Mohd. Aslam Alias Kuyian v. State of U.P.

G.N. RAY, J. This appeal is directed against the Judgment dated September 27, 1984 passed by the Division Bench of the Allahabad High Court setting aside the judgment dated April 30, 1977 passed by the learned Additional Sessions Judge, Second Court, Kanpur (Dehat). By the impugned Judgment, the Division Bench of the Allahabad High Court allowed the appeal preferred by the State of Uttar Pradesh against the judgment of acquittal in Sessions Trial No. 235 of 1976 and convicted the accused/appellant Mohd. Aslam under Section 302 l.P.C. and sentenced him to imprisonment for life.

The prosecution story in short is that there is long standing enmity between Abdul Salem and Abdul Hamid Kham Pradhan on one side and the complainant Abdul Hamid on the other. Such enmity arose out of rival claim in piacing 'sawai' on the Akhara ofTajias at the time ofMoharram. Sawai is a kind offlag which is put on Tajias at the time ofMoharram. Over such dispute a civil litigation was going on between the said parties and there were also criminal proceedings under Section 107 read with Section 117 of the Code of Criminal Procedure between the said parties. Shamim Raza was nephew and son-in-law of Abdul Hamid, the complainant and the said Shamim Raza was doing pairvi of the said cases on behalf of Abdul Hamid. For the aforesaid reasons, Abdul Salem and Abdul Hamid Khan Pradhan. became inimical towards Shamim Raza and Abdul Hamid. Mohd. Aslam, the accused/appel-lant is the son of Abdul Salem. Both the parties were residents of village Bara, within Policy Station Akbarpur in the District of Kanpur. On December 25, 1975 at about 6.00 P .M. Shamim Raza was sitting on a wooden bench in front of a hair cutting shop ofliyas in village Raza. Mohd. Umar and Abdul Khaliq (P.W.l) were also sitting with him and the said three persons were talking. I== The Gumti of one Mohd. Laiq was at a short distance towards the east of that place. Bhurey (P.W.2), Qamruddin (P.W.3) and Abdul Hamid were standing -,I near the said Gumit and had also been talking. There was light coming from electric bulbs at that place. At that time, the accused/appellant, Mohd. Aslam came there armed with a double barrel gun. He challenged Shamim Raza and threatened to kill anyone who would come forward. Thereafter, he fired two shots. By said shots, Shamim Raza and Mohd. Umar sustained gun-shot injuries and both of them fell down. Shamim Raza died on the spot and the condition of Mohd. Umar also became serious. Such occurrence was seen by _... Mohd. Umar, Abdul Hamid, Bhurey and Qamruddin. Peer Mohammed (P.W.10) took Mohd. Umar to Lala Lajpatrai Hospital at Kanpur for treat-ment and at 7.'.j_O P,M. Dr.R.C. Asthana (P.W.8) examined Mohd. Umar. Abdul Harnitl went to his house and got a report of the occurrence written by Mohd. Raiiwan (P.W.4) and took the said report to Akbarpur Police Station which was aoout 4 miles away and lodged the F.I.R. at 7.15 P.M. Station Officer incharge of the Akbarpur Police Station, Mr. Jagdamba Prasad Misra, t.ook up the investigation of the case and he interrogated Abdul Hamid at the Police Station and thereafter reached the scene of occurrence at about 7 .55 P .M. He found the dead body of Shamim Raza lying at the scene of occurn;nce and he prepared inquest report and other connected papers. He also interrogated Bhurey, Qarnruddin and Abdul Khaliq who were the · e¥e-witpessbs,. He also prepared the site plan and found blood on the wooden berich and also on the ground and collected portion of the blood stained wooden bench and blood stained bricks. The injured Mohd. Umar was interrogated in th~ hospital on January, 1976. The post mortem examination -"I on the body ofShamim Raza was performed by Dr. Prakash (P.W.6). Mohd. Umar died in the hospital on January 4, 1976 and his post mortem examina-tion was performed by Dr.RD. Misra at Kanpur on January 5, 1976.

The accused/appj:llant Mohd. Aslam· denied the prosecution allega-tions against him ahd alleged that he was falsely implicated on account of ...... enmity and party faction. He also denied that'he had been absconding from the village and he examined two witnesses in defence. The learned Addi-tional Sessions ,Judge did not find the prosecution case and the evidences acceptable. Accordingly, he acquitted the accused/appellant. The State thereafter preferred an appeal before the Allahabad High Court and as aforesaid, the Allahabad High Court allowed the said appeal, set aside the judgment of acquittal passed by the learned Sessions Judge and convicted the accused/appellant under Section 3021.P.C. and sentenced him to suffer rigorous imprisonment for life.

