# Abdul Khaliq & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 124
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-23
- **Case number:** Criminal Appeal No. 5146 of 2018
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-khaliq-ors-in-jail-v-state-of-u-p-44580
- **Pages:** 17

## Headnote

A. Indian Penal Code, 1860 - Sections
147, 148, 149, 323, 504, 506, 307 I.P.C.
and Section 7 of the Criminal Law
Amendment Act - Statements of accused
under section 313 Code of criminal
procedure,1973-two appeals challenging
judgements - illegal ,arbitrary , perverse
and contrary - conviction and sentence
of accused-appellants, for the offence
under section 307/323 read with 149
and section 147, 148 I.P.C. and the
conviction and sentence of accusedappellants for the offence under section
147,148 I.P.C. is perverse, illegal and not
sustainable under law - conviction of
accused-appellants for the offence under
section
307
I.P.C.
is
liable
to
be
converted for the offence under section
325/34 I.P.C. and the sentence is liable
to be reduced and modified for both
offences under section 325/323 read
with section 34 I.P.C.
2 All. Abdul Khaliq & Ors. Vs State of U.P.
125
Two F.I.R. has been lodged in respect of same
incident - The injury was caused by blunt
object like lathi and not by any deadly
weapon, and therefore, intention to cause
death cannot be imputed and instead of
offence under section 307 I.P.C., only an
offence under section 325 and 323 I.P.C. for
voluntarily causing grievous hurt and simple
hurt is proved.. It also shows their common
intention in causing injuries and section 34
I.P.C.
is
very
much
applicable.
(Para
8,10,21,51 & 53)

B.
Indian
Evidence
Act,
1872-
Contradictions/inconsistencies/embellishm
ents or improvements of minor nature on
trivial matters which do not affect the core
of the prosecution case, should not be made
a ground on which the evidence can be
rejected in its entirety. (Para 43)

Criminal Appeal partly allowed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,897 of 56,311. This is a partial read: ask again with offset=39897 for what follows._

124 INDIAN LAW REPORTS ALLAHABAD SERIES

xii) Non providing copies of
documents to the accused, has caused
serious prejudice to them and violates the
principle of fair trial.

33. In view of discussion made
above, taking cumulative effect of the
evidence, as discussed above, we allow
this appeal and set aside the impugned
judgment and order dated 15.4.2015
passed by learned Trial Judge in S.T. No.
1185 of 2001 ( State Vs. Ravi Karan and
others). The appellants Prakash is in jail.
He be set at liberty forthwith. The
appellant Ravi Karan is on bail. He need
not
surrender.
His
bail
bonds
are
cancelled and sureties are discharged.
However, the appellants are directed to
make compliance of the provisions of
Section 437-A, Cr.P.C. in the concerned
Court below.

34. Registry is directed to transmit the
original record to the concerned Trial Court
forthwith for compliance of this judgment.
Trial
Court
is
obliged
to
intimate
compliance to this Court within a month.

35. Before parting with the case, we
feel it necessary, in the ends of justice to
obtain a report from the District Judge,
Fatehpur
informing
this
Court
that
whether or not a non judicial enquiry as
has time and again been circulated by the
High Court in relation to loss of judicial
records, conducted and if so, its result. It
is also directed that after receipt of report
from the District Judge, Fatehpur, the
Registrar General of this Court shall place
the
matter
before
Hon'ble
the
Administrative
Judge
concerned
for
appropriate orders, in case of non
compliance of the various Circulars of
this Court regarding loss of record.
----------
(2019)10ILR A

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2019

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 5146 of 2018
with
Criminal Appeal No. 5666 of 2018

Abdul Khaliq & Ors. ...Appellants
 (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Kamal Krishna, Sri Ajay Kumar
Upadhyay.

Counsel for the Opposite Party:
G.A., Sri Dhanbeer Mishra, Sr Satendra
Prakash Srivastava.

A. Indian Penal Code, 1860 - Sections
147, 148, 149, 323, 504, 506, 307 I.P.C.
and Section 7 of the Criminal Law
Amendment Act - Statements of accused
under section 313 Code of criminal
procedure,1973-two appeals challenging
judgements - illegal ,arbitrary , perverse
and contrary - conviction and sentence
of accused-appellants, for the offence
under section 307/323 read with 149
and section 147, 148 I.P.C. and the
conviction and sentence of accusedappellants for the offence under section
147,148 I.P.C. is perverse, illegal and not
sustainable under law - conviction of
accused-appellants for the offence under
section
307
I.P.C.
is
liable
to
be
converted for the offence under section
325/34 I.P.C. and the sentence is liable
to be reduced and modified for both
offences under section 325/323 read
with section 34 I.P.C.
2 All. Abdul Khaliq & Ors. Vs State of U.P.
125
Two F.I.R. has been lodged in respect of same
incident - The injury was caused by blunt
object like lathi and not by any deadly
weapon, and therefore, intention to cause
death cannot be imputed and instead of
offence under section 307 I.P.C., only an
offence under section 325 and 323 I.P.C. for
voluntarily causing grievous hurt and simple
hurt is proved.. It also shows their common
intention in causing injuries and section 34
I.P.C.
is
very
much
applicable.
(Para
8,10,21,51 & 53)

