Allahabad High Court
Nikka vs State Of U.P. on 1 April, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
1
Neutral Citation No. - 2024:AHC:64725-DB
Court No. - 42 A.F.R.
Case :- CRIMINAL APPEAL No. - 5137 of 2021
Appellant :- Nikka
Respondent :- State of U.P.
Counsel for Appellant :- Rahul Saxena,Satyendra Kumar
Mishra,Surendra Pal
Counsel for Respondent :- G.A.
Connected with
Case :- CRIMINAL APPEAL No. - 1178 of 2022
Appellant :- Bhola
Respondent :- State of U.P.
Counsel for Appellant :- Rahul Saxena,Satyendra Kumar
Mishra,Surendra Pal
Counsel for Respondent :- G.A.
With
Case :- CRIMINAL APPEAL No. - 5268 of 2021
Appellant :- Jamil Alias Lala
Respondent :- State of U.P.
Counsel for Appellant :- Rahul Saxena,Satyendra Kumar
Mishra,Surendra Pal
Counsel for Respondent :- G.A.
With
Case :- CRIMINAL APPEAL No. - 5408 of 2021
Appellant :- Gama
Respondent :- State of U.P.
Counsel for Appellant :- Rahul Saxena,Satyendra Kumar
Mishra,Surendra Pal
Counsel for Respondent :- G.A.
And
Case :- CRIMINAL APPEAL No. - 5608 of 2021
Appellant :- Shama
Respondent :- State of U.P.
Counsel for Appellant :- Rahul Saxena,Satyendra Kumar
Mishra,Surendra Pal
Counsel for Respondent :- G.A.
2
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
1. Heard Sri Ajay Pandey and Sri Rahul Saxena, learned counsel
for the appellants as well as learned A.G.A for the State and perused
the record.
2. This bunch of appeals are directed against the composite
judgement and order passed by the trial court in Sessions Trial No.
98 of 2017, arising out of Case Crime No. 2246 of 2016 (State Vs.
Shama and others), whereby the accused appellants have been
convicted under Section 302 read with 149 Cr.P.C. and sentenced to
undergo life imprisonment with a fine of Rs. 30,000/- together with
default sentence.
3. The prosecution case proceeds upon a report (Ext. Ka- 1) as
per which the informant Faizulla Khan S/o Tullan Khan is resident of
Village Kitnapur, District Pilibhit. On 18.11.2016 at about 6.00 a.m. in
the morning all the accused persons entered the house of the
complainant and on account of previous enmity dragged his son out
of the house to the road with the intention to kill him. All the accused
persons were having firearms. Accused Bhola then fired from the
licensed gun of Khaleel causing gun shot injury to the deceased. On
the intervention of the villagers, all the accused persons ultimately
fled from the spot. The informant's son Yunus later died. The
informant initially brought the injured to the police station where he
was sent to Primary Health Centre, Bisalpur and then to District
Hospital, Pilibhit. He was later referred to District Hospital, Bareilly
but he died while on the way to Bareiily. On the basis of such written
report, first information report came to be lodged as Case Crime No.
2246 of 2016 on 18.11.2016 at 8.30 in the morning. The place of
incident is 4 kilometer from the police station.
4. The dead body of the deceased was taken to the mortuary on
the date of incident itself at 4.30 p.m. where inquest followed.
Information with regard to the death has been furnished by the
Rehmat Khan S/o Faizulla (P.W.-2). The inquest was completed at
about 5.30 p.m. The post mortem was also conducted on the same
day at about 11.45 p.m. by Dr. Manjeet Singh (PW- 4). As per the
post mortem report, following injuries were found on the deceased
during post mortem examination:-
Wound of entry 8 cm above from upper border of left patella
on front of the lower portion of thigh with size of wound 10 x 6.5 x
inverted & margin lacerated on cutting haematoma present and
vessels and mussels damaged.
Wound was through and through and communicating with the
external (exit) wound and underneath bone is fractured.
Wound of exit 6 cm. from upper border of popliteal upper
fossa on back of left thigh and size of wound is 11 x 6.5, everted
margin and casseration. Both the wounds are communicated with
each other. Tattooing & blackening & singeing of hair is not present
on both the wounds.
