Kallu And Ors.3 vs State Of U.P.
2023 Latest Caselaw 24094 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC-LKO:58595
 
Reserved on 29.08.2023
 
Delivered on 06.09.2023
 
Court No. - 29
 

 
Case :- CRIMINAL APPEAL No. - 677 of 2002
 

 
Appellant :- Kallu And Ors.3
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Prem Shanker,R.N.S.Chauhan
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. During the course of hearing of this appeal, the appellant no.1- Kallu died, hence the appeal as regards him has abated.

2. Heard Sri R.N.S.Chauhan, learned counsel for the appellant, Sri Rajesh Kumar Shukla, learned A.G.A. for the State and perused the material brought on record.

3. By means of this criminal appeal, the appellant nos.2, 3 and 4- Shamsuddin, Sarfuddin and Jamaluddin have challenged the judgment and order dated 16.05.2002 passed by the learned Additional Sessions Judge (Court No.1), Sitapur in S.T. No. 971 of 1997 "State vs. Kallu and Others" arising out of Case Crime No.79 of 1997, under sections- 307, 325, 324, 323, 504, 506 I.P.C., Police Station- Rampur Kalan, District- Sitapur, by which the appellants have been convicted and sentenced for one year rigorous imprisonment each under section 323 read with section 34 I.P.C., three years of rigorous imprisonment each under section 324 read with section 34 I.P.C., four years of rigorous imprisonment and fine of Rs.2,000/- each under section 325 read with section 34 I.P.C. and seven years of rigorous imprisonment and fine of Rs.3,000/- each under section 307 read with section 34 I.P.C.

4. The facts relevant for the purpose of this criminal appeal are as below:-

* The first informant Farukh son of Munir submitted a written report alleging therein that his father Munir and his uncle Abdul Karim had gone near a pond to relieve themselves at 6:00 in the morning of 12.04.1997; the accused persons namely Kallu, Shamsuddin, Sarfuddin and Jamaluddin resident of the same village, were lying in wait; they suddenly came out and attacked his father and uncle; Shamsuddin and Jamaluddin fired at them from a country-made fire arms; Kallu and Sarfuddin gave them blows from laathi and banka; first informant's father and uncle raised alarm; accused persons fled away. Both of them sustained serious injuries; they wanted to take their life; the incident was witnessed by Shamsher Ali and Mehndi Hasan.

* On the basis of the above written report, an F.I.R. being Case Crime No.79 of 1997 was registered and investigated upon.

* The injured persons were examined at Emergency of District Hospital, Sitapur. The Investigating Officer proceeded to inspect the spot. He took the statements of the witnesses, collected the medical reports and after completing the investigation submitted a charge-sheet against all the four named accused persons under sections- 307, 323, 324, 325, 504, 506 I.P.C.

* The case was committed to the court of Sessions; all of them were put to trial.

5. The prosecution produced following documentary evidence i.e. the written tehrir, two X-ray reports, two injury reports, chik F.I.R., copy of GD, the site map, seizure of the soil sample, the charge-sheet (Exhibit ka-1 to Exhibit ka-10 respectively).

6. The prosecution examined following witnesses:-

P.W.1- Farukh (the first informant)

P.W.2- Abdul Karim (the injured witness)

P.W.3- Munir (second injured witness)

P.W.4- Dr. A.K. Nigam (the Radiologist)

P.W.5- Dr. A.K. Agrawal (the doctor who examined the injuries sustained by the injured witnesses)

P.W.6- Shri Krishna Verma (Constable)

P.W.7- Raghav Ram Yadav (the Investigating Officer)

7. The statements of the accused persons were recorded and after hearing both the sides, the learned Sessions Court convicted all the accused persons under sections- 323 read with 34, 324 read with 34, 325 read with 34 and 307 read with 34 I.P.C. All of them were acquitted of the charges under sections- 504 and 506 I.P.C.

8. Before taking up the contentions of the appellants as well as the State, it shall be useful to briefly reproduce the statements given by the prosecution witnesses.

* P.W.1- Farukh who lodged the F.I.R. in this case, stated on oath that all the accused persons belonged to his village; accused Kallu wanted to buy a house which was purchased by the first informant's uncle Abdul Karim about 15-20 years before this incident; accused Kallu had filed a civil case in this regard; the case was won by his uncle Abdul Karim. Thereafter they had an altercation between them, culminating into physical fight. One of the accused Sarfuddin had lodged a report of that incident in the local police station; the criminal case lodged by Sarfuddin is pending; the accused persons nurtured enmity against them. On the date of the occurrence, his father and uncle had gone to attend nature's call early in the morning. When they were returning, Kallu exhorted his sons to kill them; Kallu, Shamsuddin and Jamaluddin suddenly came out from wheat field and Sarfuddin came out of thickets. Accused- Kallu was holding a laathi, accused- Shamsuddin a desi fire arm, accused- Sarfuddin a banka and accused- Jamaluddin was holding a desi gun; all of them attacked them.