B.
Indian
Evidence
Act,
1872-
Contradictions/inconsistencies/embellishm
ents or improvements of minor nature on
trivial matters which do not affect the core
of the prosecution case, should not be made
a ground on which the evidence can be
rejected in its entirety. (Para 43)

Criminal Appeal partly allowed (E-7)

List of Cases Cited: -

1. St. of Har. Vs Krishan AIR 2017 SC 3125

2. Mukesh Vs St. for NCT of Delhi & ors. AIR
2017 SC 2161 (Three-Judge Bench)

3. Bhagwan Jagannath Markad Vs St. of Mah.
(2016) 10 SCC 537 and

4. Jarnail Singh Vs St. of Punj. (2009) 6
Supreme 526

5. St. of U.P. Vs Chhoteylal AIR 2011 SC 697

6. Dimple Gupta (minor) Vs Rajiv Gupta AIR
2008 SC 239

7. St. of U.P. Vs Naresh 2011 (75) ACC 215 (SC)

8. Gosu Jayarami Reddy & anr. Vs St. of A.N.
(2011) 3 SCC (Cri) 630

9. Parsu Ram Pandey Vs St. of Bihar AIR 2004
SC 5068

10. Shivappa Vs St. of Kar. AIR 2682

11. Ramchandaran Vs St. of Kerala AIR 2011
SC 3581
12. Mukesh Vs St. for NCT of Delhi & ors. AIR
2017 SC 2161 (Three-Judge Bench)

13. Bhagwan Jagannath Markad Vs St. of Mah.
(2016) 10 SCC 53

14. Nasir Ali Vs St. of U.P. AIR 1957 SC 366

15. Ugar Ahir Vs St. of Bihar AIR 1965 SC 277

16. Sucha Singh Vs St. of Punj. (2003) 7 SCC
643 to

17. Babu Vs St. of T.N. (2013) 8 SCC 60 and

18. St. of Kar. Vs Suvarnamma (2015) 1 SCC
323

19. Ram Gulam Chowdhary Vs St. of Bihar
(2001) 2 JIC 986 (SC)

20. Rupinder Singh Sandhu Vs St. of Punj.
(2018) 16 SCC 475

21. Khem Ram Vs St. of H.P. (2018) 1 SCC 202

22. St. of Punj. Vs Hakam Singh (2005) 7 SCC
408 and

23. Leela Ram Vs St. of Har. (1999) 9 SCC
52510,

(Delivered by Hon'ble Pradeep Kumar
Srivasatva, J.)

1. These two appeals have been
preferred against the impugned judgment
dated 31.08.2018, passed by Additional
Sessions Judge/Fast Track Court-II, Basti,
in two connected Sessions Trial No. 110
of 2011 (State vs. Abdul Khaliq and 6
others), arising out of Case Crime No. 2B
of 2009, under Sections 147, 148, 149,
323, 504, 506, 307 I.P.C. and Section 7 of
the Criminal Law Amendment Act, Police
Station Rudhauli, District Basti and in
Sessions Trial No. 168 of 2011 (State vs.
Islahur Rahman @ Islam and 14 others),
arising out of Case Crime No. 2 of 2009,
under Sections 147, 148, 323/149, 504,
126 INDIAN LAW REPORTS ALLAHABAD SERIES
506 I.P.C. and Section 7 of the Criminal
Law Amendment Act, Police Station
Rudhauli, District Basti.

2. In Sessions Trial No. 110 of 2011,
the accused-appellants Abdul Khaliq,
Razi Ahmad @ Raju, Tufel Ahmad,
Nurul Huda, Jamil Ahmad, Ujer Ahmad
and Abdul Mutaliq have been convicted
and sentenced for the offence under
Section 307/149 I.P.C. for seven years
simple imprisonment and fine of Rs.
5000/- each and in default six months
additional imprisonment, under Section
323/149 I.P.C. for six months simple
imprisonment and fine of Rs. 500/- each
and in default one month additional
imprisonment, under Section 147 I.P.C.
for six months simple imprisonment and
fine of Rs. 500/- each and in default one
month additional imprisonment, under
Section
148
I.P.C.
for
two
years
imprisonment along with fine of Rs.
2000/- each and in default three months
additional imprisonment. The appellants
have been acquitted for the offence under
Sections 504, 506 I.P.C. and Section 7
Criminal Law Amendment Act.

3. In Sessions Trial No. 168 of 2011,
the accused-appellants Islahur Rahman @
Islam,
Miswahur
Rahman,
Abdul
Mutaliq, Abdul Khaliq, Jamil Ahmad,
Tufel Ahmad, Wasiullah, Ujer Ahmad,
Nurulhuda, Ainuullah, Iflahur Rahman,
Gulam Husen, Israhul Haq, Taufiq
Ahmad and Razi Ahmad have been
convicted and sentenced for the offence
under Section 147 I.P.C. for six months
imprisonment
each,
under
Section
323/149
I.P.C.
for
six
month
imprisonment and fine of Rs. 500/- each
and in default one month additional
imprisonment. The appellants have been
acquitted for the offence under Section
148, 504, 506 I.P.C. and Section 7
Criminal Law Amendment Act.

