Suhaib @ Raja vs State Of U.P.
2022 Latest Caselaw 3124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Case :- JAIL APPEAL No. - 4479 of 2012
 
Appellant :- Suhaib @ Raja
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail,Abhishek Tripathi,Mohd Imran Khan,Rajesh Kumar Singh Ac,Suneel Kumar Rai,Vivek Singh
 
Counsel for Respondent :- A.G.A.
 
Connected with
 
Case :- GOVERNMENT APPEAL No. - 3137 of 2012
 
Appellant :- State of U.P.
 
Respondent :- Firoj And Another
 
Counsel for Appellant :- Govt. Advocate
 
Counsel for Respondent :- Anil Kumar Jaiswal,Suneel Kumar Rai
 

 
Hon'ble Suneet Kumar,J.

Hon'ble Vikram D. Chauhan,J.

(Per : Vikram D. Chauhan,J.)

1. The Jail Appeal No.4479 of 2012 (Suhaib @ Raja Vs. State of U.P.) forwarded through Senior Jail Superintendent, Meerut, is preferred challenging the judgment dated 7.5.2012 passed by Additional Sessions Judge, Court No.6, Baghpat convicting accused - Suhaib @ Raja under Section 302 of Indian Penal Code, with life imprisonment and fine of Rs.5000/-.

2. The Government Appeal No.3137 of 2012 (State of U.P. Vs. Firoj and another) is also preferred against the judgment dated 7.5.2012 passed by Additional Sessions Judge, Court No.6, Baghpat in S.T. No.318 of 2009, to the extent of acquittal of accused-respondent Firoz by trial court under Sections 302, 363 of Indian Penal Code and acquittal of accused-respondent Suhaib @ Raja under Section 363 of Indian Penal Code.

3. Heard Sri Rajesh Kumar Singh, learned Amicus Curiae for the accused-Suhaib @ Raja and learned AGA for the State in both the appeals.

4. The prosecution case, as per First Information Report dated 28.8.2008 lodged at P.S. Badaut is that informant-Aslam on the intervening night i.e. 26/27.8.2008 was sleeping in front of his house in an empty plot along with his father Maqsood, sister Pappan, son of his brother, namely, Rahil and son of Pappan; at 3:00 a.m. in the night, informant heard the distress call and as such, informant woke up and saw that his sister Pappan, who was sleeping on the cot was being forcefully held by Firoz (son of his uncle) and the accused Suhaib @ Raja was pouring acid on the face of his sister Pappan; Rahil and the son of Pappan also suffered acid injury on account of such act; when the informant shouted for help and tried to catch hold the accused-persons, brother-in-law of the informant Shahbuddin and one of the neighbours namely Rajveer came; tried to catch Firoz and Suhaib, however, they ran away. Prior to the aforesaid incident, on 25.8.2008, Firoz and Suhaib @ Raja came to the house of the informant and after lunch, took away 5 years old daughter of Pappan, namely, Ismaila on the pretext of purchase of sweets and the daughter is in the custody of accused- persons. It is also alleged that the sister of the informant is admitted to Meerut Medical College.

5. On the basis of above mentioned First Information Report, a case was registered against accused Firoz and Suhaib under Sections 307 and 363 IPC at P.S. Badaut, District Baghpat. The aforesaid First Information report was exhibited as Exhibit Ka-16 and written report was exhibited as Exhibit Ka-1 before trial court.

