Allahabad High Court
Tannu vs State Of U.P. And Ors. on 15 July, 2022
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No.- 19 Case :- CRIMINAL APPEAL No. - 494 of 1999 Appellant :- Tannu Respondent :- State Of U.P. And Ors. Counsel for Appellant :- I.Murtaza,Ghulam Mohammad Kamil,M.S.Khan,Narendra Bahadur Singh Counsel for Respondent :- G.A. with Case :- CRIMINAL APPEAL No. - 493 of 1999 Appellant :- Kallu And Ors. Respondent :- State Of U.P. And Ors. Counsel for Appellant :- I.Murtaza,Rishad Murtaza Hon'ble Rajeev Singh,J.
1. Heard Shri G.M. Kamil as well as Shri Rishad Murtaza, learned counsels for the appellants and Ms.Shikha Sinha, learned Government Advocate and perused the record.
2. Both the appeals have been filed by appellants, namely, Tannu, Kallu and Ajij @ Aziz against the judgment of conviction and order of sentence dated 17.09.1999 passed by Additional Sessions Judge, Lucknow in Session Trial No.532 of 1997, arising out of Case Crime No.218 of 1996, under Sections 304 and 304/34 I.P.C., Police Station-Thakurganj, District Lucknow, whereby learned trial court has convicted the appellants, namely, Tannu, Kallu and Ajij @ Aziz, under Sections 304/34 I.P.C. and sentenced them to undergo imprisonment for ten years and fine of Rs.2,000/-each and in default of payment of fine further imprisonment for six months each. Both the appellants have filed two separate appeals. The aforesaid appeals are being decided by way of common judgment.
3. As per the prosecution case, on 12.07.1996 at about 11:30 A.M., Mohd. Ahamad, husband of the complainant was going to his shop situated at Saray Mali Khan after taking (Bhagauna) of Biryani, when he reached in front of the dispensary of doctor, namely, Atul Khanna, appellants, namely Tannu, Kallu and Ajij @ Aziz, threw acid on Mohd. Ahamad, as a result, he received injury and was admitted in Medical College. This act was done by the accused persons due to old enmity and this incident was seen by the number of persons, and thereafter, incident was reported by the complainant to the Police Station and FIR was lodged on 12.07.1996. On the basis of FIR, investigation was conducted. On 09.09.1996, Mohd. Ahamad died and inquest as well as postmortem of the body of the deceased was conducted and Investigating Officer prepared the site plan and also recorded the statement of the witnesses. After completion of the investigation, charge-sheet was submitted against the accused persons. The accused persons denied the guilt and requested for trial.
4. Prosecution, in support of its case, has examined seven witnesses, namely, Sufiya (P.W.1), Abdul @ Jabbar (P.W.2), Head Constable, Parmatma Singh (P.W.3), Dr. Alok Kumar (P.W.4), S.I. Mahaveer Prasad Misra (P.W.5), S.I. Waqil Ahmad (P.W.6) and Constable, Pramod Dixit (P.W.7).
5. Sufiya (P.W.1) is the complainant of this case and in her deposition, she stated that her husband (deceased) was running the business of selling Biryani on the stall at Saray Mali khan Tri. Junction. On the date of incident at about 11.00 A.M. her husband-Mohd. Ahamad was going to his shop after taking (Bhagauna) of Biryani from his house and Jabbar her brother and one another Javed were also going behind Mohd. Ahamad after taking food articles of shop. When her husband reached in front of the dispensary of Dr. Atul Khanna, accused persons, namely, Kallu and Ajij were standing there, they stopped her husband and accused-Tannu threw acid by plastic bucket on him, and thereafter, he shouted, then the complainant and her brothers reached on the spot. Mohd. Ahamad, after receiving the acid injuries, fell down and all the accused persons ran away from the place of occurrence. Thereafter, he was brought to the Medical College, Lucknow and after two month, he died. Sufiya (P.W.1) further deposed that accused persons used to eat Biryani from the shop of her husband and they do not pay the price, for this reason accused persons had thrown acid.
6. Abdul Jabbar (P.W.2) is the brother-in-law of the deceased and he deposed before the trial court that accused Tannu threw acid on Mohd. Ahamad. Parmatma Singh, Head Constable (P.W.-3) also deposed that he wrote the chick report Exhibit Ka-2 on the basis of written report given by the complainant.