4. Brief facts of Sessions Trial No.
110 of 2011 arising out of Case Crime
No. 2B of 2009 are that the complainant
Abdul Samad lodged a first information
report on the basis of written report filed
by him on 05.01.2009 stating that Abdul
Wafa was returning from Dankuiya on
03.01.2009. At about 11 AM when he
passed near the house of Abdul Khaliq,
Razi Ahmad @ Raju exhorted to kill him
and on his exhortation, Tufail Ahmad,
Nurul Huda, with country made pistol in
their
hands,
fired
on
the
son
of
complainant, but he escaped. Then Abdul
Khaliq exhorted and on his exhortation
Jamil Ahmad hit his son on his head by
lathi in order to kill him and Abdul
Mutaliq and Ujer Ahmad also hit him on
his head and back due to which, he fell
down. People gathered there including
Ahmad
Ali,
Mohd.
Yaseen,
Abdul
Kuddus and Iqbal Ahmad. His son
sustained serious injuries and was taken to
Rudauli Hospital. He was medically
examined and his condition was found
serious as he was regularly vomiting and
his injury was bleeding. He was sent to
District Hospital and some treatment was
provided
to
him
but
he
became
unconscious. He was referred to Lucknow
Medical College where he is under
treatment. The accused persons are of the
same village and they have old enmity
with the complainant. On the basis of
report, offence was registered as Case
Crime No. 2B of 2009, under Sections
147, 148, 149, 307, 323, 504, 506 I.P.C.
and Section 7 Criminal Law Amendment
Act on 05.01.2009 at about 06:50 P.M.
The Investigating Officer investigated
into the offence and finding sufficient
evidence against the accused persons,
2 All. Abdul Khaliq & Ors. Vs State of U.P.
127
filed charge sheet under the aforesaid
sections.

5. Brief facts of Sessions Trial No.
168 of 2011 arising out of Case Crime
No. 2 of 2009 are that at about 01:30
P.M., a written report in Police Station
Rudhauli was given stating that on
03.01.2009, at about 11 AM in the north
side of Raunahia Village in a pit of Gram
Samaj, Abdul Khaliq was taking water for
irrigating his field. When the water was
likely to over in the pit, he stopped taking
water from it. Thereafter the whole
village went there for fishing in the pit.
Abdul Khaliq said that he has cleared the
pit and, therefore, he will alone have the
right of fishing. Some people of the
village,
however,
started
fishing
whereupon the accused persons Islahur
Rahman @ Islam, Miswahur Rahman,
Abdul Mutaliq, Abdul Khaliq, Jamil
Ahmad, Tufel Ahmad, Wasiullah, Ujer
Ahmad, Nurulhuda, Ainuullah, Iflahur
Rahman, Gulam Husen, Israhul Haq,
Taufiq Ahmad and Razi Ahmad, with
lathi and danda in their hands, with
intention
to kill
Abdul
Wafa
and
Rafiuddin, attacked on them, who after
sustaining injuries fell on the ground. The
first information report was registered as
Case Crime No. 2 of 2009, under Sections
147, 148, 323 I.P.C. and Section 7
Criminal Law Amendment Act and after
investigation, the Investigating Officer
submitted
charge
sheet
against
the
accused persons.

6. Charges were framed against all
the accused persons under aforesaid
sections who denied the charges and
claimed trial. By order dated 20.12.2014,
passed by Additional Sessions Judge,
Court No. 5, both the aforesaid mentioned
cases were consolidated and Sessions
Trial No. 110 of 2011 was made the
leading file, in which the evidence was
recorded.

7. The prosecution examined PW-1
Abdul Wafa, PW-2 Dr. A.K. Chaudhari,
PW-3 Abdul Hamid, PW-4 Ram Kawal
Yadav, PW-5 Arvind Nath Tiwari, PW-6
Ahmad Ali, PW-7 Yashwant Krinvendra
Chaudhari and PW-8 Gaurav Bhushan,
who proved the written report Ext. Ka-1,
medical report of Abdul Wafa Ext. Ka-2,
written report of Sessions Trial No. 168 of
2011 Ext. Ka-3, site map as Ext. Ka-4,
charge sheets Ext. Ka-5 to Ka-13, chik
F.I.R. in Case Crime No. 2B of 2009 Ext.
Ka-14, G.D. Ext. Ka-15, chik F.I.R. of
Case Crime No. 2 of 2009 Ext. Ka-16,
GD Ext. Ka-17, reference slip Ext. Ka-18
and CT Scan report as Material Ext.-1.

8. Statements of accused-appellants
were recorded under section 313 of the
Criminal Procedure Code in which they
have stated that they have been falsely
implicated
out
of
enmity. Accused
Mutaliq
has
stated
himself
to
be
handicapped. Accused Tufail has pleaded
innocence as he was irrigating and
complainant side came carrying lathi
danda and became aggressive on the issue
of fishing and instituted false case crime
no.
2A/09
to
create
evidence
of
innocence. Accused Jameel Ahamad has
pleaded innocence and has stated that
except Israhulhaq, none was present on
spot. In defence, the accused persons have
filed statement of Harimohan in ST No.
153/11,
charge-sheet
and
statement,
photo-state admit card of Razi and
certificate about Ujer Ahamad.

