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2019 DIGILAW 1163 (ALL)

Muzammil v. State Of U. P.

2019-05-02

PRADEEP KUMAR SRIVASTAVA

body2019
JUDGMENT : Pradeep Kumar Srivastava, J. 1. Sri Atul Kumar Tiwari, learned counsel for the accused-appellant has submitted that he is not pressing bail application and he will argue the appeal on merits to which, learned A.G.A. has agreed. 2. Heard Sri Atul Kumar Tiwari, learned counsel for the accused-appellant and Sri L.D. Rajbhar, learned AGA for the State. Perused the record. 3. As per prosecution case, an FIR was lodged by one Hasib Khan giving written report stating therein that before three months, Taisin Khan, R/O Village-Dharampur, P.S. Kampil came to him with the proposal of marriage of Samra with his younger brother Mujammil Khan, which the father of Samra and Samra herself refused. On 2.11.2015, Taisin Khan who was real Mausa of Samra took her to his home saying that her Mausi (aunt) has called her. On 8.11.2015 at about 4.00 p.m. the informant and his family members were informed that Samra was being pressurized for marrying with Mujammil and on her refusal, Mujammil Khan shot fire by his pistol on her due to which she sustained serious injuries. Injured was provided treatment and after investigation, the Investigating Officer filed charge-sheet against accused-appellant for the offence under section 307 IPC. Charge was framed against him under same section. 4. The prosecution examined PW-1 Hasib Khan to prove the written report, Ext. Ka-2, PW-2 injured Samra, PW-3 Constable Ramesh Singh, PW-4 mother of injured, PW-5 Dr. Vipin Kumar Yadav, who has proved the medical report, PW-6 Chandra Sen Singh, PW-7 Dr. Raj Kishore, who has also given evidence to the effect that injured was examined by him who was brought by her neighbor Anees and one lacerated wound was found just below her left ear. There was contusion in left eye and there was bleeding from nose and mouth. PW-8 Dr. Rubiya has proved the report of J.N. Medical College who had also proved the medical report of Samra. PW-9 Anees Khan has also been examined who took Samra for treatment in the hospital. 5. The statement of accused-appellant was recorded under section 313 Cr.P.C. in which he has stated that witnesses have given false evidence and charge-sheet was wrongly filed against him. He did not commit any crime and he was falsely implicated by neighbor of Samra. He did not give any evidence in defence. 6. 5. The statement of accused-appellant was recorded under section 313 Cr.P.C. in which he has stated that witnesses have given false evidence and charge-sheet was wrongly filed against him. He did not commit any crime and he was falsely implicated by neighbor of Samra. He did not give any evidence in defence. 6. Learned counsel for the accused-appellant has submitted that in this case injured Samra has been declared hostile and she has not supported the prosecution version. The other witnesses, such as, PW.-1, 2, 4 and 9, who were fact witnesses, denied to have seen the incident. 7. It appears that the learned trial court with the support of Section 106 of Indian Evidence Act, has made adverse inference against accused-appellant and has given finding that said section requires accused-appellant to give explanation as the incident had taken place in the house of accused himself. The learned trial court has discussed in detail the motive etc. for the commission of offence and because no explanation was furnished by the accused-appellant and the incident had occurred in the house of appellant, therefore, presumption was raised against him as accused-appellant had failed to explain how she sustained injury. 8. To my mind, this appears to be unique approach adopted by the learned trial court as the injured witness herself did not support the prosecution version and was declared hostile. Section 106 of Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In this case, when injured herself has not supported the prosecution case and none of the fact witnesses who might have seen the incident has proved the case when examined, there appears no occasion for the trial court to use Section 106 of the Evidence Act to shift the burden of proof on accused and raise a presumption against him. Section 106 of the Evidence Act reads as follows: “Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 9. Section 106 is applied to burden of proof of facts especially within knowledge of accused which is impossible for prosecution to prove. But, it does not shift the initial burden of proving guilt which always lies on prosecution. Section 106 is applied to burden of proof of facts especially within knowledge of accused which is impossible for prosecution to prove. But, it does not shift the initial burden of proving guilt which always lies on prosecution. It has been held in Vikramjit Singh alias Vicky vs. State of Punjab, 2007 (1) ACR 904 (SC) that section 106 of the Evidence Act does not relieve prosecution from the responsibility to prove its case beyond all reasonable doubt. In the case in hand, the learned trial court wrongly shifted the whole burden on the accused in absence of any evidence against him. 10. On the basis of above discussions, I find that learned trial court has convicted the accused-appellant on the basis of no evidence on record, hence the impugned judgment and order appears to be perverse and illegal and is not sustainable in the eye of law. 11. In view of above, impugned judgment dated 26.11.2018 convicting and sentencing the accused-appellant is liable to be set aside and the accused-appellant Muzammil is entitled to be acquitted from the said charge. 12. Accordingly, appeal is allowed. The impugned judgment and order dated 26.11.2018 in S.T. No. 122 of 2016, Case Crime No. 342 of 2015, under section 307 IPC, P.S. Kampil, District Farrukhabad, convicting and sentencing the accused-appellant for ten years rigorous imprisonment and Rs.50,000/-is set aside and the accused-appellant Muzammil is acquitted from the said charge. 13. Office is directed to send lower court record to the court concerned along with copy of judgment for necessary information and compliance.