5. According to the autopsy surgeon, the cause of death of the
deceased was shock and hemorrhage due to ante mortem fire-arm
injury.
6. The accused persons were later arrested on 20.11.2016 and
the weapon of offence, namely double barrel licensed gun, along
with cartridge and two country made pistols etc. were recovered
from the accused Khaleel S/o Zafar Khan and Bhola S/o Jamil Khan
and others and Case Crime No. 2249 of 2016 and 2250 of 2016,
under Section 25/27 Arms Act were registered at 5.10. p.m. on the
same day i.e. 20.11.2016.
7. The record further reveals when the injured was taken to the
District Hospital, Pilibhit on 18.11.2016, his X-ray was got
conducted. The X-ray report is on record (page 17 of the paper
book). Deceased Yunus Khan alias Bhoora had suffered fracture in
his left thigh in the femur bone region. This document reveals that at
District Hospital, Pilibhit itself the deceased had died. The
investigation further proceeded and bloodstained earth and plain
earth were collected from the spot by the Investigating Officer (Ext.
Ka-15). The weapon of assault i.e. 12 bore double barrel gun and 12
bore used bullet were also produced (Ext. Ka-16). The recovered
firearm alongwith used bullet was sent for scientific examination to
the Forensic Science Laboratory and its report is on record which
shall be dealt with later. The investigation was ultimately concluded
and charge sheets were submitted on 13.01.2017 (Ext. Ka-18),
20.12.2016 (Ext. Ka-21), 20.12.2016 (Ext. Ka-22 and 02.01.2017
(Ext. Ka-23). Cognizance was taken by the concerned court and
since the offence was triable by the court of Sessions, the matter
was referred to the court of Sessions where four Session Trials were
registered. Charges were framed against the accused appellants
who denied the accusation and claimed to be tried. The Session
Trial No. 98 of 2017 was in respect of Case Crime No. 2246 of 2016,
under Sections 147, 148, 149, 302, 452, 504 I.P.C., Police Station
Bisalpur, District Pilibhit. Session Trial No. 99 of 2017 was in respect
of Case Crime No. 2249 of 2016, under Section 25/27 Arms Act,
Police Station Bisalpur, District Pilibhit. Session Trial No. 100 arose
out of Case Crime No. 2250 of 2016, under Section 25/27 Arms Act,
Police Station Bisalpur, District Pilibhit. Session Trial No. 101 of 2017
arose out of Case Crime No. 2250 of 2016, under Section 30 Arms
Act, Police Station Bisalpur, District Pilibhit. All the session trials
have been clubbed and disposed of vide judgment and order dated
06.10.2021 by the Session Judge, Pilibhit and accused appellants
have been convicted and sentenced as per above. Against the said
judgment and order, five appeals have been preferred before this
Court.
8. The prosecution has produced testimonies of following
prosecution witnesses:-
(i) PW-1 Faizulla Khan, (ii) PW-2 Rehmat Khan, (iii) PW-3 Hitesh
Kumar, (iv) PW-4 Dr. Manjeet Singh, (v) PW-5 Puskar Singh, (vi)
PW-6 Munees, (vii) PW-7 Ramveer Singh, (viii) PW-8 Shakeel
Ahmad, (ix) PW-9 Suresh Kumar Singh and (x) PW-10 Pushkar
Singh.
9. In addition to oral testimony of the prosecution witnesses, the
prosecution has also produced following documentary evidences:-
(i) F.I.R. Ext. Ka-2, Ext. Ka-4 and Ext. Ka-6, (ii) Written Report Ext.
Ka-1, (iii) Recovery memo of murder weapon licensed gun double
barrel 12 bore with used bullet Ext. Ka-16, (iv) Recovery memo of
bloodstained and plain soil Ext. Ka-15, (v) X-ray report, (vi) Post
mortem report Ext. Ka-7, (vii) Three reports of Forensic Science
Laboratory, (viii) Panchayatnama Ext. Ka-8, (ix) Four Charge sheets
Ext. Ka-18, Ext. Ka-21, Ext. Ka-22 and Ext. Ka-23.
