Allahabad High Court
Channa @ Umed Ali And Others vs State Of U.P. on 6 March, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:40313-DB Reserved On:- 30.01.2024 Delivered On:- 06.03.2024 Case :- CRIMINAL APPEAL No. - 1809 of 1991 Appellant :- Channa @ Umed Ali And Others Respondent :- State of U.P. Counsel for Appellant :- S.A.N. Shah, Araf Khan, Arvind Kumar Singh, Lihazur Rahman Khan, Shiv Pratap Singh Rathore Counsel for Respondent :- D.G.A., Upendra Upadhyay Hon'ble Siddharth, J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Sri Araf Khan, learned counsel for appellant; Sri Upendra Upadhyay, learned counsel for informant and learned A.G.A for State and perused the material brought on record.
2. This criminal appeal has been preferred against the judgment and order dated 19.09.1991 passed by Special Judge (E.C.) Etah in S.T. No. 227 of 1988 convicting the appellants under Sections - 302, 148, 149/302, 147 IPC and sentencing appellants, Channa @ Ummed Ali and Taufiq to imprisonment for life under Section 302 IPC and a fine of Rs. 2,000/- each and in default of payment of fine to further undergo one year rigorous imprisonment and sentencing them to two years rigorous imprisonment under Section 148 IPC and sentencing appellants, Habib and Chandrauaa to imprisonment for life under Section 149 read with Section 302 IPC and a fine of Rs. 2,000/- each and in default of payment of fine to further undergo one year's rigorous imprisonment and further sentencing them to two years rigorous imprisonment under Section 147 and ordering all the sentences to run concurrently.
3. The prosecution case is that on 20.04.1988, at about 6:30 p.m., the accused persons, Habib, Kallu and Chandrauaa caught the deceased, Nabi Alam, in their arms and accused, Taufiq, caused a knife blow on his stomach. Accused, Channa alias Ummed Ali, caused him fire arm injury and Nabi Alam died on the spot. Accused, Bande Ali and Abrar Khan, were implicated for hatching conspiracy for murder of Nabi Alam.
4. The prosecution produced six prosecution witnesses before the trial court.
5. P.W.1 and informant, Shafi Alam, stated that on 20.04.1988 at about 6:30 p.m., his elder brother, Nabi Alam, was going to the house of his brother-in-law, Jhanku. When he reached near the house of Abrar Khan and Chote Khan, near neem tree, the accused persons, Habib, Channa @ Ummed Ali, Chandrauaa and Taufiq, came from the front and committed the offence as alleged in the FIR. Thereafter, all the five accused persons dragged the dead body of the deceased towards bamba (canal). On alarm being raised by the villagers, accused persons left the dead body of deceased in the field of Bakar Ali and ran towards the police station. The incident was seen by the informant, Bhure, Bakaullah and sister of informant, Muqaddari. He lodged the FIR at the police station. One year before this incident, accused, Taufiq, had fired on him and he lodged report against, Taufiq. On account of the aforesaid enmity, his brother, Nabi Alam, was killed by the accused persons.
6. P.W.2, Muqaddari, P.W.3, Bantu Khan, P.W.4, Ayub Khan, did not supported the prosecution case and were declared hostile.
7. P.W.-5, Dr. A.B. Agarwal, who conducted the post-mortem of dead body of the deceased found the following injuries on his body quoted here-in-below :-
(i) Incided wound on the top of right shoulder 3 cm x ½ cm muscle deep;
(ii) Fire arm wound of entry on the left side of chest 8 cm away from left nipple at 11 o'clock position 2 x 2 cm cavity deep, bleeding present all around. Direction from left to right, upward to backward ;
(iii) Abrasion 7 cm x ½ cm on the left side of chest ;
(iv) Abrasion 3.5 cm x ½ cm on the posterior auxiliary line ;
(v) Incised wound 4 cm x 1 cm deep on the left side on left side of abdomen, 7 cm away from umbilicus at 3 o'clock position ;
(vi) Incided wound on right side abdomen posterior auxiliary line 2 cm x ½ cm cavity deep.
8. P.W.5 opined that in the chest cavity, 34 metallic pallets, one wad and two tiklis, were found which were sealed. In the second injury, blood was found clotted in the muscles and both the lungs were punctured and about one litre clotted blood was found in the chest cavity. In the abdominal cavity, one litre of clotted and semi clotted blood and fecal matter were found. In the stomach, semi digested food was found in small and large intestines and liver was also found to be raptured. The cause of death was haemorrhage as a result of ante-mortem shock. The doctor opined that injury nos. 1, 5 and 6 could have been caused by some sharp edged weapon like knife. Injury no. 2 could have been caused by gun. Injury nos. 3 and 4 could have been caused by hard and blunt object. All the injuries could have been caused by 6:30 p.m on 20.04.1988.