9. The learned trial court after
hearing both sides and perusing evidence
on record, convicted and sentenced the
128 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellants
by
impugned
judgment in both the session trials by a
common judgment.

10. Aggrieved by the impugned
judgment, these two appeals have been
preferred
challenging
the
impugned
judgment on the ground that the same is
illegal, arbitrary, perverse and contrary to
evidence on record. The appellants have
been assigned no specific role and
prosecution case is based on general
allegations. Two incidents have been
alleged and in both Abdul Wafa has been
alleged to have sustained injuries. The
offence under section 307 I.P.C. was not
proved in view of injuries. Defence
evidence has been completely ignored.
The sentence is too severe. The impugned
judgment is not sustainable under law and
is liable to be set aside. Therefore, the
appellants are entitled for acquittal.

11. PW-1 Abdul Wafa, the injured
has stated that on 03.01.02009 at about 11
AM, when he was coming to his house
from Danokuiya and passing nearby the
house of Abdul Khaliq, Abdul Khaliq and
Razi Ahmad @ Raju exhorted to kill him
at which Tufail Ahmad and Nurul Huda
having country made pistol in their hands
fired on him but he escaped by sitting
down. Again Abdul Khaliq exhorted to
kill him, whereupon, Jamil Ahmad and
Abdul Mutaliq hit him on his head by
lathi in order to kill him. Accused Ujer
Ahmad also hit him by lathi below his
neck on his back. He sustained injuries on
his head and fell down. Witnesses and
others reached there. He was vomiting
and became unconscious. When be
became conscious, he found himself in
Mayo Medical Centre, Lucknow, where
he was admitted and kept under treatment
for 10 to 12 days. The accused persons
have enmity with his family. The
complainant in the case is his father who
has died and who had given a written
report by his signature. The witness has
identified the signature on the written
report Ext. Ka-1. The witness also filed
original medical report, CT Scan report
and discharge slip, the photostat thereof
were already on record. He has further
stated that because of the injuries, he is
still under treatment and he is not
comfortable in speaking.

12. PW-2 Dr. A.K. Chaudhary has
stated that on 03.01.2009, he was posted
as Medical Officer in PHC, Rudhauli and
injured Abdul Wafa aged about 55 years
was brought by police of PS Rudhauli. He
found following injuries on his body :-

(1) lacerated would 9 x 5 cm. x
scalp deep on the left perital region,
above 8 cm. on the back side. Bleeding
was present, X-ray was advised.

(2) lacerated wound 3 x 0.4 cm.
x scalp deep close to injury no. 1.
Bleeding was present.

(3) contusion 3 x 2 cm. (red
colour) on the left side on chest 5 cm.
below the scapular.

13. According to doctor, all the
injuries were caused by blunt object and
were simple in nature, except injury no. 1
for which X-ray and expert opinion was
advised. During treatment, the injured
vomited once and complained that he is
feeling tendency of vomiting and he has
vomited 7 times. The patient was advised
to be kept under observation in District
Hospital, Basti. Injuries were fresh. The
doctor has proved the injury report as Ext.
Ka-2 and said that the injuries must have
2 All. Abdul Khaliq & Ors. Vs State of U.P.
129
been caused at about 11 AM on
03.01.2009.

14. PW-3 Abdul Hamid has stated
that eight and half years ago, the said
incident took place when he was present
in his house. Abdul Khaliq was irrigating
his field by water collected in a pit of
Gram Samaj. When the water in the pit
was getting over, many persons of the
village became excited for fishing which
was opposed by Abdul Khaliq saying that
he has cleared water from the pit and he
has alone right of fishing in the said pit.
The pit was of Gram Samaj and,
therefore, some persons stepped down in
the pit for fishing. Abdul Khaliq became
angry and started speaking otherwise. All
the 16 accused persons namely Islahur
Rahman @ Islam, Miswahur Rahman,
Abdul Mutaliq, Abdul Khaliq, Jamil
Ahmad, Tufel Ahmad, Wasiullah, Ujer
Ahmad, Nurulhuda, Ainuullah, Iflahur
Rahman, Gulam Husen, Israhul Haq,
Taufiq Ahmad, Razi Ahmad and Karam
Husen along with lathi, danda, country
made pistol and spade. Accused Ujer
Ahmad and Razi Ahmad were having
country made pistol, Nurul Huda was
having spade in his hand and the
remaining accused persons were having
lathi and danda in their hands and they
started
beating
Abdul
Wafa
and
Rafiuddin. He and others saw the whole
incident. He got the report inscribed by a
person about this incident and gave the
same in police station on the basis of
which, first information report was
registered. The witness proved the written
report as Ext. Ka-3.

15. PW-4 SI Ram Kewal is the
Investigating Officer who proved the site
map as Ext. Ka-4 and Ka-6 and has
recorded the statements of the witnesses.
After finding sufficient evidence, he
submitted charge sheet Ext. Ka-5 and Ka7.

16. PW-5 SI Arvind Nath Tiwari is
subsequent IO who has proved chargesheet Ext. Ka-8, Ka-9, Ka-10, Ka-11, Ka12 and Ka-13.

