NIYAMULLAH Vs. STATE OF U.P.

JUDGEMENT

(1.) This appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed by Niyamullah, Mahendra, Sahendar, Wakeel, Naushad, Kalimullah, Anaruddin and Enmul Huda @ Dugru against judgment of conviction and sentence made therein in Sessions Trial No. 163 of 2004 (State Vs. Niyamullah and others), arising out of Case Crime No. 151 of 2004, under Sections 147, 304/149, 504, 506 I.P.C., Police Station Kolhuee, District Maharajganj with connected Sessions Trial No. 31 of 2005 (State Vs. Anaruddin) and Sessions Trial No. 92 of 2005 (State Vs. Enmul Huda @ Dugru) by Additional Sessions Judge, Court No. 1, Maharajganj, whereby each of the convicts-appellants were convicted for offences punishable under Section 304 Part-I read with 149, 147, 504, 506 I.P.C. and they have been sentenced with ten years rigorous imprisonment and fine of Rs.10,000/- each under Section 304 Part-I read with 149 I.P.C., one year rigorous imprisonment under Section 147 I.P.C., six months rigorous imprisonment under Section 504 I.P.C. and six months rigorous imprisonment under Section 506 I.P.C. In case of default in making fine, each of the convicts-appellants were to undergo one year rigorous imprisonment. There was direction for concurrent running of sentences and adjournment of previous imprisonment, if any.

(2.) Memo of appeal contends that learned trial court failed to appreciate facts and law placed on record. The convicts-appellants No. 5 and 8 were not named in first information report, which was lodged by first informant himself, wherein PW-2 Izhar Ali was shown to be the eyewitness, accompanying the first informant, but subsequently, they were added. It itself shows that both these witnesses of fact were not with clean hands. Rather, they have falsely implicated convicts-appellants due to their personal enmity. PW-3 Nandlal and PW-4 Jumrat Ali were also not shown to be the eyewitness account in first information report, but subsequently introduced as eyewitness account. There was no intention to cause death of deceased. Rather, the only said intention was, though not admitted, for offence punishable under Section 325 I.P.C. Hence, the conviction of appellants under Section 304 Part-I I.P.C. was unsustainable and was against the evidence on record. X-ray report of deceased has not not been proved by the prosecution or any witness. On the score of this too, finding was erroneous. A general allegations against appellants, except appellant nos. 5 and 8, was levelled with no disclosure as to who had caused the stone injury on the lower back of deceased. It seems that the said injury, which could be a reason for the death of deceased, situated on the left lower back, was due to falling down from a height into a pit hole, in which he got his limbs and lower back injured, but subsequently due to previous enmity, this false implication occurred. Appellants are in jail since 20.12.2013. The conviction and sentence of appellants is contrary to law, on the point of sentencing too. The same is not proportionate to offence. Rather, it is too severe. Hence, this appeal is liable to be allowed. Accordingly, this appeal be allowed and judgment of conviction and sentence made therein be set aside. Further, appellants be acquitted from the charges levelled against them.

(3.) From the very perusal of record of trial court and impugned judgment, it is apparent that first information report (Ext.Ka-3) was got lodged by way of presenting a written report, signed by informant Mahboob Alam at Police Station Kolhuee, District Maharajganj on 25.09.2004 at 21.50 P.M. against Anaruddin, Kalimullah, Niyamullah, Wakeel, Mahendra and Sahendar, all R/o Saakinaan Kamharia Bujurg, Tola Bargadhia, P.S. Kolhuee, Maharajganj, for offences punishable under Sections 147, 308, 325 I.P.C. for an occurrence, which took place at about 4 P.M. on the same day i.e. 25.09.2004, within the area of village Kamharia Bujurg, with this contention that informant Mahboob Ali along with his cousin Izhar Ali, was on his way to their home from 'Eksadawa Chauraha' on 25.09.2004 and when about 4 P.M. they reached near wooden bridge, they found that Anaruddin, S/o Ali Hasan, Kalimullah, S/o Jafar, Niyamullah, S/o Jafar, Wakeel, S/o Furd, Mahendra and Sahendar, S/o Chinni Lal, were beating informant's brother Mashoor Alam, by lathi, who was lying on ground and shouting for help. Upon this noise, he and his cousin along with Yogender, S/o Sundar rushed on spot. They intended to save injured, but accused persons, while seeing those persons, reaching on spot, ran towards river. His brother was unconscious, having fracture over both upper and lower limbs. This assault was owing to previous enmity. Injured was taken to Bankati, Farenda Hospital from where doctor opined for taking to Sadar Hospital, Gorakhpur, where he was got admitted and this information was submitted for taking legal recourse. Injured was medically examined at District Hospital, Gorakhpur and medico legal report (Ext.Ka-16) was got prepared by Dr. Hiralal of District Hospital, Gorakhpur. Injured was having following injuries:-