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2014 DIGILAW 2410 (ALL)

Mohd. Shakir Ahmad v. State of U. P.

2014-08-08

ARVIND KUMAR MISHRA I, UMA NATH SINGH

body2014
JUDGMENT Arvind Kumar Mishra-I, J. Appellant Mohd. Shakir Ahmad has challenged the impugned judgment and order dated 1.5.2014 passed by court of Additional Sessions Judge, Meerut in Sessions Trial No.1004 of 2004 arising out of Case Crime No.23 of 2004 for offences under Sections 452 and 307 IPC and Case Crime No.24 of 2004, under Section 25 of Arms Act, police station Parikshitgarh, district Meerut. 2. By the aforesaid impugned judgment and order, the trial court acquitted respondent no.2 Athar Khan under the aforesaid sections of Indian Penal Code and Arms Act. 3. We have heard learned counsel for the appellant as well as learned counsel for the opposite party and learned AGA for the State and perused the entire record as available on the file. 4. Briefly stated the case of the prosecution, as it appears from the perusal of the certified copy of impugned judgment has its genesis in the complaint of Mohd. Shakir Ahmad s/o Mohd. Idrish Ahmad, R/o Town Area Compound Parikshitgarh, district Meerut, which was lodged on 3.2.2004 at police station Parikshitgarh whereby it was alleged, inter alia, that respondent no.2 Athar Khan with intent to kill him opened gun shot fire on him in his room on 3.2.2004 at about 9 a.m. while he was taking food. As per written report, the gun shot missed the target and no injury was caused to the complainant Mohd. Shakir Ahmad. On hearing the sound of firing, Mohd. Safiya and Billu, the neighbours of the complainant, arrived at the scene of occurrence and caught the accused-respondent Athar Khan. The respondent was taken to the police station where country-made pistol-315 bore with one empty cartridge in its barrel was recovered by the police from the accused-respondent. Accordingly, two different cases against different crime numbers as above were registered against accused respondent and he was taken into custody. Investigation followed and after completion of investigation, charge-sheet was filed against accused-respondent under the aforesaid sections of Indian Penal Code and the Arms Act. Consequently, the case was committed to the court of Sessions. From where it was made over for trial to the court of Additional Sessions Judge- say the trial court. 5. Investigation followed and after completion of investigation, charge-sheet was filed against accused-respondent under the aforesaid sections of Indian Penal Code and the Arms Act. Consequently, the case was committed to the court of Sessions. From where it was made over for trial to the court of Additional Sessions Judge- say the trial court. 5. Trial court heard the accused-respondent on the point of charge and found prima facie, ground existing against the accused persons for framing charge under Sections 307, 452 IPC and under Section 25 Arms Act in both the Crime Nos.23 of 2004 and 24 of 2004, respectively. The accused-respondent denied the charges and claimed to be tried. 6. The prosecution in order to prove its case, produced five prosecution witnesses- Shakir Ahmad (complainant) P.W.1, Mohd. Shafiya P.W.2, Pradeep Singh @ Dablu P.W.3, Constable/Clerk Rohatash Kumar P.W.4 and S.I. Ramesh Verma P.W.5. 7. Thereafter evidence for the prosecution was closed and statement of accused was recorded under Section 313 Cr.P.C. wherein the prosecution allegations were denied and accused claimed his innocence. He termed his implication false and submitted that his marriage took place with complainant's sister Nagma but complainant side forcibly availed divorce and indulged in scuffle several times. Due to this enmity, he has been falsely implicated in this case. Accused-respondent denied any recovery of country-made pistol from his possession. Lastly, he submitted that he was forced to close down his Homeopathic Medical Store and School. 8. The courts below after hearing both the sides on merit and after assessing testimony and the facts of the case found case of prosecution under aforesaid charges not proved beyond shadow of reasonable doubt and acquitted the accused. Consequently, this appeal. The point for adjudication before us relates to proposition whether the material available on record is sufficient to convict the accused under the aforesaid charges? 9. In this context, we took note of the entire impugned judgment and the finding recorded by the trial court while acquitting the accused respondents Athar Khan. As per prosecution story, the very motive attributed for committing the offence has been stated to be forced divorce at the instance of the complainant side between the accused-respondent and his wife Nagma, who happens to be the sister of the complainant. It is stated that the accused was caught on the scene of occurrence by the complainant and his neighbours. It is stated that the accused was caught on the scene of occurrence by the complainant and his neighbours. In this context, testimony placed on record reveals that point of marriage and divorce between the accused and the complainant's sister Nagma is admitted to the prosecution. It has been specifically deposed by Mohd. Shakir Ahmad P.W.1 that divorce of her sister with accused Athar Khan was managed by the people of the society. In so far as the incident under context is concerned, then Mohd. Shafiya P.W.2 and Billu have stated that they arrived at the scene of occurrence and they caught hold of the