9. P.W.-6 proved the lodging of report before him at the police station.
10. Statements of accused were recorded under section 313 Cr.P.C.
11. The trial court found that the accused, Kallu, had died before the conclusion of trial and no offence against accused persons, Bandi Ali and Abrar Khan, was found proved from evidence on record. Therefore, they were acquitted. Accused-appellant, Channu alias Ummed and Taufiq, were sentenced to the punishment for life imprisonment under section 302 IPC and fine of Rs. 2,000/- and also rigorous imprisonment of two years under Section 148 IPC. Accused, Habib and Chandrauaa, were convicted under Section 149 read with Section 302 IPC with punishment of life imprisonment and fine of Rs. 2,000/- and also punishment of two years imprisonment under Section 147 IPC. All the sentences were directed to run concurrently.
12. Learned counsel for the appellant has submitted that two eye-witnesses mentioned in FIR, besides, P.W.-1, Shafi Alam, namely, Wakaullah and Bhure Khan, were withheld by the prosecution and not produced before the trial court. P.W.-2, P.W.-3 and P.W.-4, were declared hostile and there is nothing even in their hostile evidence which appears to support the prosecution case. P.W.-1, is real brother of the deceased with criminal background and had earlier lodged cases against appellants, Taufiq and Habib. In the FIR, it is clearly stated that there is prior enmity with the accused but it was not specified. It was only stated that Taufiq had shot P.W.-1 one year ago. It has come in evidence of P.W.-1 that engine of deceased, Nabi Alam, was stolen and appellant no. 3, Habib, lodged a report against him under suspicion. P.W.-1 admitted that he had enmity with other persons in the village also apart from the accused.
13. Counsel for the appellant has submitted that P.W.-1 falls in the category of 'Neither wholly reliable nor wholly unreliable witness' for the following reasons:-
On the date of incident, there was a function (Meelad Shareef) at the house of P.W.-1, hence, he was busy in making arrangements for the same.
He had come to his maternal Aunty's home. Distance between her house and place of incident is 1 furlong. (1 furlong = 201.168 metres).
On hearing hue and cry, P.W.-1 reached at the spot. Prior to that, villagers had also gathered at the place of incident.
It is impossible to see the incident from a distance of more than 200 metres, moreso, when there is an admission that there was hue and cry first and then P.W.-1 went to that place though other villagers had gathered there prior to him.
Though deceased was being allegedly killed infront of PW-1, he did not intervened and he neither received any injury nor did he take his injured brother to the Hospital, instead, he went to the Police Station, that too, after 3 hours, when Police Station is merely 5 kms. away from the place of incident. Reliance on this case of Chhote Lal Vs. Rohtash & Ors. (Paras 10,13, 14) MANU/Sc/1338/2023.
In FIR and his deposition, PW-1 states that after being injured, deceased was dragged from spot 'A' (neem tree) to spot "A" (water tap or canal) and distance between 'A & "A" is 2 furlongs, i .e., 402 metres approx.
PW-6 (I0) says- Neither at the spot 'A' nor anywhere on the patch leading to spot "A", traces of blood were found, as such recovery memo of blood-stained soil was made from spot "A" raises serious doubt regarding the place of occurrence. Moreover, blood-stained soil was not sent to FSL.
P.W.-6 says, Spot Map was prepared in the presence of P.W-1, while, P.W-1 categorically denies preparation of spot map in his presence.
Though P.W-1 happens to be the first informant, he is neither shown as a panch witness nor his presence is shown at the time of preparation of inquest report.
If at all, P.W-1 and P.W-2 are the eye-witnesses, delay of two days (22.04.1988) in recording their 161 statements, that too without any reason, casts serious doubt on their credibility.
14. Counsel for the appellant further submits that the deceased was a hardened criminal and at the time of alleged incident he was being tried for committing the murder of one, Abdul Rajjaq. It has come in the evidence that P.W.1 was also faced trial in two cases under Section 307 IPC. In case, the enmity was with the P.W.1, why accused killed his brother has not been explained. Previous enmity can be double edged weapon. It can be reason of false and genuine implication both. In case of Jitendra Kumar Mishra versus state of M.P., MANU/SC/0020/2024 Apex Court has held that evidence of interested witnesses with criminal background cannot be relied upon blindly without taking into account available corroborative evidence. No corroborative evidence of any witness is there. Since the other witnesses of fact have turned hostile. There was lack of independent evidence in this case.
15. Counsel for the appellant has finally submitted that though there is allegation regarding firing on the deceased by the appellant no. 1 but no empty cartridges were recovered from the spot. He has submitted that place of occurrence as alleged in the FIR is absolutely doubtful.
