was enmity between the two sides since last several years and litigation i.e. civil and criminal both was pending between the parties. The Trial Court erred in not considering this material fact as the appellant has been falsely roped in this case and that too on account of the statement of two witnesses. Even these two prosecution witnesses have not assigned any specific role of assault against the appellant and only said that the appellant alongwith two other accused persons had surrounded the house and set the house on fire.

Learned Counsel for the appellant has also stated that there were serious discrepancies and contradictions in the statement of witnesses. Prosecution witnesses had also committed serious mistakes while identifying some of the accused persons in the Court. Recovery of gun and cartridges from the possession of the accused persons was also not proved beyond doubt by the prosecution. All these major contradictions resulted in acquittal of accused Lallan, Naushad, Ashfaq, Mohammad Nabi, Bhayanu, Riyazuddin, Ali Sahed and other co-accused by the High Court, though they were convicted to imprisonment for life by the trial Court. The appellant is also entitled for the same benefit, i.e. acquittal, which has been given to the aforesaid accused persons as his case stand on more better footing than the aforesaid accused persons.

Learned State Counsel, while defending the impugned conviction, submitted that the findings of conviction had been recorded by the trial Court after proper appraisal of evidence on record. It is wrong to say that the findings recorded by the trial Court are perverse and are based on surmises. It has been proved by the prosecution witnesses that the appellant was the member of unlawful assembly who participated in the gruesome murder and arson. However, during the course of arguments, learned State Counsel candidly admitted that on account of major contradictions and discrepancies in the prosecution, number of accused persons of the same crime have been acquitted by this Court.

Mussu (PW5) is the complainant of the case. He has identified the appellant in the Court and has supported the prosecution version. However, the prosecution has failed to explain as to why Mussu has not named the appellant in the FIR when it is alleged that the appellant was member of the unlawful assembly and took active participation. Mussu is the eyewitness of the incident and had admitted that he knew Ali Hasan from before. If Ali Hasan (appellant) was one of the accused, then why he was not named in the FIR. It is unnatural that he will deliberately leave the actual assailant from being brought to book. It is not in dispute that neither the appellant was named in the FIR nor in the statement under Section 161 CrPC the complainant stated about the participation of appellant in the crime. The name of the appellant for the first time came into light in the statement of Rahisuddin (PW18). This witness has stated that the accused appellant alongwith other co-accused had set the house on fire. Rahisuddin (PW18) is the son of complainant Massu. It appears that the prosecution in order to improve its case and fill the lacunae has put the name of appellant in the mouth of Rahisuddin, who is the son of complainant Massu. Being the son of appellant, he will likely to depose as per the wish of his father and will not deviate from it. Ram Bhajan (PW11) has stated that Shaukina, W/o Pappu had received burn injuries in the incident and while she was being taken to hospital, she stated that members of family of Ali Hasan and Lallan had assaulted and put her on fire. It may be added that Smt. Shaukina succumbed to her injuries.

Raj Narain (P.W.7) in his statement has stated in clear words that there was dispute between Lallan and the appellant with regard to a land. He has also stated that he has not seen the occurrence. In his presence only the blood stained and simple earth was taken by the police and his signature was taken on the 'Fard'. Thus it is amply proved that there was serious dispute going on between Lallan and the appellant and as such the assertion of the appellant's Counsel that false implication of the appellant cannot be thrown out lightly.

Similarly, from the statement of P.W.(11) Ram Bhajan, it clearly comes out that he is not an eye witness of the occurrence. He has only stated that about 13 years ago, there was fighting between the family of Lallan and Mussu. He had taken the injured wife of Pappu to the hospital by his tractor and while he was carrying the lady, she told that the members of family of Ali Hasan and Lallan has assaulted and put her on fire.

Wahid (P.W.6) in his statement supported the prosecution version. In earlier appeals, this court has scrutinized the testimony of this witness. The Court has found that there were serious discrepancies and contradictions in the prosecution version. Wahid (P.W.6) is the star witness of the offence as it is he who claims to have received burn injuries during the course of occurrence and was allegedly kidnapped by the assailants at the time. It is also said that he remained in the captivity of the assailants for quite some time and could come out of the captivity when the police intervened. However, the testimony of this witness has been disbelieved by this Court while deciding the earlier appeals of co-accused observed in the judgment dated 26.9.2003 as under:-

"Wahid was cross-examined quite at length. His evidence is being assailed, mainly on the grounds that he being bhanja (sister's son) of Mussu (PW5) is inimical and interested one, that being resident of another village his presence at the time of occurrence was not natural one, that it is doubtful whether burn injuries found on his person by Dr. Mathura Prasad Bharti (P.W.4) on 6.3.1994 at about 6.00 p.m. in the evening were received during the course of the occurrence in question, that the story of his kidnapping by the culprits, his wrongful confinement for two or three days and his release by police, is a pure concoction and is also unnatural one, that even if he was present at the time of occurrence, he had no opportunity to see and identify the assailants and that his evidence in court suffers from various discrepancies and so does not inspire confidence."

In view of the above, the trial Court committed an error in placing heavy reliance on the statement of Rahisuddin (P.W.18) and Ram Bhajan (P.W.11) and that too when none of the prosecution witness had amply proved that the appellant took active part in the commission of crime nor any specific role has been assigned to him. The testimony of Wahid has already been discarded by this Court as would be evident from the judgment dated 26.9.2003. deceased Smt. Shaukina had told this witness that family members of Ali Hasan and Lallan had caused burn injuries. In the judgment of the Trial Court, no where it is mentioned that it is the appellant who caused burn injuries to wife Pappu or set the house on fire.

In view of aforesaid discussion, the prosecution has failed to prove its case beyond reasonable doubt against the appellant. There is no iota of evidence to connect the appellant with the commission of crime in the manner as alleged by the prosecution and even doubted the presence of the appellant at the scene of occurrence. As averred above, the testimony of Wahid (PW 6) has already been disbelieved by this Court on earlier occasion. Ram Bhajan (PW 11) has never stated that he saw the appellant at the time of occurrence alongwith other accused persons, but his statement is based on the fact that presence of Ali Hasan at the time of commission of offence was told to him by wife (deceased) of Pappu.

In the result, the appeal is allowed and the appellant is acquitted of all the charges levelled against him and the conviction and sentence as awarded by the impugned judgment and order dated 7.12.2007 are hereby set aside. The appellant is in jail. He shall be released forthwith unless wanted in any other criminal case.

Registry shall send the lower Court record to the Court concerned alongwith a copy of judgment forthwith for necessary compliance.

Dt. 1.9.2011       [Justice S.C. Chaurasia] [Justice Rajiv Sharma]
 
MH