10. All the accused appellants were then confronted with the
evidence adduced against them during trial in order to record their
statements under Section 313 Cr.P.C. All the accused appellants
denied the allegations made against them and stated that they have
been falsely implicated. It has also been asserted by the accused
appellants that they have been implicated on account of enmity.
11. Trial court has examined oral and documentary evidence
produced during trial in order to return the finding of guilt against the
accused appellants on the basis of which they have been convicted
and sentenced as per above.
12. Sri Ajay Pandey, learned counsel appearing in all the appeals
submits that the prosecution has failed to establish the guilt of the
accused appellants beyond reasonable doubt; the testimony of PW-
1, who is the sole eye witness, is not credible and reliable and the
conviction and sentence of the accused appellants, relying upon his
testimony, is not sustainable; it is submitted that F.S.L. report does
not support the prosecution case inasmuch as the gun shot wound
on the deceased neither tallies with the bullet recovered nor any
pallet has been found and no blackening or tattooing is noticed
either which nullifies the prosecution case of firing from a close
distance by a bullet; learned counsel for the accused appellants
further submitted that six persons were initially implicated in the
aforesaid offence but implication of one of them, namely Khaleel,
has not been accepted, which renders the testimony of PW-1
unreliable; learned counsel for the accused appellants also argued
that the prosecution case against all six accused persons intending
to murder the deceased is not credible as there is a solitary gun shot
injury on the thigh of the deceased, caused by accused Bhola,
whereas other five accused persons have not caused any injury to
the deceased; with reference to testimony of autopsy surgeon i.e.
PW-4 Dr. Manjeet Singh, it is urged that cause of death was
excessive bleeding on account of the fact that proper medical aid
was not rendered to the injured, at that time, as he was initially
taken to the police station, and later referred to Primary Health
Center, Bisalpur and then to District Hospital, Pilibhit. In this process
a lot of time was wasted. In case the deceased had been given
proper medical treatment and his bleeding was stopped, he might
have survived. In the alternative, learned counsel for the accused
appellants submits that even if the prosecution case is taken on its
face value, it would not indicate an offence under Section 302 I.P.C.
and as such, maximum punishment, which could be awarded to the
accused Bhola, would fall under Section 304-II I.P.C. Learned
counsel asserted that accused appellant Bhola has already
undergone incarceration for more than 8 years, as such, he is
entitled to be released on the punishment already undergone; so far
as other accused appellants are concerned, there is no overt act
attributed to them and since their implication is otherwise
ornamental, all other accused appellants are liable to be acquitted
and the appeals deserve to be allowed.
13. Learned A.G.A., on the other hand, urged that testimony of
PW-1 is wholly reliable, which is otherwise supported by the
documentary evidence on record. Learned A.G.A. further argued that
since the weapon used in the incident has been recovered from the
accused appellants and there was specific motive available to the
accused appellants to commit the murder, as such, the judgment
and order of the Court of Session merits no interference.
14. Before adverting to the respective submissions advanced on
behalf of the learned counsels for the parties, it would be relevant to
mention some features of the case. The deceased, who was aged
about 26 years, was of average built and he admittedly died on
18.11.2016. The inquest report as well as post mortem report clearly
shows existence of single gun shot injury caused to the deceased,
which resulted into two wounds, one of entry wound 8 cm above
upper border of left patella on front of the lower portion of thigh with
size of wound being 10 cm. x 6.5 cm. This wound was inverted and
margins were lacerated. On cutting, haematoma was found present
and vessels and muscles were found damaged. The wound was
through and through and communicated with the external (exit)
wound and underneath bone was fractured. The other wound is exit
wound from upper border of popliteal upper fossa on back of left
thigh and size of wound is 11 cm. X 6.5 cm., everted margin and
casseration. Tattooing, blackening and singeing of hair was found
absent on both the wounds.
15. The evidence on record therefore clearly shows that the
deceased died on account of single gun shot injury which has
caused both the injuries i.e. entry wound and exit wound. Cause of
death was shock and haemorrhage due to ante mortem fire-arm
injury. The F.S.L. report shows that clothes worn by the deceased
had bloodstained on major parts. The blood found was human blood
but was integrated. So far as firearm recovery from the accused
persons is concerned, it transpires that 12 bore DBBL Gun No.