6. The injured Pappan was thereafter referred to C.H.C., Badaut, where Dr. Ravindra Kumar (PW-6) gave primary medical aid and referred the injured for better treatment to Medical College, Meerut; during her treatment at Medical College, Meerut on 15.9.2008 injured Pappan died; after the death of Pappan, above mentioned case was converted by Investigating Officer S.I. Bhagwat Prasad (PW-12) from Section 307 of Indian Penal Code to Section 302 of Indian Penal Code; panchayatnama of the body of the deceased was conducted on 15.9.2008 and the same was prepared by (PW-8) Vidya Shankar Singh, Additional City Magistrate and, thereafter, the body was sent for post mortem. The post mortem of the deceased was held on 16.9.2008 at District Hospital, Meerut by Dr. A.S. Rathaur (PW-7); during investigation, Investigating Officer prepared the map of the place of occurrence and the same was marked as Exhibit Ka-13; on 28.8.2008, burnt clothes, thread of cot, empty plastic bottle was also recovered by the Investigating Officer and the recovery memo thereof was prepared being Exhibit Ka-2. Further on 18.9.2008, the daughter of deceased Pappan, namely, Ismaila was recovered and handed over in the custody of Maqsood on 18.9.2008; Investigating Officer after completing the investigation submitted separate charge sheet against accused Firoz and Suhaib @ Raja.; on 22.8.2009 court below framed charges against accused-persons under Sections 302/34 and 363 IPC; accused denied the charges and claimed to be tried.

7. The prosecution in support of prosecution case produced 16 witnesses, namely, (PW-1) Aslam, (PW-2) Rajveer, (PW-3) Rahil, (PW-4) Maqsood, (PW-5) Suhail son of Shaukeen, (PW-6) Dr. Ravindra Kumar, (PW-7) Dr. A.S. Rathaur, (PW-8) Vidya Shankar Singh, Additional City Magistrate, (PW-9) Madan Lal, (PW-10) Shahbuddin, (PW-11) Raiesu, (PW-12) S.I. Bhagwat Prasad, (PW-13) S.H.O. A.K. Singh, (PW-14) Constable Clerk Pahal Singh, (PW-15) Dr. Rajesh Kumar Sharma and (PW-16) Inspector Hari Mohan Singh.

8. The prosecution also produced documentary evidence in support of the prosecution case i.e. First Information Report (Exhibit Ka-1), recovery memo of acid burnt & plain clothes, empty plastic bottle and thread of cot (Exhibit Ka-2), panchayatnama (Exhibit Ka-3), refer slip (Exhibit Ka-4 & Ka-5), postmortem Report (Exhibit Ka-6), challan lash (Exhibit Ka-7 & 8), photo nash (Exhibit Ka-9), chitthi pratishar nirikshak (Exhibit Ka-10), letter of C.M.O. (Exhibit Ka-11), fard baramadgi Km. Ismaila (Exhibit Ka-12), site-plan of incident (Exhibit Ka-13) charge sheet against accused Suhaib @ Raja (Exhibit Ka-15), chik F.I.R. (Exhibit Ka-16), copy of G.D. (Exhibit Ka-17) and report of Junior Resident, Surgery, Lala Lajpat Rai Medical College, Meerut (Exhibit Ka-18).

9. The accused denied the charges under Section 313 Cr.P.C. and pleaded that deceased was pregnant for 24 weeks and her husband Shaukeen was in jail for last more than one year and as such, family members of the deceased Pappan killed her and he has been falsely implicated in the case.

10. Prosecution Witness No 1 - Aslam, is witness of fact, who is the informant, has supported the prosecution story and stated that Firoz caught hold his sister Pappan while Suhaib @ Raja with the intention of killing deceased Pappan was pouring acid on her face, Rahil and Suhail, who were sleeping near the place where deceased was sleeping were also injured by acid attack. He further stated that on distress call, his brother-in-law Shahbuddin and neighbour Rajveer also came and they tried to catch hold of the accused-persons, however, they ran away. The said witness has also stated that on 25.8.2008, two accused-persons came to his house and after lunch, has taken away the minor daughter of Pappan, namely, Ismaila on the pretext of purchase of sweets. He was engaged in the medical treatment of his sister in Medical College and after returning from Meerut lodged the First Information Report on 28.8.2008. The said witness has proved the First Information Report and the same was marked as Exhibit Ka-1. The said witness has also testified that Investigating Officer had come the place of incident and has recovered the burnt clothes, plastic bottle and thread of cot and at that time Dharmveer and Gulshan were present; the recovery memo was prepared by the Investigating Officer and the same was marked as Exhibit Ka-2; On 15.9.2008 Pappan died at Medical College, Meerut due to chemical burn injury; panchayatnama was prepared by the Investigating Officer in presence of other witnesses and the panchayatnama is Exhibited as Ka-3; dead body of the deceased was sent for postmortem examination.

