Allahabad High Court
Rashid Khan And Another vs State on 30 May, 2024
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:98736-DB
Reserved Judgment
Court No. - 43
Case :- CRIMINAL APPEAL No. - 1009 of 1982
Appellant :- Rashid Khan And Another
Respondent :- State
Counsel for Appellant :- N.K.Rastogi,A.N.Srivastava,Sageer Ahmad
Counsel for Respondent :- A.G.A.
With
Case :- GOVERNMENT APPEAL No. - 1673 of 1982
Appellant :- State
Respondent :- Rashid Khan And Others
Counsel for Appellant :- G.A.
Counsel for Respondent :- N.K. Rastogi,A.N. Srivastava,R.P.Singh,Sageer Ahmad
Hon'ble Siddhartha Varma,J.
Hon'ble Vinod Diwakar,J.
1. Upon the death of Nasir, his father Sajjan Khan had got lodged an F.I.R. on 26.02.1980 at 06:30 PM stating that Rashid Khan, Wahid Noor Khan and Zamir Ahmad Khan because of enmity had surrounded his son Nasir and had inflicted injuries upon him by a sharp knife. When Nasir raised a hue and cry then Tahir Khan son of Kallan Khan, Harun Khan son of Mohammad Raza Khan, Rahat Khan son of Ahmad Nabi Khan and Mohd. Yusuf son of Ilhajan Khan reached the spot and in their presence Nasir was murdered. He had stated in the F.I.R. that Nasir was lying dead on the spot and that he had approached the Police to get the F.I.R. lodged. On the same day i.e. on 26.02.1980, another F.I.R. was lodged by Rashid Khan son of Salamat Khan who had stated therein that Nasir son of Sajjan Khan and Tahir son of Sajjan Khan had attacked him and had made an attempt on his life. While they were attacking Rashid Khan, the crowed had collected which had facilitated his escape. So far as the F.I.R. which was lodged by Sajjan Khan was concerned, it gave rise to Case Crime No. 105 of 1980 and it was got registered under Section 302 of I.P.C. This cas was against Rashid Khan son of Salamat Khan, Wahid son of Ahmad Noor and Zamir Khan son of Ajeej Illa Khan. The other F.I.R. which was got lodged by Rashid Khan (the subsequent F.I.R.) was numbered as Case Crime No. 106 of 1980 and was lodged against Nasir, Tahir and one more person under Section 307 of I.P.C. So far as the F.I.R. which was lodged by Sajjan Khan was concerned in Case Crime No. 105 of 1980, charges were framed against Rashid Khan, Zamir Ahmad Khan and Wahid Noor Khan on 17.03.1981 by the Sessions Judge, Rampur. They were read over the charges and when they denied the charges, the trial was undergone.
2. From the side of the prosecution as many as eight prosecution witnesses were examined. The trial concluded on 26.04.1982 wherein Wahid Noor Khan was acquitted whereas Rashid Khand and Zamir Ahmad Khan were held guilty for the offence under Section 304 (II) of I.P.C. read with section 34 of I.P.C. and they were to undergo jail terms of four years, each with a fine of Rs. 100/-. In the default in the payment of fine, they were to undergo three months of rigorous imprisonment.
3. Aggrieved by the judgment and order dated 26.04.1982 Rashid Khan and Zamir Ahmad Khan filed an appeal being Criminal Appeal No. 1009 of 1982. Vis-a-vis the acquittal of Wahid Noor Khan and for the enhancement of sentence of Rashid Khan and Zamir Ahmad Khan, a government appeal being Government Appeal No. 1673 of 1982 was filed. Both the appeals were heard together.
4. Sri Sageer Ahmad, learned counsel for the appellants in Criminal Appeal No. 1009 of 1982 has argued that the appellants were innocent and if the statements of PW-1 and PW-3 are seen then it becomes apparent that PW-1 was not an eye-witness while it was doubtful that PW-3 was there on the spot. Learned counsel for the appellants took the Court through the statements of the PW-1 and the PW-3 and laid much stress on the fact that if the PW-3 was there on the spot then he also ought to have been injured. Learned counsel for the appellants further submitted that even if it was admitted that the incident had occurred it was not a case of an offence under Section 304 (II) of I.P.C. and, in fact, it was a case where the appellants ought to have been sentenced to some minor fine etc. Learned counsel for the appellants stated that if the incident is taken to be correct then definitely when there was a cross F.I.R., then there was no planned murder and there was also no intention to cause death. Learned counsel for the appellants further submitted that the appellant no.2 is now an elderly person and has crossed the age of 60 years and submits that if this Court agrees with the judgment of the Court below and convicts the appellants for the offence under Section 304(II) of I.P.C. then they may not be imprisoned and may be sentenced with imposition of fine.
5. Sri Amit Sinha, learned Additional Government Advocate has opposed the criminal appeal being Criminal Appeal No. 1009 of 1982 and has argued in the government appeal being Government Appeal No. 1673 of 1982 that the incident as had happened had been proved to have had happened. He submits that the injuries which were there on the body of the deceased definitely went to show that the appellants had gone with the intention to murder Nasir. Further he argued that even the third accused person who had been acquitted i.e. Wahid Noor Khan was guilty of the offence as he was very much there and he had also gone with an intent to kill.
6. Having heard Sri Sageer Ahmad, learned counsel for the appellants and Sri Amit Sinha, learned Additonal Government Advocate, we are of the view that the incident had occurred but we do agree with the findings of the trial Court that both sides were aggressors and that there were certain family enmities existing in between the two sides. We also agree with the findings of the trial Court that the appellants in Criminal Appeal No. 1009 of 1982 had not gone with an intent to kill the deceased. The appellant, Rashid, had died and the appeal vis-a-vis him had abated on 02.06.2023. So far as Zamir Ahmad Khan was concerned, we are of the view that he is now a senior citizen and no useful purpose would be served by sending him to jail.
7. Under such circumstances, so far as the Criminal Appeal No. 1009 of 1982 is concerned, we interfere in it only to the extent that we modify the sentence. The sentence shall now be that he shall pay a fine of Rs. 50,000/-. This amount shall be paid to the surviving legal heirs and representatives of the deceased Nasir son of Sajjan Khan within a period of three months.
8. The above criminal appeal is thus partly allowed.
9. So far as the Government Appeal No. 1673 of 1982 is concerned we are of the view that as per the judgment of the Supreme Court in Johar & Ors. vs. Mangal Prasad & Anr. reported in AIR 2008 SC 1165 the judgment is not to be interfered with as the view which had been taken by the trial Court was a possible view and, therefore, we refrain from interfering with the judgment of acquittal vis-a-vis Wahid Noor Khan.
10. In view of the above, the government appeal being Government Appeal No. 1673 of 1983 is accordingly, dismissed.
Order Date :- 30.5.2024
M.S. Ansari
(Siddhartha Varma,J.)
(Vinod Diwakar,J.)
