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Allahabad High Court · body

2012 DIGILAW 2120 (ALL)

GOONGA @ NOOR ILAHI v. STATE OF U. P.

2012-09-13

RAJES KUMAR

body2012
Rajes Kumar, J. This is an Appeal by the accused Goonga @ Noor Ilahi, who has been convicted by the Trial court for three years rigorous imprisonment by the judgement dated 14.7.1982, passed in Session Trial No. 150 of 1982. 2. The brief facts of the case are that on 16.1.1982, on the date of occurrence, at 11:00 A.M., four persons, namely, Aijaj Husain @ Sabu, Raja Miyan, Parvez Akhtar, who are real brother and Goonga @ Noor Ilahi, who is brother-in-law of accused Raja Miyan and is also brother-in-law of the son of the injured, Altaf Husain, came to the house of Altaf Husain. Altaf Husain was sitting on a cot in front of the door of his House. It is the case of the prosecution that while Altaf Husan was sitting on a cot in front of the door of his house, accused, Aijaj Husan @ Sabu gave a cartridge to Goonga and on extortion of Raja Miyan and Parvez Akhtar, accused, Goonga, who was armed with pistol, fired a shot at Altaf Husain, which hit him. The incident said to have been witnessed by Irshad Husain, Zida Husain and Idrish, who also tried to apprehend the culprits, but the accused persons made their escape good. Zafar Husain, son of Altaf Husain, lodged a First Information Report at Police Sation, which was at a distance of about six kms. from the place of occurrence at 1:45 P.M. on the same day. A case under Section 307 IPC was registered against the accused persons. Altaf Husain was medically examined by PW-4, Dr. Ganga Vishnu, the then Medical Officer Incharge of Primary Health Centre, Pukhrayan on 16.1.1982 at 2:30 P.M. He found following injuries on the person of Altaf Husain. 1- 3 fire arm wounds 0.3 cm. X 0.2 cm. X muscle deep on chin in an area of 2 cm. x 2 cm. Fresh blood, clots present, edges irregular, advised X-ray. 2- Multiple fire arm wounds on chest on both sides, 0.2cm. x 0.2 cm. x probing not done in an area of 21 cm. x 14 cm. advised X-ray. 3- 7 fire arm wounds 0.2 cm. x 0.2 cm. x probing not done on upper part of abdomen on both sides in an area of 14 cm. x 4 cm. advised X-ray. 4-5 fire arm wounds 0.2 cm. x 0.2 cm. x 0.2 cm. x probing not done in an area of 21 cm. x 14 cm. advised X-ray. 3- 7 fire arm wounds 0.2 cm. x 0.2 cm. x probing not done on upper part of abdomen on both sides in an area of 14 cm. x 4 cm. advised X-ray. 4-5 fire arm wounds 0.2 cm. x 0.2 cm. x muscle deep on front side of left arm 10 cm. below from tip of shoulder joint-advised X-ray. 3. The doctor was of the opinion that all the injuries were caused by fire arm and were fresh. He referred the injured to District Hospital for x-ray examination. P.W. 7 Dr. H.C. Prasad, Radiologist, U.H.M. Hospital, conducted x-ray examination of the injured on 18.1.1982. The x-ray report is Ex. Ka 5. He found three radio opaque shadows in the region of chin and one in the left arm. 4. The case was investigated by P.W. 8, S.I., R.D. Yadav. After recording the statement of the head moharrir at the police station, he went to Pukhrayan Hospital on 16.1.1982 and from there to village Kaithra. The injured was not available at his home. He recorded the statement of the sister of the injured and searched for the accused. On 28.1.1982 he came to Kanpur and recorded the statement of the informant Zafar Husain and injured Altaf Husain in Fahimabad Colony at Kanpur. On 4.2.1982 he again went to the village concerned and recorded the statements of Irshad Husain, Idris and Fida Husain. He also took the clothes of the injured in his possession and prepared its fard ( Ex.Ka 6). He inspected the site and prepared the site-plan ( Ex. Ka 7). He recorded the statement of the accused Goonga on 2.2.1982 and accused Sabbu and Raja Mian on 20.2.1982. The statement of Prevez was recorded by him on 17.1.1982. After completing the investigation, he submitted the charge-sheet ( Ex. Ka 3). 5. The accused denied the charges and pleaded not guilty. They further pleaded that they have been falsely implicated due to enmity. 6. The Trial court has acquitted Aijaj Husain @ Sabu, Raja Miyan and Parvez Akhtar giving benefit of doubt, but convicted Goonga @ Noor Ilahi for three years rigorous imprisonment for committing offence under Section 307 . 7. 5. The accused denied the charges and pleaded not guilty. They further pleaded that they have been falsely implicated due to enmity. 6. The Trial court has acquitted Aijaj Husain @ Sabu, Raja Miyan and Parvez Akhtar giving benefit of doubt, but convicted Goonga @ Noor Ilahi for three years rigorous imprisonment for committing offence under Section 307 . 7. Heard Sri S.A.N Shah, learned counsel appearing on behalf of the appellant and Sri G.H. Bisaria as well as Sri A.K. Verma, learned Additional Government Advocates in opposition. 