# Goonga v. State of U.P

- **Citation:** (2012) 3 ILRA 1438
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-13
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/goonga-v-state-of-u-p-42453
- **Pages:** 4

## Headnote

A.G.A.

Criminal Appeal-against conviction with
3
years
rigorous
imprisonment
for
offence under section 307 I.P.C. On
ground with similar facts with identical
rule-other 3 accused-given benefit of
doubt-Appellant be also treated likelyotherwise
considering
30
years
old
matter-by
conversing
offence
under
section 307 into 324 I.P.C.-be released
on
probation-held-considering
crime
should not go unpunished-not a fit case
for conversion-conviction by Trial Courtupheld.

Held: Para-11

However, the fact remains that when all
the four accused persons have been
identified to be involved in the incident
and named in the First Information
Report, the view of the Trial court in
giving benefit of doubt to three accused
does not appear to be reasonable, but
since the matter is quite old, it would not
be appropriate to reopen the case
against three accused persons, who have
been acquitted, but on the basis of the
evidences on record, there is no doubt
that the fire was shot by the appellant
Goonga @ Noor Ilahi, which caused
serious injuries, fatal in nature and may
result into the death of the injured, Altaf
Husain, therefore, the appellant has
rightly been convicted under Section 307
of the IPC by the Trial court.

## Text

1438 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

accordingly, dismissed. This shall be
without prejudice to the right of the
revisionists to seek for bail on merits.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.

Criminal Appeal U/S 374 CR.P.C. No. -
1840 of 1982

Goonga

 ...Applicant
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri S.A.N. Saha

Counsel for the Respondents:
A.G.A.

Criminal Appeal-against conviction with
3
years
rigorous
imprisonment
for
offence under section 307 I.P.C. On
ground with similar facts with identical
rule-other 3 accused-given benefit of
doubt-Appellant be also treated likelyotherwise
considering
30
years
old
matter-by
conversing
offence
under
section 307 into 324 I.P.C.-be released
on
probation-held-considering
crime
should not go unpunished-not a fit case
for conversion-conviction by Trial Courtupheld.

Held: Para-11

However, the fact remains that when all
the four accused persons have been
identified to be involved in the incident
and named in the First Information
Report, the view of the Trial court in
giving benefit of doubt to three accused
does not appear to be reasonable, but
since the matter is quite old, it would not
be appropriate to reopen the case
against three accused persons, who have
been acquitted, but on the basis of the
evidences on record, there is no doubt
that the fire was shot by the appellant
Goonga @ Noor Ilahi, which caused
serious injuries, fatal in nature and may
result into the death of the injured, Altaf
Husain, therefore, the appellant has
rightly been convicted under Section 307
of the IPC by the Trial court.

(Delivered by Hon'ble Rajes Kumar, J.)

1. This is an Appeal by the accused
Goonga @ Noor Ilahi, who has been
convicted by the Trial court for three
years rigorous imprisonment by the
judgement dated 14.7.1982, passed in
Session Trial No. 150 of 1982.

2. The brief facts of the case are that
on 16.1.1982, on the date of occurrence,
at 11:00 A.M., four persons, namely,
Aijaj Husain @ Sabu, Raja Miyan, Parvez
Akhtar, who are real brother and Goonga
@ Noor Ilahi, who is brother-in-law of
accused Raja Miyan and is also brotherin-law of the son of the injured, Altaf
Husain, came to the house of Altaf
Husain. Altaf Husain was sitting on a cot
in front of the door of his House. It is the
case of the prosecution that while Altaf
Husan was sitting on a cot in front of the
door of his house, accused, Aijaj Husan
@ Sabu gave a cartridge to Goonga and
on extortion of Raja Miyan and Parvez
Akhtar, accused, Goonga, who was armed
with pistol, fired a shot at Altaf Husain,
which hit him. The incident said to have
been witnessed by Irshad Husain, Zida
Husain and Idrish, who also tried to
apprehend the culprits, but the accused
persons made their escape good. Zafar
Husain, son of Altaf Husain, lodged a
3 All] Goonga V. State of U.P.

1439
First Information Report at Police Sation,
which was at a distance of about six kms.
from the place of occurrence at 1:45 P.M.
on the same day. A case under Section
307 IPC was registered against the
accused persons. Altaf Husain was
medically examined by PW-4, Dr. Ganga
Vishnu, the then Medical Officer Incharge
of Primary Health Centre, Pukhrayan on
16.1.1982 at 2:30 P.M. He found
following injuries on the person of Altaf
Husain.