11. The next prosecution witness Rajveer (PW-2) has stated that he is neighbour of the informant and on the night in question, he was sleeping in his house; Maqsood and Aslam were sleeping in front of their house and nearby deceased Pappan, Rahil and Suhail were also sleeping; at 3:00 a.m. he heard the distress call and as such, he woke up and came out of his house, where Maqsood and Aslam were sleeping and they were also awake; he saw that accused Firoz has caught hold of Pappan and accused Raja is pouring acid from the bottle on her face with the intention to kill her; they tried to catch the accused-persons, but they ran away; acid has also affected Rahil and Suhail.

12. The prosecution has examined Rahil (PW-3), who has stated that he was sleeping in the plot in front of the house and on his cot Suhail was also sleeping and near his cot, deceased Pappan was also sleeping; his grandfather Maqsood and uncle Aslam were also sleeping nearby; at 3:00 a.m. in the night, Firoz catch hold of deceased Pappan and accused Raja was pouring chemical from plastic bottle on her face; on account of the aforesaid, he and suhail also got injured from the acid attack; they started shouting and as a result of the same, grandfather and his uncle, Shahbuddin and Rajveer came and tried to catch the accused persons, but they ran away; at the place of occurrence, there was light; one day prior to the aforesaid incident, accused-persons had come to the house and have taken away the daughter of deceased Pappan on the pretext of purchase of sweets for her; he and deceased Pappan were taken to Meerut for medical treatment and Pappan died during her medical treatment.

13. The prosecution has examined Maqsood (PW-4) in support of the prosecution case, who has testified that he and his son Aslam were sleeping in the empty plot in front of their house; her daughter Pappan, Suhail and Rahil were also sleeping nearby; at 3:00 a.m. in the night, he heard the distress call of Pappan and as such, he woke up and saw that Suhaib @ Raja with the intention to kill his daughter was pouring acid and Firoz had caught her hand; he also saw that Rahil and Suhail were also got injured with acid; his son Aslam also woke up and hearing the shout Shahbuddin and Rajveer also came, who have also seen the incident; he has also testified that light was there on the spot; they tried to catch hold the accused-persons, but they ran away; Firoz and Suhaib @ Raja had taken away the daughter of Pappan aged about 5 years prior to the incident.

14. The prosecution examined Suhail (PW-5), who has testified that he was sleeping near her mother Pappan in the open plot in front of the house, near the legs and his brother Rahil was also sleeping near deceased Pappan; there was light on the place of occurrence and he saw in the light that Raja had poured the acid bottle in the mouth of his mother and there was one another person, who ran away. He has also suffered chemical injury along with his brother Rahil.

15. The prosecution examined Dr. Ravindra Kumar (PW-6), who has stated that on 27.8.2008, he was posted at C.H.C. Badaut, where acid affected Pappan and Rahil were referred to L.L.R.M. Medical College, Meerut for treatment. The witness has proved the reference slip and the same Exhibited as Ka-4 and Ka-5.

16. The prosecution has examined Dr. A.S. Rathaur as PW-7, who has stated that on 16.9.2008, he was posted at District Hospital, Meerut as Senior Consultant and he had conducted postmortem on deceased Pappan wife of Shaukeen; he has also testified the following injuries :-

"1. इन्फेक्टिेड केमिकल बर्न इन्जरी 21 x15 सेमी बॉये ओर चेहरे पर बॉये कान पर बॉये गाल पर और ढोडी पर।

2. इन्फेक्टिड केमिकल बर्न इन्जरी 17 x12 सेमी गर्दन के सामने और बॉये हिस्से में और बॉये कंधे के उपरी हिस्से में आगे व पीछे के हिस्से में।

3. इन्फेक्टिड केमिकल बर्न इन्जरी (संक्रमित रासायनिक पदार्थ से आई चोट तथा जली हुई) 14 x 6 सेमी सीने के सामने के हिस्से में स्तन से ठीक उपर।

4. संक्रमित रासायनिक पदार्थ से जला हुआ घाव दॉयी ओर की पूरी भुजा में।

5. संक्रमित रासायनिक पदार्थ से जला हुआ घाव बॉयी ओर की पूरी भुजा में।"

17. He has testified that all injuries were on account of chemical burn and according to him, cause of death was shock due to anti mortem injuries; he has proved the postmortem report, which was marked as Exhibit Ka-6.

