Afjaal Husain vs The State Of U.P.
2023 Latest Caselaw 16244 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Neutral Citation No. - 2023:AHC-LKO:36305
 
Reserved on: 17.04.2023
 
Delivered on: 23.05.2023
 
Court No. - 13
 
Case :- CRIMINAL APPEAL No. - 280 of 2002
 
Appellant :- Afjaal Husain
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Gopal Narain Mishra,Anil K.Tripathi,Anil Kumar Awasthi
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 23.1.2002 passed by Additional District & Sessions Judge/F.T.C.-I, Lucknow in Sessions Trial No. 746 of 2001 arising out of Case Crime No. 4 of 2001 relating to Police Station- Chinhat, District- Lucknow, convicting and sentencing the appellant for the offence under Section- 307 I.P.C. for four years rigorous imprisonment with fine of Rs. 1,000/- and in default of payment of fine six months additional simple imprisonment; and under Section- 452 I.P.C. for one year rigorous imprisonment with fine of Rs. 500/- and in default of payment of fine six months additional simple imprisonment.

2. The prosecution, in brief, is that the complainant Mohd. Shakil is the resident of Kanchanpur Matiyari, Chinhat, Lucknow, the accused Afjaal Husain is the resident of Amarsanda, Barabanki and Smt. Nazni Khatun who was the erstwhile wife of the accused Afjaal got divorce from the accused Afjaal Husain. Afterwards the complainant got married with Smt. Nazni and at the time of incident she resided with the complainant and her daughter Sabina. Due to this enmity on 3.1.2001 the accused persons namely, Afjaal armed with .315 bore country made pistol, Sahid armed with .303 bore country made pistol, Mansoor, Javed @ Guddu, Dinesh and Raja Jaiswal armed with knife entered into the shop of the complainant Shakil and in order to commit murder immediately the accused Afjaal opened fire with .12 bore country made pistol. Due to this, the complainant had got gunshot injury in his chest and another fire was opened by the accused Sahid which inflicted in his thigh and due to this, the complainant fell on the earth. After hearing the sound of the fire and shriek the villagers namely, Irfan Pradhan, Parvez, Mohd. Latif and Sabbu rushed to the spot and on exhortation of the villagers, the accused rushed to Malhaur Station. This incident happened at around 5.30 pm. With the help of one Rajesh Kumar Jaiswal, the complainant rushed to the Chinhat police station. During intervening period someone informed the police, then immediately the sub inspector and other police personnel rushed to the spot and arrested the accused persons namely, Mansoor, Sahid, Javed, Raja and Dinesh. On the basis of written report, the FIR was lodged against the accused persons as case crime No. 04/2001, U/s 147,148,149,307 IPC and after arrest of these accused persons, the Fard was prepared by police personnel and case U/s 25 Arms Act was also lodged against the accused persons namely, Afjaal, Mansoor, Sahid, Dinesh, Raja and Javed alias Guddu as case crime Nos. 05/2001, 06/2001, 07/2001, 08/2001, 09/2001, 10/2001 respectively.

3. The case lodged against six accused persons including the appellant Afjaal U/s 147,148,149,307 IPC was investigated by Shri S.K. Katiyar, Sub Inspector and the case U/s 25 Arms Act was investigated by the S.I., Satyadeen Kanaujia.

4. After investigation, the chargesheet against the accused-appellant Afjaal and five other accused persons U/s 147,148,149,307 IPC was submitted before the magistrate court who took cognizance and case was committed to the court of sessions and the sessions court framed the charges against Afjaal, Javed, Mansoor, Sahid, Dinesh and Raja U/s 147,148, 307/149,452/149 IPC and Section 25 Arms Act. The charges were read over the accused persons in Hindi, but they denied the charges levelled against them and claimed to be tried. Since the offence was committed by the accused persons in single transaction, so the learned trial court proceeded and conducted joint trial against the appellant and other accused persons.

5. Learned trial court after conclusion of the trial exonerated all the five accused persons except appellant Afjaal U/s 147,148,307/149,452/149 IPC and Section 25 Arms Act and also exonerated to the appellant U/s 25 Arms Act.