16. Learned A.G.A has vehemently opposed the submissions and has submitted that the prosecution has proved the case against the appellants beyond reasonable doubts. The motive for commission of the alleged offence has also been proved. There is no law that conviction cannot be ordered on the basis of single testimony. The testimony of P.W.-1 was sufficient to convict and sentence the accused. The argument of the counsel for the appellant is that it needed corroboration is not well founded. The corroboration of the statement of P.W.-1 is from the post-mortem report of deceased and the statement of Doctor. Since the appellants are criminals, they have threatened the other witnesses and they turned hostile.
17. After hearing the rival contentions, this court finds that accused, Habib, Kallu, Chandrauaa alias Abdul Zahid, are alleged to have caught the deceased by circling him around in their arms and Taufiq, appellant no. 2, is alleged to have caused knife injury in the stomach of the deceased and accused, Channa alias Ummed, appellant no. 1, is alleged to have fired on the deceased and all of them have dragged the dead body of the deceased towards the canal. This is clearly alleged in the FIR and also stated in the statement of P.W.-1. This court finds that the implication of the appellant no. 3, Habib and appellant no. 4, Chandrauaa alias Abdul Zahid, for catching hold of the deceased by circling the arms around the deceased, along with co-accused, Kalua, who has already died during trial, appears to be doubtful since if firing is being made and repeated injuries by knife is being caused to the person being caught from behind closely by other accused person, they were also at risk of suffering injury. In case, the gun shot or the knife blow missed the target, they would have been injured. In the present case, gun shot injury was caused by close range. Inside the chest cavity of deceased, the pellets, wad and also tickli were recovered. There was all possibility of exit wound being caused to the deceased and therefore the allegation that he was caught hold by the appellant nos. 3 and 4 does not appears probable.
18. The apex court in the case of Balwantbhai B. Patel vs. State of Gujarat and Others, 2009 0 Supreme (SC) 1557 has held that there is increasing tendency of implicating number of accused persons in the criminal offences by assigning them different roles of exhortation, catching hold, etc., so that number of accused persons may be roped in and convicted. This also also appears to be correct in the present case regarding appellant nos. 3 and 4. This court finds that there are definite allegations against them in the FIR and also in the statement of P.W.1. The medical evidence is fully corroborated by the statement of P.W.1 and the statement of Doctor. However from the statement of P.W.1 who is the only witness, his conduct does not appear to be normal. He himself has been involved in criminal cases and it does not appear credible that even after seeing his brother being killed, he neither raised any alarm nor tried to save his deceased brother. At the relevant time, he was at her aunt's place, which was one furlong = 201.168 metres away from the place of incident. He himself admitted that he went to the scene of incident after hearing the hue and cry of the crowd. He did not suffered any injury at all. He has not stated that he took his deceased brother to the hospital soon after the incident. He has only stated that he went to lodge the FIR at the police station after two to three hours of the incident when the police station is nearly 3 km away.
19. The Apex Court in the case of Chote Lal versus Rohtash and Others, MANU/SC/1338/2023 has held that where the witness stated that he did not intervene and soon when assault was being made by accused persons he himself did not receive any injury, presence of witnesses on the scene of incident would be doubtful. The Apex Court has also held regarding interested witness that he was having long enmity with the accused persons and therefore the court held that the testimony of such witness has to be examined with great caution and conviction on the basis of solitary evidence cannot be justified.
20. The Apex court in the case of Jitendra Kumar Mishra (Supra) has also held that testimony of a relative and interested witness cannot be relied blindly and conviction on the basis of same was set aside by the Supreme Court. In the case of State vs. Tula Ram and Others, AIR 1960 ALLD 585, this court has held that where the witness was 'Neither wholly reliable nor wholly unreliable' the court must seek corroboration from some independent evidence or from circumstances. In the present case, there is no independent witness to corroborate the testimony of P.W.1. Although the injury suffered by the deceased corroborate the allegations made in the FIR and in the statement of P.W.1, but keeping in view the fact that the testimony of P.W.-1 is not reliable and he has admitted enmity with number of persons in the village, possibility of the incident being caused by someone else can not be ruled out. The lodging of FIR after two to three hours when the police station was 3 km away gives credence to the argument of learned counsel for the appellant that the appellants were implicated after due deliberations in this case on account of the earlier enmity with the deceased and the P.W.1. No recovery of any weapon was made from the pointing out of any of the accused-appellants.
21. In view of the above, it is clear that prosecution has failed to prove the charges against the appellants beyond reasonable doubt and they deserve to be acquitted of all the charges. The judgement and order of the court below is set aside.
22. The appellants are on bail. Their bail bonds and sureties are discharged. They shall comply provision of Section 437-A Cr.P.C and court below shall sent compliance report to this court within a month.
23. Office is directed to send back the record of this case to the trial court and intimate this judgment too within a week.
24. The criminal appeal is allowed.
Order Date :- 06.03.2024 Rohit