18. The prosecution has examined Vidya Shankar Singh (PW-8) who has testified that on 15.9.2008 he was posted as Additional City Magistrate, Civil Line, Meerut and that he had conducted the panchayatnama of the deceased Pappan and has proved the panchayatnama as Exhibit Ka-3 and the related documents as Exhibits Ka-7 to Ka-11.

19. The prosecution has examined Madan Lal (PW-9) who has stated that on 18.9.2008 in his presence and in the presence of Rajveer, police handed over Km. Ismaila to Maqsood and the fard baramadgi & supurdginama dated 18.9.2008 was signed by him and the same was exhibited as Ka-12.

20. The prosecution has examined Shahbuddin (PW-10) who has also supported the prosecution story.

21. The prosecution has examined Raiesu (PW-11) who has stated that daughter of his sister, namely, Ismaila was brought by accused Suhaib @ Raja and he left her in my house; Ismaila was taken away by his father Maqsood thereafter.

22. The prosecution has also examined formal witnesses S.I. Bhagwat Prasad (PW-12), who is the Investigating Officer, S.H.O. A.K. Singh (PW-13), Constable Clerk Pahal Singh (PW-14) and Dr. Rajesh Kumar Sharma (PW-15).

23. On the basis of aforesaid evidence, the trial court came to the conclusion that accused Suhaib @ Raja was guilty of offence and convicted under Section 302 IPC to life imprisonment with a fine of Rs.5000/-. Accused Suhaib @ Raja was acquitted under Section 363 IPC by trial court. Accused Firoz was acquitted under Sections 302 and 363 IPC by the impugned judgment dated 7.5.2012 passed by trial court.

24. The Government Appeal No.3137 of 2012 is preferred challenging the judgment dated 7.5.2012 acquitting the accused Firoz under Sections 302 and 363 IPC and accused Suhaib @ Raja under Section 363 IPC.

25. The Jail Appeal No.4479 of 2012 is preferred by Suhaib @ Raja against his conviction under Section 302 of Indian Penal Code by trial court.

26. In the present case, the accused Suhaib @ Raja and Firoz were charged under Sections 302/34 and 363 IPC. The trial court by the impugned judgment has convicted Suhaib @ Raja under Section 302 IPC and has acquitted accused Suhaib @ Raja under Section 363 IPC. The trial court has further acquitted the accused Firoz under Sections 302 and 363 IPC.

27. The prosecution case, as per the First Information Report dated 28.8.2008 lodged at P.S. Badaut is that informant-Aslam on intervening night i.e. 26/27.8.2008 was sleeping in front of his house along with his father Maqsood, sister Pappan, son of his brother, namely, Rahil and son of Pappan; at 3:00 a.m. in the night, informant heard the distress call, informant woke up and saw that his sister Pappan, who was sleeping on the cot was being forcefully held by Firoz (son of his uncle) and the accused Suhaib @ Raja was pouring acid on the face of his sister Pappan; acid sprinkled on Rahil and son of Pappan; when the informant shouted for help and tried to catch hold the accused- persons, brother-in-law of the informant Shahbuddin and one of the neighbour Rajveer came; all aforesaid persons tried to catch Firoz and Suhaib, however, they ran away. Prior to the aforesaid incident, on 25.8.2008, Firoz and Suhaib @ Raja came to the house of the informant and after the lunch, took away 5 years old daughter of the sister of informant, namely, Ismaila on the pretext of purchase of sweets and the daughter is in custody of accused- persons. It is also alleged that the sister of the informant is admitted in Medical College, Meerut. During her treatment at Medical College, Meerut on 15.9.2008 injured Pappan died; after the death of Pappan, above mentioned case was converted by Investigating Officer S.I. Bhagwat Prasad (PW-12) from Section 307 of Indian Penal Code to Section 302 of Indian Penal Code.