87000 was examined. The F.S.L. report shows that 12 bore cartridge
recovered from the accused persons was fired from the DBBL Gun
No. 87000.
16. The prosecution case essentially relies upon the testimony of
PW-1 Faizulla Khan who happens to be first informant and is also
father of the deceased Yunus. In the examination-in-chief, PW-1 has
stated that the incident occurred at about 6.00 a.m. in the morning.
He had enmity with the accused persons. The accused entered his
house and hurled filthy abuses on his son and dragged out him from
the house to the public road. The accused Bhola fired from the
licensed double barrel gun of accused Khaleel with an intention to
kill Yunus. All other accused persons were armed with unauthorized
country made pistols. On receiving the gun shot injury, Yunus fell
down. On exhortation of PW-1, his other son Rahmat Khan (PW-2)
and neighbour Shahjad and Munees (not produced) arrived and the
accused persons left the injured thinking him to have died. All the
accused persons had entered his house armed with firearms having
common intention. The gun shot injury on Yunus has caused
excessive bleeding. PW-1 took his son Yunus to the police station
and after getting an application typed, lodged the report at Police
Station Bisalpur. After the report was registered, the police took the
injured to Primary Health Center, Bisalpur. As the condition of the
injured was deteriorating, the doctors advised him to be taken to the
District Hospital, Pilibhit. At District Hospital, Pilibhit, the doctors
advised the injured to be taken to Bareilly and as the injured was on
the way to Bareilly, he died. PW-1 has also stated that three months
prior to the incident, the accused had ransacked the shop of
maternal uncle of the deceased Yunus, namely Safiq Khan, and that
was the reason of enmity between them. Safiq Khan was also not
living with him. The accused persons are stated to be of criminal
nature and various cases were pending against them.
17. In the cross examination, PW-1 has admitted that a case
under Sections 323/324 I.P.C. is proceeding against him wherein
Islam is accused. Mulla is informant of that case. Father of Mulla is
Jaleel. Accused Shama, Gama and Bhola are real brothers. Accused
Jameel alias Lalla and Khaleel are also real brothers. Nikka is family
member.
18. Soon after the incident, PW-1 claims to have gone to the
Police Station, Bisalpur. He reached at Police Station, Bisalpur within
15-20 minutes. PW-2 came later and was standing behind him. Soon
after the incident, Daroga and local police arrived on the spot.
Following passage from the cross examination of PW-1 is relevant
and reproduced hereinafter:-
"हम लोग उजाला मे रवाना हो गये। 15-20 मिमनट मे थाने पहुच गये। पहले मै थाना
पहुचा। मेरा बेटा रहमत खां मेरे पीछे खड़ा हुआ है। यह उस मुकदमे का गवाह है। मै
आधा घण्टे के अन्दर थाने पहुच गया। सुबह 6 बजे गोली चली, लड़ाई हुयी, दरोगा जी
तुरन्त पहुच गये थे। दरोगा जी ने मुझसे पूछा मिक क्या मामला है। मैने कहा मिक रंजिजश
थी। दरोगा जी मेरे गांव पहुचे और मुझसे कहा मिक तुम थाने मे रिरपोट7 लिलखाओ मैने
रिरपोट7 लिलखाने थाने गया और मि:र मै थाने से तहसील गया, और वहां तहरीर टाइप
करायी और मि:र लड़के को गांव से अस्पताल इलाज हेतु भेज मिदया। लड़के के साथ
गांव के ही दरोगा जी ने एक जिसपाही अस्पताल भेजा और कहा मिक उसको अस्पताल
बीसलपुर मे भत? कराओ लड़का पुलिलस की मदद से गांव से अस्पताल पहुच गया और
