Dismissed

Guddu @ Khaleel v. State of U.P. and Anr.

Allahabad HC12 Jan 2022CRLA/3614/2019

Case brief

AI extract

What is this about?

This court dismissed criminal appeals against conviction for attempted murder under IPC Sections 307/34. Upholding the trial court's finding, the bench held that the injured's testimony was reliable enough for conviction despite a lack of independent witnesses, rejecting claims of false implication.

What did the court decide?

Both criminal appeals were dismissed, convicting the appellants and affirming the sentence of 7 years rigorous imprisonment and fine.

Guddu @ Khaleel Vs State of U.P. and Anr. — Caste Atrocities | Allahabad HC (2022)

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Reserved on 17.12.2021 Delivered on 12.01.2022

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Court No. 46 Case :- CRIMINAL APPEAL No. - 3614 of 2019 Appellant :- Guddu @ Khaleel Respondent :- State Of U.P. And Anr. Counsel for Appellant :- Saket Jaiswal Counsel for Respondent :- G.A.,Anil Kumar AND Case :- CRIMINAL APPEAL No. - 3469 of 2019 Appellant :- Jameel Kapadiya Respondent :- State of U.P. and Another Counsel for Appellant :- Saket Jaiswal Counsel for Respondent :- G.A.,Anil Kumar

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Hon'ble Mrs. Sadhna Rani (Thakur),J.

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These two appeals have been filed by the appellants namely, Guddu @ Khaleel and Jameel Kapadiya against the common judgment and order dated 6.3.2019 passed by learned Second Special Judge/ Additional District Sessions Judge, Hamirpur in Special Case No. 15 of 2012, State Vs. Jameel Kapadiya and others and Special Case No. 30 of 2014, State Vs. Guddu @ Khaleel, both arising out of case crime no. 1380 of 2011, police station Maudaha District Hamirpur whereby the appellants along with co -accused Saggan have been convicted under section 307/34 I.P.C. for a period of 7 years R.I. and to pay fine of Rs. 5000/- each and in default of payment of fine, they have to further undergo three months simple imprisonment. All the accused persons are acquitted of the charges under section 3(2)(5) of SC/ST Act, 1989.

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As both the above mentioned appeals rise out of the same judgment and order so both are being heard together and are decided by a common judgment.

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The facts germane to the proceedings are that on 30.9.2011 at about 20.40 hours Mahesh Kumar son of Pragi Lal Chamar gave a

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complaint at police station Maudaha District Hamirpur that on 30.9.2011 itself at 8 p.m. Guddu, Jameel Kapadiya along with two others have stabbed Ajay son of Kishan in his abdomen. The blood is oozing from the wound. His family members have taken him to the hospital.

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On this complaint, the case crime no. 1380 of 2011 under section 307 I.P.C. was registered at police station Maudaha District Hamirpur against Jameel Kapadiya, Guddu and two unknown persons. Investigation was conducted by S.I. Raj Narayan Tripathi, police station Maudaha District Hamirpur who recorded necessary statements along with the statements of injured and his father, prepared site-plan, copied documents in case diary. On the basis of statement of injured the names of Jalal and Saggan were added as accused and the victim being a member of Scheduled Castes and Scheduled Tribes Section 3(2)(5) of SC/ST Act was also added and then investigation was transferred to Circle Officer of police, Ramesh Kumar Bhartiya on 26.11.2011 who after going through the investigation conducted by R.N. Tripathi recorded the additional statement of Sri Krishna, father of the injured Ajay, arrested the accused Jameel Kapadiya recorded his statement copied the rest documents in case diary and filed charge-sheet against Jameel Kapadiya under section 307 I.P.C. and Section 3(2)(5) of SC/ST Act, 1989. The investigation continued against rest three accused persons. On 13.5.2012, the investigation was taken over by the Circle Officer Arvind Kumar Maurya who going through the previous proceedings of investigation and after arrest of Jalal on 10.4.2012 filed charge-sheet against accused Jalal on 15.6.2012 under section 307 I.P.C. and 3.(2) (5) SC/ST Act, 1989. On 21.6.2012 the accused Saggan was arrested by Maudaha police and on 27.8.2012 charge-sheet was submitted against Saggan and Guddu in above mentioned sections. Charge-sheet against Guddu was submitted in his absence ( mafruri).

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After receiving all the charge-sheets, learned lower court took cognizance and the cases of all the accused persons were committed to the Court of Sessions. Learned lower court framed charges against

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Jameel, Guddu @ Khaleel and Saggan on 25.4.2012, 28.7.2014 and 6.11.2012 respectively, under section 307/34 I.P.C. and 3(2)(5) of SC/ST Act. All the accused persons denied of the charges and claimed to be innocent. Meanwhile, accused Jalal reported to be expired.