28. In order to prove the prosecution case, (PW-1) Aslam has stated that on intervening night 26/27.8.2008 at about 8:00 p.m., he was sleeping along with his father Maqsood in the open plot adjacent to his house; his sister Pappan, Rahil, son of Pappan, namely, Suhail were also sleeping nearby; he heard distress call and woke up; Firoz was catching hold his sister Pappan, who was sleeping on the cot and Suhaib @ Raja was pouring acid on the victim, which has also affected Rahil and Suhail; on hearing distress call Shahbuddin and Rajveer also came and tried to catch hold the accused-persons, however, they ran away; previously on 25.8.2008, the said two accused-persons had come to the house of the witness and has taken away the daughter of victim, aged about 5 years, on the pretext of buying sweets in respect of which First Information Report was also lodged; victim was admitted in Medical College, Meerut and after returning from Meerut, the First Information Report was lodged. Witness has stated that the First Information Report is in his handwriting and signed by him. The First Information Report was marked as Exhibit Ka-1.

29. The prosecution has also produced (PW-2) Rajveer in support of prosecution case. He has stated that he is neighbour of informant-Aslam; he was sleeping in his house on the night in question; Maqsood and his son Aslam were sleeping in the open plot adjoining to his house; nearby the victim, Rahil and Suhail were also sleeping in the open plot; at about 3:00 a.m. in the night, he heard noise and as such, he came out of his house where Maqsood and Aslam were sleeping and they had also woke up; he saw Firoz holding the victim and Raja was pouring acid on the face of the victim and was trying to kill her; he has stated that they tried to catch hold the accused-persons, but they ran away; he has also stated that Rahil and Suhail were also affected by the acid attack.

30. The prosecution has further examined (PW-3) Rahil, who has stated that he was sleeping in the open plot on the cot along with his brother Suhail; deceased was sleeping on a separate cot near him; at some distance, Maqsood and Aslam were sleeping; at about 3:00 a.m. in the morning, Firoz caught the deceased and Raja poured acid with the plastic bottle on the face of the deceased; he has also stated that he and Suhail were also affected by the acid attack; on hearing the noise, Maqsood, Aslam, Shahbuddin and Rajveer came and tried to catch the accused-persons, but they ran away.

31. The prosecution has also examined (PW-4) Maqsood, who has stated that he and his son Aslam were sleeping in the open plot adjacent to his house; his daughter Pappan, Suhail and Rahil were also sleeping at some distance; at about 3:00 a.m. in the night, they heard the distress call of deceased Pappan and when they woke up, they saw that Suhaib @ Raja with the intention to kill, was pouring acid on deceased Pappan and Firoz was holding deceased Pappan. On hearing noise Shahbuddin and Rajveer also came and seen the incident; the light was on; tried to catch the accused-persons, but they ran away.

32. The prosecution also examined Suhail (PW-5), who has stated that he was sleeping near her mother Pappan in the open plot adjacent to the house; he was sleeping on the cot near the legs of deceased; his brother Rahil was also sleeping near the deceased Pappan; he has seen in the light that accused Raja poured acid on the face of deceased Pappan; the other person along with accused Raja ran away; he and his brother Rahil were also affected by acid attack; at the place of occurrence, Maqsood and Aslam also woke up.

33. The Investigating Officer had recovered on 28.8.2008 from the place of occurrence burnt clothes, burnt string of cot and plastic empty bottle; he has also recovered pillow and one chunri. The aforesaid recovery was sealed by the Investigating Officer and recovery memo was prepared, which was marked as Exhibit Ka-2.

34. The Investigating Officer Bhagwat Prasad (PW-12) has identified the recovered material as per the recovery memo and has also proved the recovery memo dated 28.8.2008.

35. The Investigating Officer Bhagwat Prasad (PW-12) also prepared site-plan of the place of occurrence. The site-plan was marked as Exhibit Ka-13. PW-12 has identified the signature on the site-plan and has stated that the site-plan has been prepared by him.

36. The postmortem of the deceased Pappan was held on 16.9.2008 at 3:50 p.m. by Sri Dr. A.S. Rathaur, Senior Consultant, District Hospital, Meerut.