उसका इलाज शुरु हो गया। मि:र मै रपट लिलखाकर थाने से अस्पताल पहुचा।"
19. PW-1 has categorically stated that solitary gun shot injury on
the deceased was caused by accused Bhola and that none of other
five accused persons either fired or did anything. The passage in
that regard is reproduced hereinafter:-
"भोला के पास तमंचा था। भोला ने तमंचे से कोई :ायर नही मिकया। उसने बन्दूक से
:ायर मारा। जब पहला :ायर हुआ तब मै लिलयाकत के दरवाजे से 10 कदम की दूरी पर
था, लिलयाकत के दरवाजे के पश्चिCम की तर: था। मै व यूनूस संग संग आगे पीछे जा रहे
थे। तभी :ायर हुआ, :ायर करने वाला मुझसे 10 कदम की दूरी पर था, यूनूस मेरे
साथ था, उसके :ायर आया। यूनुस मिगर गया। लिलयाकत के मकान के सामने लिलयाकत
के दरवाजे से 2 कदम की दूरी पर। घटना के समय मेरे पास 1 जानवर थे, मेरे पास दूध
देने वाले जानवर भी थे, मै जानवर पालने का काम भी करता हूँ। उसके लिलए मैने अलग
गोडा बना रखा है। उसी मे जानवर रहते है। कुल मिमलाकर मुल्जिGजमान थे। 6 मे से 5
मुल्जिGजमान ने कोई :ायर नही नही मिकया और कु छ नही मिकया। 5 मुल्जिGजम 5 कदम क ी
दरू ी पर खड़े रहे मेर े पूरब मे खड़े रहे। "
20. In the cross examination, PW-1 has stated that they never had
any fight with the accused persons nor had ever been disclosed to
them before three months of the incident. The passage in that regard
reads as under:-
"मेरी मुल्जिGजमान से कभी कोई लड़ाई नही हुई। अब लड़ाई बन गयी, जब से भूरा मरा
पहले कोई चक्कर नही था। न मुझसे न लडाई हो। पहले मुल्जिGजमान ने कहा था मिक (sic)sic))
मिक 3 माह पहले --- साथ मिदया था। यह बात मैने ए:.आई.आर मे नही लिलखायी थी,
दरोगा जी ने मेरा 2 बार 161 सीआरपीसी का ब्यान लिलया उसमे भी नही बतायी थी,
मुझे नही बताई इसकी वजह नही बता सकता।"
21. The cross examination of PW-1 also indicates that he had not
named any of the witness in the report and witnesses were later
introduced on the further questioning of the Investigating Officer. The
passage in that regard is reproduced hereinafter:-
"यह कहना गलत है मिक मैने जिसखाने से ब्यान मिदया हो, मैने रिरपोट7 मे मिकसी गवाह का
नाम नही लिलखाया है। मैने जब दरोगा जी को अपना ब्यान मिदया था, उसमे मिकसी गवाह
का नाम नही बताया था, घटना के 7-8 मिदन बाद दरोगा जी आय े , उन्होने मुझसे पूछ ा
था मिक मिकसको -2 गवाह रखोगे तो मैने तीन लोगो के नाम बताये थ े , जिजसमे अपन े
दामाद मुनीम खां क ो , अपने लड़के रहमत खां को और अपने लड़के शहजाद को गवाह
बनाने की बात कही थी। मैने तीनो आदमिमयो से पूछा था मिक क्या गवाही दोगे। इन्होने
कहा मिक हम पक्की तौर पर गवाही देंग े , नाम लिलखा दो। दरोगा जी ने कहा मिक ठीक है म ै
गवाह बना देता हूँ। मेरे जिजन कपड़ो पर यमिनस खां का खून लगा था दरोगा जी ने कब्जे मे
ले लिलये थे। खलील खां पर तमंचा नही था बन्दूक थी। मैने ए:.आई.आर में यह बात
लिलखाई थी मिक सभी लोगो पर तमंचे थे। यह मैने ए:.आई.आर. मे मैने लिलखा मिदया यह
मै नही जानता। मेरे इस मुकदमे मे र:ीक , जामिहद , श:ीक , लिलयाकत मिकसी को भी गवाह
नही बनाय ा , जबमिक इन लोगो के घर घटना स्थल के पास है लिलयाकत के घर म े
लिलयाकत के बच्चे रहते ह।ै जबमिक श:ीक खां घर पर थ े , लेमिकन मैने इनमे से मिकसी क ो
गवाह नही बनाय ा , उन लोगो ने कहा मिक हम गवाही नही देंगे। इन लोगो ने कहा मिक हम
झठू ी गवाही नही देंग े , सच्ची गवाही देंगे। "
22. PW-2 Rahmat Khan is brother of the deceased and he has
also supported the prosecution case. He has also implicated the
accused Bhola of causing gun shot injury. In the cross examination,
he has admitted that PW-1 had taken the deceased to the police
station and he had also joined him. This witness has been
confronted with his previous statement in which he has not disclosed
that he had gone with PW-1 to the police station.