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The prosecution produced as many as 8 witnesses in support of the charges framed. In Special Case No. 15 of 2012, State Vs. Jameel Kapadiya, injured Ajay appeared as p.w.-1, his father Sri Krishna appeared as p.w.-2, the first informant Mahesh Kumar appeared as p.w.3, Dr. Vikram Singh appeared as p.w.-4 and all the three Investigating Officers appeared as P.Ws. 5, 6 and 7 respectively. Sub Inspector Hakim Singh also appeared as p.w.-8 in the lower court.

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In Special Case No. 30 of 2014, State Vs. Guddu @ Khaleel, injured Ajay appeared as p.w.-1, Mahesh Kumar appeared as p.w.-2 and Sri Krishna, the father of the injured appeared as p.w.-3 and after that the Special Case No. 30 of 2014, State Vs. Guddu @ Khaleel was clubbed with Special Case Nos. 15 of 2012, 44 of 2012 and 50 of 2012 relating to Jameel, Jalal and Saggan respectively. The Special Case No. 15 of 2012, State Vs. Jameel Kapadiya was treated as leading case wherein the above mentioned statements of p.w.-4 to p.w.-8 were recorded.

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As documentary evidence, the prosecution produced complaint of the offence as exhibit k-1, the injury report of injured Ajay as exhibit k-2, site plan as exhibit k-3, amended G.D. as exhibit k-4, G.D. No. 38 as exhibit k-5, charge-sheet against Jameel as exhibit k-6, charge-sheet against Saggan and Guddu as exhibit k-7, chik F.I.R. as exhibit k-8 and copy of G.D. as exhibit k-9.

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The prosecution has also produced the shirt of injured as material exhibit -1, vest of injured as material exhibit -2, pant of the injured as material exhibit -3, underwear of injured as material exhibit-4.

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Thereafter, the statements of accused persons Jameel Kapadiya, Guddu @ Khaleel and Saggan were recorded under section 313 Cr.P.C. wherein they claimed the incident and their implication both to be false.

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Indrapal son of Rajwa Prasad was produced as D.W.-1 from the defence side.

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After hearing the arguments on behalf of the accused persons and of the learned Government Advocate, the lower court being convinced partly with the prosecution evidence passed the judgment and order dated 5.3.2019 holding all the three accused persons guilty under section 307/34 I.P.C. and acquitted them of the charge under section 3(2)(5) of SC/ST Act, 1989. Vide order dated 6.3.2019, the learned lower court sentenced all the three accused persons Jameel Kapadiya, Guddu @ Khaleel and Saggan with 7 years R.I. and fine of Rs. 5000/- each under section 307/34 I.P.C. and in default of payment of fine, the accused persons had to further undergo additional imprisonment for 3 months.

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Against this judgment accused Jameel Kapadiya and Guddu @ Khaleel have preferred the above-mentioned two appeals. Accused Saggan is said to have not preferred any appeal against the impugned judgment and order.

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By filing aforementioned two separate appeals, the accused persons have taken common grounds.

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Learned counsel for the appellants submits that the impugned order is against the weight of evidence on record. Learned lower court has not appreciated the evidence available on record. The judgment has been passed on the basis of conjuncture and surmises which is illegal and arbitrary and thus, bad in the eye of law. Hence, the appeal is prayed to be allowed and the prayer to set aside the impugned order convicting and sentencing the appellants as mentioned above, is also made.

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It has been argued that all the four accused persons are the real brothers who have been falsely implicated in the present case. The main role has been assigned to Saggan who is said to have inflicted stab injury to the injured Ajay. Admittedly, the injured has suffered single stab injury which is not said to be greivious and fatal to life by the doctor. No

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independent witness has been produced by the prosecution. The accused Guddu @ Khaleel is in jail from 26.7.2016 till date, while the appellant Jameel Kapadiya was in jail from 25.12.2011 to 15.3.2013 and now from the date of judgment dated 5.3.2019, he is languishing in jail again.

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Learned A.G.A. has prayed that both the present appellants are hardened criminals. Accused Jameel is having criminal history of 30 cases and Guddu is having criminal history of 4 cases. The criminal history of the accused is on record in the counter affidavit filed by the State as against the bail application of the accused.

