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Ghota Alias Guddoo v. State Of U.P. - CRIMINAL APPEAL No. 3840 of 2004 [2005] RD-AH 671 (9 March 2005)


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Court No.  46

Criminal Appeal No. 3840 of 2004

Ghota @ Guddoo Versus State of U.P.

Hon'ble R. C. Deepak, J.

Hon'ble M. K. Mittal, J.

The accused appellant Ghota @ Guddoo has prayed for release on bail during the pendency of Criminal Appeal no. 3840 of 2004,  filed against his conviction  under Section 302 IPC and sentence of life imprisonment as awarded by Addl. Sessions Judge, Court no. 1, Firozabad in S.T. No. 149 of 2003.

We have heard Sri Tej Pal, learned counsel for the accused appellant,  learned A.G.A. and perused the record.

According to the prosecution case the accused on 22.10.2002 at about 12 in the day time shot dead Wahabuddin @ Banti. The first information report was lodged on the same day at about 12.25 p.m., the Police Station being 1 k.m. away from the place of occurance. According to Sahabuddin complainant and brother of the deceased, he along with his brother Wahabuddin was going to the house of his maternal grand mother. Ikrar son of Mukhtyar and Ezaz son of Ismile were also going with them. When they reached near the clinic of Dr. Juber Ahmad Ansari, the accused Ghota @ Guddoo (appellant) along with Sajjad and Guddan came from the opposite side and Ghota @ Guddoo said to Wahabuddin that he had got him arrested. When his brother denied, the accused appellant insisted that he was got arrested by him. His brother again denied. There was some scuffle with the accused persons. They threw Wahabuddin on the ground and as soon as he got up, Sajjad and Guddan exhorted Ghota @ Guddoo to kill him and Ghota @ Guddoo fired with country made pistol at Wahabuddin, which  hit him on the left side of the chest and as a result thereof he fell down on Kharanja  and died at the spot. The complainant informed the police; the inquest was prepared at the place of occurance. Postmortem report shows that deceased received one fire arm wound of entry of 3-1/2 cm X 2 cm X cavity deep on left front side of the chest, 4cm above the left nipple, blackening and tattoing were not present. There was one abrasion of 4 cm X 1 cm on left fore arm, 2cm above left wrist. One metallic bullet was recovered from the body of the deceased.

The prosecution witnesses Sahabuddin P.W.-1, Ikrar P.W-2 and Jakir P.W.-3 have stated the prosecution case. According to defence case the accused has been falsely implicated because the accused had supported one Azim, a candidate for the legislative assembly.

Learned counsel for the accused appellant has contended that the prosecution has failed to show that that the witnesses were present at the time of occurance. According to him, the prosecution witnesses are chance witnesses as they were working in bangles factory and their presence at the time of incident is not probable and no reliance can be placed on their testimony. They are also interested witnesses. But according to learned A.G.A., it has come in evidence that they do not work on regular basis. Learned A.G.A. further contended that there is no material infirmity in the testimony of the witnesses and their presence cannot be ruled out and they cannot be termed as chance witnesses. The report was also lodged well in time. He further contended that although the complainant Wahabuddin is brother of the deceased but he has made statement that he was going with the deceased at the time of the incident and his testimony cannot be discarded on the ground that he is real brother of the deceased.

Learned counsel for the accused appellant further contended that medical evidence does not support the occular account as the deceased also received abrasion whereas it is alleged that fire shot was made but according to learned A.G.A., there was some scuffle and the deceased was thrown on the ground and in that he could  have received an abrasion on the left fore arm. In the circumstances, the contention of the learned counsel for the accused appellant cannot be accepted.

Learned counsel for the accused appellant has also contended that the accused has been acquitted under Section 25 Arms Act and the evidence as given by the witnesses cannot be read and the accused is entitled to bail. According to learned counsel for the accused appellant, his acquittal under Section 25 Arms Act shows that the alleged recovery of the country made pistol from him was not proved and in view of principle of estoppel, the acquittal disapproves the prosecution case. In support of his contention, he has placed reliance on the case of Pritam Singh and another Versus the state of Punjab 1956 SC 415 (S) AIR. In this case , the Hon'ble Apex Court held that the effect of a verdict of acquittal pronounced by competent Court on a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. In that case, the accused was acquitted under Section 19 (F) of Arms Act; however, the Hon'ble Apex Court confirmed the death sentence of the accused appellant in that case as the evidence against the appellant in the later proceedings was considered regardless of the evidence of recovery of the rivolver from him. In that case, the case under Arms Act was separately registered and the accused was convicted by the learned Magistrate, Faridkot but the appeal was allowed by the learned Add. Session Judge.

In the instant case the recovery of the 'Katta'  was made from the possession of the accused and he was separately tried for it but the record shows that the judgments in the case under Section 302 I.P.C. as well as under Sections 25 Arms Act were delivered by the same Court same day. Although the learned Trial Court should have tried the two case together but the acquittal under Section 25 Arms Act does not vitiate the trial under Section 302 IPC and the evidence that has come against the accused in that case has to be assessed and considered regardless of the evidence of recovery of 'Katta'. In the circumstances, this ruling of  Pritam Singh and another (Supra) does not help the appellant and the acquittal under Section 25 Arms Act cannot operate as estoppal or res judicata to the proceedings under Section 302 IPC.

Learned counsel for the accused appellant has also relied upon a case of Manipur Administration, Manipur Versus Thokchoin Bira Singh, 1965 (1) Cr. L.J. 120. In that case, it has been held by the Hon'ble Apex Court that the rule of estoppal in a criminal trial is that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppal or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or ditinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2). The rule is not the same as the plea of double jeopardy or autrefois acquit.

In the present case, the acquittal of the accused under Section 25 Arms Act was a different offence although it related to the main offence but that acquittal will not operate as estoppal and this ruling also does not help the accused.

The Hon'ble Apex Court in a recent case of  Kalyan Chandra Sarkar Versus RajeshRanjan @ Pappu Yadav and another, (2005) 2 SCC 42, has held that though principles of res judicata and principles analogous thereto are not applicable in criminal proceedings, still the courts are bound by doctrine of judicial discipline, having regard to the hierarchical system prevailing in the country.

In view of this recent observation of Hon'ble Apex Court, the principles of res judicata and analogous principle are not applicable to criminal proceedings and the plea of estoppal as taken by the learned counsel for the accused appellant cannot be accepted.

In view of the facts and circumstances of the case, but without prejudice to the merit of the appeal in any manner whatsoever, we are of the opinion that the accused appellant  is not entitled to bail at this stage; therefore, the bail application is liable to be rejected.

Bail application of accused Ghota @ Guddoo is hereby rejected.

Dated:- 9.3.2005



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