37. Dr. A.S. Rathaur (PW-7) has testified before the trial court, identified the postmortem report and has stated that the postmortem report has been written by him and has been signed by him. The postmortem report dated 16.9.2008 was marked as Exhibit Ka-6. He has stated that the dead body of the deceased was received in sealed condition from Constable Satyendra Kumar, Police Station Medical College, Meerut and he had identified the body of the deceased. He has stated that rigor mortis has started in the body. He has stated that following injuries were found on the body of the deceased :-

"1. इन्फेक्टिेड केमिकल बर्न इन्जरी 21 x15 सेमी बॉये ओर चेहरे पर बॉये कान पर बॉये गाल पर और ढोडी पर।

2. इन्फेक्टिड केमिकल बर्न इन्जरी 17 x12 सेमी गर्दन के सामने और बॉये हिस्से में और बॉये कंधे के उपरी हिस्से में आगे व पीछे के हिस्से में।

3. इन्फेक्टिड केमिकल बर्न इन्जरी (संक्रमित रासायनिक पदार्थ से आई चोट तथा जली हुई) 14 x 6 सेमी सीने के सामने के हिस्से में स्तन से ठीक उपर।

4. संक्रमित रासायनिक पदार्थ से जला हुआ घाव दॉयी ओर की पूरी भुजा में।

5. संक्रमित रासायनिक पदार्थ से जला हुआ घाव बॉयी ओर की पूरी भुजा में।"

38. According to him, all injuries are burn injuries and were on upper part of the body. He has stated that deceased died on 15.9.2008 at Medical College, Meerut at 10:30 a.m. due to shock anti mortem injuries.

39. In view of aforesaid, the prosecution has been able to prove its case beyond reasonable doubt.

40. The accused-person under Section 313 Cr.P.C. has stated that deceased Pappan was living along with his father for last two years and husband of the deceased Pappan was in jail since one year prior to the occurrence. It is also stated that deceased Pappan was five months pregnant at the time of occurrence and that there was no motive to accused-persons to kill the deceased and family members of the deceased have motive to kill the deceased, as she was pregnant while her husband was in jail, as such to save their honour, the incident has been committed by the family members of the deceased.

41. It is argued by learned counsel for the appellant - Suhaib @ Raja that after the incident deceased was taken to C.H.C., Badaut where she was examined by PW-6 Dr. Ravindra Kumar and he has referred the deceased to Medical College, Meerut, however, has not recorded any burn injury on the body of the deceased. He has also proved the medical reference slip dated 27.8.2008. On the aforesaid basis, it is argued by learned counsel for the appellant that if the deceased had suffered chemical burn injury then the same would have been reflected in the medical reference letter dated 27.8.2008, however, the same is not recorded in the medical reference letter. The aforesaid submission of learned counsel for the appellant is of no consequence, as the inquest report, postmortem report and photo nash along with statements of prosecution witnesses proved the fact that deceased had suffered chemical burn injury.

42. It is also noted to be that the inquest was conducted prior in point of time than the reference made to Medical College, Meerut. It is also to be noted that PW-6 Dr. Ravindra Kumar on the reference letter being Exhibit Ka-4 has also recorded that he has not recorded injuries in reference letter and as such, no adverse inference can be drawn for the injuries not being recorded in the reference letter.

43. It is argued by learned counsel for the appellant - - Suhaib @ Raja that the deceased was married to Shaukeen, who was in jail from 6.12.2006 to 25.12.2008 at District Jail, Ghaziabad in S.T. No.53 of 2007 (State Vs. Shaukeen), under Sections 307 and 302 IPC, P.S. Sahibabad, District Ghaziabad. The incident in the present case has taken on intervening night i.e. 26/27.8.2008. The postmortem report of the deceased suggest that deceased was 24 weeks pregnant and on the aforesaid basis, it is submitted that husband of deceased was in jail for long period and the deceased was pregnant and on account of the aforesaid, informant and his family members have committed the homicide on deceased and accused have been falsely implicated.

