Allowed

Kasim and Another v. State of U.P.

Allahabad HC4 May 2020CRLA/320/2018

Case brief

AI extract

What is this about?

In an appeal against a conviction and sentence for attempted murder under Section 307 IPC, the High Court quashed the order because the prosecution story was wholly improbable. The court held it impossible that appellants holding the injured man did not get hit by a bullet that exited his back, leading to a reversal of the lower court's finding.

What did the court decide?

Impugned judgment and order dated 6.1.2018 regarding appellants Kasim and Khaleel quashed; judgment set aside; appellants released on bail; bail bond and sureties discharged.

Kasim and Another Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2020)

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Reserved on : 27.2.2020 Delivered on : 4.5.2020. Court No. - 84

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Case :- CRIMINAL APPEAL No. - 320 of 2018

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Appellant :- Kasim And Another Respondent :- State of U.P. Counsel for Appellant :- Mirza Ali Zulfaqar,Anuj Kumar Gupta Counsel for Respondent :- G.A.

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Hon'ble Ajit Singh,J.

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This criminal appeal has been filed against the judgement and order dated 6.1.2018 passed by Addl. Sessions Judge, Court no. 9, Moradabad in S.T. No. 245 of 2017 (State vs. Nadeem and others), arising out of case crime no. 595 of 2016, under Sections 323, 504 and 307 I.P.C., P.S. Hayat Nagar, districtSambhal, whereby learned trial Judge convicted and sentenced the appellant to seven years rigorous imprisonment with fine of Rs. 10,000/- and in default of payment of fine further additional imprisonment for six months, one year imprisonment under Section 504 I.P.C.

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Both the sentences shall run concurrently.

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The brief facts leading to this appeal are that son the complainant Fakre Alam, was sitting in the house. On 3.12.2016 at about 9:00 a.m. Nadeem and Kasim, sons of Khalil and Khalil, son of Allah Bux, resident of Village-Hasanpur Munjabta, police station-Hayatnagar armed with lathi-danda and firearm, entered into the house of complainant and after hurling abuses they caught hold the son of the complainant and started beating him with kicks and fist with the intention to kill. When the son of the complainant tried to escape to save himself, then all the accused persons after chasing caught him and on the exhortation of Khalil, with the intention to kill Fakre Alam, Nadeem fired at him, which hit on his chest as a result of which he collapsed on the ground. He sustained injuries. Upon hearing the sound of gunshot, Abbas, son of Shabbir, Mohd. Umar, son of Jameel Ahmad and several others reached at the spot and on their alarm, accused persons ran away from the spot.

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As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and learned Additional Sessions Judge, Moradabad framed the charge against the appellants under Sections 504 and 307/34 IPC to which the appellants pleaded not guilty and claimed to be tried.

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To bring home guilt of the appellants, the prosecution examined as many as eight witnesses. PW-1 Jarif, complainant, PW-2 Fakre Alam, injured, PW-3 Irshad, PW-4, Investigating Officer, Anoop Singh, PW-5 Dr. Pawan Kumar Singh, PW-6 Constable, Vinod Kumar, PW-7 Nirmal Ojha and PW-8 H.C.P., Dharam Singh.

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After the closure of prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.P.C., in which they denied the charges leveled against them and stated that they have been falsely implicated in this case due to enmity.

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Learned counsel for the appellants has submitted that the role of firing at the injured Fakre Alam has been assigned to coaccused Nadeem, whereas the role of catching hold and assaulting the injured with lathi-danda has been attributed to coaccused Kasim and Khalil, which is not probable. He further submitted that the prosecution theory that two accused had caught hold of the injured while accused Nadeem had fired at him with his fire arm does not appear to be probable as the aforesaid act would have also endangered the life of the accused-appellants.

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At the very outset, learned counsel for the appellants has submitted that the conviction and sentence of the appellants under Section 307 read with 34 IPC is totally illegal and is contrary to the evidence available on record. The appellants Kasim and Khaleel were not assigned the role of assaulting the injured. They were assigned only the role of catching hold of the injured. Therefore, the judgment and order of the conviction and sentence in regard to them is liable to be quashed by this Court and they deserve acquittal from all the charges levelled against them.

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The learned AGA appearing on behalf of the State does not controvert the aforesaid submission made by the learned counsel for the appellants.

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From the perusal of the record as well as looking to the submission of the learned counsel for the appellants, this Court finds that the appellants were wrongly convicted by the trial court as the prosecution story narrates that these accused caught hold of the injured and the co-accused Nadeem fired at the injured but as per circumstances of this case as the bullet fired by the co-accused Nadeem passed through and through from the body of the injured and after hitting the injured the bullet exits from the back of the injured and it is not possible in all probabilities that a person who was allegedly catching hold the

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injured might have not been hit by the bullet and the prosecution story is wholly improbable and unreliable. The incident as narrated by the prosecution can not have taken place, if the accused who were assigned the role of catching hold, had not received any injury and it was obvious that the bullet was passing through the body of the injured and was shown existed from the back side of the body of the injured in that case it would be probable that injuries would have been caused to the accused persons who was catching hold and this is not the case in the prosecution story. The Trial Court while passing the impugned judgement and order has committed manifest error in convicting the appellants. In this view of the matter, the impugned judgment and order dated 6.1.2018 so far as it relates to the present accused appellant - Kasim and Khaleel, is liable to be quashed and is hereby quashed.

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In view of the above, the judgment and order passed by Addl. Sessions Judge, Court no. 9, Moradabad in S.T. No. 245 of 2017 (State vs. Nadeem and others), arising out of case crime no. 595 of 2016, under Sections 323, 504 and 307 I.P.C., P.S. Hayat Nagar, district-Sambhal are hereby set aside. The appellants are on bail. They need not surrender before the court concerned. The bail bond and sureties are hereby discharged.

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The appeal is allowed.

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Order Date :- 4.5.2020 Faridul

Kasim and Another v. State of U.P.

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Kasim and Another v. State of U.P.

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