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According to the Government Advocate, the prosecution has proved the incident by the evidence available on record. Though the main role was assigned to accused Saggan who is said to have caused injury to the injured but the other three accused are said to have accompanied the main accused. The role of holding the collar of shirt of the injured has been assigned to the accused Guddu. It has also been submitted that the father of the injured was busy in treatment of his son, so the first information report was lodged by one Mahesh Kumar a known person to the father of the injured.

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Heard the learned counsel for the appellants and the learned A.G.A. for the State and perused the record.

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The first argument of the learned counsel for the appellants is that no independent witness has been produced by the prosecution. Injured Ajay and his father Sri Krishna who appeared as p.ws. 1 and 2 respectively are interested witnesses and p.w.-3 Mahesh Kumar has only proved the complaint made by him who has not witnessed the incident.

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It is true that only three witnesses of fact have been produced by the prosecution in support of its version wherein p.w.-3 is admittedly the informant who has proved the complaint made to the police station and rest two witnesses of fact are injured Ajay and his father Sri Krishna who are termed by the accused counsel as interested / related witnesses. In this regard the Apex Court in the judgment of State of A.P. Vs. S.

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Rayappa and others (2006) 4 SCC 512 , has held that merely because witnesses were related to the deceased, they can not be said to be interested witnesses and on that ground alone their testimony cannot be rejected. In view of the reluctance of the general public to be a witness, a close relative is the only natural witness, and the only requirement is that testimony of such a witness should be examined cautiously by court.

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In the case of Vijendra Singh Vs. State of U.P., (2017) 11 SCC 129 the Apex Court has defined the distinction between a witness who is related and an interested witness. A relative is a natural witness and close relative who is a natural witness cannot be regarded as an interested witness. For the term interested witness, witness must have some interest in having the accused somehow or the other convicted for some or other reason and it is also opined that it cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that evidence of interested witness should be subjected to careful scrutiny and accepted with caution and if on such scrutiny the interested testimony is found to be intrinsically reliable or inherently probable it may by itself be sufficient in the circumstance of particular case to base conviction thereon.

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On the basis of law laid down in the above judgments the evidence of injured Ajay and his father should be subjected to careful scrutiny and if on such scrutiny their testimony is found to be intrinsically reliable and inherently probable the same can be based for conviction of accused persons.

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If we go through the evidence of witnesses produced by the prosecution, P.W.-1, 2 and 3 are witnesses of fact, p.w.-4 is doctor who has proved the injury report of the injured and has found one incised wound of size 2 cm x0.5 cm muscle deep over right C/A lateral aspect of lower chest below lower ribs. This injury was kept under observation and the patient was referred to district hospital Hamirpur for expert opinion and management. The injury was found to be caused by some sharp

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object. The doctor p.w.-4 proved the injury report and opined this injury to be caused by some sharp edged weapon and that such injury could be caused by a knife at 8.00 p.m. on 30.9.2011.

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P.Ws.- 5, 6 and 7 are the three Investigating Officers. Investigation was first taken over by p.w.-5 -S.I. Raj Narayan Tripathi on 30.9.2011 who recorded necessary statements including that of injured and his father, prepared site plan, added the names of the accused Saggan and Jalal and section 3(2)(5) of SC/ST Act, 1989 and because of adding of this section, the investigation was transferred to Circle Officer of police Ramesh Kumar Bhartiya who took over the investigation on 26.11.2011. He recorded the additional statements and after arrest of accused Jameel Kapadiya filed charge-sheet against him. He is also said to have copied documents in the case diary. After Ramesh Kumar Bhartiya, the investigation was transferred to Circle Officer Arvind Kumar Maurya who after due investigation filed charge-sheet against Jalal and Saggan in their presence and against Guddu in his absence. P.W.-8 S.I. Hakim Singh the then constable Moharrir, police station Maudaha, proved chik first information report and G.D. to be prepared by him.

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P.Ws. -1, 2 and 3 are the witnesses of fact. P.W.-1 is the injured, p.w.-2 is his father, and p.w.-3 Mahesh Kumar is the informant who has proved the complaint ascribed by him.

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Admittedly, the p.w.-2 is not the eye witness as he is the father of the injured. He has taken his son to the different hospitals for treatment. The p.w.1 injured Ajay is the sole witness of the incident and thus, the most important person to prove the charge against the accused persons.

