Allahabad High Court
Shamim And Others vs State Of U.P. on 12 July, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:112629-DB Reserved on 08.7.2024 Delivered on 12.7.2024 Case :- CRIMINAL APPEAL No. - 21 of 2012 Appellant :- Shamim And Others Respondent :- State of U.P. Counsel for Appellant :- Sanjay Kumar Tripathi,Ajatshatru Pandey,Ashok Kumar Yadav,Bhavya Sahai,Janardan,Swayamanand Sisodiya,J0097 Counsel for Respondent :- Govt. Advocate,Sudhir Kumar Dixit,Sudhir Kumar Tripathi Hon'ble Siddharth,J.
Hon'ble Brij Raj Singh,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Sri Swayamanand Sisodiya, learned counsel for the appellants; Sri Gyan Narayan Kanaujia, learned AGA -I for the State and perused the material placed on record.
2. The above noted criminal appeal has been preferred against the judgement and order of conviction dated 02.11.2011 passed by Additional Sessions Judge/ Special Judge/ SC/ST Act, Gorakhpur in Session Trial No.41 of 2008 (State of U.P. Vs. Salim and others) convicting the appellants to two years rigours imprisonment under Section 148 IPC; 10 years rigours imprisonment with fine of Rs.5000/- under Section 307/149 IPC; life imprisonment with fine of Rs.10,000/- under Section 302/149 IPC; 5 years rigours imprisonment with fine of Rs.5000/- under Section 5 of Explosive Substances Act, 1908 and six months rigours imprisonment under Section 7 of Criminal Law Amendment Act, 1932.
3. Initially three criminal appeal were preferred by the appellants before this Court. Appellant, Subrati, s/o Maula, preferred Criminal Appeal No.7151 of 2011, but because of his death during the pendency of appeal, same was dismissed as abated by this Court vide order dated 29.4.2024.
4. Criminal Appeal No. 181 of 2014 was preferred by appellants, Saimul @ Samulla and Sahabuddin, sons of Subrati, which has been heard alongwith the present appeal and is being decided by order of date.
5. The above noted Criminal Appeal No.21 of 2012 has been preferred by appellants, Samim, s/o Rasool; Mustafa, s/o Sakoor and Salim, s/o Sakoor. During the pendency of above noted appeal, appellant no.2, Mustafa, has died and appeal has been dismissed as abated against him by this Court vide order dated 8.7.2024.
6. The prosecution case, as per FIR lodged by Jugul Kishore, is that his father, Ramagaya Paswan, was murdered about three years ago. Today, i.e., 26.5.2007, when his family members and neighbours were sitting on the floor and watching T.V. in his house, appellants, Salim, s/o Sakoor, Mustafa, s/o Sakoor, Subrati, s/o Maula, Sahabuddin, s/o Subrati, Samim, s/o Rasool, and Saimul @ Samulla, s/o Subrati came on two motorcycles and exhorted saying that let all family members of the informant, Jugul Kishore, be finished today. They took out bombs kept in two yellow bags and threw 7-8 bombs on them. In the incident, brothers of the informant, Vijay Pratap and Pintu and his mother, Asharfi Devi, co-villager Smt. Sona Devi, w/o Pujari, Vinod, s/o Radhey, Vinod, s/o Mahagu, Kajal, d/o Dharmendra, Manjeet, s/o Tilak Dhari and daughter of informant, Gudiya, got seriously injured. Other persons, who were also watching T.V., but were not injured, were Pujari, Raj Mangal, Govind, Dharmendra, Kewal, etc. Children and others after hearing noise of bomb blast panicked and started running helter skelter. Co-villagers closed their doors and injured were taken to the hospital.
7. Subsequently, Pintu @ Praveen, aged about 15 years and Manjeet, aged about 12 years died on the next day of the incident on 27.5.2007 due to injuries caused to them by appellants.
8. Before the trial court, trial of the appellants took place. Vide Sessions Trial No. 195 of 2007, Subrati, Saimul @ Samulla and Sahabuddin were tried while in Sessions Trial No. 41 of 2008 Samim, Mustafa and Salim were tried. The above noted appeal pertains to Sessions Trial No.41 of 2008.