Learned counsel appearing for the accused/appellant has strenuously contended that the High Court did not appreciate the sa!Utory principles governing the judgment of acquittal. He has contended that the learned Sessions Judge had taken pains in analysing in detail the evidences adduced in the case and gave reasonings for each of the findings as to why the prosecution case could not be accepted and what were the intrinsic deficien-cy in the evidences adduced in the case in support of the prosecution. The learned counsel has contended that the law is well settled that in a case of ;;...

acquittal, the appellate Court should not interfere with the judgment of acquittal if such judgment is based on consideration of the evidences ad-duced in the case and there is no perversity in coming to the finding for passing the judgment of acquittal. In such a case of acquittal, the High Court in exercise of its appellate power should not endeavour to appreciate the evidence on its own in order to come to different finding unlike in an appeal arising from the judgment of conviction. The learned counsel has contended that it has been established convincingly that there was party faction between the two groups over a dispute to place Sawai on Tajias and both civil and criminal proceedings were instituted between the two groups.

The learned counsel has contended that Abdul Hamid, the father-in-law of the deceased, Shamim Raza, was the principal man with whom Abdul Salem and Abdul Hamid Khan Pradhan had disputes and differen- ;... ces. There was no earthly reason to bear malice and grudge against Shamim

Raza who was only a son-in-law of Abdul Hamid Khan Pradhan. Accord-ingly, there was no reason to kill him particularly in the presence of eye-witnesses as alleged. Such fact was taken note of by the learned Sessions Judge in analysing the acceptability of the prosecution case and credibility of the witnesses examined in support of the prosecution case. The learned counsel for the appellant has also submitted that there was no reason for injuring Mohd. Umar by the accused/appellant. He has eon-tended that the alleged incident of gun shot injuries had not happened in the manner alleged by the prosecution but after such incident, the com-plainant and th~ other alleged eye-witnesses falsely implicated the ac- 'cused/appellant because of the old enmity between. the two groups. The learned counsel has contended that in a very short time, a written com-plaint was lodged in the Akbarpur· Police Station which is admittedly fotir n'.utes away from t~,e place of occurrence. The prosecution story is that after i the incident the said written complaint was reduced in writing by a person -s ' other than the complainant. and thereafter the complainant went to the

Police Station to file the written complaint. If the incident had taken place at about 6.00 P.J\L as alleged by the prosecution, it is practically impossible to lodge the said written F.I.R. at Akbarpur Police Station by 7.15 P .M., particularly when Abdul Hamid, ·the complainant did not straighta\vay go to the Akbarpur. Police Station but he had been to his house and got .a report of the occurrence written by Mohd. Raizwan (P.W.4) and· then ·todged the F.l.R. at the Akbarpur Police Station. The learned Sessions Judge had taken note of this very important fact in ·not accepting the prosecution case. Unfortunately, the High Court failed to appreciate the strong reasonings given by the learned Sessions Judge in not accepting the prosecution case. ·The learned counsel has· also submitted. that there is serious discrepancy so far as the injury of Mohd. Umar is ci:Jncemed. Admittedly, Mohd. Umar got injtired by a gun shot at the back but the manner in which the injured was sitting and the direction from which the gun was fired.by the appellant, could not have caused gun shot injuries at the back of Mohd. Umar. The learned Sessions Judge having noted such discrepancies had rightly rejected the prosecution case implicating the accused/appellant. He has also submitted that the doctor had noted that M~hd. u~,sustained gun shot injuries from a bullet but was the injuries. sustained by the other deceased, namely, Shamiin Raza a gun shot injury from pellets. It was nobodfs case that different guns had been used by the accused/appellant for injurllig the said two persons differently . Because of such discrepancy, the learned Sessions Judge was not illclined to accept the prosecution case and the suggestion given by the prosecution witnesses that Mohd. Umar might have turned his back in a reflex and received'the gun shot injuries at the back was not accepted by the learned Sessions Judge. The learned counsel 0 for the appellant has also contended that the alleged eye-witnesses were in the faction of the complainant Abdul Hrurud and they were partisan witnesses. Accordingly, their testimonies ,__ were required to be considered with extreme care and caution. The learned '}1~ Sessions Judge,' therefore, after. noting the various discrepancies in 1 the · prosecution · case; was not inclined to place reliance on the evidences adduced by tlie 'alleged eye-witnesses and acquitted the accused/appellant. Such order of acquittal, in the facts of the case and the reasons indicated by the learned Sessions Judge, was not required to be interfered with in appeal by the High Court.