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The statements of witnesses of fact have been recorded in both the special cases namely, 15/2012 State Vs. Jameel Kapadiya and 30/2014, State Vs. Guddu @ Khaleel separately wherein the injured has specifically stated that about 1 and 3/4 years ago at about 8.00 p.m. he was coming back after viewing the decor (Jhanki) of goddes Durga on the occasion of Navratri. When he reached near the house of one Ashok, the accused persons namely, Jameel, Jalal, Saggan and Guddu,

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all the real brothers met him. Guddu holding the collar of his shirt asked him that on signal given to him by hand to stop the vehicle why he did not stop the vehicle as he wanted to sit in it.' The injured replied that it was the odd hour of 2 'O' clock in mid-night, so he did not stop. He jerked his collar away from the accused Guddu. At this accused Saggan who was having a knife in his hand stabbed him in the right side of his abdomen with intention to cause his death. The injured began to run towards his house and all the accused persons abusing and shouting to kill him chased him. In the way to his house, he found the gate of the house of one Shiv Balak opened he entered therein. The accused persons could not see the injured entering therein. They besieged the house of one Sarju the neighboring house of Shiv Balak. The injured Ajay informed about the incident to his brother Shyam Sundar by mobile who was in Delhi. On the information given by his brother, the parents of the injured came on the spot. They begged the accused persons repeatedly to let their son go. Meanwhile, someone informed the police. Seeing the police, the accused persons managed to escape. Thereafter the injured was taken to the government hospital Maudaha from-where he was referred to Hamirpur. Thereafter the injured was sent to Hallet hospital Kanpur where he was admitted for a week.

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In cross examination he has disclosed that he was the driver of the vehicle of one Wahid for the last one and a half months. He had gone to his master’s house and came back by an auto. After getting off the auto at Attarra chauraha, he was coming on foot towards his house the incident took place. He further stated that being injured he ran about 5-6 minutes and the accused persons were chasing him. The injured entered the house of Shiv Balak. He repeated the fact in his cross examination that he was taken to the hospital Maudaha and was given first aid, thereafter he was referred to Hamirpur and from there he was sent to Hallet hospital Kanpur. He denied the suggestion that he was injured in some molestation case by some unknown persons.

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P.W-2 Sri Krishna, the father of the injured has given the hearsay evidence that his son disclosed him the name of accused persons. Though he has stated that after receiving the information of the incident, he reached the house of Shiv Balak and saw that all the accused persons were besieging the house of Sarju and were shouting to kill Ajay. His son was hidden in the house of Shiv Balak. P.W-2 was begging to let his son go but the accused persons were not listening to him. The accused Saggan was having a blood stained knife in his hands. Seeing the police come they managed to escape. Then he with the help of other persons took his son to the hospital CHC Maudaha from there the injured was referred to District hospital Hamrpur. From District hospital he was sent to Hallet hospital Kanpur where he was under treatment for 7-8 days as indoor patient.

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Injured Ajay has reiterated the same facts as p.w.-1 in Special Case No. 30 of 2014, State Vs. Guddu @ Khaleel also. In his examination-in-chief therein he has stated that it was at 8.00 p.m. he was coming back from Navratri festival and as soon as he reached near the house of Ashok, he met all the four accused persons. Guddu holding collar of his shirt asked him why he did not stop the vehicle that day as he wanted to sit therein. Replying that it was 2 'O' clock in night, so he did not stop the vehicle. The injured got himself freed from the clutches of the accused than the accused Saggan stabbed him in the right side of abdomen. The injured ran towards his house, he was being chased by all the accused persons. He hid himself into the house of Shiv Balak and informed his brother. The accused persons were assembled in front of the house of Sarju and were hurling abuses. His father came and requested to let his son go but they did not pay any heed and as soon as police arrived, they managed to escape. Then his father took him to the government hospital and from there he was sent to Hallet hospital Kanpur for treatment. A Homegaurd also accompanied them in all these hospitals.

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The injury report of the injured is also on record which is proved by the p.w.-4 the doctor who prepared the same. In that report also it has been mentioned that he was brought by the Home-guard no. 595 namely Moti Lal. Though the discharge slip of Hallet hospital Kanpur regarding the injury is also on record in original, according to which the injured was admitted in medical college Kanpur on 1.10.2011 and discharged on 7.10.2011. He was operated on 1.10.2011 and the diagnosis mentions stab injury on the right side of chest and it is mentioned therein that injury was managed operatively by insertion of (r) ICD tube with under water seal drainage LA on 1.10.2011. Post operatively patient was managed with IVF, antibiotic, alalgentic onta acids and other symptomatic drugs. Chest tube was removed on 4.10.2011. Regular cleaning and dressing was done. Patient was discharged on persistent request of patient’s attendant with proper advice and regular follow up. Though this discharge slip of medical college Kanpur has not been proved by producing the requisite witness but the version of prosecution witnesses that the injured remained in hospital for about a week has not been denied by the accused persons. As per discharge slip, the injured is said to have been discharged on 7.10.2011 and it is 7.10.2011 only when the Investigating Officer has prepared site-plan at the instance of the injured and his father and the statement of injured has also been recorded on 7.10.2011 for the first time by the Investigating Officer. In C.D. Parcha no. 2 it has been mentioned by the Investigating Officer that the injured has been referred from Hamirpur Hospital to Hallet hospital Kanpur and in parcha no. 4 also it has been mentioned by the Investigating Officer that the injured has not come back after his treatment and on 7.10.2011 in parcha no. 5 the statement of injured and his father were recorded. In the statement of injured and his father both it has come that from district hospital Hamirpur the injured was referred to Hallet hospital Kanpur then only his life could be saved.

