State of U.P. vs Sami Ullah and Others

Heard learned A.G.A. for the State and perused the judgment of the trial court and record.

This Government Appeal along with an application for leave to appeal has been filed against the judgment and order dated 22.7.2004 passed by Additional District and Sessions Judge, (Fast Track Court No. 1), Bhadohi at Gyanpur in S.T. No. 31 of 1989 (State Vs. Sami Ullah and others) acquitting the accused-respondents, u/s 302/34 I.P.C.

The prosecution case in brief is that the informant who is resident of Bazar Rustam Khan (Bara), Bhadohi, District Varanasi. The informant and other persons have purchased some articles in the name of Court Bara Committee which are given on rent for marriage. Few days ago for those very articles, accused Shamiullah and Safiullah, sons of Rahmatullah who are the Pattidar of the informant had some quarrel with Hamid. The informant''s brother Subukatgin who reached there and scolded, on which Safiullah started to assault on Subukatgin and told him that he would see to me. On 12.7.1987, in the night, his brother Subukatgin was sleeping in a Varandah and by his side the informant, his two sons-Noor Alam and Nasur Alam, his son-in-laws of brother Mohd. Mumtaj, informant of sister''s son Pappu and the informant''s servant-Shyama were also sleeping there. At about 3.00 a.m., the informant''s brother Subukatgin was shot on his head. On hearing the fire shot, the informant and other persons sleeping woke up immediately and started raising alarm. The informant''s servant and other persons saw in the electricity light Safiullah and Shamiullah and identified them. There were also two other persons who were chased by the brother of son-in-law of the informant''s brother who had also seen them and the brother of informant''s brother son-inlaw who had gone to Varanasi would tell about them. The informant and other persons immediately rushed his brother to the Doctor for medical treatment at District Hospital, Bhadohi from where he was given medical treatment and thereafter, the Doctor referred to the injured Subukatgin to Kabir Chauraha Hospital. The condition of the informant''s brother is not well and he has received serious injuries and he was taken to Varanasi by his brother for proper medical treatment.

The FIR of the incident was lodged on the same day at 4.30 a.m. by Mohd. Amin PW-1, brother of the deceased.

The trial Court acquitted the accused-respondents on the ground that PW1- Mohd. Amin and PW2-Mohd. Mumtaj who is a close rerlative of P.W.1 are the eye witnesses of the incident and have given contradictory statements to each other regarding the specific role of firing on the deceased Subukatgin. PW1-Mohd. Amin has stated in his statement before the trial Court that Safiullah shot with country made pistol on the deceased, whereas PW2-Mohd. Mumtaj in his statement has stated before the trial Court that it was Shamiullah who had shot the deceased.

Moreover, in the FIR as well as in the statements recorded u/s 161 Cr.P.C. of PW1 and PW2, no specific role of firing was assigned to any of the accused respondents. It was only stated that the informant''s brother Subukatgin was shot on his head. It has further come in the evidence of PW1- Mohd. Amin that he was living separately with his family at a distance of 50- 60 ft. from the house of the deceased and there was no occasion for him to be present at the place of occurrence and he only reached the place of incident on hearing the fire shot.

Moreover, PW2-Mohd. Mumtaj, who is the resident of Varanasi, has stated that he had gone to Varanasi after half an hour of the alleged incident. The statement u/s 161 Cr.P.C. of PW2-Mohd. Mumtaj was also recorded after fifty two days of the incident, by the Investigating Officer, for which no explanation is given by the prosecution. The presence of PW-1 and PW-2 at the place of occurrence was found to be doubtful by the trial Court from the evidence available on the record. The motive for the accused to commit the incident is also not proved. The trial court further found from the evidence that the eye witnesses account does not corroborate the medical evidence which means that the eye witnesses have not seen the evidence and the incident has taken place in some other manner.

Moreover, the accused respondents u/s 313 Cr.P.C. have taken a defence that they have been falsely implicated in the present case by PW1- Mohd. Amin, the brother of the deceased as Mohd. Amin was an accused in the case Crime No. 197 of 1985, u/s 302 I.P.C. at police station Bhadohi, District-Varanasi, which was lodged by Sakina Bi against Mohd. Amin. The accused- respondents used to do pairvi against Mohd. Amin on behalf of Sakina Bi. The trial court further found that the incident has taken place on 12.7.1987 and the victim Subukatgin was discharged from the hospital on 24.8.1987 in a normal and good condition but his statement u/s 161 Cr.P.C. was not recorded by Investigating Officer who was the best witness to corroborate prosecution story. Hence, the prosecution story seems to be unreliable on this count also.

On the other hand, learned A.G.A. has submitted that there are no contradiction in the statements of eye witnesses PW1 and PW2 and the cause of death is septicemia. The motive is proved. It has further been submitted that there was sufficient evidence against the accused respondents and the trial Court has misread the evidence on record and acquitted them. Hence the judgment and order of the trial Court be set aside.

Having considered the totality of the present case, we are of the opinion that the view taken by the trial Court does not suffer from any perversity and it is well settled law, if two views are possible then the other view taken by the trial Court should not normally be interfered with unless the same is perverse or highly improbable. Hence, no interference is called for in the judgment and order passed by the trial court.

Accordingly, the application for leave to appeal is rejected and Government

Appeal is also dismissed.