7. Mahaveer Prasad Misra, Sub-Inspector (P.W.5) deposed before the trial couirt that he took over the investigation on 12.07.1996 and recorded the statement of complainant and went to the place of incident. At the instance of the complainant, he prepared the site plan and went to the Medical College for recording the statement of injured. He received the injury memo of the injured on 18.07.1996 and incorporated the facts in the case diary on 06.08.1996 and also took the statement of witnesses, namely, Abdul Jabbar and Javed. After completing the investigation, charge-sheet was submitted against the accused persons, under Section 326 I.P.C. On 09.09.1996 injured Mohd. Ahamad died in Medical College, Lucknow. On 19.10.1996, Investigating Officer received the inquest report and postmortem report of the deceased, and thereafter, he converted the case under Section 304 I.P.C. instead of Section 326 I.P.C. On 04.11.1996, he took the statement of the witnesses of inquest and after taking required direction from the court converted the case against the accused persons for the offence under Section 304 I.P.C.
8. Dr. Alok Kumar (P.W.4) was examined before the trial court, who conducted the postmortem of the deceased and stated that cause of death of the deceased is due to shock, as a result of septicemia due to extensive infected burn wound. PW-4 also stated that the burn injuries found on the body of the deceased could be caused by acid.
9. Learned counsel for the appellants has submitted that PW-1 and PW-2 are the interested witnesses and they are not reliable. He further submitted that appellants have wrongly been convicted for the offence, under Section 304 I.P.C. as the charge-sheet was filed under Section 326 I.P.C. and injured died after two months from the date of incident due to septicemia, but supplementary charge-sheet was filed under Section 304 I.P.C. He also relied on the decision of the Hon'ble Supreme Court in the case of Gurpal Singh vs. State of Punjab reported in 2017 SC 471 and submitted that alleged incident is of 1996 i.e. 26 years back and appellants, namely, Kallu and Ajij @ Aziz are now 65 years and 62 years and Tannu is 50 years. They belong to the poor family and they do not have any criminal history.
10. Learned counsel for the appellants also relied on the decision of Hon'ble Supreme Court in the case of State of Karnataka Vs. Muddappa reported in 1999 5 SCC 732 and submitted that in the aforesaid case, the Hon'ble Supreme Court upheld that the decision of the High Court by which the sentence under Section 304 (II) I.P.C. was undergone by giving the benefit of Section 360 of the Code of Criminal Procedure as well as Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred as the "Act"). In the present case, if the case of prosecution is admitted, then only offence under Section 304(II) I.P.C. is made out and appellants are also entitled to get the benefit of probation of offender Act.
11. Learned A.G.A. opposes the prayer of appellants and submitted that this is a case of acid attack and PW-1 and PW-2 have supported the prosecution version and court below has rightly convicted the appellants, therefore, appeal is liable to be dismissed.
12. After hearing the submission of learned counsel for the appellants as well as learned A.G.A. and going through the record of the case, it is evident that P.W.1 and P.W.2 are the eye witnesses and they supported the prosecution version and their testimony corroborate the medical evidence. The deposition of P.W.1 and P.W.2 clearly reveals that after throwing the acid, accused persons ran away, meaning thereby the act done by the accused persons without any intention to cause death. It is also evident from the record that the said incident was taken place on 12.07.1996, but the injured died on 09.09.1996.
13. In view of the above facts and circumstances, the appeal is partly allowed and impugned judgment of conviction is modified and appellant-Tannu is convicted for the offence, under Section 304 (II) I.P.C. and rest of the accused, namely, Kallu and Ajij @ Aziz are convicted for the offence under Section 304 (II) read with Section 34 I.P.C. in place of Section 304 I.P.C. and 304 I.P.C.read with Section 34 I.P.C. respectively. The appellants belong to the poor family and do not have criminal history.
14. Under the said circumstances, I am of the view that the purpose of justice will be served if the appellants would be sentenced to undergo imprisonment during which they were in custody for all the offences.
15. Let the copy of this judgment as well as the lower court record be transmitted to the concerned Trial Court forthwith for necessary compliance.
(Rajeev Singh,J.) Order Date :- 15.07.2022 Amit/-