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Defence of the accused persons is that they did not assault the injured rather viewing Navratri festival the victim got injured in some molestation case by some unknown persons. In support of their defence, the accused persons have produced DW-1 Indrapal who has stated in his statement that when after the incident at 8.00-9.00 p.m. he came out of his house after hearing some noise, Ajay and some persons of locality were present there. Ajay told to him that he got altercation with some unknown persons while seeing decor of goddess during Navratri and he could not recognize the person who inflicted injury to him. Though this witness has given his statement under section 161 Cr.P.C. before the I.O. that when he came out of his house, injured Ajay, his father and other persons were coming out of the house of Shiv Balak and told that Jameel, Guddu, Saggan and Jalal have stabbed Ajay. They took the injured to the hospital. In the statement under section 161 Cr.P.C. it is also added by the witness Indrapal that Jameel Kapadiya and his brothers are having terror in the society. No one had courage to stand before them. In the cross examination as DW-1 he was asked about his deposition under section 161 Cr.P.C. that soon after the incident the injured told him that he was stabbed by the accused persons, this fact had flatly been denied by him. Thus, his statement before the court is clearly contradictory to the statement given before the Investigating Officer under section 161 Cr.P.C. At the same time, for the first time after 8-9 years of the incident he has stated in the court that injured told to him that he was inflicted injury by some unknown persons therefore, his evidence cannot be said to be reliable one. However by the statement of DW-1 it is clear that Ajay sustained stab injury on 30.9.2011. Though during arguments also it has been claimed by the learned counsel for the appellants that in the Navratri festival the injured molested someone due to which he was stabbed by unknown persons but this defence has not been taken in the statement of the accused persons under section 313 Cr.P.C. wherein they have only asserted that the incident is false and they have been falsely implicated therein.

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Regarding criminal history it is claimed that accused Jameel has not been convicted in any case. In all the cases except one he has been acquitted and in only one case out of criminal history pending against him in case crime no. 1480 of 2008 under section 457 / 380 I.P.C. he is on bail. Regarding criminal history of Guddu it has been claimed that there is no case pending against him except this case. However, no order/ judgment has been filed regarding criminal history of accused persons.

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This is also argued by the learned counsel for the appellants that it was 8.00 p.m. and no source of light has been shown in the site plan. Admittedly, the accused persons and the injured are residents of the same locality and they are very well known to one another. As per injured, there was some conversation between him and the accused persons before the incident as the accused Guddu was asking the injured why he had not stopped the vehicle that night. So it cannot be said that it was not possible for the injured to recognize the accused persons who are of the same locality and who are known to him and with whom he was talking just before the incident. Even there is no allegation of having enmity with either side. There is no motive before the injured to implicate the accused persons falsely. While the accused persons have motive to assault the injured as he did not stop his vehicle when he was given signal by hand by the accused Saggan during previous night. The case of false implication to the accused is not convincing.

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In the light of above discussion, prosecution on the basis of the statement of P.W.-1 Ajay has established the mode, manner and sequence of the events. The evidence of injured appears to be clear, clinching and trustworthy and the same can be safely acted upon. Mere non-examination of independent witness in the present case can not belie the prosecution as the evidence of the injured P.W.-1 is found to be wholly trustworthy and credible.

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Hence, in totality of the facts and circumstances of the case, I am of the considered opinion that the conviction of the appellants for the offence under section 307/34 I.P.C. and sentence for 7 years R.I. with fine of Rs. 5000/- each with default stipulation awarded by the trial court is fully justified. The trial court has given cogent reason for awarding the sentence, hence the impugned judgment does not call for any interference by the this court.

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The appeals lack merit and are liable to be dismissed.

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Both the appeals are accordingly, dismissed.

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Order Dated :-12.01.2022

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Gss

Guddu @ Khaleel v. State of U.P. and Anr.

Case brief

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Guddu @ Khaleel v. State of U.P. and Anr.

Case brief

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