Giving details of the incident, the witness has said that Shamsuddin and Jamaluddin opened fire upon his father; Kallu and Sarfuddin gave him blows from laathi and banka respectively. His uncle Abdul Karim was given blows by Kallu with laathi and by Sarfuddin with banka. Hearing the noise, a number of people from the village came in and the accused persons escaped. The witness has identified his signature on the written report and has proved that he got lodged the F.I.R.

* P.W.2- Abdul Karim has supported the prosecution case and has said that all the four accused persons suddenly attacked him when he was coming back after attending the nature's call. Shamsuddin and Jamaluddin fired open his brother Munir, while Kallu and Sarfuddin gave his brother blows from laathi and banka. He too was given blows by Kallu and Sarfuddin. The accused persons escaped when the co-villagers came in to rescue them. He has added that Kallu wanted to purchase the same house which was purchased by him at least 15-20 years before the occurrence and that Kallu wanted to illegally occupy the "sehen part" of his house and they had a brawl over this issue. A case regarding this dispute is still pending.

* P.W.3- Munir has supported the prosecution case and has told the same story as told by P.W.2 in his testimony.

* P.W.4- Dr. A.K. Nigam has prepared the X-ray reports and has proved them.

* P.W.5- Dr. A.K. Agrawal has stated that he examined the injuries sustained by Munir on 12.04.1997 at 2:00 p.m. at District Hospital, Sitapur and found two injuries of fire arm on his right and left thighs; one incised injury on iliac spine; two lacerations on his left side of the skull.

The witness has said that same day at about 2:10 p.m., he examined the injuries of injured Abdul Karim and found swelling on right upper limb, contused swelling on left upper limb, two incised wound on right knee and one incised wound near left ankle.

* P.W.6- Constable, Shri Krishna Verma is a formal witness who has proved the Chik F.I.R. and the GD Report No.11 at 8:30 p.m. of 12.04.1997.

* P.W.7- The Investigating Officer who has, apart from proving papers like charge-sheet and site-map etc., given evidence regarding the investigation done by him. The relevant portions shall be referred to as and when required.

9. As per prosecution case, the incident occurred at about 6:00 a.m. in the morning on 12.04.1997 when father and uncle of the first informant were returning after relieving themselves from near a pond on the southern side of the village. The witnesses of fact P.W.2 and P.W.3, who are the injured themselves, have given the evidence in this regard and also about the fact that the matter was reported to the police station at about 8:30 a.m. i.e. within two and a half hours from the incident. This has come in evidence that the first informant took both of the injured persons on a handcart after arranging it from the co-villagers. The distance of the police station is about 3 kms. from the village. There is consistent evidence that the injured were also taken to the police station before they were sent for medical examination.

10. Exhibit ka-7 G.D. in which the entry regarding lodging of F.I.R. has been made corroborates this part of the prosecution version that the injured persons accompanied the first informant when the F.I.R. was being lodged. The Exhibit ka-7 mentions those facts. Most importantly this paper also mentions same kind of injuries on the person of the injured as were found in medical examinations. The F.I.R. in this case has been lodged with reasonable promptness ruling out any chances of embellishments, introduction of colored facts or false implication.

11. As far as the background in which the incident took place is concerned, this has clearly come in the evidence that both the sides had long standing enmity over a house and its "Sahan". It has come in the evidence of P.W.1, P.W.2 and P.W.3 that the accused Kallu (who is since been dead and whose appeal has abated) wanted to purchase the same house which was purchased by the complainant side; this has further come in the evidence that both were neighbours and that there was also dispute regarding possession over adjoining space "Sahan"; a civil case regarding disputed property was filed and was pending between the two sides when this incident occurred. A certified copy of the judgment pronounced in Civil Appeal No.19 of 1993 dated 29.07.2014 (Kallu vs. Abdul Karim) has been produced by the prosecution to show that both the sides were engaged in litigation over immovable property. The witnesses have given evidence that before the incident of the instant case took place, there occurred one more criminal incident for which an F.I.R. being Case Crime No.23 of 1995, under sections- 324, 323, 504 I.P.C. was lodged against the complainant side who included Abdul Karim (P.W.2), Munir (P.W.3) and Farukh (the first informant herein). All the aforesaid facts and circumstances demonstrate that undisputedly both the sides nurtured enmity against each other over certain issues and were engaged in civil as well as criminal litigations since quite sometime before this occurrence.