6. On perusal of the records, there is no appeal filed on behalf of the State against acquittal of other co-accused persons. So only the accused Afjaal approached this Court by means of this appeal.

7. In order to prove its case, the prosecution examined the following witnesses:

(i) P.W.-1, Mohd. Shakil who is the complainant as well as the injured. He supported the entire prosecution version and stated that on alleged date of incident, he was present in his shop situated at Malhaur, Chinhat, Lucknow. The police party arrived immediately at the place of occurrence and arrested all the named accused persons. He did not know the name of other co-accused other than Afjaal. Thus, he narrated the entire version after cross examination. No any contradiction was found in his statement. But he could not dictate the role of other co-accused.

(ii) P.W. 2 Parvez who is the eyewitness and narrated the entire prosecution case.

(iii) PW-3, Avinash Chandra Pandey, S.H.O. who is the arresting party.

(iv) PW-4, Moti Lal Tiwari, S.I. who is also the arresting party and witness of recovery of arms.

(v) PW. 5, Dr. R.K. Gupta who medically examined the injured Mohd. Shakil on 3.1.2001 at 7.30 pm and following injury was found on his body:

"1. Lacerated wound 1.5 cm x 1 cm above head and left ear 13 cm above.

2. Lacerated wound 5 cm x 5 cm above abdomen 19 cm above navel 13 cm above.

3. Abrasion 3 cm x 3 cm on the inside of the right index finger.

4. Lacerated wound 3 cm x 1 cm x Deep wound up to the back side of the thigh, 30 cm above the left knee, the abrasion was inverted and fresh bleeding."

The doctor opined that injury no. 1 was caused by hard and blunt object and duration fresh; injury no. 2 was kept under observation and advised X-ray; injury no. 3 was simple in nature caused by hard and blunt object and duration fresh; injury no. 4 was also kept under observation and advised x-ray of left thigh. Duration fresh and the patient was referred to Civil Hospital, Lucknow for further treatment. The witness proved the injury report of the injured Mohd. Shakil as Ex-ka-3.

(vi) P.W. 6, Dashrath Lal Mishra, Head Constable who proved the chik report of Arms Act as Ex-ka-6 and GD of Arms Act Ex-ka-7.

(vii) P.W. 7, Shiv Prasad Singh, Constable Moharrir who was the formal witness.

(viii) P.W. 8, Dr. Vineet Naja who was the Junior Resident in General Surgery department of KGMC. He stated that the injured Mohd. Shakil was referred to the medical college, Lucknow and he was remained admitted from 3.1.2001 to 5.1.2001. The injured was discharged on 5.1.2001. He also examined the injured Shakil on 5.1.2001 and found six injuries on the body of the injured. He also prepared the injury report of the injured Mohd. Shakil and proved it as Ex-ka-8. The doctor opined that injury no.1 caused by hard and blunt object and duration fresh; injury no.2 caused by firearm; injury nos. 3 and 5 were simple in nature caused by hard and blunt object and injury no.4 was kept under observation.

(ix) P.W. 9, Satya Deen Kanaujia, S.I. who proved the site plan of Arms Act as well as prosecution sanction of accused Afjal as Ex-ka-10, Sahid as Ex-ka-11, chargesheet of Mohd. Sahid, Mansoor, Javed, Raja Jaiswal and Dinesh as Ex-ka-12 to Ex-ka-17 respectively. He further proved the site plan as Ex-ka-18 and recovery memo of blood infested cloth as Ex-ka-19 and chargesheet of Afjal as Ex-ka-20.

(x) PW-10, Surendra Kumar Katiyar, S.I. who was also the arresting party.

8. Thus, the prosecution relied on the oral evidence of PW-1 to PW-10 as well as the documentary evidence of Ex-ka-1 to Ex-ka-20.

9. After conclusion of the prosecution evidence, statement of the accused-appellants were recorded U/s 313 CrPC in which they stated that they have been falsely implicated in the case due to enmity. Thus, they denied the entire prosecution case, but they did not choose to lead any evidence in their defence.

10. Learned trial court after appreciating the entire evidence found the accused-appellant Afjaal guilty and convicted and sentenced him as stated above.

11. Being aggrieved and dissatisfied with the judgement and order dated 23.1.2002 passed by the trial court, the appellant has preferred this appeal.