We are, however, unable to accept the submissions made by the learned counsel for the appellant. In an appeal arising from an order of acquittal, the appellate Court is not precluded from appreciating the evidences on its own if the reasons given by the learned trial Judge in passing the order of acquittal, do not stand scrutiny and are against the weight of the evidences adduced in the trial. The appellate Court, will be quite justified in setting aside the order of acquittal if it appears to the court of appeal that improper consideration of the materials and evidences on record was made and the reasonings of the trial Judge are wholly unjustified. It is only necessary that the court of appeal should weigh the reasonings of the learned trial Judge with care and caution in the light of the evidences adduced in the case by giving cugent reasons as to why such findings are unreasonable and against the evidence. In the instant case, the High Court has taken care in analysing each and every finding of the learned Sessions Judge in the light of the evidences adduced in the case and has given cogent reasons as to why such findings were unreasonable and not acceptable. It is an admitted position that the two persons suffered gun shot injuries on December 25, 1975 in the evening and one of the injured persons died on the spot and the other was removed to hospital. He got serious injuries and later on sccummbed to such injuries. The mere fact that there was enmity and bitterness between the two groups, by itself, does not establish that the eye-witnesses falsely implicated the accused/ap-pellant. Shamim Raza was the son-in-law of Abdul Hamid and it was established in evidence that he was looking after the cases between the parties and making 'pairvi'in civil and criminal cases. In our view, the High ,\...-

Court is justified in holding that because of such positive role taken by Shamim Raza, he had incurred displeasure of the other group which acted as a motive for th~ gun shot injuries. The learned Sessions Judge doubted the prosecution case because of lodging the F.I.R. at 7.15 p.m. at Akbarpur Police Station wliich was about four miles away from the place of occur-rem 2 wh~re the incident, according to the prosecution, had taken place at about 6.00 P.M. We do not think that such F.I.R. could not have been ·lodged by that tiJ11e. The High Court has considered the reasonings of the learned Sessions Judge on the question of lodging the F.l.R. at Akbarpur Police Station within a short time and has, in our view, given very good reasons in not accepting the views entertained by the learned Sessions Judge. In our view, the learned Sessions Judge was also not justified in holding that the gun shot injuries suffered by Mohd. Umar had not been properly explained by the prosecution because the doctor had noted that such injuries were caused by bullet and not by pellets. The injuries suffered by Mohd. Umar as noted by the doctor do not run counter to the prosecu-tion case that such injuries were caused by the gun used by the accused/ap- ,J pellant. The High Court is right, in our view, in holding that the size of the pellet depends on the type of cartridge used in a gun. It cannot be held as a matter of course that simply because ·the pellets injuring the deceased Sharnim Raza were smaller in size than the size of the pellets used in injuring Mo~d. Umar, both the injuries could not have been inflicted by the same gun. The High Court, in our view, is also justified in not accepting the reasonings of the learned Sessions Judge that the injuries caused at the back of Mohd. Umar were not possible and run counter to the evidences adduced by the prosecution. There was interval though very short between the two shots and it is not at all unlikely or highly improbable that because of the inherent reflex, the other injured, Mohd. Umar, had turned his side and received the injuries at the back portion. In the mstant case, there are eye-witnesses to the occurrence and there are no intrinsic discrepancies in their evidences. Even if it is assumed that such eye-witnesses belong to the_ group of the complainant, their evidences are not liable to be discarded on that score if such evidences otherwise inspire confidence and get cor.- roborated by other evidences and from the nature of injuries, sustained by the deceased persons. The High Court is right in holding that although Abdul Khaliq (P.W.l) belonged to a group and appeared to be a partisan witness, his evidence was not required to be discarded on that ground but was required to be closely scrutilised. The High Court, in our view, is also justified in holding that QallJ.ruddin (P.W.3) was not related to Shamirn .... Raza, dece.ased or the complainant and he did not belong to any of the rival groups. This witness had no enmity with the accused/appellant or his father. Qarnruddin (P.W.3) has been rightly held by the High Court, as an independent and reliable_witness.

It appears to us that all the findings made by the learned Sessions Judge were considered in detail by the High Court and the findings of the --11 learned Sessions Judge were not accepted by the High Court by indicating that such findings were against the weight of the evidences and the salhe were wholly unreasonable. In the aforesaid circumstances, we do not find any reason to take a contrary view in thi~ appeal and set aside the order of conviction made by the High Court. The appea~ therefore fails and is dismissed. By the Order dated April 8, 1986, this Court granted bail to the accused/appellant. In view of tile dismissal of this appeal the bail stands cancelled and the accused/appellant is directed to surrender and serve out the sentence.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 554 of 1984.

From the Judgment and Order dated 27.9.1984 of the Allahabad High Court in Government Appeal No. 1.634 of 1977

M.R. Sharma, Ms. Anjana Sharma and R.D. Upadhayaya for the Appellant.

Arvind K. Nigam, Ms. Kamini J aiswal and A.S. Pundir for the Respondent.