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State of U.P. v. Aminuddin & another - GOVERNMENT APPEAL No. 1512 of 1981 [2005] RD-AH 7125 (7 December 2005)


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                                Government Appeal No.  1512  of  1981

State of U P............................................................Appellant






Hon'ble M.C.Jain,J.

Hon'ble  M. Chaudhary,J.


            (Delivered by Hon'ble M.Chaudhary,J.)

This is a government appeal from judgment and order dated 31st of March, 1981 passed by III Additional Sessions Judge, Budaun in Sessions Trial No. 386 of 1978 State Vs Aminuddin & another  acquitting the accused of the charge levelled against them under section 307 read with section 34 IPC. Trial of accused Raisul Hasan was separated  as at the stage of the statement of the accused he absented himself and his presence could not be procured. Accused Janab Alam died during pendency of the case.

Brief facts giving rise to this appeal are  that  Argaban-ud-din and  Burhan-ud-din were real brothers and Imran-ud-din was the son  of their cousin  sister   Bujan.  Bujan was married to  Iqtidar-ud-din.   Iqtidar-ud-din  and Biqar-ud-din were real brothers and Aquil Ismail  was the son of their sister Salam Begum.  Nazim-ud-din  was the son of Biqar-ud-din. Janab Alam, Nawab Alam and Zaney Alam were real brothers and  Raisul Hasan was  the son of Zaney  Alam.  Zulfikar-ud-din and Aminuddin were the sons of Smt Idrisan, cousin sister of Janab Alam. Argaban-ud-din and their family members were on inimical terms with Aminuddin and their family members.  Some 5-6 months prior to the occurrence Janab Alam  was caused gunshot injury and a report of that incident was lodged by Aminuddin against   Iqtidar-ud-din and his cousins Nazim-ud-din  and Aquil Ismail and all the three were being prosecuted for causing firearm injuries to  Janab Alam. During  the night  between  3rd and 4th  of August 1978 Argaban-ud-din and his sister's son  Imran-ud-din alongwith one Shakir, Asrar and Shabbir Khan were returning back to their village from Kailash Talkies after seeing the night show  and at about 00:30 mid night as they   reached near Har Prasad temple they saw Aminuddin  and Janab Alam armed with guns alongwith      Zulfiqar-ud-din with countrymade pistol and Raisul Hasan with lathi present near the boundary of the temple in the electric light. Sighting  Imran-ud-din and Argaban-ud-din they shouted that they had good opportunity and they would not let them go alive and immediately Janab Alam fired a shot at Argaban-ud-din but he had a narrow escape and Aminuddin fired at       Imran-ud-din hitting him at his  face and again Janab Alam fired at        Imran-ud-din causing firearm injuries at his shoulder and their two associates  were shouting that they would not be permitted to go alive.  Sustaining the firearm injuries  Imran-ud-din fell down and then all the miscreants took to their heels shouting that they had avenged for being  fired at.  Then leaving injured Imran-ud-din  under supervision of Shakir, Asrar and Shabbir Khan,  Argaban-ud-din went to his house and informing his family members thereabout returned back to the spot but by that time  his companions had taken Imran-ud-din to the Hospital.  Then Argaban-ud-din rushed to the Hospital and after seeing him he went to the police station Budaun Kotwali and gave written report of the occurrence to the police there at 2:40 a.m. the same night.   The police prepared check report on the basis of written report of the occurrence handed over by Argaban-ud-din at the police station and made entry regarding registration  of the crime in GD.  SI Laxman Singh to whom investigation of the crime was entrusted recorded statement of Argaban-ud-din, the first informant at the police station itself.

               Medical examination of injured Imran-ud-din  by Dr Hamidullah, Medical Officer District Hospital Budaun at 1:40 a.m. revealed below noted injuries on his person:

1. Multiple gun shot wounds dispersed on face, neck, lips, chin measuring 0.2 cm x 0.2. cm  circular in shape  with inverted margins. Fresh oozing of blood from the wounds present but no tattooing or blackening present.  Dispersal about 1.2 cm apart.

2. Multiple gun shot wounds dispersed on left deltoid region left upper arm top of left  shoulder region, each measuring 0.2 cm x 0.2 cm but no tattooing  or blackening present. Dispersal about 1.2 cm apart.

3. Left canine tooth broken.

               The doctor opined that all the injuries were caused by firearm and fresh in duration. Injury no.3 was found to be grievous. All the injuries were kept under observation.

SI Laxman Singh to whom investigation of the crime was entrusted went to the District Hospital, Budaun and recorded statements of the witnesses and took blood stained vest of Imran-ud-din and prepared its  memo (Ext Ka 7). Then he went at the spot, inspected the scene of occurrence and prepared its site plan map (Ext Ka 8). Thereafter he searched for the assailants but in vain.

