Research › Browse › Judgment

Allahabad High Court · body

1991 DIGILAW 503 (ALL)

Hakeem v. State of U. P.

1991-03-28

U.K.VERMA

body1991
JUDGMENT U.K. Verma, J. 1. This is an appeal against the judgment and order of Sri S.N. Prasad, VIII Additional Sessions Judge, Bulandshahr convicting the appellants Ghani, Sakh Jan and Habib under Section 148 and" Sections 324, 326 and 307 read 'with Section 149, 'I.P.C. and the appellants Hakim, Mohd Umar, Babu, Khalil and faqira under Sections 148,'and 324, 326 and 307 read with Section 149, I.P.C. The appellants Ghani, Sakhi Jan and Habib under Section 148, I.P.C. had been sentenced to R.I. for' 1 1/2 years, under Section 324 read with Section 149, I.P.C. to R.I. for 1 1/2 years and under Section 326 read with Section 149, I.P.C. and 307 read with Section 149, I.P.C.to R.I. for 3 1/2 years and a fine of Rs. 60.00 on each of these two counts. The appellants Hakim, Mohd. Umar, Babu, Khalil and Faqira had been sentenced alike to six months simple imprisonment under Section 147, to one year simple imprisonment under Section 147, to one year simple imprisonment under Section 324 read with Section 149 I.P.C. to one and a half years simple imprisonment and a fine of Rs. 60.00 each under Section 326 read with Section 149, I.P.C.and 307 read with Section 149, I.P.C. 2. In the first information report Ex. Ka. 4 lodged at 8.30 a.m. on 31.8.75 it had been alleged by the informant Ram Sewak Rastogi (P.W.1) that about 8.00 a.m. on 31.8.78 when he was going past his shop, he saw Hakim, Mohd. Umar, Ghani, Sakhi Jan, Babu, Faqira, Khalil, Habib and many others placing their Gumtis in the passage in front of it and when he asked them not to do so, Ghani and Babu assaulted him with their knives after the remaining accused had caught hold of him. As he fell down, Habib, fired but his shoti missed him. Latoor Hari Om, Ram Prasad, Mahendra and Benarasi Das and many other persons saved him. The accused while fleeing away had further threatened that he would be done to death later. 3. The prosecution had examined Ram Sewak (P.W. 1), Latoor Singh (P.W. 2), Hari Om (P.W. 3), Ram Prasad (P.W. 4) and Mahendra Pal (P.W. 5) as the witnesses of the occurrence. V.P. Verma (P.W. 8) and Hari Lal (P.W. 6) narrated as to how the case was investigated and the Medica Officer Dr. Chandra Prakash ' (P.W. 7) proved' his report. 4. V.P. Verma (P.W. 8) and Hari Lal (P.W. 6) narrated as to how the case was investigated and the Medica Officer Dr. Chandra Prakash ' (P.W. 7) proved' his report. 4. The appellants had pleaded not guilty and denied their participation in the crime in question. The appellant Babu pointed that he had been falsely roped as he was a witness against the informant in the case registered at the instance of Mohan against Ram Sewak. The appellant Ghani had given out that Ram Sewak wanted to open a door on the land of the Madarsa Isiamia Arabia of which he was the secretary and as he and the other members of the Managing Committee of the school did not permit him to do so he had falsely implicated them in this case. The appellants Hakim, Mohammad Umar and Faqira in the trial court had pointed that they were seventy years old. The appellant Khalil had pointed his age to be fifty five years. Mohd. Umar had given out that he was implicated because he happened to be the father of Ghani and faqira had stated that he was roped in the case as he was the father of Babu. The informant according to the appellants was related to Jai Prakash who wanted to grab the land of the Madarsa Isiamia Arabia Turkania. They examined Sher Singh who proved documents to show that Jai Prakash had submitted plan of construction to which they were opposed. They further examined Head Constable Rafiq Ahmad to prove that Ram Sewak was an accused in another case Vand constable Balram Singh to prove that Ram Sewak was a history sheeter. 