Afjal & Others vs State Of U.P.
2014 Latest Caselaw 1438 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

RESERVED

CRIMINAL APPEAL NO. 361 OF 1992

Afzal and others-----------------------------Appellants

Versus

State of U.P.----------------------------Opposite party

Hon'ble Sheo Kumar Singh,J

Hon'ble Anant Kumar,J

(Delivered by Hon'ble Anant Kumar,J)

This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been filed by the accused persons, namely, Afzal, Mujammil, Mohammad Ali, Faizul, Muzaffar, Mamnoon S/o Mohammad Ali, Amir Hasan, Kalwa, Malwa, Riazul and Shafi against the judgment and order dated 14th February, 1992 passed by Sri S.K. Bhatt, VIth Additional Sessions Judge, Muzaffarnagar in respect of Sessions Trial No. 75 of 1990, State vs. Afzal and others, convicting and sentencing the appellants under Section 302 read with 149 IPC to undergo for life imprisonment, under Section 307 read with 149 IPC rigorous imprisonment for seven years, under Section 148 IPC for one year rigorous imprisonment. All the sentences were directed to run concurrently.

It is pertinent to mention here that during pendency of the present appeal, accused Muzaffar and Amir Hasan have died and a report to this effect dated 11th March, 2014 from Chief Judicial Magistrate, Muzaffarnagar is on record. So, the appeal against them stands abated and this appeal is heard and decided in respect of other accused persons.

In brief, the prosecution story runs like this appeal, that one Zulfikar Ali son of Faiyaz resident of Suzdu, police station Kotwali Muzaffarnagar had lodged the first information report dated 21.09.1989 at 1:30 A.M. in police station Kotwali, Muzaffarnagar to this effect that complainant was having old enmity with Mohammad Ali, Faizul, Mujammil, Muzaffar, Mamnoon son of Mohammad Ali, Amir Hasan, Kalwa, Malwa, Riazul, Shafi, Afzal. In intervening night of 20/21.9.1989 at about 12:50 A.M. when the complainant was sleeping in the house of his brother-in-law (behnoi), all of sudden, he heard a noise of firing. He came out from the house, peeped into the neighbouring house, which belongs to Mamnoon and had seen that all the above persons were firing upon Mamnoon in the courtyard. There was a light of electric. In the meantime, witnesses Waris, Liyaqat, Abdul Rahim @ Chotta, Jai Prakash and other persons came on the spot and they had also seen the occurrence. When they raised alarm, the accused persons left the place of occurrence giving threats that they will not leave anybody alive. All the accused persons were having guns and country-made-pistols. When the accused persons fled away from the spot, they went into the house of Mamnoon. It was seen that blood was coming out from the body of Mamnoon and his six years daughter Km. Nusrat was lying dead on the cot due to bullet injury. It is further stated that the complainant and other villagers went to the police station to lodge the F.I.R.. A request was made that his report be lodged and legal action may be taken. This complaint was registered in police station Kotwali Muzaffarnagar at Crime No. 607, under Sections 147/148/149/302 IPC and entry to this effect was made in G.D. Rapat No. 5 at 1:30 A.M. on 21.09.1989 at police station Kotwali Muzaffarnagar.

The injured Mamnoon son of Kadam was sent for medical examination who was medically examined on 21.09.1989. In the medical examination report, one lacerated wound 2.5 cm x 1 cm x muscle deep on outer aspect of left forearm 6 cm from elbow joint was found and an X-ray was advised and the injury was kept under observation. At the time of medical examination, bleeding from the wound was present. X-ray of the injured Mamnoon was done and in x-ray report, multiple small, rounded, radio-opaque shadows resembling lead pellets were found.

Postmortem on the dead body of Km. Nusrat was done and one gunshot wound of entry measuring 2.5 cm x 2 cm cavity deep on right side of lower part of chest and upper of abdomen anterior margins, blackening was found present in the internal examination.

