Jumeydeen and Others vs State of U.P.

Naheed Ara Moonis, J.—Heard Sri Viresh Mishra, learned senior Advocate assisted by Sri Mukhtar Alam and Sri Pankaj Bharti and Sri N.I. Jafri appearing on behalf of the opposite party and has taken through the record.

The instant appeal has been preferred on behalf of the Appellants against the judgment and order dated 5.3.2011 passed by Special Additional Sessions Judge Muzaffar Nagar in Sessions Trial No. 453 of 2005 under Sections 147/148/307/149 IPC whereby the Appellants were convicted and awarded maximum sentence of ten years rigorous imprisonment with fine of Rs. 5,000/-against each . All sentences were directed to run concurrently . This matter is now being pressed for consideration of bail during the pendency of appeal.

The prosecution case as set up in a conspectus is that on 23.2.2002 at about 5.00 ''O'' clock accused Jumedin and Shakir were trying to have electric connection by putting cable in front of the house of complainant''s nephew . Gaiyur ,the nephew of the complainant and Nasib Ali, the grand son of the complainant forbade them from taking illegal electric connection which caused great infuriation and wrath to Jumedin and Shakir. Jumedin and Shakir proceeded towards their house threatening Gaiyur and Nasib Ali to bear dire consequences. After awhile, accused persons Jumedin, Tahir, Umarjan , Ismail alias Kalloo, Shakir , Shakoor and Aiyub equipped with country made pistol, sphere ,lathi and danda attacked upon Gaiyur, and Nasib with respective weapons. Hearing the sound of firing and also shriek of the injured ,the complainant and other persons reached on the spot . Gaiyur and Nasib sustained fatal injuries hence both of them i were taken to the Government Hospital Muzaffar Nagar . The injuries of Nasib and Gaiyur were examined by Dr. Narendra Kumar (P.w.5). The injured Gaiyur was operated on the same day i.e. 23.2.2002 by doctor V.P. Singh (P.W.4) . According to the opinion of the doctor, injuries caused to the victim Gaiyur were dangerous to his life.

The first information report with respect to the said incident was registered by Ishaq P.W.2 on 24.2.2002 at about 8.00 ''o'' clock vide Case Crime No. 45 of 2002 under Sections 147/148/149/307 IPC. The investigating officer took up the investigation and collected credible and convincing evidence n the basis of which charge sheet was submitted against all the accused persons. The prosecution had examined injured witness Gaiyur as P.W.1 who had specifically assigned the role of causing fire arm injury to him by the accused Tahir and Jumedin. It was specifically stated by Gaiyur P.W.1 that accused Tahir had fired upon him which hit on his leg and neck while accused Jumedin had fired on his abdomen and other accused Umarjan had given a below from spear causing injury on his abdomen. Ismail alias Kalloo, Shakoor and Aiyub armed with lathi assaulted him and Nasib Ali. The incident had taken place in front of his house . The complainant and Abdul were examined as P.W.2 and 3who were the eye witnesses and supported the prosecution case.

It was argued by the learned Counsel appearing on behalf of the Appellants that they were falsely implicated in this case due to enmity. The trial court has utterly misread the evidence on record convicted and awarded the maximum sentence of ten years rigorous imprisonment to the Appellants . It was stressed by learned Counsel for the Appellants that the first information report was lodged after much deliberations and consultation. There was no convincing explanation about the delay in lodging the first information report. Both sides had sustained injuries. Cross case was also registered against the complainant and others . Charge sheet was submitted in both the cases and both the parties were tried but the Appellants were convicted but no specific finding was given by the learned trial judge as to who was the aggressor .