12. I have heard Shri Anil Kumar Awasthi, learned counsel for the appellant, Shri Vijay Prakash Dwivedi, learned AGA appearing for the State and perused the material available on record.

13. Learned counsel for the appellant submitted that the prosecution miserably failed to prove the allegations beyond reasonable doubt and findings of the trial court is based on surmise and conjectures. It is further submitted that only on the basis of interested witnesses, the trial court convicted the appellant. There is no independent witness produced by the prosecution. Further submission is that PW-5, Dr. R. K. Gupta firstly examined the injured and is in doubt whether injury nos. 3 and 4 caused by firearm. No supplementary report was prepared by the PW-5. He is also in doubt whether the injury which was kept under observation caused by some hard and blunt object. While PW-8, Dr. Vineet Naja clearly stated that the injury which was inflicted to the injured was caused by firearm. Thus if this fact is true that the firearm injury was inflicted to the injured, then this fact is also established that the injury was present on non vital part of the body of the injured.

14. Learned counsel for the appellant further submitted that if the prosecution is admitted in toto, then no any offence would travel beyond section 324 IPC as the above injury was not grievous in nature. It is further submitted that there are several contradictions in the statement of the witnesses examined before the trial court. This fact is also established that seven persons including the appellant were arrested but out of seven persons only the appellant was convicted by the trial court.

15. Lastly, the learned counsel for the appellant submitted that the incident pertains to year 2001 and thus, about 22 years have already passed. Presently the age of the appellant is more than 50 years. It is also submitted that during investigation and during trial, he was lodged in jail. After conviction, he has got bail after filing of the appeal. Thus the appellant was remained in jail more than 1 year and 2 months. Thus, no useful purpose would be served to again send him to jail to serve out the remaining part of sentence. It is also submitted that presently the appellant side as well as informant side are well rooted in society. Thus, the learned counsel for the appellant prayed for Probation of Offender Act as the appellant has no previous criminal antecedents.

16. Learned AGA vehemently opposed and submitted that prosecution has been able to prove the allegation against the appellant beyond shadow of doubt. The injured Shakil has got gunshot injury which could be fatal and he could have died. Thus, he supported the judgement of the trial court and submitted that the appeal has no force and is liable to be dismissed.

17. So far as the argument that on account of the injuries, wherein on the non-vital part of the body, the trial court ought to have convicted the appellant u/s 324 IPC instead of 307 IPC, it would be appropriate to reproduce section 307 IPC hereunder:

"307.Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."

18. The first part of Section 307 refers to "an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder". The second part of Section 307, which carries a heavier punishment, refers to 'hurt' caused in pursuance of such an 'act'. It may be stated that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of IPC. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.

19. For the conviction under this section more importance has been given to mens rea or the intention than the actus reus or the actual act itself. The attempt should arise out of a specific intention or desire to murder the victim. The nature of the weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted is all taken into consideration to determine the intention.

20. In AIR 1982 SC 2013, Kundan Singh Vs. State of Punjab, the Hon'ble Apex Court has observed as under:-

"We are of the view that having regard to the facts and circumstances of the present case and particularly in view of the fact that P.W. 6 and P.W. 7 were in the courtyard of their house when the appellant fired gun shots and he could not, therefore, have intended to injure them, the conviction of the appellant under Section 307, I.P.C. was not justified. We think that the conviction of the appellant could be maintained only under Section 324 of the I.P.C. since P.W. 6 and P.W. 7 received simple injuries. We accordingly allow the appeal and alter the conviction of the appellant to one under Section 324 of the I.P.C. for causing simple injuries to P.W. 6 and P.W. 7 and since the appellant has already suffered imprisonment for about 16 months, we direct that the sentence imposed on the appellant be reduced to that already undergone by him and that he may be set at liberty forthwith."

21. The Apex Court in AIR 1996 SC 3236, Merambhai Punjabhai Khachar and others vs. State of Gujarat, wherein in an attempt to commit murder by fire-arm, victim has suffered a pallet injury, the Apex Court held that Section 307 I.P.C. cannot be held to have been satisfied and the conviction was altered to Section 324 of IPC.