The investigation was handed over to the Investigating Officer, who visited the place of occurrence and collected pellets and wad from the spot. The I.O. has also taken into possession the bloodstained bed-sheet from the cot, two live cartridges of 315 bore and five empty cartridges of 12 bore. After investigation, chargesheet was filed against the accused persons and charges were framed against them under Sections 148, 302 read with 149 and 307 read with 149 IPC. During the trial, on behalf of the prosecution two witnesses of fact P.W.-1 Zulfikar Ali-complainant and P.W.-2 Mamnoon-injured son of Kadam were produced. This apart, P.W.-3 Dr. R.S. Kansana who had medically examined the injured Mamnoon, P.W.-4 Dr. M.K. Gupta who had conducted the postmortem upon the dead body of Km. Nusrat. P.W.-5 Constable Ramesh Chandra, P.W.-6 Head Constable Ramesh Chandra Sharma, P.W.-7 Dr. N.N. Sharma, Senior Radiologist, District Hospital, Muzaffarnagar, P.W.-8 S.S. Mehta, Inspector Kotwali, Investigating Officer, P.W.-9 Vidhyaram Sharma, S.S.I. who had prepared the inquest report of the deceased Km. Nusrat have been examined. After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. After hearing the parties, learned trial court has convicted the accused persons as stated above, hence, this appeal has been filed.

We have heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Sudhir Kumar Agarwal, learned counsel for the appellants, Sri Rama Shankar Yadav, learned Additional Government Advocate for the State and perused the entire record.

It is mainly argued on behalf of the learned counsel for the defence that from the statement of witnesses of fact, it is evident that there was a deep rooted enmity between the parties and as such, there was every chance of false implication of the accused persons. It is also stated that looking to the injuries of the injured Mamnoon and the injury of the deceased Km. Nusrat, it appears to be a case of single injury to both the persons and 11 accused persons have been shown to have taken part in the said occurrence. So the number of accused persons has been exonerated. It is also stated that as per version of the F.I.R. no source of light has been shown and since the occurrence has taken place in the night in courtyard where no electric connection is shown, so in the night, it is very difficult to recognize the accused persons. It is also stated that neighbours, who are named as witnesses in the F.I.R. have not been produced before the Court. It is also argued that as per the injury report of Mamnoon, who had sustained injury in his left forearm whereas x-ray report shows that injury in the right forearm was done, so there is contradiction in the injury report and x-ray report. It is also stated that the witness-complainant Zulfikar Ali is shown to be sleeping in the house of his brother-in-law. It is highly doubtful because when he was having his own house in the village, why he was sleeping in the house of his brother-in-law. It has been shown just to make him to be a witness of this occurrence. A plea of alibi has also been taken from the side of accused persons and it is stated that at the time of occurrence, there was a cattle fair in Didwana, district Nagor, Rajasthan and they have gone to purchase cattle in the said fair. In this regard, certain documents have also been filed.

Per contra, on behalf of the State, learned Additional Government Advocate has stated that from perusal of the site plan, it is evident that occurrence had taken place in the courtyard of the house of Mamnoon who was injured and in the northern and western of the said courtyard, there was two entry gates and at the place ''F' which is in the western side gate. There was a electric bulb which was litting at the time of occurrence, so it cannot be said that there was no light at the place of occurrence. It is also stated that all the accused persons belong to the same village and the prosecution witnesses as well as accused persons were very well known to each other before the occurrence. They can very well be recognized even in the dim light and it cannot be said that in this state of circumstance, accused persons could not be recognized. It is also stated that so far as source of light is concerned, in the F.I.R. itself it is mentioned that in the courtyard there was light of electric. It is also stated that deep rooted enmity is a double edged weapon and the occurrence may also be taken place due to enmity of the accused persons with the injured. So far as, the contradiction in the injury report and x-ray report is concerned, it is stated that P.W.-7 Dr. N.N. Sharma has rightly explained in his statement that due to clerical mistake in the x-ray report, instead of left arm, right forearm has been mentioned. So merely on this ground, benefit cannot be extended to the accused persons.