The Appellants in defence had filed copy of the Chick FIR of cross case registered against the complainant and other persons vide Case Crime No. 45A/2002 under Sections 147/148/149/452/323/324/504/506 IPC and also the medical report of Jumedin and Tahir and denied the charges levelled against them . Two persons from the side of the Appellants sustained fatal injuries . There is no convincing explanation with regard to the injuries sustained by the accused Appellants. The injured persons were examined on 23.2.2002 thereafter first information report was lodged on 24.2.2.002 at 8 ''O'' clock . There is great inconsistency in the prosecution version which creates doubt about the veracity of the prosecution story. The alleged placed of occurrence is also doubtful as neither any blood was found at that place nor blood stained clothes were recovered by the investigating officer . Even no specific weapons were mentioned either in the Fir or in the statement u/s 161 Code of Criminal Procedure by which the assailants had caused injury . Later on during trial another story was set up that the Appellant Jumedin and Tahir had fired on the injured persons . On the same set of evidence ,one of the accused Aiyub was acquitted by the trial judge. In the first information report, the name of accused Shakir was mentioned and the charge sheet was submitted against him but Shakir was never prosecuted . The prosecution story set up in the first information report is that on account of putting illegal cable for electricity connection ,some quarrel had taken place but no incriminating articles were recovered from the place of occurrence ,thus the motive for committing the offence is not proved. The P.W. 2 Ishak the first informant and P.W.3 Abdul were not the eye witness of the occurrence and reached when injured, the P.W.1 Gaiyur became unconscious therefore, it cannot be ascertained that even the P.W.1 had seen the incident after sustaining injuries. Another injured person Nasir was not produced which also creates doubt about the veracity and truthfulness of the prosecution version. There is material inconsistency in the medical evidence with regard to manner of assault as divulged in the first information report . The Appellants had also sustained fatal injuries on the vital part as such it cannot be deciphered that the Appellants were aggressors and the complainant''s side were mute spectator and had merely born the brunt of the Appellants without any resistance. The Appellants had attacked on the victims in the right of private defence as they did not have any option except to resist the onslaught of the injured persons thus the injuries sustained by the victims can not blame the Appellants holding them liable to be prosecuted under the aforesaid sections. There is no independent witness to support the prosecution version while a number of persons are stated to have arrived at the place of occurrence . The witnesses who were examined were inimical and partisan . They were already nurturing grudge and animus against the Appellants and were searching the ways to implicate the Appellants in any case .

The judgment and order passed by the trial judge is based on misinterpretation of facts and evidence . The prosecution has miserably failed to prove the injuries of the victims . The learned trial judge had taken erroneous view by holding the Appellants guilty for the aforesaid offence and exonerating the other side on the same set of facts and evidence. The Appellants were on bail during trial . They had never misused the liberty of bail. They are languishing in jail since 4.3.2000.

Per contra Sri N.I. Jafri learned Counsel for the complainant opposed the bail prayer of the Appellants and had contended that the incident was narrated in a natural manner. There is no embellishment in the prosecution story. The second incident had taken place on account of the threat extended by the Appellants when they were refrained from putting the electric cable. The Appellants had formed an unlawful assembly carrying country made pistol, spear , lathi and danda. The Appellants had assaulted the victims with common object of eliminating them . The injuries were so serious that there was remote chances of their survival. No injury can be said of superficial nature. Injured Gaiyur was operated on account of fatal injuries. He was examined as P.W.1 who had divulged vivid description with regard to nature of the incident and the manner of assault. The incident had taken place in front of the house of the injured persons. The Appellants were convicted with the aid of Section 149 read with Section 307 IPC therefore, it cannot be doubted that all of them had no active participation in the commission of the said offence or causing injuries which shows that the act was done with a view to accomplish the common object.

It is established that the accused persons were members of an unlawful assembly and had inflicted fatal injuries. The Appellants had attacked the victims with the common object of wreaking vengeance as they were refrained from putting the illegal electricity cable . All the persons armed with deadly weapons started assaulting the victims and in the process of scuffling ,the Appellants would have sustained injuries. It cannot be said that the Appellants had inflicted injuries in right of private defence . In case the Appellants are taking the plea of right of defence, they had exceeded their defence and had taken the form of giant by unleashing terror on the dint of indiscriminate firing and assault and even in the absence of actual assault by each and every person , the Appellants are vicariously liable as they were well aware that the assembly was formed to take avenge against the victims. The minor aberration in the prosecution version will not stand the entire prosecution belied therefore, the Appellants does not deserve any indulgence of bail. The accused Appellants were well aware that the nature of injuries caused with fire arm weapon by them was sufficiently and imminently dangerous and was likely to cause their death. As per medical evidence the act of the accused were of such a nature that would have caused death in the usual course of events . There was no material contradiction or anything unnatural in their evidence.

Having analysed the rival submissions advanced by learned Counsel for the parties and looking to the gravity of the offence ,this Court is not inclined to grant bail to the Appellant, therefore, the prayer for bail is refused. However, it is made clear that any observation herein above would not come in way to decide the appeal on merit .

Office is directed to prepare the paper books within four months.

Let this matter be listed for hearing after preparation of paper books.