1- 3 fire arm wounds 0.3 cm. X 0.2
cm. X muscle deep on chin in an area of 2
cm. x 2 cm. Fresh blood, clots present,
edges irregular, advised X-ray.

2- Multiple fire arm wounds on chest
on both sides, 0.2cm. x 0.2 cm. x probing
not done in an area of 21 cm. x 14 cm.
advised X-ray.

3- 7 fire arm wounds 0.2 cm. x 0.2
cm. x probing not done on upper part of
abdomen on both sides in an area of 14
cm. x 4 cm. advised X-ray.

4-5 fire arm wounds 0.2 cm. x 0.2
cm. x muscle deep on front side of left
arm 10 cm. below from tip of shoulder
joint-advised X-ray.

3. The doctor was of the opinion that
all the injuries were caused by fire arm
and were fresh. He referred the injured to
District Hospital for x-ray examination.
P.W. 7 Dr. H.C. Prasad, Radiologist,
U.H.M.
Hospital,
conducted
x-ray
examination of the injured on 18.1.1982.
The x-ray report is Ex. Ka 5. He found
three radio opaque shadows in the region
of chin and one in the left arm.

4. The case was investigated by
P.W. 8, S.I., R.D. Yadav. After recording
the statement of the head moharrir at the
police station, he went to Pukhrayan
Hospital on 16.1.1982 and from there to
village Kaithra. The injured was not
available at his home. He recorded the
statement of the sister of the injured and
searched for the accused. On 28.1.1982 he
came to Kanpur and recorded the
statement of the informant Zafar Husain
and injured Altaf Husain in Fahimabad
Colony at Kanpur. On 4.2.1982 he again
went to the village concerned and
recorded the statements of Irshad Husain,
Idris and Fida Husain. He also took the
clothes of the injured in his possession
and prepared its fard (Ex.Ka 6). He
inspected the site and prepared the siteplan (Ex. Ka 7). He recorded the
statement of the accused Goonga on
2.2.1982 and accused Sabbu and Raja
Mian on 20.2.1982. The statement of
Prevez
was
recorded
by
him
on
17.1.1982.
After
completing
the
investigation, he submitted the chargesheet (Ex. Ka 3).

5. The accused denied the charges
and pleaded not guilty. They further
pleaded that they have been falsely
implicated due to enmity.

6. The Trial court has acquitted Aijaj
Husain @ Sabu, Raja Miyan and Parvez
Akhtar giving benefit of doubt, but
convicted Goonga @ Noor Ilahi for three
years
rigorous
imprisonment
for
committing offence under Section 307.

7. Heard Sri S.A.N Shah, learned
counsel appearing on behalf of the
appellant and Sri G.H. Bisaria as well as
Sri A.K. Verma, learned Additional
Government Advocates in opposition.
1440 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

8. Learned counsel for the appellant
submitted that in the First Information
Report
four
persons,
including
the
appellant, were named and identified. Out
of four accused persons, benefit of doubt
was given to three accused, namely, Aijaj
Husain @ Sabu, Raja Miyan and Parvez
Akhtar, therefore, on the same ground,
benefit of doubt should be given to the
appellant, Goonga, also. He further
submitted that since thirty years have
passed, the accused may be released on
probation and further the punishment
awarded may be converted into fine.

9. Learned Additional Government
Advocate submitted that the incident
occurred on 16th January, 1982 at 11:00
A.M. at Village Kaithra infront of the
house of Altaf Husain. The four accused
persons, named in the First Information
Report, came to the house of Altaf Husain
when he was sitting on a cot infront of his
door. The specific case of the prosecution
right from the F.I.R. is that Aijaj @ Sabu
gave a cartridge to Goonga, while Raja
Mian and Parvez Akhtar exhorted and the
appellant-Goonga fired shot at Altaf
Husan, who sustained bullet injuries on
his
chest
and
shoulder.
A
First
Information Report was also lodged on
the same day at 1:45 P.M. against the
aforesaid four accused persons and they
were named in the First Information
Report. Altaf Husain was medically
examined and in the medical examination
bullet
injuries
were
found
which
establishes that Altaf Husain was fired by
the fire arm. In the circumstances, the
Trial court has rightly convicted the
appellant. He further submitted that on the
facts and circumstances of the case,
acquittal of Aijaj Husain @ Sabu, Raja
Miyan and Parvez Akhtar on the ground
of benefit of doubt is not justified.
However, since the matter is quite old, it
would not be appropriate to reopen the
case at this stage against them.