44. In the present case, there are eye witnesses, who have seen the incident. Their testimony during cross examination have not been shaken by the defence and as such, the theory brought by appellants cannot be sustained, just because the husband of deceased was in jail and the deceased was pregnant during said time. It is also to be noted that accused Suhaib @ Raja was the brother-in-law of the deceased Pappan.

45. It is further to be considered that as per allegation in the First Information Report, accused Firoz had held the deceased Pappan, who was sleeping on the cot and Suhaib @ Raja poured acid on the face of the deceased, which has also affected Rahil and Suhail.

46. It is further to be noted that Maqsood (PW-4) has stated in cross examination that accused Suhaib @ Raja has committed the offence and he does not recognize the second person and he had implicated Firoz on the basis of what he heard on the spot and he has not seen him.

47. Suhail (PW-5), who is son of the deceased has also stated that he has not seen Firoz on the day of incident and had only seen Raja. On the aforesaid basis, the trial court came to the conclusion that accused Firoz was not present at the time of incident. If the allegation with regard to holding of Pappan is attributed to Firoz then when the acid was poured by accused Raja, then Firoz would have also sustained some injury, however, there is no such evidence that any chemical burn injury was sustained by Firoz. The trial court further observed that as per prosecution case, Rahil and Suhail were also sleeping along with deceased - Pappan, suffered burnt injury due to chemical attack and if the aforesaid fact is taken on face value then Firoz, who was holding deceased, should also have sustained chemical burn injury, however, no such injury have been proved in respect of Firoz and as such, presence of Firoz at the place of occurrence, has not been proved beyond reasonable doubt.

48. Maqsood (PW-4) in his cross examination has stated that his elder son Aslam was working with Firoz at Panipat and on account of some difference, name of Firoz has surfaced in the First Information Report.

49. Raiesu (PW-11) has also stated that Firoz and Aslam were having enmity and as such, name of Firoz has been stated.

50. On the aforesaid basis, the trial court came to the conclusion that Firoz had no motive to commit the offence and as such, the prosecution has failed to prove it's case beyond reasonable doubt so far as Firoz is concerned.

51. The trial court on the basis of fact that prosecution witnesses have supported the prosecution case against accused Suhaib @ Raja has recorded the finding that when the deceased was pregnant during the period when her husband was in jail then the accused Suhaib @ Raja had all motive to commit the offence and as such, the trial court has convicted the accused Suhaib @ Raja under Section 302 IPC. The trial court has not found the allegation under Section 363 IPC to be true against accused-persons and as such, has acquitted accused Suhaib @ Raja and Firoz, however, convicted the accused Suhaib @ Raja under Section 302 IPC.

52. Learned counsel for the appellant in Jail Appeal No.4479 of 2012 has not been able to dislodge the conviction of accused Suhaib @ Raja under Section 302 IPC as has been recorded by trial court and as such the Jail Appeal No.4479 of 2012 has no force.

53. The Government Appeal No.3137 of 2012 (State of U.P. Vs. Firoj and another) is being preferred to the extent accused Suhaib @ Raja and Firoz has been acquitted by the trial court. The trial court has acquitted the accused Firoz for offence under Sections 302/34 and 363 IPC.

54. As per the prosecution case, the accused Firoz had held the deceased while co-accused Suhaib @ Raja had poured acid. In case, the aforesaid prosecution case was correct then the accused Firoz would also have been injured by the acid, however, no evidence has been led by the prosecution that the accused Firoz also suffered injury from the acid. It is to be noted that as per statements of witnesses when the acid was poured on deceased then Rahil and Suhail, who were sleeping beside the deceased were also injured by the acid. A person who was sleeping near the deceased was injured by the acid then in all possibility accused Firoz, who was holding the deceased would have been injured by the acid, however, no evidence in this respect have come on record and as such, the manner in which the alleged incident is said to have taken place is doubtful. It is also to be noted that accused Firoz is related to the informant. The informant in his cross examination has stated that the accused Firoz is his relative; the informant had learned work from the father of Firoz. Maqsood (PW-4), who is father of informant in his cross examination has stated that his elder son Aslam was working with Firoz in Panipat and they had some quarrel and on this basis, the name of Firoz has been recorded in the First Information Report. Raiesu (PW-11) in his cross examination has stated that there was prior enmity between Firoz and Aslam. Aslam (PW-1), Maqsood (PW-4) and Raiesu (PW-11) have all admitted that there were enmity between Firoz and informant and as such, there are possibility that accused Firoz may be falsely implicated by informant Aslam. If the deceased Pappan was pregnant while her husband was in jail then either the family members of the deceased would be affected or the in-laws family would be affected by the aforesaid act, however, accused Firoz who is relative of informant Aslam has no concern with the pregnancy of deceased while her husband was in jail and accused Firoz cannot possibly have any intention against the deceased.