17. PW-6 Ahmad Ali has stated that
on the date of incident at about 11 AM
Abdul Wafa was returning to his house
and when he came near the house of
Abdul Khaliq, on the exhortation of
Abdul Khaliq and Razi Ahmad, accused
Tufail Ahmad and Nurulhuda fired on
him but he escaped, whereupon on the
exhortation of Abdul Khaliq, Jamil
Ahmad hit Abdul Wafa by lathi on his
head but he missed and lathi hit on his
back, below the neck. He fell on the
ground. Abdul Wafa was also hit by
Abdul Mutaliq and Ujer Ahmad and he
sustained injuries on his head. He was
taken to Rudhauli for treatment and in
view of the seriousness of the injuries, he
was referred to the District Hospital.

18. PW-7 Yashwant Krinvendra
Chaudhary is Constable Moharir, who has
proved the chik F.I.R. Ext. Ka-14, GD
Report Ext. Ka-15, Chik F.I.R. Ext. Ka16, GD report Ext. Ka-17.

19. PW-8 Dr. Gaurav, Radiologist
has stated that on 16.01.2019, he was
deputed
on
Raj
Scanning
Limited,
Jiyamau, Lucknow. Abdul Wafa aged
about 54 years was sent by Dr. Sumil
Agarwal for CT Scan. In the CT Scan
depressed fracture of frontal bone was
found and clotting was present on frontal
labes. He has proved the CT Scan report
as Ext. Ka-18. CT Scan film has been
proved as Material Ext.-1.
130 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The learned counsel to the
accused-appellants, Sri Kamal Krishna,
Senior Advocate, has argued that in
respect of same occurrence, two fires
were lodged and two charge-sheets were
submitted and in both the cases, the
accused-appellants have been convicted,
whereas, the place of occurrence for both
the cases are different and the evidence of
the
prosecution
has
become
selfcontradictory and the whole prosecution
case is doubtful. The learned A.G.A. and
counsel for the complainant side have
submitted that the prosecution by cogent
evidence has established the case beyond
shadow of doubt and the learned trial
court has rightly convicted and sentenced
the accused-appellants.

21. Certain pertinent facts need to be
mentioned in order to understand the
overall factual matrix in this case. Two
F.I.R. has been lodged in respect of an
incident taking place on 3.1.2009 at 11
AM, one got registered on the written
report of Abdul Hameed on the same day
at 13.30 PM naming 16 accused persons.
The second F.I.R. was lodged by Abdul
Samad, the father of the injured, on
5.1.2019 at 6.50 PM naming only 7
accused persons from the group of those
16 persons who were earlier named in the
F.I.R. lodged on 3.1.2009. It is not
understandable how another F.I.R. was
registered by police in respect of same
incident and why not the subsequent
F.I.R. was included with the first F.I.R.
which was earlier in time and date. Both
were in respect of same incident bearing
Crime No. 2/09 and Crime No. 2B/09 and
were investigated altogether by the I.O.
Two separate charge-sheets were filed
and cognizance was taken on both and
both were committed to sessions for trial.
Naturally, it could be so done if they are
connected and in respect of same criminal
incident or if they are cross cases.

22. The committing court has
mentioned in the committal order about
the case pertaining to S.T. No. 168/11 to
be cross case of other S.T. No. 110/11,
though the same is not correct as it was
not a cross case at all. The learned trial
court by order dated 21.8.2014 refused to
undertake joint trial and still retained S.T.
No. 168/11 which was for the offence u/s
148,147,323,504,506
I.P.C.
and
7
Criminal Law Amendment Act which was
triable by Magistrate. Two trials of at
least those 7 accused persons who were
common in both the cases was not
possible. The matter went to the High
Court on this point in Criminal Misc. No.
42513/14
and
vide
order
dated
27.10.2014, the order of the trial court
dated 21.8.2014 was quashed directing
the trial court to take a fresh decision on
this point. Thereafter, by order dated
20.12.2014,
both
the
trials
were
consolidated and a joint trial was directed
making S.T. No. 110/11 to be leading file.
Against this order, the prosecution did not
seek any judicial remedy. It means that
the prosecution accepted both the cases to
be connected, arising out of one incident
and adduced evidence accordingly.

23. In S.T. No. 110/11 charges were
framed for the offence u/s 147, 148,
323/149, 504, 506, 307/149 I.P.C. and
Section
7
of
the
Criminal
Law
Amendment Act and in ST No. 168/11 for
the offence u/s 147, 148, 323/149, 504,
506 I.P.C. and Section 7 of the Criminal
Law Amendment Act. Clearly, in both the
trials, all the sections were common
except section 307 I.P.C. which is
additional in ST No. 110/11. Both the
session trials have been decided by the
2 All. Abdul Khaliq & Ors. Vs State of U.P.
131
impugned judgment and all the accused
persons have been convicted in both the
session trial. Therefore, I find that at both
level, investigation and trial, procedural
lapse and omission has occurred, may be
because of inexperience or ignorance. I
will come to the legal effect of such lapse
and omission later on. Now the question
is what should have been done in such
situation and what was the legal course
open during investigation and trial. Just
for guidance, it is observed as follows:

1. The second F.I.R. should not
have been registered, and if registered, as
it has happened in this case, it should
have been merged with the earlier F.I.R.
and the offence should have been
investigated taking into consideration the
subsequent report. By doing so, the
mistake could have been avoided which
has occurred in respect of those 7
accused
persons
whose
names
are
common in both the cases because a
double trial is not legally possible for the
same offence.