22. In Ramesh vs. State of U.P., AIR 1992 SC 664, wherein the injury was found on the back of the injured. Accused was tried along with two other was convicted under Section 307/34 I.P.C. and sentenced to undergo rigorous imprisonment for four years, while the two others were acquitted. The Apex Court altered from section 307 of IPC into Section 324 of I.P.C. and sentence was reduced to the period already undergone with fine of Rs. 3000/-, which was to be paid to the complainant as compensation.

23. After considering the rival submissions and perusing the material available on record, I am of the view that the incident took place on 3.1.2001 at 5.30 pm, at that time day light was present and the appellant was arrested by the police with the help of local people. Hence neither date time or place of incident nor the identity could be disputed by the appellant. From the beginning of the incident, the role of the appellant for assaulting the injured with firearm is specified. On perusal of the record, it reveals that the appellant was the author of the fatal injury which was inflicted to the inured. All the witnesses of fact during trial have testified the appellant's specific role which the appellant failed to dislodge. There is no material on record to disbelieve the prosecution case against the appellant. The medical report itself shows that the injury which could be done was on non vital part of the injured. Thus the perusal of the statement of the prosecution witnesses although failed to prove the charges U/s 307 IPC.

24. In view of the aforesaid judgments of the Hon'ble Supreme Court and the facts and evidence of the present case, it appears that the ingredients of section 307 IPC are not satisfied. As stated above, the injured has received gunshot injury on back side of the xyphesternum and X-ray was advised but no supplementary report was collected by investigating officer. Thus, no such medical report has proved that the injuries were grievous in nature or were dangerous to life. The injuries were not on vital parts and the facts and circumstances of the case do not indicate that the accused-appellant has intention to kill the deceased. Thus, conviction of the accused-appellant under Sections 307 of IPC cannot be sustained and the appellant is liable to be convicted for the offence punishable under Section 324 of IPC. Thus, the appellant is convicted U/s 324 and 452 of IPC.

25. In Ankush Shivaji Gaikwad v. State of Maharashtra MANU/SC/0461/2013: (2013) 6 SCC 770 and Jitendra Singh v. State of U.P. MANU/SC/0679/2013 : (2013) 11 SCC 193 the Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad:

"While the award or refusal of compensation in a particular case may be within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation."

26. Section 357 Cr.P.C. empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victim that he is not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 Cr.P.C. depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay.

27. It is undisputed fact that the matter pertains to year 2001 and about 22 years have already elapsed. During investigation, trial and after conviction, the appellant was detained in jail more than one year and two months. So in my considered opinion after taking the view of incarceration period of the appellant, no useful purpose shall be served to again send the appellant to jail for remaining part of sentence and considering the entire facts and circumstances of this case, the end of justice shall be served if the sentence awarded by the trial court is reduced to the period already undergone U/s 324, 452 IPC.

28. In the present appeal fine of Rs. 1,500/- was imposed by the trial court. Section 357 Cr.P.C. empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victim that he is not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 Cr.P.C. depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay, which the Court has to conduct a summary inquiry.

29. Since the injured Shakil got several injuries but the fine as compensation awarded by the trial court to the injured is inadequate. So in the interest of justice, considering the provisions of Section 357 Cr.P.C., the total fine of Rs. 1,500/- is enhanced to Rs. 21,500/-, out of Rs. 21,500/-, Rs. 20,000/- (Rs. Twenty Thousand) shall be payable to the injured Shakil and remaining Rs. 1,500/- shall be deposited by the appellant in the State Exchequer. In case of death of the said injured persons, the same shall be payable to his legal heirs. If the appellant fails to deposit the same, he shall surrender or he be taken into custody to serve out imprisonment of one year as a default sentence.

30. 30 days time is granted to appellant to deposit the above fine from the date of production of certified copy of this order. The appellant is on bail. He need not to surrender. But his personal and surety bonds shall be discharged only after he had deposited the fine or has been arrested to serve out default sentence imposed herein above.

31. Thus, the appeal is party allowed on the point of conviction and partly allowed on the point of sentence.

32. Office is directed to communicate this order to the court concerned for its intimation and necessary compliance. The trial court record be also sent back.

Order Date :- 23.5.2023

Shravan