Next morning injured Imran-ud-din was referred to Medical College Aligarh  for his treatment and then he was rushed to Aligarh. But due to some problem he was not admitted there and then he was taken to District Hospital, Aligarh where he was admitted. X-ray of his lower jaw and  left shoulder  revealed multiple radio opaque  foreign body shadows of metallic density in upper part of shoulder and lower jaw. No bony abnormality was seen.

After completing the investigation the police submitted charge sheet against the accused accordingly.

After framing of the charge against the accused the prosecution examined Argaban-ud-din (PW 1), Imran-ud-din (PW 2) and Shabbir Khan (PW 3) as eye witnesses of the occurrence.  PW 4 Dr Hamidullah who medically examined injured Imran-ud-din  in District Hospital Budaun on 4th of August 1978 has proved the injury report.  PW 5 Dr N. K. Maheshwari Anesthetist  who x-rayed  left shoulder and lower jaw of injured             Imran-ud-din has proved the x-ray report.  PW 6 SI Laxman Singh who investigated the crime and after completing the investigation submitted charge sheet against the accused has proved the police papers.  PW 7 Dr P.K.Wadhwa, the then Dental Surgeon ,District Hospital Aligarh who found two teeth of injured Imran-ud-din broken in part and noted the said fact in bed head ticket  has stated  that fact.  

The accused denied the alleged occurrence altogether stating that they were got implicated in the case falsely on account of enmity. They did not adduce  any evidence in their defence.

We have heard  Sri A.K. Verma, learned AGA for the  State  appellant  and Shri P.N. Mishra, Learned Senior Advocate for the accused respondents and gone through the record.

Admittedly Argaban-ud-din and his family members on one hand and Aminuddin  and his family members were  on inimical terms.Some 6-7 years prior to the occurrence one Nazurruddin and his brother Wajiruddin were murdered and accused  Janab Alam and his brother Zaney Alam alongwith few others  were prosecuted  therefor and in that murder   case Burhanuddin @ Shamin, brother of  Argaban-ud-din appeared as witness against the accused, and that case ended in the  conviction of  Janab Alam and  others.  At the time of occurrence the accused were  on bail from the High Court  in  appeal.  Admittedly some eight years prior to the occurrence some dispute took place between  accused Aminuddin and Zulfiqar-ud-din on one hand and  Fazal Rahim on the other over tubewell and in that case the accused were  prosecuted and  Argaban-ud-din and his brother Burhanuddin and sister's son  Imran-ud-din stood as  witnesses for  Fazal Rahim. Admittedly some             6-7 months prior to the occurrence accused Janab Alam was fired at and received injuries and Azimuddin lodged a report of that incident against            Imran-ud-din and his cousins Nazimuddin and Aquil Ismail and they were being prosecuted therefor. At the time of occurrence Zaney Alam, brother  of Janab Alam was also prosecuted under DIR, and Iqtidar-ud-din, father of Imran-ud-din   appeared as  a witness against Zaney Alam.  Thus admittedly the parties were inimical with each other.   However enmity cuts both ways.         If the accused had  motive  to attack Argaban-ud-din and Imran-ud-din due to enmity the latter could also implicate the accused  falsely due to that.

PW1 Argaban-ud-din and PW2 Imran-ud-din both deposed that the injuries  caused to Imran-ud-din  bled much and the  blood fell on the berm  of the roadside.  However PW6  SI Laxman Singh who inspected the  scene of occurrence at the  pointing out of PW1  Argaban-ud-din, maternal uncle of the  injured  in the morning at 8: 30 a.m. stated that no blood was found at the scene of occurrence nor  any empty cartridge, pellets etc. were found there.   PW1 Argaban-ud-din  also  admitted that when the investigating officer visited the scene of occurrence no blood, empty cartridge or pellets were found there. However, PW1 Argaban-ud-din stated that at  about  2:30  or 3:00 a.m. after the occurrence  there were rains  and it could be  that due to rain blood was not available there.  PW3  Shabbir Khan  stated that  about 2:30  a.m. when treatment was being provided to Imran-ud-din in the emergency ward he  alongwith  Shakir and  Ashraf were standing outside the main gate of the hospital.  It has come in evidence  that  gate of the hospital was at a distance of about 50 paces from  the emergency  ward. According to PW 1 Argaban-ud-din at about 2:30 a.m. or so  when he  reached the  hospital all the three persons were standing in  front of the main gate of the hospital.  It goes to falsify the statement of PW1 Argaban-ud-din that at  about 2:30  and 3:00 a.m. it was raining. Since no empty cartridge,  pellet or tikli etc. was found at the scene of occurrence nor any blood was found there it is doubtful   if the incident occurred  at the place alleged by the prosecution.