55. Insofar as the allegation pertaining to Section 363 IPC against the accused-persons is concerned, the case of the prosecution as per First Information Report is that on 25.8.2008 both accused-persons Firoz and Suhaib @ Raja came to the house of informant and after taking lunch had taken away the daughter of deceased Pappan, namely, Ismaila aged about 5 years on the pretext of purchasing sweets and Ismaila is still with accused-persons. The aforesaid facts have been testified by informant, PW-3, PW-4, PW-10 in their testimony before the court below.

56. Aslam (PW-1) in his cross examination has stated that accused-persons had taken the minor girl Ismaila for purchase of toffee after informing him. He has also stated that when the minor girl did not come back, the police was informed on the next day.

57. Madan Lal (PW-9) in his examination-in-chief has stated that on 18.9.2008 police official in his presence and presence of Rajveer had handed over Ismaila to her nana Maqsood. Fardbaramadgi and supurdginama dated 18.9.2008 was prepared in this respect and the same was marked as Exhibit Ka-12.

58. Raiesu (PW-11) has also stated that about 3 years back Ismaila aged about 5 years was left by accused Suhaib @ Raja at his house and thereafter Ismaila was taken back from his house by Maqsood.

59. S.I. Bhagwat Prasad (PW-12) in his statement has stated that on 18.9.2008 Ismaila was handed over to her maternal grand father Maqsood. The witness Maqsood has also stated that accused-person Suhaib @ Raja had left Ismaila at the house of Raiesu and from there he had brought her back.

60. Maqsood (PW-4) has also stated that Suhaib @ Raja had left Ismaila at the house of Raiesu, which was handed over to him under police supervision. On the basis of aforesaid, it is evident that accused Suhaib @ Raja had taken away the daughter of deceased Pappan (who was sister-in-law of accused Suhaib @ Raja), two days prior to the alleged occurrence. However subsequently Ismaila was left at the house of (PW-11) Raiesu, who is brother of informant and from the house of Raiesu, minor Ismaila was taken by Maqsood.

61. It is to be seen that if the intention of Suhaib @ Raja was to kidnap the minor girl or to commit any offence, he would not have left the minor girl at the house of Raiesu (PW-11). It is not proved that accused-persons have abducted the minor girl Ismaila and as such, the trial court came to the conclusion that no offence under Section 363 IPC is made out against the accused-persons.

62. It is trite of law that where the evidence points toward the guilt as well as innocence of the accused then the evidence led in favour of accused person be accepted and accused should be acquitted. Under the circumstances, the trial court came to the conclusion that the accused Firoz has been falsely implicated in the case and as such, the trial court recorded acquittal in the case.

63. Learned AGA failed to point out any illegality, infirmity or perversity in the judgment of the trial court.

64. We are unable to persuade ourselves to take an opinion different from that of the learned trial court.

65. The leave to appeal application is, accordingly, rejected.

66. The Government Appeal No.3137 of 2012 and Jail Appeal No.4479 of 2012, in consequence, stands dismissed.

67. Registrar General of this Court is directed to pay an honorarium of Rs.20,000/- to Sri Rajesh Kumar Singh, learned Amicus Curiae for rendering effective assistance in the matter.

68. Let the lower court record be transmitted back to court below along with a copy of this order.

 
Order Date :- 17.05.2022
 
D. Tamang
 

 
(Vikram D. Chauhan,J.)     (Suneet Kumar,J.)