12. The injured witnesses P.W.2 and P.W.3 have given testimonies supporting the prosecution case, proving that the four accused persons lay in wait and were hiding themselves in the wheat field and behind thickets, before they found a chance to pounce upon Abdul Karim and Munir. This has clearly come in the evidence that Jamaluddin and Shamsuddin were holding fire arm each, Sarfuddin was holding a banka (a sharp edged weapon) and Kallu was holding a laathi. The prosecution has been able to show that after the lodgement of the F.I.R., the injured persons were sent for medical examination and they were examined at the District Hospital, Sitapur between 2:00 p.m. and 2:10 p.m. Munir sustained multiple fire arm wounds; first on the interior and lateral aspect of left thigh covering an area of 25cm x 10cm; second on the interior and lateral aspect of right thigh covering an area of 15cm x 10cm; blackening was found present. This has come in the evidence that accused Jamaluddin and Shamsuddin had fired on Munir with the desi fire arms they were having. The P.W.3 Munir has added that after he was hit by fire arms, he tried to flee towards the fields, then Sarfuddin and Kallu chased him and caused him injuries with banka and laathi. The medical report shows that Munir sustained one incised wound on his iliac spine area of the size of 5cm x 1cm and two lacerated wounds of the size of 5cm x 0.5cm and of the size of 3cm x 0.5cm; both scalp deep and both on left side of head. The doctor has proved that the injuries were fresh. The injury report further consolidates statements given by the witnesses.

13. Second injured witness P.W.2- Abdul Karim too has supported the prosecution case and has given sufficient details as regards the occurrence. Like P.W.3 Munir, his evidence appears to be credible and convincing. There appears no discrepancies or any ground to doubt their oral testimony.

14. The defence has contended that P.W.1 the first informant did not see the occurrence and that he was not an eye-witness, therefore his testimony is nothing but hearsay. Another contention of the defence is that no independent witness has come out to support the prosecution case.

I went through the evidence on record; the P.W.1 has said that when his uncle and father were coming back after attending nature's call he was going to same place for the same purpose and he with his own eyes saw the accused persons assaulting and causing injuries to his father and uncle. It has been argued that had he been on the spot, he would have certainly tried to intervene and to save the members of his family, however he made no such attempt which is unnatural. No doubt the P.W.1 has said he just kept on making noise and that he made no attempt to save them however. In my view, this isolated statement is not enough to presume that he was not on the spot. Naturally, his conduct or overtures were certainly guided by a number of factors like whether he had enough time to react and save his family members or whether he was near enough to actually rescue them etc. Even if for the sake of arguments, it is presumed that he was not an eye-witness and his evidence is discarded for this reason alone, the evidence of P.W.2 and P.W.3, who are injured persons and who have given a credible, consistent and convincing account of the incident are sufficient enough to prove the prosecution case. The prompt F.I.R., the G.D., the medical evidence, the presence of motive are corroborative evidence which fully prove the prosecution case. Lack of independent witness is immaterial.

15. The Supreme Court in Ramkrishna vs. State of Haryana, AIR 2004 SC 4678, observed as below:-

"The evidence of an injured witness has to be appreciated keeping in view that ordinarily a person who has been assaulted by someone would not allow him to go scot free and falsely implicate persons other 14 than those who actually assaulted him. The evidence of injured witness stand on different pedestal as compared to any other witness cited by the prosecution as eyewitness who claims to have seen the incident."

16. Enmity between two sides is an admitted fact. Enmity can act as catalyst to falsely implicate the accused persons; at the same time enmity can motivate the accused side to commit a crime. My view is that in this case, the accused persons were motivated to commit the crime because of them being inimical to complainant's side.

17. The learned trial court considered the prosecution evidence and evaluated the same in the right perspective; I agree with the opinion of the learned trial court with regard to the prosecution case that, motivated over inimical relations between the two sides, the accused persons, in a well-planned manner attacked two persons of the complainant side and caused them injuries from fire arms, a banka (a sharp-edged weapon) and a laathi (a blunt weapon). Now, the only question which remains to be considered is whether the accused person assaulted the complainant side with such intention or knowledge and under such circumstances that, if they by that act caused death, they would be guilty of murder?

