Nayeem Ali vs State Of U.P. And Others
2022 Latest Caselaw 2636 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 53
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 1554 of 2012
 

 
Appellant :- Nayeem Ali
 
Respondent :- State of U.P. and Others
 
Counsel for Appellant :- Dinesh Kumar Yadav,Bharat Garg
 
Counsel for Respondent :- Govt. Advocate,Vikas Srivastava
 

 
Hon'ble Om Prakash-VII,J.

Hon'ble Narendra Kumar Johari,J.

Case is taken-up.

None is present for the appellant in complainant appeal. Accused respondent nos.2 to 5 are also not present nor they are represented by any counsel.

Learned AGA is present.

Office has annexed the record of Government Appeal No.1133 of 2011 with the present matter. A perusal of the same, it is evident that the said Government Appeal was filed against the judgement and order under challenge in this criminal appeal. Coordinate Bench of this Court vide order dated 4.5.2012 dismissed the said Government Appeal. The said order is as under:

"Heard Sri R.N. Mishra, learned A.G.A. in support of the admission of the present appeal which has been filed to challenge the judgment of acquittal dated 16.10.2010 passed by the Additional Session Judge, Court No.5, Moradabad in S.T. No. 389 of 2007.

The prosecution case was that all the accused persons came and took Haider Ali to the place where garbage were being thrown and thereafter all the respondents caught hold of the deceased and fired indiscriminate shots and killed him.

During the course of evidence that particular story of firing the shots was confined to one Azeem and it was stated that remaining three respondents, namely, Suleman Usmani, Taukir Ahmad and Ayyub caught hold of the deceased and Azeem fired shots after putting his pistol on his belly. P.W.-1 has not stated that the pistol was on his belly but has stated that after remaining accused persons had caught hold of the deceased, Azeem fired shots. Thus what we find is that the initial prosecution version of indiscriminate firing resorted to by all the respondents was given up and it was confined to the solitary act against respondent Azeem. We find absurdity in the story that if the three accused persons had caught hold of the deceased, it would not have been possible for Azeem to fire shots. Moreover, the medical evidence was that there was a solitary shot. This also appears to be the reason that the allegation was scaled down to a single shot being fired in place of multiple shots and after having perused the post mortem report, the prosecution, got an statement from P.W.-1 that it was a shot from a very close range. We find serious improvements in the light of the fact that there was doubt that there was sufficient light when the deceased was murdered. It is apparently clear that the murder taken placed at a very secluded place where any person could not have remained present.

In the light of the above discussion made by us, we do not find any merit in this appeal, the same is dismissed"

In view of the above, present criminal appeal is also decided in the same terms and conditions, as in the order dated 4.5.2012 passed in the aforesaid Government Appeal.

The criminal appeal is dismissed at the stage of admission.

Order Date :- 12.5.2022

safi