23. PW-3 is Constable Hitesh Kumar. He has proved the G.D.
entry relating to three reports lodged in the matter.
24. PW-4 is Dr. Manjeet Singh who has conducted the
postmortem on the body of the deceased. He has clearly stated that
there is only one firearm injury. Following passage from cross
examination of PW-4 is relevant and is reproduced hereinafter:-
" यनु ुस की मत्ृ यु उसके जॉघ में जो घाव था उससे अत्यश्चिधक खून बहने के कारण हुई
थी। अगर रक्त श्राव बन्द हो जाता तो उसकी मृत्यु नहीं भी हो सकती थी। मैं यह नहीं
बता सकता हूँ मिक बच सकता था। या नहीं। रक्त श्राव रोकने के लिलए बाँध मिदया जाता व
और उसको प्राथमिमक उपचार मिदया जाता प्राथमिमक उपचार में आई०वी० मि:लूट रक्त
चढ़ाया जाता है।
मृतक की मृत्यु का कारण उसकी मृत्यु पूव7 चोट से अश्चिधक रक्तश्राव तथा सदमा था। यह
चोट बुलेट से आयी थी। बुलेट पोस्टमाट7म में मृतक के शरीर में नहीं मिमली थी।"
25. PW-5 is Senior Sub Inspector Puskar Singh who has proved
the inquest report. PW-6 is Munees who has admitted that he arrived
at the place of occurrence after five minutes of the incident on
hearing the commotion. He has admitted that he works as daily
labour for about 5-6 months at Delhi.
26. Additional S.H.O. PW-7 is Ramveer Singh who has prepared
the site plan and proved the recovery of clothes, plain and
bloodstained earth etc. PW-8 is Sub Inspector Shakeel Ahmad who
is Investigating Officer and has arrested the accused persons, from
whose possession firearms were recovered. PW-9 is Incharge
Inspector Suresh Kumar Singh and is formal witness. He has stated
that implication of Khaleel was found false. PW-10 is Sub Inspector
Puskar Singh who has conducted the investigation in Case Crime
No. 2249 of 2016 and 2250 of 2016 under Section 25/27 Arms Act,
Police Station Bisalpur, District Pilibhit.
27. The evidence, noticed above, has been confronted to all the
accused who have stated that they have been falsely implicated on
account of enmity and they have not committed the offence. No
defence, however, has been produced in the matter.
28. The trial court in the facts of the case has returned the finding
that the prosecution has been able to prove its case against the
accused appellants beyond reasonable doubt. The accused Khaleel
was summoned under Section 319 Cr.P.C. but his implication has
not been established and consequently Khaleel has been acquitted.
All the five accused appellants Shama, Gama, Bhola, Nikka, and
Jameel Khan alias Lalla have been convicted and sentenced under
Sections 147, 148, 302 read with Section 149 I.P.C. The accused
Gama, Shama, and Bhola have also been convicted under Section
25/27 Arms Act. The accused Jameel Khan has also been convicted
under Section 30 Arms Act.
29. It is in the context of above material placed on record that this
Court is required to consider as to whether the prosecution has been
able to establish the guilt of the accused appellants beyond
reasonable doubt in the matter or not ?
30. Prosecution case essentially relies upon the testimony of PW-
1 who is the first informant and is father of deceased. As per the
prosecution, there was an old enmity on account of which the
accused persons entered his house; hurled filthy abuses on the
deceased; dragged him out of the house to the road whereafter
accused Bhola shot at the deceased with the licensed gun of
Khaleel Khan. Although, Khaleel Khan was also initially implicated in
the matter, but ultimately he has been acquitted after being
summoned under Section 319 Cr.P.C. It was noticed that Khaleel
Khan was above 80 years of age and there is no challenge to the
acquittal of Khaleel Khan.The incident allegedly occurred on account
of a previous enmity between the parties. The evidence on the
aspect of enmity, which also is the genesis of the offence, needs to
be carefully examined.