2. Now, if the investigating
agency committed that error, the learned
trial court should not let the error to
continue and the same could have been
corrected during trial. The learned trial
court should and must have struck down
the names of the seven accused persons
whose names are common in both the
cases from the case which related to
smaller and less serious offence, to avoid
double trial resulting in double jeopardy
of those accused persons which is in
violation of the constitutionally protected
fundamental right of the accused persons
as guaranteed by Article 20 of the
Constitution of India.

24. Instead of doing so, the learned
trial court convicted all those seven
accused persons in both the cases.
Therefore, the trial of 7 accused persons
charge-sheeted in ST No. 168/11 who are
also accused in ST No. 110/11 is
absolutely vitiated being infringement of
the protection provided against double
jeopardy under Art. 20 of the Constitution
of India as no body can be tried or
convicted twice for the same criminal
incident and offence. Hence, the trial,
conviction and sentence of the accusedappellants Abdul Khaliq, Razi Ahmad @
Raju, Tufel Ahmad, Nurul Huda, Jamil
Ahmad, Ujer Ahmad and Abdul Mutaliq
in ST No. 168/11, arising out of Crime
No. 2/09, under Sections 147, 148,
323/149, 504, 506 I.P.C. and Section 7 of
the Criminal Law Amendment Act, Police
Station Rudhauli, District Basti is liable to
be
set
aside
and
quashed
and
consequently they are entitled to be
acquitted.

25. Prosecution admits that both the
criminal incident took place on same date
and same time. But, it appears that there
remained confusion in the prosecution
during investigation and till the end of
trial whether both the cases relate to one
offence or both are distinct offences
taking place at the same time and because
of this, discrepancy has occurred, both in
investigation and also in the statement of
the fact witnesses. first F.I.R. was lodged
on the same day by Abdul Hameed and he
named 15 persons as accused. The second
F.I.R. was lodged by Abdul Samad after
two days and the reason put forward for
delay was his son was injured and was
under treatment in Medical College,
Lucknow and when he came back from
there, he lodged F.I.R. against 7 persons.
In the first report the reason for the
incident was alleged to be the dispute
which arose because of fishing. No such
132 INDIAN LAW REPORTS ALLAHABAD SERIES
reason has been alleged in the subsequent
F.I.R. lodged by the father of injured.
Three fact witnesses have been examined-
PW-1 Abdul Wafa (injured), PW-3 Abdul
Hameed (informant of first F.I.R.) and
PW-6 Ahamad Ali as eyewitness. Abdul
Samad, the informant of second F.I.R.
died and could not be examined and the
written report has been proved by PW-1
injured as secondary witness. Both PW-1
and PW-6 have confined their statement
to the facts of second F.I.R.. As such, in
respect of facts in ST No. 168/11, only
informant appears to have supported his
F.I.R. version as eyewitness. In the F.I.R.,
it has been stated that in addition to Abdul
Wafa, Rafiuddin also sustained injury,
but, Rafiuddin has not been examined in
the court nor any medical report has been
produced to show that he sustained injury
in the incident.

26. PW-3 Abdul Hameed has stated
that accused Ujer Ahamad was carrying
country
made
pistol
and
accused
Nurulhuda was carrying spade, while all
other accused persons were carrying lathi
danda at the time of incident and all
committed marpeet and caused injuries to
Abdul Wafa and Rafiuddin. Rafiuddin has
not been examined who could be the best
witness to say that he sustained injury in
the incident. His statement has not been
even recorded by IO nor he is a witness of
charge-sheet. Abdul Wafa is not a witness
in respect of case based on the F.I.R.
lodged by Abdul Hameed and while
giving
statement
in
court,
he
has
disowned the F.I.R. version and he has
denied his presence on pond/pit at the
time of incident. PW-6 Ahmad has also
disowned that F.I.R. and has stated that he
was not present there at pond/pit at the
time of incident. Both these witnesses
have expressed their ignorance about the
incident taking place there as the same did
not happen in their presence and any
thing, though very little, came in their
statement regarding that incident is totally
hearsay which cannot be taken in support
of prosecution case so far as ST No.
168/11 is concerned. The evidence of
PW-3 Abdul Hameed also does not stand
during cross-examination as he has stated
in his chief that Abdul Wafa and
Rafiuddin sustained injuries, but in crossexamination he states that in addition to
both he and one Tamudin also sustained
injuries. There is no such medical report
nor Tamudin has been examined. He has
never said in his F.I.R. that he also
sustained injury. In corresponding GD
also there is no mention about his injury
or injury of Tamudin or Rafiuddin. The
two fact witnesses of the charge-sheet,
Abdul Quddus and Nurulhaq have also
not been examined in support.

27. In view of the above discussion,
I find that the finding of conviction in the
impugned judgment in S.T. No. 168/11 is
perverse, suffers from illegality and is not
sustainable under law and the same is
liable to be set aside. Consequently, the
accused-appellants are entitled to be
acquitted.