accused. As per testimony the very genesis of the offence has its seed in forced divorce between Nagma and the accused. Testimony has been placed on record that this divorce took place six months prior to this incident. Now, the point to be considered is the fact that no injury was caused by the very gun shot. Particularly Shakir Ahmad, the complainant, who was targeted by the accused by firing on him escaped injury. As per the testimony of Shakir Ahmad P.W.1, the fire was made at a distance of 9 to 10 feet but it did not hit him. The site plan and the annexed photographs of the place of occurrence (inside the room) reveals that pellet marks have been found on the wall of the room at a hight of about 5 feet from the height of cot; which height taken from the ground comes to seven and half feet. As per version of prosecution witness, the posture of assailant while aiming at the complainant was in standing posture. If this was the manner of assault, then there was every possibility that some pellets might have hit some where near and around the cot but the pellet marks found on the wall of the room at the height of seven and half feet is by itself tells most improbable story then the one suggested by the prosecution, under the facts and circumstances of the case. In this context, the finding recorded by the trial court is consistent and reasonable and the same need not be interfered with by us at appellate stage for the reasons that the conclusion drawn is based on material on record. In this context, the finding recorded by the trial court is consistent and reasonable and the same need not be interfered with by us at appellate stage for the reasons that the conclusion drawn is based on material on record. It has come in the testimony of P.W.2 that he arrived at the scene of occurrence after hearing the sound of fire. This naturally establishes fact that he is not an eye-witness of the occurrence, which took place inside the house because the incident took place while this witness Mohd. Shafiya P.W.2 was on way to market. This witness admitted the fact that he was on way to market while he heard the sound. This witness has placed his testimony in the form of affidavit and he submitted before the trial court that he does not know about the nature of affidavit. P.W.2 has expressed his ignorance about any divorce between the complainant's sister Nagma and the accused. Thus, P.W.2 cannot said to be an eye-witness of fact of gun shot as claimed by the prosecution. Similarly, testimony of P.W.3 reveals that he heard sudden noise while he was sitting at his home. He saw accused Athar Khan coming out of his house and going to Mohd. Shakir Ahamad's house armed with country-made pistol in his hand and he suddenly opened fire on Shakir. On hearing the sound of the fire, he, Mohd. Shafiya (P.W.2) and Billu arrived at the spot and caught the accused with country-made pistol and took him to police station Parikshitagarh. It may be observed that P.W.3 is not a witness named in the first information report. Cumulative reading of his testimony shows that he was sitting at his home while the so called sound of fire was heard by him, therefore, his testimony regarding his presence inside the room while fire was opened does not inspire confidence. As per his testimony, when he arrived at the spot he saw the accused Athar Khan standing inside the house armed with country-made pistol. He has testified that no fire was shot in his presence. Therefore, theory of fire being opened before P.W.2 and P.W.3, as claimed by the prosecution, becomes dubious. As per his testimony, when he arrived at the spot he saw the accused Athar Khan standing inside the house armed with country-made pistol. He has testified that no fire was shot in his presence. Therefore, theory of fire being opened before P.W.2 and P.W.3, as claimed by the prosecution, becomes dubious. Therefore, the witnesses of fact including the complainant are found to be improving their version in court, whereas the theory of gun shot fire inside the room does not appear to be a probable outcome of any act of the accused because the pellet marks found on the wall of the room suggest that the manner of occurrence is different from the one claimed by the prosecution under circumstances of this particular case it is possible that the pellet marks could have been caused by the complainant himself. Gun shot so caused by the accused went upward instead of hitting the complainant. There is no iota of evidence on the point of deviation of the shot target. We may reasonably infer that a story like the present one may be very well concocted and a false scene may be manufactured at case. Witnesses of fact may speak otherwise, but the circumstances are the innocent pointer of reality. Viewed from that angle a doubt is created on the very manner of incident that it really happened the way as claimed by the complainant. The courts below was justified in giving benefit of doubt to the accused. Similarly, the witness of recovery of country-made pistol along with empty cartridges in its barrel is not properly proved. We affirm finding of acquittal recorded by the trial court. 10. In the backdrop of above discussion, we may conclude that the impugned judgment of acquittal is liable to be upheld by us in appeal and the grounds urged in support of appeal are devoid of force and the appeal is liable to be dismissed. Appeal is dismissed. Leave to appeal is refused. Let copy of this order be certified to the court concerned.