31. In the first information report, PW-1 has stated that there was
an old enmity, due to which the accused persons entered his house.
What was the enmity has not been explained in the FIR. The enmity
has been disclosed by PW-1 in his testimony. In his examination-inchief
PW-1 has stated that due to old enmity, the accused persons
entered his house. As per PW-1 about three months prior to the
incident, the accused persons had ransacked the shop belonging to
maternal uncle of deceased, namely, Shafiq Khan ever since then
the accused persons maintained enmity with the informant and the
deceased. It is further asserted by PW-1 that he had supported his
relative Shafiq who has not been residing in the village since then. It
is also alleged that the accused persons are dangerous persons
against whom various criminal cases are pending.
32. However, in the cross-examination PW-1 has stated that he
had no fight with the accused persons and it was only after the
incident that differences have arisen between them. He has
categorically admitted that the incident of ransacking of the shop of
Shafiq Khan was not mentioned in the FIR nor was it ever disclosed
to the Investigating Officer during recording of statement under
Section 161 Cr.P.C. It is otherwise apparent on record that no FIR or
even a complaint relating to incident of ransacking of shop of Shafiq
Khan was ever made or disclosed to the police. No other cause of
enmity has otherwise been disclosed. The other two witnesses of
fact, namely, PW-2 and PW-6 have also not substantiated the plea of
prior enmity. In such circumstances, analysis of evidence on record
does not substantiate the plea of prior enmity between the parties.
Such a plea otherwise appears to have been set up for the first time
during trial and no reasons are disclosed as to why such important
information was withheld by the witness earlier during investigation.
The prosecution has also not been able to demonstrate as to what
exactly was the genesis of the dispute between the parties. No
evidence has been collected in that regard during trial. In the
absence of there being any credible evidence on the point of enmity
or the genesis of offence, we are not inclined to endorse the
submission of learned A.G.A. that there existed prior enmity between
the parties on account of which the incident occurred.
33. The prosecution case essentially rests upon the testimony of
PW-1, who is the first informant and the father of deceased. PW-1
has specifically asserted that all six persons had entered into his
house and had dragged the deceased outside the house and took
him to the road where he was shot at by the accused Bhola.
According to PW-1 all accused had firearms with them. As per PW-1
it was Bhola who shot at the deceased.
34. We have perused the inquest and the postmortem report,
which shows existence of a solitary gunshot injury on the thigh
region of the deceased. The wound of entry and exit have already
been reproduced above which would clearly go to show that only
one fire was shot at the deceased. The place of injury apparently is
not on the vital part of the body. We also find that no repeat gunshot
was fired. In the event, intent of the accused was to kill the deceased
either the gunshot injury would have been caused on some vital part
of the body or repeat fire could have been resorted to. We also find
that five other accused allegedly were armed with firearms and in the
event all of them intended to eliminate the deceased, there was no
reason why none of them did any overt act nor any fire was shot by
any of them. One of the accused specifically implicated by PW-1 is
Mohd. Khaleel, who was above 80 years of age and has been
acquitted after he was summoned under Section 319 Cr.P.C. The
testimony of PW-1 is also questioned on the ground that implication
of Khaleel once is found false, his testimony cannot be treated to be
entirely reliable.
35. So far as testimony of PW-2 is concerned, though this witness
claims to be present at the place of incident but his reference is not
made in the first information report nor he is a witness to the inquest.
The presence of PW-2 is also questioned by the appellants on the
strength of statement made by PW-1, as per which, the Investigating
Officer inquired from him as to who would be nominated as witness.