5. I heard the counsel for the appellants and also counsel for the State. The medical report shows that Ram Sewak had sustained merely one injury in his thigh. It is, thus, obvious that both Ghani and Babu appellants could not have assaulted him with knife as alleged in the F.I.R. During the trial Ram Sewak did not persist with his allegation made earlier that Babu had also inflicted the knife injury. Further, it looks to be highly improbable that if Habib after the fall of Ram Sewak would have fired at him, it could have missed for the allegations are that the firing had been done from point V biank range and there was nothing to disturb him. Further, it looks to be highly improbable that if Habib after the fall of Ram Sewak would have fired at him, it could have missed for the allegations are that the firing had been done from point V biank range and there was nothing to disturb him. The documents proved by Sher Singh Bakshi Ex. Kha. 2 shows that Abdul Ghani, Secretary of the Madarsa Isiamia Arabia Turkania School had objected to the constructions sought to be made by Jai Prakash related to Ram Sewak informant. Some of the appellants pointed that they were members of the Management Committee of the school aforesaid whereas others pointed to be related to them. The appellants Hakim, Mohd. Umar and Faqira had given out their ages to be 70 years and the appellant Khalil had pointed his age to be 55 years. There is nothing to show that these four appellants had over estimated their age for ulterior motives before the VIII Additional Sessions Judge who had conducted the trial. The informant Ram Sewak from the statement of the Constable Balram Singh appears to have a criminal history. It is very unlikely that three of the appellants who were 70 years of age and another appellant Khalil who was 55 years old at the time of the incident would have joined hand with others in belabouring Ram Sewak. In case more than one person would have participated in the assault Ram Sewak would surely have sustained more injuries than one and the fact that i no vital part of his had been hit shows that it would be absurd to conclude that any attempt on his life had be,en made. Dr. Chandra Prakash in his examinationinchief pointed that the' injury caused to Ram Sewak was grievous and dangerous to his life for in case the bleeding would not have been stopped he could have died. In the crossexamination he admitted that the injury was not on vital part. Dr. S.N. Prasad further did not disclose as to how the injury of Ram Sewak could be presumed to have been grievous. In the crossexamination he admitted that the injury was not on vital part. Dr. S.N. Prasad further did not disclose as to how the injury of Ram Sewak could be presumed to have been grievous. The injury inflicted on Ram Sewak could only be said to fall within the domain of Section 324, I.P.C. The counsel for the appellants conceded that adeguate evidence had not been adduced on behalf of the appellants to show that this injury of Ram Sewak was justifiably in the exercise of the right of private defence. Since Ghani was alleged to have caused this injury by all the prosecution witnesses and I do not find the participation of the other appellants proved beyond reasonable doubt in view of the circumstances discussed above, I am inclined to conclude that only Ghani is guilty of the charge under Section 324 I.P.C. and the other appellants were entitled to be acquitted of all the charges against them and the appellant Ghani of the remaining charges against him. The counsel for the appellant Ghani on the guestion of sentence urged that it would not be appropriate to send Ghani to Jail again. He was prepared to pay a fine in case the sentence of imprisonment already undergone was not found to be adeguate. The ends of justice would be met if Ghani under Section 32, I.P.C. was sentenced to imprisonment already undergone and to pay a fine of Rs. 500.00 and in default of payment of fine to undergo R.I. for three months. ORDER 6. The appeal is allowed in respect of Hakim, Mohd. Umar, Sakhi Jan, Babu, Khalil, Fagira and Habib. The judgment and order of the VIII Add). Sessions Judge convicting and sentencing them as above are set aside. They are acguitted of the charges levelled against them. They need not surrender to their bail bonds which are discharged. 7. So far as Ghani is concerned, his conviction is maintained only, under Section 324, I.P.C. and he is acquitted of the remaining charges levelled against him. Ghani under Section 324, I.P.C. is sentenced to imprisonment already undergone and to pay a fine of Rs.500.00 and in default of payment of fine to undergo R.I. for three months. Ghani should deposit the fine awarded against him within 'three months failing which he be taken into custody to serve the sentence in default indicated above. ...........