9. Before the trial court, charges were framed in both the above noted trials and accused persons denied charges and sought thier trial.
10. In support of prosecution case, PW-1, Jugul Kishore, informant; PW-2, Vijai Pratap, brother of PW-1, injured; PW-3, Asharfi Devi, mother of PW-1, injured; PW-4, Sona Devi, w/o Pujari, aunt of PW-1, injured; PW-5, Pujari, uncle of PW-1; PW-6, Nandu, scribe of Tehrir and PW-7, Vinod, s/o Radhey, were examined as witnesses of fact.
11. Formal witnesses were PW-8, Arun Kumar Srivastava, Pharmacist, District Hospital; PW-9, Dr. Abhimanyu Kumar, Doctor on Emergency duty in District Hospital, Gorakhpur; PW-10, Salig Ram Ratnakar, first Investigating Officer; PW-11, Virendra Singh Yadav, Inspector, who made memo of recovery; PW-12, Mohd. Ishiyaq Ahmed, second Investigating Officer; PW-13, Aamya Prasad, constable, writer of FIR; PW-14, Dr. Vinod Sachan, who conducted post mortem of the deceased; PW-15, Ishwar Jatav, sub Inspector; PW-16, Saifad Sadakat Ali, circle officer; PW-17, Dinesh Kumar Singh, circle officer; PW-18, Jitendra Kumar Yadav, Sub Inspector.
12. Statements of accused persons were recorded under Section 313 Cr.P.C. by the trial court.
13. PW-1 clearly proved the allegations made in the FIR before the trial court. He stated that the accused persons came on one Yamah and another Suzuki motorcycle. He stated number of one motorcycle as UP56 5622, which he also mentioned in the FIR. The injured witnesses, PW-2, PW-3 & PW-4, proved the incident before the trial court as it took place. They also proved that earlier father of PW-2, Ramagya, was murdered four years ago on account of which accused persons have caused the incident in dispute. In the murder of father of PW-2 and husband of PW-3, accused, Salim, Mustafa and Samim, were implicated. They were also threatening the family members of PW-3 and her husband was earlier Pradhan of the village. PW-5 proved the incident as alleged in the FIR. His wife, Sona Devi, PW-4, got injured in the alleged incident. PW-6 proved that he wrote the application on the dictation of PW-1, Jugul Kishore, which was got registered as FIR. PW-7, another injured, also proved the incident and fact that two persons, namely, Pintu and Manjeet, died in the incident.
14. PW-8 proved the injury reports of the injured; PW-9, the doctor, who conducted the medical examination of the injured, proved the medical reports made by him and the injuries suffered by the injured. PW-10, first Investigating Officer of the case, proved that he conducted initial investigation of the case, prepared site plan and made recovery of nut, pellets, Sutli, etc., from the place of incident. One cartridge of 12 bore country-made pistol was also recovered from the spot. Blood stained earth and plain earth were also collected and memo were prepared by him. Motorcycle number UP56 5622 was also taken into possession and memo was prepared. He recorded the statements of accused persons also under Section 161 Cr.P.C. and noted the contents of the statements in the case diary. PW-11, who was S.H.O., Police Station Chauri Chaura, proved the memo of recovery prepared by PW-10 before the trial court. PW-12, second Investigating Officer of the case, proved part of the investigation conducted by him including charge-sheet. PW-13 proved the lodging of FIR written by him and making entry of the same in the case diary also. PW-15 proved that he made efforts to arrest the accused persons by going to Mumbai. PW-16 proved that he got the accused, Salim, summoned on B warrant and made the accused, Salim and Mustafa surrendered before the court of C.J.M. PW-17, another Circle Officer, proved efforts to arrest the accused persons and report received from FSL regarding the firm arm injury suffered by deceased. PW-18, Sub Inspector of Police Station Kotwali, proved the preparation of inquest report by him.