8. Learned counsel for the appellant submitted that in the First Information Report four persons, including the appellant, were named and identified. Out of four accused persons, benefit of doubt was given to three accused, namely, Aijaj Husain @ Sabu, Raja Miyan and Parvez Akhtar, therefore, on the same ground, benefit of doubt should be given to the appellant, Goonga, also. He further submitted that since thirty years have passed, the accused may be released on probation and further the punishment awarded may be converted into fine. 9. Learned Additional Government Advocate submitted that the incident occurred on 16th January, 1982 at 11:00 A.M. at Village Kaithra infront of the house of Altaf Husain. The four accused persons, named in the First Information Report, came to the house of Altaf Husain when he was sitting on a cot infront of his door. The specific case of the prosecution right from the F.I.R. is that Aijaj @ Sabu gave a cartridge to Goonga, while Raja Mian and Parvez Akhtar exhorted and the appellant-Goonga fired shot at Altaf Husan, who sustained bullet injuries on his chest and shoulder. A First Information Report was also lodged on the same day at 1:45 P.M. against the aforesaid four accused persons and they were named in the First Information Report. Altaf Husain was medically examined and in the medical examination bullet injuries were found which establishes that Altaf Husain was fired by the fire arm. In the circumstances, the Trial court has rightly convicted the appellant. He further submitted that on the facts and circumstances of the case, acquittal of Aijaj Husain @ Sabu, Raja Miyan and Parvez Akhtar on the ground of benefit of doubt is not justified. However, since the matter is quite old, it would not be appropriate to reopen the case at this stage against them. 10. He further submitted that on the facts and circumstances of the case, acquittal of Aijaj Husain @ Sabu, Raja Miyan and Parvez Akhtar on the ground of benefit of doubt is not justified. However, since the matter is quite old, it would not be appropriate to reopen the case at this stage against them. 10. I have considered rival submissions and perused the evidences on record. 11. The incident took place on 16th January, 1982 at 11:00 A.M. in front of house of Altaf Husain in Village Kaithra. The evidence on record establishes that Altaf Husain was shot by fire arm and the report of PW-4, Dr. Ganga Vishnu, the then Medical Officer Incharge, clearly established that the injuries were caused by fire arm and were fresh. The injuries were on chest and on the upper part of the Abdomen apart from other injuries, which were fatal in nature. The First Information Report was lodged at 1:45 P.M. on the same day. It is true that in the First Information Report, the name of any independent witness or immediate neighbour of the injuried was not given, but the incident took place in a broad day light, therefore, the statement of the injured cannot be disbelieved. The accused and the injured appears to be relatives. The Trial court has given benefit of doubt to three accused on the ground that those three accused, namely, Aijaj Husain @ Sabu, Raja Miyan and Parvez Akhtar were real brothers and they had enmity with the injured and for that reason their names might have been included in the First Information Report. However, the fact remains that when all the four accused persons have been identified to be involved in the incident and named in the First Information Report, the view of the Trial court in giving benefit of doubt to three accused does not appear to be reasonable, but since the matter is quite old, it would not be appropriate to reopen the case against three accused persons, who have been acquitted, but on the basis of the evidences on record, there is no doubt that the fire was shot by the appellant Goonga @ Noor Ilahi, which caused serious injuries, fatal in nature and may result into the death of the injured, Altaf Husain, therefore, the appellant has rightly been convicted under Section 307 of the IPC by the Trial court. 12. 12. For the aforesaid reasons, I do not find any reason to release the appellant on probation and having regard to the nature of the injuries, it is not a fit case for conversion of the case from Section 307 IPC into 324 IPC and to impose fine. Justice demands that the crime should not go unpunished. 13. In the result, the Appeal fails and is dismissed. The order dated 14.7.1982 passed by the Sessions Judge ( Non Metropolitan Area) Kanpur convicting and sentencing the appellant, as aforesaid, is affirmed. The appellant is on bail. C.J.M., Kanpur Dehat is directed to take the appellant into custody and send him to jail for serving out the sentence awarded by the trial court and affirmed by this Court. 14. Office is directed to communicate this order to the C.J.M. concerned for compliance within a period of one week.