28. So far as the other session trial S.T.
No. 110/11 is concerned, in the F.I.R., 7
accused persons are named and against them
charge-sheet has been filed. It needs to be
pertinently mentioned that it has been the
prosecution case that only Abdul Wafa
sustained injuries and in the medical
examination 3 injuries have been found on
his body- two lacerated wound on head and
one contusion on back below the neck.

29. Ext Ka-4 is the site-map for this
case in which the place of occurrence has
2 All. Abdul Khaliq & Ors. Vs State of U.P.
133
been shown as 'X' which is situated on
Hanumanganj-Padi road in front of house
of Khaliq. The F.I.R. also contains that
the incident took place on the road in
front of the house of Khaliq while the
injured was coming from Dankuia. This
has been proved by PW-1 and PW-6 in
their statements The submission of the
learned counsel to the accused-appellants
is that in the first F.I.R., the place of
incident is different. Since both the
witnesses,
PW-1
and
PW-6
have
disowned that F.I.R., and that case has
been disbelieved earlier in this judgment,
therefore, that difference is not material
and need not to be considered for the
purpose of this case. Moreover, if the sitemap of both the cases are compared, it is
clear that there is not much distance
between the two places of occurrence. In
the north house of accused Khaliq has
been shown and in the south the
agricultural land of Nurulhaq has been
shown and in between the two, there is
pond/pit to which the agricultural land of
Nurulhaq is very close. In the north of the
pond/pit and in the south of the house of
Khaliq, there is road on which by 'X' the
place of occurrence has been shown in the
site-map. Therefore, the difference in
place of occurrence has no legal impact.
Thus, the place of occurrence stands
established.

30. The date and time of incident
has been also proved by the witnesses
PW-1 who is injured and by virtue of
injury, his presence at the time of
occurrence can hardly be disputed and his
statement finds further support from the
testimony of the eyewitness PW-6. PW-2
Doctor has stated while proving the injury
report that the injuries could have been
possibly caused by blunt object such as
lathi and it was possible to have been
caused on 3.1.2009 at 11 A.M. In C.T.
Scan, a depressed fracture on head has
been found on his head along with blood
clotting. Therefore, it is also established
that on the said date, time and place,
Abdul Wafa sustained injuries with a
depressed fracture on head.

31. Now, the only thing which is
required to be determined whether the
seven accused persons caused the injury
and committed offence as alleged by
prosecution. PW-1 Abdul Wafa has stated
that on the exhortation of Khaliq and Razi
Ahamad alias Raju to kill him, accused
Tufail and Nurulhuda fired on him by
country made pistol whereupon, he sat
down and escaped. When it is alleged that
the injured was shot fire and no such
firearm was incurred by him, the use of
firearm by two accused persons becomes
suspicious. It just remains an oral saying
in absence of any firearm injury and also
in absence of any recovery of pistol from
both the accused or any object from spot
in terms of pellets etc. showing use of
firearms in commission of offence. In the
factual matrix of the case also, it appears
that the attack was direct and from close
distance, and therefore, the fact that the
injured escaped because he dropped
himself down, seems to be improbable
and unbelievable. Therefore, the presence
and involvement of accused Tufail and
Nurulhuda
has
become
extremely
doubtful.

32. PW-1 Abdul wafa has further
stated that again on exhortation of Khalik,
Jameel Ahamad, Mutaliq and Ujer hit him
by lathi by which he sustained injuries.
This time the witness has not stated that
accused Razi Ahamad alias Raju also
exhorted both on which they acted upon.
His role of exhortation has been confined
to exhortation of accused Tufail and
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Nurulhuda who were allegedly shot fire
and in respect of them when the case of
prosecution has been found to be
doubtful. Therefore, the exhortation by
accused
Razi
Ahamad
alias
Raju,
consequently becomes doubtful.

33. Thereafter, on exhortation of
Khaliq, Jameel Ahamad, Mutaliq and
Ujer hit Abdul Wafa by lathi by which he
sustained injuries. He was taken to
hospital and was medically examined at
P.H.C. and from there he was sent to
District Hospital and then referred to
Medical
College
Lucknow.
In
his
statement, PW-1 has also stated that
Abdul Mutaliq also hit him by lathi. The
learned
counsel
of
appellant
has
submitted that inclusion of Abdul Mutaliq
appears to be an improvement and the
statement of PW-6 is also an exaggeration
on the point as he mentions the name of
Mutaliq subsequently, though says that he
and Ujer Ahamand hit first by lathi on
exhortation. But, I find no force in this
submission as both injured witness and
eye-witness have stated that he also hit
the injured by lathi causing injury to him.
In the F.I.R. also he has been alleged to
have caused injury by lathi. It should be
remembered that PW-1 is an injured
witness and there is no reason to discredit
the testimony of an injured witness and
law gives a very higher value to a witness
who has sustained injury in the incident.

34. As held in State of Haryana Vs.
Krishan, AIR 2017 SC 3125, Mukesh Vs.
State for NCT of Delhi & Others, AIR
2017 SC 2161 (Three-Judge Bench),
Bhagwan Jagannath Markad Vs. State
of Maharashtra, (2016) 10 SCC 537 and
Jarnail Singh Vs. State of Punjab, 2009
(6) Supreme 526, deposition of an injured
witness should be relied upon unless there
are strong grounds for rejection of his
evidence
on
the
basis
of
major
contradictions and discrepancies for the
reason that his presence on the scene
stands established in the case and it is
proved that he suffered the injuries during
the said incident.

