Hameed vs State of U.P.

D. X. Trivedi, J.

The present criminal appeal is directed against the judgment and order, dated 3151982 passed by Illrd Additional Sessions Judge, Unnao convicting the appellant alongwith Badruddin under Section 307/34, I.P.C. and sentencing each of them to 21/2 years (30 months) rigorous imprisonment.

The prosecution case in brief is that the appellant Hemeed alongwith Badruddin and Jamil were siting at the door of Rafiq. It is stated that as soon as Jamil Ahmad reached there, appellant Hameec? exhorted that he should be killed and on his exhortion Badruddin fired his countrymade pistol on Jamil Ahmad. Jamil Ahmad tried to run away but another fire was fired by Jamil S/o Munnan which hit Jamil and thereafter all the three accused persons ran away.

A witten report Ext. Ka. 1 was lodged on the same day on 20479 at P.S. Achalganj, district Unnao. (P.W. 6) Sri Ram Sumer, S.I. was present at the time of the alleged report, therefore, investigation was handed over to him. He immediately recorded statement of Jamil injured and sent him for medical examination. The Investigation Officer thereafter went to the place of incident and prepared siteplan and recorded statements of other witnesses. The Investigation Officer after completing investigation submitted chargesheet against the accused persons.

(P.W. 5) Dr. R.C. Singh of the district hospital examined injuries of the injured (P.W. 1) on the same day at about 11.30 a.m. and he proved the injury report Ext. Ka. 2.

The prosecution in support of his case examined six witnesses, out of them (P.W. 1) Jamil Ahmad, (P.W. 2) Munna, (P.W. 3) Sirtaz are witnesses of fact. Out of these four witnesses P.Ws 2 and 3 did not support the prosecution case and, therefore, declared hostile. (P.W. 1) Jamil Ahmad and (P.W. 4) Anis supposed the prosecution case.

On the other hand, the accused persons denied the prosecution case and stated that they have been falsely implicated in this case due to enmity. Jamil S/o Munna died during pendency of trial and therefore, Hameed and Badruddin were prosecuted ard finally convicted in this case as mentioned above.

Badruddin filed Criminal Appeal No. 497 of 1982 but he also died during pendency of appeal, therefore, Criminal Appeal No. 497/82 was dismissed as abated.

Hameed the present appellant in Criminal Appeal No. 499 of 1982 challenged the conviction and sentence awarded by the trial Court.

I have heard learned Counsel for the appellant Sri Abid Ali, Additional Government Advocate and perused the record.

The main contention of the appellant''s Counsel is that no case at all is made out against the accused Hameed and therefore, learned Court below committed an error in convicting and sentencing him under Section 307 LEG He pointed out that the appellant has not been assigned any weapon. He has also not been sent assign any role of assault on (P.W. 1) Jamil Ahmad. According to the prosecution case itself he only instigated the other two accused persons, namely Badruddin and Jamil Ahmad. Both of them fired with their firearms causing injuries to the injured Jamil Ahmad. In the EI.R. it is said that Hameed instigated the other two persons to kill the complainant. (P.W. 1) Jamil Ahmad in the crossexamination stated that appellant Hameed instigated the accused persons to Kill Jameel. However, the admits that the other witnesses were with him and accompanied him from the market. As pointed out above, (P.Ws. 2) and 3 did not support the prosecution case. (P.W. 4) Anis stated that he was 3040 paces behind that complainant. (P.W. 4) Anis is the real nephew of Jamil Ahmad. (P.W. 1) Jamil Ahmad as well as (P.W. 4) Anis both admits their relationship with each other. It is also not disputed that these witnesses are inimical and have grudge against Hameed. No doubt, the person who instigated at the time of incident, is also responsible for the crime and can be convicted with the aid of Section 307 I.P.C. but looking to the facts and circumstances of the case, in my opinion, the prosecution has failed to prove guilt of Hameed appellant beyond reasonable doubt. As pointed out above, Jamil Ahmad was not even armed with any weapon. House of Hameed was, admittedly, at some distance. There is nothing on record to show that Hameed has any relationship with other two accused persons. It is also not disputed that Hameed did not take part in assault. No doubt, the (P.W. 1) in his statement stated that Hameed appellant instigated the other two accused persons to kill (P.W. 1) but the said statement did not find support from any other independent piece of evidence. (P.W. 1) Jamil Ahmad is admittedly an inimical witness and has enmity with the appellant Hameed. (P.W. 4) Anis is admittedly real nephew of (P.W. 1) and therefore, is also inimical witness. (P.W. 1) in his statement stated that he was accompanied with Anis from the market whereas Anis stated that he saw (P.W. 1) Jamil Ahmad moving towards the village at a distance of 4050 paces away from the village. This shows that they were not coming together from the market as stated by (P.W. 1) Jamil Ahmad. According to (P.W. 4) Anis, Jamil Ahmad was coming alone and no body was with him. (P.W. 4) Anis further admits that he saw the accused persons running away but did not see any weapon in their hands. In fact, he did not see the firearms in the hands of Badruddin and jamil. In these circumstances, it is not possible to rely upon the evidence of these two eyewitnesses in holding that Hameed was present at the time of incident and he instigated two other accused persons to kill the complainant. In fact, there is no need for instigation for other two accused persons who have enmity with the complainant. The complainant also failed to show any connection of Hameed with the other two accused persons.

Looking into the facts and circumstances of the case as well as evidence of these two eyewitnesses, in my opinion, prosecution has failed to prove the guilt of appellant Hameed beyond any reasonable doubt and therefore, he is entitled to get benefit or doubt.

In the result, the appeal is allowed. Conviction and sentence awarded by the trial Judge, is set aside. Appellant is no bail. He need not to surrender and his bail bonds and sureties are discharged. Appeal allowed.