According to PW-1, he has disclosed the Investigating Officer that
PW-2 would be a witness and after being satisfied that this witness
would also testify in favour of prosecution that PW-2 was
subsequently introduced. It is also pointed out that statement of PW-
2 has been recorded by the Investigating Officer on 22.11.2016 i.e.
two days after the incident. His statement is recorded on the same
day when statement of Shahzade was also recorded under Section
161 Cr.P.C, but he was not produced.
36. So far as PW-6 is concerned, he has admitted that he came at
the place of occurrence after hearing the commotion. PW-6 by his
very statement therefore has admitted that he was not an eyewitness
and arrived subsequently at the place of occurrence. PW-6
has only stated that he saw the accused persons leaving the spot.
37. It is in the context of testimony of above three witnesses of
fact that we are required to determine as to whether there was any
intention on part of accused persons to kill the deceased or not.
38. So far as implication of persons other than accused Bhola is
concerned, no overt act has been attributed to them. Out of those
who were allegedly present with firearms, none of them are even
claimed to have fired at the deceased. Implication of one of the five
other accused persons namely Mohd. Khaleel has been found
wrong. In the event, the intent on part of other accused persons was
to eliminate the deceased, there was no reason why none of them
did any overt act on the spot. In the facts of the case, we are
persuaded to accept the contention of the appellants that the
presence of other five accused was ornamental and merely to add
colour to the prosecution case. Though, recovery of firearm is shown
from some of those other five accused persons but the recovered
firearm from them have not been connected in any manner with the
firing on the accused, inasmuch as the case of the prosecution is
that the firing by Bhola on the deceased was from the licensed
double barrel gun of Mohd. Khaleel.
39. One of the other important aspects that needs examination in
the facts of the present case, is the cause of death of the deceased.
The post-mortem report indicates that the cause of death of the
deceased was shock and haemorrhage due to ante-mortem firearm
injuries. The Autopsy Surgeon however has clearly stated that the
cause of death of deceased was excessive bleeding. It is also
apparent from the evidence on record that though the incident
occurred at about 6.00 in the morning and the deceased was
profusely bleeding but he was not rushed to any hospital for
treatment. PW-1 admits that he took the injured first to the police
station from where he was sent to the Primary Health Centre,
Bisalpur and then to the District Hospital, Pilibhit. There was a gap of
several hours between the incident and the time of death of
deceased. As per the evidence on record, it was the failure to
provide immediate medical assistance to stop bleeding which
ultimately led to the cause of death. It is otherwise admitted by the
doctor that in ordinary course of things gunfire on the thigh area
would not lead to the death of the person and it was only on account
of excessive bleeding that the death occurred.
40. Considering the fact that there was only one fire shot at
deceased on his thigh region and there was no repeat shot fired on
the deceased clearly demonstrates that the accused appellant Bhola
had no intention to cause the death of the deceased. It is also
submitted that this was not a case where the nature of injury caused
to the deceased was such that in ordinary course such injury was
likely to cause death of the deceased.
41. From the evidence noticed above, we find substance in the
contention of the accused appellants that the offence attributed to
the accused appellant Bhola at the best would fall within the ambit of
Section 304, Part-II of the Indian Penal Code. Accused Bhola has
already undergone incarceration of more than seven years six
months without remission and with remission the period of
incarceration would be above eight years. In our view, the sentence
already undergone by the accused appellant Bhola, would
sufficiently meet the ends of justice. In our conclusion, the offence
committed by him at the best would fall within the ambit of Section
304 IPC Part II. Fine of Rs. 53,000/- imposed upon the appellant
Bhola is however, sustained. Failure to deposit the amount of fine
would result further incarceration of a period of six months.
42. The appeal is consequently allowed in part in respect of
accused appellant Bhola.
43. The appeal instituted by the other accused appellants Nikka,
Jameel @ Lalla, Gama and Shama are allowed for the reasons
recorded above and their conviction and sentence in Session Trial
No. 98 of 2017, arising out of Case Crime No. 2246 of 2016 (State
Vs. Shama and others) under Section 302 read with 149 Cr.P.C., is
set aside. Since the appellants are in jail, they shall be released
forthwith and shall be set free, unless are wanted in any other case,
subject to compliance of Section 437A Cr.P.C.
44. Copy of this judgment shall be communicated to the Chief
Judicial Magistrate concerned as also the concerned Superintendent
of Jail for necessary compliance.
Date: 01.04.2024
Rmk/A. Tripathi