15. Learned counsel for the appellants has submitted that it is a case of false implication of the appellants because of the prior enmity between the parties regarding murder of Ramagya, who was father of PW-1, PW-2 and husband of PW-3. He has further submitted that FIR is anti-timed and investigation was not proper. All the witnesses are interested witnesses. No recovery has been made from the possession of the appellants. Implication of the appellants is due to village party bandi. There are no independent witnesses and nature of injuries do not appear to have been caused by bomb. Appellants may be given benefit of doubt and acquitted from all the charges. Learned counsel for the appellants has relied on the following judgements:-
(i) Harvinder Singh @ Bachhu Vs. State of Himachal Pradesh, 2023 SCC OnLine SC 1347
(ii) Chhote Lal Vs. Rohtash and others, Criminal Appeal No.2490 of 2014, Judgemet dated 14.12.2023,
(iii) Jitendra Kumar Mishra Vs. The State of Madhya Pradesh, Criminal Appeal No.1348, Judgement dated 5.1.2024.
16. Learned AGA has vehemently opposed the submissions of learned counsel for the appellants. He has submitted that there is clear motive assigned to the appellants by the prosecution for committing the alleged crime. The father of PW-1 & PW-2 and husband of PW-3, Ramagya, was murdered three years ago by the appellants' side and it has come in the evidence of the witnesses of fact that threats were being extended to the family members of the Ramagya from jail, which was clearly for withdrawing the case or not supporting the prosecution case. Two persons died and eight persons suffered injuries. The nature of injuries suffered by the deceased and injured were clearly caused by bomb blast. Since the incident took place inside the house of PW-1 in the presence of his family members, therefore, independent witnesses could not have been produced because the incident did not took place at any public place. The injured witnesses have clearly testified the incident and there is nothing in the statements of accused recorded under Section 313 Cr.P.C., which may absolve them from the charges. So far as the recovery is concerned, it is not the case of causing firm arm injury and therefore, there is no recovery made from the appellants. The remains of the bomb blast were recovered by the police from the place of incident, which proves that the incident was caused by throwing bomb on the deceased and the injured. He has submitted that no benefit of doubt deserves to be granted to any of the appellants in this case.
17. After hearing the rival contentions, this Court finds that the incident in dispute took place on 26.5.2007 at 08:30 p.m. and FIR was lodged on the same day at 09:40 p.m. Hence the FIR is not anti timed. The incident is alleged to have been caused by throwing of bombs and from the place of incident, remains of blasted bombs in the form of pellets, nuts, Sutli, iron splinters, etc., were recovered and it was exhibited and proved before the trial court. From the scene of occurrence, the samples of blood stained earth and plain earth were also recovered. One of the motorcycle used in the alleged crime was taken in possession by the police and recovery memo was also prepared. In the injury reports of the injured, doctor has found blast injures suffered by injured. In the post mortem report of the deceased, the doctor has clearly stated that the cause of death of the deceased was shock and hemorrhage as a result of ante mortem blast injuries. The doctor has proved before the trial court that the injuries suffered by injured and the deceased were caused by bomb blast. The FIR was proved by scribe as well as police constable, who registered the same. Learned counsel for the appellants could not point out any evidence, who proved that it is case of false implication on account of earlier enmity between the parties by pointing out to any evidence recorded. Prosecution case stands fully proved on the basis of oral and documentary evidence led before the trial court. In this case, non production of independent witnesses would not be fatal for prosecution case since the incident took place inside the house of PW-1 and not at any public place and therefore, the presence of family members can only be presumed inside the house. There is no evidence pointed out by learned counsel for the appellant, which may be made basis of giving benefit of doubt to the appellants. The judgements in the cases of Chhote Lal (Supra) and Jitendra Kumar Mishra (Supra) are distinguishable on facts. The case of Harvinder Singh @ Bachhu (Supra) relates to non concurrent of judgments of trial court reversed by the High Court and has no relevance for this case.
18. After considering the totality of facts and circumstances of the case, arguments of learned counsel for parties and material on record, this Court finds that the judgement of conviction and sentence passed by the trial court is perfectly justified and is hereby confirmed. This criminal appeal is dismissed. In case the appellants are on bail, their bail bonds shall be cancelled and sureties discharged. They shall be taken into custody forthwith to undergo the sentences awarded to them.
19. Let the record of trial court be transmitted alongwith copy of this judgement to the trial court for necessary information and compliance.
Order Date :- 12.7.2024
Ruchi Agrahari
(Brij Raj Singh,J.) (Siddharth, J.)