10.

I
have
considered
rival
submissions and perused the evidences on
record.

11. The incident took place on 16th
January, 1982 at 11:00 A.M. in front of
house of Altaf Husain in Village Kaithra.
The evidence on record establishes that
Altaf Husain was shot by fire arm and the
report of PW-4, Dr. Ganga Vishnu, the
then Medical Officer Incharge, clearly
established that the injuries were caused
by fire arm and were fresh. The injuries
were on chest and on the upper part of the
Abdomen apart from other injuries, which
were fatal in nature. The First Information
Report was lodged at 1:45 P.M. on the
same day. It is true that in the First
Information Report, the name of any
independent
witness
or
immediate
neighbour of the injuried was not given,
but the incident took place in a broad day
light, therefore, the statement of the
injured
cannot
be disbelieved. The
accused and the injured appears to be
relatives. The Trial court has given
benefit of doubt to three accused on the
ground that those three accused, namely,
Aijaj Husain @ Sabu, Raja Miyan and
Parvez Akhtar were real brothers and they
had enmity with the injured and for that
reason their names might have been
included in the First Information Report.
However, the fact remains that when all
the four accused persons have been
identified to be involved in the incident
and named in the First Information
Report, the view of the Trial court in
giving benefit of doubt to three accused
does not appear to be reasonable, but
since the matter is quite old, it would not
3 All] Mani Raj Singh Rathore V. The State of U.P.

1441
be appropriate to reopen the case against
three accused persons, who have been
acquitted, but on the basis of the
evidences on record, there is no doubt that
the fire was shot by the appellant Goonga
@ Noor Ilahi, which caused serious
injuries, fatal in nature and may result into
the death of the injured, Altaf Husain,
therefore, the appellant has rightly been
convicted under Section 307 of the IPC
by the Trial court.

12. For the aforesaid reasons, I do
not find any reason to release the
appellant on probation and having regard
to the nature of the injuries, it is not a fit
case for conversion of the case from
Section 307 IPC into 324 IPC and to
impose fine. Justice demands that the
crime should not go unpunished.

13. In the result, the Appeal fails and
is dismissed. The order dated 14.7.1982
passed by the Sessions Judge (Non
Metropolitan Area) Kanpur convicting
and sentencing the appellant, as aforesaid,
is affirmed. The appellant is on bail.
C.J.M., Kanpur Dehat is directed to take
the appellant into custody and send him to
jail for serving out the sentence awarded
by the trial court and affirmed by this
Court.

14.

Office
is
directed
to
communicate this order to the C.J.M.
concerned for compliance within a period
of one week
---------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.10.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE ANIL KUMAR SHARMA, J.

Criminal Appeal No. 3881 OF 2005
Connected with
Criminal Appeal No. 4165 of 2005

Mani Raj Singh Rathore son of Rishi
Singh Rathore resident of village B-2/36,
Tourist
Restaurant,
P.s.
Bhelupur,
District Varanasi.

 ...Applicant
Versus
The State of U.P.
 ...Respondents

Counsel for the Petitioner:
Sri Ashok Mehta
Sri Brijesh Sahai
Sri Shiv Kumar Pal

Counsel for the Respondents:
Sri R.A. Mishra
A.G.A.

Crimianl Appeal-against punishment of
life
imprisonment-punishable
under
section 376 (2) (g)-on ground of in
ordinate delay in lodging F.I.R.-victim a
German
Lady-stayed
in
hotel-two
accused persons offers "Lussi" with
intoxicated substance and ravished her
on the roof of the hotel-prosecution
story fully supported by statement of
victim-after
getting
rid
from
their
clutches-with help of another foreign
lad-as
escaped
herself
by
shifting
another hotel-hence can not be termed
in
ordinate
delay-punishment-heldproper-requires no interference .

Held: Para- 31 and 40

In the facts and circumstances of the
case we are of the considered opinion
that the trial court has rightly held that
being
a
foreign
lady
without
any
companion
the
victim
was
under