PW1 Argaban-ud-din and PW2 Imran-ud-din  both stated that  at about 00:30 a.m. as they were about to reach  Har Prasad temple  they saw all the four  accused  armed with  guns, coutrymade pistol and lathi from a distance of some 50-60 paces.  It is incomprehensible and unintelligible that  they being on inimical terms with Aminuddin and his associates, after sighting   them  armed  with firearms from a distance of 50-60 paces why they proceeded further  towards  them,  though  they had sufficient opportunity to go back and run away being at a distance of 50-60 paces from them.  Further, both of them stated that as they reached near  Har Prasad temple all the four assailants  shouted  that they  would not let them go alive and  Janab Alam fired at Argaban-ud-din with gun but he had a narrow escape  and the  shot fired by Aminuddin  hit Imran-ud-din  at his face and that  in the meanwhile  Janab Alam fired another shot  at Imran-ud-din  hitting him  at his shoulder but thereafter none of the three assailants  possessed with firearms fired  at Argaban-ud-din.  If the assailants had  the intention to cause fatal injuries to  Argaban-ud-din and Imran-ud-din  they had  full opportunity to  cause fatal injuries to both of them.  Julfiqar-ud-din, brother  of  Aminuddin who was possessed with countrymade pistol  did not  fire at either of them.  Furthermore, it appears  to be  somewhat  improbable  that leaving injured  Imran-ud-din  under the supervision of  Shakir, Shabbir Khan and Ashraf, Argaban-ud-din,  maternal uncle of the injured  would  go to  his house   directing them to stay there  just to inform his  family members and take money as stated by him.  Admittedly  Argaban-ud-din  had more than  Rs 20.00 at that time for  rickshaw etc  and the  police station was only  one km away from the place of occurrence. Argaban-ud-din taking injured Imran-ud-din alongwith one of his  companions  could have  very well gone to the police station situate at  a distance  of one km only from that place  in a rickshaw  and could have sent his other companions  to inform  at his house  about the incident.  Further, PW3 Shabbir Khan stated that since  Imran-ud-din was feeling quite uncomfortable he  asked them to take him to the hospital and  then they  took him to  the District Hospital, Budaun and  then  two of them took  inured  Imran-ud-din  giving support to  him to the  emergency room. PW2 Imran-ud-din stated that since he was  feeling restless and uneasy he asked  Shabbir  and his companions to take him to the hospital and  that they took him to the District Hospital, Budaun  in a rickshaw and since  emergency ward was upstairs, Shabbir and  Shakir  took him  giving support to him to the emergency room where the doctor was available.  However,  a perusal of the  injury report goes to show that  he had gone to the doctor  himself and none   accompanied   him.  All these  facts and circumstances go  a long way to  render the presence of PW1 Argaban-ud-din and PW3 Shabbir Khan doubtful at the  scene of occurrence.  It appears that  the incident  did not occur at the time, place and in the manner   alleged by the prosecution and  Imran-ud-din was  fired  at somewhere else and he could not  recognize  the assailants and that  on receiving  information his maternal uncle  Argaban-ud-din  alongwith his  relatives and acquaintance reached  the hospital and it was  thereafter that FIR was  lodged at the police station.

There is also  inconsistency  between ocular testimony and medical evidence.  PW2  Imran-ud-din , the injured stated that his two teeth were broken when he was  fired at  and received  injuries  at lower  part of  his face  whereas a perusal of the injury report  ( Ext Ka 2)  goes to show  that his  left canine  tooth was broken and  other  teeth were intact.  However PW7          Dr P.K. Wadhwa, the then  visiting  surgeon, District Hospital, Aligarh stated that his two teeth were broken  in part.  

Thus, in view of the above incongruities and infirmities in the prosecution case and evidence we are in full agreement with the findings recorded by the learned trial judge. He has given cogent  and convincing  reasons  for  acquitting  the accused  and the findings  recorded by him cannot be said to be  perverse  and erroneous. The appeal has got no merit and is liable to be dismissed.

The  State appeal is hereby dismissed.  The finding of  acquittal  recorded by the trial court is affirmed.  Accused respondent Aminuddin is in jail.  He shall be released  from the jail forthwith, if not wanted  to remain therein  in any other case .  Accused respondent Zulfiqar-ud-din is already on bail.  His bail bonds are hereby discharged.

Certified copy of the judgment alongwith record of the case be  transmitted to the court below for  necessary compliance under intimation to this court within two months.  

Dated: 7th of December, 2005

GA-1512 of 1981/P.P.


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