35. Other witness PW-6 is of the
same locality and is neighbor of the
injured and he has also supported that on
the exhortation of Khaliq, the other three
accused persons hit the injured by lathi
and caused injury to the injured. The
injured has sustained three injuries which
also supports the participation of accused
persons. Moreover, both the witnesses are
illiterate villager and keeping in view the
law laid down in State of U.P. Vs.
Chhoteylal, AIR 2011 SC 697, Dimple
Gupta (minor) Vs. Rajiv Gupta, AIR
2008 SC 239 the court should keep in
mind the rural background and the
scenario in which the incident had
happened and should not appreciate the
evidence from rational angle and discredit
the otherwise truthful version on technical
grounds.

36. In view of above discussion,
participation and involvement of four
accused persons in commission of offence
is established- Khaliq who exhorted and
Jameel Ahamad, Abdul Mutaliq and Ujer
who hit the injured on his exhortation.

37. Now, the nature of injuries needs
to be examined. As per F.I.R., Abdul
Wafa was seriously injured and he was
taken to Rudhouli Hospital where he was
examined. But he was regularly vomiting
and
his
injury
was
bleeding,
and
therefore, he was taken to District
Hospital where some treatment was
provided to him. But he started vomiting,
2 All. Abdul Khaliq & Ors. Vs State of U.P.
135
getting unconscious and fits also started
and then, he was referred to Medical
College, Lucknow where he is under
treatment and condition is serious.

38. Medical report which is on
record is of P.H.C., Rudhouli which has
been referred above. PW-8 is Dr. Gourav
(Radiologist) of Raj Scanning Ltd.,
Jiyamau, Lucknow has stated that in C.T.
scan, a depressed fracture was found on
left frontal bone on head of Abdul Wafa.
In his cross-examination, he has admitted
that he did not see the patient and he
prepared the report on the basis of C.T.
Scan film which is Mat. Ext.-1 and C.T.
Scan was conducted on 16.1.2009 in his
supervision by the technician on the
reference of Dr. Sunil Agrwal. He has
also admitted that Raj Scanning Ltd. is a
private institution. In the Report, he has
written 'co-relate clinically' which means
that the doctor doing treatment should
verify the report with the real condition of
the
patient.
There
is
no
such
supplementary report after co-relating
clinically as advised in the report. A
discharge
slip
of
Mayo
Hospital,
Lucknow is on record as paper no. 92 kha
showing date of admission in the hospital
on 8.1.2009 and discharged on 21.1.2009,
but the same has not been proved by
prosecution.

39. The submission of the learned
counsel is that there is no supplementary
report of any doctor under whom Abdul
Wafa was under treatment. Moreover,
there is no evidence that he was ever
treated in Medical College, Lucknow as
alleged in F.I.R. and injured Abdul Wafa
in his statement has also not stated so and
instead, he has stated that when he got
conscious, he found himself in Mayo
Hospital, Lucknow which is a private
hospital. It has been further argued that
the C.T. scan report and the discharge slip
was not delivered to the I.O. and even the
statement of Abdul Wafa was not
recorded by I.O. nor he was named in the
list of witnesses in charge-sheet.

40. So far as not showing Abdul
Wafa as witness in charge-sheet, or not
recording his statement by I.O., this lapse
can be assigned to investigating agency
and that cannot be given much importance
as F.I.R. contains that he sustained
injuries and he was a necessary witness.
Injury to him also finds mention in the
corresponding G.D. of F.I.R. lodged by
Hameed and it shows that he was taken to
Police Station and he was medically
examined by police in P.H.C. on the same
day.

41. PW-1 has stated in his
examination-in-chief
that
after
the
incident he became unconscious and
when he got conscious, he was in Mayo
Hospital, Lucknow. There is no such
report on record that he remained
unconscious for 4-5 days as he was
admitted there on 8.1.2009. On the
contrary, PW-2 Dr. A.K. Choudhary who
examined him on the date of incident at
2.10 P.M., has stated that the patient
vomited once before him and complained
that he has feeling of vomiting regularly
and he has vomited 7 times prior to that.
Though the doctor has mentioned nothing
about his mental and physical condition,
but from his statement, it is clear that the
injured was conscious at the time of
medical examination. It has been said by
the witness that he was provided some
treatment in District Hospital, Basti, but,
there is no evidence on record regarding
his treatment there. In my view this
discrepancy could only be explained by
136 INDIAN LAW REPORTS ALLAHABAD SERIES
Abdul Samad (informant) who died
without being examined and PW-1 Abdul
Wafa because of injuries might not be
able to notice the treatment in District
Hospital. The informant being illiterate
villager might not have been able to
distinguish between Medical College and
Mayo Hospital.

42. The learned counsel to the
accused-appellants has submitted that there is
no reason shown by the prosecution that the
F.I.R. lodged by Abdul Hameed was not
correct nor it has been anywhere asserted that
he was having any reason to lodge F.I.R.
with wrong facts.