From perusal of the site plan (exhibit Ka-7), it is evident that there was a big courtyard and at the place ''E' where fire was opened upon Mamnoon and at the place ''X' the cot of the deceased was there where she was sleeping at the time of occurrence. P.W.-1 Zulfikar Ali has admitted in his statement that there was enmity between the parties. However, merely on the ground of enmity between the parties, the entire prosecution story cannot be thrown out and only caution to be exercised is that the statement of witnesses should be scrutinized cautiously and should be assessed that the witnesses are not giving any statement out of enmity. P.W.-1 Zulfikar Ali has stated in his statement that Mohammad Ali was standing on the wall and was exhorting to the accused persons to kill Mamnoon. The accused persons Faizul and Mujammil were there in the courtyard and standing near the cot of Mamnoon and they have opened fire and due to fire of Faizul and Mujammil, daughter of Mamnoon had died. Regarding involvement of other accused persons, general allegation has been made to this effect that other accused persons were also opening fire from the side of wall and presence of only these two accused Faizul and Mujammil have been stated to be near the cot of Mamnoon. P.W.-2 Mamnoon has stated in his statement that in the night he was sleeping. Due to some noise, his eyes were opened and he waked up and he had seen that near his cot Faizul and Mujammil were standing and Faizul has opened fire from his country-made-pistol with intention to kill him but the fire escaped and hit the deceased Km. Nusrat daughter of P.W.-2 Mamnoon. Thereafter, second fire was opened by Mujammil, who had hit the left hand of Mamnoon and rest of the accused persons had opened fire which hit the wall. He has admitted in his statement that at the time of occurrence, there was no electricity connection in his house but in fact, he has taken an electric wire from Mool Chand Kabadi and at the time of occurrence, there was light. So from the entire evidence of fact witnesses produced on behalf of the prosecution i.e. P.W.-1 Zulfikar Ali and P.W.-2 Mamnoon, it is evident that except the accused Faizul and Mujammil, other accused persons were at the side of wall where entry is there at the place ''F' shown in the site plant. So to our view, the distance from place ''E' to place ''F' appears to be sufficient enough and in the night, it is difficult to recognize the persons standing near the wall but so far as the accused Faizul and Mujammil are concerned, since they were standing near the cot and they were also living in the same village, there was every chance that the witnesses P.W.-1 Zulfikar Ali and P.W.-2 Mamnoon may recognize them, even in dim light which was at the place ''F' shown in the site plan.

So far as the plea of alibi is concerned, perusal of the judgment of trial court shows that the trial court has considered this aspect in detail and has rightly disbelieved the documentary evidence produced on behalf of the accused persons.

So far as the argument of learned counsel for the defence that the neighbours shown in the F.I.R. have not been produced, are concerned, this Court has deeply considered this aspect but in this case there is P.W.-2 who is the injured witness, who had sustained firearm injury in the occurrence and his testimony cannot be discarded. It is settled proposition of law that it is not the matter of quantity of evidence but the quality of evidence produced by the prosecution is to be considered. So, to our view, the witnesses of fact i.e. P.W.-1 Zulfikar Ali and P.W.-2 Mamnoon produced on behalf of the prosecution have very well been considered by the trial Court and the trial Court has rightly believed them. So merely on the ground that other witnesses shown in the F.I.R. have not been produced, it will not having any adverse effect on the prosecution story.

Looking to the number of facts, it is evident that only it is a case of two fires, one has hit the injured Mamnoon and other has hit the deceased Km. Nusrat and no other fire has hit any one. So, in these circumstances, there appears force in the contention of learned counsel for the defence that version of the prosecution so far as the involvement of number of accused persons is concerned, is exaggerate and in this regard, benefit of doubt to the accused persons other than Faizul and Mujammil may be given. Therefore, to our view, the accused persons other than Faizul and Mujammil should be acquitted but since there is specific and sufficient evidence against the accused persons Faizul and Mujammil that they had opened fire upon Mamnoon and Km. Nusrat, both of them are not liable to be acquitted. P.W.-2 Mamnoon is an injured witness and that is why his testimony cannot be discarded at this stage. So, to our view, this appeal is liable to be partly allowed.

In view of the above facts and circumstances of the case, this criminal appeal is partly allowed accordingly.

So far as the accused persons Afzal, Mohammad Ali, Mamnoon S/o Mohammad Ali, Kalwa, Malwa, Riazul and Shafi are concerned, this appeal in respect of them is, hereby, allowed. Therefore, the accused persons Afzal, Mohammad Ali, Mamnoon son of Mohammad Ali, Kalwa, Malwa, Riazul and Shafi are acquitted from all the charges levelled against them. Since, the accused appellants Afzal, Mohammad Ali, Mamnoon son of Mohammad Ali, Kalwa, Malwa, Riazul and Shafi are on bail, they need not surrender and their sureties are discharged.

So far as the accused persons Faizul and Mujammil are concerned, this criminal appeal in respect of them is, hereby, dismissed. They will surrender immediately before the C.J.M., Muzaffarnagar. They shall be taken into custody and will serve out the sentence imposed upon them by the trial Court. In case they fail to surrender, the Chief Judicial Magistrate, Muzaffarnagar shall take coercive steps against them.

Let a copy of this judgment along the lower court record be sent to the Court concerned for necessary information immediately.

Date: 2nd May, 2014

Mukesh Kr./