18. There cannot be two views that whether the accused persons had requisite intention or knowledge and additionally whether there were circumstances to cause death of the injured by their act, can only be gathered from all the facts and circumstances of that particular incident. The nature of the weapon used, the manner in which it was used, the motive, the nature of the injuries caused, the parts of the body where the injury was inflicted, may be some of the factors which give definite indications towards the presence or lack of intention or knowledge. When the Court proceeds upon to determine the presence or absence of such intention or knowledge, it has to tread with caution. It should be kept in mind that none of the factors as elaborated above, may be sufficient in itself, to conclusively prove such intention, however all the factors cumulatively may throw sufficient light and assist the Court in arriving at a certain definite conclusion. All said and done, the burden remains on the prosecution to establish that there was indeed an attempt to murder.

19. The learned trial court has considered the matter in this regard and gave an opinion that when a person is attacked most likely he will run away and shall not remain static at one place, hence such a person is bound to receive injuries on various parts of the body. The learned trial court gave further opinion that cumulative effect of the injuries was sufficient to show the intention to kill.

20. I went through the prosecution evidence in this regard; it has come in evidence that first of all Shamsuddin and Jamaluddin fired at Muneer; thereafter rest of the two accused persons namely Kallu and Sarfuddin thrashed him with laathi and banka. Abdul Karim was the next person who was attacked with laathi and banka; there is no evidence to show that the accused persons made any attempt to fire upon Muneer a second time. There is no evidence to show that they made any attempt to fire upon first informant's uncle Abdul Karim; there is no evidence to show that the accused persons tried to shoot the injured on some vital part of the body, but somehow it hit his lower limbs. The accused persons were having a banka which is a sharp-edged weapon and dangerous too, but only one blow was caused to injured Muneer causing injury on his iliac spine area which was subcutaneous deep. The other injured Abdul Karim sustained three injuries subcutaneous deep; all below knee; not a single incised wound has been caused to him on any vital part of his body; this injured sustained two injuries caused by blunt weapon on his hands; except one caused by blunt object on right upper limb, rest all the injuries were simple in nature. The Court cannot give any conclusion on the basis of surmises and conjunctures. It cannot presume that infact the accused persons wanted to hit the injured at some vital part of the body but because of some intervening circumstance, the bullet hit him below waist. In my view, even if all the injuries are cumulatively considered, I do not find it safe to convict the accused persons for offence under section- 307/34 I.P.C. In my view, there was definitely an intention to cause hurt and grievous hurt by using such weapons like banka, fire arm and laathi. The prosecution has proved the offence of section- 323/34, 324/34 and 325/34 I.P.C. against the accused persons beyond reasonable doubt by producing trustworthy, ocular and documentary evidence. I do not find any reason to interfere in that part of the judgment and sentence.

21. An argument by the side of defence has been advanced for releasing the accused persons on probation. I do not find this case as fit for giving them benefit of probation for the reasons that the complainant's side was attacked in a well-planned manner; the accused persons were hiding in a wheat field and behind thickets before they attacked the complainant's father and uncle; this is not a case where incident took place in a sudden fight or provocation; both the sides are having long standing enmity. The aim and object of releasing the accused on probation is to reform a criminal and to provide them an opportunity to mend their ways. In my view, the Courts of law and justice should not show indulgence where no feelers are forthcoming to support the chances of genuine reformation. The planned manner of attack indicates to opposite direction. Moreover, the law should not be applied in a manner so as to embolden culprits in committing the crime and move freely. The sensitivities of a victim should also be considered when the Court decides to give the accused persons benefit of probation. Undue sympathy to the accused persons would do more harm to the public confidence and may not serve the ends of justice. And it is the duty of the Court to keep in mind the larger goal of law. The law is only respected when it becomes visible. Therefore, the sentencing part of the order with regard to offence under sections- 323/34, 324/34 and 325/34 I.P.C. is not interfered at.

22. The judgment and order dated 16.05.2002 passed by the learned Additional Sessions Judge (Court No.1), Sitapur in S.T. No. 971 of 1997 is hereby modified and the accused-appellants are acquitted of the charges under section- 307/34 I.P.C. Rest of the judgment and sentence is affirmed.

23. Accordingly, this criminal appeal is partly allowed.

24. The accused-appellants shall immediately surrender before the court concerned and undergo remaining part of sentence.

25. Let copy of the judgment be immediately notified to the court concerned for compliance.

26. Lower court record be returned immediately.

Order Date :- 06.09.2023

Saif/Asha